§ Lord Aucklandsaid he had a petition to present from her Majesty, which prayed that she might be furnished with a list of the witnesses which it was intended to adduce against her. He now moved that the petition be read, and intended to propose that it should be taken into consideration on Friday next, the day on which the motion of a noble and learned lord which had the same object, was to be made. The petition was read by the clerk as follows:
"The queen having received information from the House of Lords that the second reading of a bill for the degradation and divorce of her majesy is fixed for the 17th of August next, and deeming it essential to her defence that she should be furnished with a list of the witnesses intended to be examined against her, desires that such list should be forthwith delivered to her majesty's attorney-general."
The Earl of Lauderdalesuggested the propriety of appointing a committee to search for precedents, not only with respect to the giving of lists of witnesses in analogous cases, but with respect to the whole proceedings.
The Earl of Liverpoolsaid, he had no objection to the appointment of a committee, but as it would be essential to have a report respecting any precedents for the communication of a list of witnesses, before Friday, when the question was to be discussed, he thought it desirable that the committee should be confined to that point, at least, in the first instance.
Lord Hollandwould willingly concur in the proposition of his noble friend to search for precedents; but if they were to look for what had been done on bills of attainder and bills of pains and penalties, he thought it necessary, to enable their lordships to form a just opinion of the precedent, and to give satisfaction to the public, that the whole of the proceedings on such bills should be reported. Perhaps, as a member of that House, he might have reason to feel some humiliation from the report of a committee appointed with such powers; but he was anxious that substantial justice should be done. He must object to a mere report 359 on precedents, when, if the whole proceedings connected with them were explained, these precedents would rather serve as warnings to be avoided than as examples to be followed.
The Earl of Lauderdalewished the power of the committee to be as extensive as could be practically advantageous to the object in view.
The motion suggested by the earl of Liverpool, namely, that a committee be appointed to search for precedents relative to the delivery of lists of witnesses, was then reduced to writing by the clerk.
Lord Hollandsaid, he objected to it. Their lordships ought to know the whole proceedings relative to the precedent, to enable them to form an opinion respecting it. Bills of pains and penalties were in their nature exceptions from the ordinary exercise of the judicial functions of the House. On such proceedings their lord-ships might find themselves pressed by expediency to make rules for the occasion; for that reason he could not see how their lordships could be bound by a rule so made, without knowing the grounds on which it had been adopted. It would be most unjust to extract from such cases a particular part of a proceeding, and report it as a precedent by which the House ought to be guided in the present inquiry. Suppose, for instance, their lordships should be told by their committee, that bishop Atterbury had been refused copies of certain documents for which he applied; what respect would be due to such a precedent? The real fact was, that that rev. prelate stood in the situation of having the whole mass of the evidence intended to be adduced at the time of his application before him. The charge had gone through the Commons before it came to that House, and of course he was acquainted with all the particulars when he applied for papers which had been laid before a secret committee. The principle of the refusal was, that those papers which had been referred to their lordships' committee were not likely to be used against him, as he was to be tried on the charges from the other House. He did not know that it was necessary to have an examination of the Journals at all; but if the search was to take place, the whole proceedings relative to any precedent referred to, must be reported. Their lordships would not do justice to themselves, if the report was not such as to give every individual peer the opportunity of judging of the appli- 360 cation of the precedent. For these reasons he would vote against the motion in its present form.
§ Earl Bathurstwould agree to a motion to search for precedents for the purpose of ascertaining if it had been the custom to grant lists of witnesses in cases of bills of pains and penalties, and, he would add, of impeachment.
The question was then proposed from the woolsack, on the motion to search for precedents, as amended by earl Bathurst, when
Lord Hollandagain objected to the motion. He thought, if their lordships searched for precedents on one point they should search for them on all. To search for precedents in one case of an anomalous proceeding, and to be guided by those precedents, without taking into view the irregularity of the whole proceeding, might be doing an act of injustice. When their lordships, therefore, departed so much from the rules of their own House in cases of judicial proceeding, and from the forms of common law, as they did by the bill before the House, they ought to be guided not by precedent or form, but by the rules of justice. The moment they proceeded by a bill of pains and penalties they departed from all the analogies of law in the case of the prosecution, and therefore ought not be guided by them in that of the defence. Their lordships well knew that if it was not regular to grant lists of witnesses in proceedings by a bill of pains and penalties, so neither was it regular to proceed by the report of a secret committee. It was therefore, contrary to justice to look to forms when they professed to be guided by no other compass than what seemed reasonable, right, and honourable to their own minds. He would say that so little was parliament guided by regard to precedents in bills of pains and penalties, that no three cases would be found to follow the same rules. He would repeat, that from the moment their lordships proceeded by bill they deserted precedent, and should afterwards be regulated by what was agreeable to justice, and not be fettered by what was conformable to usage. The noble earl at the head of the Treasury had candidly observed, that the question was, whether her majesty should be allowed a list of the witnesses in the first instance, or whether after the evidence of the charge had been heard, an interval should he allowed her for making her de- 361 fence, with a knowledge of the evidence which she had to contradict or invalidate? If precedents were to be searched for, therefore, they ought to extend to this point, and all others connected with proceeding by bill. If there was a committee appointed, it would not, therefore, have his concurrence, unless its inquiries were to be more extensive than those proposed for it.
§ Lord Aucklanddeclared, that his vote on Friday should be guided by a wish to see substantial justice done. The House had hitherto proceeded in an unprecedented manner; and if the granting of the list of witnesses was to be refused on the ground of precedent, he wished their lordships had been equally alive to the consideration of established form when they appointed their secret committee. If their lordships were to disregard rule on the side of the prosecution, they should take care that substantial justice was done without regard to form in granting facilities for defence. He was against the motion, unless it was made to include an inquiry into all the proceedings relative to bills of pains and penalties, as well as into the point of granting or refusing a list of witnesses.
The House then divided on the amendment of lord Bathurst: Contents, 18—Non-contents, 10—Majority 8.