§ Earl Grey,wishing to spare their lordships the pain of unnecessary discussion on a subject on which it was most desirable that discussion should be avoided, rose to ask the noble earl opposite, whether any thing had occurred since yesterday to induce him to delay the meeting of the secret committee on the papers relating to the conduct of her majesty, which had been so often suspended, and which was ordered to sit to-morrow.
The Earl of Liverpoolsaid, he had certainly, in consequence of that respectful attention which he thought due to the feelings of the House, and to the important nature of the subject, after the argument which had been heard at the bar, thought it his duty to propose that their lordships should be allowed twenty-four hours to consider whether what was stated in her majesty's petition, or what had been urged in its support, ought to induce them to make any change in the course of their proceeding. For his own part, he had no difficulty, upon the fullest consideration he was capable of giving to the subject, and after reference made to analogous proceedings on other occasions, which, though affording no direct precedent, might be in some measure similar, in declaring it to be his opinion that the course which had been at first adopted by their lordships, in appointing a secret committee, was that which was most fitting, with refer- 2 ence both to doing justice to the individual concerned, and to guarding the public interests. As long as there existed any hope that an investigation could be avoided, he had been willing to consent to delay; but when it was proved that the hopes which their lordships had been encouraged to entertain were become fruitless, there was nothing left for them to do but to proceed in the course which they had originally chosen. If the noble lord had any objections to urge to that mode of proceeding, he should, in reply, state the grounds on which he thought it ought to be adhered to by their lordships.
§ Earl Greysaid, he felt himself placed, in consequence of the noble lord's persisting in this measure, under the painful necessity of calling their lordships' attention to the grounds on which he proposed to submit to their consideration a motion for abandoning the course they had already adopted. Before, however, he proceeded to state the reasons which he hoped might induce their lordships to rescind the order they had made for the secret committee, he thought some apology must appear due from him for venturing to make such a proposition. It might seem, that, in taking on himself the task of persuading their lordships to abandon that course which they had chosen after mature deliberation, which the able arguments of his noble friend had not been able to prevent them from adopting, which they had repeatedly refused to alter, and which they had persevered in notwithstanding various adjournments, he manifested no little presumption in sup- 3 posing that he could induce them to adopt another course, merely because he thought it more consistent with the principles of justice than the one on which they had decided. He entertained no hope which rested on so unreasonable a foundation. However strong might be his opinion of the impropriety of a measure, he certainly should not presume, immediately after it had received the deliberate sanction of their lordships, to propose that it should be abandoned, if it did not appear to him that a material alteration had taken place in the state of the circumstances, which made the case different from that which was before their lordships, when they adopted the resolution originally submitted to their consideration. When it was first proposed to refer the contents of that green bag which had been placed on their lordships' table to the consideration of a committee, the impropriety, injustice, and unprecedented nature of such a proceeding had been ably enforced by his noble friends. With regard to the last objection, the noble lord, in the answer given by him to the question he had put, admitted that no precedent for the course taken was to be found; but intimated that, on searching for proceedings of a similar nature, the present was the most proper mode of parliamentary inquiry which could be pointed out. He certainly was not aware of any precedent that could justify the mode which had been adopted, and in the absence of all precedent he thought it right that their lordships should be guided by their own judgment on the case. But even if there were precedents, still it would be for their lordships to consider whether they were bound to be guided by them. They might have been created in times when principles of equity had little influence, and might be repugnant to reason and justice. Whatever precedents, therefore, might have been adduced, he should still have thought himself entitled to require their lordships to consider the claim now made upon them by her majesty, and to decide according to equal justice. Their lordships ought to recollect, that the proposition made to them was, that they should now proceed to examine information of a nature totally ex-parte, in a case directly affecting the character and honour of the queen. This examination was to take place without affording her any means of explanation on the charges made against her—any oppor- 4 tunity of examining witnesses, or of saying any thing in her own defence. Upon such a partial examination their lordships were to make a report with a view to some proceeding in that House. Be that proceeding what it may, her majesty would inevitably be placed in a disadvantageous situation with respect to it, from the weight of their lordships' report, in the first place, against her. This was a general principle, on which he would in any case insist; but when he considered the situation in which their lordships stood, and the important functions, judicial as well as legislative, which they might have to perform, the objection acquired infinitely greater force. The charges supposed to be contained in the green bag were of such a nature, that it proved her majesty ought no longer to enjoy her high station. They were such as affected her life, and, what was to her of far more importance, her character and honour. Such was the nature of the case on which their lordships were to decide; and he called upon them to consider whether it was proper for them to come to a judgment under the suspicion of being prejudiced by previous proceedings, or of being biassed in their decision by the ministers of the Crown. It was true, it had been said that it was impossible their lordships could be called on to act judicially in this case; but were they now to proceed on the persuasion that another view of the subject could not be taken elsewhere? The other House of Parliament had equal authority with this to investigate the case, and might think it one which ought to be the foundation of an impeachment. The learned lord on the woolsack had stated, that no prosecution for treason could be instituted on the present charges, even supposing them true. He was perfectly ready to acknowledge the weight which was due to the learned lord's authority; but if, as a member of that House, he was not satisfied with the reasons given by the noble and learned lord, he could not be expected to abandon the opinion he had himself formed, especially as he found his own opinion fortified by legal authority, which he respected equally as much as he did that of the noble and learned lord. With regard to the construction put upon the statute of Edward 3rd, unless it was maintained that the words of the clause applied only to the forcible violation of the queen's person, he did not see how it could be doubted that she was to be held
*5 an accessory, if the crime were committed in England, and with an English subject. He must also observe, and he could not persuade himself to concur in the subtile distinction taken by the noble and learned lord, that if the crime were committed abroad and with a foreigner, her majesty would be relieved from all the penalties which would otherwise attach to such an act. If, however, he admitted the doctrine of the noble and learned lord, he should still be of opinion that the means of applying a remedy through the medium of the House of Commons existed. On the supposition that her majesty had while abroad lived an immoral and licentious life, and committed such acts as in England would make her guilty of high treason, the idea that no judicial proceeding could be instituted appeared to him unfounded. If she were liable to such imputations he must contend that the Commons would have the same right to proceed against her as they possessed in all cases of offences which were not defined by the law. That House might therefore impeach her majesty, on the ground that she had rendered herself unworthy of the station she occupies. With all the respect he entertained for the authority of the noble and learned lord, he must in this case, be allowed to dissent from it; and he must be permitted to say, that it appeared to him that the great and powerful mind of the noble and learned lord had on this occasion been so limited by the mere technicalities of the law, that he could not look at the question in its proper light. He must also protest against another opinion which had gone forth respecting a supposed ground of vindication which might be set up. This was not a case in which recrimination could be admitted [Hear, hear!]. The offence, if there were any, was of a public nature, and could not be regulated by the rules which applied to cases of private injury. Such a principle as the admission of recrimination, he trusted would never be sanctioned by their lordships. It would have been equally improper to have allowed Thistlewood to defend himself by saying that his treason was directed against tyrants and oppressors, as to permit a vindication in this case by the accusation of another person. On these grounds he was of opinion that their lordships might still be called upon to act in their judicial capacity, in consequence of some proceeding taken by the House of Commons; and therefore he 6 must contend that it was not consistent with justice to permit a preliminary investigation by a secret committee to take place. The report of that secret committee might do prejudice to the person accused, on whose case their lordships would have to decide. This question, it was true, had already been argued by his noble friends, and the House had thought fit to decide against their opinion. But the circumstances of the case were now greatly altered. It was at the outset supposed by his noble friends that the House of Commons might entertain a different opinion from their lordships, and that which was then regarded only as a possibility was now a matter of fact; for it appeared from the votes on the table, that a proposition similar to that which their lordships had adopted had been made to the other House; but that the Commons, instead of agreeing at once to the proposition, had not yet come to any decision upon it. They had suspended it, not in the manner done by their lordships, but in an anterior stage; for they had not appointed the committee at all; while in their lordships' House it seemed to be thought that the business ought to proceed with all possible expedition. After the proceeding was first suspended, a negotiation had taken place, which had failed; and now it appeared that the proposition in the House of Commons was a second time suspended, on the express condition that some measure was to come before that House from their lordships In alluding to what had passed he might be allowed to state a supposed case. He would suppose, then, that it had been stated in another place, that their lordships' House might possibly institute a judicial proceeding. Suppose this statement had been made by some person in authority—by some statesman eminent for the correctness of his language, and the precision with which he always expressed his ideas [Hear, hear!]. The person who gave this opinion might be only stating his view of what he expected would be done by their lordships, but it was very extraordinary to suppose that a judicial proceeding should originate with that House. But suppose the same eminent statesman had farther observed, that if the expectation he entertained should be disappointed; if the course thus chalked out for their lordships should not be followed, and nothing should be done in that House; then he, the minister of the Crown would 7 be ready to stand forward as the accuser, and put the case in a train for inquiry before the only tribunal by which it could be judged, namely, their lordships' House. Their lordships must now perceive in what state they stood with respect to the House of Commons. It was a situation to the probable consequences of which they could no longer shut their eyes. If the determination of their lordships on any report made to them, after the examination proposed to be gone into by the committee, should be one way, it would be prejudicial to the accused; if another way, it would be against the accuser; but it was their duty to take care that they did nothing either to favour the accuser or the accused. They might, however, be placed in that situation; and nothing could, in his mind, be a stronger reason for altering the course in which they were now engaged. But the medium through which the inquiry was proposed to take place was of itself most objectionable. Secret committees had, unfortunately, of late, been too common in that House. So far was such a body from being looked upon with a favourable eye by the public, that the very name of a secret committee stamped a character of suspicion on the whole proceeding, and created in the mind of the public an apprehension that prejudice might influence the decision on the case. He never would advise their lordships to yield to any factious clamour, but he would say that it ought to be their first and most anxious care, not only to do strict justice, but to see that no step should be taken which might be calculated to excite distrust with respect to their proceedings. He had stated the grounds on which he objected to the course their lordships had pursued, and it certainly was not with the view of inducing them to yield to any popular clamour that he begged of them to consider the state of general suspicion into which the proceedings of the House might be brought. He had endeavoured to show that the course recommended by the noble earl opposite was inconsistent with the principles of justice, with the duties of that House, and with the respect due to the claims of the person who was brought in a state of accusation before them. That illustrious person came before them in a character in which he believed no queen of England had ever before appeared. She is a petitioner; she prays for a prompt inquiry, desirous that no delay may take 8 place, but begs that she might not, by a previous proceeding, have the accusations against her sent forth into the world, not as the charges of her accusers, but as those of that House. He was not then to support her majesty's cause; he knew nothing of it, nor of her accusers; but it was his duty as a member of that House to contend in every case for the equal dispensation of justice. He was anxious that it should appear clearly to the public that every stage of the proceedings which might be adopted was consistent with the strictest rules of justice. Every possible care ought to be taken to obviate any odium to which the measures to be adopted might be exposed. He had already disclaimed the intention of recommending to their lordships to yield to any sort of clamour. No idea could be more averse from his mind. But when the call made was not factious—when it proceeded from the best feelings of human nature, from generosity and compassion—then it was not to faction he asked them to yield, but to the pure spirit of justice. [Hear!]. He had already stated, that no similar proceeding had ever before taken place. This, he believed, was not disputed, and their lordships roust therefore feel it to be of more importance to pay attention to the character which such a proceeding must have in the eyes of the public. Their lordships occupied a high station in the country, distinguished by a long line of ancestors, possessing wealth, rank, and every thing that could entitle them to respect, and secure their perfect independence. Possessing these high advantages, they were bound to take the greatest care how they brought the character of their proceedings into question. But, however respectable their lordships were, they did not stand high in the opinion of the public with respect to any disposition to resist the propositions of the minister of the Crown. In what situation, then, would they stand with respect to public opinion, should their conduct on the present occasion be contrasted to their disadvantage with that of another assembly—if, after a discussion in the House of Commons on the same proposition which was before their lordships, his majesty's ministers thought fit to yield to the sense of that House, and abandon their intention, while they persisted in it in their lordships' House? In what light would they stand before the public, were this case, which he had supposed, to take place? These 9 reasons he thought were sufficient to induce the House to abandon a course, which, if persisted in, could not fail to prove generally odious. Ministers must indeed have great influence if they supposed that they could prevail on their lordships to lake upon themselves a duty which belonged to the other House, and to become accusers after that House had declined the task. Were their lordships, then, prepared to take upon themselves all this odium—to relinquish the respect to which, by acting otherwise, they would be entitled? But for what were they willing to encounter the odium to which their proceedings exposed them? If they could show him that any advantage could be derived from the course they pursued, he would almost give up all his objections to it on the score of public justice. In the mean time he must ask, how this committee was to proceed? Were he a member of it, as soon as that green bag was opened, and a paper taken out purporting to be evidence against her majesty, he would not hear it read. He would protest that he must have the opportunity of seeing and examining the witness himself. He would insist upon being permitted to sift the person who brought forward such charges. If the committee were conducted on these principles, which were the principles of justice, it must be evident to their lordships that no time could be gained by the mode proposed to them. But after having gone through all this labour, and completed their report, they would still have a second trial to commence; for the illustrious person accused must some how or other have an opportunity of defending herself. Nothing, therefore, could be gained in point of time by examination of the committee. But of whom was the committee composed? It was stated yesterday by a noble friend of his, that it included four cabinet ministers: he should add, that with only two or three exceptions it consisted of members of that House, of whom he said nothing uncivil when he stated that they were persons who on all political questions concurred in opinion with the ministers of the Crown. When he besides stated, that at the head of this committee were the lord chancellor, the president of the council, the first lord of the Treasury, the secretary of state for the home department, the duke of Wellington, &c., what sentiments could it be expected to speak? Let not their lordships deceive themselves by the belief that 10 the report of that committee would be regarded as any thing else than the report of the ministers of the Crown. He would then ask, what it was that the ministers did with the committee which they were not able to do without it? Was there any secret charm in the committee room of that House, which was to inspire them with that energy, wisdom and justice, which they could not find in their cabinet? It was in vain to suppose that any effect would be produced on the public mind, by a committee appointed by ministers, that might not have been produced without one. He implored their lordships, then, to abandon the committee. But he did not therefore call upon them to abandon inquiry; for he was afraid that the advisers of the Crown had by their conduct brought matters into such a situation, that they could neither proceed without danger, nor retrograde without disgrace. It was therefore to be feared that the only way of escaping from their present straits—the only solution of the difficulty in which they were involved—was a fair, open, and impartial inquiry, that would answer the ends of justice and satisfy the public mind. But, in order to produce that satisfaction, it was not only necessary that the investigation should be fair and impartial, but above all suspicion. An inquiry might now be necessary; but he asked, whether it might not be as well or better to carry it on by a more simple mode of proceeding than by a secret committee? There were three ways in which the investigation might come before their lordships— either by an entirely judicial proceeding, which would originate in the other House, or by a bill of pains and penalties, which would also originate in the other House; or by a measure, partly legislative and partly judicial, which might in the first instance be brought before their lordships. In any of these three modes, the investigation might be properly prosecuted, the ends of justice obtained, and the character of their lordships' House preserved, without any proceeding by a secret committee. It was by no means to prevent inquiry that he had made this suggestion, or urged this course. It was only that he might induce their lordships to adopt a measure consonant to the principles of justice, satisfactory to the public mind, and not injurious to the character of parliament.—He could not but remark, that the conduct of ministers during the 11 whole of these proceedings had been most extraordinary, weak, and unjustifiable; and that, by their imbecility and vacillation, they had brought the question to an issue, which, as he had said before, they could not pursue without danger, or retract without disgrace. He would not enter into all the circumstances of their singular conduct, but he would say that they had brought not only the honour of the Crown, but the interests of the country into peril, and that without necessity or excuse. It was now more than twelve months since the extraordinary commission was appointed to inquire into her majesty's conduct abroad—he could not say by whom appointed, or how it had conducted itself—but it had been nominated to obtain the information on which ministers now acted. Nay, it was even twelve months since its report was received. Was it not the duty of his majesty's ministers, then, to take all the circumstances into consideration, and to act upon them, as it became them, for the honour of their royal master, and for the peace and welfare of the country? If, in their opinion, that report contained nothing which obliged them to bring any accusation against her majesty, it was their duty to have communicated that opinion to their sovereign, and to have set at rest reports which affected the character of the queen. If, on the other hand, they were convinced that matters of serious charge existed, and that that charge would be supported by the evidence which had been collected, it was their duty as soon as possible to bring forward the accusation, to bring it to the result which they foresaw it would have, and thus prevent all those dangers which might arise from suspending such serious charges over the character and conduct of her majesty. If they had preferred their accusation, collected their witnesses, served a notice on the queen, and brought the matter before parliament, the whole affair might have been by this time terminated, and all those evils which now threatened the peace of the country prevented or dissipated. If neither side of this alternative was expedient to be followed, and if the information collected regarding her majesty's conduct allowed the ministers of the Crown to think that the arrangement of her affairs admitted of negotiation and compromise they ought immediately to have entered upon that negotiation, and to have made that arrangement without 12 impeaching her character. None of these three courses, however, had ministers pursued. They made offers of treating with her majesty, but they at the same time denounced a threat that all negotiation must terminate, and all adjustment be at an end, unless she complied with certain conditions; thus coupling a menace of proving criminal charges, with the offer of an arrangement wholly inconsistent with them. But how was it proposed now to proceed? When they found that her majesty would not attend to their offers, they now spoke of proving serious charges against her; but they did it with hesitation and delay, and a desire to divest themselves of all responsibility—a responsibility from which they would never be relieved by him. This was not the only instance in which this loose, disjointed, an a feeble administration had divested themselves of the official accountability that attached to their stations, and left the business of the nation to be performed by the legislature, had abdicated the powers of government and devolved upon committees of parliament their duties and their responsibility. At a season of great public distress and danger, at a moment of great peril to the peace and tranquillity of the country, they had shown themselves unfit for the emergency, and called upon their lordships for direction. When the tempest arose—when the winds raged— when the waves beat high, the vessel of the state was left by them, without compass or rudder, to the mercy of the storm. The fury of the tempest increases—the crew becomes mutinous, and the pilot trembles;Ipse pavet; nec se qui sit status, ipse fatcturScire ratis rector; nec quid jubeatve, vetetve:Tanta mali moles, tantoque potentior arte est.One of the members of that administration (Mr. Canning) and of course one of the advisers of the accusation against her majesty, had since declared, in his place in parliament, that he did not concur with his colleagues in their present measures, and had added with great emphasis, "So help me God, I will never become her accuser." But what did the right hon. gentleman say more? He spoke from his personal knowledge of the queen, and he called her "the grace, the life, and the ornament of society." If she deserved this encomium—if she was the "grace, the life, and the ornament of society," why was she not a fit partner for the throne of England? and why, when his colleagues 13 spoke of charges, did he shrink from giving advice to that effect? For he not only called her "the grace, life, and ornament of society," but added, that she was entitled to his highest respect and admiration. This, strange as it seemed, was not enough to show the conduct and state of the administration.—After strong instances of trepidation, uncertainty, and dismay, they agreed to a resolution which lay on the table of the House, on which, as it was a curious document, he would now make a few observations. Those very ministers who threatened the queen, who brought charges, as they expressed it, of a serious nature against her, and who, believing those charges, thought that she ought to be deprived of her rank and dignity, agreed in a resolution to address her majesty, humbly beseeching her majesty "not to press farther those propositions on which any material difference of opinion remains." Those ministers who threatened that, if she set her foot on the shore of England, proceedings would be immediately instituted against her, and that all compromise and negotiation would be at an end, resolved, now that she had despised their menaces, and arrived contrary to their inclination, to send a deputation of the House of Commons, praying her,—"bending low, and in a bondman's key,"—to be so good as to desist from farther demands, "such large advances having been already made to an adjustment of differences." They agreed to her title of queen; they conceded her most important rights, and they only supplicated her to surrender what they could not concede without a glaring retractation. Nay, one of these ministers had praised her for her boldness in coming to this country, which they had previously denounced as an offence, and the reason of their opening their charges against her. In the resolution, they said, "You shall be acknowledged as queen: foreign courts shall be told that you retain all your rights; you may have any thing but a place in the Liturgy, and a recognition of your innocence." Could any thing be more base and contemptible than such conduct?—He now came to a passage in the resolution, on Which he would stand as on a rock, and resist the inquiry, and the mode in which it was proposed to be conducted. Her majesty was accused— the charges were in the bag—a committee had been proposed; and yet they paused, and agreed not to open the bag, but to 14 address her majesty with all respect and submission, to surrender some of her rights, that inquiry might be prevented. In defence of their conduct one of the ministers in the other House stated, in that curious phraseology which he sometimes used, that with such serious charges existing, if they had not called for inquiry, "ministers would have been a contrast to themselves." If they did alter their manner of governing this country, and thus formed a contrast with their former administration, he, for one, should rejoice at it. The resolution said, that the House of Commons should address her majesty to give up the points of difference, "thereby entitling herself to the grateful acknowledgments of the House, and sparing the House the painful necessity of those public discussions, which, whatever might be their ultimate result, could not but be derogatory from the dignity of the Crown, and injurious to the best interests of the empire." Here, then, was a declaration that the ministers had proposed to institute an inquiry which could have no possible result but one derogatory from the dignity of the Crown, and injurious to the best interests of the empire. What necessity was there for this inquiry but an alternative replete with greater evil; and what result could be more calamitous than one so characterised? This was stated to be the result of the inquiry by a committee, whatever the termination of the inquiry might be. But this had been said to be a mere quibble, and a distortion of the words of' the resolution. But did the words mean any thing? And if they did mean any thing, what other construction could they bear, than that great evil would result from a secret inquiry? The injury could not arise simply from the exposure of the conduct of the queen; for, if she had been living in a course of rice abroad, it could be no injury that her behaviour should be investigated, and that she should be separated from the throne; and if, on the other hand, she was innocent, it could not be derogatory from the honour of the Crown, or injurious to the interests of the empire, that her innocence should be establihed [Hear!]. But when proceeding by a secret committee was declared so calamitous, would their lordships persevere? He could not think that it was consistent with justice to prosecute inquiry in this mode; and he was sure it would be injurious to the high character of parliament. The inquiry, if 15 necessary, should be prosecuted without delay, with justice and impartiality, with due regard to the character of parliament, and the honour of her majesty.—These were the grounds on which he made his motion to discharge the order for the meeting of the secret committee. He knew nothing of the accusation against her majesty—nothing of the witnesses by which it was supported—nothing of the evidence by which it could be repelled. But on this principle he stood, that there should be no secret investigation—that there should be no inquiry that was acknowledged to be derogatory from the dignity of the Crown, and injurious to the best interests of the empire. He knew nothing of the charge or defence, but he saw no means of obtaining a proper adjudication but by a public proceeding. He therefore implored their lordships to desist from a secret investigation, as contrary to law, and exposed to odium and suspicion. The noble earl concluded by moving, that the order for the meeting of the secret committee to consider the papers referred to their lordships be discharged.
The Earl of Liverpoolsaid, he had heard the speech of the noble earl with great surprise. The beginning of it contained a legal argument against the mode of proceeding adopted by their lordships, in which he said that the present was no party question, but that it ought to be decided by the principles of justice. How much, therefore, was he surprised to hear the noble earl, in the conclusion of his observations, so completely belying his professions, and making one of the most inflammatory party attacks that was ever made within the walls of parliament [Hear, hear!] This attack was general, and he (lord Liverpool) was prepared to repel it. He was prepared to appeal from the judgment of the noble earl, to the country, to parliament, and to posterity, and to be tried by them for the conduct pursued by himself and his colleagues for the last eight years. He was willing that their counsels and acts should be compared with the counsels and acts of the administration with which the noble earl had been connected. He would ask their lordships what now would have been the situation and prospects of the country, if the counsels of the noble earl and of his friends had been followed? He again declared that he was willing to be tried for the general conduct of admi- 16 nistration by the country, by parliament, and by posterity. In the present case he had no difficulty in explaining or defending the whole of his conduct, and that of his colleagues, without reference to any parliamentary resolution. He was prepared to state, that proceedings against the queen would be an evil, that they could not be undertaken without great inconvenience, and ought not to be prosecuted unless to encounter a greater inconvenience. The principle acted upon to prevent her majesty's coming to this country was in his opinion wise and expedient, and was, he was conviced, approved of by nine-tenths of the country. Was there any alternative, then, when she arrived, between allowing her all the honours and privileges of her rank, or placing her in a state of accusation? Unless a message had been brought down to the House, containing charges against her, how could their lordships or the other House of Parliament consistently omit to present her with addresses of congratulation on her arrival? But after they had taken their ground the noble earl accused them of vacillation in their subsequent course. He knew of no vacillation; he had moved that the papers on their lordships' table should be referred to a secret committee, and that motion was adopted. It was true that a strong sense had been expressed in another House that a fresh attempt at negotiation should be made; and that, concurring with the wishes and opinions of his majesty's ministers, had been agreed to by them. Words had been quoted in an irregular manner, as having been uttered in another place; but without meaning to say that there was any intentional misrepresentation, he could say, from inquiry, that they had not been accurately published. The resolution adopted in the other House had been called the resolution of ministers; if this meant that it had received their support, the assertion was true; but if it meant to insinuate that they had any knowledge of it, even an hour before it was moved, the statement was altogether unfounded. He was prepared to deny the doctrine of the noble earl with respect to the resolution and to maintain that though the trial of the queen might be a great public evil, still a greater evil might be encountered by not proceeding under certain circumstances. He trusted the House would believe that ministers wished to avoid investigation in the first instance, but if it was instituted 17 they did not wish to avoid responsibility. The first consideration was, whether the course of proceeding which had been proposed was wrong, as had been stated by the noble lord, with reference to the House of Commons: and the second, whether a preliminary inquiry by a secret committee was wrong, with reference to their lordships themselves. The noble earl called on their lordships to preserve the high character which they had in all times past maintained in the exercise of their judicial functions. He too hoped their lordships would not overlook this consideration; for it was matter of satisfaction to reflect, that if there existed in the world a tribunal whose character for strict justice and rigid impartiality was unimpeached, that tribunal was the House of Lords of this kingdom. But the noble earl said, that even supposing the course adopted to have been right in the first instance, circumstances had intervened that now made it wrong. He, on the contrary, maintained, that those intervening circumstances, so far from furnishing any reason for deviating from the original course, afforded their lordships additional inducements to persevere in that course of proceeding. It had been said that this subject had been taken up by the other House of Parliament, and, for aught their lordships knew, might be made the ground of an impeachment; and that therefore their lordships ought not to institute an ex parte inquiry into a matter on which they might be called on to decide in their judicial capacity. Now, undoubtedly, he conceived that the main cause of laying this charge before their lordships was the consideration that an adulterous connexion could not be made the ground of an impeachment, or of any other legal proceeding; and that ground he was prepared to argue with the noble lord, who appeared to question the law of his noble and learned friend on the woolsack respecting the proper construction of the statute. He would say of his noble and learned friend, that no one's opinion on legal questions had so much weight with him; but he could also say that every other legal authority that had been referred to—and many other eminent authorities had been consulted—supported the same construction. By the statute of Edward 3rd, the violation of the king's wife, or his eldest son's wife, or his eldest daughter was declared to be high treason. The noble earl proceeded to argue on the con- 18 struction of this statute and contended, that as there was no substantive crime in the act of the woman, her guilt must be inferred on the ground that she was an accessary to the crime. If, then, the accessary were criminal; it followed that the principal must also be criminal; and, indeed, any other supposition would be absurd. But, in the present case, if the principal in the adulterous act was a foreigner, there was no treason on his part at all; and how could it be said that in such a case the accessary was guilty, since, in the eye of the law, the guilt of the accessary was the same as that of the principal, and here no principal was guilty? He confessed that for some time he had great doubts on this subject, but after consulting all the legal authorities to whom he had access, his doubts had been completely removed. But the noble earl had said, that though there was no treason in the present case there might be other great state offences on which their lordships might be required to decide judicially. He agreed so far with the noble earl; but if there existed any crimes of that description, they must be such as were known to the common law of the country, and therefore adultery could not be included in that class [A peer on the Opposition benches dissented from this opinion]. He said that adultery was a civil injury, but no crime, and that opinion had been distinctly expressed by a noble lord (the late lord Auckland), who had brought in a bill to make adultery a crime. That which was not a crime by the common law could not be tried before any of the ordinary tribunals of the country, and indeed, if that were not the case, there would be no protection for the subject. While he had any thing to say in that House, he would never endure the doctrine that they had a right to create for the occasion, a crime which did not belong to the law of the land. This matter being so stated, he now came to the consideration of what was the only remedy in the present case—of what was the only course of proceeding for their lordships to adopt. The only proceeding in his opinion, which was applicable to the present case, was a legislative one: it might be a bill of Divorce, or a bill of Pains and Penalties, but it was necessary that there should be a legislative proceeding. He was likewise authorized by the precedents recorded on their Journals to say, that the proceeding might originate 19 in that House as well as in the other. And this brought him to the consideration in which House of Parliament it would with most propriety originate. He thought that the circumstance of their lordships being in the habit of examining witnesses on oath, independently of various other important considerations, was a decisive reason why it should originate in their lordships House. He therefore would repeat, that in the present case they could adopt no other than a legislative course of proceeding, and that it ought to arise in that House rather than in the other. This opinion seemed also to be entertained by the House of Commons, which had suspended its proceedings in the expectation that their lordships would commence some measure on the subject; and what his noble friend (lord Castlereagh) had stated on that occasion was, that if some legislative measure were not introduced in the House of Lords, he would propose one in the House of Commons. To him it appeared that a legislative proceeding was the only course that could lead them out of the present difficulties and that this proceeding should originate in the House of Lords, it being competent for either House to commence it, but preferable that it should arise from their lordships. He came now to the question more immediately before the House;—namely, whether, supposing a legislative measure to be proper, it ought to be preceded by any inquiry, and whether that inquiry, if admitted to be necessary, ought to be made by a secret committee? He had looked into most of the bills of pains and penalties that had been brought before the House, and he could find no case in which such a bill had been introduced without some previous inquiry. In the view in which the noble lord objected to a secret committee, he would ask; where was the distinction between an inquiry before a secret committee, and an inquiry before the whole House? The noble lord opposed a secret committee, on the ground that it was calculated to excite a great prejudice in the public mind; but if a preliminary inquiry of some kind were necessary, and if, as the noble lord contended, the tendency of such a proceeding was to excite prejudice, it would follow, that the more public the inquiry, the more prejudice would be caused. But he had no difficulty in saying that, even if the course now proposed had not been sanctioned by the general usage 20 in introducing such bills, he should still have thought it highly fitting in the present case. This was an accusation against the first subject in the realm, and the case could not be entered into without great difficulty and great delicacy. Was it fitting, he would ask their lordships, that the House, on the mere ipse dixit of a minister, and without inquiring for themselves, should decide that there were grounds of proceeding against the illustrious individual who was accused? The noble lord had assumed—and the assumption certainly was not parliamentary—that this committee must report that there were grounds for farther proceeding. There was no such necessity; it might report that there were not, as well as that there were, grounds. But even if the evidence should not appear altogether decisive, or if other difficulties should arise which might render a different course of proceeding advisable, would the noble lord say in that event, when such great interests were at stake, that no authority should be interposed between ministers and the parties concerned? He had looked at all the bills of Pains and Penalties that had been brought into parliament, and in nine cases out of every ten a proceeding by impeachment might as well have been recommended; and yet the noble earl called on them to stop this proceeding, because the House of Commons might impeach. He had listened attentively to all the arguments which had been so eloquently urged at their bar by her majesty's counsel; but, ably as the learned counsel had argued, he had not heard from them one word that bore on the present question. The learned gentlemen had said, it was unfair that the charge should proceed till the queen was prepared for her defence. In that opinion he agreed with them; and he thought that she and her counsel should have their choice as to the time at which the requisite delay should be granted—whether it should be before the trial commenced, or after the charge and the evidence in support of it had been brought forward. But the inquiry before the secret committee did not imply any charge. Their lordships, by referring the papers to a committee, were not by that proceeding making any charge against her majesty, but were merely ascertaining whether any charge should hereafter be made. When that committee had reported, and when the bill found- 21 ed on the report had been brought in (supposing the report to be in the affirmative), then would be the time to consider what delay was necessary, and at what stage of the proceeding it would be most desirable. But the question now was, whether there should be preliminary inquiry—whether the proper course of proceeding was by a bill of Pains and Penalties, and whether, the measure should originate in that or in the other House of Parliament. He had shown that there had been a preliminary inquiry in every other similar case, and that such a one as was now proposed was most consonant to former practice. The noble lord had spoken of the clamour and discontent which this inquiry was likely to excite; but he would not suffer himself to be swayed by arguments grounded on the clamour of the factious and discontented out of doors [Hear, hear!]. He did not, however, believe, that the proceedings of a secret committee were looked to with that jealousy and prejudice which the noble lord represented.—His lordship next adverted to the observations which had been made on the selection of the members of the committee, and observed that it was composed of peers as honourable and as well qualified in every respect as could possibly have been chosen. With regard to what had been said on a former occasion by a noble lord (Dacre) respecting the responsibility of a right reverend prelate, the archbishop of Canterbury, for the erasure of her majesty's name from the Liturgy, it was due from him to state that the remarks on that subject were not just. That right reverend prelate was in no respect answerable for the omission, and whatever might be thought or said of that omission he took the responsibility of it on the executive government. What he was anxious to impress on their lordships, with regard to this inquiry, was, that they should not be deterred from the discharge of their duty by clamour and faction either out of doors or within doors. If they were fully persuaded that the course now recommended was the one most analogous to the former usage of parliament, let that consideration guide their lordships' conduct. But if they thought that the course proposed bore hard on the illustrious individual who was the subject of the proceeding, then he would call on them to vote for the motion of the noble lord. They had delayed the inquiry in the hope that all investigation might be rendered unnecessary; 22 that hope had failed, and they were now called upon to adopt the course usually pursued in similar cases. Their lordships were now called on to look at those sealed papers which had been sent down by the king, not for the purpose of trying the illustrious person whose conduct they concerned, but in order to to see whether any investigation of her conduct was necessary.
§ Lord Erskinesaid, he wished to give his opinion on the question at that early period of the debate, because he was the only person on that side of the House who had originally voted for a secret committee. His opinion with respect to the propriety of that vote was not since changed, but he differed from the proceedings of the noble lords opposite in many respects, so far as to render it impossible for him to continue longer on the committee. When the committee was first appointed he certainly felt great reluctance to be nominated as one of its members. Certainly he did not think, that according to the statute of Edward 3rd, there could be any impeachment. The House of Commons might, it was true, impeach; but their lordships were the judges, and would not consent to any proceeding which the law of England would not justify. He looked, however, to probable contingencies; and he thought then as he thought now, that it was not probable the House of Commons would prefer any impeachment for misdemeanor. But what was the state of things at present?—It was impossible when the committee was nominated to foresee the turn which affairs had taken. For the House of Commons, generally, and for many members of it individually, he entertained great respect. But he confessed his surprise at the proceeding they had adopted. He had already stated his opinion on the omission of her majesty's name in the Liturgy. When he looked at the act of Uniformity, he doubted if any power existed in the Crown to direct that omission. The words in the act were very strong. They stated, "That the names should be altered and changed, and suited to the occasion." It was evidently intended, however, only that the names should be changed, but not that the individuals should be omitted. In the address which had been voted to her majesty by the House of Commons, it was said,—"That this House, fully sensible of the objections which the queen 23 might justly feel to taking upon herself the relinquishment of any points in which she might have conceived her own dignity and honour to be involved; yet feeling the inestimable importance of an amicable and final adjustment of the present unhappy differences, cannot forbear declaring its opinion, that when such large advances have been made towards that object, her majesty, by yielding to the earnest solicitude of the House of Commons, and forbearing to press further the adoption of those propositions on which any material difference of opinion is yet remaining, would by no means be understood to indicate any wish to shrink from inquiry, but would only be deemed to afford a renewed proof of the desire which her majesty has been graciously pleased to express, to submit her own wishes to the authority of parliament; thereby entitling herself to the grateful acknowledgments of the House of Commons, and sparing this House the painful necessity of those public discussions, which, whatever might be their ultimate result, could not but be distressing to her majesty's feelings, disappointing to the hopes of parliament, derogatory from the dignity of the Crown, and injurious to the best interests of the empire."—It was absolutely impossible that the queen could accede to this request. Her counsel had last night declared at the bar, that the queen demanded the right which any other subject possessed, of a public trial. When his name was added to the committee, he had no idea that he should be asked to do what was considered" derogatory from the dignity of the Crown, and injurious to the best interests of the empire. All that he expected to be called upon to do was, to examine the nature of the evidence contained in his majesty's communication. He considered it as a kind of indulgence to the illustrious individual in question, since, if a secret committee were to determine that there was nothing against her, no calumniating tongue could have injured her character; and if on the contrary, the committee were to determine that the evidence was sufficient to justify a proceeding, that proceeding must take place openly before the House and the country. Now that her majesty insisted on a public trial at once, the case was different, and he should unquestionably vote for his noble friend's motion. It was impossible for parliament now to recede, 24 unless the queen consented to such a step.
The Lord Chancellorwas anxious to state to their lordships the reasons by which he was actuated in the course that he took on the present occasion. His noble and learned friend who had just sat down, had surely forgotten that the question of the omission of the queen's name in the Liturgy was just in the same state as that in which it was when his noble and learned friend so powerfully argued in favour of the appointment of the committee. Adverting to what had been said by the noble mover of his construction of the statute of Edward 3rd, he complained that the noble earl had, although he was sure quite unintentionally, misrepresented his former statement on that subject. He then proceeded to show how far the statute of Edward 3rd, relative to high treason, referred to the case of a queen-consort accused of adultery, and said, that it was only by a forced construction of that act that she could be viewed as guilty of high treason. He declared this to be his opinion, after a careful examination of the text of lord Coke, who could not make out the doctrine which he had laid down, except by twisting the words of an act of parliament into a sense which they did not naturally bear. Such a plan of proceeding was unjust, and ought on no account to be allowed. Lord Coke's way of making adultery in a queen consort high treason was by considering the party with whom it was committed guilty of high treason, by looking upon her as an accomplice with him, and by then stating that in treason all the parties were principals. This way of construing adultery into treason, defective as it was, could only apply when the adulterous intercourse was carried on with a subject of the realm; but how could it be so construed when the adultery was committed with a foreigner abroad, who, owing no allegiance to this country, could not be guilty of high treason, or indeed of any other offence against its laws or institutions? His noble friend had said, that supposing evidence existed to convict the queen of high treason, he should not have thought it requisite to have referred the case in the first instance even to the House of Commons, but would; have considered it the duty of his majesty's confidential advisers to have instituted proceedings at once before the proper tribunal, and to have put her on her trial according to the regular course of law. But this mode of proceeding, even 25 supposing that circumstances had occurred which had rendered it necessary, and he by no means intended to assert that such circumstances had occurred-for at present he was only speaking hypothetically—this mode of proceeding, he asserted, would have been attended by so many difficulties, of which, independently of the technical objection which he had just urged, not the least would be the procuring of three witnesses to the particular act of treason, that he should have given it as his sincere and deliberate advice to his majesty's ministers not to agitate the question in that manner.—Having stated thus much upon this mode of viewing the subject, he would in the next place state in the most impressive tone which he could command—and he wished that his voice was loud enough to to convey the opinion from one corner of the empire to the other—that those persons brought a most abominable and unjust charge against his majesty's ministers, who said that they were desirous of disposing of this important question in the most offensive way that the public imagination could conceive, when it heard the words "secret committee." For his own part, he must confess, that he should go into that committee with no other view than that of executing justice fairly and impartially between the two illustrious parties who were implicated in this transaction. He owed many obligations to the Crown for the favours which it had, for no merits of his own, so lavishly bestowed upon him; but let his obligations to the Crown be ever so great, there would be no punishment to which the noble lord opposite could bring him which would be too severe for him, if he, during the prosecution of the inquiry into which they were about to enter, holding the high judicial situation which he held, willingly lost sight for a moment of the great principles of English justice. He would go further than this, and would say, that even if his colleagues with one consent, were to agree to bring in a bill of Pains and Penalties against her majesty, without entering into an investigation of the charges exhibited against her, he, for one, would not consent to being made a party to such bill, relating, as it would relate, to the most illustrious female in the kingdom. But then it was said, that ministers in bringing down the bag to the House, and in leaving it, as they had done, on the table, had shown a desire to shrink from 26 the responsibility which ought to attach to them. This he positively denied. He was himself one of the ministers who had brought down the bag in question, and he shrunk from no responsibility that might attach to him for so doing: nay more, he would acknowledge that ministers in bringing down that bag were fully as responsible as if they had brought in a bill of Pains and Penalties. But the present was not a mere question of how far the ministers were responsible for the measures which had lately been pursued —they might have acted rightly, or they might have acted wrongly—they might deserve applause or they might merit public execration—the king and queen were personally interested in it, and therefore the public were in a situation in which the responsibility of ministers was but a point of minor importance, and consequently they might better endure the taunts which were made against them on account of ignorance, stupidity, precipitancy, and vacillation, in dealing with the contents of the bag which they had introduced. Individually he might have a knowledge of what those contents were; but as a peer of parliament he could not at present disclose them. A secret committee had been appointed to decide whether they ought to be disclosed or not; but it was now represented, that it was unfit that it should assemble, because those who were upon it might hereafter be called upon to act as judges. Unless he had mistaken the whole course of parliamentary history —and he could assure their lordships that at various periods of his life he had paid considerable attention to it—whenever a secret committee had been proposed to interfere between the propositions made to their lordships and the acts of their lordships consequent on those propositions—as was usual upon bills of impeachment, bills of pains and penalties, and bills of attainder—it had never been previously urged; and therefore he thought it rather too much that he should be now told, that their lordships were not to interfere, either by public or private committees, as they might afterwards be called upon to act in a judicial capacity. If they gave way to such an argument, their lordships would be giving up certain of their functions of which they had been in undoubted possession for many centuries. It was no objection to the appointment of a secret committee, that it might do nothing, or that it might recommend nothing 27 to be done, or that it might order the attorney-general to impeach, or that it might advise a bill of attainder, or that it might suggest a bill of Pains and Penalties: all these things it certainly could do, though the papers which came out every morning, and which misled the public as regularly as they came out, had asserted that no bill of attainder could originate in their lordships House. In answer to the general aspersions which the noble earl had thought proper to cast on secret committees, he would tell the noble earl, that high as was his rank, and great and deserved as was the general estimation in which he was held, he would not on that night have been in that House freely expressing his sentiments in debate, had it not been for the labours of some of the secret committees that he had attacked. For his own part, he thought that the appointment of a secret committee would be a shield of protection for her majesty [Here some noble lord said, "But she won't use it"]. He had been informed that she would not use it; but his duty to the public urged him to inform her majesty, that her interests must be better defended than they could be by the mere responsibility of ministers. But it was also said, as he had before observed, that the noble lords who formed the secret committee might afterwards become part of her majesty's judges. This, however, would also be the case if a public committee were appointed, and therefore was an objection not so much against the committee being a secret one, as against the appointment of a committee altogether. But their lordships must be aware that they had never yet gone into the investigation of a charge without considering whether there were sufficient grounds for doing so; and he had never heard that the members of secret committees, sacred as were the functions, and important as were the duties which they had to perform, had performed the duties which it fell to their lot to discharge in future stages of the transactions submitted to their consideration, with less fidelity than those of their lordships who had sat on public committees, or who had not been in committees at all. He would endeavour to prove by another argument, that there was no just ground for saying that they were acting improperly in appointing a secret committee to decide on these papers, because the members of that committee might afterwards 28 have to decide upon them judicially. The House of Commons, in commencing an impeachment, had three modes of proceeding—by a secret committee, by a select committee, or a committee of the whole House: but had it ever been said that those who had been upon any of these committees should not vote on the question of acceding to the report? If such a doctrine were to be laid down, how would it be when an impeachment was thought necessary by a committee of the whole House? Why, in that case, as the whole House had been in the committee, the report could not be received, and an impeachment could never be instituted. He allowed that the analogy which had been drawn between the appointment of a secret committee on this occasion and the functions of a grand jury fell short and imperfect; as also that between it and the case of a judge in the King's-bench granting a criminal information, which he might afterwards be called upon to try but, unless such a committee were appointed, they must always originate measures without knowing or caring any thing about the necessity of doing so. He was well aware that he had often been represented, not indeed as a velocipede judge, but as one who was fond of delay; but in spite of such representations he should always make use of and grant that delay winch was essential to the purposes of justice. The legal advisers of her majesty were now requesting delay, not indeed in the progress, but in the commencement of the prosecution, on the ground that they knew nothing of the charges to be exhibited against her majesty, and had all the witnesses to collect requisite to defend her against them. In saying that no more delay than was necessary ought to be granted to them, he thought he was acting in the most impartial manner towards those two illustrious personages who were most interested in this inquiry. Such delay as was necessary, he must again repeat, he would willingly grant; but he could not see on what grounds her majesty's legal advisers, or indeed any of the noble lords who seconded their arguments, could demand a delay of two months, when, according to their own showing, they knew nothing of the charges exhibited against her majesty, and therefore could not possibly be informed of the witnesses who might be wanted to refute them. As for himself he cared little. for the decision to which the House might 29 come that evening, provided it pursued such measures as were calculated to promote the dignity of the Crown, and the interests of the empire: he had stated the reasons which had induced him to oppose the motion of the noble lord for the discharge of the order of the day, and he could assure the House, that he had stated them with the utmost sincerity. If further proceedings in this important inquiry should be deemed necessary, he should enter upon them in the spirit so ably described by an eminent English judge, who declared that he had made a covenant with God and himself, that neither affection nor any other undue principle should ever make him swerve from the strict line of his duty. In that spirit he had always endeavoured to act during the past, and should endeavour to act in the future. The consciousness of doing so would be the best consolation he could possess if he should appear to the friends whom he esteemed to act wrongly, and would form his best title for pardon at the hands of that God, before whose tribunal all mankind must sooner or later stand to be judged.
The Marquis of Lansdownecommenced by observing, that much as it would pain him to differ on any occasion with his noble friend who had brought forward the present motion—and it would give him more pain to differ from him on this than on any other question—still he must solemnly declare, that, if he could bring himself to think that the House was in a situation in which it could consistently with its own dignity and the principles of justice rightly understood, either close this painful scene for ever, or enter upon it afresh with a better chance of success than that which had attended their late efforts, he would most certainly not give his vote in favour of the motion of his noble friend. But not seeing that there was any chance of effecting either of those purposes, he should not enter into any idle discussions upon them, but should confine himself entirely to the question at present before the House, which was indeed of itself sufficient to occupy their undivided attention. He would therefore ask, whether the mode of proceeding, to which, after repeated adjournments, it was now proposed to adhere, was, in the first place, consistent with the forms of the House; and, in the second place, whether it was calculated, if it was necessary—and if it was not necessary, it certainly was not calculated—to 30 further the great work which it seemed now determined that the House should immediately commence? And here he could not help observing, that ministers had done that which they ought not to have done—they had assumed to themselves the right of determining what the Commons of England would do with regard to the accusations which were now laid before them. Both the noble lord on the woolsack, and the noble earl opposite had argued the question upon what they supposed the opinions of the House of Commons would be, and upon the alleged crimes which were contained in the green bag now before them. This he maintained, was not proper, because as the noble lord on the woolsack had told them that he had, during the whole course of his professional life, learned and laborious as that life had been in the practice of the law, entertained until very lately opinions diametrically opposite to those which he now held on the subject of high treason, as committed by a queen of England, it was possible that there might still be in the House of Commons men entertaining the opinions so lately rejected by the noble and learned lord, and determined to act upon those opinions, in opposition to the line so positively marked out both by the noble and learned lord himself, and also by his noble colleague. But the noble and learned lord had only alluded to one accusation—of which, though he well knew the nature, he (the marquis of Lansdowne) would forbear, as long as he could, to mention the name—when he (lord Eldon) well knew that there were other matters of misconduct contained in the bag on the table, not at all connected with the description of the offence to which he had before alluded. Had they, when such was the case, any right to assume that the House of Commons was perfectly certain to adopt the same line of conduct as that which they had recommended? They had assumed it; but what was the real fact? He was not disposed to violate the forms of that Mouse by alluding to phrases used in the other House of Parliament, though he was inclined to contend that those phrases were the very phrases used within it; but to the votes of that other House, he was bound to look, whenever it received a communication from the Crown. Had that communication, he would ask, been disposed of by the other House? No: but he found that a specific resolution had been made to defer the consider- 31 ation of it for six months, and that it had been rejected. Was he not entitled from that circumstance to infer, that the Commons would still consider it? It was his opinion that they would; and he therefore must contend, that until they had determined whether a judicial proceeding against her majesty ought or ought not to be instituted, their lordships ought not to appoint a committee to examine a subject on which they might afterwards be called upon to decide as judges. "But why not?" said the noble and learned lord on the woolsack; "members of committees have always been allowed in times past to vote upon the important questions which they may have examined in those committees." He could not help observing, that at the very time when the noble and learned lord uttered these words, he almost perceived that there was no analogy between the two cases. The cases which he had quoted were cases in which proceedings had originated with their lordships; in the present case measures might originate with the other House, which it was not possible to originate among their lordships. With respect to proceedings in the other House of Parliament, and against a most illustrious individual, their lordships, by instituting any measure, would disqualify themselves from judging; and they would thus disqualify themselves without any precedent, and without that regard to justice which had always governed, ought always to govern, and he hoped, would always govern their lordships' conduct. But if their lordships were not to disqualify themselves from acting as judges by the instituting of a secret committee, still he must consider a secret committee most inexpedient, because most unjust. A noble lord had said that there were no instances of bills of pains and penalties, without inquiry; but since the Revolution it had not been the practice of that House to institute bills of pains and penalties, and therefore it was difficult for him to find an instance of previous inquiry without a secret committee. In the last instance on their records before the Revolution—that of lord Clarendon—there had been no committee appointed in that House, and no previous inquiry. It was true, there had been inquiry in another House, and an impeachment had been voted, when lord Clarendon withdrew out of the country. But there had been already one ex-parte inquiry in this cause; there had been already a secret commis- 32 sion appointed, notoriously for inquiring into the conduct of the illustrious party now accused. He would not here say whether that commission had been necessary or not necessary, he did not consider whether it had been properly or improperly instituted; whether it had been properly or improperly conducted; but if another secret inquiry was now proposed, surely that illustrious person was at least entitled to say, "Let me have no more secret inquiry; if I am accused, let me fairly hear the charges against me, and offer my defence." But if they were now to institute other measures than had before been intended, they must surely apply their attention to the settled rules of the House. In former instances, the House must have been governed by established and recognised rules. The orders and rules of proceeding in that House were a shield of protection, not an optional mode of proceeding. God forbid that that House should not have the most solemn records to authorize and regulate their proceedings! But he asked, whether it was not a great defect to find not a single instance before of a bill of Pains and Penalties thus instituted? The only argument that had in the first instance been urged for this proceeding was, that it was for the benefit of the accused. But surely the accused had a right to disclaim that benefit. Here, then, was a proceeding proposed which was not necessary, which was calculated to excite the most unfavourable suspicions and apprehensions, which would disqualify their lordships from the free and unprejudiced exercise of their peculiar functions, and which the illustrious accused said was calculated to prejudice her defence, and could be no benefit. Was he not therefore entitled to say that this mode of proceeding was inexpedient Therefore the proceeding by a secret committee, he contended was calculated only for delay, which was already too great. As long as there was any prospect of preventing any disclosure to the public, delay might have been proper and useful; but from the moment that such prospect ceased to exist, and that had been notoriously the case so far back as last summer, all delay had in fact, and could have, only the effect of agitating unnecessarily the public mind, and of prejudicing justice in the greatest cause which could come before their lordships. Yet when they had instituted this committee their lordships had not advanced 33 one step. The names on the committee were unquestionably respectable. But when they considered that his majesty's ministers were among them, and that they had been examining and considering the documents to be laid before the committee for more than a year, and had not agreed whether they should become public accusers or not, what could be expected from the committee? When the noble earl had brought down the papers, he had avoided as much as possible saying any thing of the view taken of them by ministers, and he had for the first time this night said that ministers were public accusers. Yet there were others of his majesty's ministers, who had the same opportunities of inquiring into the merits, and who said that they were not accusers, and never would be accusers. Would the addition of two, three, or four of their lordships to the number of ministers, elicit any thing more consistent or more satisfactory, or possess greater authority with their lordships? They would therefore be reduced to the authority of those who had brought down the message, and on that authority they would be obliged to proceed, or not proceed at all. Why, then, institute a secret committee, which could only excite alarm and agitation throughout the country, and prove prejudicial to the character of the illustrious accused, and the interests of justice? He had carefully considered the subject, and he certainly did not feel it to be his duty to attend that committee. If by attending the committee he could be of service in the slightest degree to justice—if he could, without that publicity which was precluded by such an inquiry, promote truth—if he could be of use in any fair and consistent shape, he would have attended, and made every sacrifice of feeling and private inclination. But as it was not so, he would decline to attend. He had refrained from saying so till now, because he had entertained hopes, though from the beginning his hopes had been faint, of an arrangement that would save their lordships from all inquiry on the subject. Before he sat down he begged leave to express his anxious hope and his fervent wish that in this proceeding—the most awful, the most pregnant with consequences which ever came under the consideration of that House—since unfortunately they must now in some shape be engaged in it, they would not sink themselves, but raise their characters, both as individuals and as a 34 judicial assembly, by discharging their duties in such a manner as that they could stand acquitted in the face of the country at large. He trusted that they would exercise their judicial functions with all that caution, with all that regard to precedents, and with all that consideration of future consequences which they were bound to exercise, not only from a sense of duty to the illustrious individual accused, but from a sense of the consequences to the country at large. He should give his vote for the motion of his noble friend; if the secret committee still proceeded, he should abstain from attending, reserving to himself the power of acting as occasion might require.
The Lord Chancellorexplained. In reply to the noble marquis, he could state that, in 1703, a message had been sent by queen Anne to both Houses of Parliament, on the discovery of a conspiracy to restore the Stuart family. That House had then examined all the papers, with a view to the best steps that could be taken. There was a great distinction between the legislative and judicial powers of that House. In 1720, the Commons had taken steps respecting transactions connected with the South Sea company, and the repayment of money advanced in that speculation. The Lords also had passed a bill of pains and disqualifications, but the Lords had originated that proceeding. The distinction between the legislative and judicial functions of that House was often very nice; but that House could do many things in originating such a proceeding which they could not do in its progress.
The Earl of Donoughmoresaid, that he certainly could not agree with his noble friend as to the propriety of withdrawing himself from the committee. It was with great regret that he differed from his noble friends upon this occasion, but he had not arrived at his present conclusions without duly considering the subject, examining it in all its bearings, and looking to all its possible results. He thought no reasonable man could object to the conduct of his majesty's ministers upon this occasion. They had not lost a moment in bringing the subject before the consideration of parliament, and the House had lost no time in taking up the royal charge, and appointing a secret committee for its investigation. He thought it right to pay a decent respect to the persons who had brought forward 35 the accusation; he had voted for adjournment after adjournment, and if a further adjournment had been proposed by his majesty's ministers, he should still have voted for it. It had been said that his majesty's ministers were weak men; that they had not sufficient confidence in themselves; and that they had taken counsel of both Houses of Parliament. Now, in his opinion, this was not a fair ground of accusation, and he thought it would be much better for the country if they would oftener take the advice of parliament. Not a single argument had been employed with a view of influencing the proceedings of this House, except what was founded upon the proceedings and speeches of the other House of Parliament. He deprecated the idea of this House being bound by the proceedings of any other assembly, and he thought all the difficulties and embarrassments with which the present question was involved, were attributable to a want of attention on the part of the members of the other House. He would put the case of a person, who had once distinguished himself as an advocate for another, and who had shown great dexterity in her cause, being suddenly seized with some strange wandering, some unaccountable forgetfulness, and being induced to make a glowing speech against the individual, for whom he had once exerted all his eloquence; the right hon. gentleman to whom he alluded had blended much of panegyric in that speech; he had talked of scenes,
——Quæque ipse dulcissima vidi,Et quorum pars magna fui,[A laugh]. Yet it had been his own accusation, prepared by him in common with others, and therefore an accusation which he ought to have supported. He must take the freedom to say, that he did not look upon the present proceeding as a trial of the illustrious lady in question, or even as the commencement of a trial; it was only an inquiry whether there should be a trial or not. He still persevered in his original opinion, that such an inquiry would be most conveniently and most decently conducted by a secret committee; and the observations which had fallen from the learned lord upon the woolsack had convinced him, if he could before have entertained any doubt upon the subject, that such a measure was perfectly in conformity with the spirit and usage of parliamentary proceeding.
The Earl of Lauderdalesaid, it was with great regret that be felt himself compelled to differ with his noble friends upon this most important question. He could assure their lordships that he felt most anxious that the illustrious person accused should receive a fair trial; but be was anxious also that this House should do its duty to another illustrious person, who had felt it due to his dignity and honour to bring forward this accusation. He agreed with the opinion which had been stated to the House by the learned lord on the woolsack, as to the impossibility of proceeding in this case upon the statute of Edw. 3rd. If the illustrious personage were guilty of high treason, she could only be so in consequence of her participation in that offence, and because there were no accessaries in this offence. The maxim that "Accessorius sequitur naturam sui principalis," was in this case most immediately applicable. The queen had, he observed, sent counsel to the bar to ask that opportunity should be afforded to allow her to send for witnesses before any inquiry was instituted. But he would ask, how it was possible for her majesty, or her counsel to determine what witnesses it might be necessary for them to adduce, until it was known what charges were to be preferred? If witnesses were sent for before the result of the proposed inquiry were communicated to the queen's counsel, they might be subject to the inconvenience of collecting witnesses upon points or charges, which, according to that result, were not at all to be brought forward. Would any man then maintain, that it would be better for the object of the learned counsel to have the delay they required granted now by the House, rather than after the report of the secret committee should be made known to them? It appeared to him, indeed, that it would have been wiser on the part of the queen to require that the report of the committee should be brought up before she was called upon to collect evidence for her defence against any charges which that report might recommend. Such an appeal, he could not help thinking much more advisable than that which had been made to the House. With respect to the motion of his noble friend, he felt himself called upon to vote against it. He had now, for about forty years, had the honour of a seat in that House, during which he had frequently been a member 37 of secret committees upon the subject of finance, and of the Bank for instance, and he was willing to confide in the conduct of the ministers who sat in that House, from what he had witnessed upon such occasions; for although these ministers had often expressed very strong opinions in the House in opposition to his own, upon questions referred to these committees, he had always found them in such committees ready to give every due consideration to any point brought forward. Looking, then, to past experience, he calculated upon similar coolness and impartiality of investigation upon the present occasion, and he should vote in favour of the proposition, for the sitting of the committee.
The Marquis of Lansdowne,in explanation, said, that in alluding to the postponement proposed in the House of Commons, he had never intended to propose or recommend a similar measure to their lordships. He did not intend to say, that secret committees ought not to be appointed in certain cases, but that the present was not one of those cases, since he was quite certain that the question could be disposed of without having recourse to a secret committee.
Lord Belhavendeclared that he could not abstain from expressing his intention to vote for the motion, while he was not at all inclined to oppose inquiry upon this subject. On the contrary, indeed, he was an advocate for inquiry, but it was for such a public and open inquiry as was agreeable to those principles of British justice which he had always been taught to venerate, and not for any mode of inquiry which was inconsistent with those principles, and especially when the party accused so strongly objected to it. The queen, he could readily suppose, might see reasons for this objection, of the propriety of which the House was not competent to decide, and particularly from her knowledge of the machinations employed against her; and therefore, feeling it his duty to yield to her appeal, he would vote for the motion.
§ Lord Bulkeleyregretted that on this occasion he was called upon to differ from those with whom he usually concurred; but from a reverence for those principles of British jurisprudence which, since he was a boy at school, he had been taught to hold sacred, he felt it his duty to vote for the motion. He could never, indeed, allow himself to assent to the violation of 38 those principles, whatever might be the rank of the party accused; and therefore he should be equally tenacious in this instance, whether the accused were merely Mrs. Brunswick, or the queen of England [Hear, hear!]. The noble lord again declared, that he differed with pain from those with whom he generally agreed; but he was urged by a strong sense of duty to say, as he could not hesitate to do were it even his last word, that he deprecated the course which they proposed to pursue upon the present occasion.
Lord Hollandsaid, that in giving his vote, as he intended, for the motion of his noble friend, he should make no promise as to what course he might ultimately think it proper to support. He had from the outset disapproved of the course which ministers had taken, from a conviction of the irregularity and inconvenience of their proceedings; and of that irregularity and inconvenience many of the ministers themselves had since become fully sensible. Nay, two of the noble lords who were appointed on the secret committee, had that night stated their intention not to attend that committee from an impression of its irregularity. The reasons stated by those noble lords were no doubt different, but their resolution was quite the same. Those noble lords, whom he was proud to call his friends, had, throughout life, rendered such services to the cause of justice and liberty, that no one was more ready to acknowledge those services than himself, and especially with respect to his noble and learned friend behind him (lord Erskine). He therefore regretted to differ from his noble and learned friend upon this subject on a former occasion. Since that occasion, however, his noble and learned friend had this night observed, that the case under consideration was materially altered, and therefore his opinion had undergone a change. The case, had, indeed, been altered, as appeared from the proceedings elsewhere. He would not refer to the conduct of the other House of Parliament, to which two noble lords on the other side had observed it would be irregular to advert, although each of those noble lords were themselves betrayed into that irregularity. But he would refer to that which was matter of public notoriety, namely, the negotiation which had taken place between two of the king's ministers and the legal advisers of the queen. Their 39 lordships were aware of the protocols that were published, and here he would ask quid est protocol, or was there no word in the English language to answer the purpose without importing this expression? The subject of those protocols had, however, materially altered this case, as well as certain resolutions, which were also matter of notoriety, and in the adoption of which, several of the ministers themselves had concurred. From these negotiations and resolutions, then, it was evident, that this question had been changed since its former discussion in that House, and principally too through the conduct of ministers themselves. But his noble friend (lord Lauderdale), and he was surprised to witness it, avowedly confined his confidence to those ministers who were members of that House. Upon their conduct, it seemed, his noble friend was disposed fully to rely in the proceedings meant to be investigated by the secret committee, from which the motion proposed to relieve the House. His noble friend had also become an advocate, in a great degree, for the institution of secret committees, but without stating the grounds of that advocacy very fairly. Against this system of secret committees, however, he (lord H.) could not hesitate to enter his protest, for although he had not long lived in this world, it was his mortifying fate to see the liberties of his country more than once subverted by the system of secret committees, preceded by accursed green bags [Hear, hear!]. He had, indeed, in one instance, seen the constitution suspended through such a proceeding, within the space of twenty-four hours, and when only seven members of that House were present to deliberate upon the measure. It had been said, that bills of pains and penalties might originate in that House; but this doctrine he utterly denied, and challenged its advocates to produce any precedent in its favour. He, indeed, was decidedly of opinion, that such measures should rather originate in the other House of Parliament, as they had usually or uniformly done. It could not be pretended, that since the Revolution any case had occurred at all analogous to the present. There was, no doubt, a case upon record which had some analogy, but to which it must seem somewhat ludicrous to allude—he meant the case of lord Clarendon, who was said to have been implicated in a great conspiracy. Upon this statement 40 or suspicion, that learned man was specially requested to leave the country for sake of the public tranquillity. No money, however, was offered to the noble lord, nor was there any negotiation or protocol respecting him. Lord Clarendon, as it might naturally be supposed, did not like the proposition to abandon his country. In deference to authority, however, he was induced to leave it, and within three days after his departure, a bill of pains and penalties was preferred against him for flying from justice. But the present case was directly the reverse, as it was proposed to the illustrious personage under consideration, that if she would fly the country she would be rewarded for her flight by such a liberal grant of the public money as might enable her to maintain her station abroad. The proposition was however rejected, and thus we were in a different situation respecting her majesty from that which regarded lord Clarendon. Looking, then, to all the circumstances of her majesty's situation, he thought his noble friend must agree with him in thinking that a very strong ground of state necessity should be made out before their lordships could consistently institute an inquiry which, according to high authority, would inevitably prove derogatory from the dignity of the Crown, and injurious to the best interests of the empire [Hear, hear!]. But what degree of state necessity could be adduced or imagined for inquiry upon this occasion, merely because the queen thought proper to returh to, or to remain upon English ground? Ministers had said that they would state this necessity before a secret committee. But was it consistent or customary to determine upon the sitting of such a committee before any such necessity was stated, or was it enough to tell the House that it should wait for a statement of the ground of that necessity until the secret committee brought up its report? It was inconsistent and unjust, he would maintain, to call upon any portion of their lordships to make out charges upon which they might afterwards be called to decide as judges. The learned lord on the woolsack had, no doubt, alleged that the green bag contained nothing that could justify impeachment, and tin's allegation the learned lord grounded upon the strange doctrine that nothing was impeachable that was not indictable at common law, in which doctrine his noble and learned friend behind 41 him had concurred. But notwithstanding the very high authority of both those noble and learned lords, he would ever maintain that such doctrine was contrary to the constitution of the country, particularly to the privileges of parliament. It was a proposition utterly untenable indeed that the rules of the lower courts could fetter the discretion of parliament, or that no public officer could be impeached unless he committed such an offence as was cognizable at common law. The lex consuetudo parliamenti was no doubt a part of the common law, but he never could subscribe to the doctrine that indictable and impeachable offences were convertible terms. The establishment of such a doctrine, indeed, would serve to exempt ministers from all efficient responsibility, unless for offences of the utmost magnitude known to the law. If their lordships valued those constitutional doctrines, on which, in the best times, the dearest interests of the people were supposed to depend, they would allow no authority from the woolsack, nor from the benches of that House, to poison their minds against an old and sound constitutional doctrine, for the purpose of receiving another which would render the ministers of this country completely irresponsible characters. Suppose an ambitious, factious, weak, or injudicious minister to involve this country unnecessarily in war—to bring on this empire the greatest of possible calamities—would not his conduct be liable to punishment? Certainly it would. But that punishment could not be awarded in a common court of law; an indictment could not be there preferred against him. He was, however, accountable to parliament. If, with respect to this illustrious personage, the first subject in the country (and he wished it had been generally recollected that she was the first subject in the country), the queen-consort, placed in a high office—if, in her case, ministers conducted themselves so as to create a great evil, they were, he maintained, accountable to parliament for it. This, he was sure, was the doctrine of lord Somers, and of all the great men who had been distinguished as parliamentary lawyers. He therefore thought, when ministers were laying a bag of accusations on the table, that they should have recognized this principle and made no allusion to the common law. If a contrary doctrine were held, it would be subversive of the 42 most important functions of parliament. With respect to proceeding by impeachment, it had been resorted to but twice for several years. "Impeachment," as had been observed by a great lawyer, "is a Goliah's sword, and can only be removed from the temple on great occasions." It was a weapon which only applied under circumstances in which no other course of proceeding could apply: so far were "indictable" and "impeachable," from being convertible terms. The question under consideration was briefly this, whether the method of proceeding by a secret committee, was the proper course that should be pursued on this occasion? No individual had argued that the decision of a secret committee might not be necessary, might not be useful, under peculiar circumstances. All that had been said on that side of the House was, that it was neither proper, just, nor necessary, on the present occasion. He, and his noble friends were of opinion, that employing a secret committee, where it was not absolutely necessary, was an extremely unwholesome practice; not because it was of necessity an unjust proceeding, but because it was one out of which so many monstrous acts had arisen, that it could not give satisfaction to the public mind. With respect to precedents in favour of such a course, he could see no precedents in the case. The noble earl had adduced instances of secret committees having been appointed in this and the other House on great public questions, when messages had been sent down by the king; but he did not state any instance where a message was sent by the Crown relative to the conduct of an individual. "O," said the noble lord, "a similar course has been proposed by ministers in the House of Commons." There, however, they must be considered in the light of accusers—they had only one character to appear in—they might proceed to the end with unstained honour. But it was a very different thing, with reference to their lordships, who would be called on to judge a party at the bar on whose case they had previously formed an opinion. There was not only no precedent, but he would go farther, and say, the analogies were all against the noble earl. If they looked back to bishop Atterbury's case, the Crown, on that occasion, had seen a number of papers, belonging to a Mr. Layer; and, having looked at these papers, the advisers of the 43 Crown thought they saw in them the proofs of a very extensive conspiracy, with which bishop Atterbury was connected. The Crown deemed it necessary to address both Houses of Parliament on the subject. The address stated, that there were good grounds to believe that an extensive conspiracy existed, and called on parliament to take into consideration what proceeding it would be proper to adopt. Did ministers call for bishop Atterbury at that time? No. Did they send bags down to both Houses of Parliament? No. They sent a sealed bag, containing papers, to the House of Commons. The papers were examined, and the House, for some reason or other, did not think it necessary to come to any resolution with respect to those papers. They deemed it better to legislate; and a bill of pains and penalties was introduced. It was immediately passed, and along with the sealed bag sent to the House of Lords.—Notwithstanding all that had been said to induce them to agree to this committee, he would call on their lordships not to adopt that course. He wished to know did the people on this occasion, look silently at the proposed measure? He did not wish to enter into the general measures of administration, but he could not help smiling when the noble earl so triumphantly appealed to the period during which the counsels of himself and his collegues had prevailed. If the noble lord was so highly delighted with his own handiworks, with the general state of the country, with the present situation of its agriculture and its commerce, he was glad to find that his mind was so easily satisfied. Si est ea gloria floreat. It was a species of glory in which he did not wish to participate. The noble earl had stated what, in his opinion, would have been the consequence if the counsels recommended by his noble friend (earl Grey) had been adopted. It was, he conceived, paying no very great compliment to the noble earl, nor was it very consolatory to the country, when he said that, had the advice in question been acted on, the results would not have been worse than those which had taken place. With respect to the question immediately before them, he must observe that the rules which regulated a court of law, or those which directed a court of impeachment, ought never to be departed from through a feeling of favour, although they might be new modelled to suit the justice 44 and convenience of a particular time. If this were so, he contended, that the opinion of the public ought to be looked to, with respect to the method of proceeding. He would say even more—that the feelings of those connected with this case should not be overlooked. He knew nothing at all of the merits of the case; though he knew her majesty by sight, he was not personally acquainted with her; but as to the particular charges, he had no sort of information on the subject; he would, however, not speak of treating her majesty as an illustrious personage; he would look to her case as to the case of any accused person who was supposed to have committed an offence, and he would demand for her the same measure of justice. Could they on such an occasion adopt an anomalous proceeding, as he had shown that this would be? If any one part of the proceeding was not necessary, and if that part were considered by her majesty to be offensive, he conceived that that alone would be a good reason for changing the measure. He contended that to proceed by a secret committee, would be to prejudge the case on ex-parte evidence, although they had been gravely told that it would not have that effect. But, not long ago, a motion was made for an inquiry into the conduct of the Manchester magistrates. Ministers then said that an inquiry of that kind would be such a prejudging of the question as they never could consent to. In the present case, however, they thought differently, and they talked of the great impartiality which they had displayed throughout the business. When the motion he alluded to was made, ministers said, "We understand what you mean when you move for this inquiry: it is equivalent to a vote of censure. If it were agreed to, who would act in the capacity of a magistrate?" But now, it was not only just, but it was a most merciful proceeding, to institute a secret investigation. An inquiry into the conduct of the queen, was, it appeared, merciful: but to examine the proceedings of a number of magistrates would be degrading and insulting in the highest degree! He could not conceive how it was possible that the committee could finish this business in a few days, or a few weeks. Persons had been coming over who had been employed in collecting all those details for a year: a commission had been sent out; a report had been made by that commission, which had, of course, been 45 seen by his majesty's ministers. They had not stopped here; they had stated all they knew to the greatest law authorities in the kingdom, who considered the alleged crime in all its bearings. After this paraphernalia of preparation had been resorted to, ministers came down to the House and said, "We will not state what we intend to do, but will leave the matter to the opinion of a secret committee." He would say, with reference to that committee, that if it had not been called for, they would not now have been placed in the state of embarrassment in which they stood. What that committee could now do, which might not have been effected a year before, he could not say. He was sorry to see on that committee the metropolitan of England, who of course had sanctioned the striking out of her majesty's name from the Liturgy, as one of his majesty's advisers. In opposing the motion for a committee, could it be supposed that independent peers in that House were actuated by any ill feeling towards ministers? Did they not know that the feeling of the people out of doors was universally opposed to such a proceeding? No precedent, nor even any analogy, could be produced to support the motion. If the committee expressed a strong opinion, or was looked upon as a high authority upon the subject, it was then liable to all those objections which he had before stated, because it tended to prevent the impartial administration of justice. If on the contrary, it merely pointed out what course the House should pursue, where was the necessity for appointing it? Could not his majesty's advisers, as they had often done before, point out the line of conduct which it was deemed necessary to adopt? But, said the learned lord, there should be previous inquiry in all parliamentary proceedings. From this doctrine he wholly dissented. The principle of the constitution was precisely and extravagantly the reverse. The only proceeding in the other House of Parliament that one man could move against another was an impeachment. Any member might start up, without any previous inquiry, and lay articles of impeachment on the table. There they must lie for a fortnight without even being seconded, and yet they were told that no criminatory proceeding could take place in parliament without previous inquiry. Where was the previous inquiry in lord Clarendon's case? Where was the previ- 46 ous inquiry in the case of a noble friend (lord Ellenborough), now no more, for whom he had always entertained a most sincere regard? In this latter instance, the sense of the House was decidedly against the impeachment; and yet all the wisdom of parliament could not remove the articles from the table for a fortnight. The noble lord again shortly adverted to the words used in the resolutions of the House of Commons, which, he contended, stated most plainly, that by proceeding in this course they were derogating from the dignity of the Crown, and injuring the best interests of the country. For his own part, he looked upon the proceeding by committee to be unconstitutional, unnecessary, odious, and unseemly. Their lordships had, on a former occasion, when it was discovered that bills of indictment were sometimes found without full evidence, passed an act to prevent the recurrence of such a practice. Then their lordships showed that accusations should not rest upon light grounds. They should be supported, in a case like the present, either by the correspondence of the individuals implicated, by parole evidence, or by evidence given before a competent authority in this country. But much that was contained in this bag must, from the very nature of things, be the depositions of unknown persons. Such evidence was not fit to be laid before a secret committee, because the members of it could have no opportunity of deciding on its veracity. There never was a subject that so completely agitated the feelings of the people of this country, from one end of it to the other, and therefore it should be handled with extreme caution; and he implored the House to consider well the dangerous consequences that might result from taking a false step unnecessarily, if not unjustly. In another point of view, he could not help calling on them to proceed with the utmost circumspection. He alluded to the effect which their conduct would produce throughout the country. If they proceeded rashly, people would be apt to say that the House of Commons had acted with spirit, that it was a mettlesome steed, which ministers could not manage, and that therefore they were obliged to go back to their old pack-horse—the House of Lords. This perhaps would be said, not in consequence of the substance of what they did, but with reference to the form and mode in which they had proceeded. On all these 47 grounds he would vote for the motion of his noble friend.
The Archbishop of Canterburysaid, after what had been stated by two noble lords in the course of the debate, it was necessary that he should declare his feelings on this occasion. The noble mover, who adverted to the list of those appointed to go into this inquiry, objected to the name of the archbishop of Canterbury, because, as the noble lord stated, he was the responsible adviser of the Crown with respect to the alteration of the Liturgy; and another noble lord was of opinion that the archbishop of Canterbury was the constitutional adviser of the Crown on that point. Now, he believed that neither of the noble lords was correct on this question. If they were correct, they would have the goodness to show where their authority lay. Was it in the act of parliament? The only act he was acquainted with on the subject was the act of uniformity. Was their authority to be found there? He must conclude that unless they pointed out the ground on which their statement rested, it was a gratuitous assertion. He would tell the noble lords that he was willing to relinquish his station on the committee in question, if the noble lords could point out such grounds as would be satisfactory to the House, and which would not impeach his integrity as a public or a private man.
Lord Hollandexplained, that nothing was farther from his intention than to impeach the integrity of the right reverend prelate. But as that right reverend prelate conveyed the acts of the king as head of the church to the clergy of England, and as there was no act done by the king in that or any other character, for which there was not some ostensible and responsible adviser, he considered the right reverend prelate as responsible for the alteration in the Liturgy.
The Earl of Liverpoolsaid, the alteration of the Liturgy was the act of the king's confidential servants who had advised it, and who were prepared to justify its legality and its expediency. The act was done in council, and the lords of the council who were present were perhaps strictly responsible; but in the practice since the Revolution, the acts done in council were preceded by advice on the part of the king's confidential servants, who were thus the peculiar objects of responsibility. The archbishop merely acted ministerially, and was obliged to execute the orders in council.
§ Lord Dacredisclaimed the slightest intention personally to offend the right reverend prelate. In bringing forward the petition of her majesty, he had observed that some of the noble lords who formed the secret committee, had in some way or other already formed an opinion. That the ministers who had laid the bag on the table must have formed an opinion was not denied; but it was doubted whether the right reverend prelate was pledged on the subject, or whether he was the responsible adviser of the omission of the queen's name in the Liturgy. The noble lords on the other side might assume the responsibility, but they could not divest the person who was legally responsible of that character. If the archbishop submitted the alteration to the king, and returned to the council and declared the king's will, he was the king's adviser; and though not removable, was impeachable for bad advice.
The Earl of Liverpoolagain explained. The alteration of the Liturgy was made by the declaration of the king in council. It might be a question whether all the lords present at the council were not strictly responsible, but as in reality the declaration was made in all cases by the advice of the committee of the council, generally called the cabinet, they were the persons on whom parliament would fix the responsibility. As for the right reverend prelate, he, in communicating the order to his clergy, had no discretion left him.
§ Earl Greysaid, the right reverend prelate, in communicating the order in council to his clergy, acted ministerially, and might not be for that act responsible. But in signing it as a privy councillor, he unquestionably made himself responsible; for the parliamentary power of impeachment was held not only to check pernicious advisers, but to deter any persons from executing illegal commands. Though, therefore, the cabinet ministers were the persons more peculiarly responsible, yet no one who had lent himself to the execution by his signature could be exempt from responsibility. In some cases, indeed, it was necessary to address the Crown to learn who were its advisers, as in the case of a negative given to bills, for then no signature appeared; but to acts of the council there were the signatures of the councillors ["Not always," from lord Liverpool, "not in this case"] at least there was an entry in the council books of the lords present.
The Earl of Darnleysaid, he did not rise to make any remarks, but to state, that as the advice of the ministers to omit the name of the queen from the Liturgy was the cause of the present embarrassment of parliament, if no other lord, better qualified to do it justice, took up the subject, he should call the attention of the House specially to it.
§ The House divided: Contents, 47; Not-Contents, 102; Majority against the motion, 55.
| List of the Minority. | |
| Duke of Somerset | Minto |
| Grafton | Blesinton |
| Devonshire | Viscount Anson |
| Hamilton | Bulkeley |
| Argyll | Hood |
| Marq. of Lansdowne | Downe |
| Downshire | Lord De Clifford |
| Earl of Essex | Dacre |
| Jersey | Saye and Sele |
| Breadalbane | Belhaven |
| Roseberry | King |
| Cowper | Holland |
| Stanhope | Ducie |
| Hardwicke | Foley |
| Darlington | Gage |
| Ilchester | Auckland |
| Earl Spencer | Yarborough |
| Grosvenor | Calthorpe |
| Fortescue | Carrington |
| Carnarvon | Lilford |
| Darnley | Alvanley |
| Rosslyn | Erskine |
| Romney | Crewe |
| Grey |