§ The order of the day being read for the further consideration and second reading of the Bill of Pains and Penalties against her majesty, and counsel being called in, Charles Kersten was sworn, as interpreter on behalf of her majesty.
§ Then Meidge Barbara Kress was again called in, and further examined as follows by Mr. Attorney General, through the interpretation of Mr. Goltermann.
§ You have stated yesterday, that when you entered the room, No. 12, on one evening, you saw the princess sitting on Pergami's bed, what happened after you saw the princess sitting on Pergami's bed? Am I asked the same evening still.
§ What did you see, when you observed the princess was sitting on Pergami's bed? I have seen the princess sit on the bed, and afterwards I withdrew.
§ Before you withdrew, what did the princess do; did the princess continue siting, or what else occurred? I saw that the princess jumped up; I withdrew, I was frightened.
§ You are understood to say, that you then withdrew? Yes.
§ Did you make up the bed in No. 12, Pergami's room? Yes.
§ Did you at any time, when you were making up the bed, discover any thing upon the bed? On the bed do you mean?
§ On or in the bed? In the bed I have found a cloak.
§ Was that a cloak appearing to belong to at female? Probably; because behind it had a kind of hood.
§ What did you with that cloak? I took it out and unfolded it.
§ At what time of the day was it you found this cloak in the bed? It was in the morning when I made the bed.
§ Describe a little more particularly the cloak—what it was made of? It was of silk, the colour grey.
§ Did you afterwards see any one wearing that cloak? A servant took it out of my hand.
§ Did you see any person wearing that cloak afterwards? [Through the interpretation of Mr. Kersten.] I have seen a cloak the next day upon the princess, but I cannot say that it was the same.
Mr. Attorney General.—Was it a cloak of a similar description to that you had seen upon the bed, that you saw the princess wearing? [Through the interpretation of Mr. Gollermann.] Yes, it was of the same colour.
Do you know whether it was of the same make—whether it was of silk that you saw 973 upon the princess? Yes, it was likewise silk.
Had the cloak the princess was wearing a hood like that you saw in the bed? Yes, it had such a hood.
Did you, at any time in making up the bed, observe any thing else upon the sheets, or any part of the bed?
Mr. Kersten.—The word she uses is a word that cannot be expressed in English, unless by asking her what she means by it; she says, when once I made the bed I saw that the sheets were wüste. Now she says "Wüste," she may mean by "Wüste" in disorder, that is generally understood by this word; it is an adjective. "Wüste," in its proper meaning, is the English word "Waste." "Eine Wüste" means a desert.
What do you mean by the bed being "Wüste?"
Mr. Goltermann.—She was at first at a loss to express it, but afterwards she said it had stains.
The Interpreters were directed to give the interpretation of the evidence, word for word.
What sort of stains were they? [Through the interpretation of Mr. Goltermann.] As much as I have seen, they were white.
You have stated that you are a married woman? Yes.
What did those stains appear to be? I have not inspected them so nearly, but I have seen that they were white.
Have you ever made the beds of married persons? Yes; I have made all the beds that were in the house generally.
What was the appearance of those stains which you saw in Pergami's bed? You will pardon me; I have not reflected on this; I have had no thoughts on it whatever. Were those stains dry or wet? Wet.
Mr. Broughamstated, that he had but few questions at present to put on cross-examination, but that he should reserve the bulk of his cross-examination to a future time, after inquiry had been made.
It was suggested to the counsel, whether they had not better reserve the whole of their cross-examination till a future time.
Mr. Broughamstated, that he wished to put some questions, in order to lead to those inquiries.
The counsel were directed to state the line they proposed to take in dividing their cross-examination.
Mr. Broughamstated, that he apprehended it was to follow from being refused a list of the witnesses that, after the witnesses were examined at first, they were 974 then to have an opportunity of being put into the same situation as if they had obtained knowledge of their names and places before, by being enabled to cross-examine them again at a subsequent part of the proceedings, though he could not regularly allude to the grounds of that understanding.
Mr. Denmanbegged to call their lordships attention to what had passed since the commencement of this inquiry, in regard to another witness.
The counsel were informed, that no rule was laid down at present, and were directed to state what was the nature of their application; but that nothing could be more irregular, or more inconsistent with justice, generally speaking, than cross-examining a person more than once.
Mr. Broughamstated, that he was ready to admit cross-examining by piecemeal, in general cases, would not be regular, but begged to submit to their lordships the peculiar nature of their present position; that they had at first afforded to them no knowledge of the present situations or residences of any of the witnesses that were to be called against her majesty; that they had, in the second place, no intimation given to them of either the time with a convenient certainty, or the place with a convenient particularity, at which the alleged acts were said to have taken place, and that this peculiarity of their situation might well be deemed justly to authorise this other peculiarity, that instead of being called upon to cross-examine at once, and as it were, unico contextu, they should take advantage of an interval after the case against her majesty had been gone through to enable themselves to pursue that examination with greater effect after they should have been made acquainted with time and place.
The counsel were informed, that if their intention was, to cross-examine the witness as to her family or connexions, or situation in life, all that might be ascertained now; but that if they proposed to go into circumstantial evidence beyond what was sufficient to enable them to pursue the inquiries they might think necessary to justice, it was apprehended that could not be; and that that which was permitted to be done when Majoochi was called back was extremely irregular; and therefore, that until the matter was further considered, must not be taken as a precedent.
Mr. Broughamstated, that with respect to the circumstantial evidence, he should go no further than his lordship had suggested; namely, as to the certainty of time and place, leaving all the circumstances to a future examination; and that he proposed to go into the description of the person, her residence, and circumstances of that nature, leaving further questions on that point to the result of future inquiry; that if any of his questions appeared to go beyond that which their lordships were pleased to permit, he trusted he should not be considered as intending to trench upon their lordships rule.
§ The counsel was informed that he might proceed.
§ Cross-examined by Mr. Brougham.
§ How long were you chambermaid at the inn? [Through the interpretation of Mr. Kersten.] One year and three quarters.
§ Were you married at that time? No, I was not.
§ You were not married till you left the inn? I married after having left the inn.
§ What were you before you were chambermaid at the inn? I served likewise before.
§ In what place were you before that? I was at a village called Beyertam.
§ What service were you in before you were in the inn as chambermaid? I have been with the Geises just before; I was just before at my father's, before I went to the inn, for a quarter of a year.
§ Were you in any other family as a servant before that? Yes.
§ What family? At Beyertam, at several families.
§ Name one of those families? Marwey.
§ Who or what is Marwey? He is a landlord of an inn.
§ Were you chambermaid in his house? Yes.
§ How long? Haifa year.
§ Where did Marwey live? He lives at Beyertam; the name of the place is Beyertam.
§ Where were you before you were in his family? At a servant's of the grand duke of Baden.
§ How long? Six years.
§ How old are you now? Past twenty-five.
§ Were you a servant anywhere before that time? No, I came to that place just on leaving the school, on leaving my father's house; on leaving school I was going to say, that I was in another place for half-a-year.
§ What was that place? At Carlsruhe.
§ What was the name of the family? Schuabel.
§ What is Schuabel? A landlord.
§ Were you chambermaid in his inn? Cellar maid.
§ What is the office of a cellar maid in an inn? I have cleaned the rooms in the inn.
976Mr. Goltermann.—I have cleaned the room where the master and mistress were, I have cleaned the public room in the inn.
Had you any other employment at any time besides those you have mentioned? [Through the interpretation of' Mr. Kersten.] None.
Mr. Goltermann.—Besides the public room of the inn.
Is a waiter in an inn called a keller? Keller is a man servant.
Is kellermadchen which you have described yourself to have been, a woman who attends upon the man keller? She has nothing to attend to, but to clean the rooms of the inn.
How long have you been here? This day three weeks.
Whom did you come over with? With a courier.
What is his name? Reissner.
Was any body else with you? I took my brother with me, because I did not like to go by myself,
What is his name? Frederick Cleinbech.
How old is he? I cannot say this.
About what age? About twenty-eight, I cannot say to a certainty.
Who paid for your expenses coming over? I do not know what the courier paid during that time.
Who asked you to come over here? At Carlsruhe our minister M. Berckstett.
Did any other minister speak to you on the subject? When I was there, I had seen nobody else.
Mr. Goltermann.—When I was with him.
When you were at Carlsruhe did any other person speak to you about coming over here? [Through Mr. Kersten.] M. de Geilling.
Who is M. de Geilling? He is at court, I do not know what office he holds there.
Did any other person besides speak to you upon coming over? The ambassador of the court of Wirtemburgh, whilst I was still at the post inn.
Did any body else speak to you about coming over? M. de Reden.
Who or what is M. de Reden? They told me he was the ambassador of Hanover.
Does he live at Carlsruhe? Yes.
Where does he live in Carlsruhe? He lived at a Jew's whose name was Kusel.
Did he ever live any where else, but at the Jew's? I cannot say this.
Did he often come to the inn where you were chambermaid? I never saw him at the inn.
Did he examine you upon this subject? A M. de Grimm asked me first.
Who is M. de Grimm? The ambassador of Wirtemburgh.
Did you ever leave Carlsruhe before, to go any where else on this business? Yes.
Were you ever at Vienna upon this business? No.
Did you ever see colonel Brown? No.
Did you ever see colonel Deering? I know 977 not what was the name of the gentleman where I was.
Where were you, in what place? At Hanover.
When did you go to Hanover? It was on leaving the post inn I was called to go there.
Mr. Goltermann.—The same quarter of the year.
Who called you to go there? [Through Mr. Kersten.] M. de Reden.
How long did you remain at Hanover upon that occasion? Six or seven days, I cannot tell exactly.
Were you examined there upon this subject? They asked me whether I had seen such and such things.
Did you go back from Hanover to Carlsruhe? Yes.
What did you get for going to Hanover? I received a small payment, just for the time I had lost.
How much was that small payment? I cannot exactly tell, it was little, very little.
About how much was it? About sixteen or eighteen ducats.
Mr. Goltermann.—Of which each makes five florins, she says.
What wages had you at the inn? [Through Mr. Kersten.] We had only twelve florins a-year at the inn, because they reckoned much upon the perquisites.
Did any body else give you any thing besides the sixteen or eighteen ducats? No, I received nothing else.
You are not asked whether you received nothing else at that time, or on that journey; but nave you received nothing else? I have been obliged another time to go to Frankfort.
Who fetched you to go there? The valet de chambre of the Hanoverian minister went with me.
How long did you stop at Frankfort? Four or five days.
Were you examined there? They asked me what I had seen, and then I told it in the same manner.
Do you mean you then told it in the same manner as you have here? I have said the same thing as I said here.
What did they give you forgoing to Frankfort? Twelve or fourteen ducats.
Has any body given you any thing else? No, except the gentleman who fetched me from the post.
Do you mean the courier? I know not what he was; he was a foreigner or stranger.
What did he give you? He caused me twice to go there.
To go where? To the post, and then he told me that I should go to London; I said I would not until I was forced.
What did he say? He said I had better go, for it would come to that that I should be obliged to go.
Mr. Goltermann.—The witness adds, "then I said I would let it come to that point." Did he give you any thing? [Through Mr. 978 Kersten.] He gave me a ducat for my trouble for having called upon him; because I was then occupied.
Did he give you a ducat each time you called upon him, as you say you called twice? No, only the second time.
Did he promise you any thing? Nothing at all, because I said I would not go.
The counsel were directed to withdraw.
The Earl of Lauderdaleobjected to the line of cross-examination taken by the learned counsel. The reason that had been given to their lordships, to induce them to allow a cross-examination, at present, was, that no previous list of witnesses had been afforded to her majesty, who had not, therefore, any means of knowing the situations which the witnesses had filled, or their places of residence. Their lordships, in consequence, permitted a cross-examination, on the ground that those points should be explained; but when they did so, he supposed they meant that this permission should strictly apply to that species of information to which he had alluded. But the learned counsel had gone beyond that. He was asking questions that went to impeach the credit of the wituess—a course which was so destructive of all justice, that he did not think their lordships intended to tolerate it. If those questions went to assail the credit of the witness (and he would maintain that much of what their lordships had heard had directly that effect), they could not be vindicated, as being asked with a view to get at the place of residence and the situation of the individual, but which must be presumed to have a very different object. If this course were allowed, let their lordships observe the example they would set to those persons who might cross-examine in future. He contended that the veracity or consistency of the witness was not a matter that should be then gone into, because it gave an advantage to the accusing party. It afforded the prosecutor, in summing up, an advantage that he would not otherwise have. He ought not to be allowed to know that which would enable him to shape his summing up differently from what he otherwise would do Was it fair or right that the person accused should now conduct the cross-examination with a view to get out facts to impeach the credit of the witness hereafter, not on account of any information that he had received, but in consequence of facts elicited by a cross-examination, that 979 ought, in conformity with their lordships' direction, to be confined to particular points, because another opportunity would be allowed for a general examination. Such a precedent would be fatal to the interests of justice.
The Lord Chancellorthought, most unquestionably, that this cross-examination had gone far beyond the limits to which it ought to have been confined. Although their lordships would not interfere to prevent the learned counsel from obtaining a knowledge of who the witness was, what was her situation in life, where she now lived, where she previously resided, and what occupation she formerly followed; yet, if he proceeded to extract information from her by which her credibility might be impeached hereafter, it would be the most irregular and the most dangerous thing in the world to suffer him to go on As far as the cross-examination went in the first instance to obtain a knowledge of the witness's situation in life, &c, their lordships would not stop it; but that end being effected, they could not allow the cross-examination to proceed farther. In what situation did the House stand? They must stop this antecedent cross-examination—because, if they did not, if they let it proceed, they could not, with any degree of regularity, ask a single question at a future time. If the cross-examination was not concluded, and the re-examination began, then they had a right to ask questions. But the present course would deprive them of that opportunity. How then would they be situated, if the witness were called up to answer the questions of counsel on a future day, their lordships being precluded from doing so? The proceeding was bad for both parties; it was peculiarly unfavourable to the illustrious person accused, because, as had been said by the noble earl, it put it in the power of the counsel for the prosecution to sum up differently from what he otherwise would have done. It went farther—it gave him an opportunity of knowing what witnesses to call, in order to bolster up the case, if he were inclined to do so. He thought that, so far as questions were put for the purpose of learning who and what the witness was, they were allowable; but it appeared to him that the learned counsel had pushed the cross-examination a great deal too far.
The counsel were again called in, and informed, that they were to confine their 980 examination to the situation and character of life of the person called, in case they wished to postpone their full cross-examination to a future time.
Lord Sidmouththought that the necessity of any cross-examination to these points, upon the ground that no list of witnesses had been furnished, was a plea which could not be maintained. If a list of witnesses had been granted, it would have contained only a statement of the name, occupation, and place of residence of each witness. The three first questions, put by the attorney-general, furnished that information, and he saw no necessity, therefore, for any cross-examination upon those points.
The Earl of Liverpoolobserved, that it was entirely in the option of the learned counsel to enter immediately upon the full cross-examination.
Mr. Broughamsaid, he perfectly understood that he was at liberty to enter into the full cross-examination now; but he had felt it necessary to defer it, for reasons which he had already statad to their lordships. At the same time their lordships would perhaps allow him to state what the question was which he meant to put. He wished to ask, with a view of identifying the person of the witness, and therein strictly confining himself to the limit laid down by their lordships, whether her brother had promised her nothing?
The counsel were informed, that their lordships did not consider that a proper question now to be put.
§ The counsel were directed to withdraw.
The Duke of Hamiltonsaid, he could not help viewing this question in a very different light from the noble viscount who had just spoken. If a list of the witnesses had been granted two months ago, her majesty's counsel would then have had such opportunities of inquiring not only into the residence but the character of the witnesses, as might have rendered a delay of the cross-examination unecessary. He would make no observations upon the doctrine laid down by the noble and learned lord. The course might be contrary to the practice of the courts below; but it appeared to him that, by the rule prescribed, the counsel would be precluded from going into those inquiries which were most essential to their client's defence.
Lord Sidmouthrepeated, that the plea of necessity for this cross-examination, on the ground that no list of witnesses had been furnished, could not be maintained. The names, occupations, and places of residence were all the information that would have been given in such a list, and this information had been furnished by the answers to the three first questions of the attorney-general.
The Earl of Liverpoolsaid, the whole question was, whether the witnesses were to be sifted twice upon points connected with character. If there were to be two cross-examinations, it was fit that the first should be confined to name, residence, and occupation, and such facts as came out in the direct examination.
The Lord Chancellorcould not agree with what had fallen from the noble viscount (Sidmouth), that the questions put by the attorney-general bad quite the same effect as if a list of witnesses had been allowed. If a list of witnesses had been granted six weeks ago, such inquiries might have been made as to render all examination as to residence and occupation unnecessary. He knew no way of proceeding so as to do justice on both sides, but to impress upon the counsel as respectfully as he was able, that this House was endeavouring to do justice. It was difficult to limit specifically the questions which might be put by counsel, but he trusted they would be such as to come bonâ fide within the principle laid down by the House. He apprehended the question last put by the counsel did not come within that principle, because an inquiry into the present residence of the witness went directly to impeach her credit. At the same time, if it was their lordships' pleasure that this question should be put, God forbid that he should interpose. He only wished to impress upon their lordships the situation in which they were placed. If such a course were permitted, not only would it be impossible to enter into the re-examination, but it would be impossible for their lordships to put a single question to the witness. He trusted that the counsel would repose in the honour of the House, whose anxious endeavour it was to do justice on both sides; and, on the other hand, he doubted not that the House would repose in the honour of the counsel, who, he was persuaded, would put no other questions than those which came bonâ fide within the rule laid down by the House.
The Earl of Donoughmoresaid, he agreed entirely with the learned lord, as to the line of examination which he had just marked out. By pursuing this course her majesty would be placed precisely in the same situation as if the trial had been for high treason, and a list of witnesses had been furnished. He did not complain of her majesty's counsel for endeavouring to get the completest information they could for their client's advantage, but it was the duty of the House to stop them when they proceeded irregularly. He was of opinion that the House ought to have stopped them long ago. He must say their lordships had fallen into great error in the course of these proceedings, and had it not been for the deference which he felt to higher authorities, he should have interposed long ago. He thought it extremely improper, in the examination of that man Majoochi.
§ Earl Greyrose to order. He submitted to their lordships, whether the proceedings ought to be interrupted by such a discussion as the noble lord was now entering into?
The Earl of Donoughmoresaid, he would pursue that point no further; but he had other and still stronger reasons to show that the House was in error. He maintained that he was strictly in order, and he should be happy to hear his noble friend convince him that he was not in order. The learned lord on the woolsack had said, that the House had got intoerror, yet nobody had called the learned lord to order. It was admitted that their lordships had fallen into irregularities, in which they did not mean to persevere for the future. The facility of this House might possibly have occasioned great irregularities and great injustice out of doors. He agreed entirely in what had fallen from the noble viscount (Sidmouth). In ordinary cases the cross-examination followed the examination in chief; and why should it not in this? It was alleged, that a list of witnesses had not been granted, but the noble viscount had shown that all the information which would have been given in such a list was supplied by the examination in chief The maxim of "nunc pro tunc," applied, and the same advantage was given new, which would have been afforded if a list of witnesses had been furnished in the first instance.
§ Lord Erskinesaid, that his noble friend had expressed his acquiescence in the argument of the noble viscount, and also 983 in the argument of the learned lord on the woolsack, which was in direct opposition to the argument of the noble viscount. He was of opinion, that the utmost indulgence should be given to the counsel for her majesty, because the House could not put them in the same situation now in which they would have been had they, as in a case of high treason, been previously furnished with a list of the witnesses, their professions, and their places of residence. He thought that whatever regarded the credibility of the witnesses should be matter of future cross-examination; but that every question ought now to be admitted which was preparatorily requisite to enable the counsel for her majesty to make the necessary inquiries into that credibility.
§ Earl Greyobserved, that after the general approbation with which their lordships had received the observations which had fallen from the learned lord on the woolsack, it remained only to ascertain their lordships' pleasure with respect to the last question put by the counsel at the bar. Cries of "Go on! go on!"
The counsel were again called in, and informed, that that question ought not to be now put.
Mr. Broughamprofessed himself not to understand the decision of their lordships.
The Counsel were informed, that they might propose another question, and, if necessary, support it by argument; but that the House must proceed according to the rules by which it usually proceeded.
Mr. Broughambegged to propose a question upon the footing of the permission extending to the names and residences of the witnesses, namely—What is your place of residence?
The Counsel was informed that he might put that question.
The Attorney General.—Allow me, my lords, to make a single observation on the course now about to be adopted. I understood your lordships to have distinctly stated, at the outset of the proceeding, in case my learned friends, who are counsel for her majesty, shall offer to your lordships sufficient grounds for having this witness, or any other in the same circumstances, only cross-examined in part, that they should be at liberty so to do, but not to exceed some reasonable 984 and certain limits. But the rule now applied for is not that it shall be limited in this manner, but that the cross-examination of all the witnesses shall only take place in part, until the examination in chief shall have been completed. Surely your lordships will not give my learned friends such an election. If such a course be adopted, I have no hesitation in saying it will be subversive of the first and best interests of public justice, and laying down a bad precedent in all future proceedings of this nature. What is the hardship complained of on the other side? Why, that they have not had a list of witnesses. But your lordships have relieved them from the difficulty. You have allowed them to cross-examine twice; and, before the bill closes, they may be re-examined again [withdraw; order! go on].
§ Lord Erskine.—Why does not the interpreter give the witness's answer?
The Attorney General.—I; do object to it, my lord. This is perhaps the most important, question that has yet occurred. Unless my learned friends now cross-examine the witness, how are we to proceed? Am I to lay the whole of the evidence in support of the bill before your lordships, and that before there is any cross-examination on the other side? Why, my lords, such a proceeding was never heard of in any other court of justice. Is the cross-examination to proceed in this manner, by piecemeal? If it be, I shall be shut out from offering any explanation as to circumstances disclosed by the witness that may be even necessary; and it will be impossible for your lordships to place those who are to support the bill in the situation in which they ought to be placed. Why, my lords, until the whole of the cross-examination and the re-examination be closed, there can be no summing up by counsel. They now cross-examine in part—again they cross-examine in another part, and when or where is this to end? Let them either now proceed in the cross-examination of the witness, or defer it till the whole of the evidence in chief be closed; but they should not have the election they are requiring. They are placed in no difficulties on the other side, but what your lordships have agreed to relieve them from. Your lordships rules are founded in justice, but while 985 you deal out justice to one side, I hope your lordships will not forget what is due to the other, and not place the parties in support of this bill in such a situation as no persons were ever placed before. I hope, my lords, the rule your lordships have laid down will be continued, and that you will oblige them to proceed with their cross-examination on the other side, with the permission of again cross-examining, if they lay proper grounds before your lordships.
Mr. Brougham.—I shall confine myself to the simple question before your lordships, and shall not presume to dispute the rule you have laid down. The only question I have now to contend for is, shall or shall not my question be put and answered? The question before your lordships, and the only question which must be first disposed of according to the practice of all other courts is, whether I am at liberty to ask this witness where she now lives? The Attorney General objects to this, and his ground of objection is, that I ought now to put not only this, but all the other questions which I have to put. His argument is not directed against this question, but that I do not put all the questions in my power to ask. But I will not argue this before your lordships. I am not called upon to do so. Your lordships have put me to my election, and I have made it, and within the narrow limits chalked out to me I shall proceed to the cross-examination of the witnesses. I do not argue against the rule as laid down by your lordships, but I am quite sure your lordships could not think of laying down any rule that would bind me one way now, and another way in a few minutes. You cannot all of a sudden change your rules: I cannot for a moment imagine you would do any thing so monstrous. My question now is, where does this witness now live in England? In a case of high treason we could have all this in the list of witnesses; we could have had "Meidge Barbara Kress, spinster, or married woman, formerly of Carlsruhe, now of such a place in such a parish in Middlesex"—if your lordships object to that, I waive the question.
The Lord Chancellorfelt great difficulty on this point, not on account of the importance of the present question, but as to the consequences likely to result from permitting such a mode of procedure. With reference to a former opinion, if he 986 was not out of order in mentioning it, he had to say, that circumstances had since arisen which led considerably to alter it. But, supposing their lordships to adhere to the rule laid down, the question was, whether, with due application to that rule the question put by counsel should be permitted? For himself, he had objected to the last question being put, and on the same grounds he now objected to this. It a list of witnesses had been given, the counsel could not ask this witness where she now lived, unless he proceeded to the whole of his cross-examination. If he was wrong in this opinion, he was wrong after all the experience he had had for so many years, and wrong in common with the learned judges who sat near him: and he therefore said the question could not now be asked without going through the cross-examination. If this House had really adopted the right mode, for God's 6ake abide by it! But if it would be doing injustice to one of the parties, and to that one most interested, let not any notions of inconsistency prevent them from retracing their steps, and doing what was right. It was clear that at present the counsel for the prosecution could not be called on to re-examine; and he apprehended their lordships could not call for the summing up until the whole of the cross-examination and the re-examination had been gone through. He went further, and said, when the cross-examination was deferred, the re-examination must be deferred. It was not justice to ask merely a single question, and defer the remainder of the cross-examination. Their lordships must lay down some rule, beyond which they would not go, as to what might be the safest limit they would fix to the cross-examination of witnesses; but if it should go so far as it had done on this occasion, it would produce a practice most mischievous to the ends of justice.
§ Lord Grenville,before proceeding farther in this case of such extreme importance, thought it absolutely necessary that their lordships should take into their serious consideration the question that had now arisen. On this most important and anxious inquiry they should look with caution to the question of the cross-examination of witnesses; and if any rule had been suddenly or hastily laid down, they should revise and amend it as soon as possible. The difficulties arising out of their present situation were innumerable. When they had examined all the 987 witnesses in support of the charge, after every question had been put, could their lordships proceed in the ordinary way? could they call upon the counsel to sum up the case, they not knowing what might yet appear from a second cross-examination of their witnesses? It, therefore, appeared to him of the very last importance, that they should consider this point seriously, and lay down a strict, inflexible, invariable, rule of proceeding. But to do so, they must deliberate gravely; but, having once established the rule, they should adhere to it strictly, inflexibly, and invariably. Adverting to the partial cross-examination of witnesses by the counsel for the defence, there was in his mind great weight in what was urged by the counsel who made the objection. It would throw infinite difficulties in the way, if their lordships were to admit the examination in chief of all the witnesses, without allowing any addition to those witnesses, in consequence of what might arise out of the cross-examination. See the length to which this would carry them. Their lordships must not only defer the cross-examination to a future period, but they must reserve to the counsel for the bill a similar right to call new witnesses, in consequence of the cross-examination. The adjournment this day would give them one day to consider whether they could not lay down a clear and distinct rule by which to guide their proceedings on this important subject. Unless that were done now, they would, day by day, and hour by hour, find themselves involved in new and inextricable difficulties. He would venture, then, to suggest the propriety of turning their lordships thoughts to this point at once, and of deferring all other business until it was decided. The course hitherto followed had not been the most expedient. In not having anticipated the present difficulty they had not provided against it. He was sure their lordships would reconsider the subject without being embarrassed by any former error, or a wish to preserve consistency. He should therefore suggest the propriety of adjourning till Monday.
§ Lord Redesdalewas anxious that any rule which their lordships might adopt on this occasion should not become a precedent, and a part of the future law and usage of parliament. He conceived that it should not be considered as a precedent in cases of impeachment or in bills 988 of pains and penalties, or in any case but one exactly similar to the present. Their lordships ought to pause, therefore, before they departed from the ordinary course of proceeding. If their lordships came to any resolution on the subject, it should be so shaped as to apply to the peculiar case before them, and not to any other. He apprehended great danger and difficulty from the course of proceeding proposed to be adopted. Any departure from the usual course of courts of justice must at all times be attended with difficulty. It was at first arranged, that there should be a departure from that course, and now their lordships were called upon to make that departure a general rule. He considered the case to be this. The witnesses in this case were persons coming from different places, and respecting whom the counsel for the defence were unable to make those inquiries which could be made respecting persons residing in this country. In cases of treason a list of witnesses was allowed; and this gave the accused an opportunity to inquire into their habits and characters. That list contained not only the names of the witnesses, but also the different places where they resided. This not being the case on the present bill, time was to be allowed to the accused to make the necessary inquiries. But let their lordships consider what the consequence of the proposed proceeding would be. They were aware that nothing was more important to the ends of justice than that the cross-examination should follow the examination in chief, while the subject was fresh in their minds, and the witness was before them. Yet it was now proposed to postpone the cross-examination of all the evidence for the bill until the counsel for the defence should think fit that that cross-examination should take place. This was contrary to the acknowledged practice of the courts of justice; and it would be impossible to form an opinion upon a case so conducted, with the same certainty as if they proceeded in the ordinary way. Whether it was important that some of the witnesses should be re-examined was a very different question. But he would ask, whether there ever had been a case in which the cross-examination was postponed to an indefinite period? He knew not how the summing up could be with propriety laid before their lordships under such circumstances; because counsel could not know 989 the circumstances which would come out in the cross-examination. If their lordships did depart from the usual course—and he was of opinion that they ought not—but if they did, it ought to be by an express resolution of the House, so framed that it should not be brought into a precedent. Any advantange allowed to one side must be equally extended to the other; but in his opinion, the course proposed would certainly produce innumerable difficulties, as well as much delay.
§ Lord Erskine.—My lords; when I said a few words to your lordships some minutes ago, I anxiously wished to have been silent; I was afraid, and still feel the same painful impression, that in imputing the present difficulties to the rejection of my motion for communicating the times and places which ought to have been charged in the preamble of the bill, together with a list of the witnesses by which any criminal acts were intended to be established, I should seem to be setting up my own opinion against a judgment of the House; but in consequence of the proposed motion of my noble friend under the gallery, I feel that I am called upon to trouble your lordships once again. My noble and learned friend on the cross-bench, has said, that we ought strictly to observe the rules of parliament, applicable alike to impeachments and bills of this description; but let me ask whether in either of those modes of proceeding there ever was such a case as the present? Was any person ever before accused of a course of criminal conduct for six years together, in places, too, beyond the seas, without knowing from specific allegations, according to the rules of all courts, and the most obvious principles of justice, at what times she was to stand upon her defence? Was any person ever so charged with such numerous offences without any specification of place, though the accused had, during the whole period, been in constant motion by land and sea, from one extremity of Europe to the other?—Did this or any thing approaching it, ever happen before?—There was the less justification for this total departure from all the analogies of trial, since I did not ask to bind the House by the statute of king William, but only asked the names of the witnesses then in their power, and whom they then intended to call, without prejudice to the examination of others that might be legally admissible, from circumstances in the defence; and now, 990 my lords, since the attorney-general has been heard, and since the witnesses have been examined, it appears that the Crown was then fully and perfectly acquainted, first as to time, not only of days, but the hours of every day for every thing they contemplated to prove, and as to place with the utmost certainty and precision. If, therefore, without stating what witnesses were to prove any particular facts, but only their names and descriptions, with the times and places of accusation, this communication had been made with a reasonable delay for commencing your proceedings, they would then have gone on in the ordinary course of other trials; whereas, you are now driven to cut them asunder, and cannot find any mode of making the division without confusion and injustice! By not pursuing so plain a course, into what a situation have we placed the illustrious accused and ourselves also. The evidence, the unsifted evidence, must be spread abroad, and has already been circulated not merely to be read, but to infect the mind with impressions that may never be effaced, and all this for months, perhaps, before any defence can be made, and our own minds in the same manner pre-occupied; and we are desired at last to adjourn, to consider what we should have decided before we began, and to alter what is past all remedy. There are some diseases where nothing but amputation can cure. This is precisely our condition; because, if we now gave to the learned counsel the most unlimited scope of cross-examination, how can witnesses be cross-examined whose character and situations are unknown, and to whose evidence there is no kind of clue? I foresaw this, my lords, and my only reason for taking any lead was, because few among your lordships had had so much experience in the courts of justice, and therefore, placed here beyond my merits, I thought myself bound in duty to act as I did, and because I wished to end my life as I began it, by reverencing the wise forms of the ordinary laws, the best security for the faithful administration of justice. As to the evidence—I will, so help me God, attend to it with the most impartial consideration; but I wished to be placed in a condition that our judgments may on neither side be surprised. I shall therefore, my lords, consent to an adjournment, but without much hope of its being now attended with the same advantages as if in the 991 outset we had pursued a different course.
The Earl of Liverpool.—I understand the wish of the noble baron opposite to be, to take this day to consider some measure by which many difficulties may be avoided in our future proceedings. To this I do not object; but I wish before the motion is made, to say a few words in reply to the noble lord who spoke last, as well as to the noble lord (Grenville) under him. I cannot, I confess, consider that the difficulties attending this proceeding are so great, or so insurmountable, as they have been represented to be. I do not see any difficulties which are not likely to occur in cases of impeachment, in bills of pains and penalties, and in all other judicial proceedings which may come under the consideration of your lordships. The motion alluded to, respecting the list of witnesses, would, if granted in this case, have been inconsistent with the ends of justice. In the lower courts the accuser is one party, the defendant is another: the course of proceeding is definite. The instances in which the court may interfere are clearly marked out. But what is the case here? After the accuser and defendant have stated their case, there exists in your lordships an unlimited power to examine not only in chief, as the counsel on one side do, but also to cross-examine every witness. In short, you possess every power of inquiry known to our courts of justice. But this is not all: for it is competent for the members of this House to call back a witness whom they may think material. And even on any point of the case where the counsel on either side have omitted to examine the witnesses upon, it is in the power of this House to call the witness again and examine him or her to any of the facts. He was quite at a loss, in any view of the question, to see how any of the difficulties of this case would have been removed, had a list of the witnesses, which it was intended to call in support of the bill, been previously granted. The point immediately before their lordships, was the first on which any difficulty had occurred. In every former case, the counsel against the bill had been in the practice of cross-examining the witness fully; he had then been re-examined by the counsel for the bill, and, lastly, examined by their lordships. Such appeared to be the regular course of proceeding; but he by no means intended to say, that, according to what had already 992 been fairly understood on the subject, on a special case being pointed out by the counsel against the bill, it would not be competent for such counsel to propose, or reasonable for their lordships to refuse that a witness should be brought back. But the question now was—and it was a question which was for the first time raised—whether there should be a power vested in the counsel of making their option, either to cross-examine immediately to the fullest extent, or to close the cross-examination before it had gone to the fullest extent, with a view of resuming it at a subsequent period? It had been said, that counsel ought to possess this option, and to have the power of calling witnesses back to proceed with a cross-examination, if they considered such a course for the interest of their client. If their lordships did not agree to this as a rule, he thought it indispensable that whatever other rule they might agree to, should be distinctly understood. On a particular occasion, when a case could be fairly made out, to show the necessity for such an indulgence, he had no doubt that their lordships would feel no difficulty in allowing the cross-examination of a witness to be postponed; but not on all cases, and as a general principle. If the cross-examination of any number of the witnesses was to be postponed, it would be impossible for their lordships to call on the counsel for the prosecution to sum up their case, until the cross-examination of those witnesses had fully taken place. That being his impression on the subject, and wishing that their lordships should have sufficient time to consider it, he was quite ready that further proceedings should be adjourned to Monday.
§ Lord Grenvilleentirely agreed with the noble earl, that the difficulty arose from the peculiar nature of the case itself. On this important subject, of the period at which the cross-examination of the witnesses should take place, whether partially or wholly after the examination in chief, that had hitherto proceeded upon an understanding, which, however, he now felt it necessary should be converted into a fixed and definite rule, from which their lordships should not hereafter be called upon to depart. He would not, at that time, state what practice he thought it best to adopt. What appeared to him to be the most desirable course was, that their lordships should turn their minds to the serious consideration of the subject, 993 and not come to any determination until they had called upon the counsel to state their reasons for urging a departure from the course usual in other courts of justice. After hearing that argument, their lordships should then determine on some fixed and definite rule, from which no consideration should induce them to depart. Of course no rule should be adopted which would exclude the great principle of doing justice to the parties concerned, and therefore no course or rule could be adopted by their lordships, either on that occasion or any other, which they might not be disposed to vary, on special and strong grounds being made out, to show, that by such a variation the ends of justice would be best promoted. But, on the other hand, their lordships would do well to take, as nearly as possible, for their guidance, the mode of proceeding established in courts of law;—and there was no principle so much guarded in courts of law, as that there should be fixed and known rules to go by; and that it should not be necessary, on any particular occasion, to travel over a wide ocean of argument, in search of rules and principles on which to act. For the purpose of enabling their lordships to prepare their minds for adopting—or at least for hearing—the argument which might induce them to adopt what should, upon the whole, appear to be the most eligible proceeding, he certainly thought it would be expedient to adjourn then, although it was a much earlier hour than that to which their lordships had agreed to extend their sitting during the progress of the important measure before them.
The Marquis of Lansdownwas also of opinion, that an opportunity ought to be afforded to their lordships fully to consider this, which was a point of the last importance; and that, when once the rule should have been laid down, that in the whole course of the proceedings it should not be departed from. He thought this the more especially necessary with reference to the right of his majesty's attorney-general to sum up the whole of the case, or only parts, as he might think fit, if their lordships should determine, which they had not yet determined, that the cross-examination might take place at various periods. The fullest consideration and attention was due from their lordships to so important a part of the proceedings connected with the great question before them. The discussion in which their lord- 994 ships had been for some time engaged had entirely arisen on a question put to the witness by the learned counsel for the Queen, and objected to by his majesty's attorney-general. In his opinion, the ends of justice would be best consulted, if the counsel on both sides were informed what the particular state of the question was, and if a resolution was adopted to enable the counsel to be heard in argument in support of their respective positions. Or, without coming to any such resolution, counsel might be called in and heard in the manner he had suggested. That would, in his opinion, be the best way to attain what he was sure was the wish of all their lordships, namely, the ends of justice, by a full and accurate investigation of the case. He therefore ventured to recommend to their lordships, that, before the question of adjournment was put, the counsel should be called in, and should receive from the lord chancellor the information which he had suggested.
§ Lord Grenvilleperfectly concurred with his noble friend in the object which he had in view. It was certainly expedient that the counsel should be required to state if they proposed any, and if any, what departure from the ordinary practice of cross-examination immediately following the direct examination. Their lordships would, of course, hear both sides; and he was sure they would do so with an earnest desire and determination to adopt that course which they should conscientiously conclude to be the most consonant to the interests of justice.
Lord Ellenborough,before the question of adjournment was put, requested that their lordships might have an opportunity of hearing the counsel upon that point, one on each side.
The Earl of Liverpoolagreed with the noble lord, provided the counsel were prepared to argue the question.
Lord Ellenboroughapprehended it was the duty of the counsel on both sides to be prepared to argue at once any point that might occur.
The Counsel were then called in, and informed, that the counsel against the bill were requested to state, whether they were desirous of proposing any, and what, departure in these proceedings from the usual course of cross-examination, and if so, that they were at liberty to be heard in support of such proposal; and that the counsel in support of the bill, if they desired it, might be heard in objection to 995 such proposal. It was further intimated to the counsel against the bill, that if they were not prepared at the present moment to state that which they desired, and to support it by argument, but wished for further time, the House would be ready to grant their request.
Mr. Brougham.—I trust your lordships will give me leave to say a few words with respect to the great embarrassment in which I feel myself on this subject. I am asked to state, and to support that statement by reasons, if I propose any departure from the usual course, which, in my opinion, and with reference to the present proceeding, may be desirable, with a view to promote the ends of public justice. My lords, I know, that in ordinary cases I am bound, by my professional duty, to be ready at all times to address the Court in which I may have the honour to plead. I know, that in ordinary cases I am never allowed to complain of being taken unawares, and of thereby being prevented from making whatever suggestions may appear to me to he favourable to the cause of my client. I know, that the ends of justice can be attained on any controverted point only by allowing each party to be heard by their counsel, and by then leaving the Court to decide on the merits of the case. But, my lords, although, in ordinary proceedings, in proceedings where there are rules and precedents either known or analogous, I should not be allowed to complain if I were taken unawares by a requisition to state my objections to the usual course pursued, yet I most humbly, and with the greatest confidence in your lordships' justice, suggest that, with reference to the interests of my client (those interests which I am bound especially to attend to), it is very hard (to say no more) to be called on to point out at once what, in my opinion, ought to be the general course of proceeding, in an inquiry which has no precedent, which has no parallel, which is utterly new, and respecting which, therefore, I can have no guide. My lords, I may be allowed to add, that I am only one of six counsel in this case. I am the leader undoubtedly, and on my shoulders must fall the responsibility consequent on such a station;—a responsibility from which I have never for a moment shrunk. But, my lords, it is indeed a fearful responsibility which I am called upon to assume, when I am required to state at once the result of all our six opinions on a point as delicate and diffi- 996 cult as it is important, without having the opportunity afforded me of even turning round for an instant to ascertain the opinion of my colleagues upon the subject. I cannot tell whether they may not think that I ought to make no proposition on the subject, but to leave it entirely to your lordships' uninfluenced determination. I cannot tell whether, in their superior wisdom, they may not conceive that the refusal of a list of the witnesses, and of an enumeration of the times and places at which the alleged facts were committed, which it seemed good to your lordships to decree, has tainted the whole of these proceedings with a mischief for which there is now no remedy. I cannot tell whether they may not be disposed to argue, that the course which your lordships have adopted, is a course which cannot be retraced. On the other hand, I cannot tell whether they may not consider themselves bound to suggest to your lordships, that the course which has been hitherto pursued—although a course which cannot be wholly retraced, or altogether deprived of the mischief which it has occasioned—may nevertheless be retraced to a certain degree; by granting for example now, what ought originally not to have been withholden from us, and then adjourning further proceedings so as now to put yourselves, when you perceive what the effect of that withholding has hitherto been—
The Earl of Liverpool.—I am extremely sorry to interrupt the learned counsel, but all the House wish to know is, whether he wishes for time to argue this, or is ready to argue it now. My own opinion is, that it is impossible to refuse the learned counsel the time for that if he wishes it; but I think we should be misspending our time by hearing half the argument to-day and half on Monday.
Mr. Brougham.—My lords, I was only running over the difficulties that struck my mind, without the intention of arguing them, but only praying your lordships to observe how manifest and how important all those questions are—all of which I must dispose of before I could be heard to make the suggestion. I only therefore wish to say, that I desire delay for the purpose of consulting my colleagues.
Lord Chancellor.—It is not too much for the counsel to ask for delay, when the House itself has asked for forty-eight hours to consider.
§ Adjourned to Monday.