THE QUEEN—MOTION FOR A LIST OF THE WITNESSES IN SUPPORT OF THE BILL OF PAINS AND PENALTIES.

HL Deb 14 July 1820 vol 2 cc428-72

Lord Erskine

rose and said:—My lords; having already given my opinion to your lordships upon the important subject now appointed for final consideration, and, at the same time, my reasons for entertaining it, I shall now detain you but for a very short time. I introduced it before on the sudden, in consequence only of what had immediately before been suggested by a noble friend not now present (earl Grey), whose opinions are always worthy of the greatest attention, and which stand in the highest place with me; but there being then no question before the House, I gave the notice which now brings us together; and it is not my wish that your lordships should depend upon any argument of mine, but that it should rather serve as an introduction, to draw out the sentiments of others to prepare you for a just decision.

When the matter was last before us, the noble earl opposite (lord Liverpool) observed, that there were two modes of proceeding; either after some previous information to her majesty to proceed de die in diem at some future period, or after the witnesses for the bill had been examined to adjourn for whatever time might be reasonably required for proceeding on the defence; and the noble earl then said, that he thought the latter course was greatly to be preferred; but I did not then collect that he had decisively made up his mind on such preference; and as he is a person of an enlightened judgment, I can-not but think that, on reconsideration, his opinion may be changed; and if I had not believed this to be probable, I should have paused regarding my motion; being desirous that there should be no public difference of opinions amongst us before the trial should commence.

The course I mean to pursue will be shortly this: I will first advert to the practice of our criminal courts, and particularly as regulated in cases of high treason by the act of king William: and I shall then submit to your lordships, that the principle which governs this excellent statute, as well as all the common law rules of trial, for the protection of innocence, apply with tenfold force to the bill before the House.

The reason, my lords, of the high privileges conferred by the statute of king William, may be best illustrated by the cases to which they are confined.—They do not extend to all indictments for high treason, but to those only of the highest order, in which the state standing in a manner for its conservation, may be expected to put forth all its power, and to exert all its influence, against the accused. There is then no equality as in other cases between the Crown and the person whom it impleads, and he is therefore, to employ the expression which I did the other day, and which I then remembered to have used also, when at the bar—"He is covered all over with the armour of the law." There must first of all be ten days between the delivery of a copy of the indictment to the prisoner, and his trial, that he may have advice upon any objection in point of law that may appear upon the record; and the same period must elapse after the delivery to him of the names and accurate descriptions of all the jurors who are summoned to try him, that, beside such exceptions to any of them as he may be disposed to make for causes to be supported by proof, he may be prepared also, even without cause shown, to reject them by peremptory challenge; and, that such advantage may be more effectual, or, in other words, that the shield against power may be more protective, he has a greater number of peremptory challenges than are allowed in any other case. He has besides, for the same length of time before the day when he is to stand in judgment, the names, and accurate descriptions of all the witnesses who are to be examined against him, that he may know their characters and conditions, as clues to cross-examine or contradict them, if, under the influence of government, they shall depart from the truth; a privilege which, in my own time, and within my own personal knowledge, has saved the lives of the innocent. Yet this is not all; when even a mistake is made in the list of the witnesses, the Crown must abide by the consequences, to prevent any frauds upon this admirable law of reason and justice.

Having stated the value of this last protecting provision, I must here advert to the remark made the other night by my noble and learned friend on the woolsack, upon my not having then insisted that your lordships should be strictly bound by it, if farther evidence, as admissible in other cases to rebut matter in the defence should be necessary for the Crown, which he seemed to consider as the best, and a sufficient answer to what I am now about to propose. No man entertains a higher opinion of the talents and learning of my noble friend than myself, and I always feel his force the most when he is driven on the sudden to draw from the ample stores of his long experience; but for that very reason I was the more persuaded I was in the right, when even he could produce so little argument against me, though it was all that could be said. How, my lords, could it possibly be considered as a concession on my part, or as proceeding from a sense that the statute of king William gave too much, by my not insisting upon its binding obligation throughout? How could I have sought to bind you positives by the statute, when I could not but know that there was an express exception to proceedings in parliament on the very face of it? It was my business, therefore, when there was no positive rule to bind you, to ask what you were most likely to grant; and I only urged you, as I now most earnestly do, to govern yourselves in your high capacity, which can receive no positive rules from the law, by adhering to those which you have your- selves enacted for the safe administration of justice, and which for more than a hundred years you have compelled the highest judges to submit to in their courts. But the best answer occurred at the moment to a noble friend sitting near me (lord Holland); but not wishing to trust myself with recollecting what he then said to me, I will leave it to him, who, I hope, will state it himself. We cannot, therefore, deny the justice, and even the necessity, of yielding to what is now demanded, without showing that the case before us is not within the principle of the act of king William, which I undertake to demonstrate that it is.

I know, my lords, that this statute has its adversaries and defamers. I do not allude to my noble and learned friend, who never complained of it on any of the State Trials; but I know that there have been nibblers at it, and grumblers against it—I know that it cannot always smoothly accord with the headlong violence of suspicious and angry power; but he must be a bold man, nevertheless, who shall venture to repeal, or even to touch it. The people of this country are (as they ought to be) most loyal and affectionate to their government; but I think too well of them to believe that they would quietly submit to have such a mighty safeguard subverted, after the happy experience of it for so many years. When governments make just concessions to enlightened freemen, and for more than an age abide by them, they must never think of retracing their steps. In such cases, Vestigia nulla re-trorsum. We have lived, my lords, in times when we have seen principalities and powers overthrown; but let the principles of our own free constitution be only held sacred and acted upon. and we have nothing to apprehend. This, at last, is a belief which rests upon the universal history of mankind.

Before we look to the ordinary proceedings of our criminal courts, where the statute of king William has no application, let us see whether it does not apply in principle with ten-fold greater force to the bill we are shortly to be engaged in, than even to trials for high treason, for the regulation of which it was specially enacted.

In the first place, the bill before us is not only a state prosecution of the highest order, but one where the power and influence of the government may be presumed to be active and predominant in a very extraordinary degree.—In most cases of high treason, the Crown and its ministers have no personal wrongs to stimulate resentment, nor any other interest in conviction than a general interest in the safety of the state; yet that has been thought for above a century, to be a sufficient foundation for the statute; but here the king himself is the person charged to be personally wronged, and might be said, but that the cause assumes a national character, to be personally the accuser, as the illustrious accused is charged directly in the bill "with a violation of the duty she owed to his majesty," not as his subject, for the act charged is no crime in law, but in violation of her duty as his wife.—This, my lords, gives an increased force to that great fountain of power and influence against which the accused has to contend; and it is impossible to separate the influence of ministers from that of the Crown. Let it not, however, be thought, that I am charging, or even suspecting, the sovereign of making unworthy exertions in the prosecution even of this personal wrong, or his ministers of a corrupt acquiescence in them if they were exerted; but the general presumption of law is entirely founded upon the probable abuse of power in trials of offences against the state; and it is impossible to resist or evade that presumption by arguing against any probable injustice in any particular case, without overthrowing the very principle upon which the law you yourselves have enacted, and have so long abided by, can alone rest for its support. I am well aware that no rules can bind us, but how shall we escape from reproach, if we refuse to abide by those rules which we have made binding upon others, if the reason for their obligation applies equally or more forcibly to ourselves?—which I am in the course of endeavouring to prove.

The generality of the charge also, in the preamble of this bill (independently of its being against the state) adds most imperiously to the demand of the statute of king William. It is in effect a criminal charge, or it is nothing; yet it in no way resembles any other criminal charge ever exhibited here or elsewhere, by any court of justice; but above all it has none of that precision which is the very characteristic of English law. Her majesty is not charged with any specific act of adultery, but with an adulterous intercourse, and this not at any specified time or times, but during her whole absence from England for six years together, which exposes her to criminating evidence not only as to acts, but general deportment on every one day or hour of the day throughout all that time; and this also not confined to any given place or places, though it was known that she had not been stationary, but constantly travelling through countries remotely distant from each other. I do not mention this as an arraignment of the framers of the bill, because not having sat upon the committee, and being a total stranger to the materials brought before it, I am not qualified to enter into the consideration of any difficulties that might have opposed a different course. It is quite enough for my view of the subject, that this unparalleled generality of accusation creates an unparalleled difficulty of defence, and thereby gives an unquestionable claim to know indirectly, by having a list of the witnesses, what ought to have been communicated directly, by specific allegations of the crimes she was to answer for.

In all cases of high treason under the act of king William, and indeed in all others independently of that statute, and in every indictment whatsoever, the particular treason, felony, or misdemeanor, must be specially set forth; so that even when lists of the witnesses are not granted by law to the prisoners, yet, as our criminal jurisdictions are universally local and consequently extremely limited, nothing can be more obvious than that the bulk of the witnesses may generally be known, the principal ones being to be found on the back of the indictment; and when they are thus known, their characters are readily known also, from their residence near the spot, and are sure to be sifted not only by relations and friends, but through the characteristic zeal of a generous English public:—but here, my lords, as the charges are spread over an immense and undefined space, and though out every day of a six years absence from this country, it appears to me, that, instead of denying any one indulgence of the statutes, others rather should be added, upon the universal principles of justice.

The same precision, my lords, attends all the proceedings of the ecclesiastical courts, and your own jurisdiction over them, in charges similar to those now before us. The libel in a suit for a divorce not only specifically sets forth the minutest history of the adulterous connexion which in this bill is charged with unexampled generality, but directly charges, both in time and place, the specific acts of adultery, and as they must be committed besides within the limits of the court's jurisdiction, the accused can be at no loss to anticipate by what testimony they are to be impeached, arid the characters of the witnesses are for the same reason within immediate reach. The ecclesiastical courts, besides, have no such jurisdiction as your lordships in support of this bill are called upon to exercise; they can only separate the parties, but cannot dissolve the marriage; and when for that purpose a bill is brought into parliament, an action (when it is practicable to prosecute it with effect) must first be brought against the adulterer, and followed up to judgment, by which again the accused is made fully acquainted with the main body of the proof; and after all these advantages it must be gone over again at the bar of this House before any marriage can be dissolved; and what strengthens the analogy, these last cautious proceedings, though not enacted by any general law, are enforced by our own standing order, to prevent almost the possibility of injustice.

In the case before us; my lords, there seems to lie a still additional claim upon us to comply with what I am now submitting to your consideration. Her majesty (as I have just said) is not charged with any specific acts of adultery, but in the most general terms with an adulterous intercourse, and with one individual only, whose station required his constant attendance on her person through the many countries she visited. Had the charge been of adultery committed with one or more persons, most probably of distinguished rank, from her own illustrious station, the very specification of such adulterers might have led to the knowledge of time and place, and have given some kind of clue at least to the probable nature of the proof; but in the present instance, it is most obviously and utterly impossible to anticipate, within years or within hundreds of miles, the assaults to be made upon her acts, or even upon her general deportment, which, without any example, she is called upon by this bill to answer for and to defend, and here too let me add, that if the adulterous intercourse, to use the language of the preamble, though not directly proved, is to be inferred from a "licentious, scandalous, and disgraceful deportment," throughout a long period of time, and in various unspecified countries, that very circumstance enlarges the forum, and even changes the quality of the accusing testimony in a very extraordinary degree, and supports, in the same proportion, a more indisputable claim to know when and where such unexampled charges of unspecified acts of indecency are intended to be proved, that they may be encountered by contrary proofs.—I admit that where strangers are admitted to an improperly familiar intercourse with a lady so illustrious, a fair inference may follow; but where the charges are against an attendant, the attentions of duty may be more difficult to be brought within the presumptions of guilt. I am not trying the cause, my lords, and I desire it may be always remembered that I am in no manner presuming to anticipate the results of an inquiry, but am only proposing that we should be prepared to enter upon it with honour and with safety.

Another and the last analogy between this bill of Pains and Penalties and the allotted punishment of treason, when the statute of king William has application, still remains untouched: I mean, the severity of what is to be suffered. And what is that, my lords? What is death, which in a moment ends us, to the lingering and degrading suffering which the accused under our judgment may be sentenced to endure—Born a princess of the same illustrious house as the king her consort, and raised to wear the imperial crown of the greatest nation that ever flourished upon the earth, she may be suddenly cast down to shame and sorrow, not only excluded from the society of her exalted kindred, but from the esteem and affection of the whole female world! For my own part, my lords, this appears to me to be the heaviest and most intolerable punishment which any human tribunal can inflict.

Now, my lords, I am fully aware, more especially after what has already passed upon this subject, that, to all I have been saying, one very short and plausible answer may be given, viz. that a bill of Pains and Penalties is a very rare and a most anomalous proceeding, which cannot be brought to the standards of our courts of justice, and that there are, therefore, no precedents in the high court of parliament to vindicate what is asked from the House. It might be answered to me, in the language of the poet, Why has not man a microscopic eye? For one plain reason, man is not a fly. I admit, my lords, that this might be a fair way of mocking my argument, if I were endeavouring to bind you down strictly to all the forms of the inferior tribunals, without showing at the same time that common justice equally demanded their application, and that without applying them you cannot possibly be just.—All I ask is, that you may observe them, as far as I can prove that you can consistently with the fullest justice, due also, and certainly equally due, to the prosecution of this bill. Let it be shown that the giving the list of witnesses, as I have asked it, though given for above a century by the statute of king William, will endanger or disturb the fair right of prosecuting this impending bill with just and legal effect; let this only be shown, and not even as a certain consequence, but according to any probable or reasonable conclusions, and I am instantly silent; no vote of your lordships shall be called for; my motion shall be withdrawn; but when I am thus supported by all the rules of a most justly celebrated law, as well as by the most obvious principles of justice,—and when the absence of precedent is disavowed as being in itself an answer to what is asked, the burthen of the proof is, in the mean time, shifted from me, and must be ca3t upon those by whom my motion shall be opposed.

To prove to your lordships that I am sincere in this concession, I repeat again, that I seek to involve the House in no difficulties, but am pointing out, on the contrary, how they may be instantly averted, only by yielding to what is proposed. The noble earl opposite (lord Liverpool), when the subject was first mentioned, was pleased to say, and, I have no doubt, with sincerity and good faith, in his view of it, that no injury could possibly arise to the illustrious accused by the course he proposed to pursue, because as he said, there could be no doubt that upon the close of the evidence in support of the bill the House would consent to any reasonable adjournment which might be asked in preparation for the defence; and I have no doubt that such delay would be granted;—tout surely, my lords, you cannot but see that nothing could be so unjust as such an adjournment, more especially when you might at once assimilate our proceeding to the ordinary course of trial by yielding to what is proposed, and which you are the more bound to yield to, when no kind of clue is given beforehand even to guess at the accusing testimony. Upon what ground then, my lords, and with what safety to the accused, when such unexpected examinations are finished on the part of the Crown, can they be suffered to go forth to the public as even probable facts (which no exertion of our authority can prevent), creating a strong, perhaps an incurable, prejudice, although the witnesses have not been subjected to that examination by the accused which the law of England, independently of all indulgences by statute, imperiously and universally demands? Upon what principle, my lords, should such supposed facts, after having been thus suffered to circulate during perhaps two or three months adjournment, be reverberated upon your lordships, who are afterwards to decide upon their falsehood or their truth? How, besides, are those accusing witnesses, who have thus given their testimony, to be disposed of in the mean time? Are they to be dismissed, or suffered to depart without having been cross-examined? And how, with every legal restraint, are their returns for contradiction, perhaps for punishment, to be secured? And, besides this danger, would not cross-examination, after such an interval, come too late, when impressions, however fallacious, had been made? And where, also, are your lordships to be during all this time? When a criminal trial, of any description, extends beyond one day, the jurors can have no access even to their own families; and, without consent must be rigorously inclosed. Will you consent, my lords, to this restraint? No: you will go forth into public, and your honest judgments may be infected by the impressions of unsifted testimony surrounding you in all directions. You must go besides into the very court of the king, who is justified in having the strongest feelings on this most unhappy proceeding. It was said the other night by a noble friend of mine (lord Ellen-borough), that your lordships have a double character, being not only legislators but councillors of the Crown; and that both those duties must be performed. This is perfectly true, but does it not increase the difficulties which, without the utmost caution, may affect the discharge of our duties as impartial judges.

Here, again, let me say that I disavow all personal suspicions of any of your lordships, even in this anomalous case; but what has your honour, or my trust in it, to do with this subject? The principles of universal justice, and, above all, the immemorial constitution of our country, refuse and condemn such a perilous confidence. With all your ranks and dignities you are but men; and all the safeguards against human infirmities, which the wisdom of ages has provided, apply at this moment to you more particularly than to any other tribunal, since it is so clearly in your own power to avert the main obstacle to an impartial judgment.

In saying this, my lords, I cannot avoid adverting to what has been called the Milan Commission, upon which being wholly ignorant of all that belonged to it, I shall make no comment, except one, which directly and unanswerably applies to the present occasion. If it was unjustly executed, it might affect the testimony taken under it, when it came to be produced hereafter; but of that I know nothing, and it is wholly beside the question now before us.—Undoubtedly, when even a private man suspects the fidelity of his wife, he has a right, by every fair inquiry, to see his way before he rushes into a court of justice; and in a case like this, when such an inquiry assumes a national character, it may be of a different description; but of whatever description this commission may have been, and supposing it to have been most fitly executed, it cannot but have secured the knowledge of all the facts that are to be resorted to, and of the witnesses who are to support them, and consequently removes all possible difficulty in making the communication, which is now submitted to the House.

These are my sentiments; and no man, surely, can reasonably accuse or suspect me of any leaning, beyond that of justice, to the cause of the illustrious accused: my leanings, if I could suffer their intrusion, would rather draw me to the opposite side: all your lordships must very well know, that I have spent a great part of my life in the service of the present king. I remember indeed so well, and feel so strongly, the remembrance of the warm interest taken by his majesty in my prosperity and happiness, in some of the most important periods of my life, that I could not be unjust to him. The habits of my professional life are, I hope, a useful shield against every bias whatsoever. I was bred, in my earliest youth, in two professions, the characteristics of which are honour; but, after the experience of very many years, I can say with truth, that they cannot stand higher for honour than the profession of the law. Amidst unexampled temptations, which through human frailty have produced their victims, the great bulk is sound, and the cause is obvious—there is something -so beautiful and exalted in the faithful administration of justice, and any departure from it is so odious and disgusting, that it raises up in the mind a perpetual monitor against the accesses of corruption.—The same protection ought to apply also to us as the highest of the judges; but giving credit also, as far as I ought, to the influence of high birth and dignity over minds not utterly corrupt and abandoned, and supposing that we could be safe in dispensing with the ordinary securities for justice, which no man ought rashly to pronounce; yet let us consider, my lords, the possible effect of such an uncalled for, unnecessary dispensation. When tin's House shall have deliberately and solemnly decided that the restraints, imposed by common law and by statute, to shut out all the approaches of mistake, influence, or corruption, may even, without necessity and without danger, be set at nought; may it not blunt that diffident reserve and caution which are the very characteristics of all our judicatures; may it not lead to the disregard, perhaps, even in the end, to the repeal of those admirable and now ancient rules, by which, though we have enacted them to govern others, we ourselves have refused to be governed?

Believe me, my lords, I feel upon this part of the subject, so inseparably connected with the illustration of our country, much more than by any words I can express. It may be superstition, perhaps, but J cannot alter the nature and character of my understanding; which, as long as I can look back, has dictated to me as a comforting truth, that the Divine Providence singles out particular nations, and perhaps even individual men, to carry on the slow and mysterious progress of the world, and for that purpose did eminently distinguish our country.—Though placed on the very margin of the globe, it has been its example and its protector, spreading the blessings of a pure religion and of equal laws to the uttermost ends of the earth. My impression upon this, my lords, has ever been, that such an unparalleled dominion is but a more exalted trust; and that if we fall off from the character which bestowed it, and which fitted us for its fulfilment, we shall, like sentinels who desert, or who even sleep upon their posts, be relieved and punished. Let us then walk in the paths of our best times; let us stand by the principles of the Revolution, which so happily made us what we are; and by adhering to which we shall remain what we ought to be.

My lords, I hope that what my duty to the House has compelled me to press upon it, cannot have given pain or offence to any one of your lordships. In one thing I own I am a trespasser, as I promised in the beginning to be very short,' but the best way of obtaining pardon is by saying that my transgression is at an end.—Lord Erskine then moved to resolve,

1st,"That a list, of witnesses, intended to be examined in support of the Bill, be forthwith delivered to her majesty's legal advisers, to enable her to prepare for her defence.

2d,"That the delivery of such list of witnesses shall not exclude the examination of any other witnesses, for the purpose of rebutting any evidence which maybe given On her majesty's part on her defence.

3d,"That a copy of these Resolutions be forthwith sent to her majesty."

The Resolutions being read,

The Lord Chancellor

rose. He assured their lordships that never in the whole course of his life did he engage in a duty which upon many accounts was to him so painful and embarrassing. Disagreeable, however, as the duty was, he was bound by what he owed to their lordships, by what he owed to the constitution, and by the reverence which he entertained for the due administration of justice, to obey the dictates of that duty, no matter what consequences his conduct might tend to bring about. He was very unwilling to advert to all that had passed with respect to this matter—he would consider the attempt to establish an analogy between this case and one of high treason, as abandoned—and all arguments which might be incidentally put forward with a view to revive this point, he would consider as having gone for nothing. Even the report which had been just made to their lordships, he would not advert to, because, whatever might be the effect of the inquiries of the committee after precedents, he was never of opinion, that in order to direct the course of the administration of justice in the present times, we should refer to those days when accused persons were not allowed the opportunity of defending themselves, either as to the law or the fact of the case on which they stood charged. It must be perfectly obvious, that to attempt to trace precedents in such times which were to govern the proceedings of modern days, was a course against which every sound principle of British law and reason revolted. It was exceedingly true, that the object of the present charge was of a high and illustrious character, and required every attention which it was in the power of the accusing party to bestow; but the principles of justice must be rigidly pursued. He was sorry, he regretted sincerely to see attempts made to establish a distinction between this and all other cases of criminal accusation, in virtue of the station of the illustrious defendant: we were all equal in the eyes of the law, and it was the proud characteristic of British law, that the meanest wretch who was placed before the bar of a court of justice, was equally entitled to its tenderness as the highest subject of the realm. The poor man ought to be protected as well as the high; for he could not forget that The poor beetle that we tread upon, In corporal sufferance feels a pang as great As when a giant dies! But coming immediately to the point under consideration, no man could deny' that when a list of witnesses was given to a defendant, that defendant had acquired a very great advantage, and in many cases it was a fair advantage, in order to enable counsel to cross-examine the witnesses. It was frequently possible for counsel, by obtaining a previous knowledge of the witnesses names and residence, completely to blast their evidence—reduce it to ashes—and that too merely by a cross-examination. But in the consideration of the course which justice pointed out for the adoption of their lordships, they were to calculate first of all, whether or not a particular mischief was to be endured, in order that a general mischief might not be effected—whether or not, in order to accommodate a particular case, a rule was to be established, according to which it was impossible that justice could be administered in general cases. With respect to the statute of king William, to which the noble and learned lord had adverted, he (the lord chancellor) was not prepared to admit the imputation of being "a grumbler," to use the noble and learned lord's phrase, against it. The noble and learned lord he was sure would not say that he was. But he would recommend to their lordships to read the sentiments of a great lawyer, and a whig besides, Mr. Justice Foster, with respect to this statute. "The statute," said Mr. Justice Foster, "whatever may be its benefits in particular cases, works great injustice." The noble and learned lord, indeed, admitted the justice of this opinion, in the resolutions which he had submitted to their lordships; for he had altered and improved the statute. He did not object to that, for if the statute was excellent, the improvement must be more excellent still; but it proved one thing, which was this—that if the principle of the statute was to be adopted, they ought, even in the noble and learned lord's own opinion, to do more than was done by the statute. Upon the occasion in which it was his (the lord chancellor's) misfortune to be called upon in his situation as attorney general, to prosecute persons for high treason, he had felt it his duty to conduct the prosecution with a view to that statute, and he must say, that he found it very difficult to do his duty, regard being had to that statute. He was much abused at the time (and he honoured the feeling which operated in favour of the accused at all times) for the way in which he had executed his duty; but being called upon to prosecute, the statute told him that he could not examine a single witness whose name was not in the list previously furnished to the defendant. He found, that if in writing the name of a witness (a case which had occurred), the letter A was substituted for the letter O, though that witness was the most important, and, indeed, the main one, upon whose evidence the whole case rested—still he could not be called, in consequence of this misarrangement of the letters of his name. It therefore became the business of the attorney-general, not only to foresee and provide against all probable defects, but also against those which, by human possibility, might occur.—From the experience which he had had, and from the consideration of the facility of such an occurrence, he knew that it was possible that a successful defence might be made in cases of high treason, where a true defence could not be established; for although the defence which was imposed upon the court and the jury might be known to half the individuals present to be a tissue of falsehood, yet if the conductor of the prosecution had not foreseen the nature of it, he could not call a single witness to contradict the false evidence adduced. With all these inconveniences flowing from the statute, he must yet be permitted to say, that he would not part with it; and had the noble, and, he would be permitted to say, the learned lord near him (for learned his noble friend certainly was in the law) been in the situation to experience the injuries which the statute sometimes inflicted upon justice, he would undertake to say, that that noble lord, who was as good-natured and as kind a man as there was in the world, would be much more inclined to grumble than he (the lord chancellor) had been in the course of his office. However, as he had stated before, with all its inconveniences, all its injuries, all its abuse before him, he would still say, "this is the law as it stands, and as it has stood—it is consonant to the opinions and feelings of the people, let it not be disturbed." But it was remarkable in the whole argument of the noble and learned lord who moved the resolutions, that he was compelled to dissent from the propriety of the doctrine of that statute itself, for he had said in his second resolution, True, the law says, you must furnish a list of the witnesses in proceedings for high treason; but stigmatize those proceedings by adopting this resolution, because it is obviously unjust not to allow other witnesses to be called, than those whose names appeared in the furnished list, which the statute does not permit." Although, undoubtedly, it was a most legitimate mode of reasoning to consider what the great principles of justice require, and how far the wisdom of ages had adopted proceedings conformable to those principles, yet he would confidently ask whether the wisdom of any former age had ever suggested what was now proposed? In looking to the practice of past ages, he would go no farther back than the Revolution. And here he should beg again to recur to the resolutions of the noble and learned lord. The noble and learned lord had pressed their lordships to assimilate their proceedings as much as possible to those of the courts below. He (the lord chancellor) concurred in the recommendation, the more their lordships' proceedings were likened to those of the courts, the more partial would he be found to them. But in acknowledging this opinion, would he agree that parliament should divest itself of its peculiar functions, those functions intended for the decision of cases in which other courts were incompetent to do justice between the individual and the state. Their lordships would here remark, that when the statute of William passed, no provision was annexed extending its operation to parliamentary proceedings—nay, parliament went farther; for, by one of their acts, the act of 20th George 2nd, they declared not in express terms, but in substance, that the assimilation between the proceedings in parliament, and those of courts of justice, should go no farther than a permission to the defendant to be heard by counsel as to the law and the fact of the charge against him. No mention of, no indirect allusion, ever was made to granting a list of witnesses; and here he would ask of the noble and learned lord, than whom no man was more intimately acquainted with the proceedings in the courts of law, what would become of the civil and criminal administration of justice, if it was adopted as a general rule to prevail in all cases of criminal and civil process, that a list of the witnesses under the conditions annexed to it in cases of high treason, should be furnished on both sides, each to the adversary? No roan was better calculated than the noble and learned lord, from his long experience of viva voce examinations, and his penetration, to determine the extent of mischief which such a regulation would introduce. The reason why the rule was not extended to all cases of accusation was this—that it could not be allowed with safety to prevail in such cases. Every vestige of justice would be destroyed by it. The noble and learned lord admitting in effect this principle, asked of their lordships to make an exception of the present case—but why, upon what grounds, or what pretence, the noble and learned lord had not stated. The noble and learned lord had spoken of the Milan Commission. Of that proceeding, however, he (the lord chancellor) would say nothing; but he felt that it would not be denied, and particularly by the noble and learned lord, that an ex-parte inquiry, conducted as that inquiry had been by persons of honour and integrity, might sometimes be the means of averting a most painful investigation. The noble and learned lord had argued as if this case might have been carried on more properly in the ecclesiastical court. It was a case, however, which could not be sent to that court. How would their lordships enforce the trial? Would they order the supreme ordinary of that court, the acknowledged head of that court to do penance in a white sheet? He was at a loss to discover by what possible course the present case could be brought into or confined to the jurisdiction of that court. In all bills introduced into parliament for pains and penalties, it was usual to state the offence committed, in a similar manner with the present; in some cases the persons charged might be multifarious, but in the present the crime imputed was confined to one individual. The practice of parliament was clearly against the motion; and the question therefore was, whether, under all the circumstances, their lordships would sacrifice that principle by which they were governed in the general administration of justice, and especially of parliamentary justice, to the claim of a particular individual in a particular case? He was convinced that a great and essential constitutional principle would be sacrificed if the petition of the queen were complied with. If they merely took the practice of the courts below as their guide, he felt it would be inconsistent with the duty they had to perform. With these sentiments he did not say he should meet the motion with a direct negative, but he certainly must say with whatever reluctance—whatever pain of mind—he could not give it the sanction of his vote.

The Marquis of Lansdown

considered the decision of this question important, not merely as it respected the illustrious personage implicated in the proceeding. The impression with which he had entered the House had been most materially strengthened by the speech of his noble and learned friend, which was one of the most convincing, calm, and dispassionate he had ever heard within the walls of parliament. He felt no inconsiderable degree of satisfaction, that the motion now brought forward had been announced by his noble and learned friend (after an incidental conversation, and not a debate as the noble and learned lord on the woolsack had intimated) before any application had been made on the part of the queen; and he hoped to be able to convince the House, that, in justice to her majesty, as well as in justice to the accusing party represented by the noble lords opposite (to whom he did not attribute any wish contrary to the administration of the purest justice), and in opposition to the feelings of no party whatever (unless it consisted of those who were desirous of seeing obstacles raised, and difficulties created, that would cast a slur and a stigma on the proceedings of the House) no resistance ought to be made to the resolutions of his noble and learned friend. Much had been said regarding precedents and analogy; and a long report respecting them had been read that night at the table; but he was prepared to contend that that report conveyed no information on which, with satisfaction to themselves, their lordships could act. It had been truly said, that if this great case were one to be governed by precedent, it would well become the House to institute an inquiry into the whole of them, and to collect all the information they contained on bills of this nature. No such suggestion, however, had been offered by those who originated this great charge, and they had most fitly abstained from such a proposition. The noble earl had manfully and rightly stated, that the House on this question was not about to follow, but to create a precedent; and, in fact, to make a new law, applicable to cases of this magnitude. He (the marquis of Lansdown) admitted—for he was bound to do so—both that there existed no precedent, and that no precedent had been followed; and he would defy any man to point out a single case against an illustrious individual which had been dealt with in the manner, and according to the forms, observed in this instance. There was no case of a bill of pains and penalties preceded by the inquiries of a secret committee, which had originated in that House; and he made this statement to show, that those who brought forward this measure—those who acted as accusers, were compelled, from the first, to abstain from referring to all precedents, and to rely on the particular circumstances of the case. Was it not, then, rather too much for those who had induced the House to abandon all precedent, and to violate all analogy—who had prevailed upon it to put to sea on this perilous voyage of discovery without compass or landmark—now to contend in favour of that very course which they had themselves deserted? From the speech of the noble and learned lord on the woolsack, it would be supposed that the House was now engaged in something conformable to the general law of the land, with its settled maxims and rules, its rights and wrongs, guarded and fenced round by all those securities provided by the study and wisdom of our ancestors. The truth, however, was, that parliament was now exercising its own unquestionable functions; but if from former precedents could be collected any fountain or stream of justice, working itself cleat, and enriching itself in its course, becoming at every turn more settled and more effectual, he should be the first to call upon the House to look back, and to justify itself by such a retrospect in the performance of that particular act of justice it was now called upon to discharge. It appeared, however, that such precedents as could be found were either totally unjustifiable, or justifiable only by the necessity of the case; and he would ask whether the House could be bound by the scattered and discordant materials discoverable in its Journals? Was it fair to require them to be bound by rules in a case which was not referable to any known rule, and to draw from those exceptions to all law an imperfect rule by which they should consider themselves bound? The way in which all great writers, all constitutional statesmen, had Considered bills of pains and penalties was the very reverse of the view taken of them by the noble and learned lord on the woolsack. Hitherto it had been always said, that they were particular acts, justifiable only by extreme necessity. Blackstone, one of the most learned, industrious, and in some respects philosophical writers upon the laws of England, had delivered a very different and deliberate opinion. The moment he mentioned "bills of pains and penalties," he added, "I speak not of those; they are pro re nata; subject to no law, and referable to no law." Among the numerous compilations and digests upon every head and in every department of law, which at present loaded the shelves of students, where could be found the lawyer who had been so absurd as to endeavour to reduce to one head, or to consistent practice, the various courses pursued as to bills of pains and penalties? Even in this age of book-making, more especially of law book-making, such a desperate attempt had never been undertaken. The reason was, that all these cases arose out of circumstances that could not be anticipated; they were founded upon no precedent, and it would be just as rational for an astronomer to decide the erratic path of every comet visiting our system, as for a lawyer to define the rules applica- ble to bills of pains and penalties. To this extent, then, their lordships must admit, that as bills of this kind were generally adopted in opposition to the known existing law, to accomplish the ends of justice not to be attained in any other way, when they were driven to such a course, they would be bound to deal with the measure in the manner most calculated to vindicate the rights of all parties. It was because it was impossible for the accused party to meet any particular charge, or to examine any particular witness, with effect, that his noble and learned friend had introduced this motion, and had entreated the House to look at the particular circumstances of the case of her majesty. All precedent being disregarded as inapplicable, the House was justified, in the first place, in taking into its view what course would best contribute to the substantial ends of justice; secondly, it had to consider what would enable the House to reach those ends with the least unnecessary delay; and, thirdly, what was the mode of attaining them with the greatest degree of facility and convenience? As to the first of these questions, nothing had been stated which would lead noble lords to think that the cause of justice would be injured by complying with the wish of her majesty to be furnished with a list of the witnesses. On the contrary, he was prepared to show that the cause of justice would be promoted by avoiding that which was the greatest evil that could be encountered—an interruption in the proceeding, between the accusation and the defence. On this point he would appeal to the noble and learned lord on the woolsack, and to every tribunal in the country, which had uniformly held, that it was of the utmost importance that the party under charge should not be prejudiced by the evidence of the prosecution going forth to the public before the means of contradicting it, as far as it was capable of contradiction, had been afforded- Let it be recollected, too, that this might be turned both ways—against the accused and the accuser; because, though it was true the accused party might suffer from the uncontradicted proof of guilt, still, in an inflamed state of the public mind, it might recoil upon the accuser, if the adverse counsel had it in his power to state, that had the means been allowed, by granting a list of witnesses, he could have repelled every one of the assertions, and discredited every part of the testimony on behalf of the prosecution. It therefore became noble lords on the other side to beware how they incurred this not less imposing though very opposite danger, which was only to be avoided by bringing the accusation and the defence as near as possible to each other. The question then was, how this object could be attained without inconvenience? In cases of treason alone it was provided by the act of king William, that a list of witnesses should compulsorily be communicated; but the noble and learned lord must know that by sufferance (which of itself proved the convenience), upon every bill of indictment a list of the witnesses examined was regularly endorsed. The proposition of tonight did not call upon the accusers to tie their hands with respect to any subsequent evidence; and, upon the whole, he contended that there was nothing militating in the slightest degree against that solemn and sacred principle which he reverenced as much as any man, that in the exercise of a sound discretion (itself constituting one of the few merits and advantages of the proceeding now adopted), the House might give to the accused party all the benefits derivable from the act of king William; but at the same time reserve to itself the power of calling new witnesses, where they were necessary, and not wantonly obtruded for the purpose of creating delay. It was clear that ministers must be in possession of the names of all the principal witnesses, and must have a knowledge of their character, from the length of time that had elapsed since the evidence was placed in their hands; and, though he would not consent to the introduction of any practical difficulty, he was confident that none such could arise from the concession now required. On the contrary, without reference to precedents, because he (the marquis of Lansdown) did not admit their validity, the noble and learned lord himself would allow, that a communication of the names of the witnesses, and of the specific points of charge, might avoid that much greater evil, of an interruption in the midst of a proceeding, by a delay which the House would feel bound to grant on the mere statement of its necessity. Perhaps that delay might be one, two, or three months. And he would ask any man, whether such a course would not be much more contrary to precedent, much more contrary to all the ordinary rules of justice, and attended with a much greater degree of inconvenience, than would result from complying with the request of her majesty, when, for upwards of 12 months, the accusing party had been in possession of evidence which the accused party required only a month or six weeks to examine and overthrow? Not only would delay be avoided, but, as he had before stated—and it well deserved to be weighed—the House would prevent the possibility of its being held out, after the close of the examinations in support of the charges, and at a period when the public mind was in a state of the greatest inflammation and excitement, that the best means of exposing the foul and impure character of the evidence already adduced had been denied to her majesty. In this interval the whole subject would be canvassed and discussed, and the utmost inquiry and injustice would probably be done to one party, or to both. Upon those grounds he supported the proposition of his noble and learned friend, not as a matter of indulgence, but because he was convinced, that if it should be adopted by the House, it would further the case of general justice, and bring this painful and unhappy case to a more speedy conclusion.

The Earl of Liverpool

said, there were few questions on which he could be more anxious to deliver his sentiments than on that now before the House; because he knew little of himself, and of his own feelings and disposition in a matter of this character and magnitude, if he could allow himself for a moment to doubt on which side the balance ought to preponderate. If, in the appeal of her majesty, or in the speech of the noble and learned lord, any well-founded claim of substantial justice had been made out, he hoped he should have been among the first to give it his consent. He was, however, ready to discuss the question on the general grounds taken by the noble marquis. He agreed that bills of pains and penalties were contrary to the regular course of law; and that the House ought not to be guided in such cases by any precedents, excepting as far as those precedents might be supported by the principles of substantial justice. On a former occasion, he had made this admission to the fullest extent that could he required; he had allowed that no precedents were to be found; but supposing they were all the other way, supposing they universally supported the grant of a list of witnesses, he put it to the House, whether, whatever it might think of the inconvenience of the practice, it would have been easy for it to have rejected this application? On this account he said, that though precedents ought not to govern this case, they formed an ingredient matter of consideration; and if any light could be derived from them, he was anxious that it should be brought into the discussion. The noble and learned lord had directed a great part of his observations, and no doubt very properly, to the analogy between the present case and an impeachment for high treason, and had alluded particularly to the act of king William, which provided that a list of the witnesses by whom the charge was to be supported should be delivered to the party accused. On that question he wished to make a few observations at present. The noble and learned lord had said that several persons on his (the earl of Liverpool's) side of the House grumbled at that statute. Were he asked to declare his opinion upon it, he would candidly state, that though this statute was, in his opinion, liable to great objections, and though he doubted whether the advantage was equal to the inconvenience resulting from it, still he had no desire to disturb it. It was a law which had long existed, and under it justice had hitherto been done to all parties. When the question arose whether an indulgence should be granted to the Crown or to the accused, he would admit that the balance should incline in favour of the latter; but, without looking nicely at this law, it appeared to him questionable whether it should remain on the statute-book. The principle on which it was founded had always been a matter of doubt, not among mere smatterers in law and politics, but even among Whigs, and the greatest constitutional lawyers of the country. The 7th of Ann, ch. 22, had been introduced as an act of justice to the accused, and it expressly enacted, that the provisions of the law should not take effect, until after the death of the Pretender; the consequence was, that for 70 years afterwards, the law remained a dead letter. This statute of Ann, which was made for the purpose of explaining and amending that of William, had been for the first time acted on in the case of lord George Gordon. On the subject of this statute of William, his noble and learned friend had alluded already to the authority of the greatest constitutional lawyer that this country, or perhaps any other, had ever possessed; and he thought it important to call their lordships' attention to the opinion which that great lawyer (judge Foster) a man whose disposition led him to favour public liberty, had expressed on this very statute. He said, that "furnishing the prisoner with the names, professions, and places of abode of the witnesses and jury, so long before the trial, may serve many bad purposes, which are too obvious to be mentioned. One good purpose, and but one, it may serve. It gives to the prisoner an opportunity of informing himself of the character of the witnesses and jury. But this single advantage will weigh very little in the scale of justice or sound policy against the many bad ends which may be answered by it. However, if it weighs any thing in the scale of justice, the Crown is at all events entitled to the same opportunity of sifting the character of the prisoner's witnesses." By this law, which entitled the accused to a list of the witnesses for the Crown, while the Crown could not obtain a list of those for the accused, a great advantage was given to the accused; and therefore his noble and learned friend had truly said, that whatever might be the degree of perjury committed by the witnesses for the accused, it was not in the power of the Crown to bring forward a single witness to contradict them, unless those included in the list of witnesses' names furnished in the first instance. But there was no analogy between the case of high treason and the present case. He was surprised therefore to hear the noble and learned lord say, that the present case, which could be followed alone by the punishment of degradation, was to be compared to treason, which was visited with the punishment of death. He was surprised to hear the noble lord say so, there was no argument in the observation—to a mind full of honour and sensibility, he admitted that degradation might be looked on as a punishment more bitter than death itself, but the law did not enter into those feelings, the law was made for all, and it marked the highest crimes with the highest punishment. He had, therefore, no difficulty whatever in stating, as an abstract principle (without wishing to disturb the existing law as to high treason), that more injustice than real good was likely to arise from the indulgence in question, and for that opinion he had already quoted the greatest authority. It might give the accused the means of preparing a false defence, and it also gave him the power of acting by threats, and intimidation. Thus, instead of forwarding, it waylaid justice; and might prevent witnesses from coming forward to prove the charges alleged against the accused. If what the noble lord said was true, that the hand of power was directed against the accused, well might it be said on the other hand that the power of popular clamour was in favour of the accused, and against the Crown. He was willing to abide by the principle which was held in courts of justice. No more could be fairly asked. If any code of law in this world was deserving of praise, was full of mercy and of tenderness to the prisoner, it was the code of English law. Go to the tribunals of foreign countries—to the new-modelled laws of the continent, new modelled with the best intentions, and for the interests of the people,—but how much were they below the free and humane spirit which pervaded the English law; a spirit so favourable to the accused, whilst at the same time it animated and supported the cause of public justice—which gave equal advantages to both parties, and left even to the unsuccessful no ground to complain. The noble marquis said it was the custom in cases of ordinary crime in the courts below to annex a list of the witnesses on the back of the indictment, and to furnish the party accused, or his solicitor with a list of the witnesses. The fact was not so. The names of the witnesses were only written on the indictment to go before the grand jury; and he himself had known many instances where only a very small number of the witnesses for the prosecution were inscribed on the indictment to go before the grand jury, and many witnesses were afterwards adduced on the prosecution whose names never went to the grand jury; therefore the cases were not analogous. He now came to apply himself to those principles and precedents which had relation to this particular case; and he was prepared to maintain, that the very mode in which the noble and learned lord had put the question respecting a list of witnesses was sufficient to give it a decided negative. If a list was to be delivered at all, it must be a full list; for, if not full and complete, it might deceive the party accused instead of being an advantage. That a full list could not be granted in this case was so evident, that no noble lord had attempted to support such a proposition. The present course of proceeding had been objected to on the ground that an impeachment originating in the House of Commons would have been more proper. But if that course had been pursued, what would be the result—what would become of the list of witnesses so clamorously called for? Why, in cases of impeachment, the Houses of Parliament were entitled not only to examine fresh witnesses, but had the undoubted right to bring forward new charges, and therefore if the mode were adopted which the noble lord called just and constitutional, not only new witnesses might be examined, but even new charges might be preferred. The objection, therefore, on the ground that a proceeding by impeachment would have given the accused the advantage of knowing what witnesses were to be produced at their lordships' bar, was not well founded. Their lordships did not sit there merely to try an issue between two parties with their mouths closed; they sat there to administer great and high powers, and in the exercise of those powers, and in the pursuit of truth, they had an undoubted right to call to their bar whatever witnesses they might think fit. They were not limited to such evidence as the accuser and the party accused might think proper to bring before them. Their lordships might recollect that but a few years ego a cause of great public interest was tried before them, and facts of the greatest importance were extracted from witnesses, not called by counsel at either side, but by some of their lordships. He admitted that there were many crimes which could only be reached by impeachment; but still he would maintain that there was a power of probing testimony in that House which no other tribunal possessed; and, if there was any case more proper than another for their lordships cognizance, if there was any case in which the utmost latitude of investigation was necessary, it was such a case as the present. But the noble and learned lord ad maintained that the course pursued by the ministers of the Crown would create great inconvenience—that it would cause great delay in the progress of this unhappy business; but he (the earl of Liverpool) would say, that even after the list of witnesses were furnished, that list might be found incomplete; many circumstances of great importance might transpire, which might render it extremely necessary and proper for counsel to ask for delay; nor could he see on what grounds their lordships could possibly refuse such an application. He was quite sure, that if he had the honour of appearing before them as counsel for the illustrious lady whose conduct was called in question, he would feel himself justified, under such circumstances, to apply to their lordships for delay. The argument founded on the plea of inconvenience and of delay naturally fell to the ground, because both would follow the course contended for at the other side; who did not propose to do what they contemplated completely; and the consequence, so far from being serviceable to the accused, might be most injurious. He repeated that their lordships would obviate no inconvenience by agreeing to the present proposal. It was not proposed to give a complete list; and by an incomplete one the accused party might be entrapped and insnared. He therefore hoped their lordships would act consistently with the uniform practice of parliament, and not consent to give any list of witnesses. He had shown that, in acting thus, there would be no injustice done to the accused, and that opinion was supported by the great legal authority which he had quoted. He had staled his reasons for thinking that this indulgence would operate not fairly, but most unfairly; and he would leave it to their lordships to judge which of the two was likely to have the greater effect in thwarting the course of justice—the power of the Crown, or popular clamour, highly excited as it was at the present moment. Far was he from wishing that justice should not be done. Let the accusation be fairly and unequivocally set forth; let the witnesses be then heard in its support, and afterwards let their characters or testimony be sifted to whatever extent might be required; let a fair, he would say a liberal advantage be given the illustrious accused to make every preparation for her defence, but let their lordships take care, while securing the full possession of those just opportunities, that they did not go a step further, and adopt a course which, instead of facilitating, was more calculated to impede the attainment of that great object which they all had in view—full and substantial justice.

Lord Holland

said, the conclusion of the noble earl's speech was directly at variance with the principles with which it sat out. The noble earl had just stated his wish that the House should adhere to the uniform practice of parliament in withholding a list of the witnesses, and yet, when he opened his objections to the motion, he had distinctly admitted the argument and the principle of his noble and learned friend, that this was not a case in which the House was to be bound by precedents. Precedent, the noble earl had said in the commencement of his speech, might be an ingredient, but it was not the leading principle by which their lordships were to be guided on this occasion; yet throughout the whole of his speech he had argued that the same rules and precedents were applicable here as in ordinary cases. The noble earl had lauded, in eloquent language, the administration of justice in this country, and had represented it as commanding the admiration of every foreigner. He (lord Holland) admitted the justness of these remarks; but why had the noble earl introduced an eulogium on the British law at the moment when he was departing from it? Let not their lordships "lay the flattering unction to their souls" that this proceeding was to be dignified with the name of British law; it was not law, but an exception to the law. The noble earl had stated the reasons which rendered an adherence to rules and precedents desirable; he had said, and justly, that the House were not to look at the hardship of a particular case, but were to be regulated by general principles; they were even to incur the odium of not doing justice in a particular case, in order to avoid the greater evil of doing injustice in all other cases. But surely the exception could not be the rule as well as the law! How was it possible for them to say to this illustrious individual, or to any accused party—"Your situation is so extraordinary, that the common and ordinary course of law cannot reach you, and we are obliged to deviate from the great fundamental principles of justice in all free and civilized countries?" Their lordships might indeed hold that language to an individual, if the case were one to which ordinary rules were not applicable; but were they to answer an application from the same individual, in the same case, by saying, with something that would look very like hypocrisy, "We are tied down by rules—we know the proceeding is a great hardship on you, but we must consider other cases—we must remember, that, while we are deviating from all precedent, we are establishing a precedent." He implored their lordships to pause and reflect on what they were doing. Were they not converting accusers into judges? Were they not confounding the duties of jury and judges—of petty jury and grand jury? Were they not acting in the threefold character of prosecutors, judges, and jury? And yet they were to say they were bound by rule! by what rule? He remembered a saying of some great and wise man—he believed lord Bacon—at all events, it was more natural to ascribe any thing wise and profound to that eminent writer than to any other; the saying was this—"The forms and rules of law are like the rind and bark of a tree, which, though no part of the substance of the tree, protect it from the inclemency of the weather;" and this remark, he thought, might be well applied to the general rules and principles of parliament. It would be as just to suppose that strength was added to the tree by preserving the bark, as to the laws by preserving exterior forms, without regarding the substance they were destined to protect. He should now proceed to make a few observations on the statute of William relating to high treason. He had heard from his noble and learned friend behind him, one of the most eloquent panegyrics which he had ever heard pronounced upon that great act,—great, as it extended protection to the subjects of this country, and as it held up a splendid example of justice to every nation in the world. He would not be suspected of favouring a party known by the name of Tories; but he must say, though his predilections were not in favour of Tories, that, whatever other political sins had been ascribed to those individuals, the country—he had almost said the world—was indebted to them for that act. It had originated in the recommendation of a committee of that House of Commons by whom the bill of Rights had been passed; but, when first brought up, it had not been acceded to by the House of Lords; and he expected to hear a loud expression of triumph from the other side when he stated that the chief cause of its rejection was the introduction of that clause which enacted that the trial of a peer for high treason should take place, not before a commission appointed by the House of Peers, but before every individual in the House. With respect to the provisions of this statute, it was said by the noble earl, that proceedings before parliament were excepted from their operation; but the noble lord had not adverted to the principle of that ex- ception. A person accused of treason, and prosecuted by the Crown, was supposed to contend against the strong arm of power, and therefore the law wisely and humanely fenced him round with the safeguards provided by this statute. But in proceedings before parliament, which constituted the exception, the law withheld the armour with which it defended the person accused in cases of crown prosecutions, on the principle that the prosecutor was not clothed with the same power. He would now ask leave to say one word as to the calling of fresh witnesses to speak to new facts which might arise in the course of the trial. The noble earl had said, that it would be much better not to give a list of witnesses at all than to give an incomplete one. He was, however, of a very different opinion, and thought, as they were sitting there on a most anomalous proceeding in criminal equity, they ought to give the illustrious party accused every privilege. The noble earl had likewise said, that it was in the case of treason alone that a list of witnesses was given to the accused. This was true to the letter; but he would ask whether, in fact or practice, it was in cases of treason alone that persons knew of the witnesses to be brought against them, and the nature of the accusation which those witnesses were to support? Would the noble earl say that there was one case in a hundred—nay, would he say that there was one in ten thousand—in which the person arraigned came to the bar with so little knowledge (he would not say de jure, but de facto) of the witnesses and the charges against him, as that with which the illustrious personage now accused would come before their lordships? He was willing to rest the success of the motion upon the answer to that question. He did not believe, that when, in other cases, a copy of the bill of indictment was presented to the person under accusation, it was absolutely requisite to give him at the same time a list of the witnesses; but he would put it to any noble lord, whether, when an individual was brought before a magistrate, that magistrate did not confront him with his accusers, or at least show him the information upon which proceedings were instituted against him. The noble earl might draw an ingenious argument from the practice of the courts below, and say that the magistrate was not compelled to have recourse to either of these measures; but even though that were the case, the witnesses and the charge were generally well known to the accused before he was put upon his trial; therefore, in practice, the analogy which had been drawn was in favour of the motion of his noble and learned friend. The noble earl had that night become the champion of the privileges of parliament, and said he would never submit to parliament being bound to any rules except its own. He (lord Holland) held as highly as the noble earl could do the power and privileges of parliament; but he confessed that he, for one, did not exactly understand the rules which had been adverted to by the noble earl; and he did not like to submit to rules whose nature he did not understand. There had been a considerable argument upon the extraordinary functions of parliament. Now he must ask what the extraordinary function was which they had to exercise? It was the function of applying to a particular case a power which the other courts of justice did not possess; he meant their discretion; and he trusted that that discretion would be exercised in such a way as to obtain justice. And this was what the noble earl himself exhorted the House to do. He said that they were not to look to the specific charges before them so much as to the justice of the whole case; and he then went on to prove that the mode of proceeding he had recommended would not produce a greater interruption than would otherwise occur, which interruption was stated to be the principal evil at present. But here he would observe to the noble earl, that he must either argue upon precedents entirely, or else he must throw them completely overboard. The noble earl must not at one moment say that they were acting upon precedent, and, at another, that there was no precedent to direct them. He must also remind the noble earl that many of his arguments did not apply to this case, for they proceeded upon the supposition that this measure was an impeachment, which the noble earl knew as well as himself it was not. The illustrious personage now accused had therefore a right to say to the noble lord, "If you proceed against me by impeachment, follow the precedents which have been established in impeachments. If you proceed against me by common law, give me justice according to the common law. But if you proceed against me in an arbitrary and as yet unheard-of manner, which partakes neither of the nature of an impeachment, nor of the process of the common law, give me the justice which belongs to the case. You have taken a great discretion upon yourselves; exercise that discretion as you ought." The noble earl had said (and it was much to his honour) that he had not taken into his consideration any of the precedents which occurred before the Revolution of 1688. If however the noble earl had not done this, he (lord Holland) should like to know why they should take into their consideration those flagitious acts which had been passed to serve the tyrannical purposes of the day. He, for one, would not go into that register of crime and bloodshed. He was content to take his precedents from those which had occurred, if indeed any had occurred, since that period. He wished, however, that the noble earl had pointed out the cases to which he was desirous that the House should adhere. He wished indeed that the noble earl would select any two cases since the year 1688, in the English parliament (he would not advert to what had passed in the parliament of Ireland), in which, in bills of Pains and Penalties, the one had been guided by the other. The noble earl, he was well aware, was too generous an opponent to quote the cases of Plunket and the bishop of Rochester as different cases; they were in reality the same; and, if the noble earl did not deny that position, his (lord Holland's) argument was unanswerable. He must again observe, that this was an anomalous case; that it was an extraordinary exercise of the functions of parliament, and on that principle, he contended every possible indulgence ought to be extended to her majesty. There were many reasons why this motion ought to be granted; first, it ought to be granted if it was not likely to defeat the purposes of justice; next, because the proceeding was in itself of a most singular and unprecedented nature, being a proceeding in which parliament were called upon to receive evidence both in a legislative and a judicial character; thirdly, because the third branch of the legislature would, after their lordships and the other House of Parliament had decided on this matter, be called upon to pronounce as a judge as much as their lordships; but from the peculiar nature of the situation of that branch there was not much chance of the usual assent being refused to this bill. Let their lordships look to the situation in which the House of Commons would be placed. The noble earl had said, that, in a case of impeachment, the House of Commons would not be precluded from making new charges, and producing new witnesses in support of them, during the course of the trial; but then, however severe the powers were with which the House of Commons was invested in cases of impeachment; properly invested, he would allow, for the security of freedom, though greater than those possessed by a grand jury; the party impeached had the advantage of the ex-parte evidence taken against him being taken before a public, and not a secret, tribunal; in short, he knew the general nature of the evidence, and the witnesses to be produced in support of it. He had been told indeed, and he could not dispute the position, that her majesty, when her case came before the House of Commons, would have that advantage. But on that very account he thought that their lordships were bound to look to their own characters. They ought particularly to mark what that circumstance called upon them to do; they ought to consider what was due to themselves, to their characters, to the verdict which they were called upon to give, and to the approbation which that verdict was to meet from posterity. In the House of Commons her majesty would have the opportunity with a previous knowledge of the charges and the evidence, of cross-examining every witness; a privilege which had been described as of inestimable advantage by his noble and learned friend, the ornament of the English bar, who had formerly exercised it so ably. What, then, would follow? That the case on which the House of Commons would have to decide would not be the same with that on which their lordships would decide; it would be infinitely more favourable to her majesty. He therefore implored their lordships, as they regarded their interests and their character, to give the accused as good an opportunity for making a satisfactory defence before them as she would possess when she came before the House of Commons. That opportunity she could not have if their lordships did not accede to the present motion. Much greater advantage was gained from the cross-examination of a witness than from rebutting his testimony by the evidence of others. On this account, and because he thought that the reason of the thing and the appli- cation of her majesty demanded it, he should vote for the present motion. Before he concluded he had one remark to make regarding bills of Pains and Penalties. He would not say that they ought in no case to be introduced; but this he was prepared to say, that, if they were to be considered as necessary, the obscurity of their nature formed an additional item in the long catalogue of objections which he must see overruled before he, for one, could consent to them. In the anomalous proceeding against the earl of Middlesex, in whose impeachment the duke of Buckingham, after his return from Spain, took so active a part, James the 1st had observed to that favourite with much more point, but not with much more delicacy than he generally used;—"Stenny (his familiar appellation for the duke) you are preparing a rod for your own breech." This afterwards actually was the case. He therefore wished to impress upon their lordships, that, when they deviated from precedents and strict law, the first deviation was not in general the last. Public men ought particularly to recollect that, bills of Pains and Penalties were convenient methods of destroying a public adversary; and so far procuring a delay between the time of the accusation and of the defence, had hitherto been defended upon the necessity of dispatch, though oftener, he would allow, because the accused party had escaped beyond the immediate reach of the law. Indeed he did not know that there was any better way of showing how little those who proposed the bill had been guided by principle in this peculiar case, than by reminding their lordships that this proceeding, which was now instituted for delay, had often been instituted for reasons diametrically opposite. The present was an anomalous exercise of their lordships' power, and therefore they ought to be guided by the special circumstances of the case, and not by precedents of former bills of Pains and Penalties, which were totally inapplicable to it. He was apprehensive that he had already more than sufficiently fatigued the House; and he should therefore sit down with expressing his hearty concurrence in his noble and learned friend's motion.

Lord Ellenborough

allowed that the present was a novel proceeding; but said, he could not sit still and listen to the rules that had been laid down for the government of the proceedings of their lordships' House, and the arguments which had been adduced in support of the course recommended by some noble lords. The House, was not left without a law or precedent of its own upon which to act. A wider space for the admission of evidence might be fairly argued; greater facilities might be extended to the accused; he, for one, should wish that every latitude hitherto granted since the period of the Revolution might be afforded to her majesty, consistently with the rules of the House, to enable her to establish her innocence. But what was the fact?—her majesty asked more—she demanded an exemption from the ordinary rules of law, which were never granted to any except in cases of high-treason; by a peculiar act of parliament which he did not consider the wisest part of our legislation. That, he would not consent to give her. Was there any thing in the nature of the present proceeding which ought to entitle the accused to privileges of an equally high character as those granted to defendants in such a situation? He thought not. Nothing, in his mind, could be a more suitable mode of proceeding, than the present; except a proceeding at once by a bill of Attainder. Here he would not repeat the powerful arguments which had been urged with so much effect by the noble earl opposite; he agreed, however with him in the conclusion he had drawn, that an innovation like that now attempted, might be pregnant with the most dangerous consequences in future, which it might not be so easy to repair. Parliament had behaved towards the queen in a way which reflected honour upon itself. He thought that the proceedings against her majesty had been conducted in as favourable and as lenient a manner as the nature of those proceedings and the spirit of the constitution allowed. Their lordships were not to consider what was favourable to the Crown or what was favourable to the queen. All that they had to consider was, what was justice and what was truth; and in order to come to a right conclusion on that subject, he should negative the motion of the noble and learned lord. Indeed, if it were granted, he wished to know what advantage it would produce to her majesty? Owing to the absence of the judges on circuit, the investigation had been put off to the 17th of August. Was it possible, that in the interval her majesty could procure that evi- dence which it was affected she would require, and which it would be necessary to search for in a very distant part of Europe. How did the present application agree with the wish her majesty had expressed to go to trial on twenty-tour hours notice? In plain truth, it was evident that this application had been made with the intention of creating a popular effect. And that was in itself a reason why it ought not to be granted. But were this consideration even waved, and a list of the witnesses granted to her majesty, he must remind the House, that a mere misnomer in the list might he productive of calumny. Was it possible so to describe the persons, living as they did in various parts of Europe, as to preclude the possibility of the accused party saying that the witnesses were not to be found from their descriptions? It should be recollected, that in inserting only one of those multiform foreign names in the preamble of the bill of Pains and Penalties, to guard against a misnomer it had been introduced by an alias. The omission of a single letter in a foreign name might be objected as a probable cause of injustice to the accused. Opportunities of discovering errors of that nature would not, in the present day, be lost for want of zeal or attention, but on the contrary would not fail to be laid hold of with a view to mislead public feeling, and distract attention.—Was there ever known, in the annals of this country, a case where it was so necessary to bring the witnesses to the bar of the House, un-awed and untouched? Never. And yet the conduct which had already been pursued in one of our sea-ports, within a few days might be considered sufficient to afford a rather unpromising presage for the future. Let her majesty have a fair opportunity of disproving the charges against her, but first let them have the evidence upon record, let them know the nature of the accusation, and then let her majesty have a full and ample opportunity of rebutting it. This he was most ready to grant; but he could not forget that the queen had pressed on their lordships' House the necessity of a speedy trial, at only a notice of twenty-four hours. There was no man more disposed to do her majesty justice in that House, but he protested against the fanciful analogies which had been drawn that evening, as notions not founded in law or in the precedents on record in the proceedings of that House. He was determined, throughout the whole of this transaction, to adhere to the practice of their lordships in similar cases, and the spirit of the common law. In doing so, he was satisfied, he should act a conscientious part; and he was also persuaded whenever the House should be persuaded to depart from that spirit it would neither do justice between the illustrious parties concerned, nor obtain from the nation the reward of public respect.

Lord Holland

could not understand what the noble lord meant by talking, as he had done, about popular effect and popular clamour. If the noble lord alluded either to him or to his noble and learned friend who had brought forward the motion, he flung back the imputation with scorn, and would tell the noble lord that it was a most unparliamentary proceeding to attribute improper motives to any noble lord. If, however, the noble lord alluded to the illustrious individual whose case was before their lordships, he would then tell the noble lord that he did not envy the feelings nor admire the charity of that individual who could impute motives which he could not know, and which it was impossible for him to prove, to a party labouring under such heavy charges as the illustrious personage in question.

Lord Ellenborough,

in explanation, said, that from the respect which the noble lord knew he felt both for him and for his noble and learned friend, he must have been aware that he (lord Ellenborough) could not intend to impute to either of them any design of exciting popular clamour. Neither had he any intention to impute any such motive to her majesty. What he alluded to was the mischievous spirit that pervaded every part of the metropolis; and the efforts made to influence the public mind. It was impossible for a man to walk along the streets, or to take up a newspaper, without witnessing the dangerous extent to which that spirit was carried.

Lord Holland

expressed himself satisfied with the explanation afforded by the noble lord.

The Marquis of Bute

felt too anxious as to the result of this motion to give a silent vote upon it. The appearance of the times was fearful, and he prayed to God such times might never come again. Amazing anxiety existed abroad, and there was little less within doors. If the case was different from other cases of divorce, how then could their lordships apply to it the ordinary rules in such cases? It was called a bill of Pains and Penalties, but, in his opinion, it differed very little from a bill of Divorce. He entirely differed from the noble lord who had just spoken, regarding the inutility of granting a list of the witnesses to her majesty, because she could not inquire into their characters within twenty-four hours. He thought that as some of them were stated to have been persons in the employment of her majesty, and indeed must have been so as they were to speak to her private habits, the knowledge of their names, if it was only twenty-four hours before they were examined, would be of some importance to her in her defence, and upon her cross-examination of them. He maintained that, as the bill now before their lordships went to degrade her from the rank and dignity of queen of Scotland, and as she was entitled by the laws of that kingdom to a list of the witnesses to be exhibited against her, it was unjust to refuse them to her when she was to submit to a trial before the peers of that nation as well as before the peers of the other parts of the united kingdom. He likewise reminded their lordships, that the bill now before them might not be the only bill introduced into parliament against the illustrious lady. Supposing her to be found guilty of the charges produced against her, might not a bill of Exclusion, be introduced to prevent her succeeding at any future time to the British throne, to which it would be recollected that she would, in case of the death of certain and not many individuals, have a legal title in her own right?

Lord Belhaven

said, he could not give his vote on this occasion without making a few observations. They were about to pass a law, which would deprive her majesty of rights, which she would otherwise possess. In such a case it was their lordships' duty to afford her majesty every opportunity of conducting her defence. Her majesty asked no more than that which, according to the laws of one part of the British dominions, was allowed to every subject, and to which she was entitled. He could not help expressing his surprise, at hearing certain noble lords opposite, and who owed so much to the people, raise their voices against what they called "popular clamour;" to hear them exclaim, the people meant to trample on them, to direct them, and so on. He remembered the time, to use the words of the poet, When Europe bowed beneath the yoke, And Austria bent and Prussia broke, And the firm Russian's purpose brave, Was barter'd by a timorous slave. At that period the noble lords who now decried popular feeling, called for and found their best resource in the people. There was a maxim of Divine authority which ought to govern noble lords on reflecting what would be their hopes and fears were it possible they should be similarly situated with her majesty,—"Do unto others as you would they should do unto you." He was determined to support the motion.

The Earl of Carnarvon

felt it necessary to make a few observations on this very important question. It was urged on the other side, that there were many difficulties interfering against the present motion. He did not wish to refer to the strange bill now in his hands, and upon which they had proceeded so far without any one of their lordships (save the secret committee), knowing the grounds of the measure, or the contents of the fatal bag upon which it was founded. The preamble of the bill contained, at least, what was considered the front, if not the sum of the offending. And a part of that preamble was such nonsense, as to be scarcely worth repeating. It commenced by stating, that, "Whereas in the year 1814, her majesty Caroline Amelia Elizabeth, then princess of Wales, and now queen consort of this realm, being at Milan, in Italy, engaged in her service, in a menial situation, one Bartolomo Pergami, a foreigner of low station, who had before served in a similar capacity." Where, he would ask, was the charge of criminality in this? The preamble went on to state, "And whereas the said Bartolomo Pergami, or Bergami, had so entered the service of her royal highness the said princess of Wales, a most unbecoming and disgusting intimacy commenced between her royal highness and the said Bartolomo Bergami, and that she had not only advanced him to a high situation in her royal highness's household, and received him into her service, and that in high and confidential situations about her royal highness's own person, but bestowed upon him other great and extraordinary marks of favour and distinction, obtained for him orders of knighthood and titles of honour, and conferred upon him a pretended order of knighthood, which her royal highness had taken upon herself to institute without any just or lawful authority." What was the amount of this charge? If the bill itself was sufficiently ridiculous, which he was convinced it was, he was at a loss to find an epithet strong enough to brand the refusal to the queen to see the names of her accusers. What, in fact, was the charge against her majesty? A tissue of insinuations rather than accusations—hints loosely thrown out, no particular overt act whatever. Perhaps such company was not the best; perhaps such society was not the most eligible for her majesty, but could she choose better? Was the queen in a situation to make a selection, or rather had not every effort been made to exclude her from a possibility of a choice of companions for the last fourteen years? But admitting the charge to be true, what was in it? Did it furnish a ground for the House of Lords to act upon? Did it justify a grave proceeding by a body that claimed, in this instance, the highest prerogative, that of legislating and judging? Their lordships were not, could not be ignorant of what would be the fate of a proceeding in a court of law, founded upon such a superstructure, without point, without an overt-act stated, without possibility of joining issue—no judge could receive—no jury could determine upon it. It was equally repugnant to law as it was offensive to common sense. But again it was said "her majesty had promoted this menial, and that by her interference he had had honours heaped upon him." Where was the crime in this? If to raise from obscurity worthless beings—if to make them the depositaries of the capricious favours of kings were a crime, God help the sovereigns of Europe! Was there never known an object more unworthy his sovereign's favour than this?—he did not pause, he did not call for a reply; for he feared he had not to go far from home to be answered in the affirmative. Having finished this part of the preamble, in which he conceived there was no charge, he came to the second, namely, that "her majesty, still farther unmindful of her high situation, & c. was guilty of an adulterous intercourse, & c." Really, if there was any substance at all in the charge, it was contained in these words—"adulterous intercourse," which, strange enough, were put in only as an adjunct to the first allegation. But what was meant by the introduction of these words? Was it contemplated to bring a charge of a distinct act of adultery against the queen? If so, then she ought to be apprized of it. If it was not, where was the weight of it? "Adulterous intercourse," construe it in its broadest sense, could mean no more than "traitorous intercourse," and was there ever an instance of a man's being executed upon such a charge of treason. This bill contemplated degradation and divorce. How could either be done without a distinct charge of adultery? He put it to the rev. prelates opposite to say, could adultery be sustained upon such slight grounds. He contended, therefore, that a distinct charge should be made against the queen. But if it was the object only, by naming a multitude of offences, of which, the probability was, not one half would be proved, to raise a prejudice against the queen, he would wish to see such intention avowed. But why should not the queen, if she had no distinct charge to meet, at least have opportunities of meeting the witnesses, the only substantive and tangible part of the accusation. It was easy to accuse—easy so to colour every action of one's life, as to erect it into a crime; but it was extremely difficult to meet an ideal and unsubstantive accusation. If it was the case (but of that he, of course, knew nothing) that her majesty was conscious any one act of her life might be taken hold of, her proofs would be directed to that object; but the prosecutors might not hit upon the same circumstance, and indeed it was very probable that such acts (if any) which attracted the attention of the queen most, would be those which would be passed over unnoticed by the accusers. It was, therefore, more necessary that the queen should have all possible facilities of defence. The public, and the queen herself, required more distinct charges before the House could proceed. It had been said over and over that where there was no specific charge, a court of inquiry could not take cognizance; yet, under circumstances exactly similar the House of Lords found itself warranted in continuing its proceedings. He wished, for the honour of that House, a more manly course had been adopted, and on all these grounds he would give the motion of his noble and learned friend his warmest support. With regard to the bill itself, he was convinced it was too late to oppose it now; but he would enter his protest against it, as well on account of its uncertainty, as because he thought it contained rather insinuations than charges. But he again implored their lordships to give the accused every facility which justice demanded, and the law sanctioned.

The Earl of Lauderdale

said, that there was no precedent which could guide any of their lordships on this occasion. The analogy which might be derived from other cases did not apply to the mode of proceeding now proposed. He should limit what he had to say to the grounds on which his noble friend had proposed this motion. He opposed the motion, on the ground that to accede to it would be to defeat the ends of justice. And here he would ask, whether his noble friend had called upon them to give such a list of witnesses as was mentioned in the act of William? He had done no such thing, but had reserved to the House and to the accusers the power of bringing forward new witnesses. What justice would this do either to the accused or the accusing party? Of what advantage would it be to give in a list of witnesses to the accused party, if other witnesses might afterwards be added to them? Did it not allow the accuser the power (although of course he imputed no such intention to them) of giving in a false list, and of sending the accused to look after those who were either nonentities, or had nothing to do in the cause, whilst they were keeping those whom they actually intended to call as witnesses secure in the back ground? On the other hand, did it not give to the accused party the opportunity of tampering with or intimidating the accuser's witnesses? He was sure it did not require much persuasion after recent experience, to convince their lordships of the necessity of protecting their witnesses. Who could say that the description of these witnesses would not meet the public eye, and if they did, who could answer for the consequences. He did not hesitate to say, that the national character had been disgraced by the treatment which some of the witnesses had already received; and he had little doubt that, if the names of the other witnesses were known, they would be equally maltreated.

Lord Erskine

replied. If it was once proved to him that his motion would have the effect of hindering the progress of justice, he would that moment withdraw it.—He was, however, far from being convinced by any thing which occurred to-night that it would have any such effect, and was therefore determined to press its adoption upon the House. His motion stood on the principle, that it was justified both by the act of William the 3rd, and by the practice of the courts of this country, in which suits for adultery were tried. In the Ecclesiastical Court, when a woman was charged with adultery (and the difference of rank could make no difference in the justice of the case), all the circumstances which it was necessary for her to know both with respect to the specific accusation, and to the means by which it was to be supported, were communicated to her. The noble baron had said, that he would grant her majesty as much as the law permitted, but not more. He put it to the noble baron to point out a single instance in which, when a woman was charged with adulterous intercourse, the information which he had described was not communicated to her? Nine out of ten of bills of Pains and Penalties originated in the House of Commons; and by the time they arrived in that House the accused was acquainted with all the evidence, and had the power to examine such fresh witnesses as might be deemed expedient for the defence. On a charge affecting the queen's conduct, going as she did from one place to another for upwards of six years, her majesty was in his opinion clearly entitled to a list of the witnesses against her He repeated that his motion was founded on the analogy to the statute of William. He was shocked at the answer which had been made by the noble earl opposite to the argument growing out of that analogy. The noble earl had said that the act of William was in abeyance until the trial of lord George Gordon. He called upon the noble earl to do more, and to tell the House how important had been the advantages derived from the act since the period of its execution. He (lord Erskine) had been personally concerned in many cases of high-treason where lists of the witnesses were communicated to the accused, and could therefore speak to the benefit of the proceeding. He denied, most strenuously that the verdicts in the cases to which he alluded were unjust, or that they were the result of popular clamour. This would be evident on an examination of the merits of the trials of lord George Gordon, and subsequently of Hatfield, the proceedings in the latter of which especially had been translated into all the languages of Europe, and had been generally eulogized (among others by the celebrated Madame de Stael) as affording the most admirable example of British jurisprudence. It was rather too much to adduce in hostility to the act of William, the opinion of a puisne judge—a man whom he nevertheless allowed to be an individual of considerable learning and integrity—he meant Mr. Justice Foster. It was rather too much to adduce Mr. Justice Foster against a statute law which had existed for 120 years. That act had been called a Tory act. If so—if it proceeded from Tories, it was only an additional proof that God had created no animal which was not of some use or other. According to some noble lords, the present proceeding was one which seemed likely to set the world on fire. Those noble lords talked of popular clamour. In his opinion, that which was so called in the present instance, was only popular feeling. What was the cure for that feeling? Justice. He again intreated their lordships to accede to his motion. They bad a right to reject it, because they were supreme, but they ought to grant it, because they ought to be just.

The House then divided:—For the motion, 28; Against it, 78: Majority against the motion, 50.

List of the Minority.
Duke of Grafton	Besborough
Bedford	Darnley
Portland	Rosslyn
Hamilton	Viscount Clifton
Argyll	Downe
Marq. of Lansdown	Lord Saye and Sele
Bute	Ducie
Downshire	Belhaven
Earl of Thanet	King
Jersey	Holland
Cowper	Foley
Hardwicke	Auckland
Grosvenor	Yarborough
Carnarvon	Erskine.

The question being put upon the Resolutions, the House divided: Contents, 28; Not-Contents, 78: Majority, 50.