Lords Sitting of 28 August 1820

Preamble
The House being called over,
The Earl of Lauderdaleobserved, that before the motion for counsel being called in was acceded to, he rose to express his satisfaction at the decision their lordships had come to on Saturday. Had the other course been adopted—had that House agreed to any resolution by which it was left open to the suggestions of counsel to tell their lordships what it would be proper and expedient in them to pursue, he should have pronounced it as wholly unprecedented in the usage and practice of parliament. To leave it to counsel to suggest to that House what they, the counsel, thought should be the conduct of that House, would be not only an unprecedented proceeding, but an actual surrender of their most essential privileges. Did their lordships mean to say, that five members of the House of Commons, acting with others, as counsel at that bar of the Lords, were to prescribe the form and manner of their proceedings? Let their lordships but consider the meaning of the rule which was laid down as to the examination of the evidence, and they would see that the whole of the difficulty arose from a misunderstanding of that rule. That rule was founded on the practice of the courts of law, where, subsequently to the examination in chief, the cross-examination of the witness was immediately proceeded upon; but if, in the subsequent course of the case, any facts were discovered which were material to the ends of justice, and to the developement of which the re-production of the witnesses was necessary, it was then their lordships would, of course, take into their consideration such an application. A rule so plain it was difficult to misunderstand; and the fact was, that up to Saturday last there was no deviation from it. Let, then, the course be steadily persevered in; let the cross-examination of the evidence be continued conformably to the usage of the courts of law; and let that House, if subsequently the ends of justice require the re-production of the witness, be ready to attend, and to consider the grounds of such an application.
Lord Mannerstrusted their lordships would feel most sensibly the danger of any deviation from the accustomed rules of evidence and examination, which were so strictly observed in courts of justice,
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which experience had demonstrated as most competent to the attainment of justice, and that House should consider as its best and safest guide. In conformity with that usage, he contended the fullest justice could be rendered. If, for instance, in the subsequent proceedings of this case, any knowledge of facts may reach counsel, which were material to the attainment of justice and of truth, it would be open to counsel to state a case to that House, which, if considered as entitling them to the indulgence, would allow the fullest inquiry. The course that he should recommend was, that the learned counsel should suggest what questions he wished to have put to the witness on the re-examination, to the lord chancellor, in order that such interrogatories might be put by him. That was the usage in our courts of criminal law, where, on any after knowledge, a witness was recalled on the application of counsel, and the questions were put by the learned judge presiding. It had been said that their lordships were placed in a dilemma, and that such dilemma was the effect of their rejection of a motion of a noble and learned friend of his (lord Erskine). It was natural that his noble friend who introduced that motion, should still continue to feel strongly its propriety and the bad effects of its rejection. But he (lord Manners) must be allowed to say, that, in refusing that motion, their lordships acted prudently, wisely, and conveniently. He had never yet heard that it was held by any authority, that a proceeding exclusively confined to cases of high treason, should be extended to other modes. Such an exclusion would not be convenient in practice, and was far from being even proved reasonable in principle. But then it was said, that there was something so peculiar in the present case, that it ought to have been made an exception. He must confess that he did not feel the force of such a conclusion, On the contrary, he conceived that the making such a precedent would be attended with most prejudicial consequences in all future cases of an analogous description. His noble and learned friend (Erskine) had recommended to assimilate their practice to the rules and usage of Westminster-Hall; how his noble friend could reconcile such a recommendation with his regret that his former motion was rejected, he confessed himself at a loss to discover. If, in the subsequent progress of this proceeding,

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the counsel for her majesty were able to make out a case for the re-examination of a witness, they might confidently rely on the sense of justice in that House, that such an application would not be refused. But what ought not to be granted was that which the counsel against the bill aimed at; namely, an examination as to facts which were not now within their knowledge, but which they think they may be informed of hereafter. He should therefore move:—"That the lord-chancellor be directed to instruct the counsel against the bill, that if at any time they should be desirous to re-examine a witness already cross-examined, they must state a case as the ground of that re-examination, and that if it should be the pleasure of the House to allow the re-examination the questions must be submitted to the House, in order to their being put by the lord chancellor."
Lord Erskineobserved, that such alterations of opinion as were manifested, seemed to him to prove that noble lords forgot the truth, that "man who is born of a woman had but a short time to live." Last Saturday they agreed to adjourn, for the purpose of considering the limitation or the extent of a rule, and to hear the arguments of counsel as to that rule; to-day his noble friends congratulated the House on the adjournment of Saturday, although, in the same breath, they say, that there was no difficulty whatever in the case. Surely then, if there was no difficulty, the adjournment was unnecessary; and if at one o'clock on Saturday there was no difficulty, it did not require forty-eight hours to deliberate where no deliberation was required. Why did not his noble friends state then that full conviction they now entertained? Why then decide on the necessity of time for the deliberation the nature of a proposition on which there was no doubt? For his part, when he declared that he felt disappointed in the rejection of his motion for the list of witnesses, and that every hour and every measure since taken, induced him more firmly to continue in that opinion, he was still not so arrogantly disposed as to set up his judgment against the collective judgment of that House. But, though then disappointed, he would even now state what, under present circumstances, ought to be the conduct of their lordships. It was impossible in his mind, to follow the course laid down by his noble and learned friend.
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There were but two modes of proceeding —either to confine your practice as closely as possible to the usage of the courts of law. or to take the line you have already followed, and allow the cross-examination in the first instance to be resumed whenever the ends of public justice require that resumption. For, my lords (said lord Erskine), it was clearly understood, and I should feel myself disgraced if I did not assert it, that such was your lordships, laid-down decision. It was declared over and over again, on the rejection of the motion that I had the honour to propose, that, after the case in favour of the bill was closed, a reasonable time should be allowed to the Queen to prepare for her defence; and that when the House again assembled, her majesty's counsel, prepared as they then would be, were to be at liberty to cross-examine the witnesses. Why, my lords, with regard to the justice of the case, what other decision could you have made? Could you say that witnesses were to be at once cross-examined as to facts alleged to have taken place in Italy, in Africa, and at Jerusalem? But then it was said: —"delay the cross-examination altogether." What, my lords, was this accusation to remain for two months without any statement from the accused? Was the evidence brought forward against the Queen to go out to the public, and remain for two months unsifted unquestioned, and' unanswered? Was such a publication to be made to the world, and from the infirmity of human reasoning, not to be attended with great danger to the accused? How, then, was this danger to be even partially diminished? I say, by cross-examining, as far as you can, that testimony; though it removes not the whole, it lessens a little the difficulty and danger I have described. The evidence will not then go out to the world unsifted and unexamined. That course we were pursuing, when one of my learned friends (Mr. Brougham) in putting a question to the witness, was interrupted, in my opinion most improperly, by the Attorney General. I say improperly, because I contend that the question (which was "Where do you live?") he had a right to put. But my noble and learned friend (lord Manners) misrepresents me, not, I am confident, wilfully, when he charges me with an inconsistency, because I say, we should assimilate, as nearly as possible, our practice to that of Westminster-Hall. I say so still; but I must say, the

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course that would limit the cross-examination of witnesses, differs as much from the usage of Westminster-Hall, as darkness from light. Let, then, the cross-examination of witnesses go on, without any limitation whatsoever. Let the learned counsel extend that examination as far as they please, and stop where they please; and here, my lords, allow me to say, that when you consider the very laborious, and responsible and delicate situation in which the counsel for her majesty are placed, you surely should feel inclined, in place of interruption or disapprobation, to extend to them the fullest indulgence, This is the course of proceeding which I recommend to be followed; when the House, after its adjournment, shall again assemble, it will be time enough to consider what will then be essential to the circumstances of that period: "Sufficient unto the day is the evil thereof." Whenever I can assimilate the rule here to the usage of Westminster-Hall, I will most readily do so; but, where I cannot, I will apply the more general rule of humanity, justice, and fair-dealing. There would soon be an end of our courts of justice, if public opinion did not in some degree preside in them; and believe me, my, lords, it is in vain to say that public opinion, in its best sense, has not been disappointed in the refusals which have been given to the applications of the Queen for a specification of facts, alleged to have occurred through a course of six years, and over a space of more than a thousand miles. In Scotland it has been the invariable custom, to give every person who has pleaded, a return of the list of witnesses. But this House has no limitations on that head; it is bound by no strict attention to the rules or usages of courts of law; but it is bound by what is due to the certain, invariable, immutable ends of justice. Those ends, I am sorry to say, were not, in my opinion, considered, when the refusal I regret was made to the motion for a list of witnesses, or for a specification of the places. I am an old man, and have had more experience than most of your lordships in proceedings of this kind. I could have no interest, no object, in attempting to mislead you; and, therefore, I shall ever defend myself against any imputation which may be directed against the purity of my motives, in' doing what, I thank my God, I have done; and which, under similar circumstances, if unhappily they occurred, I should repeat.
The Earl of Liverpoolcontended, that the privilege applied for by her majesty's counsel was not only contrary to the practice of their lordships own House, but to the universal usage of all inferior courts of law. In the discussions which had taken place previous to the introduction of the bill, he had declared, that although he felt it to be the duty of the authors of the measure to refuse a list of the witnesses to be examined in support of it, he was yet perfectly ready to grant any reasonable interval of time to enable her majesty to bring over her own witnesses and make her defence. That was a concession which he both then and now considered to be of infinitely greater advantage than the furnishing a list of witnesses; because, in the latter case, her majesty would come to her defence without knowing before-hand one word of what the witnesses against her had to say; but according to the course which he had suggested, she would come with the knowledge of all that had been said against her, and having the benefit of the delay of the proceedings to procure evidence to rebut it, if it were possible. Therefore, if there were any disadvantages attendant on the mode of proceedings adopted—and that there were disadvantages he did not pretend to deny—he contended they were infinitely more than compensated by the advantages arising from the privilege that had been proposed on that side of the House.—He now came to the question immediately under consideration, and with respect to a matter of fact connected therewith, he thought a noble lord had not been quite correct in his statement. He had talked of an interval in the proceedings, as if something had occurred in the House which gave her majesty's counsel an option as to the time of cross-examining the witnesses. Nothing of the kind had been said in the House according to his understanding of the matter. He was sure he had not said any thing of that nature; but this he had said, that if any special reason could be made out by her majesty's counsel for calling a witness a second time to the bar, he thought their lordships would be disposed to grant all the indulgence in their power, and to afford a greater latitude than could be allowed in a common case. Up to Saturday every thing had gone on regularly; the witnesses had been examined, cross-examined, re-examined by the counsel, and, what was the most

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material, examined by their lordships. On Saturday, when this woman from Germany had been examined at the bar, the Queen's attorney-general applied for leave to put off her cross-examination altogether, except to ascertain her place of residence. He could not help thinking that their lordships had acted wrong on that occasion; for if they had allowed the cross-examination to be put off altogether with the exception he had mentioned, they should have only permitted the counsel to question the witness as to the places and houses she had lived in; but if he had any recollection of the course which the learned counsel had pursued, his questions went principally to impeach the credit of the woman's testimony; for he had asked how she had come to this country, with whom, whether she had received any money for coming, and so forth; whereas, agreeably to the permission granted, his cross-examination should have been confined to the single question of where she had lived.—He had adverted to what had occurred before, in order that their lordships might now see their way more clearly. If the House had inadvertently fallen into any error, he was sure that no consideration would prevent them from retracing their steps, and endeavouring to rectify it. With respect to the allowing the cross-examination to be adjourned altogether, he only wished their lordships to consider in what situation they would be placed if they acceded to such a request. In the first place, he was of opinion, that if that should be done, their lordships would be altogether precluded from examining witnesses themselves. Now, he believed, without meaning to say any thing derogatory of any person, that some of the most material questions that had been put in the course of the investigation, had been among those proposed by their lordships, and that was a thing naturally to be expected; for each of the other parties examining, appearing there on a distinct side of the question, put their questions accordingly; whereas their lordships, sitting as judges between both, had framed their inquiries with a view of bringing the answers before made, to some certain issue. But that was not the only inconvenience to be apprehended from acceding to the application; for how, he asked them, when such a rule had been adopted, could they call upon the attorney-general to sum up the evidence, inasmuch as a necessity for
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calling fresh witnesses on the part of the prosecutors might be expected to arise out of the adjourned cross-examination, and this, he might observe, was one of the reasons he was of opinion that a list of witnesses should be withheld. They could never call on the attorney or solicitor-general to sum up the evidence or close the case, until the cross examination of their own witnesses should have been concluded. The course sought to be followed would be one of monstrous inconvenience. He thought that this investigation should go on like any other case, first in examination in chief, then a cross-examination, afterwards a re-examination by the counsel for the bill, and afterwards an examination by their lordships; and if afterwards any special reason could be stated why witnesses should be called to the bar a second time, he was sure their lordships would be ready to view the application with greater liberality and indulgence than could be extended in any ordinary case. He differed from the noble lord, therefore, in thinking that her majesty's counsel ought not to receive any power of putting off any cross-examination, in order to originate it at any subsequent point of time, but that going on with the cross-examination of witnesses regularly, they should not be refused the right of calling up any witness for a renewed cross-examination, in case they could show sufficient special grounds to render it necessary.
The Marquis of Lansdownsaid, that after what had fallen from his noble friend on the cross-bench (lord Lauderdale), and after the desire which was generally felt on Saturday, that counsel should be called in, he was anxious to state distinctly the view which he entertained of the question. It was not desired to call in counsel for the purpose of inviting him to suggest or to dictate to their lordships the precise mode of proceeding which they ought to follow; but it was, that if their lordships were about to adopt a rule deviating from the ordinary course, then that counsel should be heard, to instruct their lordships with respect to that deviation. Their lordships could not wish to act unjustly; had they even adopted the rule without hearing counsel, and should a special cause arise to convince them that it ought to be departed from, they would do so even after making the rule. With reference to what had fallen from the noble earl (Liverpool), he re-

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membered that when the rule was laid down, there was an understanding that on application being made, a further examination might be granted; but the subject of an adjourned cross-examination did not come under the consideration of the House. Nevertheless, though it did not then come under the consideration of the Mouse, it still became a fair subject of consideration afterwards; the more so when it was said, that every facility would be given to the counsel for her majesty—when it was stated by the noble earl that an equivalent would be given to the counsel for her majesty for the advantage which they had lost, by being refused a list of the witnesses against her. He gave the noble earl credit for a wish to Jet them have that equivalent; but, for his own part, he did not think it was possible for the noble earl—he did not believe that it was in the power of the House, to give to the counsel for her majesty any thing in the way of an equivalent for the advantage which the cause of their illustrious client would derive from a full and immediate cross-examination—for that examination which they would be able to have, if the list of the witnesses were furnished to her majesty in the first instance. It never should be forgotten that this case was before the public as well as before their lordships; the public who were as anxious as to its result as their lordships could possibly be. It was always found to advance the cause of public justice, that the cross-examination should immediately follow the examination in chief; but their lordships must agree with him in opinion that the counsel for the Queen were deprived of that advantage, He could not agree with his noble friend on the cross-bench that the House could get so easily rid of the difficulties with which they were surrounded. They might alter the names of things, but that would not deprive them of their essence. The examination contended for by the counsel for the Queen, was nothing nothing more than a cross-examination, and a cross-examination too of the most important kind. What the nature of that cross-examination might be, must spring altogether from the particular cross-examination of the witness—for instance, in the case of the witness from Trieste, of that witness, the counsel for her majesty had no knowledge, in consequence of having been refused a list of witnesses. Would any one deny that that witness
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ought not to be called up a second time by the counsel for the Queen—would any one say, that, after acquiring some knowledge of the witness, and of circumstances connected with him, it would be only fair and just to allow them to cross-examine him on a subsequent occasion? As long as in the opinion of their lordships, a necessity existed for a still further examination, they could not deny to the party the fair advantage of that examination. Of course such a proceeding would occasion great delay. Their lordships could not call on the attorney-general to close his case; they would do great injustice to the Crown, and to the attorney-general to call on him to close his case whilst any further cross-examination was to be gone into. Their lordships, most of all, as concerned the Queen, could not act with justice if they did not give her the opportunity which she asked, of inquiring into circumstances essential to that knowledge of the witnesses which would alone enable her to enter on a full and effective cross-examination of them. So far from agreeing, then, with his noble friend that there was no difficulty before them, he saw no part of the proceeding that was not surrounded with difficulty. The difficulty which he stated was as great as any attending it, and infinitely more than would attend the proposition of his noble friend (lord Erskine), when he called on their lordships, in the first instance, to furnish her majesty with a list of the witnesses to be produced against her; a mode of proceeding which would have promoted the attainment of justice, which was not in violation of any precedent, but, on the contrary, was analogous to the ancient law, as administered to this day in all criminal cases, in the northern county. It was not less for the interests of justice, but it was, in point of convenience essential that her majesty should have been put in possession of the names of those who were to be called as witnesses against her; if this had been the case, their lordships, in the case of Barbara Kress, would not have been obliged to leave open the cross-examination for two days, but might have proceeded in the investigation with effect, and without delay.
Lord Ellenboroughthought, that if the course taken by the House on Saturday was followed up, a most fatal precedent would be established, a precedent which would at any time give counsel an opportunity of interposing a delay of twenty-

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four hours in the course of an inquiry. If heard at all on the question, whether the usual course of cross-examination should be departed from, he thought the learned counsel ought to have been heard on Saturday, but he was glad that their lordships had thought proper to adjourn, as their doing this afforded them an opportunity of abandoning that course into which they had been betrayed, and which, if followed up, could not have failed to produce the most injurious consequences. He then staled the argument on both sides, and gave it as his opinion, that the delay to be allowed between the evidence for the prosecution and that for the defence, was much more than equivalent to any advantage that the Queen could have hoped to derive from being indulged with a list of the witnesses. He showed that a great advantage was thus afforded to her majesty's defenders, and proceeded to argue, that if the claim for delay were admitted, they could never hope to arrive at the conclusion of these proceedings. If eight or ten weeks were allowed to prepare for the cross-examination, could their lordships in fairness refuse to concede a similar indulgence to the officers of the Crown? It might to them appear necessary, in consequence of what came out in the cross-examinations, to call new witnesses, and then a new delay might be called for to cross-examine them, and subsequently a still further delay preparatory to their re-examination. Acting thus, it was impossible for them to foresee the period at which the attorney-general could close his case. He was of opinion that the cross-examination ought to proceed as it had done in the former part of the inquiry.
The Lord Chancellorsaid, that in considering the present question, he should not make any observations on questions which the House had already discussed—he meant the refusal of a list of witnesses, and of a specification of times and places. With all the respect which he entertained for the noble lords who differed from him on those points, he should still, if called on, give the same vote as formerly, because he was convinced in his conscience that that list would not have obviated one-fortieth part of the present difficulties-He congratulated their lordships that they had paused on Saturday, for he was sure that a more mischievous precedent could not be laid down than the course which they were then pursuing, though he must confess that at first he thought it was the
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right course. Every one who observed the course of parliamentary business would sec that the Houses of Parliament did not always regulate themselves by the practice of the courts below; but unquestionably the nearer that parliamentary proceedings in judicial cases were assimilated in form to those of the courts of law, the better it was in every point of view. He should briefly state to the House what had been done in the present case. The first witness examined was, Theodore Majoochi: he had been examined, cross-examined, and re-examined for it must be borne in mind that there could be no re-examination till after the cross-examination. Then their lordships had put various questions to the witness; and he would take that opportunity of observing, that when their lordships examined a witness, after the cross-examination, and the re-examination, it was a mistake to say, that they could not put leading questions. Paturzo had next been examined and cross-examined; and at the conclusion of his cross-examination the Queen's attorney-general expressed a hope that their lordships would not prevent him, as well as the preceding witness, from being recalled, in case of the counsel receiving any information that might render it material to do so. He (the lord chancellor) had then addressed the learned counsel, and had said what he believed to be perfectly correct—that the House would judge of the application when made, and of the circumstances attending it. It would be likewise in their lordships' recollection, that, on the subsequent day, when the next witness Vincenzo Gargiulo had been examined, cross-examined, re-examined, and examined by the House, the counsel for her majesty stated, that in consequence of information which was deemed important by him and his coadjutors, he was anxious to put one question to Theodore Majoochi, and the first he proposed to ask was, whether the witness had been at Bristol during the last year? A noble lord, in remarking on this application, had asked if their lordships would agree to take the cross-examination piece-meal? and Mr. Brougham admitted that the proceeding was not regular, and said he intended to put only two or three questions. On the number of questions that had been proposed to the witness, he would not make any observations, because he was aware that one led unavoidably to another. On Saturday it was proposed to make the

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Cross-examinations extremely limited in the first instance. Whether that rule was right or wrong, was a different question; but if their lordships would take the trouble to look at the questions put, and answers obtained under that permission, they would not hesitate to say, that the cross-examination had gone to a length far beyond that limit. He did apprehend—at least it was his individual opinion—that in a case like the present, where, if he could, he would regulate himself by judicial principles, he ought, as a judge, to have interposed in that cross-examination long before another noble lord took that course. Now, as to the question, whether counsel on this occasion did, not only what had never been done before, but what never had been even proposed to be done; he would not deny that there existed great difficulty on every side, but he would call on their lordships to consider what was the mode of proceeding most consonant to the practice which had been established from age to age, and had never been broken in upon in a single instance. In the first place, he would ask in what condition the House would place the witnesses, if, instead of the cross-examination following immediately after the examination in chief, they were to allow it to be deferred? What were they going to do with the witnesses? The ordinary rules of justice always required, for the sake of the witness himself, that he should be immediately cross-examined; because it was not only important to the parties that he should not return from the bar to meditate on his evidence, but it was important to himself, that in case he had not been clearly understood, it might be in the power of the court, without delay, to put such questions as would set him right, both with the court and the parties. Again, it might be necessary to call another witness, to confirm the evidence of the preceding one, which might have been shaken by cross-examination. But the difficulty did not rest here. Take the instance of the case at the bar. Was it possible for the attorney-general to say he had closed his case, or to know what witnesses he might require, before he had heard all the examinations? Then there was another thing, and that was this—if counsel did not cross-examine now, the re-examination could not take place; and till the re-examination had taken place, not one of their lordships could put a single question to the witness. He called on
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their lordships not to remove established land-marks because they could not look comfortably at a difficulty, but rather to struggle patiently with it, and endeavour to overcome it without violating established rules. In regulating his vote, it would be impossible for him to agree to any course but that which was consonant to all established practice; namely, that counsel be called on to cross-examine the witnesses immediately, as far as they could, with liberty to recall them afterwards, on showing sufficient grounds for doing so; and when he said "sufficient grounds," he did not mean to restrict that permission within too narrow limits; for he would rather in such a case open than shut the door for extending that permission. He conjured their lordships to believe him— and he spoke on the experience of an old man—that the practice of the law of England was founded on sound and salutary principles. Let them go on, acting on the rules established by their ancestors; for it was better to acquit ten thousand guilty persons, than to break down one known principle of law.
Earl Greyhoped, after what he had heard, that his noble friend on the cross-bench (lord Lauderdale) would no longer say that this was not a case of great difficulty; for, notwithstanding all the time which had been occupied, and all that had been said in the course of the discussion, he had not yet heard a satisfactory solution of it. It had been said by the learned lord on the woolsack, that this was a difficulty which the House should not hesitate to look at, and to grapple with; and that in obviating it, they should take that course which would be the least deviation from established rules. To this principle he most readily agreed. Their lordships, however, should recollect, that they were sitting on a new case—a proceeding involving not only facts, but considerations of policy, that placed them under the necesssity either of adopting a course that would violate the established rules of justice, or of doing fundamental injustice to the party accused. It was in this view of the difficulties with which the case was beset, that he thought it might be better not to proceed further in the present course, but to send the case back to be tried by those other rules from which he was sorry they had ever departed. He believed, indeed, that, according to the ordinary rules of courts of justice, the liberty now claimed would be allowed to

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counsel, and he had also understood it to be their lordships intention on Saturday last to grant it. His understanding then was, that in consideration of the vague and indefinite nature of the charges, and of the peculiar circumstances attending this inquiry, certain powers should be vested in the counsel for her majesty. The question therefore now was, whether, after they had held out such a promise, and that counsel had indulged a confident hope of being permitted to resume a cross-examination at a future period, they would now so limit and restrict them as to withdraw a privilege which they deemed essential to the interests of their client. The least which their lordships could do was, in his opinion, to hear the arguments of counsel upon the point. It seemed to him to be due both in justice and in propriety: and, in recalling their attention to the peculiar nature of the case, he did not think it necessary to enter into all the reasonings of the noble and learned lord. When their lordships refused to concur with the motion of his noble and learned friend (lord Erskine)—a motion the wisdom and justice of which were made more manifest by every day's experience —he had distinctly understood, that in refusing a list of witnesses and a specification of charges, they contemplated the allowance of some equivalent advantages. This course appeared to him absolutely necessary, if they desired to frame their proceedings upon any of the rules or principles adopted in other places, or observed upon ordinary inquiries. Was any example to be found in a court of record of a person standing almost in the situation of a criminal, and deprived of the means of bringing evidence to contradict the testimony of witnesses on the other side? Were the counsel for an individual so placed ever denied the opportunity of adducing what they might think requisite for the establishment of their defence? He did not wish to set his private judgment against the general opinion of the House; but when he heard it contended, that there was no precedent or analogy to justify the course now proposed, he must observe, that it was obvious why there was none. Here was the case of an illustrious person, threatened with no less a punishment than degradation from her rank and station, and charged with an offence which was substantially high treason. But if put upon her trial in that form, and for that alleged offence, she
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would be entitled by law to a specification of charges, to a list of witnesses, and to a full opportunity of defeating or overthrowing the evidence against her. Let their lordships again look at the question in the light of its analogy with the law of divorce in this country. It had been laid down by the highest legal authorities, that an act of adultery committed by a Queen consort with a foreigner, was not high treason under the statute of Edward 3rd; and it might therefore be of importance to advert to the ordinary rules and process of the ecclesiastical courts. He believed that in those courts the Queen would have rights and privileges equal in effect to those who were under an accusation of high treason. She would be entitled to a copy of the libel which contained the distinct charge against her; to time for preparing interrogatories, extending sometimes to the period of a year; and on the introduction of new matter, would be allowed to counterplead. There was, then, surely nothing extraordinary in the application of counsel to have the same real and effectual advantages afforded to them in the preparation of their defence, as they would have had in a proceeding conducted upon ordinary rules. In point of fact, he believed their lordships had declared, when they refused a list of witnesses, that they would grant some equivalent advantage. It had been said by the noble earl (Liverpool), that there was no precedent, upon a bill of pains and penalties, of granting a list of witnesses, or a particular statement of charges; but it would be found in the case of the duchess of Norfolk, which, like this, was an application for divorce without the aid or instrumentality of the ecclesiastical courts, that lists and specifications were granted, one after the other, at the suggestion of counsel. As this was a peculiar case, and taken out of the ordinary course of proceeding, it seemed to him but just to extend advantages equivalent, if not similar, to those which the law had provided for persons labouring under accusations of this nature. It was well known that on every common occasion counsel had the means of a preliminary investigation into the character and condition of witnesses on the opposite side; and therefore, without arraigning any decision to which they had previously come, he would implore them to consider well before they withdrew so important a privilege as that claimed by

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the learned counsel for her majesty the Queen. They ought to be in the same situation as they would have been if this process had been conducted on the rules observed in our ordinary courts of judicature. They ought, on behalf of their illustrious client, to have the benefit of the ordinary principles of law; for none of their lordships could imagine that a cross-examination could be so effectual as it ought to be where there was no previous knowledge of the character of a witness. Their lordships had already decided that the witnesses should be subject to the liability of being called a second time, and he could not, upon the general principles of cross-examination, acknowledge the distinction of his noble friend (lord Lauderdale), that it might be conducted in two modes with the same effect, and that the witness's testimony might be overthrown at the moment, or by the subsequent production of evidence to his discredit. It was obvious, he conceived, that certain points could only be satisfactorily cleared up by an immediate and consecutive inquiry; and if there was any disadvantage in the delay now applied for, their lordships had brought it on themselves by their former resolution. But, in addition to the principle of the Queen's just right to common advantages, in his apprehension their lordships were bound and pledged to admit it by the sense and plain meaning of their own repeated declarations. It seemed to him that there was but one of three courses which they could now consistently pursue. The first of these, and what, in his opinion, was the most advisable, but which he should not then stop to recommend, was, to drop the whole proceeding; the second, to revise that part of it by which they had withheld a list of witnesses, and a specification of the charges; and the third, to acquiesce in the application now made by her majesty's counsel. The effect of the last regulation would be, to reserve to those counsel an opportunity of resuming their cross-examination at a future stage of this proceeding. No doubt this would be productive of inconvenience; he could easily understand that it might lead to an acccumulation of evils and of difficulties; but it was much better to submit to them than to violate the first principles of justice; it was the consequence of their own proceeding, and if they now shrank from meeting it, he greatly feared that a wound would be
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inflicted on their character from which they would find it difficult or impossible to recover. He agreed with his noble friend that public opinion ought not to be mistaken for popular clamour; and the question now was, whether, the House having suffered in public opinion (and of that fact he entertained no doubt), they would produce a yet greater and more unfavourable influence on that opinion by refusing to yield to the present application. In his view, they had held out a promise to her majesty's counsel of advantages substantially similar to the one now claimed, and they were at least under an obligation to hear counsel state in what way the refusal would operate injuriously to the interests of their client.
Lord Grenvilleobserved, that the House appeared to him to have already adopted two courses diametrically opposite to each other. Being one of those who were present in consequence of their lordships' order, it was painful to him to express such an opinion on the nature of their proceeding. He did not think, however, that their future course ought to be regulated by any understanding or engagement implied in the minds of individual peers. Their rules ought to be distinctly expressed, and not left as matter of opinion or belief. In his view their proceeding on Saturday last was in manifest contradiction to the principle which they had originally laid down. Counsel had been allowed to renew and complete a cross-examination after a re-examination had taken place; and if they were now to state that new circumstances had arisen into which it was most important farther to inquire, he was sure that in every court of justice, upon a statement so made, such an application would be acceded to, and the Queen be allowed to defend herself against a charge of this nature by the amplest and most unlimited means of adducing new facts in opposition to the evidence. At all events, justice should be done, and no rule could be proper for their adoption which would in effect go to the exclusion of important evidence. The question now was, after the course which they had pursued on Saturday, not whether they would enlarge, but whether they would limit, the powers of counsel. He was not in his place when the last question was put by the learned counsel, but he believed it to have been perfectly regular, and in the usual course of a cross-examination. The House had in-

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terfered by a proceeding which went to restrain the ordinary rights of counsel. In his opinion, therefore, the most advisable step would be to recur to their original rule, and set themselves as soon as possible clear in public opinion. The true course was, he conceived, to allow counsel to continue their cross-examination as far as they were able, and leave it open to them to recall the witnesses if any new facts required elucidation. This course he had understood them to have approved and sanctioned unâ voce at the very commencement of this inquiry. As he did not think they could now abandon the inquiry without a desertion of their duty, the establishment of this first rule seemed to him highly important. He agreed at the same time with his noble friend, that if counsel considered such a rule to be injurious to the cause of their client, they ought to be heard in objection to it. Counsel were certainly not to dictate to them the rules of their proceedings, but they should be enabled, in that high court of parliament, to state all which they might regard as conducive or essential to the ends of justice.
The Earl of Liverpoolconceived that the noble earl (Grey) had not correctly stated the understanding of the House on Saturday. It was true that their lordships had promised advantages to her majesty's counsel equivalent to a list of witnesses and a specification of charges. They were to be at liberty to recall the witnesses, and to examine them as to new facts, but not to suspend a cross-examination after it had actually begun. No disposition had been indicated to depart from the rule as originally laid down.
Earl Greyobserved, that he was not present when the rule alluded to was adopted, but he had a distinct recollection that their lordships had undertaken to afford to the Queen every advantage in some way which she could have derived from a specification of the charges. This was his impression, and he had understood, whilst the first witness, Theodore Majoochi, was under examination, that counsel were to make their election of then finishing their cross-examination, or of afterwards resuming it. Counsel must otherwise, in a case circumstanced like the present, be placed under the disadvantage of examining witnesses of whom they knew nothing, and of drawing from an adverse what they might possibly prove by friendly and willing evidence.
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The best course would be, to state the rule on which they proposed to act in future, and to hear counsel on the subject of that rule.
After some farther conversation, the counsel were called in, and informed, that the order which the House made on Saturday, calling upon the counsel against the bill to state "whether they were desirous of proposing any and what departure in these proceedings from the usual course of cross-examination, and informing them, that they were at liberty to be heard in support of that which they might propose, and that the counsel in support of the bill should be heard, if they desired, in objection to such proposal," was discharged.—And they were further informed that, "it having been proposed to withdraw the permission to her majesty's counsel, of reserving their cross-examination, and to direct that they should proceed in their cross-examination in the usual course, but with a full claim, on circumstances or facts not now known to them coming to their knowledge, by leave of the House, to call back those witnesses for further cross-examination," if they were desirous of being heard as counsel for the interests of her majesty against this proposed mode of proceeding in cross-examination, the House would be ready to hear them.
Mr. Broughamaddressed their lordships. He begged leave to state the very great difficulty he felt, on the part of her majesty, when called upon to address their lordships on this point. He should feel it much easier to object to the course prescribed by their lordships than to point out any other course. First of all, their lordships would suffer him to remind them that the difficulty was none of their (the counsels') making. If any difficulties, be they numerous or be they few; if any obstacles, be they less or be they greater in their nature, presented themselves to their lordships, none of them were his. The party patronizing this bill had indeed urged, that it was more for his interest to proceed by this bill; they (her Majesty's counsel) on their part and on her part had objected. Although it seemed good to the wisdom and justice of their lordships to reject the course pointed out by her majesty's counsel, and to adopt that pointed out on the other side, if a difficulty had now arisen, her majesty's counsel might say that it had arisen from rejecting their

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proposal and adopting that of the other side. It was a sufficient reason which he urged, which any man in his situation would urge, why extraordinary indulgence should be extended to him, that he and his learned friends who were with him had been thwarted in their petitions, hampered in their course of proceedings, never gratified in any one object, and that all the difficulties which were complained of, and which he might say his learned friend on the other side now complained of, arose, not from any refusal to the other side, but from having their wishes gratified. Even to the very last act of this great national drama, every objection urged by them had been resisted by their lordships, and they had now decided, they (her majesty's counsel) not having been heard. He was not ready to propose another course. They were offered a situation not only perfectly different from that in which they had stood last Saturday, after they had been put to their election, and had made their election, but in a situation not so good—in a much worse situation than that in which they had stood from the beginning till eleven o'clock on Saturday last. Upon every point formerly arising as to the course of proceeding they had not been heard at all. Upon the petition presented against the course adopted it had been decided against them that they were not to be heard. Upon the second step, upon what he deemed much more valuable, upon what he deemed not an extraordinary claim, but what he deemed the privilege of every party in every suit—in every private suit between A and B, and in every criminal prosecution—he meant the specification of the places where the alleged acts were committed, and the times, within a reasonable certainty and a reasonable latitude—a specification which was given in every case, not only of high treason (for the analogy there went only to the list of witnesses), but in every case, the county was specified.
Upon this second point, they had been refused, and without being heard. They were referred, such was the specification of the charge to three out of the four quarters of the globe. It was not in Middlesex or in Durham that the offence was charged to have been committed, but the charge extended over Europe, Asia, and Africa; over countries, cities, or villages; over provinces, kingdoms, or empires; inhabited or uninhabited; wil-
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derness, seas, rivers, towns, or cities in all this variety of countries. This was their peculiar situation. It was peculiar that there was no venue in this case; because in every case the venue was an essential particular. This defect was of peculiar weight, and occasioned peculiar difficulty in the defence, when he offence at all had been committed. If her majesty had sinned any where, she might have some suspicion of the place to be charged, and by consequence, some anticipation of the sort of evidence to be adduced to support it. But because she was not guilty, and had not been, for aught that might appear in evidence, in the places where she was thus innocent, she could not conceive the places of the alleged offence, or the persons in those places who should give evidence. This second essential point their lordships had decided against them without hearing them. In this manner their lordships had decided that they should proceed with the trial of her majesty under what he must bring his organs of speech to call, a bill of Pains and Penalties. Their lordships had decided that this mode of proceeding was of right and necessity, which they—he would not say considered of wrong and unnecessary —but which they denied to be of right and necessity. A compensation, he had thought, had been offered to them, for all those disadvantages, and it did appear to them, humbly endeavouring to accomplish their duty according to the orders of their lordships (but they were now more than ever sensible of their utter inability to understand the orders of their lordships), they did venture to hope that they had attained to the meaning of their lordships' orders, and they conceived, that in their peculiar situation, not of their own seeking, but of their lordships' making, some advantages were to be allowed them to meet the peculiarity of difficulties which their lordships in their wisdom had devised. They conceived, that to meet the peculiar difficulty, another peculiarity was ordained by their lordships as an advantage that might compensate in some measure for the disadvantage. They little thought, that when this advantage came to be sifted, it would be found simply the common advantage which every defendant enjoyed as a clear, absolute, indisputable right; which every party, as well as every defendant, was invariably allowed. They little thought, that when they had recovered from the two refusals which he had

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mentioned, and from which they had recovered only by that which alone had induced them to make themselves parties to this proceeding; they little thought, that all was to be taken away again, and that they were to hear their lordships say to them, "You have no advantage; true it is that your situation is peculiar in point of hardship, but for that very reason you shall' have no peculiar advantage. The mischief is new, extraordinary, and unparalleled. The more innocent your client is, the less able must she be to make a defence. But no novel advantage must be given you to resist the extraordinary pressure. Whenever you claim an extraordinary remedy, then we tie ourselves down by forms—then we refer to the proceedings in courts of law—then we quote the practice at nisi prius and in the Old Bailey, and we give you nothing but what is the right of every defendant in every action and in every prosecution." Their lordships had created the peculiar difficulty, and they were therefore bound to afford a peculiar remedy. If the bill was unparalleled, if the proceeding against the illustrious defendant was without parallel with respect to the facts, or details, or principle, in any one judicial proceeding in the world, then was it equally unparalleled, to deny the relief required by the extraordinary nature of the mischief, which in their minds was, up to the present hour unparalleled. In the case of the duke of Norfolk, the noble defendant (the duchess) had every advantage given to her by their lordships which she could desire. It was not true, that she had only a list of the witnesses; it was not true, that she had only the places and times specified. She had objected to the vagueness of charges embracing seven places and parishes and five months, and asked to have the months applied to the parishes; and their lordships had allowed that, and ordered the month and the place of every act of adultery to be specified, and a second amended particular to be given in for this purpose. Thus it was in August at Windsor, in September at St. Margaret's, in October some other parish, &c. Four days had been allowed afterwards to prepare for meeting those charges, so that she could go to Windsor, and to the other places, in order to obtain evidence. This was not all; it was not true, that this was all she had been allowed. He should rest his argument upon the case of the duke of Norfolk
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in 1691. He could refer to that case for a sanction to all he claimed on Saturday. The duchess's proctor attended their lordships; they were aware that the proctor was a solicitor in Doctors' Commons. He would mention, as it was material to the understanding of this point, the order of proceeding, as he found it in their journals. On the 14th of January, 1691, the order was made for the particulars of person, time, and place. On the 16th, the specification was given in. On the 19th, the objection was made to its generality. On the 23rd, the witnesses for the duke were brought to the bar, and two whole pages of their lordships journals contained no other matter, but this examination in initialibus, to use a civil law expression. The examination extended to names, marriage, abode, &c. The proctor stood in the very situation in which he (Mr. Brougham) had stood last Saturday; and he was allowed to examine in the precise terms in which he had proposed to examine on Saturday. He cross-examined thus: "Did you servo any other master before your present master? When did you leave him?" He would implore their lordships' attention to what had been their practice in the case to which he alluded. All these minute particularizations their lordships upon their journals would be found to have allowed in the case to which he alluded; and yet, notwithstanding the most extraordinary detail of apparently guilty facts—three or four witnesses indeed spoke in their examination in chief to the fact of finding the duchess actually in bed with her paramour, and another spoke of what had occurred in terms too revolting to delicacy for him to repeat—yet notwithstanding all these proofs and circumstances, a few questions in cross-examination had had such an effect as to induce their lordships to throw out the bill. The case to which he alluded was one where proof to ocular demonstration was tendered and taken, and yet the bill was rendered a nullity by the cross-examination of the witnesses.
So much for the case of the duchess of Norfolk in 1691; in which (said Mr. Brougham) allow me to observe, that three or four witnesses upon the examination in chief swore directly to the fact of adultery. One swore to having seen the par-ties in bed together, another to having seen the duchess come out of the bed in which the supposed adulterer was lying, and ano-

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ther to having caught the parties in the fact in a room at Windsor. In short, the evidence opened such scenes of horrible indelicacy that I cannot venture even to allude to them, and the circumstances were detailed with a minuteness and particularity which I do not remember to have seen in any other case of this description, for almost every thing was proved by ocular demonstration. Notwithstanding these depositions, however, so material was the cross-examination, not one question of which would have been put if the duchess had not been allowed a specification of particulars, that in consequence of this cross-examination the witnesses were all three discredited, and your lordships were pleased to throw out the bill.—My lords, I do not anticipate any remarks upon the evidence in this case, for to do so in the present stage of the proceedings, I should consider irregular, unjust, indecent. If any one had set me such an example, I should conceive it to be an example more honoured in the breach than in the observance. Of course no judge could have set the example, no person who may ever by possibility be called upon hereafter to decide upon his honour on the guilt or innocence of the accused, could have set so monstrous an example of indecorum; but if he had, I should have abstained from following it from motives of common decency. I mention this circumstance for the sake of showing how important, in the case of the duchess of Norfolk, was your lordships' adherence to the rule you had laid down, and which on Saturday last you appeared to have repeated in the spirit, though not in the letter, and which to-day I am called upon to say, whether I approve the violation of or not.
My lords, the sum of what I have to submit to your lordships is, that you are now retracting the extraordinary advantage which you promised us in the outset of these proceedings, and that we are now to be placed in the same situation as any ordinary party, though we have been placed in a totally different situation from all ordinary cases, with respect to the disadvantage of not being prepared for our defence. My lords, what a monstrous injustice it is—what a monstrous and crying injustice, to pretend to found your proceedings upon the practice of courts of law, in which the cross-examination immediately follows the examination, without remembering (what it is
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so extremely convenient to forget) that in courts of law the accused who enters upon his defence instanter knows the time, that he knows the place, that he knows the specific venue in which the offence with which he is charged is alleged to have been committed. Such is the way in which the courts of law are quoted by your lordships—such are the analogies by which your lordships would justify the course by which your lordships intend to supersede your own rules. If your lordships are desirous of applying to your proceedings the rules of the common law, for God's sake apply them. I ask for nothing more—I desire nothing better; but do not, my lords, adhere to those rules only when they fetter the Queen, and absolve yourselves from them whenever they operate to her advantage.—I am told, however, that we do enjoy an extraordinary advantage not conceded in ordinary cases, namely, that when the whole of the case is gone through, we shall have two months allowed us to prepare for our defence. I wish I could take comfort from this supposed extraordinary advantage. To me it appears to have quite an opposite effect. In an ordinary proceeding, does the examination in chief go on without any cross-examination at all? In an ordinary case, does the examination, do all the details founded upon the evidence, such as it may be, go abroad unsifted, and unchecked by examination, to prejudice the minds of the judges from day to day, or with such convenient adjournments as may afford them an opportunity of digesting the proceedings? Do they go forth to the public liable to gross misrepresentations? As for example, it is stated, in a paper of Saturday, that when the witness Barbara Kress came to that part of her testimony which established the fact of adultery, she was stopped by her majesty's attorney-general; this being a gross falsehood, and, I have no doubt, a deliberate untruth, told for a bad purpose. Are ordinary proceedings exposed to the weight of such foul, malignant misrepresentations? misrepresentations the more dangerous, and the more fatal, because it is not pure fiction, but falsehood mixed up with and fitted to truth, for the purpose of detraction. This is one of the peculiarities in which we are placed, and which ought to operate as a reason against your lordships only allowing us the ordinary advantages which all persons have a right to

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claim. But, my lords, I will proceed a little more into detail, to show the absolute nullity of this extraordinary benefit as it is called. Many of your lordships, I doubt not, esteem it an advantage, merely from not knowing the rule of law. I will now state to your lordships what the rule of law is, and if I state it incorrectly, I desire to be interrupted. Suppose a witness goes through a fair examination, and that I have no materials for cross-examination, having never seen the witness before, and his very existence being unknown to me. To tell me that I may cross-examine this witness would be only to extract from me an humble acknowledgment to your lordships for what I not only do not accept, but what I have not the means of accepting. This witness goes out for two months uncontradicted. I do not complain of the delay arising from distance; that is an inconvenience which falls equally upon both sides. If your lordships had granted a delay of two months in the first instance, instead of two months to be consumed in inquiries after half the case has been heard, you would have avoided all those difficulties in which you now find yourselves placed. If a specification of particulars had then been granted, I should have been able at once to cross-examine the witnesses, and I should have had no right whatever to ask for delay. It is from the refusal of your lordships to grant this specification that all the difficulty arises. It is very easy for your lordships to say, "do as in courts of justice, where, as soon as the plaintiff's case is concluded, the other party immediately enters upon his defence." Some of your lordships have even said, that it is a great evil if the defence is postponed in ordinary cases for a single day. But they who made such an observation are evidently ignorant, that there is one previous ceremony called a declaration in civil, and an indictment or information in criminal cases, which, together with their adjuncts, put the defendant or accused in possession of that previous information which we craved from your lordships' justice. To some of your lordships this may appear quite extraordinary, that a man should not be called upon to answer for his life without any previous information, but such is the fact. The law being less wise, or our ancestors less lawyer-like, than some of your lordships, no man can be put upon his trial without having some guess at the
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nature of the offence with which he is charged, and the character of the witnesses who are to support it. In a common law proceeding, therefore, a man is called upon to enter upon his defence without any unfairness or breach of justice, because it is his own fault if he is not prepared. One word more upon this cross-examination. Do noble lords really believe there is such inherent virtue in a counsel—do they imagine there is such magic in his dress, or even in his education, or the professional habits he may have acquired, that the moment a witness has been examined at your lordships bar, he may be called upon and ought to be prepared to cross-examine him? I think very few of your lordships can have fallen into so gross an error; but I am afraid that many of your lordships, some of whom I know to be most enlightened, just, and honourable men, have fallen into some mistake with respect to the supposed advantage of this extraordinary delay. I shall now, therefore, proceed to show, that this extraordinary delay is of no use whatever. In the first place, the publication of these proceedings is calculated to poison the public mind, and the judges in this case, who are mixed with that public, must be more or less influenced by it. In the next place, let me put a case. Suppose, in the course of the next three or four weeks, that I come to the knowledge of any circumstances, the effect of which would be completely to destroy the testimony of a witness who has been examined; for example, that he has received a sum of money upon condition of swearing against the Queen, nay, farther, that the conviction of the Queen is a condition precedent to the payment of the money: it may surprise persons unacquainted with the rules of law, it may appear extraordinary to lay lords, though learned lords are of course aware of what I am about to state, that though I have ten witnesses to prove this atrocious case of bribery, I should be unable to offer any one of these witnesses, unless I had previously cross-examined the perjured witness to this fact, unless I had previously asked him, whether he had received such and such sums of money. If I had asked this, and the witness had denied it, I should in that case, and only in that case, be entitled to call evidence to prove the fact. It may be said, that such a case as I have put would fall within your lordships' rule, and that your lordships would

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allow me to call these witnesses, notwithstanding any technical omission. But only think, my lords, how numberless are the circumstances, by which the testimony of a witness may be impeached, besides the extreme case which I have just put. Counter-declarations form a large class, and it is of the utmost importance that questions should be put eliciting such counter-declarations, such as "Have you ever stated such facts at any other time?" It is barely possible that the ordinary courts of law would permit a relaxation of the general rule in the monstrous case which I before put; but I am now putting cases which indubitably fall within the strict rule of law. If I had a clue to the witnesses, I might show that A. B. had 50 times said things utterly inconsistent with his present testimony. Not one of these things could I tender to your lordships, unless I had previously cross-examined A. B. to those particular points. But your lordships, it may be said, will permit me to call evidence, if I can lay a ground before your lordships for eliciting those counter declarations. Will any man, who has ever witnessed the course of a cross-examination, resort to such an argument as this? How many counter-declarations, how many unexpected points of the utmost importance are elicited from a witness in the course of a sifting, parole cross examination! I feel my way—I put a question, which does not answer, and I abandon it—I put another, which succeeds, and I pursue it. But if I am to be tied down by your lordships' rules—if I am not allowed to produce witnesses for cross-examination, though I may have received the most important information, I am, in effect, deprived of all the benefits of a cross-examination. Were I to proceed to call these witnesses, I apprehend the attorney-general would be ready enough to interpose; for though he appears here for nobody, it has happened, with marvellous uniformity, that all the learned gentleman's observations have been as regularly against me and against the Queen, as if he had appeared here in a more definite capacity. My lords, I am free to say, that since courts of justice have been filled with just judges, and with bold and intelligent counsel, such difficulties have never been imposed upon the party accused. My lords, it is a mere mockery to call the course to which your lordships would restrict us, a cross-examination. I am first to lay a ground be-
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fore your lordships; your lordships are then to judge of its sufficiency; and if your lordships' decision should be favourable, I am then to be permitted to put a few questions through your lordships. This is ex gratia, by favour and permission of your lordships—a permission which I should disdain to receive as such in any court of justice to which your lordships appeal for analogies. I should claim it as a right; and there is no judge who would not grant it as a right, and not as a favour. Now, my lords, upon these grounds, I humbly submit to your lordships—that our astonishment is equal to our disappointment, when after all the promises which your lordships made, after all the hopes which your lordships held out to us some weeks ago, your lordships now tell us, that these hopes, raised by yourselves, are to be annulled, that they are to be dashed away from our lips, and that we are now to have no more, or rather infinitely less, advantages than in an ordinary case. Your lordships think fit, under these new and extraordinary circumstances, to compel us to go on, to sit in this place, and hear witness after witness examined upon points of which we cannot form even a conjecture, respecting conduct all over the globe, for six or seven years. Here we are to sit, and grace with our corporal presence the solemnity of your lordships' proceedings; at least your lordships will allow us to pause a little, after you shall come to this ill-omened resolution—and probably allow us to revise our resolution— that resolution which first brought us here to assist at those proceedings at all.
My lords; I have already said, that I have been called upon to show the objections which exist against your lordships' rule rather than to point out affirmatively any other mode of proceeding. Indeed, it is much easier to do the one than to indicate the other. We are sensible of the disadvantages under which we have laboured from the very outset of these proceedings; but notwithstanding these disadvantages, we have endeavoured to the best of our power to perform our duty. We relied upon your lordships promises, and we are astonished and staggered, to find, that instead of fulfilling those promises, your lordships now propose to rescind them. Before I conclude, I think it right to correct a material mistake with respect to what passed when the witness Majoochi was called up the

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second time. I am supposed to have pledged myself on that occasion not to cross-examine that witness a second time. It is so stated upon your lordships' Minutes, and I suppose I can aver nothing against the record. At the same time it is so utterly inconsistent with all the observations I have made upon this subject, that your lordships will allow me to state what I did say on that occasion. I admitted the irregularity of calling Majoochi back during the examination of another witness, and I pledged myself not to repeat that irregularity until the case had been opened; but your lordships will be pleased to recollect, that I did not wave the liberty of cross-examining him a second time. I ought to apologise to your lordships for having occupied so considerable a portion of your time, but I assure your lordships that I should not have done so had I not thought it absolutely necessary that your lordships should hear what we had to urge, before you plunge your-selves into the course now in contemplation.
Mr. Denman.—Nothing, my lords, could tempt me to trespass upon your lordships attention, after the able argument you have just heard, but my deep sense of the extreme importance of that question which your lordships indulgence—I will so call it—upon this subject, has submitted to the consideration of her majesty's counsel—a compliment for which, personally, I will take leave, in the name of my learned friends and myself, to express our high gratitude for the confidence which that kindness implies, while, at the same time, I protest, as counsel for the illustrious accused, against a course which must make her legitimate defenders parties to the injustice of which she complains, and deprive her, in the result of that inquiry, of the effectual means of defending herself against all the modes that might be practised against her, in the course of this long, harassing, and overwhelming investigation. My lords; there is no security for her majesty the Queen—there is no security for the meanest subject in the realm—there is no security for any one of this august assembly, who now sit as judges upon the first of their fellow subjects, but may hereafter stand accused at a bar of criminal justice, without that important right which now, on the behalf of the Queen, we are endeavouring to vindicate from limitations and restrictions, which reduce it to a mockery and a name.
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My lords; it is upon that right of cross-examination—a free, full, unshackled, unrestrained cross-examination—that the existence as well as the character and property of every man who! hears me must depend. For if counsel are to be prevented from entering, in the fullest possible manner, into all the means and all the topics of sifting the evidence that may be brought against the accused, not technically at one particular period, nor judicially in one particular mode, but really and substantially according to the truth and justice of the case, whenever the advocate is furnished with the means of cross-examination—then, I say, that the character and life of every man are at the absolute mercy of every perjured and suborned wretch, who may venture to come and swear against him in a court of justice.
My lords; it is not upon technical difficulties or nice distinctions, or lawyer-like arguments, that I am founding the important claim I now set up. Every one of your lordships is equally judge upon a subject of this immense importance, which goes so vitally to the interests of you all. I therefore resist all notions of authority, except indeed as that authority shall have been cited upon the present occasion—go decisively to show, how much the course has hitherto been mistaken—and hold out a warning which I trust will not be lost upon any member of this illustrious assembly, how they proceed hereafter rashly to lay down rules from which they may instantly depart, at the instance of those who may find themselves obstructed in their wishes and purposes by those rules—how they adopt resolutions one day, which they may find it necessary to rescind upon another—and, above all, how with the name of substantial justice upon their lips, they proceed to strip naked the unfortunate accused of all the means of repelling the attack, or defending himself against it. Therefore, my lords, I take the liberty of asking you, not as judges, bound by the strict rules of legal proceedings, but as men of cultivated minds and of the highest principles of sound sense—what is the situation of the party who is brought into court under the charge which the witness appears against him to support? Must he not inquire who that witness is? Is not the first of all his rights a right to knew who the individual is that has come

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to depose against him? And so much is that absolute necessity felt in the case of high-treason, where the safety of the state is compromised, and the interests of all are concerned, that, to prevent the individual accused by the government from being crushed by any incorrect practices whatever, the law has in that single instance departed from all the rules adopted in every other, and given the individual a right to have for a considerable period before the trial, a list of all the witnesses to be called against him, their place of abode, their previous history depending upon the situation they filled at that time in the world. And not only is that list of witnesses furnished, but that most extraordinary addition is added, that no witness shall be called in the course of that trial unless the name of the party so to be called should appear upon that list of witnesses —a provision, my lords, which may possibly lead to consequences the most absurd; because if a perjured defence is set up, which may be met by fresh witnesses and 6hown to be false, the Crown must be bound by the evidence they have already given, and is prevented from rebutting the falsehood by the truth of other witnesses. But however inconvenient that consequence, it has been found to be a far less inconvenience to take the risk of such perjury even succeeding for the want of the means of calling fresh witnesses, than the inconvenience of allowing the party prosecuted at the suit of the state to be taken for one moment by surprise, or to have his life and his blood affected, by the evidence of an individual into whose character he had not an opportunity of inquiring.
My lords; I wave all observations upon ordinary cases; but it would be the merest mockery of a common understanding to say, that there ever is, in the ordinary administration of justice in England, a case in which a party accused does not come into court with a knowledge of a great part of the case to be made out against him, and with a knowledge, to a great degree, of the witnesses by whom the facts are to be proved; but if any of your lordships can be accused of practices committed in a foreign country, in Egypt, in Greece; or if any one of your lordships' relations who may now be travelling in foreign parts, was to be brought by a foul conspiracy to account for crimes at which human nature revolts, how would he be prepared to meet the evidence There
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would be but one mode; and that mode is, the cross-examination of the witnesses;—and this may, and must, and does, in every case, involve a great variety of considerations. In the first place—I agree, indeed, the moment when the witness leaves the bar is a moment when he may be most conveniently cross-examined— what is the first object with which I cross-examine him—has he contradicted himself, has he told a story, upon the face of it false?—I am prepared at the moment to contradict him. I am standing upon ground from which justice cannot remove me;—I have a right to cross-examine him to all those points:—but farther, I have my client by my side;—if I ask whether that is false or true, and my client says, it is false from beginning to end;—I know nothing of the witness, but I want farther time to inquire into the character of the witness;—and am I to be deprived of the opportunity, because he happens to have left the bar of the court, if I am able to prove in the course of the summing up of the judge, or after the jury have retired, that this man has been previously convicted of a capital offence? Will any man tell me that any power on earth should prevent me from bringing forward that defence, and showing that he is a man so charged? I say, if there be any power which can deprive an advocate of such a right, it is a power which ought instantly to be annulled and annihilated. I therefore claim, in the first place, the right to cross-examine upon the facts as they appear at the moment, and also to cross-examine upon any facts that may subsequently come to my knowledge.
My lords; what says the Order which we are now required by your lordships to discuss? If, indeed, facts respecting a witness do come to my knowledge at a subsequent time, I am to make an application to your lordships, and that application is granted—he may be called again. I am to make him my own witness, or pursue the cross-examination, and then I am to proceed with that cross-examination at a subsequent time. But, my lords, suppose I am acquainted with the facts now, and have not the means of proving them —suppose the facts actually existed—that we are pestered with imputations against the witness—that if she is the person she describes herself to be, she is loaded with infamy—if I am told a variety of particulars which I may not choose to repeat in cross-examination, is that a limitation

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which I ought to have imposed upon me?
When your lordships consider that, you will not think they are, but they may be true, and yet I have not the means of acting upon them. They may go to the truth of the whole evidence, yet I say, as an advocate and a gentleman, without having full instruction upon that subject, I am not justified in putting a question to the witness; but I am to be prevented from availing myself of that information at a future period of the proceedings. And this, my lords, is a case in which we knew nothing of the charge until we came into court—in which the attorney-general has given us in his opening, the places, but has not named, in the course of that opening, one single witness to be called. Am I to be deprived of the opportunity of bringing my information to bear against the witness? If that should be the course of proceeding to be adopted by your lordships, I only hope, that this will be the single case to which such rules ever can apply—that, as we are sometimes laughed at for the uncertainty of law, and the uncertainty of judicial proceedings, this legislative rule will be confined to that single instance in which your lordships have thought it proper to proceed to the dethronement of the Queen of England.
My lords; there are other grounds of cross-examination;—what the party has said before, and solemnly sworn before— what motives they may have for making statements, and what they may have said upon former occasions. We know this is not the first time in which this illustrious person has been called upon to account for her conduct. The difference between them is, that then she was indeed encountered by a specific charge, which was rebutted and exposed; but, upon that occasion, one of the material modes of her self-defence, by which she established her innocence to the satisfaction of her father, her sovereign, and the country at large, without contradiction and doubt was, by contrasting the evidence sworn before the four commissioners with the depositions the witnesses had previously made. One of the applications I had the honour formerly to make to your lordships, and which, like all our others, was refused, and which is the only topic to which my learned friend has not adverted was, an application to be furnished with those unvouched and unsworn papers, upon which your lordships thought it proper to proceed upon
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this occasion. That application was distinctly made and not granted. If we had the means of examining those papers, and seeing in the first place who had put their names to these writings, and in the next place, what they had put their names to, it would indeed be a very material guide for our conduct upon a cross-examination of the witnesses; because, if it was found that one set of witnesses had deposed to these facts before what may be called the grand jury, and that another set had started from the ground since the advertisement was issued for calling in witnesses, and since the inquiry had commenced, that would be a most material fact; but if those who had deposed before without oath, to facts which were meant to annihilate the party charged, should come here and swear differently, either as to the extent of those facts, or the nature of them, that would be a mode of cross-examination which would establish the falsehood of the charge, in a manner perfectly adequate to prove the innocence of the accused.
My lords; we are deprived of that means of cross-examination. It is impossible not to see, that several of your lordships who sat upon that secret committee, have been putting questions to the witnesses, from some sources we have had no access to. We humbly entreat we may have that access, to make that essential comparison I have adverted to. If that be not done, it is the more necessary that all the other means of cross-examination should be preserved entire. If that be not done, I will venture to repeat, that the Queen is deprived of that most effectual mode of defending herself now, which, upon the former occasion, enabled her majesty to confound her enemies and establish her innocence in the face of all mankind. My lords, we are called upon to discuss this Order of your lordships; we came prepared to discuss or give our humble answer to one of a different character. It is some satisfaction, that an Order of this description is not come to by your lordships, without hearing counsel; and I certainly may venture to say, with all the respect which I must undoubtedly feel for the high judicial authorities of the land, that their judgments are the most satisfactory to the public, and the best guides to the profession, when they proceed upon the arguments of both parties—one interested to support, and the other to attack the mode of proceeding

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before their lordships; and, whatever respect I may show to judgments so given, I must take the liberty of saying, that where that argument is wanting, the judgment is far less satisfactory. But, upon the present occasion, it seems to be taken for granted, that we are to complain of this Order, that it is an Order favourable to the counsel who appear here on the part of the king, who complains before your lordships; and I am sure I do not know, unless the particular case arises, to which the rule may apply, whether it is the interest of one party or the other, to be heard for or against it. The situation is most anomalous and perplexing. We are here to defend the interest of our client; and when the question is put, it may be objected to for particular reasons;—we are to be prepared to object to it, or support the question by such arguments as occur to us. I never knew beforehand that we were so flattered—that counsel were called in to regulate the rule to be laid down by your lordships; and it would be vanity if we were to enter into any considerations that would induce your lordships to lay down that rule. But, generally speaking, I say, if we were deprived of the most full, ample, and complete rights of cross-examination at the moment at which we are possessed of any information necessary to throw light upon the case, and throw infamy—if infamy belongs—upon those who bring infamous charges—I say, better a thousand times for the interest of justice, our illustrious client, and the public, that we should at once withdraw from the inquiry, not withdrawing the solemn protest we have made, but feeling we should be only giving the appearance of a judicial and professional sanction, to proceedings in which no real justice could be done, and in which it would be too obvious, that the party accused is devoted to destruction, for reasons that, of course, I do not for a moment enter into; but that her destruction is vowed, and that the means of her defending herself are to be materially withdrawn from her. My lords, it would be with the most painful feelings that this course would be adopted; but the feelings we have would be much more painful;—our feelings would be much more dreadful—if we should continue under any such restriction. We protest against it from first to last. We claim the most full right of cross-examination of every witness brought against us. And we say, better that this inquiry should last all the sum-
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mer months, for the next ten years, or be interminable, than that your lordships should proceed to inflict injustice, in consequence of a rule of your own adopting—that injustice which might become the means of destroying every one of your lordships, and not leave one subject in the realm possessed of his dearest interests. I again implore your lordships, before you lay down any such rule well to consider the consequences with which it is pregnant; and I am sure you will best consider your own honour, by adhering to those rules of justice, not bound up in technical forms, but resting upon the great principles of the unwritten law, found in the heart of all mankind,—which every cultivated mind acts upon, and which it is imposible for any man to sacrifice, without sacrificing his own interest in the social scheme of which he may happen to be a member.
The Attorney Generalsaid, that from the speeches of his learned friends,—any one ignorant of the nature of the question before their lordships, would suppose their lordships had under consideration the adoption of some rule in the present case, which was at variance with the practice hitherto adopted in all judicial proceedings, and in direct opposition to the known laws of the land. On the contrary, the real question was, not whether their lordships would depart from such a rule? but whether they would adhere to the established practice of ages, relaxing the rule in the present case, with a view to the benefit of the party accused? His learned friends had introduced many topics which bore no reference to the subject before the House; they had complained of the generality of the charges, and the refusal of the names of the witnesses, as grounds for requiring farther indulgence; but the topics on which they seized were calculated rather for declamatory display than for argument, and consequently could have no influence on their lordships' determination. He begged to remind his learned friends, that there was no indictable offence in which it was essential that time and place should be distinctly specified; for it was competent to the prosecutor to prove the fact, though committed at any time or place different from that which was originally stated. With respect to the demand for a list of the witnesses, the only criminal charge in which an accused party could claim that privilege was the charge of high treason; and he had

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the authority of chief justice Foster against the policy of the law upon which the practice was founded even in such cases. That learned and acute lawyer expressed a hope, on the first introduction of the bill, that the legislature would see the impropriety of adopting it. And what was the fact, as experience had since proved?—The fact was, that it produced considerable inconvenience, even to the accused party. This would appear from a very plain statement. The list of witnesses was necessarily accumulated to a great extent on both sides, so that out of one hundred witnesses named in the list the case was generally proved by ten; so, that as justice Foster himself observed, the inconvenience was infinitely greater than the advantage, even to the accused party. His learned friend Mr. Brougham had stated, that in all civil proceedings the party could obtain information equivalent to a list of the witnesses, but in all cases of criminal conversation, which were much more analogous to the present proceeding, the prosecuting party might go over the whole world without supplying either the names of the witnesses, or the times and places where the acts were committed. Much had been said upon the case of the duke of Norfolk. He did not accuse his learned friend of a wish to mislead their lordships as to that particular case; but certainly he had misrepresented it altogether. The charge in the preamble of that bill was merely, that his wife had committed adultery without Stating with whom, or naming the particulars of time or place. It then proceeded to enact a divorce. The period of time to which the charges referred was not, as had been stated, a period of five months, but of six years, and yet there was no specification. The acts were also committed in different places, and yet it did not appear from the State Trials to which he referred, that a list of witnesses had ever been granted. The case, therefore, so far from making out the case contended for by his learned friend, was, if any thing, an argument against him.—The attorney-general to the Queen had charged him with coming forward on the twelfth hour to ask their lordships for the adoption of a new rule. He did no such thing: all he asked was, that they should continue the same rule on which they had acted up to Saturday last, when his learned friend, coming at the twelfth hour, required an alteration. His learned
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friend Mr. Brougham had said, that his observations with respect to the examination of Majoochi had been mistaken. What he understood from his learned friend was this, that he had thus pledged himself to their lordships not to call Majoochi again, unless it should be absolutely necessary on the opening of the defence. But why did he (the attorney-general) state this? to show that his learned friend understood the rule at that time precisely in the way that he (the attorney-general) was contending for now? His learned friend, Mr. Denman, had claimed a departure from that rule, as a matter of right. He would deny that it was so. In the courts below, the judge would not refuse to put any questions that might be necessary after the cross-examination was closed; but would he consent to postpone the cross-examination, in order to enable the counsel to collect facts from time to time? Certainly not. It had been stated, that the evidence on the part of the bill going forth to the world without any contradiction, was a great evil. It might be a disadvantage; he did not deny it: but suppose their lordships were to yield to the proposition of his learned friends on the other side, what would be the consequence? The whole case must then be gone through on both sides, and after all the facts were sifted and examined the opposite counsel would claim the right of calling back the witnesses again, and renewing the cross-examination, after a considerable interval had elapsed. In that case, their lordships could hardly refuse the same privilege to the other parties; so that it would be in the end a disadvantage to the accused. They did not ask for a restriction of the cross-examination, but the other party called for an extension. Their lordships sat there to elicit the truth, without any view either to the Queen, or to those who supported the bill, and to see that the best rules should be established with that object alone. If they permitted the examination to proceed as his learned friends proposed, they would utterly reverse the rules established in all courts where questions affecting the lives and properties of men are determined. It was true that those rules were not binding on their lordships; but still they would recollect, that they contained the digested wisdom of our ancestors, and that experience had confirmed the [propriety of their application.

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Now, was there any instance in which a defendant in any one of those courts had got up and said, "This witness whom you have called against me is a man of whom I know nothing; I never saw him nor heard of him before; give me time, therefore; delay your proceedings until I have time to inquire whether he has not formely made declarations inconsistent with his present statement?" His learned frinds were now in a situation to examine the witnesses with respect to the facts to which they had sworn. But suppose his learned friends had not discovered any facts with respect to the witnesses, their lordships, by permitting the examination to go on, would act on the assumption that they had: in what a situation then, would they place the witness? For the inconvenience likely to attend such an arrangement, he would appeal to the 'proceedings of the House during the last week. Had not the most important information been elicited, by questions coming from their lordships at the moment, which would probably have been lost altogether, if any bar had existed to putting those questions at that particular time? All he requested was, that their lordships would proceed as they had begun. He did not propose to them on Saturday to alter the rule, but had addressed them under an apprehension that some new rule was likely to be adopted. He was alarmed at that prospect, because lie felt, that so far from tending to elicit the truth, the adoption of the new rule would amount to an abandonment of all the rules and principles so long and so wisely acted upon. It was with that view that he then addressed and was now addressing their lordships. They had already granted much to the opposite party, and he hoped they would not be induced by the threats insinuated at the close of his learned friend, Mr. Denman's speech, to lay clown a rule which any of the judges would refuse to adopt in any other court in the kingdom.
The Solicitor Generalnext addressed their lordships, for the purpose of supporting the allegations contained in the bill. He trusted that the House would permit him first to advert to some of the assertions of his learned friend the attorney general for the Queen. His colleague, as well as himself, had been charged by that learned gentleman as acting parties in the present proceedings. Had those charges been fated merely to meet the ear
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of their lordships, he should have considered a simple reference to the conduct of his learned friend the attorney general, and of himself, as sufficient to refute them; but as he knew, from the manner in which those charges had been made, that they were intended to operate in other quarters, he should briefly advert to what had passed. The learned attorney general and himself had been directed by the House, to lay before it the evidence in support of the bill. In so doing, he trusted they had acted with candour and with caution; they had laid the evidence up to the present point fully before the House; and had not, he trusted, in so doing, pressed any argument which their duty had not compelled them to press, or taken any course but such as had appeared, to their fallible judgments, the best calculated for the elucidation of the truth. The learned attorney-general for the Queen had complained of misrepresentation. There was no person living but must have observed that, if there had been misrepresentation abroad, false charges and calumnies, those calumnies had not been confined to one party; but had at least been equally shared by the side which the learned complainant represented. It was impossible, indeed, to take up a daily paper without finding it filled with the grossest libels against their lordships, against the conduct of the evidence, against the characters of the witnesses, and against every individual in any way connected with the present proceedings. When this charge had originally been brought forward, the learned counsel on the other side had suggested that time should be afforded to the Queen to meet and answer them. In consequence of that demand, time had been afforded, not before the commencement of the proceedings (though even then some time had elapsed)—but at a period far more advantageous to the defendant—at a period subsequent to the statement of the facts—after the evidence was before the House, and when the whole case of the prosecution was known to the Queen and to her legal advisers. In that most advantageous stage of the proceeding time had been granted to the Queen for collecting evidence to answer the charges against her, and to refute, if it admitted of refutation, the evidence which had been adduced in support of the bill. And yet the other side now came to complain that time had not also been allowed them to

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collect materials for cross-examining the witnesses. To that application the House, upon consideration, would find it impossible to accede. He would refer to what had been so often stated in the course of the present proceeding, that although the august assembly which he had the honour of addressing was in the course of a legislative proceeding, it ought to act as if it was proceeding in a case of judicial inquiry. According to the language of lord Cowper, "Although the tribunal was in form legislative, yet, in substance, its character was judicial. The learned counsel on the other side had said, that it was impossible for them to proceed at present in the inquiry, because they had not been furnished with a list of the witnesses against them. He begged leave to state as a fact, not to be doubted or disputed, he stated with the most perfect confidence, that in no criminal proceeding whatever in the country, before any tribunal, was a party entitled to come forward and call for a list of the witnesses on the part of the prosecution. Such was the rule, not in common cases, but where the life of the accused was at stake. It was said, he was aware, that sometimes, incidentally, a knowledge, of the witnesses was obtained before the proceeding came to ultimate decision; but had it ever been contended in any tribunal that, because a witness of whom the accused knew nothing was adduced against him, the court was, therefore, to postpone the trial until the defendant should have inquired into the character of that witness, not merely for the purpose of contradicting, but of cross-examining him? It might be said, that when a person was charged upon a common indictment, the names of the witnesses appeared upon the back of the bill. They did; but the party accused had no right even to the inspection of the indictment until he stood arraigned upon his trial; and it could not fail to be in the knowlege of many of the noble lords whom he was addressing, that bills frequently were found by the grand jury, and the party, without the interval of a minute, was put upon his defence. The learned counsel who appeared on the part of her majesty were not contented, however, with complaining of the denial of a list of witnesses; they had urged that the prosecution had improperly failed to specify the time and place at which the acts were charged. In answer to that complaint, he begged leave to refer the House to the opening stat
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ment of his learned friend the attorney-general. That statement had informed the learned counsel on the other side, that the charge was a charge of a continued series of acts of adultery following the Queen wherever she went; so following her of necessity, because she was always accompanied by the same individual, always cohabiting with her. If, therefore the bill had stated the times and places at which the acts were charged, it must have included every place which her majesty had visited in the course of her voyage; it must have deposed to the whole period of time from her arrival at Naples up to the institution of the proceeding against her; and the necessary consequence of omitting such continued charge would have been, that if any witness could have spoken to an act of adultery committed in a place not set forth in the bill, that witness could not have been examined. The learned attorney-general of the Queen had stated, that in every civil as well as in every criminal case, the party accused was entitled to appear before the judge, and to demand a list of witnesses—
Mr. Brougham.—No such thing, I expressly limited it to civil cases, but said that an indictment gives a man an equal advantage.
The Solicitor Generalcontinued. He thought that the learned counsel was more completely mistaken upon that point, than even if he had contended for the practice in criminal proceedings. In the presence of almost all the law in the land, he denied that there was any such rule; but the learned counsel on the other side introduced every thing, founded or unfounded, for the purpose of making out, if possible, something like a plausible case before the House. After these misstatements by the Queen's attorney-general, in which, however, he was not supported by his learned coadjutor, their lordships would know what reliance in future to place upon statements so broadly made, when upon investigation they turned out to be so utterly unsupported. It was said, that the other side could not cross-examine, Why not? To put the case of Saturday, why could not that witness be cross-examined? She swore that the Queen was present at all the times of which she spoke; and could not the counsel consult their illustrious client, and obtain all the information necessary for cross-examination? Cross-examination,

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ought not to be confounded with contra- I diction; to contradict a witness others must be called; but if a witness had previously given a different account of a transaction, and that fact should be discovered after the cross-examination had closed, he could not be contradicted on the subject unless he bad been questioned regarding it. If a witness on the other side should commit any apparent contradiction, undoubtedly the counsel in support of the bill would not imitate the insinuations thrown out by the Queen's attorney-general—too palpable to impose upon any man. No direct attack had been made upon the witness of Saturday; but dark hints and obscure allusions were thrown out to indicate what could be proved, were an opportunity afforded.
He would now turn the attention of their lordships to what would be the effect of granting the prayer that had been made. In the course of this inquiry all bad had occasion to observe the fair and admirable manner in which the examinations were conducted by their lordships: questions of the utmost importance to the elucidation of truth bad been put; but they could be put no longer if the cross-examination were postponed. He denied that the examination could be renewed at a future time: matters of the highest consequence suggesting themselves in the course of the examination would be forgotten; and it was idle to say that they might be revived by a subsequent perusal of the evidence; all who were at all acquainted with the human mind must know, that it would be cold and lifeless, compared with the active suggestions of the moment. In this view the postponement would produce a grievous evil. Again, supposing a doubt were thrown in cross-examination upon any fact stated by a witness, the course was, to interrogate other witnesses in confirmation; but if the cross-examination were deferred, no such opportunity would be afforded, and the case would be thus unfairly prejudiced. But this was not all; for fresh witnesses might be required in support of the bill; they must be cross-examined, re-examined, and finally submitted to the inquiries of the House. Another difficulty appeared insuperable. How was it possible for the counsel supporting the bill to know how to conduct the inquiry, unless they were informed a little of the course of the questions and observations on the other side? Cross-examination was one of the
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most important inquiries in eliciting truth, not by confuting, but by confirming the witness; and if on the other side they were permitted to know all the case against them without giving the accusing party the least hint of their intentions, it was an unfair and an unjust advantage. It had been well said by one of their lordships—
The Lord Chancellor.—You cannot allude to what has been stated in the House.
The Solicitor Generalapologised. He might perhaps say that it had been; suggested, that if the cross-examination were delayed until all the accusing witnesses had been heard, the counsel in support of the bill would have a right to insist that they should not be compelled to cross-examine the evidence for the Queen until after the lapse of a reasonable time. Thus the proceeding might be eternal and interminable, it was impossible to see where it could end. He did not urge these inconveniences so much in answer to the arguments on the other side, as to show the wisdom of the rule now prevailing, and from which he hoped the House would not depart. It could not be infringed without infinite danger and positive mischief—without breaking in upon the rules and principles by which truth can be alone elucidated and investigated. He laid no stress on the observation, that counsel in favour of the bill could not sum up the evidence until the case had been gone through. Besides the course recommended was unjust to the witnesses themselves: much of a cross-examination depended upon small facts and apparently insignificant expressions, which could not be recollected, explained, or reconciled, after the interval of months, or even weeks. As the object of this proceeding was the investigation of truth, he might be allowed to add, that the recommendation would be injurious even to the Queen; the witness would thus have an opportunity of deliberating upon the evidence he should give, and of preparing himself for cross-examination; and to avoid this, all courts of law required that the cross-examination should immediately follow the examination in chief. Besides, a witness under cross-examination might hesitate, and prove the untruth of what he had stated; but if he were allowed to tell his story straight forward, and was followed by other witnesses to the same fact, it might amount to confirmation that could not after wards be shaken.—After recapitulating

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the various points he had urged, the learned counsel went on to observe, that although in the ordinary administration of justice the circumstance of the witnesses coming from abroad, gave neither party a claim to postponement, yet their lordships had granted as much as possible without wholly defeating the ends of justice. An important advantage had been conceded to the other side; for though it was decided that the cross-examination should not be entirely postponed; yet if any facts could be adduced coming afterwards to the knowledge of the party, their lordships, relying on the candour of the counsel for the Queen, had consented that the witness should be called back, and the cross-examination renewed. No tribunal could go further; but to grant the whole request of the counsel for the Queen would be to defeat the whole object of the inquiry, and to render it impossible for those who appeared at their lordships bar in support of the bill to discharge their duty.
Mr. Broughamcommenced his reply by stating, thatlittle had been offered on the other side requiring an answer. He could not, however, allow their lordships to separate without setting himself right with regard to a misquotation (undesigned of course) which he was supposed to have made from their lordships' journals. It was easy to misstate a case, and easier to assert, that a case had been misstated. The counsel on the other side were very sharp men; but it would be well for them to be accurate as well as sharp, when they impeached the accuracy of other folks. The attorney-general had fallen into an error, though he was aided and accompanied by the solicitor-general who generally spoke with great contempt of every body but himself—and their lordships. He (Mr. Brougham) made this exception, because the solicitor-general had been pleased to bestow his high commendation upon their lordships: though not lawyers, in the excess of his approbation he had admitted, that their lordships had put some questions to the witnesses in a form sufficiently judicious. (Order, order.) He was merely repeating what had been said by his learned friend, who had not been interrupted while expressing his approbation: it was a tribute from one who filled the high office of the king's solicitor-general—it was of considerable value, and he (Mr. Brougham) trusted it had been received
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by the house with becoming gratitude. Let it be recollected that this came from the solicitor-general—the only lawyer, at least the only accomplished lawyer in the profession, according to the opinion of some of his friends, who, by the bye, monopolized that opinion as he did the knowledge of the law. The solicitor-general had, too, a most able coadjutor, and between them both it might be said, that they had exclusive possession of all the law, all the wisdom, all the talent, and all the accomplishments on the present occasion. In truth, the counsel for the Queen had only one or two books:— they were only endowed with a volume or two—but that was sufficient upon the present occasion—and to those volumes they referred, upon those volumes they relied, upon that fortress they retreated, from the bitterness and severity of their attacks. Much had been said regarding the case of the duchess of Norfolk; but while his learned friends, relying on their own resources, only furnished themselves with Cobbett's State Trials; he and the Queen's solicitor-general had provided themselves with the original journals of their lordships House. The other side relied on the octavo edition, while the original folio, which would be evidence in a court of justice (if he might be allowed to state what would be evidence, not so much in the presence of the judges of the land, and of their lordships, as in the overawing presence of that greatest of all law authorities the solicitor-general, by whom he had been rebuked within the last half hour), had been produced in opposition to it. From that folio it was evident, that all that the attorney-general had advanced was founded in error, and that all that he (Mr. Brougham) had said was confirmed by indisputable fact. But, God forbid that he should glory or triumph over his learned friends as they had done over him; but it did happen, that about half an hour ago, and in this House (for he had no objection to specify time and place with the utmost possible precision), he had read the 46th and 47th pages of the 15th volume of the Journals of the House of Lords, where was stated the whole of what he had ventured to submit. It there appeared, that the proctor of the duchess of Norfolk had asked many questions of the witnesses, in order to furnish himself with the means of ascertaining their conduct and character: he had inquired of Margaret Elwood, where was her last

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abode, whether she was single or married, with whom she now lived, and other interrogatories of the same sort; after which she was sworn, and not till then. The same course was pursued with Anne Burton; she was asked if she were a maid (he had ventured to put no such question to the witness of Saturday), whether she always had lived in Chancery-lane, whether she had been servant to the lords Ferrers and Devon, and whether at the time of examination she lived at her own cost and charges: to the last, much to her credit, she answered in the affirmative. Then she was sworn, and not till then; and the same mode was pursued with twenty other witnesses, one of the last of whom was Richard Owen, and he was asked whether be was kept by the duke of Norfolk. But, said the attorney-general, from his great authority, no copy of charges and no list of witnesses was given; but from the Journals it was clear that the contrary was the truth. The duchess petitioned for them, but a difficulty was for a time thrown in the way by a Latin protest delivered in by the proctor, which for the more easy comprehension of the House of Lords must first be translated into the vulgar. At length, however, the list was furnished, and most complete it was, for it went over the life and occupation of every witness for six or eight preceding years, and then three further days were allowed to the duchess for inquiry. Therefore, he said, with all possible humility and deference to the learned self-complacency of the solicitor-genera! (with whom he was far indeed from putting himself in competition, for all that he (Mr. Brougham) had acquired had come rather by God's good providence, than by any industry or merit of his own) that the case completely bore him out in all the observations he had made.
The Attorney Generalsaid, that the inaccuracy of which he complained was, that in the particular list of times and places given in, his learned friend said it was five months, whereas it was six years.
Mr. Broughamanswered, that if time were of any consequence to his argument, he could show that the attorney-general was here again in erroc, for the specification allowed to the duchess extended from January, 1685, to August, 1691; and if the same course had been adopted with regard to her majesty, she would at this moment have stood in a very different situation. So much for the attorney-ge-
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neral. He (Mr. Brougham) felt infinitely more awe in approaching his most learned coadjutor, because he knew his habit always was to tell the opponent who "touched him near"—"O! get you gone! you are no lawyer—you can be no lawyer—you are only the queen's attorney-general; but am the king's solicitor-general!" That was a fact which he (Mr. Brougham) could not dispute or traverse; and that alone was enough to deter him from attempting to grapple with any of the arguments which had been adduced; he felt a conscious inferiority: he was aware that he was far below the king's solicitor-general in rank and in knowledge: the solicitor-general might say that he was only "a little lower than the angels," and a very little it was, if his own opinion were to be taken: the wonder therefore was, that with all his learning and greatness he could condescend to misstate the arguments used against him. He (Mr. Brougham) felt the highest admiration for the great man of whom he was speaking: nothing he could say could add one leaf to the wreath of laurel he had obtained—nothing he could advance could give one more spark to the glory which both the solicitor-general and his powerful coadjutor had been daily increasing during this investigation, and before the patrons of this bill, to whom they were indebted for their well-merited professional promotion. Proprio marte they had acquired immortal reputation, and melancholy it was to reflect, that even these men, the most illustrious and exalted of their species, had still some taint of the frailty of our common nature. Not only had they misstated arguments, but they had substituted one for another. He (Mr. Brougham) had never said, that in a civil suit the defendant was entitled to a particular of time and place, but that he had a right to such a particular, as added to the contents of the declaration, made it a matter of absolute certainty, that he could not be taken by surprise, but must come prepared into court. If this were not furnished, a judge would make an order for the purpose, and in his own little experience (never comparing it with that of the king's solicitor-general) this had been done over and over again. But this was not a civil action, nothing like a civil action; and he asked whether, in all criminal proceedings, certainty was not by law secured to an individual accused? A man committed for a felony to York-cas-

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tle, and put in a course of trial in Yorkshire, knew that the offence must be charged to have been committed there; but here the crime was extended over many years, and over many quarters of the globe: Europe, Asia, and Africa were charged as the scenes of her majesty's adultery. In the same way an indictment was not for a series of telonious acts: it was for picking the pocket specifically of A. B., and not for a pocket-picking intercourse of seven 3'ears of a man's life; and there was hardly an instance of a person being put upon his trial in this country who was ignorant of the precise nature and extent of the charge, and of the place where the offence was alleged to have been perpetrated.— A great deal had been said about the necessity of laying down a rule as a guide for the future: far be it from him to object to the utmost regularity, but it did seem a little strange that all of a sudden his learned friends minds were directed to proceedings of this kind, as if bills of pains and penalties were hereafter to form a great chapter in the law of the land. ^Resolutions might be made by the House not to draw certain matters into precedent; but that was a bungling way of doing business, and he would seriously ask their lordships if they were bound here to act as if Queen's bills were to become in future as common as turnpike-road and canal bills? The argument had been pushed even thus far: it was said, that it was better that the individual in this particular case should suffer than that a permanent rule should not be established. Surely this argument, if good for any thing, might be pressed both ways; for he might ask their lordships to lay down a rule favourable to the Queen, and pressing hard upon her accuser, in order that in future it might be adhered to inflexibly. Why was all the load to be cast upon the weaker party? Why was a rule to be made at the cost of the Queen only? The rule of law, and the ordinary merciful presumption of the judges was, that it was better that ten guilty men should escape than that one innocent should suffer: but now it was to be reversed at the instance of those two sages of the profession, and ten innocent persons were to be punished that one guilty might not avoid the merited sentence. But the Queen was in a situation of great disadvantage compared with her prosecutors: her acquittal, nay, even her conviction, could not be pleaded in bar of any further proceeding: this bill
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might be withdrawn and amended, again withdrawn and again amended: toties quoties new measures might be offered to their lordships against the Queen, and session after session she might be put upon her trial. This was no slight difference; and another important distinction had been demonstrated already by the evidenc, that the Queen's accusers had a power of procuring witnesses which she could not enjoy. Not only were large sums at their command, not only was force used where bribery failed, but the force (for the conclusion was irresistible) used to bring the king's witnesses would not be employed to make those of the Queen come. Further, the same force found effectual in driving the king's witnesses over, would be exerted to keep the Queen' switnesses back. He did not profess to be so deeply skilled in human nature as his learned friends; but he guessed that the same power which said to one man, "Go over to give evidence against the Queen," was not likely to tell another, "Go you to give evidence in her favour." He might assume even more; the government which told the king's witnesses to stay away from England at their peril, would warn those of the Queen to go to England at their peril.—These (concluded Mr. Brougham) are some of the difficulties of our situation. Upon these, and other grounds which we have stated, we leave the case in your lordships hands—ignorant of any way how to lead your lordships out of the difficulties, into which we have got—not quite certain that you are not stepped in so deep, that "returning were more tedious then go o'er". We may be like the king that Boyle used to call the cloud-commanding king, that could throw a darkness and mist over most points and render none more clear: but at the same time, I assure this House that we have applied ourselves with the utmost sincerity and diligence, to see if we could discover some way in which these clouds could be dispersed, and the path of justice, in this stage of the proceeding, be made straight and smooth; but in this our constant diligence and constant endeavours we have wholly and entirely failed.
The Earl of Liverpool The Earl of Liverpool moved, that the House do now adjourn, the arguments of counsel being finished. He thought it but right that the House should take till tomorrow morning to consider what rule it would be expedient to adopt. Before he sat down, however, he felt it absolutely requisite to make an observation upon

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what had last fallen from her majesty's attorney-general. He felt it essential to state that unlimited pecuniary means were placed at the disposal of the Queen's professional agents, for the purposes of her majesty's defence; and that with regard to foreign governments compelling witnesses to attend here, some of them neither could nor would resort to any such compulsion; but that whatever governments did compel witnesses to come here, and more particularly the principal power under whose jurisdiction most of the witnesses resided, the same means that were resorted to for the purpose of compelling witnesses to attend here to give evidence in support of the bill, would undoubtedly be used to compel the attendance of witnesses on behalf of the Queen.
Lord Erskinerecommended the House to pause even now in the course they were pursuing, beset as they were with difficulties, and as the only means of getting into the right course, to postpone the further proceeding till the Queen should be ready with her defence, and in the mean time to grant her majesty a list of witnesses, and a specification of times and places. He would make a motion to that effect to-morrow morning.
Adjourned till to-morrow.