§ The Order of the day being read for the further consideration and second reading of the Bill, intituled "An Act to deprive "Her Majesty Caroline Amelia Elizabeth "of the Title, Prerogatives, Rights, Privileges, and Exemptions of Queen Consort of this Realm, and to dissolve the Marriage between His Majesty and the "said Caroline Amelia Elizabeth;" and for hearing Counsel for and against the same;
§ The Counsel were accordingly called in.
Then Giuseppe Giaroliniwas called in, and further examined, as follows, by Mr. Williams, through the interpretation of the Marchese di Spineto.
You said yesterday you were employed as a builder at the Villa d'Este? Yes, head master.
* See Vol. 2, p. 1254.575 Were you paid as you went along, or was there a bill rim up? Before her royal highness set out for the long journey, I was paid regularly every week; after her departure, we entered into contract of 75,000 livres; I continued to work under the direction of Haiti,: who was the architect, who made me build several other things, more work, this made the sum amount to 145,500 livres.Did you see Restelli, when that sum of money was owing to you? Yes.
Do you remember any mention being made by Restelli to you of that bill, or payment of it? He asked me what was my credit against her royal highness, and I answered that, deducting that which I had received, it amounted to 45,500 livres.
Was any thing said about the manner of getting that bill paid? There was.
State what it was?
Mr. SolicitorGeneral submitted whether this conversation between the witness and Restelli could be given in evidence.
The Counsel were informed, by the Lord Chancellor, that if it was a discourse in which Restelli offered him money for coming here I as a witness, Restelli, having said that he offered nobody money for coming here as a witness, it would then amount to a contradiction of Restelli; that if it did not amount to that, it would not be evidence.
The Solicitor Generalsubmitted, whether, in that view, it would not have been proper, as on a former occasion, to have asked Restelli when under examination, whether he had ever said any thing about money in a conversation with this particular witness. Surely his recollection should have been precisely called to a conversation with this man, before the latter's testimony could be received in contradiction. This, indeed, was necessary, to enable the House to judge of the conflicting testimony. Restelli's answer stood quite general, and without the explanation that might have accompanied and elucidated it, if his recollection had been called to the precise occurrence. The printed evidence was regularly transmitted to Italy, and the witnesses who now came over had an opportunity of seeing it. They had, therefore, the advantage which must necessarily arise from being put in possession of that information. He repeated, that Restelli ought to be asked particularly, whether he conversed with this man, before the latter's contradictory evidence could be received against him, as otherwise, the proceeding would be most awkward, while it would serve to establish a precedent peculiarly dangerous to the character of a witness.
Mr. Williamsdenied the force of this argument, and said, that he was only seeking to get at a fact, which he had a right to do in his own way. He could see nothing awkward in the proceeding, except that of getting out the fact that Restelli had offered money to this witness.
Mr. Williams.—I ask the witness, whether Restelli, in the conversation with him, suggested any mode of his getting payment of the balance of the debt due to him by her royal highness?
The Earl of Lauderdalethought the witness ought to be examined to a particular fact, and not generally. The counsel for the defence inquired generally, whether Restelli had proposed to this witness that he should go to Milan. The noble and learned lord had said, it might be asked whether Restelli had "offered any money," or "money's worth," but the learned counsel would go on to whether Restelli had given any direction to the witness relative to the way in which he should seek payment of his bill.
The Lord Chancellorconsidered that the question, whether Restelli had offered money, or money's worth? might be put, as it appeared, upon reference to the evidence, p. 412, that Restelli denied his having made an offer of money to any body to become a witness in this cause.
Mr. Williamsproposed to ask the witness, whether Restelli had made any offer of money, or money's worth, or any advantage?
The Lord Chancellorrecommended, rather, that the witness should be first asked, whether Restelli had ever offered him any money, and, the answer to that question being obtained, Mr. Williams might then state any further question as to any offer of advantage, upon the propriety of putting which, it would be for the House to decide.
The Examination was resumed.
Did Restelli offer you any money? He told me if my account was not liquidated, to send it to him, and he would contrive to see me paid.
577 What did Restelli say you were to do for that? He told me to give my account to him, for there were Englishmen at Milan, and be would see me paid.
Did Restelli say to you at that time, what you were to do in order to get that bill paid? He told me, that if I had any tiling to say against her royal highness (for I had been a long time in her service) to tell it to him, and he would endeavour to make me be paid.
At that same time which is now spoken of, or at any other, had you any further conversation with Restelli, about what Restelli was doing as to witnesses?
The Solicitor Generalobjected to this question, as being decidedly contrary to the established rules of evidence.
Mr. Williamsbegged, before their lordships decided upon this question, that he might be allowed to offer a few words for their consideration. In the first place, he felt it necessary to refer to the evidence, with respect to Restelli's general agency. At page 411, it would be found that Restelli had been asked—"Did you not become a very active agent of the Milan commission? To this the answer he returned ran as follows:—"I was not an agent; they have given me orders only as a courier (which is my profession), and as courier I have travelled."—Hence it appeared that Restelli denied that he was the agent to the Milan commission, or what amounted to the same thing. The evidence which the counsel for the defence would now submit to their lordships, would go to show what this same Restelli had stated to the witness, what he had done in the collection of witnesses, in bringing persons before the Milan commission to be examined, and in making other arrangements for collecting persons who were to be examined in this cause. It was therefore intended to call on the witness to state the names of several persons with whom Restelli had described himself to have been active in offering various sums of money and other inducements to prevail upon them to give evidence. On this ground, he apprehended their lordships would not refuse to permit him to examine the witness as he had proposed to do; but, in addition to this, there were several facts that appeared on the Minutes to which he proposed to refer their lordships.—If their lordships would refer to page 226, to page 234, and to page 411, in each of these it would be found, that facts were stated which went to prove the active interference of Restelli 578 as an agent for the commission, at different places there named, and in taking witnesses with him to Milan to be examined; and thus it would be seen, that direct proofs that he had been employed in Italy to collect witnesses for the prosecution were brought home to Restelli. He would admit that, generally, it was a point of law established and acted upon in the courts below, that, as a preliminary point to prove an individual to have acted the part of an agent, it was necessary to establish his connection with one of the parties in the cause, and the situation in which he stood with respect to the plaintiff and defendant. But in the case now before their lordships, this analogy must fail; as in this case there were no ostensible parties, there were no such persons as plaintiff and defendant. This, however, he conceived their lordships would feel, would be a very narrow, and he must add, a very unsatisfactory ground on which to refuse such evidence as they had to offer, to establish the agency, as well as to contradict the testimony of Restelli. If he proved that this person had been employed in collecting evidence, he hoped it would not be denied that he was an agent, because he necessarily laboured under the disadvantage of being unable to establish what, in ordinary cases, should be the preliminary point, from there being no ostensible party on the other side (he wished there had been) in this cause, the Attorney and Solicitor-general being merely shadows, while the substance was unseen. He contended, that the evidence he was anxious to offer was most material to put their lordships in possession of the case, and therefore he trusted, that on such grounds as he had stated, they would not feel justified in refusing to allow it to be given.
Mr. Broughamobserved, that his learned friend, Mr. Williams, had so fully explained his view of the case, that little remained for him to say. They wished to offer the evidence in question first, as a contradiction to part of Restelli's evidence, they having obtained from Restelli a denial that he was the agent of the Milan commission, and a declaration that he was only employed as a courier. They proposed to negative this, by proving that he had stated to the present witness, that he had performed duties which had nothing to do with the office of a courier. If they had known that Restelli was to have been called, instead of being igno- 579 rant of that fact, as well as of what he was to prove, they would have put such questions to him as would have made the testimony now sought to be offered, admissible under the most rigorous rules of courts of justice. But, ignorant as they were of the intention of calling Restelli, and of the charges that he was to sustain, they had had no time for making those inquiries which would have enabled them to take such a course. They might then have been able to lay a foundation for future contradiction, ex concessis, from the admissions of the witnesses, by putting such questions as—"Did you not tell them, that you had employed such a person?" He was aware that there was a more direct way of proving agency in the courts below; but even in the courts, evidence of the sayings and dealings of the party might be given as a proof of contradiction, though it was not the usual course. But there was another ground upon which they had an incontrovertible right to give evidence of the sayings and dealings of Restelli.—He had denied all active agency; he had declared, that he acted only in the capacity of a courier; but he had let out enough to show, that he was so far an agent employed by the Milan commission, as to give them a right to offer evidence of what had actually been said and done by him in the capacity of agent.—In his cross-examination he admitted, that he had told one witness that his expenses should be paid. Then he says he is only a courier; but persuading a person to go and give evidence was no part of the duty of a courier. They had connected him with the Milan commission, which he was not disposed to consider a shadow, as it had been designated by his learned friend. He could scarcely agree with him, indeed, that the attorney and: solicitor-general were shadows; but as to the Milan commission, her majesty's defenders had found it a substantial and formidable party. He contended, that he had a clear and indisputable right to give in evidence of what had been said and done by the agents of the Milan commission, in getting up the evidence by which the charges were to be sustained, with a view of contradicting the testimony which had been given by Restelli.
Mr. Solicitor Generalsaid, his learned friends on the opposite side had argued that they had aright to have the question which had been objected to, answered, on 580 two grounds, fn the first place, they contended that it ought to be answered, because it went to establish a contradiction of the evidence of Restelli, who, being asked if he was an agent of the Milan commission, had replied, "that he was not generally their agent, but had been employed as a courier; and, in this capacity, had advised several persons to go to Milan, and had sent Maurice Gredi and another individual before the commission!" Now, his learned friend had said, that he had a right to prove certain declarations made by Restelli to the present witness. He (the Solicitor-general) apprehended that he had no right to prove such declarations for the purpose of establishing a contradiction of Restelli, by showing that he had been the agent of the Milan commission; for Restelli had admitted, in a qualified way, that he was the agent of the Commission; and if, therefore, it was meant to contradict him, he ought to have been more particularly questioned, as to the precise situation which he had held. The second ground which had been laid for this question was, if possible, still less to be depended upon. In the first place, if they should prove that Restelli had; stated himself to act as an agent to the gentlemen who were at Milan, and who were called the Milan Commission, it would not be just that he should be regarded as their agent, unless it were proved that he had acted as such by their authority. They might have sent him as courier to certain individuals, desiring them to attend; but was it therefore to be proof that every thing that he had done could be admitted into this inquiry? He would humbly contend, that it was impossible. But further, if they proved, that Restelli had acted as agent to the Milan commission, having their authority for doing so, still it would not be competent for his learned friend to put in the declarations he had made on this subject as evidence. Undoubtedly, it would have been competent for them to put questions to particular witnesses, in order to ascertain what they had done by the advice, and at the instance, of Restelli, and afterwards they might have contradicted his own evidence by calling witnesses for that purpose. But as his learned friends had neither put those questions to witnesses which might have enabled them to have established a contradiction, as they now wished to do, and had not called witnesses, it was most extraordinary that they should 581 contend, that Whatever Restelli had said or done in the course of his journies in Italy and Germany was now to be received as evidence in this inquiry. But it was said, that they had not had time to meet the evidence of Restelli; and this was complained of as a great hardship by his learned friends. This was a most extraordinary complaint. Why, his learned friends had named their own time, and had received every indulgence from their lordships which they had thought proper to request for the purpose of preparing the defence. After choosing their own time, therefore, it was too much for them to turn round, and say, that they ought to be allowed to deviate from the ordinary rules of courts of justice, because they had not been allowed sufficient time. His learned friends differed from each other with respect to the Milan commission being considered as a party in this proceeding. It was not for him to reconcile their contradictions; but he thought they ought to have agreed on this subject before they took the course which they had now pursued.
Mr. Broughambegged he might be allowed to say, that his observations upon the difficulty in point of time, referred to the refusal of a list of witnesses. It was that denial which deprived her majesty's counsel of the means of examining Restelli upon this point before.
Mr. Solicitor Generalsaid, they might have availed themselves of the permission given them by their lordships, to postpone the cross-examination until they were enabled to enter into it effectually.
§ Lord Erskinesaid, that their lordships had evidence before them, that Restelli had denied on oath, what was proved to have been done by him. If, then, he had intermeddled—he would not use a stronger word at present—but if he had intermeddled in getting evidence against her majesty, the counsel had a right to inquire into that fact, and it was most important for their lordships. He attended there, from day to day, to do all in his power that the strict rules of law might be attended to as far as, in the situation in which they were placed, their proceedings could be assimilated to ordinary proceedings: but it was essentially necessary that all the light should be let in upon this dark transaction which they could let in. He lamented exceedingly that in this transaction they were at the present moment so much in the dark as to the Milan commission. He 582 meant not to impute unfair means of procuring evidence to the noble lord at the head of his majesty's government; he disdained the idea of any thing of the kind. But when they knew that a commission had been appointed, that examinations had undoubtedly taken place, and that evidence so given originally was afterwards brought before their lordships, they ought to be informed of the origin and character of all this previous proceeding. What light had they upon the manner in which the witnesses became first known, and how they were brought to Milan and examined upon this subject? What light had they upon any step in the proceeding before the case came to their lordships bar? He, for one, had no light at all upon those subjects; and he ought to know, from examinations, cross-examinations, and every way in which light could be obtained. As to Restelli, now was the opportunity of cross-examining him on points which had not been known before. The question now, therefore, was, how the contradictions to Restelli, or the acts which he had done, could be brought before them. Either their lordships must assent to the request of the learned gentlemen at the bar, or Restelli must be called back, as Majoochi had been. His opinion was, that it would be the better course to call back Restelli. But was there not agency already admitted? Could any thing be clearer proof of agency—and, he would add, of corrupt and profligate agency—than the attempt to get a witness against her majesty, by saying that there were Englishmen at Milan who would see money paid to the witness? Was there a noble lord in that House who did not believe that the agency extended farther than they had traced by any inquiries or statements? If not, who could say, that it was not necessary to have the whole of this profligate proceeding discovered, discussed, and well considered before they formed any judgment upon the evidence in general? Before that was done, they could have no means of ascertaining the truth. When their lordships deliberated upon the general question now at issue, there must be nothing left dark; nothing must remain behind. He perfectly agreed that their situation was very different from that of ordinary trials. That was the great evil of the present proceeding, that it left the ordinary course of justice, and trenched on the ancient constitution of the land. Care ought to be 583 therefore taken by their lordships, that this evil should not be magnified. Could he have any faith in the case as it stood at present before their lordships? Restelli himself had admitted a corrupt agency—he said distinctly a corrupt agency—from the facts which were already in evidence. He said, therefore, that their lordships must, in some way or other, know further respecting the acts of Restelli: they must know further, or they could not know the truth, or judge with safety in this case.
The Earl of Liverpoolrose, not to give any opinion upon the question immediately before the House, but to say, that the Milan commission—that was, the gentlemen at the head of it, or rather the gentleman at the head, might be called to the bar. No objection would be made to his being called and examined at their lordships' bar at present, or, in any stage of the proceeding, that might be thought most convenient. This was all he had to observe upon this subject. No objection whatever would be made to giving to their lordships the whole history of the Milan commission.
The Lord Chancellorsaid, that it was impossible for any man who felt as all their lordships ought to feel, to doubt that, after what had passed, the gentlemen of the Milan commission ought to have an opportunity of explaining their Conduct. It was not consistent for him to make any observation on the evidence before them, as establishing or contradicting any former evidence; for all the evidence would come to be considered hereafter: but it was not consistent with his duty to give any character, good or bad, to any witness. As to the present difficulty, he would say that it did not at all follow, that, because the answer might prove nothing, therefore the question ought not to be put. To be sure, the legal weight depended on the answer; and so it would be here. If the agent had thought fit to exceed his powers, that would not be the act of his principal; but it might be proper to inquire into it, for other purposes. If the allegation were, that he had offered money, and ten persons should say, that he had done so, the mere fact of having offered money would not become the act of his principals. But if they should say, that he had offered no money, and it should be proved that he had acted as an agent, the principals were not thereby proved to be implicated. Still the question was to be put, and they must take the answer; 584 and for this reason:—if he had said, that he had not acted as agent, and it could be proved by the answer that he had acted as agent, although that would not exclude the whole of his evidence, yet it would be a ground for the judge examining most jealously and anxiously his evidence in other matters. Having said so much, he must now advert to a great deal of the evidence on this point, because they were not now in the situation in which they would have been if no previous examinations had taken place on the subject. The evidence to which he wished to call the attention of their lordships was in pages 410, 411, 412. At the beginning of page 410 were these questions and answers:—
"Did you offer yourself as a witness to the Milan commission, or did those who pay you your pension induce you to go before them, or how? I have not been to Milan for this purpose; but I am settled at Milan.
"The question was not, whether you went to Milan, but were you induced to go to the Milan commission, or did you go voluntarily?—I have been sought after."
Why, this man had no doubt as to what was meant by Milan commission, as appeared by his answers. He was asked again—
"How soon after Riganti spoke to you did you go before the commission?—The day after."
Here was an evident admission of his knowledge of a commission. At the beginning of page 411 he was asked,
"Did you not become a very active agent of the commission?—I was not an agent; they have given me orders only as a courier."
He would stop here to point out a distinction which might not appear important to those of their lordships who were not accustomed to consider how important distinctions sometimes were. It was very important. A person might be very active in procuring witnesses, and yet be very different from an agent; and an agent on the other hand might, in a great many senses, have a quite different name, but in substance act as an agent. Then nothing could be inferred against the principal, unless the agent had his authority for the particular act. His lordship read further through this part of the evidence, to show that there was proof of Restelli having been employed by the commission at Milan. Upon reading the name of Mr. Cooke, his lordship said, that when that 585 name fell first from his lips, in the course of this proceeding, he must state, that he had known that gentleman for nearly half a century, and knew him to be one of the most honourable of men. A higher character for integrity and honour, he declared upon his honour and veracity, he had never known. There was, then, evidence that Restelli had been employed by the Milan commission; and the question thence arose, whether what he had said and done in that employment was evidence? He submitted to their lordships whether, after so much evidence of his sayings and doings had been given, they would not now hear evidence which they might not hear if the preceding evidence had not been given?
§ Lord Erskinesaid, that, let the commissioners be righteous as righteous could be, the witnesses might have been corrupted, and that was equally fatal to the inquiry in this case.
The Earl of Carnarvonsaid, that if the charge which had appeared in evidence against the agent were substantiated, their lordships ought not to proceed a step further; but it would become their bounden duty at once to put a stop to this odious, detested, and infamous bill. Their lordships ought not to proceed a single step till they ascertained the nature and character of the agency of Restelli, which, from what had already appeared in evidence, was calculated to throw discredit upon all the witnesses who had been brought forward in support of this proceeding. If the corrupt agency of Restelli were proved, he felt persuaded, that there did not exist one of their lordships who would not say, that they should at once rescue the country from this, the greatest curse that the folly and infatuation of ministers had ever inflicted upon it. Ministers were deeply responsible for putting the security—the existence—of our most valuable institutions, upon the issue of a proceeding, as odious in principle, as it was pregnant with danger to the country; they had done all that in them lay, to bring into contempt and disgrace every institution which the country held sacred, and upon which its future prosperity depended; but if the bribery imputed to Restelli, if the corrupt agency of Restelli, were proved, he believed even ministers themselves would not venture to go on, and sign the death-warrant of the British constitution. He could not consider the question as a dry question of 586 technical law. Their lordships could not, with any consistency, regard it in that light, for they had themselves thrown aside all law; they had resolved to try, what the judges of the land had pronounced to be no legal crime, and which, if it had even amounted to the legal description of treason, could not, from the lapse of time which had intervened, have been legally tried. Upon what principle of policy, they who had entangled themselves in this measure had proceeded at all hazards to endanger the security of the country, he was unable to conceive. They had held up all that was most elevated, he would not say, to the detestation of the country, but they had excited feelings which never could exist without danger in a popular government; they had turned public feeling and public indignation to a channel to which it could not be directed without sapping the foundation of those institutions, of which they ought to have been the pillars and support. Even at this stage of the bill, if the charge against the agents could be substantiated, he believed there was not one of their lordships who would not think, that, by putting a stop to the proceeding, they would do the greatest service even to the advocates of the bill themselves, even to the party supposed to be interested in it, if such a party existed, for he was unable to conceive what party could be interested; though he presumed, from the activity of the agents, that there was a supposed interest in some quarter. He trusted their lordships would interpose in time, and rescue themselves and the nation from a proceeding which would hang like a millstone round their necks, and drag down every thing upon which the security of the constitution, and the prosperity of the country depended.
The Earl of Donoughmorethought it necessary to call their lordships' attention to the observations which had just fallen from his noble friend. Upon a dry question, as to the admissibility of evidence, upon which the noble and learned lord had delivered, as he always did, a noble and learned opinion as a lawyer, his noble friend had thought proper to interpose with such a speech as, he believed, had never been heard before upon such an occasion. His noble friend had interposed, as if something particular had occurred in the debate, calling upon him for the display of so much angry feeling; and when the only question before their 587 lordships was, the admissibility of a particular part of the evidence, he had made a speech upon the whole of the evidence, and had even gone into the principle of the Bill, which had been fully investigated, before their lordships entered upon the evidence at all. He believed there never was an instance of such an opportunity having been taken for making such an appeal to a court of justice pending the evidence upon a trial. His noble friend had urged every topic of inflammation which their lordships had heard, he would not say in that House, but out of that House. He had talked a great deal of the danger in which they would plunge themselves, by the further consideration of this Bill. They had been engaged, for several days, in investigating a subject of the deepest interest and importance; and he was sure there was no person in that House who had not witnessed the proceeding with the most painful feelings. He could not, however, but express his surprise, when, after having patiently heard the greatest part, he trusted, of the evidence, his noble friend, instead of allowing them to come to a grave conclusion after a decent and solemn investigation, started up in the middle of a grave argument, as to the admissibility of a particular part of the evidence, and desired them to put an end to the Bill. He would not trouble their lordships with any argument, because he thought it unnecessary in any sober assembly to enter into an argument upon such an occasion. It was sufficient to have stated the circumstances under which the noble lord had risen, and the idea which he had thrown out.
The Earl of Carnarvonexplained. His noble friend had entirely mistaken the scope of his observations. What he had urged to their lordships was, that a charge of bribery having been established by the evidence of one person, against an agent connected with the Milan Commission, they ought to suspend all further investigation, till that question was determined, and that if the charge of corrupt agency were proved, it would become their bounden duty to put a stop to the proceeding.
The Witness was again called in.
The question was proposed, and the witness said,
The first time I had conversed with him, I was coming from the states of the pope, and I had a conversation with him in an inn, and 588 afterwards I had conversation with him in other places; but we talked a little upon this subject, and then we talked upon other discourses; and another day we were coming out from the Custom house of Porta Tosa, and I was going out of the ramparts in the street of Circolazione of Milan, and we were then talking about witnesses; he told me that he had gone into my country about witnesses, and then when he was in my country, he went to ask for one witness, and that witness went to ask another, that other went to ask another; then they had drank together; and he has asked them whether they were willing to depose against her royal highness, and then he asked them, will you come to Milan with me; then they breakfasted at the Tredate coming from Cazzone; from Tredatc he went to Musoc, there they dined; when they arrived at Milan they went altogether to the inn of St. Clement; when they were at the inn of St. Clement, Restelli told the innkeeper to give them every thing they wanted for their victuals; then afterwards, one after another, he took them before Vimercati, and the other English that were there.
On any of those occasions did Restelli say that he had paid money to any of those witnesses?
Mr. Solicitor General objected to the form of the question.
The Counsel were informed, that they might ask whether Restelli said any thing about paying money.
Did Restelli say any thing about his having paid money? He told me he had kept them seven days at the inn, and paid forty francs; that he had paid them forty francs each.
Was any thing said about their expenses besides? He told me that he had given to all those people that he had brought from my country forty francs, but that to Raggazoni he gave fifty francs, and that he gave fifty francs to Brusa.
Name any more if you can? He gave forty francs to Paolo Ragazzoni, forty francs to Bai Rossi.
Any body else? I think Franco Bai, but I am not sure, because he mentioned them altogether; but he mentioned them with his own mouth; Ambrogio Bianchini, of Leghorn, has also had money.
Mention whether, at the time when money was mentioned, any thing was said of their expenses, as contradistinguished from money given to them? Not for the expenses, but he told me that when he went to my country he employed a chaise, and paid for the posting.
Did he say who paid the expenses of these people at the inn? There were many, all coming from my country, awl they were all of them at the inn where they were.
Did Restelli say who paid the expenses at the inn? He said that he paid them in the day the forty francs, and that Restelli paid 589 the innkeeper, because the witnesses got the forty francs clear.
Cross-examined by Mr. Solicitor General.
Where did those persons come from to Milan? They came from Cazzone, my country, and he took them to Milan.
How many miles, altogether, did they travel? Some twenty-eight miles, some thirty miles.
Do yon mean that if was twenty-eight or thirty miles to go to Milan? I do.
You have said something about Ragazzoni, where did Ragazzoni go from? Restelli came from my country, and went to an inn, and then he sent Brusa to fetch Ragazzoni from Binago, which is four miles from Cazzone.
When you say it is four miles from Cazzone, do you mean that it is four miles further from Milan than Cazzone? Nearer.
Did he go to Cazzone, in order that they might all go together from Cazzone to Milan? He came with Brusa to Cazzone; they went to an inn, drank together, and next morning they set out all together.
Did Brusa live at Cazzone, or did he live further? At Cazzone.
The witness answered the last question while it was being interpreted.
Have you learned English since yesterday? No; but he spoke very clear; be spoke very clear, he said Brusa era Cazzone.
Do you understand a little English? Nothing; but it was clear he said where was Bruza, Cazzone, Brusa was at Cazzone.
Brusa, in point of fact was sent to bring Ragazzoni there? He was; Restelli sent him to fetch him.
Do you know how long they were going from Cazzone to Milan? A day.
And of course also a day to return? As to returning, they went as they liked, for they had drink, and it was during the winter, and they might have been a day, or a day and a half.
With respect to the grotto, of which you made mention yesterday, how far is it from one extremity to the other; is it more than forty or fifty feet? I do not remember that; I have been in it every day, but I have not paid attention to the number of feet.
Do you believe that it was about forty or fifty feet, according to the best of your recollection? More than fifty; but I can give the measure in bracchi.
The interpreter stated that the witness did not understand distinctly the word used for feet.
Will you swear that it was more than twelve or fifteen bracchi? I will not swear, because I have not measured it; I must swear what I have measured.
Will you swear that, according to the best of your recollection, it was not more than twelve or fifteen bracchi? It is longer in the 590 straight line than from the folding door to trio throne.
What have you been paid for coming here? Why, I have not received, but I have made my calculations about my business and about the time I have lost with the engineer Ratti and another gentleman, a doctor or advocate, whom general Pino had sent to make this writing, because my family and my children would not let me go. At Michælmas time, at Milan, people change their houses, and there is much to do for people of my business, and in going away I was obliged to put another man to go on with my business; another man I have sent into the country to attend to my workmen, because my son I could not send, because he attends the business at home and pays the men; and at last I cannot undertake any business because I do not know the time, though they have told me that it will be for about two months; and whenever I cannot take work at this time, I must go without work the whole of the year this they have calculated, and agreed to give me 2,100 francs.
Besides that, are your expenses paid? They are.
What is the name of the advocate with whom you made this agreement? He has been dictating it, together with Ratti.
What is the name of the advocate? I have told you I have not asked for his name.
Does he live at Milan? He lives at Milan.
Is his name Codazzi? No, the writing has been looked over by this English gentleman, and it was on the following day he asked me whether the writing had been made, and I told him yes.
Was Vassali present at the time? He was not.
Have you met Vassali upon this business? At Milan, yes, after the writing had been made.
Did you never see him before this writing was made, upon the subject of this business? He never meddled himself in this affair.
Where was it you met general Pino? General Pino was at his house, for I worked for him, as the head mason.
Did you see general Pino upon the subject of this business, before you signed that agreement? I have not seen general Pino, either before or after; Ratti was coming down the stairs from general Pino, for he had been with him above; and Ratti told me that he had said to the general, that if I was willing to go, he would take care to make me indemnification for my loss.
Was this agreement, of which you have spoken, made with general Pino, did general Pino undertake to pay? I had not even seen general Pino, he (Ratti) was coming down from the stairs of general Pino.
Who is it that is to pay you this money you have stipulated? Vassali.
At the time you made this agreement, and when you met Vassali, were there other wit- 591 nesses there, making agreements? No, Vassali was even not present when I was making the writing; he has not the slightest concern in it, except to see that I shall be paid.
You were just asked, who was it that was to pay you? you said Vassali; is that so? Vassali is to pay me.
You have spoken of a sum of money that was due to you from her royal highness the princess of Wales; has that money been paid? She has paid me entirely.
When was that paid? I had been partly paid at the end of January, part in March or April, of the year 1819.
You have spoken of some conversation you had with Restelli, and some meetings with witnesses; was that money paid to you by her royal highness after those meetings? When I spoke to Restelli about this business, I had not been paid by her royal highness.
How long was it after that that you were paid? When Restelli began to talk to me about this business, I told him I had already received part of the money; I had received the money which was paid in January, and then I answered Restelli, that in a short time I hoped to be paid entirely.
How soon after that was it that the money was paid to you by her royal highness? This is a little confusion; I have talked of the month of March, when a part of my account was still due.
How long is it since the last payment was made by her royal highness to you? The end of April or the beginning of May.
In this present year? In the year 1819.
Will you swear, that besides that agreement to which you have spoken, by which you are to receive 2,100 francs, you have not entered into an engagement with any other person or persons to receive any other sum of money? Another sum to receive of five or six franks per day for the family which is at home, but I have made no writing, this agreement has been made by my son; but there is no writing.
With whom was this agreement made, between your son and whom? With the same architect, Ratti.
Is Vassali also to pay that? I do not know whether he has received them; he is to receive them from Ratti; but I do not know whether he has received them.
Besides the agreement, by which you are to have your expenses paid, and the 2,100 francs, and this payment to your son, will you swear there has no promise of any other payment been made, either to yourself or to any member of your family, or any expectation held out? I hope that my time may be considered during the time I am here.
Are you understood rightly, that your son is to be paid five or six francs a day, that you are to receive 2,100 francs, and that your time is also to be paid during your absence? For the loss of my time; for the 2,100 francs are 592 for the loss I may sustain for the time to come.
Are you to be paid daily for the loss of your time? As they have told me, that in a month and a half I may return to my country, I have asked a golden Napoleon a day.
Mr. Cohen(whilst the answer was being interpreted.) He has added, "They did not offer it to me."
Though you have not been promised this Napoleon a day, do you not expect to receive it? If they give it to me, I do not refuse it; if they do not give it to mc, I do not claim it; but if it is a long time, they cannot refuse it.
Besides these various promises and expectations you have spoken to, has there been any other promise made either to yourself or to any other member of your family, of any reward or payment during your absence? Nothing.
You have spoken of a person of the name of Ratti, is he not by profession an architect? Yes, but he is acquainted with my family, and with my business; nay, this architect is obliged out of the sum that they have fixed for the loss I may sustain, to teach his profession to my son; observe; that in regard of this golden Napoleon, I have been obliged to put another person at Milan, and another into the country, for my son cannot attend them, as I have said before.
Besides the sum you are to receive, has Ratti undertaken to instruct your son? No, he does it as a kindness to my family, because my son is a young man, and he teaches him his business;
Is Ratti to be paid any thing for this? I must recompense him some way or other, for the time he loses; for whenever a person loses his time, in some way or other he must be indemnified.
Have you made any promise to do it? But according to the visits he will pay to the buildings, he will be paid.
Have you made any promise to pay Ratti? I have made no promise, he is not a common man that requires a promise to be made.
Is he not architect to general Pino, and was he not architect also to her royal highness? He was the architect of her royal highness, and is the architect of general Pino.
Are you to receive any other benefit or advantage by? coming here? The advantage to send me to my country, that is all.
Do you know that Ratti has been employed to take plans of the Villa d'Este, for the purpose of this proceeding? One day we went together to take the plan of the house; there was the old house, and the new house.
Was not a plan also taken of the Villa Villani? I know not.
Do you know of any other plan being taken by Ratti, for the purpose of this business, except the plan of the Villa d'Este? Only a part of the Villa d'Este, not the whole.
593 Do you know of a plan of any other building being taken by Ratti, for the purpose of this business, except that plan of apart of the Villa d'Este, of which you have made mention? I know nothing, I have seen nothing.
In that room where the two figures of Adam and live were placed, were there not two doors? To come in and to go out.
What was the size of that room across, as nearly as you can recollect; how many bracchi the diameter? The diameter would be from the outside of the bar before me to the third bench, more or less; I do not know exactly, for I never measured it.
Re-examined by Mr. Williams.
How many men had you in your employment when you agreed to come to this country? Thirty bricklayers, and thirty-four or thirty-five helpers; now, perhaps, I may have more.
What was the name of the English gentleman you alluded to, when you were talking about coming over as a witness? I do not know the name; I do not recollect the name; a tall man, red, but I do not know his name.
Was it Mr. Henry? Yes.
When you were talking about coming over here, was any mention made of your expenses—what you were to be allowed? No, nothing; I have been speaking with the architect on this affair, but not with him.
Is the sum you have mentioned, or rather are the sums you have mentioned, what Ratti fixed when you spoke with him (Ratti)? Yes, because I asked his opinion, and I told him all my difficulties; because the Englishman wanted to know exactly, being a man of conscience, and desired I would make an estimate, and I told him so.
Did you tell the English gentleman of conscience the sum Ratti had fixed? Yes, he asked me; he made a writing, and I told him so.
Who told you that Vassali was to pay you? The architect Ratti.
You have been asked about there being two doors to that room in which the statues were; was there any cornice to that room to which any work was done at any time? During the time I was in the service of her royal highness I never sent any body to work in that place.
Mr. SolicitorGeneral requested to ask a question of the interpreter, whether pilaster meant a flat column with a capital and a base?
Interpreter.—Pilaster in Italian, signifies any building, any support, which is not a column; so, if I place in the middle of this house, a pile of bricks and mortar to support the ceiling, I call that a pilaster in Italian, of any shape and dimensions, provided it be not a column.
§ Examined by the Lords.
Lord Ellenborough.—Do you recollect any 594 pilaster near any door in the room in which the statues of Adam and Eve were? Yes, there are some steps; there is a column; there is a pilaster; one after the other.
Near which of the two doors of the room was that pilaster? At the door of entrance.
Which entrance? The entrance when you go up you find the room with the pilaster."
Then it was not by the entrance from the garden, but by the entrance from the rest of the grotto?
The Witness pointed it out with his finger.
Interpreter.—He seems to point out with his finger the room, and then the pilaster and the column, and so you may go into the grotto.
The Witness made a drawing, which was delivered in.
Is this entrance marked 1, the entrance from the garden, or from the grotto? There is no garden, No. 1, is the entrance to the grotto.
From whence? From the hill from the outside from the road.
When did you hold the conversation, of which you have spoken, with Restelli, respecting the sum due to you from the princess? In the month of June or July or August, in my house, for he was always coming, and we went out together.
In what year? Last year, 1819.
Did not you, in a former answer, say, that the last payment of the sum due to you from the princess was made in March 1819? Yes; for when that conversation took place there was still some due to me, and then afterwards came the conversation about the men.
Then the last payment was not made in April or May 1819? Yes.
Was it, or was it not? It was.
Then when you had this conversation with Restelli in the month of June 1819, of what sum due to you from the princess did you speak? Then I advanced a little; but we were discoursing of something else then; we were talking about men, not about that business.
Do you mean to say that between the month of April or May 1819, and the month of June, another debt was incurred by the princess of Wales to you? No.
At the lime of this conversation with Restelli, did the princess of Wales owe you any thing? Before, as I have said, in the month of April and May, she was in my debt, but then when I had with him the conversation about men, and what you do, and what you do not, then nothing was due to me.
When did you hold that conversation with Restelli respecting the 45,500 francs due to you? I have spoken when I came to Milan in March, or the end of February.
In what year? Last year, 1819.
Art you to be understood that the last pay- 595 ment of the debt of 45,500 francs to you due from the princess, was made very soon after this conversation with Restelli; in the same month? Before, for a conversation with Restelli I always have had; but the conversation which I had was before the payment.
How long before? When they had paid me, and I had a conversation with him, then I told him I had been paid in March.
How long before the last payment of that sum was the conversation with Restelli? I have told, and I repeat it again, in March.
Are you to be understood, that the conversation with Restelli, and the last payment of that sum, took place in the month of March? The payment was made in May; but my conversation took place in March.
At what period in the mouth of March? I do not know, it was on the day that I came to Milan, when on account of the requisition, I went there to free my son from it.
Was it about the beginning, the middle, or the latter end of March? In the month of March, I do not remember the day.
At what period of the mouth of May was the last payment? About the beginning I think.
Did you, after the conversation you held with Restelli, make any immediate application for payment? Not from her, but I came hack, I went to Pesaro besides.
How soon after the conversation with Restelli, did you make any application? I have said that I saw him at Milan, where I was four days; then when I returned home, I went to her royal highness at Pesaro, and asked for the money, and she paid me; and then I returned to Milan.
Did you ever mention to any one the conversation you had with Restelli? No, because I went away.
When did you first mention it to any one? When I have been asked, I mentioned it.
Did you ever mention that conversation to her royal highness, or any person in her royal highness's suite? After I got my money I could never speak with any body of her royal highness's court.
Did you ever mention that conversation to her royal highness, or any person in her royal highness's suite? No, because I have told you I went to get my money, and she was at Pesaro; and when I had my money, I returned to Milan.
Did you before you got your money, mention that conversation to any one at Pesaro? It was not business to be told to any body, I have told nothing to any body.
Earl of De Lawarr.—Could a person standing near or behind the pilaster in the grotto, see the statues of Adam and Eve? It appears to me impossible, but I have made not the observation, but as the room is round, and the statues are by the side, I should think that a person behind the pilaster cannot see them.
Earl Grosvenor.—Have you, since you have 596 been in this country, seen any plan of the grotto? I have it in my own mind, because even before I went to the princess, I always went to the grotto.
Was the passage that you speak of, leading to the grotto, a winding passage or a straight passage? If a person goes straight forward, e goes straight forward, and breaks his neck.
Was that passage winding or straight? It is not winding, the walls are undulating, but the passage is straight.
Lord De Dunstanville.—You have said that Restelli told you certain witnesses were paid some forty and some fifty francs a piece, and that they continued at Milan for seven days, were those sums paid for the whole time they were at Milan, or was it a daily payment? Once only.
Earl of Lauderdale.—What was the amount of the last payment you received from her royal highness the princess of Wales? The half, with the interest, which she paid me.
The half of what? The half of 45,500 francs with the interest besides.
When had you received the other half? The first half was received in my name by Mr. Lodi in the latter end of January, or the beginning of February, because I was out.
What was the largest sum that the princess of Wales ever owed you? The last, because it carried the interest.
What was the largest sum that the princess of Wales ever owed you? The sum was 45,500 francs, but when they paid me with the interest, it came to 49,000.
Have you not stated, that the princess once owed you 145,000? From my account, which had been inspected by the architects Pestagalli and Ratti, I was then creditor 145,000 Francs, but the 100,000 francs I had received.
When you had received that 100,000 francs was there any objection made to the charge, and assigned as a reason for keeping back the 45,000? I was in the habit of receiving money every month; every month; every six weeks; and I went to Marietti, and Marietti gave me money; I have received it so many times.
The following Extract from the former Evidence of the witness was read to him:
"The first time that I had conversation with him, I was coming from the states of the Pope, and I had a conversation with him in an inn; and afterwards I had conversation with him in other places; but we talked a little upon this subject, and then we turned upon other discourses; and another day we were coming out from the Custom-house of Porta Tosa, and I was going out of the ramparts in the street of Circolazione of Milan and we were then talking about witnesses; he told me that he had gone into my country about witnesses, and then, when he was in my country, he went to ask for one witness, and that witness went to ask another, and that other went to ask another; then they had drank 597 together; and he has asked them, whether they were willing to depose against her royal highness; and then he asked them, will you come to Milan with me?"
Did Restelli tell you, that having got one witness, he Restelli went to get another, or that that witness went to get another? Restell said to the innkeeper to send for such a man, and the innkeeper sent for such a man; after this man came, who was Brusa, Restelli told Brusa, "Go and fetch such a man, and such a man, and such a man."
Have you often been at the Villa d'Este? Before, I was always at the Villa d'Esle, because I was in the house of general Pino, who was the master of the Villa d'Este; after her royal highness acquired the Villa d'Este, I went there, and remained in the house.
Do you remember any of the paintings on the ceilings in the rooms of the Villa d'Este? Her royal highness had made some ceilings be made; she ordered one to be painted; others had been painted.
Can you slate what that painting was? The ceiling was made of small pannels, and in the middle there were some flowers, some medallions, some one thing, some another.
Was there no figure painted on that ceiling? Simply this size (about four inches), because the ceiling was small, made in chiaro-oscuro.
Do you recollect the bath room at the Villa d'Este."
Mr. Broughambegged leave to submit, that this question went to open a new case, and not that opened by the attorney-general. He begged to be understood as not objecting to such a course, but merely reminding their lordships, that if they entered into it, and that any thing were said which he might have occasion to answer, he should perhaps have to claim a delay of five or six weeks to bring over witnesses to meet this new case. After answering the case already brought forward, he must really ask for delay if another public prosecutor was to start up with a new case.
The Witness was directed to withdraw.
The Earl of Lauderdalecontended, that it was competent for any peer to call any witness, during any part of the prosecution, and ask him any question he pleased respecting the conduct of her majesty, and any or every part of that conduct.
The Lord Chancellorsaid, he thought it quite clear that the limits put upon the forms of examination to be observed by counsel did not in any degree restrict the right of any peer to put such questions to any witness as he thought fit, at any period of this inquiry.
The Earl of Lauderdalesaid, that it was competent for any peer to do that, without being called a public prosecutor.
The Earl of Damleyremarked, that he was interrupted yesterday, and by the very noble earl who spoke last, in a material part of a course of examination, which he thought, if he bad pursued it further, would operate rather favourable for the interest of one of the parties in this case—the accused. He had yielded to that interruption, and refrained from pressing his questions to the witness. Their lordships, on this occasion, should recollect that they had taken upon themselves the anomalous functions of judges, jurors, and legislators. He had always understoodit to be the duty of a judge or a juror to lean to the side of mercy, and in favour of the accused. Keeping in mind this understanding, he could not refrain from taking this opportunity of remarking, that, notwithstanding what had been said by some of their lordships, of dignity and decency, of which he had heard so much, there were some to be found who appeared—instead of being impartial judges, and disposed to lean to the side of mercy—to have feelings of an opposite character.
Lord De Dunstanvillecondemned the introduction of irrelevant remarks, calculated to lead to altercation.
The Earl of Darnleyresumed, and said that he did not mean to accuse any particular noble lord of partiality; but most certainly, generally speaking, he was sorry to find a disposition now and then manifested, which did not, in his judgment, appear calculated to sustain their lordships dignity and impartiality. For his own part, he was determined to discharge his duty fairly and impartially, with a proper disposition to lean to the side of mercy, the propriety of which he hoped others would feel as strongly as he did in the discharge of his duty, though he was astonished to find some of them did not.
§ Lord Redesdalecomplained, that the concluding assertion of the noble earl was as strong as that with which he had set out. Now he hoped that he should be found to act as impartially in the discharge of his duty, as the noble earl. He was very sorry that any thing should have occurred at any period of the investigation to induce the noble earl to make the remark which he had made; but he must say, that it applied, if at all, as much to the opposite side of the House as to his side indeed more.
Lord Hollandwas as anxious as any body to see their lordships abstain from altercation. He begged the learned lord would not take their defence under his charge; for, if his mode of defending the House against the charge of partiality was by imputing to his opponents unfair, unjust, and illiberal proceedings, it was the most unfortunate defence against partiality that he had ever listened to. It was wrong, he well knew, to impute improper motives to any noble lord; but he hoped they would not feel hurt at an observation which he was going to make—namely, that both parties were as partial as they possibly could be. Nobody could doubt that any noble lord possessed the right of calling up any witness, who could, either directly or indirectly, give testimony respecting the bill. Neither could any body doubt that to such a witness any question could be put by them, even though in its nature it were not strictly legal. But his noble friend (lord Lauderdale) had been the first to take objections against evidence which was not so, and the thanks of the House were due to him for so doing. And therefore any party, or any of their lordships, had a right to object to the putting of questions leading to a new inquiry. In point of candour and substantial justice, which was their proper guide on this occasion, if any of their lordships thought that he could bring forward evidence calculated to elucidate any circumstance, either on behalf of, or against the Bill, which had not been brought forward by counsel, it was fitting that such circumstance should be stated to the House; and afterwards inquired into; bin if a new inquiry were proposed, then their lordships ought to pause, and to consider whether they ought not to instruct the attorney-general to institute it, because it would be a fundamental violation of justice, that the judges, after the evidence was closed, should examine fresh evidence themselves, without allowing the parties to the Bill to enter into a cross-examination of it. He did not mean to dispute the right of his noble friend to put the question which he had asked; but he thought he ought, in candour, to have informed the House, that he had new matter to introduce, and to have asked their lordships leave to introduce it. He could wish his noble friend to withdraw the question altogether; but if he would not consent to do that, then counsel should have a right to cross-examine upon it, 600 and to ask for delay if they thought delay necessary, in order to obtain grounds for cross-examination. Now, a word as to the expression "public prosecutor." He could not say, that he did not feel sorrow when he heard their lordships called public prosecutors; and that sorrow was not at all alleviated, by finding that their lordships did really stand in that situation. For in point of form, who were the prosecutors except their lordships? The bill had been brought into parliament in consequence of the advice given by a secret committee of their lordships; and the feature which rendered it so particularly hideous was this—that those who sat upon it, sat in the collective capacity of prosecutors, judges, jurors, and legislators. In that anomalous position they were then placed; and if it sounded harsh to the ears of any of their lordships to be told so, he could only say
—"Pudet hæc opprobria nobis Et dici potuisse et non potuisse refelli.
The Earl of Lauderdalethought that his noble friend had known him long enough to be convinced that he was the last man in the world to feel hurt in the smallest degree by any thing that could be said or done towards him. He was himself in the habit of using strong expressions, and therefore made allowance for others who used them. There was one thing that made him indifferent to what was said of him; namely, the feeling that he was doing what was right. That feeling he had always enjoyed during the course of his life, and nevermore than during the present proceedings.
The Earl of Darnley,in explanation, said, he did not mean to use the term harshly. Strictly speaking, the noble earl who brought down the papers on which the proceedings were founded, was the prosecutor. But no one, not even the most fastidious person, could find fault with the conduct of that noble earl during the whole of these proceedings. What he meant to say was, that he had noticed, during these proceedings, rather an over-zeal in the cause of an airy personage in this case—a person who was not here nor there—who was known to nobody, and yet who existed somewhere. If their lordships indulged in any such zeal, it would be impossible to discharge the high and important duty imposed on them with impartiality.
The Witness was again called in.
601 The following Questions were put, at there-quest of Mr. Williams.
Was the pilaster of which you spoke, on that side on which the men were at work on the cornice, or on the opposite side of the room? The opposite side.
When you spoke of the persons employed by you, did you confine your answer to the workmen employed at Milan, or had you any others under your control besides those? Some are in the town, some go out, some go here, some go there, some must work, and some must direct.
How many had you under you, when you were at work at the Villa d'Este? Before the long journey, there were forty or thirty-five bricklayers, besides the helpers; after the long journey, and after I had made the agreement and the contract for the other building, after I had given the estimate, that the whole was to be done in six months, I had under me two hundred and three hundred.
The Witness was directed to withdraw.
Mr. Attorney Generaldesired to know whether the counsel of her majesty wished to examine him as a witness.
Mr. Broughamstated, that he did wish to call Restelli; but that he was not in his corporal possession.
Mr. Attorney Generalsubmitted, that if the attorney general of the Queen wished to call Restelli as a witness, he must take the usual steps.
The Counsel in support of the Bill were asked whether Restelli was in this country.
Mr. Brougham.—Then he has been sent as a courier or agent to the Milan Commission. I therefore shall not call him.
Mr. Attorney Generalsaid, that Restelli had been sent to Milan with dispatches, under the idea that he would not be again wanted. As soon, however, as that circumstance had come to his knowledge, supposing that Restelli might be wanted, he had sent a courier to desire his immediate return. If his learned friend had said, that he would cross-examine him in the course of the defence, and if he had not rejected the allowance of time which had been offered him by their lordships, Restelli might have been present at this stage of the proceedings. If his learned friend had wanted Restelli, it was his duty to have communicated the fact to him, or to have got an order of their lordships, compelling his attendance. No hint had, however, been conveyed to him that Res- 602 telli was wanted. Their lordships had heard the cross-examination, and he put it to them, whether, on that cross-examination, the questions which his learned friend wished to ask could be put? At any rate, if Restelli was his learned friends witness, he must procure his attendance as he could.
Mr. Broughamsaid, he could not have foreseen the necessity of calling Restelli as his witness, until the examination which had just concluded had taken place. When the adjournment took place, the attorney-general or his agents—for agents he had, and active ones too—must have seen from the nature of his cross-examination, that he was laying the foundation of contradicting Restelli. It was, therefore, the duty of the attorney-general to have kept him here until he (Mr. B.) wished to re-cross-examine him. But if there was any one thing which the agents of the Bill ought not to have done, it was that of sending Restelli out of the country, in order that he might continue his operations as the agent of this—of this Milan Commission.
Mr. Attorney Generalsaid, that one reason why Restelli had been sent out was, that he had been a courier before. He had brought several of the witnesses to this country. There existed in Milan a great anxiety for the safety of those witnesses, who were in this country, and in order to satisfy the anxiety of their friends it was thought advisable to send Restelli over with letters from the witnesses to their friends, to assure them that they were 6afe and unhurt. It was impossible that he could suppose that his learned friend intended to call Restelli as his witness, after having seen that he intended to contradict his testimony. But now, it appeared, that his learned friend intended to call the witness, whose testimony he had impeached, in support of his side of the case [No, no!]. If his learned friend bad thought proper to secure the attendance of the witness, he might have taken the steps necessary for that purpose.
Mr. Broughamwould not say a word in reply. If the witnesses were allowed to depart out of the country pending the proceedings, there was an end of the security which their lordships thought they possessed, that no perjury should be committed with impunity at their bar. Was he obliged under such circumstances to go on with this case.
603 The Counsel were directed to withdraw.
Lord Hollandsaid, he rose to speak in behalf of their lordships, in behalf of justice, and to state, that the facts which had just come out at their lordships' bar were of a most monstrous nature. Their lordships would recollect, that at the commencement of these extraordinary proceedings, a noble lord rose, and most pertinently and solemnly observed, that under the peculiar circumstances of this case, persons would be called as witnesses, from a foreign land; persons of whom the accused was ignorant—of whose relations, condition, habits and characters, the judges, the accused, or the counsel, could know nothing. That it was possible, nay probable, under such circumstances that perjury might be offered at their lordships' bar. It was then asked, what security was to be given to prevent or punish such conduct, and whether there ought not to be a security similar to that existing in our courts against such an occurrence? On that occasion, the noble lord opposite rose, and with great appearance of candour, said, that it would be extremely difficult, according to the constitution of this country, to adopt any compulsion to make those persona remain in the country: but that he would do every thing in his power to secure full justice to the accused, and to protect their lordships from fraud and perjury. He had heard in the lobby of that House—he had heard in various parts of the metropolis—he had heard from various classes of people, from the highest to the lowest—much commendation bestowed upon the noble earl for the manliness of that declaration. But what now appeared to be the case? Why, it appeared that out of those men who had been dragged to the bar of the House, and some of whom had probably been bribed, it appeared that that very man who had given the most revolting and disgusting testimony, not only had withdrawn, but had been actually sent out of the country as 60on as notice had been given that his testimony was to be impeached. "Gracious God! (exclaimed the noble lord), can your lordships—I ask it in the name of common sense and common feeling—can your lordships suppose that, after such a proceeding as this, great as is the reputation of your lordships, great as is the character of this House, which I have alway6 been eager to uphold by 604 every means in my power—can you suppose that we, who are subject to human failings and human infirmities, can stand in safety when opposed to the suspicion and the odium which such a proceeding must cast upon us? What is the case, my lords? Here is Restelli, who was employed, by his own confession, as courier to the Milan Commission—here is one of the witnesses who stated the most disgusting and revolting fact that ever was mentioned in a court of justice—here is this man, who is one of that description, regarding whom you were told that every step should be taken that could be taken by the limited authority of this government (and there are some who wish that it were not so limited), to prevent them from being withdrawn from justice;—here is this very man, I say, upon whom suspicion now rests that he has been engaged in suborning witnesses for this prosecution, not merely escaping, but sent away by the very persons who produced him as a witness. If your lordships submit to be dragged through the mire in this manner—if, after having solemn promises made to you, you permit them not only to be evaded, but even to be counteracted by those who made them, then are your proceedings a mockery and a burlesque. You will taint, not merely your present proceedings, but all your future measures; you will taint this branch of the legislature, and will involve the country, already reduced to great distress from having blindly followed the counsels of these self-same men upon other points, in still greater distress, and will place its institutions in the utmost jeopardy and danger." He therefore said, with his noble friend (lord Carnarvon) who had made such a solemn appeal to them that morning, that this matter ought to be set right, or that, considering all these circumstances as forming a prima facie case of the existence of a conspiracy to pervert justice, they would do well to get rid of the disgust and fatigue of this odious proceeding altogether.
The Earl of Liverpoolthought that, after the speech of the noble baron, he had a claim upon the indulgence of the House, and he would, therefore, ask their lordships whether, without any explanation of the circumstances, the attack which had been just made upon him was justified by the facts of the case, or by any thing which they knew of his character? He would appeal to their lordships 605 whether, when he gave an assurance to the House, it had not always been his practice to see it carried into effect? and he would defy any noble lord to show that he had at any period of his public life held out an expectation which had not been fulfilled. The attack upon himself he would thus repel; and, with regard to the rest of the case, he would now proceed to state, that the noble baron had given a most erroneous, fallacious, and inflammatory view of it. He was ready to admit, that it was the duty of those who conducted the Bill to secure, as far as possible, the continuance of all the witnesses in the country until the close of it. He was ready to admit, that the sending away of Restelli was highly blameable in the quarter that authorised it; but, admitting this, he must, in the first place, acquit himself of all knowledge of that transaction; and, in the next place, he must assure them it was as unknown to the attorney and solicitor-general as to himself. He would ask their lordships, then, if this circumstance authorized the suspicion that a conspiracy existed to pervert justice? What was the case? Restelli had been employed as a courier in bringing to England the witnesses for the bill; and upon the adjournment of their lordships for three weeks, it had been thought, by one of the agents for the bill, that certain services which were to be performed at Milan would be better performed by Restelli than by any other person. He had, therefore, sent him thither, under the idea that Restelli would be back before the present moment. He (lord Liverpool) thought the step was an erroneous one. The motive, however, he believed to be good and honourable; and he did not think that the person who had sent Restelli abroad had done it with any intention of withdrawing him from justice. As soon as the circumstance of Restelli's being abroad became known to the attorney-general, he ordered a person to be sent out with orders for his immediate return. That was the plain statement of the case. That was the unvarnished tale which he had to tell; and he left it to their lordships to decide whether there existed any grounds for asserting that a conspiracy was on foot to defeat the ends of justice.
The Marquis of Lansdownsaid, he was perfectly satisfied with the explanation of the noble earl. It was doing but that justice to his high character, which that 606 character deserved, to say so. But, admitting this, he could not help observing that it was one of the additional evils of the present proceeding, that it placed men like the noble lord upon the necessity of making such an exculpation. And now he would beg to call their lordships' attention, after having done justice to the noble earl, after having fully acquitted him and the administration, of which he was the head, of any participation in this transaction;—of this criminality, he would say, if it came to be proved,—he would call upon their lordships to consider the influence which this circumstance must have on the case of the illustrious lady who stood accused at their bar. If the bad, the wicked, the despicable agents employed under this bill had betrayed their employers—if they had taken upon them to act without the knowledge of those employers—was it fitting that they should visit upon the head of her majesty the baseness of those agents? Was it fit that that conduct which their employers had found it necessary to come forward and disown, should be allowed to operate to the prejudice of her majesty's case? He entreated their lordships to consider the importance of adhering to the rule which they found themselves bound to make at the outset. He was not speaking to the cross-examination at the bar by counsel; he alluded to that understanding to which the House had come for its own satisfaction, that all the witnesses examined should be forthcoming whenever it should be found necessary to recall them. Was that rule of no significance, was it of no importance? Their lordships had witnessed an example of the importance of that regulation, in the recalling of Majoochi a second and a third time; they had also an example of it in the recalling of the witness Carrington, which was very properly done by the noble lord at the head of the Admiralty. The re-examinations of those two persons were of great importance. The witnesses, when called for, were brought and examined at once. What would their lordships think of the importance of having Restelli at once brought forward, and without notice confronted with the evidence given against him this day; but when that witness was called for, when his immediate examination was of the utmost importance, it was found—not that he had disappeared—but that he had been sent out of the country by the party who 607 had called him as a witness. And when the attorney-general was called upon to explain this, he gravely stated, that, forsooth, the people at Milan were not satisfied with the situation of their relations, the witnesses in Cotton-garden; that they Could not be satisfied of the safety of; their friends, until they saw Restelli; that Restelli was, in fact, sent over to these persons as a sort of certificate to prove that their friends were safe and unhurt, and giving good round evidence at the bar of that House. When he heard this excuse made, he felt that there could be no good reason given for that act, which the noble earl had so candidly come forward to disavow. It was, however, incumbent on their lordships to do all in their power to repair the error; they could not, he feared, fully repair it. What effect it would have on the proceeding before them, he could not venture to say.
The Lord Chancellorclaimed no more credit than was due to him when he said, that he knew nothing of the sending Restelli out of the country. He confessed that it was a most ill-timed and ill-judged proceeding. But the well-known character of the person who had done it, was a proof that it was not an error of intention, but merely an error of judgment. If it was an error of the former kind, strong language might properly be applied to it; but if it was merely founded on mistake, he thought that the opprobrious terms which had been used did not apply to it. But it was said, that great injury must be done to the illustrious accused. He allowed it. But what was the course which it was now proposed to adopt? To call Restelli to the bar? That course, unfortunately, could not be complied with; and he thought that considerable allowance ought to be made, in the consideration of her majesty's case, in consequence of that circumstance. Their lordships must therefore act upon this principle, that the examination, when gone into on a future day, would not be so beneficial to her majesty as it would be at present; and when they recollected that circumstance, they must give her the benefit of it, in the language of the law, "liberally and largely." The noble marquis had said, that it was their duty to repair the injury which they had done her majesty; but, it was beyond their power to do it. What, then, was to be done? Could they close the proceedings at that stage?
608 There was no man who could put his hand to his heart and say that this could be fairly and impartially done. For the sake of her majesty they ought not to do it. How, then, were they to proceed? Were they to go on, and, as the witness could not be called now, call him at a future stage of the proceedings, making, as he before said, in a judicial manner, every allowance for the circumstances of the case. This, he conceived, would be the best mode of proceeding.
The Earl of Carnarvonfully agreed with the learned lord, that there was nothing which they could do that would repair the injuries they had done to her majesty in the course of this investigation. What, then, was the only remedy left them to adopt? What was the only step which they could take, to do her majesty justice? It was, now to put an end, once and for all, to this base and infamous proceeding. How did the case now stand? Her majesty's defence was interrupted, in a manner the most unwarrantable, and the most extraordinary; and, by the admission of the learned lord himself, she could not be restored to the situation in which, if the witness had not been sent away, she would have been placed. This occurrence he did not attribute to the noble earl, but to the agents of the government. Here he called on them to stop. Had not they long enough outraged public feeling, disgusted common sense, and disgraced the country, by hearing at the bar of the House, from day to day, that abominable and disgusting ribaldry, which had been resorted to on this occasion, he knew not for what practical purpose? They ought to consider, whether they were not, by their proceedings, rendering themselves objects of execration to every Englishman, and of contempt to all the rest of Europe? How was it that the learned lord proposed to remedy, as well as he could (for he admitted that no perfect remedy could be discovered), the default of those with whom the present subject of complaint originated? There was proof, that an extensive system of subornation of perjury existed, which they were prevented from probing to the bottom. Well, therefore, might the learned lord admit, that substantial justice could not be done. With whom had this gross error originated? Certainly not with her majesty's counsel, but with his majesty's ministers; or, if not with them, 609 with some department connected with I the prosecution. The case, if, indeed, it I could be farther disgraced, or rendered more odious, was, by this last circumstance, reduced to the lowest pitch of infamy. Let their lordships consider well, that if there existed in the other House of Parliament, any portion of the spirit which animated the country—if the members of that House had any concurrent feeling with the great body of their constituents—the bill would be defeated there, should their lordships persist in passing it on such evidence as had been adduced at their bar. If they should send it farther—if they should send it to the other House of Parliament—it would tend only to keep up that agitation by which the country had so long been distracted, and which threatened to bring into discredit, nay, to overthrow, the most glorious institutions in the world. These sentiments did not occur to him on the spur of the moment; neither were they the offspring of any angry feeling: they were called forth by the temper which he observed amongst their lordships, and by the feeling with which the public mind throughout the country, was evidently actuated. If, for a long time, he had abstained from addressing the House on this subject, it was wholly occasioned by deference to their lordships. He would certainly take the sense of the House on the motion he was about to propose; and he implored their lordships, for the honour of the country, for the honour of that House, for the honour of human nature, to proceed no farther with a measure, which, if urged forward, must inevitably produce evils, from the baleful effects of which nothing could save them. The noble lord concluded by moving, "That this Bill be read a second time this day six months."
The Lord Chancellor.—I rise merely to explain. I never could enter this House again, with quiet to my mind, if I admitted, as the noble earl asserts, that this House could not do substantial justice. I am decidedly of opinion, that it can do substantial justice. Allowing liberally and largely for the circumstance that has happened, so far from being unfavourable to the individual, it may turn out, on the contrary, to be extremely favourable to her majesty. It is impossible, therefore, to say that the House cannot do substantial justice.
Lord Ellenboroughunderstood his noble 610 and learned friend to say, that a great difficulty existed, and that it would be impossible to place her majesty precisely in the same situation as that in which she would now stand, if it were practicable to call Restelli to their lordships' bar; but, he had added, that when their lordships came to consider the state of the case, they might, by making large and liberal allowances, if not entirely place her majesty in the situation in which, under other circumstances, she would have been placed, be still enabled to do substantial justice, and to obtain that object at which they all wished to arrive. Such being the situation in which they were placed, what was the proposal of the noble earl? It was one entirely contrary to all justice—fatal to her majesty's character—wholly unsatisfactory to the country, and in every respect opposed to that course which he thought it was their lordships' bounden duty to pursue. In considering this bill, two questions naturally arose in the mind of every person. One question was, whether her majesty was guilty or not guilty? Another question was (and one, he apprehended, which was totally distinct), whether, on the evidence adduced at their lordships' bar, they would pass this bill? He conceived, from what had fallen from the noble earl, when he introduced this measure, as well as from what had since been said, that their lordships never would pass this bill, unless on such evidence as must carry conviction at once to the mind of every reasonable man in the country. This being the opinion he had formed, he had never indulged in the apprehension which seemed to fill the mind of the noble earl who had recently addressed the House. He always thought that their lordships would never pass this bill, unless on evidence so clear, so perfect, and so convincing, that it would be contrary to the honour and character of the other House to decline passing it, when that evidence was laid before it. The case might, however, be extremely different. It was possible that such a defence might be made out at the bar as to induce their lordships not to pass the bill, although it might not be such as to induce them to consider her majesty entirely innocent. For the cause of truth and justice, therefore, he entreated their lordships to hear the whole of the case, and not to break off in the middle of it—not to adopt a proceeding that might possibly leave on the mind of every noble 611 lord a moral conviction of her majesty's guilt.
The Earl of Darnleywas of opinion, that before they came to any vote on the proposition which his noble friend had made, her majesty's counsel ought to be called in, and asked whether the absence of the witness Restelli would be injurious to their client's case?
§ Earl Greysaid, he never in his life entered on a question with more reluctance, or felt a greater degree of difficulty, than he experienced on the present occasion. Undoubtedly, if he had looked at the subject precisely in the same way that, his noble friend had done, he should have expressed, with all the warmth of his noble friend, his indignation at the extraordinary circumstance that had occurrred; for he must say, that by the explanation of the noble and learned lord at the table, it appeared that they were now placed in a situation in which, according to the noble and learned lord's own statement, substantial justice could not be done. What was the statement of the noble and learned lord r* He stated, that by the abduction of the witness at the present moment, and the impossibility of producing him now, an injury' might be done to her majesty's defence, which it was out of the power of that House easily to repair. Why then, if that was the situation of the case, if the Queen was deprived of those means of defence which, if resorted to at that moment might be rendered effectual, and if the necessary means of defence were not fully supplied to her hereafter, he would ask, whether it did not follow, as a plain and inevitable consequence, that the defence was, to a certain extent, injured, and that substantial justice could not be done? Under these circumstances, he felt himself placed in a situation of very great difficulty; he felt all that had been stated with respect to the disadvantage of interrupting the defence before this witness was called; and he should perhaps be better satisfied if his noble friend did not persevere in his motion. But feeling that the House was placed in a most unlooked-for situation—feeling that there was no possible remedy for the act committed by the agents for the prosecution—if he were asked on that ground, whether the proceeding ought to be continued, her majesty being deprived of those means of defence which ought to be afforded to her, he should, however reluctantly, be obliged to assent to this pro- 612 position. Let their lordships consider the difficulties into which they were plunged. In the first place he would direct their attention to the contradiction of this witness's testimony. No man could say, that if he were called up immediately after what had been disclosed to their lordships, his examination would not be materially different from what it would be at any future period, when information had been supplied to him, with respect to all that had passed on this subject. Thus an irreparable injury would, in this instance, be done to the Queen. But there was more injury than this. His noble friend had stated, perhaps a little hastily, that subornation of perjury had been proved. He would not say that; but he would say, that a strong statement had been made by the witness recently examined, which must show that the individual who had left this country had at least been engaged in endeavouring to suborn other witnesses. What had they heard this day at their lordships bar? They were told that Restelli went to a witness and offered him a certain sum of money for his evidence: that that witness went to a second, the second to a third, and so on: to each of these witnesses a similar proposition had been made. He (Restelli) did exactly that (and he hoped he should not be eluded for making any observation that seemed to reflect on the evidence which had been given), but he did exactly that which was likely to influence those witnesses who deposed to the story of Adam and Eve, and other circumstances of a similar nature—points which struck him at the moment as having been obtained in this improper manner. He was not charging a conspiracy on the noble earl opposite, but, when such a suspicion was raised as had been excited by the evidence given that day—namely, that if the witness who had quitted this country were examined before any information relative to what had just occurred could be afforded to him, it would render the defence of her majesty complete and triumphant over the worst conspiracy that ever was formed to ruin the character and destroy the honour of an individual; and if the circumstance of delay rendered it impossible, as it did, according to the admission of the noble and learned lord, that the examination could be pursued effectually and satisfactorily hereafter—then he must contend, that, in consequence of what had happened, the 613 House was placed in a situation in which substantial justice could not be done; and if his noble friend persevered in His motion, it must undoubtedly receive his assent; more especially when he coupled the circumstance with the appearance which the evidence had assumed in the course of this proceeding.—Thus far he had; stated his sentiments with respect to the motion then before the House; he would now offer a few observations on the fact itself. It was impossible to hear the fact stated, that this man was withdrawn from the possibility of immediate examination, without reprobating the measure in the strongest manner. The noble earl opposite had done no more than justice to him I self when he condemned this proceeding by applying to it the mild and gentle appellation of "ill-judged." In speaking of it, he would not use such a term. It was not only ill-judged, but he would say, that it was most iniquitous. In such a case, it was of little use to speak to the characters of those who were implicated. They could not but be aware, generally, from their professional knowledge, and their knowledge of this case, that it was proper and expedient to keep witnesses of this sort in this country, that they might be forthcoming in case any necessity should arise for examining them more minutely. But if ever there was a witness who from the particular nature of his testimony in chief, as well as from the particular nature of the facts disclosed on his cross-examination—if ever there was a witness whom every person acquainted with proceedings in courts of justice must have seen the necessity of examining still further—Ites-telli, he would say, was that witness. The noble earl had observed, that he trusted his known character would remove from him any suspicion that he had taken a part in this proceeding. He gave to the noble earl all the weight and credit which his high character deserved; and when the pledge was given to that House, by the noble earl, in consequence of a formal statement on the subject, that every thing should be done, as far as he could contribute assistance, to further the ends of justice, by keeping within the country all the witnesses introduced in the course of this prosecution, the House, with that confidence in the noble earl's character which it deserved, gave credit to that assurance, and rested with perfect security on it. But if having given their lordships that 614 solemn pledge, sanctioned by all the weight and authority of his character, the noble earl found himself in this extraordinary situation that those who ought to' obey his instructions, and attend to the pledge he had given to that House, and which a sense of duty should have taught them to respect—if those persons were found to have deceived both the noble earl and the House, what possible security could he have that the ends of justice would not be defeated; or what right had their lordships any longer to assume, that the commands of the noble earl would be observed, when they perceived that those agents who ought to act in strict obedience to what he had directed, had, in defiance of the noble earl's pledge, sent a witness out of the country, and rendered it impossible that his examination could be so effectual as it otherwise might have been? But in what situation was the Queen placed by this circumstance? Her majesty's counsel had trusted implicitly to the noble earl's assurance, that the witnesses should not be suffered to depart; but the moment an important circumstance called for the re-examination of one of them, they found that the pledge was nugatory; that no one-was answerable for the appearance of the witnesses, that a subordinate agent had sent away one of them; and that in consequence substantial justice could not be done to her majesty. He must say, whatever their lordships might do, whatever course they might be pleased to adopt, that the whole proceeding could not be too strongly reprobated. Looking at its original introduction, taking its details into consideration, viewing all the circumstances connected with it, and marking, most particularly, the circumstances of the defence of this illustrious person, he must again repeat, that it seemed to him that they were placed, by the forfeiture of the assurance which had been distinctly given to them (he meant nothing personal to the noble earl opposite,) in a situation which prevented them from doing substantial justice to the accused party. If, therefore, he was driven to decide on this proposition, whether they should or should not continue this proceeding, he would say, let it not be continued." The noble lord (Ellenbo-rough) speaking of the mode in which the business was to be decided, had observed, that there were two questions for their lordships decision—one, whether the Queen was guilty or not guilty; the 615 other, whether the bill should be passed on the evidence that had been adduced; and he added a sentiment in which he entirely agreed with the noble lord, that, in a case of this nature, there ought to be clear, incontrovertible, unsuspicious, and unsuspected, evidence, to induce them to come to a decision against her majesty. But he would state, that, on a proceeding of this peculiar description, a proceeding which the noble earl opposite had recommended and to which he must adhere, with all its circumstances, it was impossible for their lordships to separate those circumstances, so as to give an opinion on two questions. They had arrived at the second reading of this bill, and on that second reading, the first question must be, simply, aye or no—on that point their aggregate opinion must be given—there was no question of an intermediate nature—He had stated thus much, viewing most painfully what had happened, and looking at the debates that had taken place, on or before that day, as nothing more than a strong and powerful illustration of all those evils which he had deprecated from the beginning—evils that had been summed up in a compendious observation, which had fallen from a noble lord on the cross-bench, who had stated to their lordships "that the House were placed in a situation, in which, from their habits, they could not appear to the public to be doing justice."
The Earl of Liverpoolsaid, if the fact really were, that, from the circumstance which had occurred, substantial justice could not be done to her majesty, he would agree with the noble earl, that the proceeding should be suspended altogether. But the noble and learned lord on the woolsack did not state that substantial justice could not be done. He had said, on the contrary, that the consequence of the event in question might possibly be beneficial to her majesty. The noble and learned lord exemplified the position in this way, and he considered the reasoning to be correct—namely, that they were bound to give her majesty the full and entire benefit, as far as she was concerned, of all the evidence adduced against the testimony of Restelli. And although it might be possible that his evidence with respect to her majesty could, if doubted, be explained, that still, under the circumstances of the case, such explanation should be entirely put out of the way. Here, therefore, her majesty might 616 receive a decided advantage. Now, how could their lordships put this great cause, which they were engaged to decide, on an issue such as this? He would assume, that some improper proceedings took place at Milan; he would assume, that the Milan Commission had acted improperly; he would do this for argument sake (because he knew the government had authorized no impropriety; and, while he admitted that the fact relative to Restelli was a most serious one, he must observe, that with respect to all the other proceedings of the Commission, so far from any thing improper being proved, the reverse was manifested); but, assuming all this, and looking to the whole of Restelli's evidence, it would be found that the case did not stand on that evidence, but that it still rested on the evidence of others—of some, who had never been at Milan, or who, having been there, never had any communication with Restelli, or any other person of that description. It was, therefore, possible, that such a case might be made out on this evidence, as would induce their lordships to find her majesty guilty of the charges stated in the preamble of this bill. Then, he contended, that the argument of the noble earl was, in this view of the case, completely erroneous; because there was no question whether substantial justice could be done. It was quite clear that it could. Nay, the consequence of the situation in which the defence was placed, by the circumstance complained of, might be, to deprive the prosecution of the advantage of a great body of evidence, to which access might have been had, if this obstruction had not occurred. He would ask their lordships this, and he put the question to them most seriously—whether, with the evidence on the part of the accusation, and the evidence on the part of the defence, as far as it had gone, and considered in all its bearings, it would be possible, consistently with what was due to the character of the Queen, to suspend the proceeding in its present stage? Would it be possible to satisfy the public mind, or to do substantial justice, if the case were now left without coming to any decision upon it? Whatever might be the final determination, whatever fate in the end might befal the bill, sure he was, that the whole case ought to be heard. By hearing the whole of the evidence on; both sides, and by that means only, could the House arrive at a just and safe conclusion. He had no difficulty in saying, 617 that the House owed it to the honour of the Queen and to the honour of the country, not to shrink from the question, whether the preamble of the bill had or had not been established? Without anticipating any future questions that might arise, he thought it right to say, that nothing could be more unfortunate, nothing in his view more ill-judged, than to smother the main point at issue, the guilt or innocence of the Queen, in questions of mere policy and expediency. By some mode or other, the House ought to go to the end of the inquiry, and decide whether the preamble of the bill had or had not been proved. Such was his deliberate opinion of what was due to justice and to the Queen. He had already said, that if he thought the ends of substantial justice would be defeated, he should agree with the noble lord; but he wished to say one word on what had fallen from the noble earl who spoke last, as to the flagitious conduct of the individual who sent Restelli to Italy. He allowed that it would have been a flagitious act, if the object of it had been to withdraw the witness from justice, but he (lord Liverpool) was most conscientiously convinced that the gentleman who had been the occasion of it had had no such intention, but had felt convinced that the man would have returned before the House arrived at the present state of the proceeding [Name, name!]
The Earl of Lauderdalesaid, he was very anxious to state his feeling upon what had passed in the course of this discussion, and upon the situation in which the House was placed. He must, in the first place, observe, that the motion of the noble earl arose out of a complete misrepresentation of what had fallen from the noble and learned lord. He had never said, and he (lord Lauderdale) had never understood him to say, and could not conceive how any man could have supposed him to say, that it was impossible that substantial justice could be done to her majesty because Restelli was withdrawn. The proposition was so absurd in itself, that it was impossible that the noble and learned lord could have uttered it: on the contrary, he had urged, that it was not improbable that the circumstance might turn out advantageously to the Queen. And, what was the nature of the proposition to rectify this supposed injustice? It was this—that after the whole of the evidence in favour of the bill 618 had been heard, and half the defence had been gone through, the House should stop short and proceed no farther. Thus, the remedy would, in truth, be the grossest act of injustice that had ever been suggested to any tribunal. It had been formerly urged, that even the slightest delay between the charge and the defence was an atrocious proceeding, and it came from the same individuals who now recommended that the Queen should be permitted only to go through half the case that was to vindicate her in the eyes of the world and posterity. All men were bound to consider her innocent until she had failed in disproving her guilt; but here it was recommended, that her majesty should be deprived of the opportunity of doing so. But, their lordships were bound to consider, not merely the interests of the Queen, but the interests of the country; and, suppose it were asked why the proceeding was stopped, why the Queen was permitted only to be half defended, what would all the countries of Europe, or any independent man on the face of the globe, think of the answer, that this crying injustice had been done because an Italian courier had been sent to Milan? His noble friend (the earl of Carnarvon), on the absence of this Italian courier, meant to found his charge of conspiracy; but he put it to their lordships, whether there was one among them who believed that Restelli's absence was the consequence of any deep-laid conspiracy? Was the absence of this courier any proof of its existence? or would this circumstance be assigned as a reason, why a stain should continue upon the Crown of England, which, if the opportunity were afforded, might perhaps still be shown to be pure and unsullied.
§ The Earl of Morleysaid, he hoped to be spared the pain of coming at that moment to a decision on the important question submitted to them. The report of the secret committee was this—that it was important to the honour of the country that the truth or falsehood of the charges against the Queen should be fully investigated, and that it was the opinion of the committee, that the best mode of proceeding was by a legislative measure. After that unfortunate necessity had been imposed on them of ascertaining the truth or falsehood of those charges, he knew of no mode so satisfactory as by the machinery of a legislative-measure, without intimating in the most remote 619 way what it might be fit for them ultimately to do in their character of legislators. There would not be the slightest inconsistency in proving the preamble and negativing the enactment of the bill, which struck a blow, in his opinion, at legitimate monarchy. It was, he thought, highly necessary that it should be declared whether it was meant by the bill to affect the Succession or not. Their business, however, now was, to ascertain the truth or falsehood of the charges, and he humbly entreated the noble earl not to press his motion to a division. He did not mean to magnify or diminish the injury which was done to the Queen by the absence of Restelli; but he thought that on every principle of justice, the rest of her defence should be heard.
§ Lord Alvanleysaid, that if the person who had sent Restelli out of the country were found to be connected with the Milan Commission, he should not be easily persuaded that it was a mere error of judgment that gave rise to that act.
The Earl of Carnarvonsaid, that he wished the following question to be submitted to the counsel for the Queen; whether the immediate examination of Restelli was material to their case? He was anxious, in the first instance, to hear the opinions of the learned gentlemen upon this point; and he should then be better enabled to judge what step ought to be taken. Though nothing, not even the speeches of counsel, could alter his opinion, that, for the sake of the country, and for the sake of the House, it ought not to proceed further in this inquiry, yet he felt bound to submit with deference to the opinions expressed by noble lords more experienced than himself. For this reason, he should not press to a division the motion he had offered; though he was convinced that public feeling bad long ago had enough of the proceedings of the House upon this subject. The first hour the public should learn that their lordships had determined to quash this business, it would be hailed by an unanimous acclaim of joy and gratitude from one end of the country to the other.
§ The Earl of Blesingtonfelt it necessary to make a few observations, It had been very properly asked, who was the individual who bad sent Restelli to Italy; 620 and the noble earl had avowed, with that candour which distinguished him, that it was Mr. Powell. Now, he had the honour to be acquainted with that gentleman, and he should be sorry, because he was a Milan commissioner that he should be supposed to be a party to any conspiracy against the Queen. He regretted as much as any man that Mr. Powell had had any thing to do with the Milan Commission; and sure he was that he had not willingly subjected his conduct to the animadversion of the House. He concurred in thinking, that it was highly improper, under all the circumstances, to send Restelli to Italy; but he was satisfied that no undue motive existed in the mind of Mr. Powell.
Lord Hollandowed it to himself and to the noble earl opposite, to assure the House, that at the time he made his remarks, and before the noble earl had spoken on the subject, he was satisfied that the noble earl was neither directly nor indirectly a party to the transaction. He founded this conviction upon the character he entertained of the noble earl; for though, on many occasions, they were in political hostility, he was ready to acknowledge that on neither side of the House did he know any man less capable of doing what was dishonourable or unbecoming. If he had thus thought before the noble earl had spoken, his opinion was more than ever confirmed by the manner in which the noble earl had met the question. While, however, he acquitted the noble earl of the slightest participation in any thing like intrigue or conspiracy, his feelings upon the subject remained unaltered. After the disclaimer of the noble earl, and a few minutes calm reflection, he still felt bound to say, that the noble earl, on this occasion and others had undertaken to do more for the House than experience showed he was able to perform. The noble earl admitted the proceeding now complained of to be culpable; but when he gave the pledge that no witnesses should leave the country, he ought to have fairly avowed, that he had no power to retain them, that they might, if necessary, be subjected to prosecution for perjury. If the noble earl had thus confessed that there were certain inferior persons, over whom, in this respect, he had no control, the House would, probably have adopted a resolution very different from that to which it had arrived. It had, in fact, relied upon the assurance 621 of the noble earl, that he would do his utmost to prevent what had now really occurred. Perhaps the noble earl had done all that was possible in his situation; but what the House required and expected had not been performed. Without cavilling, therefore, about words—whether substantial justice could, or could not be done, or whether her majesty's defence was injured—he must say, that the House was placed in a situation which I prevented it from inquiring into the allegations of the preamble, with any probability of arriving at a satisfactory conclusion. His noble friend on the cross-bench (lord Lauderdale), who met every subject with good humour, who possessed excellencies of many kinds, and from whom he never differed without regret and diffidence, had contended that it would be the greatest possible injustice to stop in the middle of her majesty's defence. He (lord Holland) confessed that he was made of sterner stuff on this occasion than his noble friend: he was ready, and had been ready from the beginning, to quash this proceeding; and if the motion today submitted had been persisted in, he should have given a vote consonant with that opinion. He felt bound to say that the defence had not only been interrupted, but that it was impossible that it could now be continued with the same advantages it had before possessed. In the course of the preliminary discussions it had been asserted by the noble earl (Liverpool), that the mode in which this great question was investigated, was most beneficial to the party accused, under the supposition that she was guilty. This seemed, at the time, a strange kind of panegyric, only intelligible, in its full extent, to those who were so prodigiously anxious for the honour of the Queen, and, at the same time, that justice in mercy should be extended to her majesty. When they said, "Do not stop in the middle of the defence," they in fact meant to deprive her of one great advantage held out by the noble earl in the first instance. His noble friend (lord Lauderdale) had declared, that he never heard of such a proposition as stopping a proceeding of this kind; but had he never yet read of a party to a suit being nonsuited for want of sufficient evidence? He was not well informed upon such subjects; but he begged to ask, if no instance was to be found of a trial being interrupted in a court of justice, in consequence of something im- 622 proper in the conduct of one of the parties, before the jury was called upon to decide on the main question at issue? It would rather be supposed that the other side were arguing on the analogies of law in France than in England. Here, if a man were accused of murder, and it came out that he was only guilty of a crime of a different complexion, he had the benefit of his plea of not guilty to the greater offence. He had the advantage of a complex proposition, which, if it failed on one point, failed on all. Yet the Queen, in a case of this importance, and after all that the noble earl opposite had said in the commencement, was to be deprived of the advantage of this complex proposition. Much fault had been found, and justly found, with the conduct of the individual who had sent Restelli to Italy; and it had drawn from the noble earl a declaration, that that individual was free from any criminal intention. He recollected lord Thurlow to have said that he would not take any notice of the conduct of persons in office on occasions like this; because, to make observations was to afford an opportunity for a fulsome panegyric, not only upon gentlemen immediately in place, but upon all those incidentally connected with them. This remark had been illustrated to-day; for no sooner was the conduct of the individual who had sent Restelli out of the country called in question, than he was immediately pronounced to be a person of most excellent qualities, who had merely committed an error in judgment. In fact, it might be said to be enough for a man to be employed by government, or to be employed by one who was employed by government, to invest him with all imaginary virtues. Thus persons in office were gifted with all descriptions of good qualities: the gentleman whose conduct was now before the House was a person in office; ergo, he was gifted with all descriptions of good qualities. Another point connected with this discussion regarded the Alien bill; and, though he would not now go at length into it, it was obvious that it formed a very material consideration, and that it might be exercised in a way injurious to her majesty's defence. The learned lord had asserted, that, supposing Restelli did not return, the Queen would have all the advantage to be derived from his absence. It ought, however, to be recollected, that Restelli was not wanted, at the present moment, to be examined as to the testimony he 623 had previously given, but as to the actual existence of a conspiracy against the Queen; whether connected with the Milan Commission, or not, he would not decide. It might, perhaps, be supposed that Restelli, if he were here, would prove the existence of such a conspiracy, and did the learned lord mean to be understood, that if the witness were not produced, it was to be concluded that such a conspiracy really existed? That could not be meant: and yet, if the learned lord did not mean that, he could mean nothing. It was quite clear that, if the formation of a conspiracy against the Queen were satisfactorily made out in evidence, their lordships would throw out the bill. It was thus clear that the ends of substantial justice might be evaded; because Restelli was not here to prove that which, without his testimony would never be inferred. Then arose a question, as to the situation in which the court was placed; and how, under all the circumstances, it was possible to avoid doing injury? It was very true, that if there was nothing in the accusation against Restelli—if he could not establish a conspiracy, or any thing like it—his absence might operate to the advantage of the accused: but if, on the other hand, Restelli could prove that the Milan Commission was connected with a conspiracy against the honour and character of her majesty, and could bring home the charge justice could not be done without his presence. He did not, therefore, stand up for the extension of any indulgence or mercy to the Queen, but he stood up for the court itself: because he did not like to go on in a course which, happen what would, the judges could not lay their hands upon their hearts, and say, "We are satisfied that full justice has been done." If this distressing situation were owing to the laches of the noble earl, he was quite sure that it only arose from an error in judgment. He would not, however, suppose that there had been the slightest neglect of duty on the part of government, and he gave ministers full credit for having done their utmost. Still, the very thing apprehended at the commencement, and against which the assurance of the noble earl was the security, had happened; the course of justice had been perverted, and it was much better to stop altogether than to persevere in a road which could lead to no satisfactory termination.
§ Earl Greyobserved, that, as Mr. Powell's name had been mentioned, he ought 624 to be called to the bar to explain the reasons for Restelli's absence.
Then John Allan Powell,esq. was called in, and having been sworn, was examined by the Lords as follows:
§ Earl Grey.—Were you employed under the Commission of Milan? I was.
Are you at present the agent in the support of this bill? I am assisting the agents in support of the bill.
Were you present in this court at the examination of Restelli? I was.
State, then, why you sent Restelli on a mission out of the country? I recommended that Restelli should be sent.
To whom did you recommend that? I recommended it at the Foreign office.
Was it at the Foreign oflice you applied to have Restelli sent on this foreign mission? As a courier.
Did you get passports for that purpose at the Foreign office? I did not.
Can you state who did? I did not.
But you applied at the Foreign office; you recommended he should be sent on this mission? If your lordships will allow me, I will give the explanation; Restelli had been the courier who had conducted a great number of witnesses to Dover; those witnesses had been mal-treated by the populace at Dover; they were afterwards sent into Holland.
Do you speak to your own knowledge when you say they had been ill-treated at Dover? I speak from the information of Restelli. I am stating the motives that induced me to make that recommendation. I learned that various reports were propagated in Italy of the dangers which the witnesses for the bill ran, by coming over to this country. I had heard that reports were propagated in Italy that they had received great personal injuries. I had heard that the families of those persons who were here were exceedingly anxious upon the subject of their relations who were in this country. I had understood Restelli to be acquainted with the greater part of the families of those persons, and I considered that it would be an act of humanity to those relations and friends, that some person who had seen the whole of those witnesses in this country, and who was acquainted with those families, should go over there with letters from the witnesses, and having himself been an eyewitness of their safety here, that he should report to those families what their situation really was, and by that means that he should put an end to the great anxiety which I thought those families must necessarily feel for their friends.
Admitting this to have been your motive, did you not know that by sending Restelli out of the country it would be impossible to examine him here upon the subject of his evidence, if a necessity should arise for that? At the time that Restelli was sent away, which I think was the Thursday or Friday 625 after the adjournment of the House, I conceived that there would have been ample time afforded before any such necessity could arise: my instructions to Restelli were specific, as far as I recollect, that he was to return here on or before the 3rd of October; and at the time that Restelli went, I had a firm conviction in my own mind that he would so return.
Whom did you see at the Foreign office when you made the representation you have stated? It was either Mr. Planta or lord Clanwilliam, I am not certain which, to whom I think I stated, that Restelli was to be sent as a courier to Italy.
Did you state to the persons at the Foreign office, whoever they might be, that Restelli had been examined as a witness at this bar? I do not recollect to have made such statement.
Did you state who he was? I believe it was perfectly known who he was.
Have you had any communication which enables you to state, whether it is probable that Restelli will soon again be in England? I have every reason to believe that he will soon be in England, because the most positive directions have been sent, that he should be sent over; that every means should be used to make him come over here.
When were those directions sent? They have been sent two or three times; the last directions were sent on Saturday or Sunday, the most positive directions.
Has any answer been received to the first directions? I have learned that Restelli had for some days been violently ill, and confined to his bed with a fever, having been blooded and attended by some medical person.
Did you ever receive any directions from his majesty's government not to allow any of the witnesses, as far as you could prevent it, going out of this country, or any instructions to that effect? I do not recollect any specific instructions to have been given to me to that effect; but at the time I sent Restelli, I had not the least idea that he would be called upon again as a witness, or that he would be wanted as a witness, until, if this bill should have passed this House, it should have gone to the House of Commons.
Is it to be understood, that no such instructions were given by the government of this country to you? To me personally, I do not recollect any specific instructions having been given upon this subject; but I certainly was present at the debate in this House, in which the noble earl at the head of the government had stated it to be the intention of the government to take every care they could, that the witnesses should not go away.
Knowing that, did you not consider it at least an act of disobedience to those instructions, allowing or recommending this person to be sent abroad as a courier? I did not consider it an act of disobedience; I did not give it that consideration at all; I had a full expectation that the man would return; I never would have sent him if I had not had 626 the fullest conviction on my own mind that the man would be here on or before the 3rd of October.
Was there any intention, when he went with those letters, of his bringing back other witnesses to rebut those for the Queen? None whatever.
§ Lord Alvanley.—Could not the families of the persons who are supposed to have been maltreated at Dover have applied at Milan to colonel Browne for intelligence upon the subject of the witnesses? They certainly could have applied to colonel Browne for intelligence, and many of them did, as I understand, apply to colonel Browne; he gave them the best assurances he could, but they were not satisfied with those assurances; the reports of maltreatment came from various quarters. I have received depositions of the relations of persons here, in which they depose to having heard of serious injuries received by their relations, and notwithstanding all the assurances which they received to the contrary from colonel Browne, they were not satisfied with those assurances.
In the event of Restelli's wishing to withdraw himself from judgment, have you, or do you conceive you have, any means of compelling him to appear? Individually I can have no means of compelling him to appear; but I certainly conceive, that, from the instructions which have been sent out, means will be taken with the government of the country in which he is, to compel him to appear, if he should be able to come, and should refuse to come.
Have any of the other witnesses been sent out of the country? Not to my knowledge, one.
The Witness was directed to withdraw.
§ Lord Erskine moved, that the question of the earl of Carnarvon be put to the counsel for her majesty.
The Lord Chancellorhoped the House would not so suddenly call upon him lo give his opinion, whether a question so material were fit or unfit, in its present shape, to be put to counsel. It was this,—"Whether the counsel for the Queen think it convenient to the case of her majesty, that Restelli should be immediately called and examined?" He doubted whether this question could be put, as at present worded; at all events, it seemed to him that, if put, it ought to be followed up by requiring the counsel for the Queen to state the grounds for their opinion.
§ The Counsel were directed to withdraw, and the House adjourned.