§ The order of the day being read for the further consideration and second reading of the Bill, intituled "An Act to de-"prive Her Majesty, Caroline Amelia "Elizabeth, &c.," and for hearing Counsel for and against the same,
§ Counsel were accordingly called in.
The Lord Chancellordesired Mr. Brougham to state those observations to the House which he was desirous to submit to their lordships at their rising yesterday.
Mr. Broughamhumbly begged, that his lordship would be kind enough to let him know in what situation he stood, and whether he was to understand their lordships as having settled the point at issue, yesterday.
The Lord Chancellordesired Mr. Brougham to consider himself as being 843 placed precisely in the same situation as that in which he stood yesterday. He was therefore at perfect liberty now to introduce whatever observations he meant to have submitted yesterday at the time he was interrupted by the adjournment.
Mr. Broughamsaid, that he understood the sense of the House had been sufficiently marked upon the proposition under debate yesterday. He was, therefore, unwilling to press upon the House any arguments upon a topic which he considered, in point of fact, already decided. But what he had now to open was a different proposition from that yesterday taken up by their lordships.
The Lord Chancellorsaid, that before they could enter into a new proposition, they must decide upon that yet before them, which the learned counsel was wrong in assuming had been already decided. He would now put the question.
The Lord Chancellor having accordingly put the question, it was negatived; and the noble and learned lord then informed the counsel, that the question proposed yesterday could not, in the present stage of the proceeding, be put.
Mr. Broughamsaid, he had not the slightest desire to call in question the decision of their lordships, but he must beg leave to observe, that, the question which had been put was not at all urged by his learned friend upon the grounds on which it was taken up in debate by the House, but upon very different ones, to which their lordships, acting upon the opinion pronounced by the learned Judges yesterday, must, without hesitation, be thought to accede. What he understood they had now decided was this, that he could not ask the witness Mioni, to tell the House what Zancla told him had passed between him and colonel Browne; that in short, no declaration of Browne could be given here in evidence, as related through another by Mioni, unless Zancla, with whom it passed, were himself produced to state it. This was, in fact, a question, which his learned friends, Mr. Williams or Mr. Tindal, had never for a moment raised. Neither of them, in putting the question to the witness, contended that it was for the purpose of proving what colonel Browne said to Zancla. That was the way in which their lordships put it, not the way in which it was meant to be put by his learned friends. The way, in fact, in which he wished to be understood as putting this 844 question was, to show the general fact of the existence of a conspiracy; to shew it by the act of Zancla himself, through the evidence of Mioni. It was to go step by step, to show, in the first instance, not colonel Browne's agency, but Zancla's; and it was for that they called the witness Mioni.
The Attorney Generalsubmitted, that the course now about to be pursued was that of re-opening the question already decided by their lordships. This mode of proof was yesterday, in fact, argued from beginning to end. His learned friend had better state the question which it was his intention to propose, before he proceeded to argue upon it.
Mr. Broughamagain denied that the question had been argued yesterday. His learned friend, Mr. Williams, had not been heard upon it, and therefore he was entitled to address their lordships this day. The question he meant to submit was not the particular act of colonel Browne, but the general proof that there existed a conspiracy.' What he wanted to argue was the general question, and his learned friends, with the slipperiness of their nature, wanted to press him into their service, by saying that he was contending for a particular point of evidence, which he was not.
The Attorney Generalrepeated, that his learned friend was evidently labouring to re-open a point already decided. The question yesterday put to the witness, their lordships had now negatived, and therefore all argument upon its admissibility was now superfluous. If his learned friend, as he indicated, meant to raise a new argument, it must of course be upon a new question. Let him commence by stating the question he meant to put; that was the regular course of proceeding. It was never before heard of in a court of justice, that a counsel when contending that any particular question should be put, should, instead of setting out with stating his question, commence by opening with an argument upon it. If his question referred to Zancla, instead of to colonel Browne, why not simply state what his question was?
The Solicitor Generalsaw no ground for disputing the decision which had been, come to on the question. His learned friend had therefore no right to suppose that the case was not decided yesterday. As to the conduct of himself and his colleagues in support of the bill, it had not 845 been marked by any of that uncertainty which was attributed to it. Their lordships had ordered them to appear for the bill. They had, at the commencement of the proceedings, declared that they would be guided, with regard to the reception of evidence, by the practice of the courts below. He and his learned friends, there fore, considered it their duty, when a question arose which appeared not proper to be put, to object to it. They stated their objection, and to doing that their duty was limited: if their lordships, however, determined to receive the evidence, he and his colleagues were bound to submit to the decision.
The Lord Chancellorwished the counsel for the defence now to state what course they proposed to take. He observed, that the course proposed to be pursued by her majesty's attorney-general was irregular. It was for the learned gentleman to state what the question was that he was desirous to put. If the attorney and solicitor-general should object to that question, the learned gentleman would then of course be heard in reply.
Mr. Williamshoped their lordships would allow him to say a few words. The whole of the unnecessary discussion of yesterday, about a case which had never been proposed or imagined by her majesty's counsel, arose from his being interrupted in stating what it was they meant to prove as to Zancla. He trusted their lordships would not leave the door open to a second misunderstanding and delay, but allow his learned friend to complete that opening statement which he (Mr. W.) had been prevented, improperly prevented, from making yesterday. He had not the slightest disposition to violate any rule which their lordships might think proper to lay down; but he repeated that he had been unduly prevented yesterday from stating what it was that he wished to elicit from the witness, and with which the argument of the learned gentlemen on the other side had nothing whatever to do.
The Counsel were directed to withdraw.
§ Earl Greyconsidered the question decided yesterday to be different from that now proposed. The learned counsel had stated, that he had been interrupted in his examination by the attorney-general before it was known with what view the question was put. Their lordships were now given to understand by the learned 846 counsel, that they had evidence to prove Zancla a conspirator; that they wished to call witnesses to prove that fact; and that they had a right to do this in order to prove the general conspiracy. It seemed to him, undoubtedly, that this was a new point, and that, in consequence of the decision of the Judges, the counsel for the defence were entitled to go on with their case.
The Earl of Liverpoolsaid, that it would appear to him a very anomalous course of proceeding, if counsel on either side were, after opening a case, allowed to go into new matter. The learned counsel for the defence had opened no case which, in his opinion authorized the course now proposed. If their lordships were to proceed in trying the case, they must refer to the original opening, and under that opening the witnesses were to be called. When any question arose which was objected to by the other side, it was for their lordships to determine whether it should be put; but he could not conceive that it would be right to open a separate case for the introduction of new questions. As to the opinion given yesterday by the Judges he must certainly admit that those learned persons stated that, in certain cases, questions relating to a conspiracy might be gone into, but they also stated that this was only to be done when conspiracy was opened as part of the defence. Now, was conspiracy opened in the present instance as part of the defence? As far as his recollection served him it was not. As nearly as he could remember, the words used by her majesty's counsel in his opening were, "I do not charge conspiracy; but if there were conspirators, their acts would have been similar to those which have taken place." In his opinion, therefore, the question could not be treated by their lordships as if the case of conspiracy had been comprehended in the opening.
§ Lord Erskinewas ready to admit, that the question of getting from Mioni, what had fallen from colonel Browne in his conversation with Zancla, was very properly overruled; but the case now offered was a new case, namely, that of proving Zancla to be an agent in the conspiracy. This they had a right to do, either by beginning with the general evidence, and fixing the acts upon the individual, or by first proving the individual agency. Their lordships were to suppose a case of indictment for conspiracy, and then they 847 would see, that the evidence against the conspirators might be taken in any order which should be chosen by the counsel for the prosecution. He denied that a counsel was limitted by his opening speech as to the proof of a conspiracy. The conspiracy might come to his knowledge only a moment before he had concluded his defence. Was he then to be excluded from the proof of it, merely because the guilt of the prosecutor was not known till late in the proceedings? The question which the learned counsel for the Queen now wished to ask was, in his opinion, one that ought to be put. If they were prevented from doing this, he would put it as a peer, and their lordships might then overrule it if they pleased. If, on a question like the present, their lordships should think they were not authorized to decide, without first obtaining the opinion of the Judges, he thought they ought not to pass any act, not even a common turnpike bill, without availing themselves of the same assistance. No man could feel more respect for the learned Judges than he did. They had been the companions of his former years, and he knew how to value their opinions; but he contended, that on the present great and important proceeding, their lordships ought not, in every instance, to be governed by the decisions of the Judges. He had no objection to their opinion being given; he would rather act in conformity with, than in opposition to, it; but the examination proposed by the counsel for the defence ought to be gone on with; and for himself he must say, that without it, he knew not how to form an opinion on the evidence which had been given before their lordships.
The Earl of Lauderdaleadmitted, that it was competent for the counsel for the defence to put any question; and that the question of yesterday stood on a different ground from the present; but he could not see the possibility of going forward with this case, if counsel, before they put questions, were to be allowed to enter into a long argument on the course they proposed to pursue to be replied to by the counsel opposed to them, and then to reply to the objections by which they were met. He thought some rule ought to be laid down to guard against this, to prevent a debate being raised before a question had been put.
The Earl of Darnleyfelt it to be his duty to object to the doctrine laid down 848 by the noble earl opposite. If he understood the noble earl, he had laid it down as a broad proposition, that their lordships were not at liberty, in the course of the present painful inquiry, to enter into any points, however materially affecting the case, which had not been opened by the counsel at the bar. Now, it appeared to him to be utterly impossible to go on with this extraordinary and unprecedented proceeding with any hope of doing justice, if the counsel were to be precluded from bringing forward any evidence which they might think essential, although it had not been stated in the opening. He had hoped and trusted that, long ere this time, a proposition, not from the side of the House in which he had the honour to sit, nor from so humble an individual as himself, but coming with authority, would have been made to put an end to this disgraceful proceeding. This was the more to be expected, seeing that new and extraordinary circumstances arose day after day, which cast discredit on the whole case. He hoped the hour was not far distant when he should hear such a proposition made. In the mean time it was their lordships' duty to allow the counsel for the Queen to produce, from time to time, such evidence as came to their knowledge, and was necessary for the case of their client.
The Lord Chancellorobserved, that no man who acted as a judge could expect to be treated with respect, unless he showed respect to others. He therefore thought it right to state, that having found he had misunderstood the object of Mr. Williams, he was sorry that he had interrupted him. The communication which he had made, as he understood, in conformity with their lordships' wishes, to the counsel for the defence, that the question which they had asked could not be put in the present stage of the proceedings, would not preclude them from having recourse to a similar inquiry, nor even from putting that very question, at a future period. It had been decided by their lordships, that evidence of the proceedings of the Milan commission might be received at the present stage of the proceedings. He wished it should be remembered that the humble individual who had then the honour to address their lordships, did not concur in the view which had been taken of this subject. It was painful to him to differ from their lordships, but feeling that though painful, it was his duty, 849 no apprehension of the calumnies and islanders of which he might be the object, should ever deter him from doing that duty. Their lordships, having yesterday decided, that evidence of the alleged conspiracy should be received at this stage of the proceedings, he apprehended the decision they had come to on the question which had been objected to, was merely this, that that particular question should not now be put. What questions might be put, or whether that question (if put with a different view) might not be asked at a future period, might become matter of future discussion. He had no difficulty in saying, that evidence might now be offered on matters that had not been originally opened to them, as forming part of the defence; and it was not necessary for the learned counsel to state what persons he would call, or what particular persons could or could not say, but they had merely to make it known, that they meant to ask certain questions for the purpose of proving so and so, and then it would be for their lordships to decide whether the questions intended to be asked were proper to be put. At present he would say nothing on the nature of the evidence which had been given; but unless the view which his long experience had led him to take of it was extremely erroneous, the difference between the circumstances under which evidence of a conspiracy was usually received, and those under which it was not to be admitted, was as great as possible. He wished not to run away from the subject, but to look how the question really stood. A conspiracy might be formed to suborn witnesses, and yet no witnesses might be suborned. The conspiracy might be, nevertheless, of the most mischievous description. If they should find, that such a conspiracy had been formed—if this fact were once established, they must look with suspicion at all the evidence, even of that part of it to which the conspiracy did not appear to apply. But, to argue, as some of their lordships had done, that because some of the witnesses had been suborned, or attempted to be suborned, there was an end of the case, though it was supported by purer testimony on the part of the prosecution, and, as often happened, by evidence brought forward in support of the defence, was, in his judgment, a very inconclusive way of reasoning. He now understood it to be the object of the learned counsel to 850 prove, that the witness had himself been concerned in the alleged conspiracy, and this, he apprehended, they were at liberty to do.
§ The Counsel were again called in.
Mr. Williamssaid, he was yesterday about to examine the witness as to the purport of the declarations of Zancla himself. This was his object; and, inasmuch as it was impossible for him to do that without putting the preliminary question respecting what Zancla had said, he had put that question which had been objected to, and successfully objected to, by the attorney-general. He was not then allowed to open what he intended to prove; and it was supposed, that he was about to inquire into what Zancla had said respecting colonel Browne—a thing which had never once entered into his dreams. What he proposed to prove was this—that Zancla had told the witness that if he would depose to any thing against the princess of Wales his fortune would be made. To this the witness replied, "But how can I do that when I have never seen her?" Zancla would then be shown to have said, "Oh! as to that, I can take you to the Villa d'Este and the lake of Como—I can point out a spot where you can swear that you saw her royal highness and Bergami embracing, and that will be sufficient." The witness would then state what had been done in consequence; but that which he would prove was all between himself and Zancla, and had nothing to do with colonel Browne.
Mr. Williamssaid, he could not put the whole of his intended examination in one question. He should ask the witness the question he put yesterday, following it up by what he conceived necessary in explanation.
Mr. Gurney,at the request of Mr. Williams, read several questions and answers immediately preceding the objection taken yesterday: the last question with 851 reference to what passed between the witness and Zancla, was propounded in these terms?—"What did he say to you at that time?"
§ The question was about to be put to the witness, when,
The Attorney Generalsaid, he again objected to that question; and he thought the answer his learned friend had given to his objection that morning did not carry his case at all farther than it had proceeded on the previous night. His learned friend had said, that his course of examination would not open the conversation of Zancla and the witness with respect to colonel Browne. But their lordships must recollect his learned friend to have distinctly stated, that he would be able to bring home to colonel Browne the acts of another person. He, however, had a right to contend, that the whole of those acts, allowing them to have taken place, must be attributed to Zancla, without any connexion with the Milan commission. But his learned friend wished to show, from the declarations of Zancla, that he was employed by the Milan commission as an agent to suborn witnesses. Such evidence, he would maintain, could not be received in any court. It never was known, that an absolute agency was proved by evidence of the declaration of the agent; the agent himself must be called. The learned gentleman stated his great objection to be, that the declaration of Zancla, stated by a third person, even on the showing of his learned friend, could not be received. He himself must be called; or it must be shown whether he was authorized to do such acts as those that had been referred to; because it would be most unjust to make a principal accountable for acts which he had never given his agent liberty to perform. If their lordships looked at the way in which it was argued yesterday—most laboriously and ingeniously—by his learned friend, Mr. Tyndal, they would find, notwithstanding all the efforts that had been made to prove the contrary, that the question still remained the same, and that their lordships were, in fact, only considering the judgment at which they and the learned Judges had arrived yesterday.
The Solicitor Generalsaid, the manner in which he understood his learned friend, Mr. Williams, to attempt to prove, that the present must be considered admissible evidence in this case, was, first, by showing that a conspiracy had existed to 852 suborn evidence against the Queen, and next by assuming that Zancla was one of the agents of that conspiracy. He admitted, that if it were established on the other side, that a conspiracy to suborn witnesses existed, and that this man was one of those conspirators, then every act done by him with reference to that conspiracy, and every declaration he had made respecting it, was most indisputably evidence in this case. But his learned friends had assumed the whole foundation of their argument. They assumed that there was a conspiracy to procure evidence against the Queen; and they also assumed, as part of their case, that Zancla was one of the conspirators. But he apprehended that, before they were in a condition to prove him to have been a conspirator, they ought to give evidence of the reality and existence of such a conspiracy; and then it would be competent to them to satisfy their lordships that Zancla was one of the members of the association. In support of this he would quote a passage from "Phillips's Law of Evidence" (a book that had been often referred to in the course of these proceedings), where the doctrine was laid down so clearly, that it was impossible for any person to misunderstand it. The passage was as follows:—"In prosecutions for conspiracies, it is an established rule that, where several persons are proved to have combined together for the same illegal purpose, any act done by one of the party, in pursuance of the original concerted plan, and with reference to the common object, is, in the contemplation of law, as well as in sound reason, the act of the whole party; and, therefore, the proof of such act will be evidence against any of the others who were engaged in the same general conspiracy, without regard to the question whether the prisoner is proved to have been concerned in that particular transaction. This kind of evidence was received on the trial of lord Strafford and of lord Lovat; on the trials for high treason at the Old-Bailey, in 1794; and in the case of Stone, in 1796; in which last case the rule was completely settled. In that case, evidence having been given sufficient for the jury to consider whether the prisoner was engaged in a conspiracy for treasonable purposes, it was determined that a letter, written by one of the conspirators, in pursuance of the common design (although the letter had not been traced into the hands of the 853 prisoner, or to his knowledge), was admissible in evidence as the act of the prisoner himself. The acts of the several conspirators, who are engaged with the prisoner in one common object, are evidence against him, though he may not have been directly a party to them; they are evidence, as acts connected with, and in conformity with, his own acts." All that he was desirous to do was, to produce a clear and distinct understanding of this question among their lordships; and if his learned friends had convinced them that there had been such a conspiracy as they spoke of, and that Zancla was a party to it, he did not stand there to contend, that this would not be evidence. But was there, in fact, before them any evidence which would convince any reasonable man of the existence of such a conspiracy? And if there were no evidence of that kind, still less did it appear that Zancla had been engaged in it. What did the evidence state? The evidence was, that Zancla came down from colonel Browne, with a certain sum of money in his hands, and that he had called on Vimercati at Milan. But was it therefore to be inferred, that lie had been concerned in a malignant, atrocious, and abominable design to fabricate evidence against the Queen? Was it on such vague rumours as these that their lordships would fix this infamous crime on an absent individual? Were they, on such weak arguments, on facts of so slight a nature, to come to this conclusion, not only that a foul conspiracy had existed, but that this man was a conspirator, and that many honourable individuals were no less deeply implicated in effecting the base purpose which his learned friends had pointed at? The only points for their lordships' consideration were, whether the existence of such a conspiracy had been established, and whether Zancla was shown to have been connected with that conspiracy. If their lordships were satisfied of the truth of these facts, then the objection of himself and his learned friend was at an end. But he did conceive that the admission of such a course of examination was quite inconsistent with the dictates of law, of common sense, of justice, and of humanity.
Mr. Williamswas extremely anxious that this question should now be rightly understood, because it was very clear that yesterday it was wholly misunderstood. The attorney-general had, on that occa- 854 sion profited of his own wrong, by stopping him in the course of his speech, for the purpose of applying himself to a case that never did exist, and of answering arguments that never had been used. He had never asserted, that Zancla was, by his declaration, to prove that any one of the Milan commissioners was privy to the conspiracy. Yet it was on that unfounded presumption that his learned friend proceeded, and had been successful in stopping him, when he was about to state what he really meant to give in evidence. That evidence, if he had been allowed to explain it, would have beaten down and destroyed the argument of his learned friend, raised as it was on the fallacious assumption, that it was intended to prove, by the means of Zancla, that colonel Browne was connected with the conspiracy—a circumstance which, at the time, he had not in his contemplation. The first part of the attorney-general's objection was never contended for; and with respect to the second part, if he understood the subject rightly, it appeared to him that, in arguing it, his learned friend had confounded the law of evidence. He had been addressing their lordships on the effect of the evidence, which effect could only be determined by hearing the evidence itself. His learned friend had confused two things, which, as a lawyer, he must have known to be essentially different. He had confounded the admissibility of evidence with the effect of evidence, when he should have known, that the admissibility of the evidence was the first thing to be decided, and that its effect was to be considered after it had been received. The connexion of the conspiracy with the Milan commission was not the question they had now to grapple with. Whether that commission was a party to it—whether it was even aware of its existence or not—he still contended, that he had a right to prove that there was a conspiracy. Suppose it had only resulted from the appetite for gain having been excited in the Italians by an idea of the lucrative nature of the speculation; that persons, be they who they might, had engaged themselves in suborning witnesses, and that it was not at all within the knowledge of the Milan commissioners—it would still be a conspiracy—the guilt would be the same as to all the parties who were engaged in it; its effect in this case would be the same; and therefore, he contended, he had a right to 855 prove it. If they could show, that the Milan commissioners had been abused—that evidence had been procured, without their knowledge, by corrupt and profligate means—that, he contended, would dispose of the case. They might prove a conspiracy; that would at once put an end to all further proceedings, although they could not trace it to head-quarters, or to the commissioners who were sent out to Milan. But, said the attorney-general, "Why don't you call Zancla?" What! call him—call the very culprit whom they charged with the crime—call him to prove it by evidence of his own acts ! Could his learned friends who argued thus have been studying those very cases to which they had referred? Had they there found that Mr. Hardy, Mr. Thelwall, Mr. Tooke, Mr. Stone, or any of the parties charged with the crime, had been taken from the bar, and placed in the witness-box to prove their own acts in evidence of that charge? They charged the guilt of this conspiracy against Zancla; and had he been a person resident in this country, or within the range of its laws, or the reach of its legal power, they knew, though for their own purpose they chose to forget, that they could not make him criminate himself; hut it was really too much to suppose, that, living where he did, out of reach of the vengeance of our laws, that he would readily comply with any invitation, or letter missive, to come and place himself at their bar to give evidence of this conspiracy, when the weight of the charge lay against himself; such a case would be quite new to him. He contended, that it was competent for him to prove facts—namely, the declarations of this man—in order to show the real nature, quality, and character of his transactions. His learned friend wished him to prove two things at the same time—the existence of the conspiracy, and the agency of Zancla. To this he would answer, that the declarations of the man were proofs, and strong ones. When his learned friend referred to a particular text-book (which, by the way, did not contain the dictum of a judge), he must observe, that he (Mr, W.) could quote in his favour the grave opinions of a great many celebrated writers on the law, who held that it was at the pleasure of the prosecutor to begin with whatever part of his case he chose first. This he would venture to say he had seen, in twenty instances, pursued in 856 practice. In all the state trials, and prosecutions of a similar nature, evidence was gone into of the general state of the country, and of a variety of acts, of various persons in different parts, in order to fix a conspiracy; and to show whether any connexion existed between that conspiracy, and the person charged appeared afterwards. The conversation of Zancla, showing that he was a person implicated in a transaction of the nature charged—a conspiracy to suborn witnesses—ought to be received, inasmuch as it might lead to a developement of the whole scheme. If they could not catch the conspirators in close divan, they must be content to hunt them down in detail. Therefore, he conceived that the evidence which he offered was as clearly admissible as any that had been brought before their lordships. Unless the practice to which he had referred, and the rule laid down by the Judges, on which it was founded, were proved to be erroneous, he contended, that this evidence must be admitted. He hoped his learned friend, in answer, would confine his reply to what he had said, and what he really meant, and not again contend against what he had not said, nor against meanings he never had conceived.
Mr. Broughamsaid, he ought to apologize to their lordships for addressing them, after the clear, and, in his humble opinion, the conclusive argument of his learned friend. Their lordships now understood exactly what he and his learned friends did not mean; namely, that they did not mean to give evidence with respect to the conduct of colonel Browne. Nay, that they did not intend, at present, to tender evidence with a view to fix colonel Browne, or the Milan commission, at all. That was not the object of the present inquiry. He and his learned friends had been engaged with that commission during some portion of these proceedings, and perhaps they would recur to it again. But did it follow, because he was not going to fix colonel Browne, and the whole of his coadjutors at Milan, with this conspiracy, that he was therefore to be prevented from giving evidence with respect to other conspirators? If he could show that there was another man, although that individual had never before been named, who had been perpetrating acts, illegal acts—their lordships might call them what they pleased—at Milan, who had been thwarting her majesty's defence, impeding the 857 evidence for her, and exasperating the evidence against her—he cared not whether he was called colonel Browne, A. or B. or Zancla—was he not justified in bringing forward evidence in respect to him? He hoped their lordships would suffer him to remind them of the way in which they had been allowed to give evidence against colonel Browne. That course was admitted, because the colonel was supposed to be an agent for the bill. It was, therefore, for him and his learned friends to show, that he was not the only agent; and that amongst those agents the name of Zancla was enrolled. They had been correct told by his learned friend, Mr. Williams, that nothing could be more inaccurate than to mix up the argument on the admissibility of a witness with the ultimate effect which it was supposed would be produced by that evidence. Now, if he could show to their lordships, that Zancla had made the declarations, with which Mr. Williams opened—that he had made offers, and had endeavoured to suborn witnesses—they must be prepared to allow proof of those offers and of those declarations, or else at once to shut him out from giving evidence on those points, by saying, that they were irrelevant to the issue to be tried. They must be prepared cither to open the door for proof of this description, or ready to declare that, allowing all he had alleged to be true, still it signified nothing, and could not be given in evidence, as it did not affect the case immediately under inquiry. It had suited the purpose of his learned friends on the other side, when this had been treated as a judicial proceeding, to argue, that it was a legislative one; and when he and his learned friends took advantage of it as a legislative proceeding, they were immediately turned round upon, and told, that it could only be considered in a judicial point of view. He however, contended, that they were engaged in an inquiry partaking both of a judicial and legislative character. It was so from the foundation upwards; and the two qualities were so nicely balanced, that he hardly knew to which it most properly belonged. They were, however, entitled, in all respects, to avail themselves of any advantage that might result from that circumstance. How did the case stand? This was a bill, and they were called on to oppose its second reading; they must, therefore, view it with reference to the subject-matter of the whole inquiry. Could their 858 lordships then say—for they must do so if the evidence now offered were refused—that those acts of Zancla to corrupt witnesses who were to support that bill before their lordships, would not, whatever view their lordships took of the case, have a considerable effect on the opinions they would form? He would put it to the Judges—he meant the noble lords who were to decide in this case—whether they would not pause before they passed this bill, if he were allowed to prove to their satisfaction, that which his learned friend had stated in opening the evidence. He cared not whether the acts and sayings of Zancla could be brought home to colonel Browne or to Vimercati, or to their employer, or not, though that would be matter of consideration for their lordships hereafter; but if they could never be brought home to any of those parties, he asked, whether their lordships would not pause more, after hearing this evidence respecting Zancla, before they passed any judgment upon the bill, than they would have done without such evidence? For what had Zancla done? He had said to this witness; "Swear any thing against the princess of Wales, and you will get a great reward." "I cannot," replied the witness, "I know nothing against her royal highnes; I have never even seen the place where she lives." "It does not signify," Zancla, says "Will show you the place, I'll point out to you the rooms where she was, the places where she walked, the garden, the walks, the promenade, where she has been with Bergami, and with other men and women, for she has really been there with those persons. If you do but choose the place to which you will speak, you will swear what is true, that she has been there, and if you will further swear, what is not true, that you saw Bergami saluting her there, you will have a great reward." If he would prove this—and they must assume upon the question of the admissibility of such evidence that he could prove it—then, their lordships must be prepared to say, that this would make no difference in their minds when they came to consider the whole case before them; they must be prepared to say, that all this would have no weight at all in their judgment, in order to come to the conclusion, that this evidence could not be received. How monstrous it would be to say, that proof of proceedings of this nature would have no weight with their lordships! Could 859 any noble lord lay his hand on his heart in judging of the whole subject in issue, in deciding upon a bill to ruin the Queen, and say, that proof of such means having been used to obtain evidence against her majesty made no difference in his mind? But the Solicitor General contended, that it would make no difference at all, and that, whether proved or not proved, the facts were perfectly indifferent in the case. The door ought then to be opened for evidence, which, whether it affected colonel Browne, or Vimercati, or Zancla, showed the means used to obtain witnesses against her majesty. If it showed perjury, it would be a ground of pausing before their lordships came to any conclusion unfavourable to her majesty. But it had been said, and with due gravity, that we must assume conspiracy on both sides, because if subornation of perjury was resorted to, non constat that the Queen had not resorted to it, and procured it to be practised on the other side, in order to enable her counsel to make the objection that the evidence against her was all suborned and perjured. Let their lordships then take the evidence now offered, subject to that observation, and let that observation have its full force with their lordships when they came to weigh the whole evidence. There was one consideration which, if he might but mention Lit, would perhaps allay somewhat the ardour of this observation. He did not deny the possibility of such a conspiracy, nor could he deny that such a possibility affected a point of law such as he now argued; but did their lordships think it very likely to affect a bill of this kind? In the month of March, 1818, before any surmise arose of any charge against her majesty—before the Milan commission was appointed—before any steps were taken against her honour or dignity, the Queen was so provident as to provide for distant possibility, so astute as to prepare defence against a charge that was never made: she was so very circumspect, so extremely provident as to contrive, in March 1818, her defence to a bill which she foresaw would be brought into parliament in July 1820, two years afterwards—a bill which the wisest of men never foresaw, and the wiser they were, the less could they foresee it. Yet she with the volume of the State Trials, Bennet's trial in one hand, and the volume containing Atterbury's in the other, said, in March, 1818, "I must beware 860 how I can defend myself against the bill that is to be brought against me in July 1820. Learned counsel can do nothing without materials; therefore, I must contrive to inveigle Zancla into conversation, which will afford ground of objection to all evidence against me." This was something more than the most provident of mankind had ever devised. He did not deny the possibility of such conduct, but it was what lawyers called a remote possibility, and their lordships would not be apt to stand upon such a possibility in deciding this question. But after they should have heard the whole evidence, then would they be in a situation to judge of all the circumstances and facts given in evidence before them; and he begged that, when they arrived at that situation, they would not forget this remote possibility. He repeated, that they were not there to offer evidence against colonel Browne and the Milan commissioners. They were there defending her majesty; in that defence they were necessarily obliged to show the manner in which evidence was obtained against her majesty. If they could make out one fraction of a fraction of a case that colonel Browne, Vimercati, or Zancla, as agent for the Milan commissioners, suborned any part of the evidence, it was most important to the defence.
The Attorney Generalsaid, in reply, that whatever misunderstanding might have existed yesterday, his learned friends could not complain that they had not now argued on every view which they could take of their proposition. But if he had misunderstood his learned friends yesterday, or if their lordships had misapprehended their application, why had they not interrupted him? He denied that there had been any such misunderstanding on his part, or any misapprehension on the part of their lordships. He called back to their lordships recollection, that his learned friend, Mr. Williams, had yesterday contended, that rumours, reports, and even opinions, ought to be received in evidence, and that in that stage of the proceeding, Zancla's evidence was therefore admissible. His learned friend, Mr. Brougham, had now given up Mr. Williams's argument, and for the last half-hour had been contending for the admissibility of this evidence on other principles. Their lordships were to abandon the rules on which they had hitherto proceeded, according to the declamation and address of his learned friend 861 Mr. Brougham. It was now a conspiracy, unconnected with the Milan commission, a conspiracy of Zancla's that they proposed to prove. It was not acts of those who had been employed in collecting evidence or of their subordinate agents that were offered in evidence. Their proposition now was, if prove a conspiracy on the part of one of whom they had given no notice hitherto. Although A. and B. should never be connected, or brought together, yet their lordships were called upon to receive evidence of unconnected, insulated acts, to establish a conspiracy of which there was no evidence, and to prove a connexion of which there was no proof. What would have been said, if he had opened as a part of his case, what had been heard and what had been said respecting the Queen? He would have been met, and properly met by the objection, that it was not evidence. What would have been said, if he then should say, "Receive this evidence, acting as legislators, for though it may not be proved to be connected with her majesty's conduct, it may have considerable effect on your minds, and on the judgment which you are to pronounce?" The rules which their lordships had hitherto adhered to—rules which had been found in the courts below to be the best calculated for substantial justice—they were called upon now to abandon, because his learned friends could prove insulated acts of Zancla and another, in March 1819—acts not adopted by those who collected evidence, and not intended to prove any improper motives on the part of those who actually gave evidence. If their lordships admitted A. B., and C, to prove, not that suborned witnesses had been examined, but the subornation of witnesses not examined, it would be impossible for any prosecution to meet such a case as might be made in defence against him. His learned friend said, "Oh, we don't accuse colonel Browne, we don't accuse Vimercati; we are now only for the defence." This was the language of his learned friends now, because they found it convenient. This defence of their proposed mode of proceeding had been resorted to only within the last two days, and he could see the object of it. But they did mean to implicate—they had endeavoured to implicate—the Milan commission. His learned friend, Mr. Williams, had argued, that he (the attorney-general) had said they must call Zancla. He had not said 862 so; but he had said, and still said, that if they meant to prove agency, they must call Zancla, and for this purpose Zancla was a perfectly competent witness. If they did not call him, they must call evidence to prove that his acts were adopted by the Milan commission, or by others for them. Where a co-commissioner was one of the persons implicated in the evidence, the evidence might be admitted as against all the commissioners; but no such co-commission was proved. In this case conspiracy had never been proved. First, the Milan commission was charged with conspiracy; then another; now it was only Zancla. In the courts below, evidence affecting a co-conspirator was admitted as affecting all the conspirators, but here no co-conspirators were proved to exist. It was shutting their eyes against the rules of law, and against the practice of the courts below, to say that, before a conspiracy was proved, they might call evidence to prove the acts of any one co-conspirator. How, then, stood this case? No evidence of a conspiracy was before them, yet evidence had been offered which could apply only after a conspiracy had been proved. His learned friend had argued against supposing a conspiracy in March 1818, respecting this bill, not thought of at that time, and this proceeding not then in contemplation: and now he offered evidence to prove the subornation of evidence at that time, in support of a measure which, according to his own hypothesis, was not then in contemplation. The case for the bill had been restricted, he would not say improperly, but it had been restricted within the strictest confines of law; and now they were called on to depart from those strict rules, because evidence was offered which might affect their judgment hereafter. But this ought to have been before thought of; either they ought not to have confined the case for the prosecution within strict limits, or, having done so, they ought not to depart from those limits. Whether their lordships acted judicially or legislatively—whatever rules they had adopted to be acted on judicially, they were to adhere to; and if on this occasion they departed from them in a legislative character, they would do the greatest injustice—if he might with submission say so; and if they did not adhere to rules which they had established and acted on hitherto, they would act in a manner contrary to all precedent.
§ The Counsel were ordered to withdraw.
The Earl of Donoughmorethought, that such evidence as that which had been offered could not possibly be received in any court of justice, unless that court were ready at the same time, to open the door to every species of testimony, whether connected or not with the subject of judicial inquiry. The counsel would then only have to say, "the public feel that there is a conspiracy, and we hope your lordships will be of the same opinion. We are going to examine a witness, and the questions we are about to put to him must be proper questions, because we say that they will prove a conspiracy." What, he would ask, had their lordships to do with hearing the acts of Zancla through the mouth of a third person? Why should not Zancla himself be produced, instead of being brought into court through the mouth of a witness? If such evidence were admitted, how could their lordships shut the door against an inquiry into the acts of any man at Milan, who might or might not be connected with the' agents on the part of the prosecution? Their lordships had heard a great deal on the subject of a conspiracy. He was as willing as any man to admit, that their lordships had a most important duty to perform, when they came to weigh the testimony of some of the witnesses, because, undoubtedly, some of them had been proved to be of such a description, as called upon their lordships to look at their testimony with the greatest suspicion. It certainly appeared, in proof, that there had been something improper in the conduct of the persons engaged in collecting evidence, and it was the duty of noble lords to weigh, with the most scrupulous attention, a mass of evidence, in which any suspicious testimony was to be found. But, were the learned counsel at the bar prepared to say, that their lordships ought to reject the whole of the evidence, because a part of it was not worthy of credit? Their lordships, acting in their judicial capacity, could not come to any such conclusion. It was a most absurd proposition, that their lordships ought to reject a whole mass "of evidence, because some part of it did not appear to have any foundation in truth, and because some of the agents might be proved to have exceeded the line of duty which they ought to have observed. He would not say whether that was his opinion or 864 not, but he would say, that he was not prepared to reject the whole mass of evidence upon such grounds. The agents in this prosecution had been charged with a conspiracy; but conspiracy was a hard word. Improper means were said to have been employed to bring witnesses to their lordships bar; but could that be called a conspiracy? A conspiracy had been alleged, but nothing had been proved, which was capable of convincing his mind that a conspiracy had existed. For the last four or five days they had been engaged in no other issue whatever. Every thing else had been forgotten, and the language of her majesty's counsel was, "we have no occasion for any more witnesses, we will turn the tables upon you altogether. Some of your witnesses have been discredited; we will, therefore, allege a conspiracy, and overturn the whole case." As one of the persons whose duty it would be to decide judicially in this proceeding, he would not suffer his mind to be called away from the real issue, by an allegation of conspiracy, however loud or frequent the cry might be either within that House or without.
§ Lord Erskinecould not agree with his noble friend, that no evidence could be given of a conspiracy in this case. The contrary had been decided by their lordships, and the learned Judges had given an opinion upon the admissibility of general evidence to prove a conspiracy. Neither could he agree too with the learned counsel, that the existence of a conspiracy must first be proved, when the very object of the evidence offered was to prove that existence. If they objected to the evidence before the conspiracy was proved it would be impossible ever to prove a conspiracy. But the difficulty he felt was this:—Zancla was not a witness; he was not proved to be an agent; there was no act of his connected with the evidence in support of the bill. Zancla was not in any view sufficiently connected with the case, to admit evidence of his sayings and acts.
The Lord Chancellorconsidered, that if this question was allowed to be put, it would form a perfect novelty in the proceedings of that House—whether the present were regarded as a judicial proceeding purely, or as a legislatively judicial proceeding. No agency was established here, but it was alleged that a conspiracy existed. Now, if they were to inquire of persons from Italy whether 865 they believed so and so—if a conspiracy was to be proved by such means, he implored their lordships to consider where that was to end. It had been ably and powerfully stated by Mr. Brougham, as well as ably argued by Mr. Williams, that there might be certainties of such and such things being proved on one side, and no certainties of similar things being proved on the other side; but, what would any one say if such evidence had been offered as he was just going to state—and when he put the case so, for the sake of argument, he begged their lordships not to infer, that any such thing could have been proved. At the opening of the bill, it had been insinuated strongly, that the illustrious person who was the object of the bill had found means of dismissing from her establishment all the English attendants who had accompanied her from this country, and had introduced into her family a person of the name of Bergami; and it was intended, no doubt, that a conclusion as to her purposes was to be drawn from these circumstances. These persons, alleged to have been so dismissed, had been called to the bar, and had stated the grounds that induced them to leave her royal highness: they had stated, that they quitted her service on grounds operating on their own minds, and that they had not been dismissed by her. Now, he submitted, what would have been thought if the supporters of the bill had called persons to their lordships bar, to prove, that Bergami had been heard to say things which showed that her majesty had dismissed these persons for the purposes stated in the bill? If the charges in the bill were to be met by general declarations as to the conduct of persons not connected with the business, their lordships might get rid of the bill; but they would get rid of it at the expense of all those protections which were the great safeguards of public justice.
§ Earl Greysaid, he understood it to have been already decided, that evidence of a conspiracy to suborn witnesses might be given, and that the only question before the House was, whether the evidence now proposed to be given was legal? He confessed that his opinion concurred with those which had already been delivered, and that, under all the circumstances; he thought the evidence offered at the bar could not be heard. In concurring generally with the opinion of the noble and learned lord, he could not, however, agree 866 with that part of his argument, in which he had put the possible case of evidence being tendered to prove the declarations of Bergami as to the conduct of the Queen, which could not under any circumstances be admissible. The case put by the noble and learned lord was not at all analogous to that now under the consideration of the House. The evidence proposed to be given, of the declarations of Zancla, was intended to prove, that Zancla was engaged in a conspiracy, but those declarations could not be given in evidence until Zancla was connected, in some way or other, with the conspiracy which was alleged to have existed, for the purpose of suborning testimony against the Queen. No such evidence had been offered, to prove that Zancla was connected with such a conspiracy, or, indeed, that he was connected with any person whatsoever. A conspiracy, ex vi termini, implied a combination of different persons engaged in the prosecution of some common design. But here there was no evidence either to connect Zancla with a conspiracy against the Queen, or with any other combination of persons. The only circumstances proved were, that Zancla went to the houses of colonel Browne and Vimercati, who were admitted to be agents, and that he came out of the house of one of them, and showed the witness a sum of money. This certainly did not appear to be a sufficient proof of connexion, to let in evidence of his declarations to the witness. He did not stand in the same situation as those persons who were admitted to be agents. Restelli had endeavoured to suborn the witness—Riganti had endeavoured to suborn the witness—Vimercati was proved to be intimately connected with colonel Browne, and the previous evidence had shown that Restelli and Riganti had in some degree acted as agents, though not according to the strict rules by which agency was established in the courts below. If the same degree of connexion had been made out in the case of Zancla, he should have thought the evidence perfectly admissible; but as that connexion had not been proved, he was of opinion that the question could not now be put. He wished this to be distinctly understood, because if any fact tending to connect Zancla with the conspiracy could be established, the evidence of his declarations ought still to be received.
Then Counsel were again called in and 867 were informed, that the question proposed cannot now be put.
Mr. Williams.—You stated yesterday that you went with Zancla from Venice to Milan? I did.
Did you return to Venice with Zancla? Yes, but before, I went to Mantua with him.
Did you leave Milan with him, did you go from Milan together? I left Milan together with Zancla.
How many days were you at Milan? Two days.
What is the distance from Venice to Milan? About 185 miles.
Did you pay your own expenses, or did any one pay them for you? I did not pay even one hundredth part (centesimo), Zancla paid for the whole.
What do you mean by a centesimo? The hundredth part of a liyre.
Had you any business of your own at Milan? None.
Had Zancla any business in his profession of a stage-manager, to your knowledge, at Milan? None, only for this object.
What do you mean by "this object?"
Mr. Attorney general objected to the question, if his knowledge arose from the declaration of Zancla.
The Counsel were informed, that they might ask, whether the witness knows, otherwise than from the declaration of Zancla, what his object was.
Mr. Williams.—Did you see him transact any business of any kind, except going to the house in the Porta Orientale and the street Ruga Bella; did you see him do any other business but that? He went also to look after a broker, or under manager of a theatre (sensale), together with a person of the name of Coniberti.
Did you see him do this; did you go with him to this place, or was it only what he told you? We found him at the coffee-house.
Whom? Zancla and I went; we went to the coffee-house at Milan.
You recollect stating yesterday, that you saw Zancla come down with a number of Napoleons in his hand? Yes.
At that time did he make you any offer?
Mr. Attorney General objected to the question. It was to the very same effect as that which their lordships had just decided should not be put.
§ The Witness was directed to withdraw.
Mr. Broughamstated, that if the late decision was understood to apply to this, he would not press the question.
The Counsel were informed, that the late decision was considered as applying to this.
Mr. Brougham.—Am I, then, to understand 868 that the decision of your lordships is to apply to all other evidence which we may be ready to adduce, of similar offers and similar attempts having been made to suborn witnesses?
The Lord Chancellorsaid, it would be infinitely too dangerous for the House to give an answer to that question; because the House might see a material difference in the circumstances, which appeared to be similar to the learned counsel. The House could only decide upon each case as it arose.
Mr. Brougham.—We can tender no other kind of evidence which can bring the case of conspiracy nearer to the Milan commission, than that which your lordships have been pleased to reject. Restelli has been sent out of the country; we have not Riganti to produce; and Zancla, for any thing we know, may be in the green-bag. There is no process of this Court by which we can compel the attendance of these persons. All that we can do we are ready to do; but your lordships seem to say, that all we can do is of no avail. I understand your lordships to say, that the proving such acts on the part of Zancla, and other persons in the situation of Zancla, as we are able to prove, that the calling upon colonel Browne, the bringing out of money from his house, and showing that money, as a bribe received to give evidence against her majesty, are circumstances not sufficient to connect the bribery with the agents of the Milan commission. If so, I can only say, that you thus cut off the clue of our case. We can, situated as we are—Restelli being withdrawn from us, and Riganti beyond our reach, produce no stronger evidence than that which we have tendered, and your lordships have thought proper to reject. If such is the decision of your lordships, then we need not carry farther the line of evidence upon which we have entered.
The Lord Chancellorsaid, the only observation which he felt himself at liberty to make, without the authority of the House, was, that the question of calling other witnesses must be left entirely to the discretion of the Counsel, and he was sure it could not be left to better discretion.
§ The Witness was again called in, and examined by the Lords.
Earl of Lauderdale.—When you saw the Napoleons in Zancla's hand, were they loose, or in a bag, or in paper? He had a hand thus full, and he has a large hand.
Had you any concern with the theatre at Pesaro? No other but that I have written to her royal highness, informing her—
The Earl of Lauderdalethought they ought to hear the whole of the answer before it was objected to.
Mr. Broughamsaid, it had been the uniform practice to object to an answer when it 869 came to that point at which it was irregular. I He had not interrupted the interpreter till he I came to,—" I have written to her royal highness, informing her—
The Lord Chancellorremarked, that that was a different thing altogether, and the question might be repeated.
Had you any concern with the theatre at pesaro? Never.
§ The Witness was directed to withdraw.
Then Domenico Salvadorewas called in, and having been sworn, was examined by Mr. Brougham as follows, through the interpretation of the Marchese di Spineto:
What countryman are you? Of Trevizo.
What business or profession do you follow? The profession of literature, both Italian and Latin.
Where do you live? At Lausanne, in Switzerland.
Were you at Morge in December, 1817? I was in the year 1818,
Did you see Sacchi there? I saw him in that year.
Did Sacchi hold any conversation with you on the subject of the process against her royal highness? He did.
Did he give any counsel to you upon that subject, or make any application to you?
The Attorney Generalobjected to this question, upon the ground that the declaration of Sacchi, given by another person, was not admissible under such circumstances, Sacchi not having been proved to be an agent. If his learned friend intended to contradict Sacchi by the evidence of this witness, it would be the most proper method to point out that part of Sacchi's evidence which he meant to disprove.
The witness was asked whether he understood English, and having answered that he could read it, but not speak it, he was directed to withdraw.
Mr. Denmansaid, that his learned friend's objection seemed to be, that he bad put a question to the witness as to what Sacchi had said to him, without previously putting questions to Sacchi himself, after which a contradiction might be given. That was not his object. His object was, to show, that Sacchi, who acted for the Milan commission in the procuring of witnesses, made application to the individual who had been now called 870 to the bar; that he had told him, that the persons who contributed to the conviction of the princess of Wales would make their fortune, and had advised the witness, who had known nothing of the princess of Wales, to become a witness against her. The pages which established the agency of Sacchi, were pp. 448 and 449.* It would be seen in the first-mentioned page, that he was asked, whether he had been in Switzerland. He said, that he had been in Morge and Colombier; that he had made himself known to all; that he had 50 Louis at a banker's; and being asked whether he had ever represented himself to have more, that he did not remember. He then went on to say, that he fetched mademoiselle Demont from Switzerland to Milan. He was asked whether he went to prevail upon her to go to Milan, to which he said, he did not go to prevail upon her, but "to ask whether she would go or not." That he was desired to do this "by the commission at Milan;" that he came in company with Krous, who is a known agent of the commission, and that he received money in payment of his expenses for his journey to Lausanne, and for another journey, which he made in behalf of the commission to Scharnitz, a place where one of the facts charged against the princess of Wales was alleged to have happened. It was in consequence of this journey to Lausanne, that the evidence now offered was adduced. These were the facts which proved the agency, and on these he had no doubt their lordships would allow him to proceed to* show his conduct while he acted as agent.
Mr. Parksaid, that his learned friend on the other side had not the slightest grounds for putting a question of this sort Calling their lordships' recollection to the opinion of the lord chief-justice, as delivered yesterday, he apprehended it was quite clear, that the evidence proposed was not sufficient to establish that agency which was necessary to enable his learned friend to put this question. Now, he apprehended that the question submitted to the Judges, embraced evidence of much greater authority than that which existed in the present case; for here there was not the slightest proof of agency to collect witnesses generally, but merely the fact of Sacchi's having been employed by the Milan commission to bring Demont from Switzerland to Milan. He thought,
*See Vol. 2, p. 1288.871 therefore, it would be an outrage of justice to allow the question to be asked, without having put a single question, on cross-examination, with reference to the conversation alleged to have been held with the witness, or without taking any means of establishing agency, but by that ragged evidence which his learned friend had offered.
Mr. Denmansubmitted, with great deference to their lordships that the course he proposed to adopt was not at all inconsistent with the opinion which had been given by the learned judges. He referred to a particular proceeding, and to particular passages of the evidence, as that by which the character of Sacchi was affected; but he was quite sure, that their lordships would not be blind to all that had been proved, in the course of the evidence adduced at their lordships' bar, with regard to the characters and acts of those employed by the Milan commission. He might be permitted, indeed, to say, that it would be worse than blindness, and totally inadequate for any purposes of the detection of a conspiracy, if they did not connect the whole of what was proved against Sacchi with those passages of the evidence to which he had adverted. When he talked of a Milan commission, their lordships must be sensible that he was no talking of an abstract idea, but of a commission which was known actually to exist. It was not by looking at what his learned friend (Mr. Parke) had called the ragged evidence affecting Sacchi, that that existence was to be traced, or its acts to be proved; but they were not to forget the applications to witnesses which had been made through Vimercati and Riganti—and they were then to connect all that was now charged to have so been done with the result of the evidence which their lordships had already heard. And then, as for the connexion of Sacchi with the Milan commission itself, if their lordships looked at his journey' to Scharnitz, at which place one of the circumstances charged against the Queen was alleged to have taken place, he thought it would be quite clear, that it was connected with what transpired yesterday, in the course of evidence, relative to Riganti. Taking, then, the whole of the evidence together, and referring to the acts of Sacchi, and the result of his cross-examination, he did not apprehend that there could be the slightest possible doubt, either that an absolute proof of agency were made out, 872 or sufficient ground laid to let their lord ships into proof of the authorized acts of the agents of the Milan commission. He did not mean to say, that that commission was proved to have authorized the acts of its agent to the whole extent which they had been pursued to; but, if it were proved, that an agent for certain purposes had been going about the continent, applying his agency to those purposes which he was shown to have applied them to, he was sure their lordships would not deny, that the question propounded was one most proper and necessary. It was calculated to prove a certain act on the part of one of the agents of the Milan commission; and, with respect to the princess, or her interests, it could make no difference whether or not that act proceeded under its authority. Indeed, if the objection which had been started was to stand, the conduct of the Milan commission itself, supposing such objection adopted by their lordships, would be entirely excluded from their lordships observation. But if Sacchi was found employed at Lausanne and at Scharnitz in the way he was ready to prove, could their lordships refuse to inquire into the whole of the circumstances? If he could prove, that the agents of that commission were ever authorized to do acts of bribery, could he be told that they must be proved in a way less doubtful than that which was the object of his question? If the acts of the Milan commission were proper to be inquired into, not only as proving acts of active agency in the commission itself, but as showing the objects of those employed under it; by the same rule, both in law and in common sense, it was equally competent for their lordships to inquire what those well-known and recognized and active agents had been doing, for the purpose of attacking the character and conduct of the princess of Wales. The learned gentleman concluded by protesting against the objection, which might, with equal reason, have been applied to the exclusion of any other evidence on the part of her majesty, against the evidence adduced in support of the bill; and declaring, that this question, and questions of a similar character, must be allowed, before they could hope, effectively, to defend the cause and interests of her majesty.
The Lord Chancellorasked the counsel for her majesty, whether the whole of the evidence upon which they relied to prove Sacchi an agent, was contained in pages 873 448 and 449, and informed them, that if he was an agent, what he had done as an agent might be admitted; that if it was meant to affect him as a witness, the question arose, whether he should not have been asked to that fact; and that if that was the view in which the evidence was offered, Sacchi might be called back, as another witness had been, for the purpose of being asked the question.
Mr. Denmanreferred to pages 344, 371 and 372 of the printed Minutes, as proof of the agency of Sacchi.
Mr. Parkeobserved, that his learned friend had dealt somewhat in generals with respect to Sacchi; but when he was asked for the proof and illustration of his remarks, as they were to be derive'd from the evidence, they appeared to be confined to the facts of Sacchi's having gone to Switzerland for Demont, and to Scharnitz, for what purpose did not appear; and therefore he apprehended that, the question, being without better foundation, it was impossible to admit it. How was it possible for their lordships to allow that any act done by Sacchi in the capacity of a mere courier, should be made a ground for causing other questions to be put to him upon a re-examination?
§ The Counsel were directed to withdraw.
The Lord Chancellorsaid, he would first, call the attention of the House to the evidence on the Minutes, as far as it affected the agency of Sacchi. It was to be found in pages 344 and 372, and 448 and 419, in his own testimony and in that of Demont. His own evidence was to this effect:—
"Have you ever been in Switzerland? Many times.
"Were you ever at Morge? I have.
"Were you ever at Collombier? I have.
"How long have you been at Morge and Collombier at a time? About six weeks.
"Did you let it be known by every body there, that you were in that neighbourhood, or did you conceal yourself? I made myself known to all.
"Did not you fetch a certain mademoiselle Demont from Switzerland to Milan? I did.
"Did you bring her back? I did not.
"But you went to prevail upon her to go to Milan, did you not? Not to prevail upon her, but to ask whether she should go or not.
874 "Who employed you to fetch her or desire her attendance? I was desired by the commission at Milan.
"Whom did you come over to this country with? A courier called Mr. Krous, and my servant.
"Is Mr. Krous a regular messenger, one of the King's messengers, or only employed on the Milan commission business? I do not know.
"Have you made any other journies with Mr. Krous? I have not.
"How much money did you get by the Milan commission for your trouble while you were at Milan? I have received no other sum, except for the expenses of the journey that I made to Lausanne and return, and for another journey that I made to Lausanne and returned."
In the cross-examination of Demont was this evidence.
"Who desired you to go to England in order to be examined? Mr. Sacchi came to seek for me on the part of the commission.
"Who is Mr. Sacchi? An Italian gentleman.
"A clerk of Vimercati, or what; do you know what he is besides being a gentleman? No."
Afterwards she states, that he had been in the service of the princess, and the examination proceeds:—
"When he came for you, he was no longer in the service of the princess? No.
"And at that time he was in the service of the Milan commission, was he? I do not know in what service he was.
"Employed by them? I know that he came to seek for me or fetch me, but I do not know whether he was employed otherwise."
"What is your inducement to come? I was asked to come and declare the truth.
"By whom? By Mr. Sacchi, on the part of the commission."
Sacchi had been examined as a witness* and he would first consider the question, whether, considering Sacchi merely as a witness, the evidence proposed could be received in order to affect his testimony. Leaving, then, the imputed agency out of the question, he understood the rule of law to be, that a witness could not be called to affect the evidence of another 875 witness, unless the latter had been previously examined as to the circumstances intended to be alluded to. On that ground Majoochi had been called back. It had been impossible to recall Restelli, and therefore a greater latitude had been allowed to counsel in their examinations respecting his acts and declarations. But it would be recollected, that before this evidence had been received respecting the acts of Riganti, a witness had been called who had proved those acts. The case here was the same, because the question was, whether Sacchi, being a witness, evidence could be heard as to particular declarations of Sacchi, without first recalling him to ask him respecting that circumstance; and he apprehended, that if they meant to make Sacchi's declarations evidence, he ought to be recalled. As to the other question, namely, the agency of Sacchi, it depended not, as Riganti's had done, upon particular acts, but entirely upon the effect of his journey to conduct a witness to Milan; whether that constituted him an agent to collect evidence, or whether, his character being that of a messenger, he had been employed to induce witnesses to depose against her majesty.
§ Lord Erskinesaid, the question was, whether the evidence offered would not go to affect the credit of Sacchi? He was quite sure of this, that when he was in the habit of practising as an advocate, if it could have been shown that a witness who had stated any thing against his client, had been himself endeavouring to beat up for false testimony, he would have offered evidence on that subject, and that evidence would have been accepted. The proper course would be, first to prove the corrupt act, and then to allow the other side to bring their witnesses to contradict it.
§ Earl Greysaid, that though, for the sake of avoiding interminable investigation, he had felt himself compelled, however reluctantly, to reject the evidence of acts done by persons in no way connected with the bill or its originators; yet in this case there was, if not strictly an agency, such a degree of connexion between Sacchi and the Milan commission, as made it very desirable to see what his conduct had been in their employment, and whether he had endeavoured to obtain corrupt evidence. There was, in his opinion, such a degree of agency as rendered the evidence admissible. But the 876 ground for the admission of the evidence was much more strong in the second way, as it had been stated by his learned friend and as affecting the credit of the witness Sacchi. For how did the case stand? Sacchi had been examined as a witness, and if it could be shown that he had endeavoured to suborn other witnesses to give false evidence, it would not be unjust to suppose, that he, who would bribe others, would not scruple to bear false testimony himself.
The Earl of Liverpoolsaid, he certainly should not object to the hearing of this evidence, but the only question was, whether they should hear it before or after Sacchi was called back? He did not think the evidence could be admitted on the ground first stated; namely, the agency of Sacchi. If Sacchi had been sent to Lausanne generally for witnesses, what he had said to persons to induce them to become witnesses, was good evidence; but it only appeared, that he was sent to fetch Demont, and it was too much to infer from thence a general agency. The case of Riganti was different; for he was sent to various places and to various individuals. As evidence affecting the credit of Sacchi, however, he thought it might be received, but Sacchishould be, he thought, previously called back.
The Counsel were again called in, and were informed, that the Question might be put.
Mr. Solicitor General requested to know whether he was to consider that the Question was permitted to be put, on the ground of Sacchi being an agent, or by way of contradiction to him.
The Counsel were directed to withdraw.
The Lord Chancellorsaid, it seemed to be the general opinion of the House, that he was to be called to affect the credit of Sacchi.
The Earl of Lauderdalesaid, it was very essential that it should be known on what ground the proceeding rested. It might be that the witness was called to affect the credit of Sacchi, or it might be something else, but it was essential they should know it.
The Lord Chancellorsaid, it seemed to be the opinion of the House that the question should be put; but he begged it to be remembered, that his individual opinion was, that the agency 877 was not proved, and that a declaration made by the witness could not be stated to affect his credit, till he himself bad first been examined respecting it.
§ Lord Erskinesaid, he could not have a clearer opinion on any point in the administration of justice than he had on this, that if a witness had endeavoured to corrupt any other witnesses, evidence might be admitted to prove that fact. When evidence had been heard on that point, they might call Sacchi to contradict it; and he did not pretend to say which evidence would be best; but he was clear that the regular course was, first to hear evidence in affirmation of the corruption before Sacchi was called to contradict it.
§ Lord Redesdalesaid, it appeared to him, that the evidence was to be received, not to contradict any thing Sacchi had said, but to show that his conduct was corrupt, from which the inference would be to impute corrupt motives to him in giving his evidence. He conceived, that the counsel should be informed, that they were to offer evidence, not to contradict Sacchi, but to impugn, if they could, his credit, by showing the corrupt motives under which he has acted.
§ Lord Grenvillethought the best way would be to call on the counsel to state the grounds on which they urged the admission of the evidence, or the objections which they made to it. The House would then have distinctly before them the grounds on which they have acted.
The Lord Chancellorsaid, it might be well that he should signify to the counsel that the House had heard enough as to the imputed agency of Sacchi, but were willing to hear arguments on any other grounds.
The Counsel were called in, and were informed, that the House consider the Question of the admissibility or non-admissibility of the Question proposed, as sufficiently argued upon the ground of the imputed agency of Sacchi; but that the House is willing and desirous that they should state any other grounds of the admissibility of this testimony, and any other grounds of objection to its admissibility, which they may think proper for the consideration of the House.
The Attorney Generalobjected to the evidence, and to the question arising out of the argument upon it. The objec- 878 tion as affecting Sacchi's credit was perfectly untenable in point of law. The imputation was, that Sacchi had been concerned in such attempts at corruption as affected his credit and testimony. How was it competent for the learned gentlemen opposite to affect the credit of a party by collateral testimony, unless they were prepared to produce the record of some conviction? There was no rule of law so clear as that a collateral issue could not be tried upon the character or credit of a witness.
Mr. Parkemaintained, that the ground of his learned friend's objection to the course of examination proposed by his learned friends on the other side was fully sustained by a passage which he should read from the high authority of Phillips in his "Law of Evidence." In page 299 of the last edition, it was laid down, that "the party against whom a witness is called, may disprove the facts stated by him, or may examine other witnesses as to their general character; but they will not be allowed to speak of particular parts of his conduct; for though every man is supposed to be capable of supporting the one, it is not likely that he should be prepared to answer the other without notice, and even if he should happen to be prepared to defend himself, such evidence might generally afford a very slight and imperfect test of his credibility. The regular mode is, to inquire, whether they have the means of knowing the former witness's general character, and whether from such knowledge they could believe him on his oath? In answer to such evidence against character, the other party may cross-examine the witnesses as to their means of knowledge, and the grounds of their opinion, or may attack their general character, and by fresh evidence support the character of his own witness."—Farther, this able writer stated, that "if a witness, upon being questioned whether he has not been guilty of a felony, or of some infamous offence, deny the charge, the party against whom the witness has been called, will not be allowed to prove the truth of the charge. Such evidence is not admissible, either for the purpose of contradicting or of discrediting him." Upon this authority, seconded as it was by general principles, by common sense, and by the uniform practice in the courts of law, he argued, that the counsel on the other side could not be consistently allowed to follow up 879 their proposition, to criminate the witness, Sacchi, without having previously asked him any question respecting the transaction that was to be made the foundation of the criminal charge, while Sacchi had no means of knowing that charge, or of defending himself against it.
Mr. Broughamexpressed his entire concurrence with the general principles laid down by his learned friends on the other side. He allowed that it was not competent to him to attempt to discredit a witness by entering into proofs of particular acts of criminality, with regard to which that witness had not been previously cross-examined. He agreed also in the expediency and justice of the principle, that to discredit an adverse witness, no party had a right to impeach him for any act out of the particular cause in issue, and that if his testimony could not be positively contradicted, it only remained to call evidence to show, that he was not entitled to credit, which evidence, the party in whose favour the witness appeared, would be fully at liberty to rebut by opposite testimony, as Mr. Phillips had so justly observed. Those principles were so clearly recognised and so uniformly acted upon in the courts of law, that he had no intention whatever to dispute their validity. But, then, those principles did not at all interfere with the proposition for which he contended in this case. For here his object was, to examine the witness solely as to the conduct of Sacchi in this particular cause in which he had been a principal evidence. He would go along with his learned friend on the other side in the doctrine, that it was not admissible to produce any other evidence of the guilt of an adverse witness, than the record of his conviction. He agreed also with his learned friends, that it would not be consistent to admit evidence against Sacchi in this case for any act of which he had had no notice before. Such a proceeding would, indeed, serve not only to involve the House in the trial of a collateral issue, but would be a most unfair proceeding towards the witness. But was that the situation of Sacchi? Was he not fully aware of the charges against him for attempting to corrupt and suborn witnesses? Did he not derive ample notice upon this subject from the context of the cross-examination? Could he possibly, after that cross-examination, complain of the want of adequate notice of the intention to contradict his testimony and im- 880 peach his conduct in this cause? As to what Sacchi said, that he did not remember, there of course neither the testimony of Salvadore, nor that of any other person, could be adduced against him, as contradiction could only apply to assertions, and not to want of memory. But he proposed to adduce evidence, not only to contradict the assertions of Sacchi, but to discredit his character in the highest degree, by the nature of his acts, by proving him a most corrupt and active suborner of perjury. Of these acts he meant to show by evidence, that Sacchi had been guilty, not in any other cause, but in that which at present occupied the consideration of their lordships, and which he was enabled to prove had been got up by such agents and such acts as would be sufficient to corrupt the character of any cause.
Mr. Denmanexpressed his hope that that House would never lose sight of those principles of law which had been laid down by his learned friends on the other side, and subscribed to by his learned friend beside him. But he contended, with his learned friend beside him, that the proposed examination as to Sacchi was not at all inconsistent with those principles; and farther, that to prevent the question which on his side it was meant to put respecting Sacchi, would be to interfere with the administration of substantial justice. It was argued on the other side, that it was not competent to any party to examine a witness as to any charge against the adverse party or his witnesses, unless that party or witness had previous notice of such charge. But how could this doctrine be consistently maintained against an inquiry into charges which might have been discovered only in the course of the trial? Suppose that upon the very morning of the examination of a witness the attorney on the other side should have attempted to tamper with him, and that this attorney should have been also found to have offered money, and used other means to collect witnesses, could it possibly be held that no evidence should be admitted as to such conduct on the part of the agent, merely because he had had no previous notice of the charge? He maintained that such evidence, applying as it did to the rest of the cause, was perfectly admissible, and when given, it would be open to the other side to put the attorney into the box, and have his evidence in reply. He put a peculiar 881 case, with a view to illustrate the untenable character of the objection on the Other side. But the principle of that case was applicable here, as Sacchi was an agent on the other side, and it was now; proposed to cross-examine him as to facts, of which the Queen's counsel had been informed in the course of the trial. From the election which, under very peculiar circumstances, they were called upon to make, as to the cross-examination of the adverse witnesses, the Queen's counsel would have no opportunity whatever of informing the House as to the character of those witnesses, if they were precluded from examining Salvadore and others, whose testimony they were now prepared to offer. It would be recollected, that in Consequence of the decision of their lordships against an application for a list of witnesses, the Queen's advocates had no knowledge of the witnesses on the other side until they were brought to the bar. He hoped, then, that that House would, in common fairness, allow them to produce in evidence the knowledge which they had since received with respect to those witnesses. It would appear from this evidence, that Sacchi was employed at Scharnitz and elsewhere, under the Milan commission, and that he was active in corrupting and suborning witnesses. Therefore he contended, that such evidence ought to be admitted. There was not indeed any sound distinction between the question which it had pleased the counsel on the other side to interrupt, and other questions which had already been admitted by their lordships.
Mr. Parkeobserved, that, from the manner in which his learned friend had dwelt upon the agency of Sacchi, it would appear, that he placed but little reliance upon the other ground urged by his learned colleague. In the analogy which his learned friend had drawn between Sacchi and an attorney, his learned friend would impress, that Sacchi was an agent, but that was a point which he thought had been given up through their lordships' decision. But, as to the other point, his learned friend, Mr. Brougham, had admitted, that evidence could not be offered to prove a charge against any witness, unless that witness had had previous notice of such charge. His learned friend alleged, that notice had been given to Sacchi of the charge to which the last witness was adduced in the course of his cross-examination; but he (Mr. P.) was 882 at a loss to know in what part of the cross-examination of Sacchi any such notice appeared. He objected to the question of examination on the other side, upon this ground, that it was irrelevant to the issue before the House, and he rested his objection upon the authority of lord Ellenborough, in the case of Harris v. Tippet in Campbell's Reports. In that case, it was decided, that a witness should not be questioned whether he had not endeavoured to dissuade another witness from attending the trial. Upon this subject, Mr. Phillips thus observes in page 285 of his last edition: "the principal thing to be considered will be, whether the question is relevant to the points in issue between the parties. In an action for usury, it would be entirely immaterial and irrelevant to cross-examine the witness respecting other contracts supposed to have been made by the defendant, unless the witness had first said, that the contracts were the same." After such rules were recognised for the regulation of evidence, he was surprised at the course which the counsel for the Queen desired to pursue. Nothing had appeared on the cross-examination of Sacchi, to which the proposed question had any relation, and yet, without any notice to him, or affording him any opportunity of bringing forward evidence to rebut the charge, it was attempted, through the last witness, as appeared from the question, to make a most serious charge against Sacchi. This attempt, too, was the more extraordinary, as it was made after the cross-examination of Sacchi, as well as that of all the witnesses for the bill had been closed.
§ The Counsel were directed to withdraw.
The Lord Chancellorsaid, it was extremely difficult for him to be called on, day after day, to state what was the practice in the courts below, when he had been so long separated from those courts. He therefore wished, as in former cases, to consult the opinion of the Judges on the subject, as the decisions referred to by the learned counsel for the bill were not quite so apposite as to determine the judgment of the House in this case. Nullum simile est idem, as lord Coke wisely observed; and in order more clearly to inform the House upon this particular case, he proposed that the following Question should be put to the judges:
"Whether according to the practice and usage of the courts below, and ac- 883 cording to law, when a witness in support of a prosecution has been examined in chief, and has not been asked in cross-examination as to any declarations made by him or acts done by him, to procure persons corruptly to give evidence in support of the prosecution, it would be competent to the party accused to examine witnesses in his defence to prove such declarations or acts, without first calling back such witness examined in chief to be examined or cross-examined as to the fact whether he ever made such declarations, or did such acts?
§ Earl Greycould see no objection to receiving the opinion of the Judges; but, whatever that opinion should be, he thought it material the particular inquiry should be followed up. Here was proof tendered, that a witness for the prosecution had not only corrupted others to give testimony in this cause, but had also given corrupt evidence himself. As to the question of agency, he by no means thought that question, as involved in Sacchi's conduct, set at rest; for, as the matter stood there were grounds for connecting Sacchi so with the Milan commission as to affix upon him an agency.
The Earl of Liverpoolsuggested whether, without taking the step proposed, there was not another way of avoiding both this delay, and the further discussion of the points of law. Would not the difficulties be got rid of by calling Sacchi, and laying the foundation for the proposed evidence of the other witness?
The Counsel were again called in, and were asked whether they had any objection to Sacchi being first called and asked to the conversation referred to.
§ Lord Erskineproposed, that the following Question should also be proposed to the learned Judges:
"Whether, if, on any trial in any court below, a witness is called on the part of a plaintiff or prosecutor, and gives evidence against the defendant in such cause; and if, after the cross-examination of such witness by the defendant's counsel, they discover that the witness so examined has corrupted or endeavoured to corrupt another person to give false testimony on such cause, the counsel for such defendant may not be permitted to give evidence of such corrupt-act of such witness, without calling back such witness?"
884 On the motion, "That the said Questions be submitted to the learned Judges,"
The Earl of Carnarvonsaid, he thought there could be very little difference of opinion as to the fact that the House could and ought to go into the inquiry. The effect of proposing the question to the Judges would be, to place the House again in the awkward situation of taking the opinion of the Judges as they did yesterday, and then dissenting from that opinion when it was obtained. Whether Sacchi was an agent or a witness, they ought to know whether he had not himself been active in suborning other persons to give evidence similar to and confirmatory of his own. They could not do justice in the present case without going into that inquiry. He therefore did not see why they should divide the question into so many points, merely for the purpose of puzzling themselves and giving unnecessary trouble to the Judges. In order to obviate this, he should move as an amendment, to leave out all the words after the word "that" in the original motion, for the purpose of substituting these words, "the question proposed be now put."
§ Lord Redesdalesaid, that the arguments of counsel at the bar had produced a considerable effect upon his mind; and, though he had expressed a more positive opinion before, he now hesitated much to say that the question to the witness ought not to be answered.
§ The amendment was negatived.
§ The Questions were delivered to the lord chief justice, and the learned Judges requesting leave to withdraw to consider the same, leave was accordingly granted till to-morrow morning; and the House adjourned.