HL Deb 24 July 1820 vol 2 cc574-86
Lord Erskine

said;—My Lords; I have just received from Dr. Lushington, who has leave from the House of Commons to appear at the bar of this House as one of the counsel for the queen, a petition from her majesty, which I have been requested to present, and which I do most willingly, because it contains a just and reasonable request. I will read it to your lordships myself before I ask you to accept it. "The Queen laments, my lords, that this House has deemed it proper to refuse her application for a list of witnesses to be examined in support of the bill of Degradation and Dissolution of Marriage, thus leaving her majestyand her legal advisers in total ignorance of the times and places to which the charges may relate, or the persons by whose testimony the allegations on the bill are intended to be supported." This is only preface; she does not call upon your lordships to reconsider this decision, but contents herself with lamenting it, and comes with a new request. This is just my own situation—I exercised my privilege as a peer, and did, as I thought and still think, a duty to my country, by asking your lordships a few days ago to give the list of witnesses as requested; but your lordships having refused it, I must not now put my individual opinion against the judgment of the House, but I have a right to express that I most deeply lament it. Her majesty then goes on to ask that a specification of the places in which the criminal acts are charged to have been committed, be forthwith delivered; for if this be denied, it will be impossible to be prepared to meet the accusation, &c.

"CAROLINE R. —The Queen laments that the House of Lords have deemed it proper to refuse her application for a list of the witnesses to be examined in support of the bill of Degradation and Dissolution of Marriage, thus leaving her majesty and her legal advisers in total ignorance as to the time or place to which the charges may relate, or the persons by whose testimony the allegations in the bill are intended to be supported. Her majesty now submits to the House of Lords, that a specification of the place or places in which the criminal acts are charged to have been committed should forthwith be furnished to her majesty's attorney-general, for if this be denied, it will be impossible to be prepared to meet the accusation, or to take preliminary measures for providing defensive evidence against the charges without bringing from every place her majesty has visited during the last six years every witness who had any means of observing her majesty's conduct. Her majesty further desires to be heard by her counsel and agent at your lordships' bar, in support of this her request."

This last part of the petition I hope you will only not grant, by yielding to the request of your own free grace. My lords, if you refuse it, believe me, the House will suffer indelibly in its character and honour, which has stood so high for ages, and enabled it to support in public opinion all the other tribunals of justice. As her majesty asks only a specification of the places to which the evidence is to apply against her, we have no concern now with the indulgences of the statute of treason, nothing more being asked than the universal analogies of law. No crime whatsoever can be charged without specifying the place where committed, and the acts charged are almost universally facts of so limited and so notorious a character, that the accused has an immediate and satisfactory acquaintance with the evidence that is to be produced; but the allegations of the bill before us are spread over the space of six years, in places remotely distant from each other, so that without the specification of the places, it is utterly impossible that any kind of defence can be made. The only answer that has been given to this objection is, that when the accusing testimony has been heard, the House would consent to a long adjournment, till the witnesses for her majesty should be collected; but I reminded your lordships, when I moved for the list of the witnesses, that this would be only an insulting mockery of justice. What, my lords, do you mean by accusing evidence, when no clue is furnished for their examinations by the accused? How can she impeach their testimony, when she is an utter stranger to their very existence, till she sees and hears them in the House? and thus unimpeach- ed testimony, however utterly unfounded, goes forth from one end of the island to the other, affects the minds of the people, and comes back again upon your lordships yourselves to affect your own judgments before you enter upon the defence. What right, my lords, have you to consider yourselves as superior to the infirmities of human nature, which are the foundations of all the wise and humane provisions of our law? Are you honester or better than juries, who are not suffered to communicate even with their own families until their verdict is delivered? Are you alone to be trusted, and to go forth into the very court of the king, who is the injured and properly accusing party in the cause? I do not seek to reconcile differences between the House of Lords and the other tribunals, where the anomaly of your jurisdiction can be averted; but you had only to listen to the petitions presented to you, and the anomaly would have been ended. Had the queen been granted the list of the witnesses formerly asked, and the places of supposed guilt, as now requested, the case might have proceeded like any other trial, but by refusing both, your proceeding is like none that ever existed upon earth. My lords, I have no leaning or bias in the case before us, except that which has been the uniform bias of a long life spent in the administration of justice, and which will never cease, I hope, till death. I cannot be mistaken in the principles of law, and their analogies are too manifest to be mistaken; I therefore move that the petition be received.

The Lord Chancellor

said, that the motion was, he confessed, one which he did not expect. It called on their lordships to allow her majesty to stand in a different situation from that in which she had necessarily been placed by the course of these proceedings, and in which, consistently with the ordinary administration of justice, she must continue. He should have been extremely glad if the learned lord, instead of dealing in general assertion, would have shown in what instance, during the course of his professional life, he recollected an application of this nature to have been made. Their lordships, by their resolution refusing to grant a list of the witnesses, had shown what they considered to be the general principle; and if he knew any thing of the law of parliament, the usage of parliament declared what that law was. Their lordships had refused to accede to the former motion; and in doing so he thought they were justified by the whole history of parliamentary proceedings. How did the law of parliament stand with reference to that law which his learned friend had so long assisted in administering? Would that law allow a statement of places, of times, and circumstances, to be granted to the accused party? After both Houses of parliament had gone the length of refusing a list of witnesses to an accused individual, did parliament afterwards declare on that occasion, that times, and places, and circumstances, should be specified? Parliament had done no such thing. The common law required that in the indictment for high treason a place should be named, because that was necessary to give jurisdiction to the court; but that statement was not made in a very minute manner: the indictment set forth, that at such and such times, both before and after the day mentioned, and at such and such places, the act of treason was committed. But it was quite a novelty to require an indictment to state all the other acts, and the places where they had occurred. The issue was, that before and after such a time treason was committed: this was recited in the different counts, and the offence was laid in any country which it might be deemed necessary to introduce into the indictment. It was far more general than his learned friend seemed to suppose. The indictment merely stated, that in such and such a place, and that at such and such a time, such and such treasonable acts were committed; but it never pointed out the times and places more particularly than he now alleged. He wished to know what was the analogy between the common law of this country and a proceeding before parliament; and if his learned friend could not explain it, he begged him to point out a single instance in which, in a proceeding like the present, their lordships had gone to the length to which they were now requested to go. When his learned friend called for this specification, it appeared to him that his reasoning was palpably wrong, unsupported by any principle, and unsanctioned by any precedent. In consequence of the course taken by his learned friend, who had appealed personally to him, he was bound honestly and fairly to state his views of the question, and no motives whatsoever should deter him from so doing; and it was only because he wished their lordships to persevere in the old course of administering justice that he had felt it necessary to trouble them.

Lord Holland

said, he could not contend with the learned lord who had just spoken on legal subjects, but he thought that some of his positions were highly objectionable. The learned lord said, that the course now pursued accorded with all the analogies of common law, under which no such indulgence would be granted; and that, according to the ordinary course of parliamentary proceedings in that House, it must also be refused. But the learned lord would allow him to remark, that in the course of his speech he did not state that the bill of Pains and Penalties on their lordships' table was, in its shape, frame, or circumstances, by any means so precise as an indictment; and therefore, when the learned lord said that no such application was made in cases of indictment, he would answer that no such application was necessary, because the indictment on the face of it stated many circumstances that were not to be found in the bill before their lordships. In the instance of high treason, it was impossible to put into an indictment for that crime that which was contained in this bill: it was impossible to spread it over a period of six years. The learned lord knew very well that a treason committed three years ago, and left unquestioned for that time, was no longer treason in law, and could not be made the subject of an accusation. With respect to proceedings in parliament, the learned lord would find it extremely difficult to quote any thing like the present. Their lordships had had bills of pains and penalties before them; but when the learned lord stated this, did he, or could he, point out any bill in that House, in the course of which the person accused had not, either de fucto or de jure, a clear specification of what was alleged against him in that bill? When the noble lord spoke of parliamentary proceedings in bills of pains and penalties, and attainders, and when he alluded to cases of impeachment, he would ask him, could he find, since the Revolution, any articles of impeachment drawn up so widely and loosely as this bill? The learned lord had formerly said that he dismissed from the consideration of the House, and from his own breast (and the declaration was highly honourable to him), all bills of pains and penalties, except those that had occurred since the period of the Revolution. Now, if that were the case, he wished the learned lord to lay his finger on that bill of pains and penalties, since the Revolution, in which he would not find a greater specification of times and places than was contained in this bill. Indeed, he would go farther, and say, that a luminous specification of both was to be found in those bills. The only bill of pains and penalties that bore the slightest analogy to the present was that which concerned bishop Atterbury and two other persons. Now, he knew from the preamble of this bill, that, previously to its being laid on their lordships' table, a long and voluminous report had been made by a secret committee, which contained not merely the matter of charge, and of every thing connected with it, but comprised the whole narrative of the proceedings which had been discovered; and the persons standing accused were fully apprized of the nature of the accusation. They did not, indeed, receive the report itself; but the bill certainly did contain a specification of the charges much longer, more precise, and more complete, than that which was comprised in this bill. He did not mean to consider this case with reference to the individual, but with regard to the character and consistency of their lordships' House, and therefore he was desirous that it should be clearly understood in what the inconvenience of giving a plain specification of time and place consisted. For aught he knew, it would not be more advantageous to the person accused to have the places and times specified, than to have a proper period granted for entering on the defence, when the case on one side was closed. That, however, was not the question on which the House had then to decide; it was for them to proceed on those principles of constitutional and substantial justice—leaving out of their consideration questions of law, which did not apply to so anomalous a case—and to adopt those means only which appeared to be the best calculated to discover the truth. They were not to consider whether any particular proceeding would be advantageous to this party or to that, but whether it was fit and wise and proper for their lordships to adopt. Therefore, as their lordships would not deliver in a list of witnesses, it was for them to decide whether it would be more applicable to the attainment of substantial justice to refuse the present request, and to admit a great delay between the close of the accusation and the commencement of the defence. They ought not, he conceived, to adhere too strictly to forms, for he was convinced it would be more consistent with their dignity, and more in accordance with the ends of substantial justice at this time, to look attentively at the easiest mode by which that justice could be administered. It was on this ground that he, for one, was inclined to hear arguments stated at their lordships, bar, on the subject of this petition; and afterwards it might be decided with more propriety whether a clearer specification of time and place should be allowed than was now inserted in the bill. The proceedings of their lordships, and the mode which they had thought proper previously to adopt, were fraught with inconvenience. Suppose a majority of their lordships voted for a clear specification of time and place, to whom were they to go for the necessary information? Were they to apply to the secret committee? He did not know whether they had any thing whatsoever to do with the bill: having made their report, their office was, he believed, at an end. Their lordships, who were members of that committee, had not, of course, divulged any part of that which was communicated to them. He believed the resolution of the House had been stated to his majesty's attorney-general; but he did not understand that any part of the charge, except what the bill contained, had been communicated to that learned gentleman. When, therefore, the attorney-general appeared at their lordships' bar, to open the case, he should be glad to know from whence was the specification of charges which he was to lay before their lordships to proceed? From whence was the statement of those charges to come? If they were to be regulated by precedents, he found that their lordships, in the case which he had before mentioned, did give notice of the sources from whence the information was to be derived; and he understood from the Journals of the House of Commons, that a similar communication was made to the attorney-general at the bar of that House, where the proceedings originated. But here the whole of the specification of charges was suspended, as it were, in air, so that neither the accused nor the prosecuting party was acquainted with it. He thought, whatever they might do with the present petition, it was necessary for the consistency of that House to understand from whom a specification of the offences imputed, and a list of the witnesses, were to be derived, when the matter came to be opened at their bar. With respect to the request contained in the petition, it appeared to him to be most convenient and conducive to the ends of justice that the queen should be furnished with the specification required. This, he conceived, would be better than to have an application in the midst of a process of this nature for a long delay. As far as he had been able to understand the subject, it was impossible that the queen could be preparing for her defence at present, because it was impossible for her to know where she was to look for her witnesses. There was one part of the question which certainly was of minor importance, which was indeed insignificant, when compared with other subjects which naturally grew out of it; but undoubtedly, if the specification were refused to her majesty, it would be the means of putting the country to an enormous and almost indefinite expense; for, unless she knew the specific places in which the charges had been made against her she would be obliged to place at their lordships bar a motley assemblage of witnesses, drawn from every quarter of the world that she had visited during the last six years. This was a point of convenience; and as it referred both to the accused party and the country, he trusted it would not be lost sight of. As to the substantial justice of the case, he was sure no leaning to the one side or the other would affect their lordships' judgment; but in point of consistency, convenience, and analogy, he thought it would be much better to furnish the person accused with a clear specification, such as the petition called for, than at a future time to grant a long period to enable her to prepare for her defence.

The Earl of Liverpool

concurred with the noble lord in thinking that no correct analogy could be drawn between the present measure and the proceedings of courts below. Neither was this measure similar to any former case in which a bill of pains and penalties had been passed. The bill had been introduced in consequence of the report of a secret committee; but he had introduced it, not as a member of that committee, but as a member of the executive government. Upon that the queen had petitioned their lordships to proceed forthwith with the investigation. This petition had been considered, and the House had decided, that, in the administration of substantial justice, the queen's call might be answered to a certain extent without any practical inconvenience. Their lordships had considered that the presence of some of the learned judges was indispensable on this occasion. The 17th of August was therefore fixed upon as the earliest day on which the attendance of the judges could be obtained, and the inquiry could proceed with a reference to the ends of justice. If they had complied with the queen's petition to the full extent of its prayer, how could the present application to have been made? Her majesty, in that case, could not possibly have required the indulgence which was now sought for. The noble lord had complained that this accusation differed from all others, inasmuch as it had less of particularity in it. He apprehended, however, that the charge stated in the bill was as specific as the nature of the subject would allow. That charge was not of any single or positive act of adultery; but of a long series of adulterous intercourse during the period mentioned in the preamble. The noble lord also contended, that the charge being one of bad generality, there was the greater necessity for showing the utmost indulgence towards the accused; so he (lord L.) said also. Then the question recurred, how was that indulgence to be exercised? He begged to remind their lordships that in ordinary cases an accused party had no such advantage as was extended in this case, and which consisted of an interval between the accusation and the defence. A greater advantage than this it was difficult to conceive; and the disadvantages, therefore (if any there were), under which the queen might labour, ought to be viewed in comparison with the peculiar advantages which she enjoyed. In criminal cases, according to the practice of the ordinary courts of judicature, it was but recently that juries were allowed to separate. No doubt, there was a degree of evil following the separation of their lordships; but it was an evil which could not be remedied. It arose from the nature of their proceedings. The circumstances and forms attending these proceedings, when of a judicial character, were entirely different from those in courts below. Their lordships must adjourn from day to day, perhaps for the period of a week, which could not be done in the trial of a criminal case before other tribunals. They had even known cases in which the charge was made in one session of parliament, and the defence in another. As respected the real merits of the case, he did not believe that the ends of justice would be delayed, or that justice itself would suffer. The whole question, on this occasion, appeared to him, whether the peculiar advantages and disadvantages did not counterbalance each other? If the queen, in her former petition, had made out a fair case why a list of witnesses should be furnished—and he must be a blundering counsel, who, having strong merits to stand upon, had not made out a fair case—their lordships would undoubtedly have been induced to grant it. The fact was, that in many divorce bills there was no specification of the time or place at which the act of adultery had been committed. To this he was aware it might be replied that, before any divorce bill could pass, it was necessary that a suit should have been instituted in Doctors' Commons, and that an action for damages should have been brought. But if the proof was not deemed sufficient by their lordships, even though it had satisfied the other courts (of which there had been instances), it was competent to a party to prove other adulterous acts than those of which he had previously offered evidence. He believed there was a case, as recent as in April last, in which this had actually occurred. Looking, therefore, at the whole matter—considering that her majesty had desired them, in her former petition, to proceed forthwith; recollecting that they had been told by a learned gentleman at the bar (in perhaps a legal speech), that he well knew all the contents of the green bag; he could not conceive that any solid reason had been advanced for complying with the prayer of this petition. God forbid that any consideration of inconvenience should interfere with the attainment of substantial justice: he was himself most desirous that every fair and reasonable advantage should be yielded; and if any doubt existed, that it should be solved on the side of indulgence. Looking, however, at the whole question he did not think that the House was bound to acquiesce in the new demand which was made upon that indulgence.

Lord King

was of opinion, that if substantial justice was the object which the House had to keep in its contemplation, its ends might possibly be disappointed by refusing this application. It was said that sufficient time would be allowed after the accusation was complete; but he need hardly remind their lordships that in every common case there were two preliminary trials. As the illustrious person accused was deprived of that advantage, they were bound to afford her more than ordinary facilities for the establishment of her defence. They were bound not only to administer impartial justice, but to maintain the appearance of administering it. By refusing what seemed to him to be her fair and reasonable demand, they would add to the general feeling, that the queen was unjustly dealt with. Bills of this kind, whether of attainder or of pains and penalties, were, with great propriety, objects of dislike; and he feared that this proceeding would be regarded as another instance of that injustice which was commonly attributed to them.

Earl Bathurst

declared his perfect readiness to meet every reasonable application; but if the time and place were to be specified at which adultery was charged, the inquiry before their lordships must be of a very limited description. Suppose evidence to be given of a material character, but not corresponding to the alleged time and place, would their lordships think it right to strike out such evidence? This was not even done in other proceedings of divorce; and with regard to what had been said about the queen's conduct at Milan, that referred only to a single place, and to a particular period of the time to which the whole charge referred. The 17th August had been fixed to the supposed satisfaction of all parties; their lordships had not deemed it right to furnish a list of the witnesses, and they were now desired to inform the queen of the places at which the alleged improprieties had occurred. If her majesty meant to defend her case on the 17th August, this application was perfectly absurd; because she could make no use of the indulgence by a period so early. If the prayer of the petition were good for any thing, it ought to be accompanied by an objection to so early a commencement of the proceedings.

Lord Erskine

—My lords, as I hare no motion now to make, but that her majesty's counsel be called in, I should not have troubled you with any further observations, except that I feel myself bound to answer the questions of my noble and learned friend on the woolsack, which I answer thus:—In every indictment the place must be mentioned, and the precise nature and quality of the offence, and as the offence is not only within the realm but in some very limited local jurisdiction, no doubt can remain as to where committed, or how to be proved. Whereas here it is a series of conduct for six years, instead of a single act, and in countries widely distant. The noble earl opposite truly says, that it is not the mere fact of adultery, but indecent and suspicious demeanor in various places; but does not that render it more necessary to collect witnesses to prove what her general conduct has been, for how else can a behaviour of six years be supported, if unknown witnesses can pounce upon her in the absence of those who might contradict them? The noble earl, who always speaks with great ability and skill, also says, that even in the ecclesiastical courts, in suits for a divorce, different evidence may be given at the bar here, than had appeared either in Doctors' Commons, or against the adulterer in the courts. A new case, he says, might be made here. To that I can only reply, by asking if the noble lord can instance any such case? I am sure he cannot. If the evidence against the adulterer were not sufficient, nor that in the Commons, did any one ever hear of a bill to divorce upon evidence never given before? I am confident that no such case ever happened, or ever will. A noble earl who spoke last, for whom I am sure I entertain a great personal respect, has endeavoured to show, that granting the request of her majesty would be of no use to her; but are we to judge of that and refuse her the option of judging for herself? The noble earl ought to have shown that the granting her request would disappoint the justice of the case, she is called upon to answer. Show me this, my lords, and I am silent. Has this been attempted either to-night, or when the list of the witnesses was refused? or has it been shown, that the evidence for the bill ought to prevail, if she is denied the opportunity of their cross-examination? When the evidence for the bill is finished, and the queen, after an adjournment, has collected her witnesses, can their original examination be resumed? Such a thing was never heard of; in short, my lords, our proceedings have created a great sensation throughout the whole country, which your lordships will have hereafter to la- ment. I have now only to move, that her majesty's counsel be called to the bar in support of her petition.

The House divided: For the motion, 12; Against it, 37: Majority, 25.