Lords Sitting of 10 July 1820

BILL OF PAINS AND PENALTIES AGAINST HER MAJESTY.
The Earl of Liverpoolrose to call their lordships' attention to the order of the day made with reference to the bill he had introduced on the report of the secret committee. When this subject was under discussion on a former occasion, it was thought that the illustrious person against whom the proceedings were instituted, and her counsel, were desirous of considerable delay; but, in consequence of the report of the secret committee, and the bill which he had laid on the table, an application of a different nature had been made by the queen's counsel; namely, that their lordships should proceed forthwith with the inquiry. He by no means meant to complain of this as inconsistent, because he was perfectly sensible, that the different circumstances in which the case was then placed might give just ground for a change of opinion as to the time of proceeding. It must be obvious, however, that this change must, in some degree, affect those before whom the proceedings were to take place. But he did not make this observation with the view of casting any weight on that objection. On the contrary, he said that the call for an immediate inquiry having been made, their lordships were bound to answer it as far as it was practicable for them to do, consistently with the administration of substantial justice. This was a case in which they must put out of question every motive of mere convenience. On the last day on which this subject was under discussion, he had thrown out for their lordships consideration, whether they would think proper to

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proceed with this inquiry without the presence of the judges. In the communications he had had with those whom he thought right to consult on this point, he was confirmed in the opinion, that their lordships would not exercise their duty in the manner which became them, if they proceeded in this measure without having the advantage of at least a portion of the judges. He said a portion; for, in looking back to precedents of the attendance of the judges in parliamentary inquiries, he found that the presence of the whole twelve had not been considered necessary. It had always been so arranged, that some were allowed to go the circuit. In the present case, there was no period, not even that which would be the most convenient—he meant November next—in which their lordships could order the attendance of the whole of the judges, without greatly interfering with the administration of justice. On this point, then, he certainly thought it would not be proper for their lordships to proceed without a part of the judges; but, from what he had stated, he was convinced the presence of the whole was unnecessary.
He had now to call their lordships attention to the next stage of the bill. Consistently with the wish of answering the call made for an immediate proceeding with as little delay as possible, he had made it his duty to inquire, what was the earliest period at which the presence of a part of the judges could be obtained, and he had found that, by the 17th of August, their lordships might have at least the attendance of four. It was therefore his intention to move that the bill be read a second time on the 17th of August next. He should follow up that motion with others which were consequent upon it. He was aware that the time proposed for prosecuting the inquiry was a most inconvenient period of the year; but he had no doubt, from the extreme importance of the case, that the House would be attended in such a manner as would render the decision, whichever way it might be, equally satisfactory to the public and to their lordships themselves. He had no doubt that their lordships would all be ready to make every sacrifice to the performance of their duty on so important an occasion. There were among them individuals who certainly had claims to indulgence on account of the constant attendance which their duties required, and who must naturally look to that period of the year as
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one of relaxation; but they, feeling the urgent necessity of the occasion, would be disposed to make every necessary sacrifice. There was one thing he thought should be impressed on their lordships minds—that this was a case in which peers neither could nor ought to vote by proxy. They ought all to be present during the deliberations, and all should vote in person. What would be the view of the illustrious person who was the object of the bill, with regard to the course he now proposed, remained to be seen. He knew not how far that illustrious person might, or might not, have objection to the time. He must observe, however, that if it should be thought advisable to make any application to their lordships for a change of time, or delay, he trusted that such application would be made within a few days; because, if it came in August, after the preparations for proceeding had been completed, and their lordships had made their arrangements for attending, it would be very inconvenient to comply with it. He must therefore repeat his hope, that if any such application was intended, it would be made without loss of time. If their lordships agreed to his proposition for fixing the second reading of the bill for Thursday the 17th of August, he would next move that a copy of the order be sent to her majesty,—that counsel be allowed to he heard for and against the bill before the second readings—and that the judges on that day be ordered to attend. The noble lord concluded by moving, "that the bill be read a second time on Thursday the 17th of August."
Earl Greydid not oppose the motion made by the noble earl, but observed that, if there was to be any delay, he thought it would be much better that it should take place before the proceedings commenced than during their progress. He was ignorant as to what course the illustrious person against whom these proceedings were directed might wish to adopt; and, in the present state of the information before their lordships, it was difficult to suggest any thing on the subject. He thought, however, that some arrangement might be made with her majesty, so as to have the delay previously to the inquiry, instead of making it interpose, as it otherwise might do, to allow time for the preparation of the defence. How this was to be brought about he did not know, but he thought it might be accomplished by communicating to her

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majesty a copy of the charges, and a list of the witnesses against her, which he considered nothing more than what strict justice required. Were this done, it was probable that their lordships might then adjourn the farther proceedings to a period of the year much more convenient for their attendance. Whatever delay might be necessary for the preparation of the defence might be procured by some arrangement like that he had taken before the second reading, and thus contribute to the convenience of all parties. To this suggestion he must add, that he did not think the noble earl had shown any necessity for the postponement. If their lordships were to endeavour to answer the call to proceed forthwith, why delay till the 17th of August? The noble earl was of opinion that the attendance of four judges was sufficient. Why was it necessary to wait till the 17th of August to obtain that number? He thought the attendance of that number of judges might be obtained now; and in that case it would be better to go on than to begin at the 17th of August with the probability of suspending the proceedings after that period.
The Earl of Liverpoolassured the noble lord, that, from the inquiries he had made, he had found it was not possible for their lordships, with a due regard to the administration of justice, to call for the attendance of any of the learned judges before the 17th of August. He perfectly agreed with the noble earl, that it would be very desirable to obtain a delay before the commencement of the proceedings, rather than at any other time, if an arrangement for that purpose could be made suitable to the convenience of all parties. The noble earl thought that this object might be facilitated by communicating the charges and a list of the witnesses. As to the charges, he conceived that they were already sufficiently made known. They were as fully detailed in this bill as ever they had been in any other of the kind. With regard to the other and more important point, the communication of the names of the witnesses, he had given it his most serious consideration, and he was perfectly satisfied that no claim whatever could in justice be made to such a communication. It would be dangerous to make such a precedent, for it would tend to the establishment of one of the most inconvenient principles that could be adopted in proceedings of a similar kind,
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and to the introduction of a practice inconsistent with the ordinary course of the administration of justice.
Lord Hollanddesired the standing order, No. 47, which regulates proceedings of inquiry before their lordships, and directs that defendants may be heard by counsel, &c., should be read. He had no hesitation in saying, that if the date of this order, as it stood in the order-book, was correct, it was imperative on their lordships to grant to her majesty the substance of the depositions or charges against her. He had no wish to call upon their lordships to do any more in this case than what substantial justice required, and therefore he did not rest much on this ground; he would indeed candidly confess, that he had some doubt of the accuracy of the date: it was the 3rd of April, 1623. It appeared that proceedings were then instituted in that House against the lord-treasurer Middlesex. A report from a committee, at the head of which was the archbishop of Canterbury, had been made on the 2nd of April, stating that, in the course of their inquiry, reflections had been found to attach on the honour of the lord-treasurer. On the 5th a committee was appointed in the Commons to inquire into the conduct of the lord-treasurer Middlesex. If this order were entered on the Journals on the 3rd of April (the period specified), no doubt whatever could exist but that it was done for the purpose of granting to the lord-treasurer a communication of those charges that had been made against him in a secret committee, and with respect to which the other House had given him no information. A conference took place between the two Houses, and at that conference an accusation was preferred against the lord-treasurer. That accusation, and a report of the proceedings at that conference, were referred to a committee of their lordships, and they almost unanimously caused articles of impeachment to be drawn up against the lord-treasurer. The manner in which the business seemed to be conducted was this:—There was, on the part of the plaintiff and defendant, a certain report drawn up by the House, and witnesses were sworn at the bar to give evidence on the subject. On the 3rd of April, an inquiry took place as to whether the information required by the lord-treasurer should be granted to him or not. On that occasion, they did not arrive at any decision. On the 3rd of

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May, a petition was presented from the lord-treasurer to that House, accompanied by certain interrogatories, which he wished to be propounded to some other witnesses, who were yet to be examined; and the lord-treasuser, in his petition, said, "Since your lordships have appointed Friday next for proceeding with this suit, I pray to have copies of the depositions furnished me in some convenient time before that day, in order that I may prepare myself for my just defence." On the motion that the lord-treasurer shall have just copies of the said depositions, which was moved by lord Say and Sele, and seconded by lord Morton, it was negatived at that moment, because the lord-treasurer's own witnesses had not then been examined; and it was also refused, on the ground that it might form a precedent for posterity. The subject was then referred to a committee of privileges, and they reported" that means of justification might be afforded before the final answer was given in, and that the lord-treasurer might then be allowed the depositions of all the witnesses, as well for him as against him." Then came an order of the 3rd of May, which specially related to those depositions. Now, as far as he had been able to understand what those depositions were, they comprised the whole body of evidence on which the House proceeded to judgment, which was simply read at their bar. He wished their lordships would get a clear understanding of the whole transaction with respect to the propriety of granting the depositions, and that they would make up their minds upon it. If the order to which he referred were placed on their Journals at the date which was then noted down, it was a case worthy the attention of their lordships. The whole point turned on the consequences that might be derived from a publication of the depositions, whether the matter terminated honourably or dishonourably for her majesty. If it were not proper in this state of the business to communicate the whole of these proceedings to her majesty's counsel, yet their lordships, he thought, must feel that it would be necessary that the substance of those depositions, and copies of the evidence, should at least be laid before those who were to act as judges in this case, prior to the hearing of the cause. This was done in ordinary cases, and ought, as far as they could consider the matter, with reference to analogy, be
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acted on here. Where informations were taken before a magistrate, the depositions were generally given in the presence of the party accused; but, whether they were sworn in the presence of the person accused or not, when the case came before the court for trial they were communicated to the judge. They were produced for the purpose of giving the judge an opportunity to ascertain the credibility of the witnesses, by checking the evidence sworn at the bar with that which had previously been given before the magistrate. There could be no reason surely for abandoning so fair a system. They had a right he conceived, so far to regulate themselves by the analogy which he had pointed out, as to give to the accused and to her judges the same advantages that would be given to any other individual in the country. By this course only could her judges properly consider and apply the evidence. He supposed the course of proceeding would be, when the second reading was proposed, for some noble lord to propose that counsel be called in and heard forthwith. That motion would of course be followed up by a communication to the attorney-general; and he wished to know whether it was the intention of the noble earl to furnish that individual with the contents of this bag? If he strictly adhered to precedent, he must do so; and he could not conceive how such information could be furnished to one of the parties, and not to the other. It was not possible, in his opinion, to furnish all necessary information to the prosecutors, and to withhold it from the party accused. The course of proceeding was a point to which they ought to apply the most vigilant attention, particularly if the report of the secret committee were such as could not be paralleled throughout the whole of their Journals. A great mass of evidence had been referred to a committee of that House for examination. The course of proceeding usually adopted by a committee of this sort was, to report the general nature and tendency, and, in some point, the details of the evidence, submitted to their notice: leaving their lordships, in a great measure, to draw their own conclusions on the matter in agitation. On this occasion, however, no information whatever was given with respect to the subject; on the contrary, the committee advised their lordships to adopt a certain mode of proceeding. This was the first time that a committee of their

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lordships' House had pursued such a line of conduct. All these circumstances proved the proceeding to be a very singular one indeed. He, therefore, thought that the question put by his noble friend was a very proper one. He could see no reason why the names of the witnesses should not be disclosed to the accused party. Either a statement of the precise evidence should be allowed; or, if that were refused, a list of the witnesses should be forthcoming. What his noble friend suggested to the House was this—whether it would not be proper, when the case was gone into, to allow a given time to elapse, in order to enable her majesty to enter on her defence? If any other mode of proceeding were adopted, it would not meet the justice of the case. The ends of justice would not be properly attained, unless either at this moment, or at some future period, the necessary information were laid before her majesty's legal advisers, and sufficient time were given them to examine the evidence in all its bearings.
The Earl of Liverpoolsaid, it would be better if the noble lord, instead of introducing this point incidentally, would make a distinct motion on the subject. Unless that were done, the House could not, he conceived, deal with the question. If any noble lord was anxious to introduce the subject to the House, he might do so by offering a distinct proposition with respect to it. For his own part, he had heard nothing that tended in the slightest degree to shake the opinion he had formed on this question. The noble lord, in support of his view of the case, had referred to an old standing order of that House; and he had very candidly observed, that he knew not how far it would apply to their lordships' present proceedings. But he believed, if they examined their Journals, they would find entries considerably later, and connected with analogous cases, where copies of depositions and papers of the nature of those that had been referred to the secret committee, were actually refused to the parties concerned, who had applied for them. In the case of bishop Atterbury divers papers were laid before the House of Commons in support of the charge against that individual. Copies of those papers were afterwards sent to the Lords. The bishop petitioned the House, praying to have sufficient time allowed him, before the second reading of the bill, to inspect those papers by his counsel or soli-
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citor. That application was, however peremptorily refused. He did not state this as conclusive evidence on the subject, but as a proof that it was not always conceived necessary to furnish this species of information to the parties. He admitted it would not be just to withhold those depositions, if on them alone the judgment of the House was to be formed. But their lordships would see that their judgment was not to be founded either on the depositions, or on the report. They all agreed that it would be improper if the House were asked to declare an opinion on these documents; and, it had been stated all along, that the case was to be proved by oral testimony at their lordships' bar, subject to the examination, cross-examination, and re-examination, to which oral testimony was liable. Therefore noble lords need not give themselves up to the supposition, that their judgment was to be founded on the depositions in question. With respect to the question of time, he had no difficulty in saying, that great advantage would be derived from proceeding with celerity when the business had once commenced; neither had he the least difficulty in believing, that if delay were asked, if a good ground for postponement were adduced, their lordships would not object to such an application. This he would most distinctly state—that, with a view to the furtherance of justice, if a previous list of the witnesses, or else a period of delay between the accusation and the defence, were demanded, he would decidedly prefer granting the latter. This, however, was only his own opinion as to the most effectual way of obtaining substantial justice.
Lord Ellenboroughsaid, if he had not misunderstood the noble lord (Holland), the argument which he used on this occasion was at variance with that which he had formerly advanced. The argument adduced against the secret committee was, that the consequence of laying those papers and depositions before such a body, without the examination of witnesses, would be to prejudice their minds in a considerable degree, and thus to render them unfit to act judicially on the subject. This, as far as his recollection served, was the objection against the secret committee; and that objection the noble lord now proposed to extend to the whole House, by placing under the eye of every peer those papers which, in the-former case, he considered as likely to-

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create a prejudice in the case. So far from the perusal of those documents being restricted to fifteen peers, the noble lord now wished that they should be laid before the whole of their lordships, because it would give them an opportunity of comparing the evidence contained in those depositions, with the statements made at the bar of the House. He, however, thought that neither the circumstance of the depositions being submitted to a secret committee, nor their being laid before the whole House, would in the slightest degree interfere with the exercise of their lordships judicial capacity. He thought so, because they were not only judges in parliament, but hereditary counsellors of the Crown; and he was sure the constitution would not impose on them two duties that appeared to be incompatible with each other. As hereditary counsellors they might be called on to advise his majesty on a matter deeply affecting the honour and dignity of the Crown. Were they to refuse that advice? Were they to say to his majesty, "We cannot attend to your request, because we may hereafter be obliged to act as judges in parliament, and in that capacity we may be expected to decide on this case?" He apprehended that they could not give such an answer. In that case those who were hereditary counsellors of the Crown would be cut off from stating their opinion on matters of great public importance; for there was scarcely a situation of danger and difficulty in which the state might be placed, and on which their advice might not be required, that, by possibility, might not afterwards come before them as legislators, they having previously given that advice which seemed best calculated to meet the evil. He conceived that the noble lord had here fallen into some little inconsistency, which, he doubted not, he would explain with his usual ingenuity.
Lord Hollanddid not deny that the noble lord had stated very fairly the view which he had on a former occasion taken of the formation of a secret committee. He then said, it would be very unsatisfactory to the public, and therefore most unwise, to call for an opinion from fifteen peers, with respect to papers submitted to them, since they would be afterwards called to decide finally on the question in a judicial capacity. Now, in what he had observed this evening, there was nothing that could justly be termed inconsistent with that opinion. There certainly was
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some little difference between having papers laid before him, to enable him to compare the depositions with the evidence given at the bar, and having papers submitted to him which he had examined antecedently, and on which he had previously delivered some opinion. The objection of himself and his noble friends was, that the individuals who formed the secret committee would be placed in possession of ex parte information, and would, in the first instance, pronounce an opinion on those facts which they would afterwards have to consider as judges. This did not by any means apply to the case put by the noble lord. He had stated most correctly, that when a person who had been committed by a magistrate was about to be tried before a judge, the latter was furnished with the depositions taken in the case; and he argued, by analogy, that the depositions in the present instance should be laid before their lordships, as the judges of the charge. He did not see any thing inconsistent in this argument; on the contrary, he thought he might say there was something inconsistent in the noble lord's mode of arguing the question. If the noble lord really thought there was an advantage in thus proceeding by laying certain documents before a few peers, he could not conceive any reason for refusing the same advantage to the whole House. His argument was, that if fifteen of their lordships had those papers in their possession, and had declared an opinion on them, it was not fair to the parties, nor consonant with the principles of justice or humanity, to call on those peers to assist in deciding the question ultimately. It ought not to be left to judges whose opinion was already on record.
Lord Erskine.—My lords; much as I always desire to hear my noble friend on the right, I am not sure I should have given way to him, if I had not expected it would have been more to the matter now before us. He says that we have two characters, that of hereditary counsellors, and legislators also, and that if looking at the evidence secretly in the former character, disqualified us for sitting in judgment on it afterwards, no such parliamentary jurisdiction should have ever existed; but to that it can be only answered (and I am delivering no opinion on the point), that if looking at the evidence secretly, affects the judgment, as it is impossible to change the nature of

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the human mind, the practice of the constitution should be altered. But that is not the question now—the committee has made its report—a bill has been brought in—it has been read a first time, and the 17th of August has been appointed for the second reading, and the only matter to be considered at present is, how we are to deal with it most consistently with the honour and character of the House, with the clearest safety to the accused, and in a manner the most congenial to the feelings of an enlightened people. My lords, the proceeding is so rare, or rather so anomalous, that it may be difficult to find a precedent that may exactly apply to it; but I wish to la}' aside precedent altogether for a more satisfactory rule of decision, viz. for that mode of proceeding which is the most analogous to the general principles of our criminal law, on a case the nearest to the present, and which will hold the scales of justice the most even between the accuser and the accused. Your lordships must anticipate that excellent statute of king William for the protection of persons accused of high treason, which gives to the accused, even before the court is opened, a copy of the indictment, and a list of all the witnesses who are to be examined for the Crown. What is the principle of this admirable law which thus bestows a privilege which in ordinary cases is denied? It is, my lords, because in such a case the prisoner has not to contend with an equal accuser, or with equal securities against injustice. It is because he is to contend with mighty power, which is wisely vested by the law, but which demands a balance, and he is therefore covered all over with the armour of the law. Now was there ever a case more clearly of this description? I do not mean to speak invidiously, or to make any charges; but only to point out the situation of the illustrious accused. She has to contend against the Crown and its ministers, and against all the powers and influences they possess. In such a case, my lords, putting all right or precedent out of the question, I would most earnestly advise your lordships to give the list of the witnesses, unless you can show me who offered you this advice, that by doing so you would disturb the balance of justice, and confer a power to weaken and disappoint the accusation however just. Shew me this and I am silent, but you cannot show this without being prepared to repeal the statute of king Wil-
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liam, because I ask even less than by that statute is compulsory on the Crown. After the list of the witnesses in a case of high treason has been delivered, though a fatal omission is afterwards discovered, it cannot be repaired; and the witnesses, though by accident omitted, cannot be examined; but in a case so anomalous, and where there is no law to demand such proceeding, it ought not to be required; but what objection then remains to a list of those that have at present been determined on?—The noble earl has said that he should prefer a proceeding without interruption, but that if the illustrious accused, after the witnesses for the bill had been examined, should desire time to contradict them, God forbid it should be refused, but that indulgence might come too late. The list of the witnesses is given, not merely that those for the Crown may be contradicted, but that, under cross-examination, if they are false witnesses, they may be made to contradict themselves. My lords, I pray you to consider this—the noble earl has said that the question is not closed, and that it may be re-considered. It appears to me to deserve re-consideration. We are placed in the view of the public, and I know we shall fulfil our duty. The judicial character of the House of Lords supports all the other tribunals of justice, and the attendance of the judges would be of no value here unless our superior character were held sacred by the people, which I hope and trust they ever will be. My lords, I have not made these observations from any desire to disappoint or obstruct the course we are engaged in. When the court assembles I will do my duty, as if all the angels in heaven were taking notes of whatever passed through my mind on the subject; but I wish to be placed in a situation in which I can do this duty with safety.
The Lord Chancellordeclared, that he looked at this case with a feeling of the most perfect impartiality, and he wished to God that it was attended to with the same calmness both in that House and out of it. In that House, he was persuaded, it would be so regarded; but out of that House it was quite shocking to see how much it had been neglected. With respect to what his noble and learned friend had said, it appeared that there was no one case whatever, except that of high treason, which he could state as having the smallest analogy to the present;

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and even that his noble and learned friend was obliged to give up. He must evidently give it up, as the law at present stood; and he was glad of having this opportunity to state his opinion. In the course of his professional life he had had occasion to see enormously long lists of witnesses, comprising perhaps 200 or 300 persons, given to defendants in cases of high treason. How could this be avoided as the law now stood? There was, in fact, no way of avoiding it; because, in cases of that description, the prosecutor could not call a single witness whose name was not included in the list. And it was most extraordinary, that if the witnesses for the defendant swore, in a court of justice, that every one of their lordships were present at a meeting, where not one of them had, in truth, attended, unless their names were inserted in the list of witnesses for the prosecution, none of their lordships could be called to contradict this statement. The analogy, therefore, between the two cases, was entirely at an end. On what ground could it rest? He contended that it was a much more proper proceeding to go on in the ordinary and established course, unless that House wished absolutely, by adopting a novel principle, to strip itself of its most valuable rights and privileges, and to declare that in future there should be no previous inquiry, either by a select committee or a general committee—unless their lordships meant to say that they never could proceed with such a bill till an inquiry had been instituted in committee. And, as the proceeding was to be ultimately a public one, what danger was to be apprehended? He had never heard any individual express the least belief that the proceeding would not be a public one at the bar of that House. He should be glad to know whether his noble and learned friend could state an instance, except in the case of high treason, where, according to the principles either of law or justice, a list of witnesses was given to the accused party preparatory to trial. He defied his noble and learned friend to do so. The arguments that had been used might afford good reason for postponing the hearing of the defence; and he was sure their lordships did not imagine that there was a man in that House, or out of doors, who believed that the defence would be entered on until a full and fair opportunity was given to sift the character of every witness as far as possible. This was a case
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not to be considered with respect to the individual, but with reference to the general principle; and he asked their lordships, if they once settled this precedent, contrary to every thing they had ever done, whether it would be possible for them, on any future occasion of the like kind, to proceed in the same manner as that in which their ancestors had proceeded up to this day?
The several motions were then put and agreed to.