§ The order of the day being read,
The Marquis of Lansdown
When the House adjourned on Saturday, he was, he said, about to call their lordships attention to the Aum case, so pointedly alluded to by the noble earl opposite and the learned lord on the woolsack. It was singular that both those noble lords should have selected the case at Aum as one which confirmed the inferences to be drawn from what passed on board the polacre, when the whole of that case rested exclusively upon the evidence of Deraont and Majoochi, whose testimony those noble lords had declared that they dismissed out of their minds. Demont and Majoochi were the only witnesses who were called to prove that part of the case. Lieut. Hownam had not the slightest knowledge of any circumstance which had a tendency to corroborate those witnesses; and even Paturzo, agreed with, Hownam, and was unable to say whether the princess and Bergami rested exclusively under the tent. The noble earl re- 1657 lied upon a circumstance which had no weight whatever with him, namely, that the tent was a double tent, and that the princess and Bergami slept within the interior circle of it. It appeared, however, from the evidence, that there was but a small separation between the outer and the interior circle, which was obviously designed to afford some sort of shelter in that sultry climate. The moment the circumstances were examined, there was an end therefore to the suspicious inferences drawn from the outer and the inner circle. He begged their lordships' attention to the evidence of Demont upon this subject, as it furnished a most remarkable proof of the mala fides, which characterised every part of this woman's testimony. In her examination in chief, Demont, in giving evidence as to the situation in which the princess was found reposing in the day-time under the tent, being asked whether she was dressed or undressed, immediately replied undressed. The answer was obviously intended to leave a certain impression upon the minds of their lordships. In a subsequent part of the evidence, their lordships will find, when the counsel for her majesty were endeavouring to set her evidence aside, with what reluctance she was compelled to do away the effects of her former testimony. She was asked, whether the princess was dressed when she came out of the tent, and he begged their lordships' attention to her answer: "She had nothing but an outer robe or garment." Such was the evidence upon which many of their lordships wished to aggravate the circumstance of her majesty's reposing under the tent into a direct inference of guilt. He thought it right to call their lordships' attention to these facts, not because he conceived there was no impropriety or indelicacy in the conduct with which her majesty was charged, but because, in this case, as well as in that of the polacre, inferences were attempted to be drawn, which the circumstances did not warrant; for it was scarcely possible that a criminal intercourse could have taken place during the time which her majesty allotted to repose in a hot climate, for the purpose of enabling herself to resume her journey.
He begged now to advert to some observations which had been made by the noble lords, on the subject of the persons! composing the suite of her royal highness having left her. He must say, that the 1658 noble earl had, in arguing upon this part of the case, made, no doubt unintentionally, a most material mistake. He alluded to that part of the noble earl's observations which referred to the testimony of Sicard. The noble earl had selected the answer made by Sicard as to his motives for quitting the service of her royal highness, in order to induce their lordships to draw an inference unfavourable to her majesty. Sicard was asked, how he came to leave the Queen at Naples, and his answer was, that he did not leave the Queen, but her majesty left him. Here the noble earl stopped, and it was plain what inference he meant the House to draw. If their lordships proceeded a little further in the evidence, they would find an explanation of Sicard which completely overturned the inference which the noble earl had attempted to draw from this epigrammatic answer. Upon being asked whether he proposed to the princess to go to England, or was ordered by the princess to go, his answer was this:—"I pointed out the necessity, about different things that wanted arrangement in this country, that it would be necessary to come about the sale of the furniture and the number of bills unpaid." With this answer upon their Minutes, their lordships were called upon by the noble earl to draw an inference unfavourable to her majesty, from the circumstance of Sicard having quitted her service. So far from Sicard having been sent away by her royal highness, he had asked the princess to allow him to go to England; he had stated the reasons which rendered it indispensable, that he should proceed to England. A learned lord (Manners) had said, that the circumstance of Mr. Craven having warned her royal highness against Bergami bad made a forcible impression upon his mind. Now, he could not help thinking, that an unfair view had been taken of this part of the case. Bergami happened to be the servant walking with her royal highness at the time; and, if their lordships looked at the explanation which Mr. Craven had given of his conduct in this instance, with the statement itself, it would be found, that Mr. Craven had distinctly sworn, that if be had seen any other servant walking with her royal highness, he should have felt it his duty to give her the same warning. He felt that she exposed herself to the observation of the spies, by whom he believed her to be surrounded, and would therefore 1659 have cautioned her against being seen walking with any servant. It was not fair, therefore, to infer guilt from Mr. Craven's conduct on that occasion.
With respect to the case at Carlsruhe, he agreed with his noble friend on the cross-bench, that it ought to be dismissed entirely from their recollection, as in that case one party had been brought up by force to give evidence against the Queen, and another detained by force from coming forward in her defence. Under these circumstances, no tribunal in the world could entertain a charge built upon such evidence. While he agreed entirely with his noble friend as to the case at Carlsruhe, he must admit, however, that the impression upon his mind was, that Barbara Kress appeared to be a fair witness. He was aware that many persons thought differently, but his own impression was, as far as any opinion could be formed in the present unsifted state of the case, that Kress had been herself deceived. It was not certain that this witness had not been imposed upon, and that she had believed that she saw the princess, when, in point of fact, she had only seen the countess Oldi. If he understood the noble earl opposite correctly, he had stated that Kress came forward as a voluntary witness in the cause of truth [The earl of Liverpool assented]. Let their lordships then look at the evidence, and see how far the assertion was borne out. They would see, from the evidence of Kress herself, that the moment her royal highness left the apartments with which she had been accommodated (for what purpose he would leave their lordships to conjecture) by baron Grimm, the first thing Grimm did was, to send for Barbara Kress to ask if she had seen nothing to which she could depose against her royal highness. And yet their lordships were to be told that this woman came forward as a voluntary witness in the cause of truth. It was plain that she was brought to this country by power, and by power alone; and it was also plain that the same power had been employed to keep another witness away, who might have been able to contradict her testimony.
He felt it impossible to close his observations upon this part of the evidence without considering the general bearing of the evidence upon the other parts of the case. He had heard one noble lord say, with great appearance of candour, that he thought it right to dismiss the case at 1660 Trieste from consideration altogether. Another noble lord in the same way had said, he gave up the journey to Sinigaglia. But in justice to her majesty, their lordships were bound not to dismiss from their minds the case at Trieste, or the journey to Sinigaglia. They were bound to bear in mind all the cases which had been attempted to be proved against her majesty; they were bound to remember, that not merely in one country, but in different parts of the world, the same practices had been resorted to, in order to degrade her majesty; the same character of falsehood applying to the charges brought against her in these various places, though the counsel for the defence had not been permitted to prove the conspiracy with which the conductors of this prosecution were charged. The counsel had been prohibited, and, perhaps rightly prohibited, from entering into the proof of that conspiracy; but enough had come out to show, that in all those parts of Europe which had been visited by her royal highness, it had been made known—that to speak against the princess was the sure road to fortune. If they believed that a most extensive machinery had been set in motion to procure evidence against her royal highness—machinery which included among its parts individuals of all classes, from the German minister of state down to the chambermaid at an inn—a character, in his opinion, not less honourable than the German minister of state, who could, lend himself to such a proceeding—if they believed that such a system had been established, their lord-i ships were bound to consider its effects,: not merely upon those witnesses who were: proved to have been influenced by it, but upon other parts of the evidence, that of Gargiulo and Paturzo, for instance, which bore the semblance and colour of truth. They ought, in justice to her majesty, to consider the effects of accumulated falsehood; and when they saw a mass of evidence, originating in the foulest motives, and collected by the most unparalleled means, they were bound to give the illustrious accused the benefit of those doubts, which must arise in those parts of the case where her honour had been tarnished by evidence of a character less unequivocally suspicious.
Their lordships had been called upon to compare the evidence of Majoochi and Demont with that of Hownam and Flinn: and it was endeavoured to create an im- 1661 pression, that the same mistakes and the same want of recollection and candour characterised the testimony of all these witnesses. Their lordships, however, must not confound the evidence of those who happen to forget what did exist, with that of persons who recollect what never existed at all. Majoochi had not only professed to be incapable of recollecting what he could not have forgotten, but he recollected circumstances which never happened; for instance, that of Dr. Holland attending upon Bergami in his illness; a circumstance which was disproved by Dr. Holland, and even by Majoochi himself, who, in a subsequent part of his examination, declared he had no recollection of any medical man attending Bergami. He felt it his duty to direct their lordships, attention to this distinction—a distinction founded upon the natural principles of evidence, and which they were bound to attend to in balancing the various parts of conflicting testimony.—There was another circumstance to which he had before alluded, not so much with reference to the case at Catania, as to what had taken place on board the polacre, and other parts of the case. Undoubtedly it would have been more satisfactory to his mind, if the countess Oldi and Mariette had been called to rebut those parts of the case for the prosecution; but he felt that if they had been produced at the bar, from the want of specifications in time and place in various instances by the witnesses for the prosecution, they could not in many cases have supplied a satisfactory contradiction to what had been deposed. But, admitting that they would have been better called, he could not agree with an opinion which had been expressed in that House, in which the learned lord on the woolsack had concurred, that Bergami himself should have been produced as a witness. Now, whether he, being placed at the bar, had on oath, admitted or denied the charges against her royal highness, his evidence would not have weighed one feather with any candid or honourable man. Not many years ago, in a case of divorce, tried before the court of session, it being proposed to call one of the parties to prove his connexion with the woman to whom criminality was imputed, one of the most eminent judges that ever sat upon that bench, said that he was bound to tell the court that if he (the judge) were called upon to give evidence of his intercourse with the other sex, he should 1662 consider himself, under circumstances of such peculiar delicacy, absolved from the ordinary sanction of an oath. He (lord Lansdown) would not give any opinion upon this point; but, if such were the sentiments entertained by a learned judge, surely their lordships could place little reliance upon such testimony on the part of a man less conversant with the forms of justice, and less sensible of the importance of an oath. Their lordships would recollect that when major Hooke was called to their bar, in a case of divorce, and swore that he had had no intercourse with the lady whose case was then before the House, he was not believed; nor did his testimony for one moment shake the opinion which their lordships entertained as to the existence of criminality.
He wished to make a few observations on the witnesses that the prosecutors of the bill could have produced, but which, for their own reasons, they had not produced. And here he must be allowed to say, that in keeping these witnesses back they had adopted a far different view of the case than that which they themselves had originally laid down—a view different not only from that professed by counsel, but from that which it was alleged was to guide, not their own decisions as prosecutors, but their lordships' decisions, namely, the investigation and attainment of truth. The real cause to be tried, was said by the ministers of the Crown to be Truth versus the Princess of Wales. If the noble earl opposite had been asked at the commencement, supposing any evidence to be prepared, which, while it threw suspicion upon the agency by which these charges had been collected, bore materially in favour of the princess of Wales; and if that noble earl had been; told that the greatest efforts would be; made to suppress that evidence, would he not have declared that he would be the last man in the House to countenance that suppression? Let their lordships mark the way in which they had been directed first of all to proceed, and the measures into which they were afterwards drawn. Let them remember that it was at Naples where that foul and licentious system of crime had been described to have originated. And yet Dr. Holland, standing in that peculiar situation which gave him the best opportunity of ascertaining the truth, being independent of her in circumstances, owing her nothing on the score of gratitude, and having an op- 1663 portunity of securing patronage, honour and emolument, if he could have been swayed by any other motives than the dictates of his honourable mind—Dr. Holland swore, that no inquiry had ever been made of him by any one of those prosecutors, respecting the conduct of the princess of Wales. Not only was Dr. Holland overlooked by those inquirers in search of truth, but a very material witness, Maurice Credi, had been kept back from examination at that bar. It appeared also that the very woman who had the care of the linen, and whose business it was to attend to the making of the beds, at the very time the adulterous intercourse was alleged to be going on, Annette Preising was not examined. She was the best witness to prove adultery or no adultery. The prosecutors, the anxious inquirers after truth though able to produce her, have never ventured to examine her. She was in this country, it was said in Cotton Garden. When he recollected how the counsel for the Queen, who had the interests of their client to consult, had been taunted on account of holding back particular witnesses; and when he considered that, on the part of the prosecution, it had been professed that the only object was the discovery of truth, he considered that the House, as well as the Queen, had been hardly dealt with, when they were not allowed to see that evidence which, if the accusations were true, must have distinctly and satisfactorily proved them.
With regard to other parts of the case, which when connected together, led some noble' lords to found upon them a presumption of adultery, he must at once declare that he could join in no such presumption. That there was evidence of some impropriety and indelicacy, supposing, that their lordships could entertain a charge of that nature, he would not dispute. But he hardly thought the House would think itself justified in trying any individual, and much less the Queen of England, upon a charge of alleged impropriety. If that were possible, he, for one, should certainly not hesitate in the verdict which it would be his duty to return. He would take care, however, at the same time, not to express it in the harsh and unqualified terms which he had heard, even in that House, applied to the conduct of this illustrious and unfortunate individual. His verdict must be accompanied and connected with a remembrance of the peculiar situation in which she bad 1664 been placed; and he should not think that he was dealing with that humanity which best became the infirmities of our common nature, if he were to overlook the numerous circumstances that ought to qualify and mitigate his censure. In every condition of life we derived our chief support in' the discharge of our moral duties from the consolations of friendship, from an intercourse with society, from the respect and value attached to character, from intimate connexions and near relationships. It was seldom, without all these aids and supports, that moral obligations were fulfilled satisfactorily to ourselves or others. On the present occasion, he was bound to advert to some circumstances, although he meant not to go into their merits, which must have influenced his judgment, had he been called upon to pronounce it on the general conduct of the Queen. He would, however, go no farther than to suggest, that any person who had to act a solitary part—for whose conduct there existed no fixed rule—who was left unguided by any of the lights afforded by a situation more known and definite, had strong claims on their indulgence and liberality. It was in consequence of what he had heard thrown out upon this subject a kvr days since, that he thought it right to make these few observations with regard to it. He did not offer them in mitigation of any fault of which their lordships could take cognizance, for he would contend, that they had no authority to pass any judgment upon it whatever, and far less the present bill. The nature and character of the bill merited, indeed, particular notice, and he should be sorry if the House were to come to a decision without deeply considering them, independently of the question, which rested on the evidence alone. Far from thinking that this was not a stage of the bill for discussing its expediency, he conceived that they were bound, as patriots, as statesmen, and as legislators, to go at present into that discussion. A noble earl opposite had said, that a bill of Pains and Penalties carried a bad name with it. Long, he trusted, would it so continue to carry a bad name! The noble earl had said, that this measure might be called a bill of Pains and Penalties, but, after all, what was it but a common Divorce bill? In this observation he had been seconded by a learned lord on the cross-bench. It came, however, with an ill grace from those who had ori- 1665 ginated this proceeding, and who, at its commencement, had, in order to enable the House to act as judges in the cause, proposed a committee to search for precedents—into what? Into precedents of bills of Divorce? No; but into precedents of bills of Pains and Penalties, and, under the pretext and colour of which special character, the important precedent of the duchess of Norfolk had been excluded from its report. And now, when the whole weight of the present measure was about to fall upon the Queen's head, these same noble lords turned round, and asserted that it was only a common Divorce bill! This measure was as different from a Divorce bill, as a bill to give relief to the subject differed from a bill to inflict punishment. Relief was the only object of a Divorce bill; and if it punished, it punished incidentally. Here punishment was the object; and, if it could be supposed that relief was given, that relief was incidental. The legislature interposed on this occasion, because there was no law in existence which was applicable to it. Could their lordships, then, conceive that any justification was to be found by flying to the shelter of bills of Divorce, in a case where no proceeding had taken place in any of the courts below—where the inquiry was conducted in a manner altogether novel, and went throughout on doubtful and imperfect evidence? This would be to deal out the harshest measure of justice that ever was administered by any legislature pretending to distinguish between right and wrong, and would be an infringement not only of the Queen's rights, but of the rights of every subject of the realm. The bill was more harsh and violent in its operation than any former bill of Pains and Penalties; and might well be, as it was, unpopular, not only with the mere rabble, as they had been called, and who had been described as knowing nothing of its nature, but with the middle and thinking classes of the community, with those classes who constituted the most valuable part of the moral force of the nation. Every writer of reputation, every man of wisdom and virtue, had held such acts of legislative authority in abhorrence. The present generation enjoyed the inestimable advantage of being instructed by the labours of men whose genius had shed the light of day on many of the most interesting branches of political science. There were 1666 few now sitting in that House who had not availed themselves of this advantage, and who did not bring to this discussion minds enlightened by a perusal of a Blackstone and a Paley. If, then, they found Blackstone, when commencing on the laws of his country, and Paley, in treating of the principles of morals and their effects on public and individual prosperity, uniting in their condemnation of such bills as the present, and regarding them as a mockery of justice; if it was seen that Blackstone receded from an explanation of the term "Bill of Pains and Penalties," lest he should be suppose to view it as part of our established system, and that Paley described all such proceedings as anomalies that seldom failed to be attended with consequences which all good men deplored, surely their lordships would pause before they gave their final sanction to so odious a measure. Was it wonderful that, under the guidance of these great authorities, the instructed part of the people should be averse to all laws of this kind? As a legislator, he was bound to consider the effect of a law on the people at large, before he consented to it. Their lordships must not forget that they were about to pass a law, and not to pronounce a sentence. They were not administering the laws but making a new law, on a supposed ground of public convenience. Like all other laws, it must be left to work its own way, when it should have passed; and they could not, therefore, be too cautious in calculating beforehand its probable effect on public opinion. With reference to that effect, the bill appeared to him to be highly inexpedient. It would be regarded as a violent application of violent means, having no other foundation than a presumption arising out of a bare possibility. It would be said, that because the princess of Wales and her chamberlain were found reposing under the same awning, on board ship, and there sheltering themselves from the ardour of the sun—because they were in a situation in which adultery might have been committed—the House of Lords thought proper to infer that it must have been committed. It was from what was supposed to have taken place on that occasion, that the expressions in the preamble must derive their justification. It was there asserted, that great scandal and dishonour had been brought on this country. Now, he should be glad to know in 1667 whose eyes this great scandal and dishonour had appeared, or had been reflected on the British nation? In the eyes of the world? No, but in the eyes of Gargiulo and Parturzo. They were the representatives of all Europe, in proclaiming the scandal which was said to have gone forth so widely; they best knew how far our national character had been defamed. No eyes had witnessed except their eyes—no opinion on the subject had been formed except by this pious uncle and his modest mate! They, it seemed, out of some regard to the fame and reputation of a country whose ships and sailors they had occasionally seen, kept the secret in their own breasts, and never dreamed of disclosing it till the Milan commission was instituted. Nay, he verily believed that had either Gargiulo or Paturzo been asked six months ago, what were their feelings and impressions of the English character, as arising out of the voyage in question, the only answer would have been, that they had not made the buono marcato which they expected.
To revert, however, to the subject of public opinion on the measure now under consideration, it was certainly difficult to appreciate all the mischief of which it might be productive. Their lordships had heard of bills for altering the succession, and the ground upon which the present measure was recommended would apply equally to a bill for that purpose. It was founded on an expectation of advantage to public morals. Without any particular allusion, he might here remark, that, in the natural course of events, queens might succeed to the throne as well as kings. Should any small number of persons, from the peculiarity or malignity of their nature, or pushed by their situation into desperate courses, collect together a variety of circumstances not creditable to the moral character of some member of a family which had no right to the throne of these realms, but what was given to them by an act of parliament—the same sort of title which the Queen derived from her Marriage act—was it not obvious, that the most fatal consequences might ensue, if the principle now adopted should be adhered to? No matter whether the satements arid charges made by the small number of persons to whom he had alluded were true or false—and no time there would be when Sacchis and Kestellis would be wanting. But upon the principle of this bill, as set forth in 1668 the preamble, the legislature would be bound to take the charges into consideration, to sit in judgment on the moral conduct of the illustrious defendant, whilst the nation divided itself into parties on the question, whether or not he should be set aside, and forfeit his title of succession to the throne. Immoral example, scandal and dishonour thereby brought upon the kingdom, were the only pretext for passing the present measure. Because six years ago, or rather during the three years which preceded the last three, the princess of Wales was said to have pursued a line of conduct calculated to produce an immoral effect, it was inferred that she would now resume that bad example, and that it was therefore necessary to depose her from her state of Queen-consort of these realms. Why, let this precedent be established, and add to it one or two more of the same kind, and they would arrive at elective monarchy. Elective monarchy stood on no other principle than the effect of personal character in the sovereign on the condition of the governed; and the great basis of hereditary monarchy was, that under it such guards and [securities might be established for the subject as would render him independent of the personal character of the individual who swayed the sceptre, and the personal character of the reigning family. If they were to incorporate the policy of this bill into their system, occasions would soon arise for bringing out into active contention all the inflamed 'prejudices and political passions of the country, and the foundation of an elective monarchy would be laid. Was there, then, any public interest for the formation of a precedent so alarming? None that he could possibly understand.
He now came, however, very near to his conclusion, and should trouble them with a very few additional observations. He was aware that many noble lords, although no pledge or suggestion had of course passed to such an effect, would give an unwilling support to the second reading of this bill. They flattered themselves that it might afterwards be got rid of in some way or other; many were inclined to think (each looking to his own favourite mode of escape), that the bill might be greatly mitigated in the committee, and some even conceived that the second reading was one step towards throwing it out. If this offspring of the 1669 wisdom of government were once adopted and cherished to a certain period of existence, they hoped to have the inexpressible gratification of witnessing its funeral.Ducitur iratis plaudendum funus amicis.A very little attention would show that it was utterly impracticable to mitigate the provisions of the bill. No alteration in the preamble could alleviate the punishment inflicted by the first enacting clause. But it was unaccountably imagined by some noble lords, that by omitting the Divorce clause, they would soften the effect of a preamble in which the Queen was declared to be an adultress. Now this, in fact, would be no alleviation, but a very great aggravation of the punishment? How could it be an advantage to her to be considered the King's wife, after the state had renounced her. If this bill were to pass, his majesty would be obliged by no law to support or receive her. But it would also operate as an additional punishment by disability; for whilst it deprived her of all privilege and protection, it would leave her still exposed to the severe power which the law vested in the King over has wife; so that whilst, by the talked of alteration in the preamble, they declared the guilt to be less than what had been charged, they would, by leaving out the Divorce clause, render the punishment more severe than was at first denounced; and having done all this, were prepared to exclaim, "There, now we have mitigated the bill!" This was the mitigation which those noble lords in their wisdom was disposed to accede to. He was sure that a very slight degree of reflection would induce the House to pause before they proceeded further in their present course. Up to that minute they were safe: but a few hours must decide whether they would now, and to all future times, connect their name with such a proceeding, and, whether the bill should finally pass or not, inscribe on an eternal and indelible record, that having convicted the Queen of guilt by a presumption drawn from a possibility, they instantly proceeded to pass a law to carry their judgment into effect. Against the further progress of the measure he most solemnly protested.
The Duke of Northumberland
said, he considered that the allegations contained in the preamble of the bill were satisfacto- 1670 rily and substantially proved. He had anxiously attended to the preliminary arguments against the introduction of this proceeding, to the evidence, to the speeches of the counsel for the prosecution and defence, and to the eloquent discussions which had taken place since the case was closed; and in his conscience he was convinced that a long course of gross and most indecent conduct on the part of the Queen, and an adulterous intercourse between her and Bergami had been established. With that conviction on his mind, he could not consent that she should enjoy that station in society, and claim that respect which belong to the Queen-consort, or that she should be placed at the head of female society and morals in this kingdom. Upon these grounds he had no hesitation in saying that he should vote for the bill as it now stood, unless by some minor proceedings in the course of the bill the personal influence of her majesty should be removed. Remembering that she was the niece of our late venerable monarch, that she was the descendant of a race of heroes, and that she was one who, to say the least of it, did not enter upon her career under the most auspicious circumstances in this country, it was with pain and regret that he was compelled by duty to vote for the second reading of this bill.
§ Lord Howard
said, he had attended to all the different stages of this proceeding, and had concurred in the expediency of the inquiry which had taken place. Under all the circumstances which followed, however, and from the view which he took of the evidence, he did not think that the preamble of the bill had been sufficiently sustained. He considered that Majoochi, Demont, Sacchi, and Restelli, were not deserving of credit; he considered also, that other witnesses who had been called were not entitled to the fullest confidence. With these impressions, combined with the fact of Restelli having been sent out of the country—with Kress having been compelled to come over here to give evidence, while the baron d'Ende was not compelled to come—that such a taint had been thrown upon the whole case, as to render it obnoxious and unsatisfactory to the population of the country. He could not assent to this bill unless the charges contained in the preamble were indisputably proved. He had heard a great deal of witnesses who had not been called. On the one 1671 side, the countess of Oldi, Schiavini, and Mariette; on the other, Riganti, Preising, and others; but the only conclusion to which this led him was, that the case had not been established by that clear and indisputable testimony which he thought would justify them in passing such a bill; and, entertaining this opinion, he thought it his duty to vote against it. As a measure of legislation, too, he had always thought this bill inexpedient. He might not be at liberty to allude to the House of Commons; but still he could not help saying, that it did not appear to him that this bill would ever pass there. Taking all these circumstances into view, he looked upon this measure as inexpedient. He agreed that suspicion was strong; but still the evidence was not sufficient to satisfy a judicial mind, or of such a character as imperatively to call upon them to agree to the bill.
§ The Earl of Enniskillen
said, that although he had supported the bringing in of this bill, he yet thought, upon an occasion of this nature, that every man should be guided by his own judgment. He had attended to the evidence strictly and impartially; and had done his utmost to understand it. He considered, upon the whole, that it was so inconsistent, that it comprised such a mass of contradiction, and was so suspicious, that he could not possibly consent to convict any person upon it. He, therefore, should vote against the second reading of the bill.
said, that considering the strong conviction which he entertained that gross and degrading familiarities had been proved against her majesty—considering, also, that the reasons which he had urged against this bill, on its first introduction, were all of them now redoubled in weight and importance—he should be guilty of forsaking his duty if he did not state the reasons for the vote which he intended to give. He by no means meant to say, that no bill of degradation would be a proper punishment for the licentious conduct which had been proved on the part of her majesty; but if the present bill were fully justifiable in all other respects, looking at the peculiar circumstances of her majesty's situation, he must say that the same moral necessity, which, under the circumstances of gross and aggravated licentiousness that had been established against her majesty, might be supposed 1672 to render a bill of degradation necessary, would as loudly call for the omission of the divorce clause. As, under all the circumstances of the case, he considered the divorce clause as utterly inadmissible, he would beg leave to view the bill simply as a bill of degradation. In that view of it, he would shortly state why he thought it ought not to pass. He should think it a proper punishment, if, after proving the case of guilt, which, in his opinion, had been proved against her majesty, it had also been proved that she had voluntarily relinquished her connubial rights. It ought to be recollected, however, that that abandonment was not her own choice. On that fact, and without alluding more particularly to the letter in evidence before their lordships, he must say, without the least disposition to extenuate her majesty's conduct, that a bill of degradation was, in his opinion, not justifiable. And by whom was the proposed punishment to be inflicted? By the state. Of whom was the state composed? First, of that House; in this particular case the accuser and the judge. But, were there not circumstances of neglect, to say the least of it, on the part of that House, which impaired their power of passing a measure of such extreme punishment towards her majesty. Was it becoming and proper on their part to allow her majesty, whose character belonged to the public, to leave the country without and remark or representation, that by withdrawing from the country she was forfeiting the protection of public opinion, so powerful in this country? Ought it not to have been represented to her, that by removing to countries where the standard of morals was so much lower than in England, she might subject herself to increased temptation, and to events, which, as matters of state, might one day be the subject of public investigation? For this omission on the part of that House, he considered that they were deeply responsible; and that they had forfeited all right of inflicting any such punishment on her majesty as a bill of degradation involved. The other House of Parliament certainly shared in the same responsibility, although in a less degree, owing to the members of it having been twice changed. But then they came to the last party in the state—to the party by whom the measure must be completed, if it should ever become the subject of legislation. He would ask their 1673 lordships, whether, in such days is these, it was desirable to expose the kingly power to the reproach and odium which the royal assent to the bill would infallibly bring upon his majesty, whether he was considered as husband or as head of the state? Was it desirable at the present moment to ask the royal assent to a measure, degrading the consort of the Crown? On these grounds, he could never give his sanction to such a measure; he could never, as far as he was concerned, allow it to stir a step towards its completion. By voting for the second reading of the bill, he should sanction a principle which lie could never recognise as applicable to her majesty under her special circumstances; and admit the right of parliament to inflict a punishment which he did not think they were qualified in inflicting on her.—With this strong feeling against the bill, he confessed that he had a feeling no less strong as to the proofs which had been established of her majesty's guilt. He was compelled to say that her majesty's conduct had been most gross, indecent, and degrading. He could not palliate it. He felt that the laws of God, that the tranquillity of his own conscience, that the peace and welfare and honour of public and of private life, forbad that such offences as those of her majesty should be called by soft and extenuating names. It was on this ground that he felt most strongly and painfully the distressing dilemma in which that House was placed. He viewed the House of Lords, as the especial guardian of the public morals; and he could not help deeply regretting, that he and those noble lords who thought with him, that guilt had been proved against her majesty, of the most offensive and degrading nature, should have no alternative presented to them but either to acquit her majesty or to support the present most objectionable bill—a bill, which, whether considered with reference to its origin, its principle, or its penalties, appeared to him to be equally objectionable. It was certainly highly desirable that some course should be offered to their lordships, by which, without agreeing to this measure, they might, nevertheless, express their sense of such conduct as had been proved against her majesty, and he could not help wishing that his noble friend (lord Ellenborough) would persevere in making some proposition which would enable their lordships to record 1674 their sentiments on the subject. He conceived that that House, as the guardians of public morals, owed it as a duty to themselves to vindicate themselves to the country, by a declaration of their opinion of the licentious conduct which had been proved against her majesty. He was sure that the mischievous effect on the public morals which the discussion of the subject had produced, would be much increased if they abstained from publicly recording their sentiments of conduct such as that which had been proved against her majesty, by unsuspected and uncontroverted testimony. He was far from wishing to undervalue the influence of public opinion. He agreed fully with his noble friend, who had said, that on every subject, public opinion in this country at last came right. But, appreciating public opinion as he did, he thought that one of the unhappy effects of the present measure was, that it too easily and naturally, by the form given to the proceeding, enlisted the warm and generous feelings of the community on the side of licentiousness. He thought the House owed it to the country, having made themselves instrumental in pouring over it Such a mass of odious and disgusting evidence, at least to endeavour to make some compensation for the evil which they had caused. In this view of the subject, he could not vindicate the conduct of his majesty's government in having originated a measure like the present. He was aware that great allowance ought to be made for the peculiar and trying situation in which they were placed. But, he so far agreed with a noble lord, that if they had consulted that faithful guide, public opinion, they would never have brought this measure before the country in this particular shape. He could not acquit them of culpability on this ground. But he must say, in justice to the noble earl at the head of his majesty's government, that although he was persuaded that noble earl's character and the credit of his government would have stood higher if this measure had never been brought forward, the noble earl had certainly conducted himself during the whole proceeding with the utmost fairness, manliness, and candour, and had shown the influence—in this country happily never feeble—of personal character. That the noble earl, at a moment probably when he was on the point of resigning the reins of government 1675 in that House, should undertake a duty, perhaps the most painful that ever devolved on a minister of the Crown—entitled him to a great degree of public respect and esteem. With respect to a large number of the members of that House, who, in the early stage of this proceeding, seemed to be the peculiar objects of obloquy and reproach—he meant those noble lords who habitually supported his majesty's government—he felt himself entitled to say, from his own observation of the conduct of those individuals on this occasion, that he never saw greater fairness, greater anxiety, or a more determined desire to act according to the dictates of their conscience, than had been displayed by them; and he was persuaded that, if this measure should be pressed to a further stage, the conduct of that House would prove, more fully than it had ever yet proved, that it deserved to rise in public estimation, by showing that the love of justice, which was cherished in all other classes of the community, was equally reverenced here. He could not sit down without again entreating 1iis noble friend, who threw out the suggestion, that, by address or resolution, their lordships should declare their sentiments on this important occasion, to follow up that idea, and thus afford to the House an opportunity of vindicating its own moral character, and of protecting the character and honour of that sex, whose moral virtues formed the chief delight and ornament of civilized society. With these impressions, he felt himself compelled to vote against the second reading of the bill.
The Marquis of Stafford
said, that both on the ground of justice and of expediency, the measure before the House appeared to him objectionable. The learned lord on the woolsack had advised their lordships to "be just and fear not." He also would say so; and he would beg leave to proceed with the quotation—Let all the ends thou aim'st at be thy country's,Thy God's and truth's.
Lord De Clifford
said, that although he had made up his mind to a particular view of the question, still he could not suffer himself to give a silent vote on it. The charge against her majesty was, that she had carried on an adulterous intercourse with a person of low condition, and in a most disgusting manner. But, 1676 in the course of the evidence, much contradiction appeared, and many palpable falsehoods were detected. The main case was not therefore supported, although there was ground for believing that her majesty had been guilty of much impropriety of conduct. In considering the case, he could not altogether forget the unfortunate difference that existed between her majesty and the king—a difference which it was probable, occasioned that conduct they were now investigating. It was supposed that her majesty's residence in this country would be attended with ill consequences; but he could scarcely suppose that she could wish to remain here, when her residence could not be attended with any degree of comfort to herself. Rejected, he was sure, the bill would be, in one stage or another; and certainly the sooner they got rid of it the better.
§ Lord Grantham
said, that feeling on the question before their lordships a difference of opinion from those who generally received his public support, and who invariably possessed his private esteem, he could not refrain from stating the reasons by which his vote would be influenced. It had been well observed, that the decision of that House ought to be influenced only by evidence unsuspected and unsuspicious, and which must bring conviction home to every impartial mind. Now, he had paid the closest attention to the evidence, and he could not, in his conscience, say that it had turned out to be of that character. It had been said that enough had been proved to be decisive in ordinary cases and in an ordinary court; but the present was not an ordinary case, nor was that an ordinary court. Their lordships were engaged, not in an inquiry whether any offence had been committed against the existing law, but in framing a new law to meet an existing offence. For his part, he saw so many difficulties in the way of passing the bill in that House—so many difficulties in the way of passing it in the other House—so many difficulties of every description against which no human foresight could guard, even if the bill should pass both Houses, that he could not help thinking the wisest and best course would be to put an end to the measure at once. He was perfectly aware that such a proceeding would also be attended with some difficulties. He was aware that it would be attended with triumph to a mischievous 1677 and malignant faction, who cared no more for the Queen than they did for the most indifferent object to them on earth, but who availed themselves of what they called the Queen's cause to pervert the judgment and to inflame the passions of men better intentioned, though less informed than themselves. He was aware that to such persons the rejection of the bill would be a temporary triumph. He believed, however, that it would be only a temporary triumph; for he was persuaded that the good sense and sound feeling of the country would hereafter form a right judgment of the merits of the case. Before he sat down he thought it right to say, that if the present were a common case on which he was called upon to pronounce a verdict of guilty or not guilty, he should know how to make up his mind on the subject. Undoubtedly, there was much contradictory evidence which was subject to very grave suspicion. The credibility of many of the witnesses had been questioned; but that of others had not been at all affected. The evidence of the Queen's own witnesses had been seriously adverse to her; and, which was a very suspicious circumstance, there were many important witnesses who might have been called on her majesty's part, and who had not been called. Under all those considerations, although he would say "Not content," he could not lay his hand on his heart and say "Not guilty."
§ The Earl of Blesington
said, that though the evidence had been so fully discussed, there were two or three points to which he begged leave to call their attention. A noble lord opposite, observed on Saturday, that the polacre case was quite sufficient, and that upon this the evidence remaining uncontradicted, his mind was made up. Now, it did appear to him, that neither the evidence of Gargiulo or Paturzo was untouched. Paturzo stated, that when certain transactions took place on the deck, his relation, Gargiulo, sent him away, sometimes on one pretence, sometimes on another. Now, when Gargiulo was examined to this fact, he denied any recollection of it; but he afterwards, on being pressed, acknowledged he had sent Paturzo away once, and but once only. In another part of his evidence, in which he wished to show that great indecency, if not adultery, had been committed on the voyage (he alluded to the situation of the bed on deck), he was contradicted by two persons. It was 1678 asked, "Why have not her majesty's counsel brought forward the countess Oldi?" If he had been acting as counsel, he would not have produced her, after the manner in which lady Charlotte Lindsay had been cross-examined by the solicitor-general. She, the daughter of a prime minister, and the sister of an earl, was called on to disclose private communications that had taken place between her and her husband—to procure a letter that was supposed to have been written to her by her brother, relative to leaving the princess's service—and she was obliged, with tears, to acknowledge her own misfortunes. If such were the conduct pursued towards this lady, what sort of an examination would the countess Oldi have undergone? This was not a case like that of Isabella and Mortimer—she a woman of SO, and he a man of 50—where the paramours were actually discovered together. The Queen said "I come before your lordships with confidence—I am ready to abide by the laws of my country—I do so with a full conviction that nothing will weigh with your lordships but the laws of the state and the principles of equity." But this bill, he contended, was contrary to equity; and, if they passed it, they would, instead of adhering to the law, be sanctioning a new measure, founded on evidence that had been disproved and refuted.
The Earl of Gosford
said, that from the evidence which had been adduced at their lordships bar, had this been a case of impeachment, he must have been under the painful necessity of pronouncing a verdict of guilty; but he could not for many cogent reasons, give his vote for a measure, which was pregnant with danger and difficulty. He expected, when a case of this kind was introduced, that it should be supported by such decided evidence as would convince every mind. This had not been the case here. He would not listen to any thing dictated by faction, violence, or clamour. But he admired the generous, independent, and loyal feeling of this country; and that feeling he believed to be hostile to the measure. Their lordships could not, he conceived, take more effectual means to allay the irritation which at present prevailed in the public mind than by throwing out this obnoxious bill. He could not see how any man could vote for it without the divorce clause; and he knew not how I any man could vote for the measure with 1679 it. The greatest difficulties attended the progress of the bill. The farther they advanced, the more those difficulties increased; and therefore, he conceived, they ought to abandon it at once.
The Duke of Athol
said, he never rose with so heavy a heart as he did on the present occasion. The vote he was about to give was dictated by a sense of duty, and by a feeling of honour and conscience. Other noble lords took a different view of the subject from that which he entertained. He gave them credit for the purity of their motives, and he claimed the same liberality himself. The evidence in this case was so clear and convincing, as to leave no doubt on his mind. They had for nearly fifty days been occupied with this subject; and having attended with as much consideration as possible to every thing that had occurred at their lordships bar—to all the evidence that had been adduced—to every argument that had been advanced for and against the measure; having marked with attention the eloquent speeches of many noble lords, he declared upon his honour, as a peer of parliament, that he considered her majesty's guilt to have been proved even by her own evidence. Thinking so, he should feel himself unworthy of a seat in that House if he did not state his opinion. If, then, the charges were well founded, what was the House to do? He did not profess to be lawyer sufficient to enter into a discussion of the history of bills of this nature. It was for him only to express himself, like a conscientious juror. The question for them to consider was, whether this bill should go to a second reading or not? He would not detain their lordships by stating the evidence, and commenting on those disgraceful scenes which it disclosed. He could not, however, but observe, that many noble lords, who had given their opinion against the further progress of this bill, had, at the same time, stated that they believed the Queen to be guilty. That they should vote against the measure surprised him greatly. They must have recollected that it had been incontestably proved that for 35 days the Queen was within a tent alone with Bergami. Even her majesty's counsel admitted the fact. Did not this afford ground for more than suspicion? Standing in the situation of the father of a family, it became his duty, when called on, to state what construction he put on such conduct; and, in his opinion, no construction 1680 could be put on it but one—that of a cohabitation between the sexes. Well, then, some noble lords said, there was a ground for suspicion, while others asserted that her majesty's guilt was proved. What were they to do in this case, where impropriety of conduct could not be denied? Were they not to take some means to support the morals of the country? With whom was the guardianship of those morals to be intrusted, if not with that grave and dignified assembly? Could any noble lord, who considered the Queen's guilt to be indisputably proved, permit an individual, against whom such charges were substantiated, to continue at the head of virtuous and polished society in this country? Would they suffer the morals of their wives and daughters to be endangered by such an example? They had a serious duty to perform, and they were bound, for the preservation of female purity, modesty, and chastity, to take some notice or other of the Queen's offence. If, in the committee, alterations were proposed, or resolutions were submitted to their lordships, such as appeared to him sufficiently strong to save the morality of the country, to express the sense of the House, and to preserve, in future, the purity of the British name, he should be ready to concur in them. He was of opinion that they ought to read the bill a second time, and then go into a committee, where they could consider whether a resolution could be advisable, or whatever else might appear proper to be done, consistent^ with the circumstances of the case. Much had been said about the deficiency of the evidence; but he did in his conscience believe, that if that which was proved before their lordships, was substantiated in any ordinary case, it would be considered as conclusive evidence. Ever}' advantage was afforded that could enable her majesty to make out a good defence. Her advocates were most ingenious and eloquent. But their lordships would recollect, that even they admitted the fact to which he had just adverted; and he could not, therefore, lay his hand on his heart, as an honest man, and say that the scene on board the polacre did not prove, to his conviction, the guilt of the Queen. He should vote for the second reading, thinking that when it came before the committee, something might there be proposed to satisfy, his mind that a due regard was paid to the morality, and well-being of British society.
The Duke of Somerset
said, he objected to bills of Pains and Penalties generally, as being of an anomalous nature. The present case was one of extreme hardship, the evidence being chiefly that of discarded servants, who were always viewed with an eye of suspicion. A most material witness for the prosecution had been allowed to withdraw himself; and this circumstance strongly confirmed the suspicion of a conspiracy, which other facts had excited. Several of the stories, too, had been completely contradicted by witnesses of the most respectable character. There were not sufficient grounds for passing a bill of Pains and Penalties. Throughout the discussion there had been a confusion of two things: it was one question whether there had been any impropriety in the conduct of the Queen; it was quite another question, whether there was proof of the guilt charged in the preamble, which, alone could warrant a vote for the second reading. If there had been improprieties in the conduct of the Queen, it did not follow that she was guilty of adulterous intercourse. There was direct proof only of the manners of the Queen; there was nothing proved of the state of her morals. The evidence against the Queen was discredited by the manner of giving it; there was the most minute recollection of matters against the Queen; while, on other matters, there was no recollection at all. In judging, too, of the conduct of the Queen, their lordships ought never to forget that she had come a foreigner to this country; that she had been notorious for the freedom of her manners before she was selected to be the wife of his majesty; and that a complete conformity to the manners of this country was not to be expected. In her conduct many extraordinary and imprudent circumstances might be traced; but they were not hard to be accounted for, without any impeachment of her morals. This prosecution had excited feelings of disapprobation throughout Europe. He earnestly hoped the bill would not pass, and he most decidedly and conscientiously, would give his vote against the second reading.
§ Lord Grenville
observed, that almost every noble lord who had spoken on the occasion, had described the pain with which he undertook the discharge of a duty so distressing to every honourable mind. In that extreme reluctance he also deeply participated, and even at that 1682 late moment of the proceedings, it was not without hesitation that he presented himself to their notice. At the close of a laborious life, which was chiefly spent in the agitations and contests of that tempestuous period which his noble friend had so feelingly and eloquently described on a former day, he did feel that he should be guilty of no dereliction of his public duty if he wished to dedicate to leisure and retirement the few remaining years, for few they must be, which Providence had allotted him. But, were he as anxious to join in their discussions as he was solicitous to withdraw from them, there were circumstances in the case now under consideration, which, especially when coupled with transactions of a delicate nature, in which he had been concerned some years ago, rendered him particularly desirous to avoid taking any part in the present proceeding, either in its progress or at its conclusion. Their lordships, however, had thought proper to require the attendance of all their members, and it was his duty to obey. He therefore did not come voluntarily before them; he did not stand there according to his own wishes, but most reluctantly and unwillingly to perform a task which he had no power to avoid. Under these circumstances, he had doubted whether it was consistent in him to attract their lordships attention at any period of the proceedings. He had no wish to produce the smallest impression on the minds of other judges by any thing that might fall from him. In all other cases in which he had the honour to address their lordships, he was anxious in his endeavours to urge them to the adoption of those lines of policy which were most conformable to the interests of the country; but on that day he felt, for the first time, that almost all the duty he had to perform was of a judicial character, in the discharge of which, after assigning the grounds of his own conviction, he felt no desire to shake or influence the opinions of those who were bound to decide for themselves. But he did feel that, as upon the present occasion so many noble lords who were not in the habit of addressing the House had felt it their duty to come forward and state the reasons upon which they were prepared to vote, for or against the bill, it would ill become him, who had been so often compelled to trouble them, to remain in silence to the last, as if he were unwilling to avow the grounds of his opinion. It was only in 1683 order to state these grounds to their lordships, and not with any presumptuous hope or vain desire to alter their judgment of the case, that he should now occupy their attention for a few moments.
The question was not so much whether that or any other bill should finally pass the House, but whether that bill should now be read a second time. The question he had stated was, like all other questions proposed for their discussion, compounded of the mixed considerations of justice and expediency. Of justice, in the first place, for no man could fairly give his consent to proceeding one step further, unless he was convinced that the evidence produced at the bar was clear and satisfactory in establishing the guilt of her majesty. Without that conviction on their minds, it was impossible that they could give such a vote. It was true that a person might say conscientiously, as many had said, that guilt was established far more fully than could be wished, but still that there were considerations of public interest which rendered it advisable that the bill should go no further. On the first point of this supposition he was bound to say, that if he could bring himself to concur in the opinion of the Queen's innocence, and most anxiously and sincerely he had endeavoured to bring his mind to that conclusion—if he could have believed that suspicion only was awakened, instead of guilt being established by the evidence—he would not hesitate one moment in saying, that the bill ought to stop there. But his opinion was, and he was bound to declare it, that the adulterous intercourse at or within the period assigned, and with the individual named, was much too sufficiently and fully proved.
Many noble lords had told the House, that they considered themselves discharged from the duty of examining all doubtful points of the evidence, because, unhappily, there remained behind enough of the evidence admitted on all hands to be untouched, which made out a clear case to satisfy his mind, amongst others, that the crime had been committed. If any thing could have added to the pain of his present situation, it was the reflection, that this case admitted all points of doubt and suspicion to be taken out of it, and still left sufficient to decide the understandings of men. He had not formed, nor was he obliged to form in his own mind, what vote he would have come to, 1684 if the admitted facts had been disputed. It was easy to imagine a case, for there were many such, in which, though some of the grounds that must necessarily be taken into consideration were of a doubtful and ambiguous character, yet, giving to the accused party the full benefit of such doubts, the whole case might assume a complexion which would render it impossible to say what a man might feel himself compelled to do, upon balancing all the probabilities. But, their lordships were not in that situation; they were able to ground their verdict on that part of the case which was clear, and had no occasion to connect it with the disputable part of the evidence. In what was called the polacre case, the circumstances, though separately considered, they were not conclusive; yet, coupled as the principles both of law and reason required that they should be, with the extraordinary elevation of Bergami, were such as to leave upon his mind the most conclusive impression. That elevation, though successive, was sudden; and he was not only raised to high rank, but to the preference of being her constant and almost sole companion. Those parts of the case which referred to gross and indecent familiarity, were supported by seven or eight persons, whose testimony remained unimpeached; so that coupling their statements with the circumstances on board the polacre, a case was made out which his understanding could not resist.
It was true, as had been stated by his noble friend (the marquis of Lansdown), that an accumulation of suspected evidence in any case gave an appearance of falsehood to other parts of the evidence, which but for that would have borne the character of truth; but with respect to suspicious circumstances, the principle was directly the reverse, for in every case supported by circumstantial evidence, though each circumstance considered individually might be slight, the accumulation of all communicated an importance to each, when all concurred in leading to the same fact, and consequently to the same conviction. During the last four years, several horrible cases of murder had been tried, in which the conviction of the criminal had taken place to the general satisfaction of mankind, upon circumstantial evidence only. It was a trite, but a true observation, that circumstantial evidence afforded a stronger ground of proof than that which was direct; for 1685 direct proof might, after all, be false, and there was more difficulty in the fabrication of connected circumstances. If it had been proved against a man charged with murder, that his clothes were bloody after the act had been committed, and that he had had a quarrel with the deceased shortly before his death, those circumstances would be strong, though not conclusive; but if to these were added the circumstances of his absence from home at a suspicious hour of the night, and his being traced to the very spot where the atrocious deed was committed, a jury would probably require the concurrence of very little circumstantial corroboration to justify them in pronouncing a verdict of guilty. In the present case, it was admitted that a menial servant, without any particular merits or services to recommend him, was, in the course of a few months brought to her majesty's table, was made the partaker of all her meals, and adopted into so close an intimacy, as could not have taken place if the most intimate connexion had not been established. If these were the sole facts in evidence, though taken by themselves, they amounted only to suspicion, still it was impossible to say that some strange caprice might not have influenced her majesty's mind, which, though no man could approve or defend, it would be the height of cruelty and injustice to consider as proofs of guilt. It was possible, barely possible, that such familiarities might have been admitted without the commission of the crime. He felt it difficult to recognise the possibility, but still it was possible. Yet when they came to combine with that the transactions on board the polacre, when they found the person accused sleeping under the same tent with Bergami, that tent excluding from its interior all other persons, insomuch so that even those who unwittingly approached it withdrew immediately as from a forbidden place; when they combined it so, they had a case so clearly made out by circumstantial evidence as to satisfy the most scrupulous mind. For his own part, he did not know how to come to any other conclusion, because, as far as he had ever heard, it was upon such proof that the majority of the cases were decided in this country. But when that was coupled with the total absence of all legitimate excuse (for not one excuse had been set up which could satisfy those who had listened), he was sure that, 1686 whatever the opinion of any individual might be as to the whole case, no one could think that there was any justification of necessity or even convenience, for the intercourse to which he was alluding. He would admit, that if there was any ground of doubt on the subject, their lordships were bound to give the benefit of it to the accused. God forbid that any man should do what a noble friend of his had attributed to some—the injustice of taking all the presumptions out of one hand into the other, and only admitting such as made against the accused party. He had particularly weighed the arguments of his noble friend with respect to the polacre, and the result was, that they had no weight with him. It might, perhaps, happen, though he could not conceive how it could, that the parties sleeping under the same tent for so long a period were free from any guilty intercourse. If the lady had shown him no former preference, one would be glad to take hold of the circumstance to favour a presumption of innocence. But who was the person selected to sleep there? The very person who was not only proved, but admitted to have been raised by her to the situation of her most familiar companion. Had there been no previous impropriety, perhaps the position of his noble friend might be maintained; but, unfortunately, in that case there were facts, which must lead to an opposite presumption. The person admitted into the tent had been raised by her majesty to a rank to which he was not naturally entitled, and to an intercourse of familiarity, to which it would be hard to state any thing that could fairly entitle him or any one, considering the vast distance between their respective stations; and these familiarities were proved by witnesses whose testimony was not suspected.
Then, he said, and with the deepest pain, that he could feel no doubt of the guilt of the illustrious person accused. If their lordships came to the determination that there was not sufficient ground of conviction upon such circumstantial evidence, and of clear and direct proof, then they must determine that in no future case could a tribunal in this country convict upon such evidence, and that adulterous intercourse never should be established but upon ocular proof. He needed not tell their lordships that it was impossible to find such proof in ninety-nine cases out of a hundred. He founded his con- 1687 viction, then, on undisputed, admitted, and proved facts. The facts were those which he had stated as shortly as possible—which he had been called on to state, when it would have been a great relief for him to abstain from saying any thing on this case. With this impression on his mind, he felt himself compelled to say, "content" to the second reading of the bill.
He would now offer a few observations on the expediency of the measure. He admitted that there was no stage of such a bill, in which the question of expediency could be put out of consideration altogether. But if there was any stage in which expediency was not indeed to be wholly excluded, but where it ought to form the least part of the consideration by which their lordships oath was to be regulated, that stage was the present. He was not here, nor in any stage of the bill, to give an opinion as to what was the most eligible and desirable mode of proceeding. On that subject he had never been called on to give an opinion. Their lordships having agreed to adopt the present form, and a bill having been brought in and read a first time, they had fixed the time for its second reading, and had ordered the attendance of members. Though he was far from being excluded from the right, which every peer possessed, of urging their lordships, before the evidence commenced, to re-consider that vote, yet he looked upon that point as settled, and considered it his duty to wait for the present vote on that course on which the House had determined, intending to regulate his vote by the failure of the establishment of the charges contained in the preamble of the bill. He had cast his mind to consider whether there was any other course, and the result of all the deliberation which he could bestow on the matter was, that he knew not how those of their lordships who were convinced of her majesty's guilt could do otherwise than vote for the second reading of this bill. The question, therefore, with regard to the second reading, was, merely, whether they should proceed to pronounce that judgment, on which the minds of some of their lordships were determined, or break off the proceedings abruptly, and leave this great and momentous question deterred, but not decided by the majority of the House. He would ask those who did not think the proofs conclusive, whether, if a majority were of that opinion, 1688 it would not be the greatest and grossest injustice to deprive the individual accused of an opportunity of ending this proceeding by a complete and decided acquittal? It would be the height of injustice to determine that the proceeding should drop without an explicit declaration of opinion as to her majesty's guilt or innocence. As to the motives that might influence their lordships minds in coming to a decision on that question, he was fully aware, that many persons might vote against the second reading of this bill, as indeed many noble lords had declared their intention of doing, not from a conviction of her majesty's innocence, but from a dislike of the form of proceeding adopted. On the other hand, however, none could vote for the second reading in whose minds there was not a confirmed assurance of her majesty's guilt.
He had only a few words more to add on that which their lordships might have to decide on a future occasion—namely, whether this bill should pass. But before any man, holding the opinions which he entertained, could determine what vote he should give on that question, there were two things that must be carefully considered. Their lordships must in the first place consider to what extent guilt appeared to be proved against the party accused, not in the opinion of one person or of another, but in the judgment of the majority of the court; and then that degree of guilt could only be marked by adopting the preamble of the bill as it stood at present, or in some other altered form, such as might be agreed on by their lordships; and if the House should not concur in the extent of guilt, the party accused would, as in other cases, be entitled to the benefit of their lordships doubts. There then only remained to be considered, what was the nature and what the proportion of punishment that ought to be affixed to that guilt. On that subject he had heard opinions delivered, and indications of intentions expressed, to a degree that must have disgusted the House. It had been suggested, that the present enactments of the bill might be altered by the omission of the clause which was originally intended to make a dissolution of the marriage-vow. He had felt considerable difficulty on the subject, and he meant to leave his mind open to the consideration of that question, as he had done in every part of the case, down to the latest moment at which any thing 1689 could be stated to influence his decision, But, as the matter at present stood, he did not see on what grounds it was possible to exclude that enactment from the bill. He did not see how it was possible, if the bill were passed at all. He intended to keep his mind open to conviction, and if any change took place in his sentiments on this point, he should, in explanation, state the grounds that had produced that change. In the view which he took of all the various parts of the case, he thought it his duty to vote for the second reading of the bill. In coming to this conclusion, he did not exclude the expediency of the measure from his view, nor did he overlook the present alarming State of the country; but all the eloquent appeals which he had heard had not produced in his mind the conviction, that there would be less public mischief occasioned—that the public evil which was now hanging over the country was more likely to be averted—by the sudden termination of the present proceeding, than by the second reading of this bill.
The Earl of Rosslyn
said, be gave his noble friend full credit for the declaration made at the outset of his speech, that in delivering his opinion on this subject he was not anxious to influence the judgment of others. But the arguments of his noble friend, notwithstanding this declaration, did appear to him to be calculated directly to influence the vote of the House. He agreed with his noble friend in thinking, that circumstantial evidence was of great importance; and he also admitted that his noble friend had truly described the nature of such evidence, when he said that it applied to those cases in which a number of circumstances all concurred to the same end—that was, to the same act—so that it appeared to the human mind next to an impossibility that that act had not taken place. He admitted that such circumstances so concurring, ought to have, and must have, great weight; but let him apply this principle of evidence to the present case. Would his noble friend tell their lordships that these circumstances, the character of which he had defined, applied to this case, and tended to exclude the possibility of believing that the alleged guilt had not taken place? His noble friend had said, that in a case of murder, if a man was found with a knife, his garments bloody, the time concurring, he being proved to have been from home, and unable to give 1690 any excuse for his absence, then there was in these circumstances a great presumption of guilt. His noble friend, however, seemed to forget that these circumstances all concured to prove one act. But if a man had been found with a knife drawn at one time, it was not hence to be inferred, that he had committed murder at another time; nor was it to be inferred, because a man had committed violent acts in one place, that he had committed murder in another. But, farther, when it was said that their lordships were in this case to rely on circumstantial evidence, and when it was shown that one-half of those circumstances were proved by false testimony, and that the agents for the prosecution had been endeavouring to suborn witnesses to swear to other circumstances—were their lordships then under that situation as to the impossibility of withholding conviction on circumstantial evidence, which his noble friend had stated? If he understood what was meant by circumstantial evidence, it consisted of a number of circumstances, proved by undoubted evidence, all bearing on a particular fact, and leading the mind to the conclusion that it was next to impossible that these circumstances should have occurred unless the act in question had taken place; but here their lordships found that, a great proportion of the circumstances were absolutely false; that others had been rejected by the prosecutors themselves; and that many of them were proved by persons who had been convicted of endeavouring to corrupt others; and, therefore, his noble friend's case dropped to the earth, as far as it rested on the application of circumstantial evidence. He might also observe, that there was in this case the absence of one important thing, an absence which could not have occurred if the circumstances stated in evidence were true. Their lordships had evidence before them, that an adulterous intercourse had subsisted without interruption for thirty-five days on board the polacre; and yet, amidst all the circumstances of suspicious character that had been stated at the bar, in reference to what took place in the polacre nothing had been said about stains on the bed-linen during that time.
He came next to the alleged familiarity between her majesty and Bergami; and, in the first place, he was prepared to maintain, that the imputed acts of familiarity had not been proved. The boat- 1691 man, on whose testimony many of these acts of familiarity rested, had been directly contradicted by another boatman, who had a better opportunity of observing what took place. Then, again, that offensive story about the Adam and Eve—it was contradicted by the evidence of two witnesses of unequivocal character. As to facts stated to have taken place, under circumstances in which they could not have been seen by any person but the witness who stated them, they admitted of no positive contradiction; but when he saw agents, such as Restelli and Riganti, employed in corrupting witnesses—when he saw a commission established at Milan, and holding an open shop where any man knew he could get pay in proportion to the importance of the facts he asserted—could he look to that evidence without suspicion, even if he did not attribute to it the character of direct and positive falsehood.
Having so far cleared away these grounds, he had the satisfaction of knowing, that a great proportion of the charges were abandoned by the prosecution. The alleged acts of adulterous intercourse at Scharnitz, at Carlsruhe, at Turin, and at Naples, were all given up; though he could not help observing, that many noble lords, who had found themselves compelled to relinquish these charges, still seemed to lean to them with a pertinacity for which he could not account, unless by supposing that these noble lords were desirous to mislead the judgment of those who heard them. Majoochi, Demont, Sacclii, Cuchi, and the rest of that tribe, these noble lords wished to be thought not so bad as they were known to be; and with what good and fair motive it was wished to make such an impression he was at a loss to conceive. His noble friend having rested on the elevation of Bergami, in the first instance, as a suspicious circumstance, relied altogether on the thirty-five days on board the polacre for the proof of that adulterous intercourse charged in the bill. But, in judging of these presumptions, their lordships would do well to consider that the polacre was very different from a private house, and admitted of but few accommodations; and above all, they should consider that it was necessary for her majesty to sleep on the deck, and sleeping there, that it was necessary she should be attended, and attended to by a man, ready to preserve her from the danger incident to 1692 her perilous situation. But, if she wanted an opportunity on board the polacre, to gratify criminal passions, she certainly could more conveniently and more safely have done so in the cabin below. But she removed from a place of comparative safety and secrecy, to the deck, where she was exposed to general observation. And she never, in his opinion, would have done so, if she had entertained criminal motives. But at most, what did the fact amount to?—to nothing but to a certain degree of suspicion; and that suspicion was attempted to be strengthened by unfair observations on the elevation of Bergami.
It had been said, that the bill had been introduced in order to uphold the dignity of the throne, but their lordships would recollect, that her majesty had been at courts of Europe with Bergami in her suite; she had appeared at the courts of Turin, of Naples, of Bavaria. Were the prosecutors ignorant of the imputed conduct of her majesty? Were they ignorant of the testimony of Barbara Kress? Not at all. Why, then, suffer these charges to sleep for three years, until they were nearly forgotten, without having ever complained of the conduct of her majesty? What anxiety did they, during all that time, shew for the honour of the Crown? What respect for the morals of the nation—so much the pretended object of their anxiety? Odious as the conduct of her majesty might have appeared to them, they were willing to connive at it. With respect to the expediency of the measure, he would, in the first place, observe, that it was not thought expedient to bring it forward for the last three years, during which time ministers were in possession of all the evidence against her; it was only thought expedient to proceed against her when she landed in this country—when she asserted her undoubted rights. Then, and not till then, was she attacked. With respect to what had fallen from his noble friend, nothing appeared more unfair, or more unparliamentary, than to press the bill to a second reading without fully deciding on the principle of the measure. Then was the proper time to oppose it. But it was said that the preamble might be modified in the committee according to the shades of guilt which might appear; that observation afforded to their lordships a striking instance of the justice intended to be done towards the Queen. First, an in- 1693 dictment was preferred? she pleads to that indictment, she opens her defence, and on hearing the evidence, they found that it did not apply to the charges in the indictment, and they therefore would turn round to put it in another shape—a shape, too, against which they proposed not to hear any evidence. The bill, thus modified, would be quite a different bill from that originally brought in, and it might so happen that her majesty might have evidence which might be able to meet the one case, but which was not considered necessary to adduce for her justification in the other. If the preamble was not proved to the very letter, to the fullest extent, no man of honour, no honest man could support the bill. He would say, that the single act of adultery, even if it were proved, would not be enough to support the bill; because the bill charged, that an adulterous intercourse had been carried on by her majesty in the different places, to the scandal and disgrace of the country.
Before he went a step further into the question of expediency, he wished to make one observation on the conduct of the prosecutors in this case. It had been well asked by a noble friend below him, why the prosecutors had not examined Dr. Holland; but he would go a step further, and would ask if the Milan commission had been established for an honest purpose, if it was not bound to report all the evidence that made for the Queen as well as all the evidence that made against her? Now, not having had the honour of seeing the contents of the green-bag, he could not say how much exculpatory evidence there might have been in it to set off against the accusations it contained. Their lordships had judged of the evidence; the country also had judged of the evidence and the prosecution, and considered both to be a snare: the public having watched this evidence, were judging not only of it, but of their lordships conduct. Did it follow necessarily that the public were wrong in the opinion they had formed? Were there no presumptions against the prosecution? Was there no presumption in favour of the Queen to be found in her coming over here to meet the charges of her enemies? When, therefore, the public were watching their lordships conduct, would they fail to look at the conduct of her majesty's prosecutors? Would they not see that many individuals in that House, who 1694 were to be the Queen's jurors and judges, were also her prosecutors? Would they not believe that her majesty had to contend, amidst the other difficulties in which she was involved, with the wide-spreading influence of the Crown? Did their lordships suppose that the public would overlook these things? Was it nothing for the public to know that some peers, whose names he forbore to mention, would come down to that House to give a verdict of guilty, and to aggravate the evidence against the accused, without having heard one word of the defence? Prosecutors were here seen erecting themselves into judges; and others—he trusted they were not under the influence of these prosecutors—who had not listened either to the evidence or to the counsel for the accused, were also to act as judges. Did their lordships suppose that these things would have no weight with an honest, upright, and enlightened public? He implored them to consider these suggestions, if they were desirous to maintain unimpeached that character of impartiality and integrity which their decisions had hitherto commanded.
He had now but one other subject on which he was desirous to detain their lordships, and that was, the question of the divorce clause. He was decidedly against the second reading of the bill, either with or without that clause; and, indeed, whether it was excluded or retained, he conceived that the disadvantages would be nearly equal. If it were intended to exclude the divorce clause, he saw the most frightful consequences; and of these the most fearful and the most inevitable was, the degradation of the King himself. Every sentiment of human justice—every duty inculcated by our religion—every institution of our laws—every practice of the constitution—the divine ordinances themselves—all tended to inculcate a doctrine, which pronounced for the impossibility of a separation in this case, if her majesty was innocent. He had heard that the divorce clause was proposed to be omitted. But how was this to be effected in justice? If the Queen was really guilty of the crimes imputed to her, why should not the divorce be pronounced for, unless it was meant to be said (which surely never could be argued), that however bad the Queen was, she was good enough for the King? But, let the House look at the case in another light. When noble lords 1695 had endeavoured to point out the extreme injustice, and the unhappy consequences, which must arise from their passing a divorce bill, under possible circumstances of imputation against the other party, they were met by others of their lordships, who said, "Don't all these consequences happen in all divorce cases, almost? and, if you were to prove all this, where will you be able to pass any divorce bill?" Now, in the first place, he apprehended that, with respect to a divorce bill, they must have a party before them. Was it just to the King, that he should not be heard, by counsel, against or in behalf of the dissolution of his own marriage? Was it just to her majesty, that this marriage should be set aside—that such a sentence should pass against her—unheard? Had they heard her case upon this point argued at their bar? No such thing. If, however, this measure really came before their lordships as a divorce bill, the other party must be considered to have presented himself at their bar. In that light, he came there with a previous knowledge of all preceding circumstances; he must be cognizant of his own case; he must come before them with clean hands: he must prove that case; but, above all, his own conduct must be unexceptionable and perfectly pure. He was to be looked upon as coming with that knowledge, and quite prepared to see it stand or fall as the facts of his case were made out for or against him. Was it so, here? He maintained that it was no such thing. If the divorce clause, in this case, was to remain, it would be to the prejudice of any other person against whom a bill of divorce might be hereafter presented. Why was her majesty to be excluded from the benefit of pleading all those facts, which might well be heard against a measure for divorcing her from her marriage, her state, and dignity? Why was she to be precluded from recrimination, in a case which their lordships were told admitted of it? Why was she to be precluded from proving that she was originally separated from her husband against her will; that the act of separation was not hers? Why was she to be precluded from proving collusion and connivance, on the part of those who were her prosecutors, manifested almost from the time she first went abroad, and above all at St. Omer's, when they made her the infamous offer of a large bribe?
The bill under their lordships' consi- 1696 deration was altogether an anomalous bill. At one time it was treated as a divorce bill; at another, as a bill of pains and penalties; at one period, it was stated to be a bill for the relief of his majesty, as against his wife, the Queen consort; at another, her majesty was considered as the wife of the state (if he might be allowed the phrase), and accordingly they were told that it was the state which was to be relieved. Considered, therefore, as a national measure, he must still protest against it, as a bill of divorce in this case. Let them suppose a husband who had withdrawn his protection from his wife—who had separated himself from her—who had given her a licence to travel and reside in foreign parts—who had withdrawn his countenance from her—marking with displeasure any of his friends, or subjects, who might have shown her any common attention or civility—should not he be required, on applying for a divorce, to prove his case; and should not she be permitted to be heard against him, to show that his own conduct had not entitled him to his prayer? There would be, in this case, at least a possibility of recrimination; and, supposing the circumstances pleaded in the course of that recrimination to be made out, he wanted to know whether the state and the nation would be entitled to treat her majesty as a woman justly and properly divorced, degraded, and dishonoured? The noble lord then adverted to the address which had been voted by the House of Commons, praying her majesty to give up the point of the Liturgy; in which, he contended, they, by implication, commended her past conduct, and approached her as the Queen consort. That address had the support of his majesty's ministers, as well as of a large proportion of the lower House. It could not fail to have had its weight with the country,—as coming from whom?—from persons in possession of all the facts of this case. Such a proceeding, or one analogous to it, in the case of husband and wife, would be proof, and good proof. She was, in some sort, as he had observed, the wife of the state; and so considered, the state itself had that ground to urge against the bill, which, in the ecclesiastical court, would be a most effectual, complete, and entire bar against a divorce. Upon every principle, therefore, whether the party were considered as the husband individually, or the state collec- 1697 lively, their lordships, in passing this bill of divorce—for such it was—would be committing a serious irregularity, independent of all other considerations of policy or expediency. Their lordships had here, besides, the knowledge that the prosecutors, some of whom were also judges in this instance, had pledged their interests in the support of the bill. These facts, then, they were in possession of; and now they were called upon to pass the bill for the honour of the country! Why, it was too monstrous a proposition—too palpable a delusion; it would be, indeed, the grossest of insults upon the public understanding, if it were not met by the almost universal detestation, scorn, and hatred of the people. The feeling of the country upon this bill was too well known, to make it necessary that he should direct their lordships' attention to it. But he could not help deprecating the great injustice that would be brought upon the Queen, if they passed a measure which must necessarily involve the suspicion of her guilt, and that upon such evidence as had been laid before their lordships. If the Queen had been called to their bar, on an impeachment by the Commons, and their lordships had condemned her, she would have had the opportunity of hearing every thing which could be alleged against her, and of hearing them established in proof; and she would have had the advantage herself of pleading all such acts and circumstances as he had adverted to; and these, in the last moment, previously to the decision of the House, their lordships would have considered, received, and taken in diminution of punishment. Were their lordships prepared now to hear counsel or herself in mitigation of punishment, at their bar, in the event of her condemnation? Were they prepared to enter into a fresh discussion upon the evidence to be adduced in recrimination, or to listen to the arguments of counsel upon bringing it forward? Still more, if they considered such a course necessary to the ends of justice, were they in a situation to adopt it? The line of proceeding already taken was no inconsiderable aggravation of the ills to which they had already exposed her majesty. She was subject to the infliction of degradation, and of pains and penalties; but the opposite party was not visited by the production of such evidence as might be urged in mitigation. He asked no favour; but he demanded 1698 that the same justice should be strictly extended towards the Queen which their lordships never would withhold from the meanest subject.
The noble lord then replied to some remarks which had fallen from other noble lords with respect to the addresses received and answered by her majesty, upon which they had founded a charge against the Queen. When his noble friends, however, expatiated on the dancer of this sort of homage paid to her, apparently connected (as they said she was) with a body of persons who were supposed not to be too well affected to the government, did they not, at the same time, consider what must be the necessary consequences of a bill of this nature?—that if the Queen were degraded, the people, already eager and ardent in her favour, would be rendered desperate? He did, indeed, trust, that her majesty, and those who were said to be thus connected with her, would have the virtue to avoid such courses; but, he would ask, was it not to give an opportunity to persons really disposed to undermine the constitution in church and state, to degrade, by their sentence, the Queen Consort; and, where so general and eager a sentiment of affection for her pervaded throughout the country, was not such a measure calculated to give a wrong bias, to public feeling, and a dangerous incentive to popular disaffection?
§ The house then divided:
|Majority for the second reading.||28|
§ List of the Contents,; and also of the Not-Contents
|Combermere||Stewart of Garlies (Galloway)|
|Ailsa. (Cassilis)||Douglas (Morton)|
|Orford||Lord Privy Seal|
|Nelson||Archbishop of Tuam|
|Liverpool||Archbishop of Canterbury|
|Mount Edgecumbe||Duke of Clarence|
|Duke of York.|
|Mendip (Clifden)||Sandridge (Argyle)|
|Howard of Effingham||Ilchester|
|Saye and Sele||Egremont|
|Leinster (duke of)||Thanet|
|Earls Blesington||Marquisses Bath|
|Rosslyn||Archbishop of York|
|Carnarvon||Duke of Gloucester.|
§ Protests against the Second Reading of the Bill.] The following Protests were entered on the Journals:
§ DISSENTIENT, NO. 1.
§ Because the second reading of the bill is equivalent to a decision that adulterous intercourse (the only foundation on which the bill can rest) has been satisfactorily proved.
§ Because that adulterous intercourse has been inferred, but not proved; and in a doubtful case, in which the imputed guilt is not proved, although innocence be not established, the benefit of that doubt, conformably to the principles of British justice, must be given to the defendant.
|Essex, first reason only||Mansfield|
|Hillsborough, first reason only||Richmond and Lenox|
|Jersey, first reason only|
|Somerset||Grafton, first reason only|
|Rosebery||Anson, first reason only|
|Morley, first reason only||Darlington, first reason only|
|Belhaven, first reason only|
§ DISSENTIENT, NO. II.
§ Because this proceeding, from its nature, cannot be assimilated to a common indictment, in which a conviction upon one count alone, out of many, is sufficient.
§ And because, although enough has been proved in evidence to satisfy us of the existence of guilt, yet as evidence on many of the allegations has been contradicted, in some disproved, and in others is so suspicious as to be laid wholly out of the case, we are of opinion that it is inexpedient to proceed further in this measure.
|Plymouth||Clinton, second reason only|
|Grantham||Gage, second reason|
§ The following Peers have also protested against the Bill upon general grounds:—
|DISSENTIENT, NO. III.|
|Hamilton and Brandon||Auckland|
|Kenyon||Howard of Effingham|
|Suffoik and Berks||Ducie|
|Richmond and Lenox||Grantham|