§ The order of the day being read, for the further consideration and second reading of the Bill, intituled "An Act to" deprive Her Majesty Caroline Amelia "Elizabeth &c." and forbearing Counsel for and against the same,
The Marquis of Lansdownrose to call their lordships' attention to their order of the 21st of August, which was read by the clerk, and related to the daily attendance of the witnesses during the proceedings upon the bill. It was clear, that this order was intended for the purpose of 885 expediting their reception of the evidence, and obviating all unnecessary delay. The House would recollect, that late yesterday some discussion had arisen respecting a witness named Sacchi, and questions were framed for the Judges upon the point. The noble earl opposite had, however, with great propriety observed, that if no objection were offered on the part of counsel, the more expeditious course would be, to call in Sacchi, and by putting the question to him, to lay the foundation at once for the evidence contended for. This suggestion was immediately adopted by her majesty's counsel, who said, that if Sacchi were then forthcoming, they could have no objection; but that it would be quite otherwise, if his introduction were delayed. The learned lord on the woolsack, in allusion to what had fallen from Mr. Brougham, fully concurred in the distinction between the production of the witness at the moment, and the admission of any delay, for that purpose. No, attempt was, however, made by the counsel for the bill to call in Sacchi; indeed the House did not come to a decision which made it imperative that they should produce him. But the real fact, as he understood, was, that Sacchi could not at the time be produced, for he was neither in attendance, as he ought to have been, nor was he in London. It was, under such circumstances, most material that their lordships should repeat their order for the purpose of having it enforced in a more peremptory manner than it had hitherto been.
The Earl of Liverpoolremarked, that the noble marquis was not altogether correct in the statement of what had taken place yesterday. His object, most certainly, in making the suggestion respecting Sacchi, was, to obviate the delay which must necessarily arise in preparing a question for the Judges, and afterwards affording these learned personages time for considering that question. Before, however, he had spoken of Sacchi, he had inquired whether he was in attendance, and was informed, that though not actually on the spot at the moment, he was at his lodgings, where, if necessary, a messenger would be dispatched to bring him. The noble marquis must, therefore, be misinformed, when he said that Sacchi was not in London.
The Lord Chancellorsaid, he certainly understood, that the counsel at the bar 886 had objected to Sacchi being called up again [Cries of "No, no!"]. He did not mean to say that such was the fact, but he declared, upon his honour, that he believed it to have been so. It was with some surprise, therefore, that he had observed this morning, in one of the public journals, that the words "now, now," were stated to have been used by the counsel at the bar. It was possible, however, that the person who gave that report was much nearer the bar than himself and many other noble lords.
The Marquis of Lansdownsaid, he had not made the statement on his own authority. He had made inquiry before he called their lordships' attention to the circumstance.
An order was then made, directing, that the witnesses should in future be in attendance, de die in diem.
The Counsel were then called in.
Then the Lord Chief Justice of the King's-bench delivered the unanimous Opinion and Answer of the learned Judges to both the Questions propounded to them, severally, in the negative, and gave their reasons.
Lord Chief Justice Abbott.—My lords, the learned Judges have considered the questions proposed to them by your lordships. The first of those questions, my lords, is, "Whether, according to the practice and usage of the courts below, and according to law, where 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."
The second question, my lords, is as follows: "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."
My lords, the only material distinction between the two questions appears to be this, viz. that in the latter of the two, the supposed misconduct of the witness is assumed to have 887 been discovered after his cross-examination, In the courts below, wherein causes usually begin and end at one sitting, subsequent discoveries rarely occur in the progress of a trial; the parties on each side are expected to come at the commencement duly prepared with all the proof that may be relevant to the matter in issue, and with nothing more; and we think the only effect of a subsequent discovery would be, to allow the witness to be called back for further cross-examination, if still within reach, which may be done upon that or other reasonable ground. And we are of opinion, that according to the usage and practice of the courts below, and according to law, as administered in those courts, the proposed proof cannot be adduced without a previous cross-examination of the witness as to the matter thereof.
The legitimate object of the proposed proof is, to discredit the witness: now the usual practice of the courts below, and a practice to which we are not aware of any exception, is this: if it be intended to bring the credit of a witness into question by proof of any thing that he may have said or declared touching the cause, the witness is first asked, upon cross-examination, whether or no he has said or declared that which is intended to be proved. If the witness admits the words or declaration imputed to him, the proof on the other side becomes unnecessary, and the witness has an opportunity of giving such reason, explanation, or exculpation of his conduct, if any there may be, as the particular circumstances of the transaction may happen to furnish; and thus the whole matter is brought before the court at once, which in our opinion is the most convenient course. If the witness denies the words or declaration imputed to him, the adverse party has an opportunity afterwards of contending that the matter of the speech or declaration is such, as that he is not to be bound by the answer of the witness, but may contradict and falsify it; and if it be found to be such, his proof in contradiction will be received at the proper season. If the witness declines to give any answer to the question proposed to him by reason of the tendency thereof to criminate himself, and the court is of opinion that he cannot he compelled to answer, the adverse party has, in this instance also, his subsequent opportunity of tendering; his proof of the matter, which is received, if by law, it ought to be received. But the possibility that the witness may decline to answer the question, affords no sufficient reason for not giving him the opportunity of answering, and of offering such explanatory or exculpatory matter as I have before alluded to; and it is in our opinion of great importance, that this opportunity should be thus afforded, not only for the purpose already mentioned, but because if not given in the first instance it may be wholly lost; for a witness who has been examined, and has no reason to suppose that his further attendance is 888 requisite, often departs the court, and may not be found or brought back until the trial be at an end. So that if evidence of this sort could be adduced on the sudden and by surprise, without any previous intimation to the witness or to the party producing him, great injustice might be done, and, in our opinion, not unfrequently would be done, both to the witness and to the party and this not only in the case of a witness called by a plaintiff or prosecutor, but equally so in the case of a witness called by a defendant: and one of the great objects of the course of proceeding established in our courts is, the prevention of surprise, as far as practicable, upon any person who may appear therein.
The questions proposed by your lordships comprise not only declarations made by a witness, but also, in the language of the first of those questions, "acts done by him to procure persons corruptly to give evidence in support of the prosecution," and in the language of the latter question, a discovery "that the witness has corrupted or endeavoured to corrupt another person to give false testimony in such cause."
My lords, we understand the acts thus mentioned, to be acts occurring in the ordinary mode and usual course wherein such transactions are proved in common experience to take place; because we presume, if the questions had related lo an act done in an extraordinary and unusual manner, our. attention would have been directed to the special mode and circumstances of the act, by the frame and language of the questions. Now such acts of corruption are ordinarily accomplished by words and speeches; an offer of money or other benefit derives its entire character from the purpose for which it is made; and this purpose is notified and explained by words so that an inquiry into the act of corruption will usually be, both in form and effect, an inquiry as to the words spoken by the supposed corruptor; and words spoken for such a purpose do, in our opinion, fall within the same rule and principle with regard lo the course of proceeding in our courts, as words spoken for any other purpose; and we do not therefore perceive any solid distinction, with regard to this point, between the declarations and the acts mentioned in the questions proposed to us. It will he obvious, that the observations regarding convenience and inconvenience, which we have taken the liberty to offer to your lordships, as to the proof of words are 'alike applicable to the proof of acts. Nice and subtle distinctions are avoided in our courts as much as possible, especially in matters of practice, on account of the delay, confusion, and uncertainty to which such distinctions naturally lead. For these reasons, my lords, we have thought ourselves called upon to answer both questions wholly in the negative.
Then the Counsel for her majesty were asked 889 whether they had any objection to having Sacchi called, to be asked, in the first instance to his declarations.
Mr. Broughambegged to be allowed, under the peculiar circumstances of the case, to repeat the answer which he had yesterday given. He had then, on the question being put to him, said, he had no objection to Sacchi being called, if he could be forthcoming immediately.
The Lord Chancellorsaid, he must acknowledge, that he had not heard the answer of the learned counsel yesterday so distinctly as to state it correctly to the House.
Lord Sidmouth.begged to say, it was not true that Sacchi had been out of London yesterday. When it was known, that he was wanted, a person had been immediately sent to his lodgings. He had been found, and had set oft" to come to the House.
It was then asked by a noble lord, if Sacchi could be produced now?
The Lord Chancellor.—Then I understand, Mr. Brougham, that you do not consent to his being examined.
Mr. Broughamsubmitted to their lordships, that he had laid a sufficient ground for putting the question without Sacchi being called.
The following Extract from the Evidence of Domenico Salvadore yesterday, was read:
"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 the subject, or make any application to you?"
The Counsel were directed to withdraw.
The Lord Chancellorwished now to know whether it was their lordships' pleasure that the last question should be put. His lordship stated, that he concurred in the opinion given by the learned Judges.
§ Earl Greysaid, he would explain the grounds on which he thought the question ought to be put. The first was, on that of the general agency of Sacchi; the second, that of the discredit which would be thrown on his testimony if it should be proved, that he had been engaged in corruptly suborning witnesses. Now, whether it was competent for the counsel for the defence to proceed with the examination on the last ground, he should not then argue, though his opinion was, that enough appeared in Sacchi's evidence to authorize that course But. what he rose to say was, 890 that he thought such a degree of connexion between Sacchi and the Milan commission had been proved, as was sufficient to let in the evidence proposed to be adduced by the counsel for the defence, and on that account he now moved, that the question be put.
The Earl of Liverpoolcould not admit, that the connexion of Sacchi with the Milan commission was sufficient to lay a foundation for the examination. He did not think, that he stood at all upon the same footing as Restelli or Vimercati. It did not appear to him, that there was any proof of such general agency on the part of Sacchi as would lay a ground for the examination the counsel proposed to institute.
§ Lord Erskinesaid, that however strongly he might feel disposed to concur with the opinion of the learned Judges upon a mere question of law, he could not discharge from his mind the reasons which induced him to differ from that opinion, and which he had on former occasions endeavoured to impress upon the House. Even if Sacchi had never been examined as a witness, and if there were no possibility of connecting him in any manner with the Milan commission, he should still be of opinion, that in this bill of Pains and Penalties it was the duty of their lordships to see to what extent the attempts to suborn witnesses had been carried, without reference to technical objections. The interests of justice were paramount to all considerations of the inconvenience which might arise from any technical irregularity; and justice to the illustrious accused demanded that their lordships should hear the evidence against Zancla and others, which might tend to throw light upon the conspiracy, even though that course were against the opinion of the learned Judges, for which he had the greatest respect upon questions merely legal. But it was idle to urge technical objections in a proceeding which bore no analogy, not only to any trial in the courts below, but to any proceeding, pretending to a judicial character, that had ever yet been instituted. We are not here (said his lordship, with great animation) in a court of justice. There was no law to bring the Queen to this trial. The learned Judges had declared, and it was admitted by the noble and learned lord, that the offence with which the Queen was charged was no offence at common law. If the Quean had committed no 891 crime—if this proceeding were above the law—it ought, in common reason and ! justice, to be untrammelled by legal forms. He repeated, that reason and justice alike revolted from the solemn absurdity of appealing to technical forms and usages, when they were likely to impede the Queen's defence, when the very basis of the proceeding was a violation of all law. He thought the counsel for the defence ought to be allowed to offer all the evidence which it was in their power to produce, to show that attempts had been made by those who acted under the Milan commission to suborn witnesses against the Queen, and he should therefore vote with his noble friend.
The Earl of Darnleyreferred to the evidence given by Demont, to show that agency was brought home to Sacchi. He thought the fact sufficiently proved, that Sacchi was either an agent, or a runner of the Milan commission.
§ Lord Mannerssaid, that the rules of evidence must be equally applicable on the one side and on the other. Both sides had a right to give evidence of a conspiracy if a conspiracy existed. Suppose, then, it had been stated, that there was a conspiracy to prevent witnesses from appearing on the part of the bill, or to remove some material witness, and that persons could be produced capable of speaking to facts connected with the refusal, would this be sufficient to prove a conspiracy against her majesty's friends, unless it could be shown that it had been done by some authorised agent of the party? For example, it would have availed nothing to show that Mr. Flynn, or any other person known to be in the interest of the Queen, was concerned in such a transaction, unless an authority could be clearly proved. It was necessary that this rule should be borne in mind in all cases, for it was equally necessary to the protection of innocence and the conviction of guilt; and their lordships could never do justice if they adhered to it on one side, and abandoned it on the other. So important did he consider this, that he thought it would be desirable to frame a question for the Judges, founded on the evidence which had been given with respect to agency, and to inquire whether, on such evidence, the question could be put? If they acted inconsistently with the rules acted upon in the courts below, the calumnies sent forth against them in libellous publications would appear to be justified. By adher- 892 ing impartially to the rules of the ordinary tribunals, they would best consult their own dignity and the true interests of the country.
The Marquis of Lansdownwas always ready to defer to the judgment of the learned persons to whom the questions had been referred on any subject of law; but the question was a mere question of fact; and he never would consent to have his judgment directed in such a case by others. In his opinion, the agency was proved; but, whatever might be the opinion of the House, they would depart from the line of their duty if they referred to any persons, a question of fact which they were bound to decide themselves. The question was, whether Sacchi was concerned as the agent for the Milan commission, for the purpose of carrying on the corrupt acts which had been alleged against them? On that ground only did his noble friend wish the question to be put, and on that ground it should have his support.
The Lord Chancellorsaid, he agreed with the noble marquis, that questions on matters of fact ought not to be referred to the Judges. He could not agree with his noble and learned friend (lord Erskine), that a question of this kind ought to be tried without attending to the rules of law. The question here was, not whether they were to inquire into the charge of subornation of perjury, but what were the best means of ascertaining it? His lordship then put the question, whether it was their lordships' pleasure that the question be now put?
The House divided: Contents, 51; Not-Contents, 159.
The Counsel were again called in, and were informed, that it is the opinion of the House, that the Question cannot now be put.
Mr. Broughamthen stated, that his learned friend, Mr. Denman, had no further questions to put to this witness, considering the decision to apply to all acts of corruption; but that he begged to submit, that there was a distinction between a case in the courts below between A. and B., or between a prosecutor and a defendant, and a legislative measure, like that before their lordships, where there are no two parties, technically speaking, before the court, and that the opinion expressed by the learned 893 Judges upon the last Question, as he submitted, was not applicable to a bill; for that they rested a part of their opinion upon this consideration, that a witness, if not cross-examined to the point on which be is afterwards meant to be contradicted, might depart the court, an event which could not happen here, because all the witnesses were in constant attendance upon the House, from the beginning to the end of the proceeding, by virtue of an order of the House; that this was an illustration of his position, that that might be applicable as between A. and B. or between prosecutor and defendant, which was not applicable to a legislative measure similar to that now before their lordships.—He had now closed this head of his case, and should proceed to another subject.
§ The Counsel were directed to withdraw.
The Marquis of Lansdownsaid, as it was his intention to move for the production of papers relative to the removal of Restelli in September last, and also to his remaining out of this country since September last, it would be his duty to state to their lordships the grounds upon which he thought they could not consistently with public justice or a proper regard to their own dignity, abstain from calling for the evidence which he should ask. Their lordships well knew, that after an order or an understanding, which he supposed equivalent to an order, that no witness who had been examined in support of the bill should be withdrawn, that a most material witness had been withdrawn, by the direct instrumentality of the agent for the prosecution, in obtaining a passport at the Foreign-office, where (notwithstanding that order or understanding of their lordships) no orders had been given that such passports should be withheld. Upon this fact being known, the agent for the prosecution was ordered to appear at the bar, where he was examined upon oath as to the motives which induced him to send Restelli away. He held in his hand the Minutes of the Evidence of that agent, from which he should read the following:
"Did you make application to Restelli, or did he apply to you?—I applied to Restelli, and not Restelli to me.
"Solely to quiet the apprehensions of the friends of the witnesses in Cotton-garden?—Solely to quiet the friends of the witnesses, and to take back certain papers to Milan to be legalised.
894 "If the sole object of sending Restelli was, to quiet the minds of the friends of the witnesses in Cotton-garden, how came you to send certain papers back by him to be legalised, the legalising of which might cause some delay if he were to bring them back? I sent the papers to Milan to be legalised, that further proofs might be obtained from them, and I expected that these papers would be legalised in sufficient time for Restelli to return on or before the 3rd of October.
"Did you mention Restelli at the Foreign-office when you applied for passports? I mentioned at the Foreign-office that Restelli was going to Milan as a courier.
"Have you had communication with any person, respecting Restelli's delay? Yes; I received letters stating that he was ill.
"From whom?—Colonel Browne.
"Have you now stated the whole and every part of your object in sending Restelli? I have now stated the whole and every part of my motives."
Now, as their lordships had thought it their duty to examine this agent as to his motives for sending Restelli away, and had obtained his declaration upon oath, he would ask them, as they could not discover these motives from any particular instructions given to Restelli, whether they did not think it their duty to ascertain it by the best evidence that could be procured, namely, by extracts from the letters which passed between colonel Browne and Mr. Powell. Their lordships had a right to call for the production of these fetters, upon the same ground that they had a right to call the witness, and to put questions to him to ascertain his real motives for sending Restelli away. He hoped he should not be told, that their lordships had placed themselves, by raising an imaginary party at their bar, in such a situation as to be precluded from ascertaining by those papers, which were said to be confidential papers, the real motives which induced their agent not to comply with their lordships orders. He asked, if there was any one of their lordships, who, if he were the principal in a civil cause, and his agent had, contrary to the orders of the court, withdrawn a most important witness, whose evidence would be essential in ascertaining the truth, would he not have insisted upon his agent's producing every tittle which might lead to the disclosure of his real 895 motives for thus disobeying the order of that court? If their lordships thought themselves bound down by the imaginary party at their bar, let them look at the evidence of Mr. Powell, and they would see if Mr. Powell had spoken truth (and indeed he was unwilling to think otherwise), that no possible injury could arise to this imaginary party by the production of these letters. Mr. Powell had stated, that his sole motive in sending away Restelli was, to make communications to the friends of the witnesses. If that was the sole motive, if he gave no instructions to Restelli, and that could only be found in the letter to colonel Browne, what possible inconvenience could arise by the simple confirmation of that fact? By the motion which he was going to make, their lordships would not be put in possession of any confidential papers which might have passed between colonel Browne and Mr. Powell, as he should only call for those extracts from colonel Browne's letters relating to the illness of Restelli. He would repeat, that nothing could be obtained by agreeing to his motion more than a confirmation of simple facts, if Mr. Powell spoke the truth. He should now move, "That Mr. Powell be called to the bar, and ordered to produce such parts of the correspondence between him and colonel Browne as related to the sending away of Restelli in September last, and to his not returning since."
The Earl of Liverpoolreadily admitted that this case was very different from a case between any individual prosecutor or individual defendant, in which no court could call for the confidential correspondence of principal or agent. He admitted that the House, by having ordered the attorney-general to appear for the prosecution, held a mixed character in this case, and that the objection did not strictly apply. The House, however, having appointed agents, must have appointed them with all the reasonable privileges and all the confidence that belonged to agents. Their correspondence must become confidential, as much as that of the agents of an individual party, or of the illustrious defendant j in this case. Every act of theirs became confidential, and was not afterwards to be called for. This correspondence differed from a public record, because every thing of that kind was drawn up with little chance, he would admit, of ever being I laid before their lordships, but certainly 896 in contemplation of such a circumstance taking place. If he were correct in the view which he took of the subject, this was a confidential correspondence, and as such confined to the agents themselves, and could not be laid before the public.
As a question of right, he would admit that this case was different from others; but the moment their lordships had appointed these agents, they had vested them with the usual discretionary power of agents. If this doctrine were true, it must apply to parts of the correspondence as well as to the whole, and he thought it absolutely impossible to separate what might relate to Restelli, without garbling the letter altogether, and taking out at the same time matters connected with other cases. He would wish their lordships to understand his objection to be this: the moment their lordships had employed agents, those agents conceived themselves acting as private agents, and if the general principle that the correspondence of agents ought not to be produced were admitted, he thought there was a decided objection to the production of the whole or of a part of this correspondence. This correspondence stood totally different from public documents, because public documents were of a nature likely to be produced, but the correspondence was of such a nature as never to be produced. In this case, what was the motive to induce their lordships to break in upon the general rule? He thought there was-literally no mystery in this case with respect to the fact. It had appeared, that a witness had been" improperly sent out of the country, but in his conscience, he believed that person was sent with a full expectation of his speedy return to this country; but, however, he was ready to admit, that he ought not to have been sent at all, and it appeared from the declaration of the person who had sent him, that this was done without any communication with the other agents for the bill. He believed there was no difference of opinion among their lordships as to the impropriety of sending this witness away, though there might be some difference of opinion as to the motives of the person who had so sent him. It was for their lordships to say how far they would call for further explanation; but the House, he trusted, would not for the first time break in upon a principle so sacred and so important, as that which precluded the production of the confidential correspond- 897 ence of agents, written in confidence, and in expectation that it would never be produced. If their lordships should be of opinion that it ought to be produced at all, he certainly should prefer a secret committee.
Lord Kingsaid, that if he understood the state of the proceeding rightly, a conspiracy had been charged, and Restelli had been proved to be an active, he would say one of the most active, agents in suborning evidence. After that, Restelli had been removed, in a most improper manner, by an agent for the bill—in such a manner, that if it had occurred in any court of justice, the attorney would never have been suffered to practise again, and the cause which had been so much damaged would have been at once thrown out of Court. Reasons had been assigned in excuse for sending this man away; and it was to ascertain whether those reasons were the true ones, that the correspondence was now called for. The noble earl had said, there was no mystery in the business. Now, he thought, the whole proceeding, from beginning to end, bore a character of mystery. The noble earl had, on a former day, avowed himself to be the responsible author of the proceedings; but to-day he seemed rather to shrink from that avowal, and to wish to make the House the principals; while his colleagues, one and all, sheltered themselves in an uniform silence, and did not offer a word in defence of their leader. It was contended, by ministers, or rather for them, that they had no interest in the success or the failure of this measure; and, if that were the case, he could only say that they had stronger nerves than any set of ministers that had been in office since the time of the Cabal. The noble earl had said, that there was nothing mysterious in this matter; but, for his own part, he thought the whole transaction bore the character of mystery. Whoever the prosecutors were, if they adopted the evidence, they must also adopt the agents by whom that evidence was procured. But it appeared that witnesses had been brought forward without the knowledge of the prosecutors, or at least without the knowledge of any of their avowed agents, for Barbara Kress had been procured, not by English, but by German agents. The Hanoverian government, he apprehended, were interested in the steps that might be taken to unravel this mystery. In short, it was clear that machinery had been at 898 work which did not appear at their lordships' bat, but for which the noble earl opposite was responsible. If the noble earl and his coadjutors were sincere when they professed to have only the ends of justice in view, let them not satisfy themselves—let them not expect to satisfy that House or the country—by professions only; but when a motion was made, the object of which was to arrive at a knowledge of the truth, let them testify their sincerity by acceding to that motion.
Lord Ellenboroughsaid, he had formerly expressed his opinion upon this subject, and nothing had since occurred to alter that opinion. It being admitted, that the prosecution in this case was different from an ordinary prosecution, it followed necessarily that the agents also stood in a different situation from ordinary agents. It was impossible, that an agent should exercise rights which his principal did not possess, or, possessing, might not be able to exercise. Now, what was the reason assigned for withholding this correspondence? Why, it was alleged, that concealment might be necessary. God forbid that any concealment should be necessary here! He felt convinced, that it was not desirable, and that it was not necessary. But the objection now made to the production of these papers, if it was well-founded, should have been made earlier. The same objection should have been made to the evidence of that person who had been examined at their bar respecting the removal of Restelli; but that had not been done, nor had Mr. Powell made the slightest objection to answer the questions which were put to him in his character of agent. If, then, it was not proper to call for the production of these papers, it was not proper to examine that person on the same subject to which the papers referred; for these letters, it should be borne in mind, were required for the very same object for which Mr. Powell had been examined. An important witness had in this case been removed, and certain reasons had been assigned to their lordships for his abstraction. If these alleged reasons were the true ones, the papers in question would still be so far satisfactory, that they must convince their lordships of Restelli's having been sent away for the purpose which Mr. Powell had stated at their bar: but if, on the contrary, colonel Browne's statement on the subject should be found to be different from that of the attorney, 899 all the evidence which their lordships had yet heard would be mere drivelling, compared to such an important circumstance. In such a case, therefore, he must vote for the production of the papers. At the same time he felt the force of what had been observed by the noble earl respecting the possibility of those parts of the letters which referred to the mission of Restelli being mixed up with other matters; and therefore he thought the preferable course would be, to have them referred to a secret committee.
The Earl of Rosslynapprehended, that the privilege which an agent enjoyed of being protected against giving evidence which would lead him to betray the confidence of his principal, was not the privilege of the agent, but of the principal. If that were the case, and if the client waved his right, there could be no doubt that the attorney might be called to give evidence. In this case, either ministers or the House were the client; and if the discovery of truth was the object in view, as both ministers and the House professed, then the only question was, whether their lordships, in the investigation of a legislative measure, would exclude truth, and pass the bill without availing themselves of the means of knowledge that were within their reach?
The Earl of Liverpoolsaid, that, subject to the understanding that the papers were to be referred to a secret committee, he should not press his objection to the motion.
The Lord Chancellor,after what had taken place, did not mean to support the objection, as an objection; but the proceeding about to be adopted was so important, that he desired not to be included in the number of those who thought that there was no objection to it. In the first place, their lordships must allow justice to be done to the witness at the bar; for, if Mr. Powell had not taken the objection to his being examined as a professional agent, he would have deserved never to have been employed as an agent again. If there were particular circumstances to warrant the House in surmounting the objection which, in his opinion, existed to the proposition before them, let it be so. But their lordships ought to be careful how they acted. For first, if the correspondence was called for on the ground, that the House was the principal in the case, be saw no reason why they should not call for the brief of the attorney-general, 900 and for the whole of the correspondence between the counsel, the solicitors, and all the agents employed. Secondly, how could the required parts of the correspondence be abstracted, as to leave only those of which their lordships wished to be put in possession? And thirdly, he put it to their lordships whether, in common sense and common justice, before they asked the witness so many questions at the bar respecting the letters, they ought not to have determined whether or not the letters themselves should be produced?—because they ought to recollect, that in order to try the accuracy of the parole evidence which had been given by Mr. Powell, they were now about to require from him letters which he had in his pocket, and which, if they contained that which the demand implied, would go to convict him of perjury? He confessed himself utterly at a loss to discover the principle on which the proposition before their lordships was founded.
§ Lord Redesdaledenied, that any evidence had been adduced which fixed Restelli as an agent for the bill.
§ Lord Erskineconsidered the acts of Restelli as having clearly invested him with the character of an agent. As to the argument of the learned lord on the woolsack, that on the principle on which the present motion was founded, the attorney-general might be required to produce his brief, he had only to observe, that the attorney-general was not charged with having been guilty of any contempt of their lordships' orders.
The Marquis of Lansdownbegged leave to make one remark on what had been said by the learned lord on the woolsack. The learned lord in the protection which he had thought it necessary to give to Mr. Powell, had stated that no insinuations should be made against the attorney for refusing to produce the letters that had passed between him and colonel Browne. In this opinion he agreed; and in the statement he had made he had carefully abstained from any animadversion what ever on that part of Mr. Powell's conduct. If, therefore, the learned lord alluded to him——
The Lord Chancellorbegged to interrupt the noble marquis, and to say, that if he had meant to allude to the noble marquis he should have done it in terms that could not have been misunderstood. He must also say, that, during all the time that he had had the honour of sitting in 901 that House, he had known no noble lord who was so little liable to make such animadversions as the noble marquis.
The Marquis of Lansdownbriefly replied to the objections that had been urged against the motion. From the moment that Mr. Powell stated he had received these letters from colonel Browne, he stopped; the letters then became the best possible evidence, and their lordships might have called on him to state, viva voce, what was said in them. As to the danger apprehended from such a precedent, he would relieve their minds from that apprehension at once; for it was distinctly laid down in the law-books, that the privilege in question was granted for the protection of the principal, and not of the agent; and therefore, when the principal waved his right, the agent might be called as a witness. Having certainly no object in view but the attainment of truth, and as it appeared to some noble lords that the best way of getting at it would be by referring the letters to a secret committee, he should alter his motion in deference to that opinion.
The Earl of Liverpoolsuggested, that the motion should be, that the select committee should have authority to call on Mr. Powell for such parts of the correspondence as might be necessary to elucidate the object in view. As the noble marquis and himself agreed as to the substance of the proposition, it would, perhaps, be better to leave the particular arrangement of it to a later period of the day.
The Marquis of Buckinghamdid not think, if eliciting the truth was their lordships' object, that it could be best effected by submitting the proposed extracts to a secret committee. He did not say it was not right to do so, but if it were right to break through those rules that directed the courts of justice on this subject, he thought the committee should have the farther power to sift and inquire into those causes that led to Restelli's being sent out of the country.
The following motion, as drawn up by the marquis of Lansdown, was then read by the Lord Chancellor: "That a select committee be appointed to inquire and examine into the correspondence between John Allen Powell, esq. and colonel Browne, so far as relates to the mission 902 of Restelli to Milan, in September last, and to the causes of his not haying returned."
The Earl of Lauderdalethought, that, if the committee were appointed, Mr. Powell should select such parts of the letters as referred to the mission of Restelli; but he could not approve of the motion in any shape. It was of greater extent than their lordships were aware; it laid down the principle that an agent might be called as an evidence, and have his whole correspondence examined. He maintained that, if this motion were agreed to, there was an end of all confidence between agent and principal; and he did not think that in future any agent could safely do what he might think necessary for the interests of his client, subject to the apprehension that, at a future period, the whole of his conduct and correspondence might be examined. He thought this motion would set a more dangerous example than any other motion he had ever heard made. If this was a public offence, was it fitting that a secret committee should judge of it? It was an offence against the whole House, and therefore a secret committee could not be made the judges of it, unless a part were to decide on the privileges of the whole. If it was necessary for parliament to inquire into the subject, let it make the inquiry by means which would not break down all the precedents of parliament. To lay the confidential correspondence of an agent before a secret committee was what he could not agree to.
The Marquis of Lansdownsaid, that the argument of his noble friend was all in favour of his original motion; but when his noble friend, or any other noble lord, alluded to this as a course unprecedented in parliamentary proceedings, he must state to him, in reply, that, fo far from being unprecedented, scarcely more than one year had elapsed, since that very course had been laid down by the legislature as the most consonant to the practice of parliament. It had been laid down at the commencement of this proceeding by the noble earl opposite in the House of Lords; and in the other House of parliament, in the case of Mr. Wyndham Quin, the correspondence between Mr. Grady and Mr. Carew Smith had been ordered to be produced before the. House, and referred to a secrect committee. He thought the course proposed, of sending such papers before a secret committee, was by no means an unparliamentary one. 903 He was of opinion, however, that the more regular course of becoming possessed of them would be, to call for these papers, sealed up, and then to refer them to a secret committee. At the same time, if it was thought more convenient to proceed by the appointment of a secret committee (a difference which he was not disposed to consider very material), he apprehended the proceeding would be, to call Mr. Powell before them, on an understanding that he should exhibit the letters, doubling down those parts of them that were not connected immediately with the inquiry, for the purpose of satisfying the committee that such parts referred to the mission of Restelli. He imagined, that what the House delegated to the secret committee would be, to inquire into the matter of fact arising out of the papers, reserving to the House to act as it thought proper on the report of the secret committee. It was indifferent to him what particular course was pursued on this occasion; but, be that what it might, he should feel it his duty, if the House could not agree on the mode, in any event to take the sense of the House upon the main point—that the papers should be got at. A most extraordinary and unpleasant mystery hung over this man's departure—a mystery which ought to be instantly dispelled, and which could not be removed but by the production of such parts of this correspondence as related to the departure of Restelli.
The Earl of Liverpoolwas by no means disposed to offer any opposition to the suggestions just thrown out, conceiving, at the same time, that nothing ought to be referred to the secret committee but the correspondence between Mr. Powell and colonel Browne as to the causes which had induced the sending Restelli out of the country, and the reasons of his not having returned. He did, therefore, imagine, that that must and ought to be arranged in such a manner that no other part of the correspondence should be brought into question, or under inspection. If he were a member of the committee (which he was desirious not to be), he should consider that Mr. Powell ought to attend with the required extracts from the correspondence, and that he should be prepared to verify them by showing the originals.
The Earl of Lauderdaleadverting to the precedent which had been quoted by his noble friend, protested against deriving 904 precedents from the other House of Parliament. If the motion were limited to the facts which related to Restelli, he should be satisfied; but as it stood, it referred to the whole of the correspondence in question.
Earl Mortonsaid, that Mr. Powell had been sworn and interrogated as to sending Restelli away, and now their lordships wished to have his correspondence referred to a secret committee. If this were agreed to, no man in his senses would ever become an agent.
The Earl of Limerickobserved, that Mr. Grady and Mr. Carew Smith, whose correspondence had been referred, by the House of Commons, to a secret committee, were not confidential agents. It was in the fact, that Mr. Powell and colonel Browne were confidential agents that his great objection against the proposed proceeding resided. There could not be a more mischievous principle, than that confidential agents should be liable to make disclosures such as those now required. It was a principle pregnant with every possible danger to society. On these grounds, he should certainly oppose both the original and the modified proposition.
The Marquis of Buckinghamthought it would be sufficient for the purposes of the committee if they were furnished with the necessary extracts only; and recommended that a power should be reserved to Mr. Powell to give explanations, if called for.
The Lord Chancellorconfessed, that it appeared to him, from the words of the motion, that it was presumed the committee would see the necessity of examining all the correspondence, in order to ascertain how much referred to the point to be inquired into. He might move an amendment to correct the terms of the motion, if he were acting in any other situation than that in which he stood; but the House must see it was impossible. If any noble lord chose to move such an amendment, it was of course open to him. Noble lords appeared to have grounded the opinion of the necessity of Mr. Powell's examination before a secret committee—or, at any rate, to have defended such a course—upon what they called the contempt of that gentleman. They talked of the contempt of Mr. Powell; but this correspondence was between him and colonel Browne. What right had they, then, to ask colonel Browne? Had he been guilty of any contempt of their House; 905 or was there any man in his senses who would believe that, after such a proceeding as it was proposed to enter into, if, in the course of it, it should be necessary for Mr. Powell to write colonel Browne a letter,—who would believe that the latter Would answer him?
§ Lord Redesdaleobjected to the original proposition, but maintained that the reference to a secret committee was only a worse way of doing the same thing. He apprehended that their lordships had no right to call on Mr. Powell to betray colonel Browne's confidence. When their lordships called Mr. Powell to the bar, they precluded themselves from doing that which it was now proposed to do. If they intended to call for the correspondence, they should not have gone so far in the examination. That was the principle of every court, in which there was any regularity in the administration of justice. What their lordships were now recommended to do, appeared to him to be an act of gross injustice. He protested against it in every shape; but most especially in the shape of a reference to a secret committee. Rather than that Mr. Powell ought to be required to extract from his letter to colonel Browne, the passages in which he stated his motives for selecting Restelli as the courier to be sent out to Italy (for that was all), and those parts of col. Browne's answer which related to the causes that had prevented Restelli's return.
§ Earl Greysaid, that he was ready to concur either with the motion which was now in the hands of the learned lord on the woolsack, or in any other motion which should be thought proper for the same purpose. It had been said, that, by entertaining either proposition, he would be countenancing an act of real injustice. He trusted that it was unnecessary for him to say, that he did not go upon any such motive. So far from thinking that the effect of this inquiry would be to produce gross injustice, in his opinion no substantial justice could be done without it. Their lordships, upon the 21st of August, made an order that the witnesses summoned in this cause should attend, de die in diem. The noble earl, at the head of his majesty's government, had given a solemn pledge, that, so far as depended upon him, that order should be strictly adhered to. And what followed? When their lordships had come to a case requiring the immediate attendance of a 906 witness at their bar, they found that, in contempt of this order, and in direct violation of that solemn pledge, that witness had been removed. The consequence of this removal and the effect of that violation, was an admission from the learned lord that an injury had been done to the Queen's case, which could not be atoned for, and was not likely to be easily repaired. Now, he asked, if this was not a case which demanded that their lordships, if they meant to do justice impartially, should sift to the bottom. This sort of reasoning had been already put to their lordships, and Mr. Powell had, in consequence, been called to their bar. He had then stated to their lordships certain reasons which had induced him to do that which government had pledged themselves not to do. This explanation (without meaning any thing personal with respect to Mr. Powell, or the character of his evidence), he must be allowed to say, had not satisfied his mind. When Mr. Powell had referred to the correspondence of colonel Browne, as containing the motives of his extraordinary disobedience to the orders of the House, it became absolutely necessary that that correspondence should be produced. The question, then, related merely to the manner of producing that correspondence; and undoubtedly he was inclined to think, that the original motion was best calculated to attain that object. His noble friend, however, had given way, in compliance with the suggestions of the noble earl opposite, and in order to unite all opinions upon the subject. In point of form, he believed it was not usual, in cases of privilege, to refer any matters connected with such offences to the consideration of a secret committee; at least, such was not the practice of the House. But he must beg leave to put a noble lord right, when he said that their lordships would be doing great injustice by adopting either motion; and that, by either, they were called upon to pronounce on the credit due to Mr. Powell. They were making no such reference to any committee. All that a committee was required for, was an exhibition of the correspondence, and that it should report to the House, not any opinion as to the efficacy of Mr. Powell's evidence, but as to the statements made in that correspondence—a correspondence which it had been asserted would divulge (as it would do without any public injury, or at least any injury to the client at their 907 bar) the motives of Restelli's mission. I Whether precedents for such a course of proceeding as this were or were not to be found, to him it at least appeared, that in a case of contempt of court, or, in more parliamentary language, a breach of privilege, it was certainly to be supported. If it should appear that there were circumstances of a confidential nature connected with that correspondence, the exposure of which to the public view might be prejudicial either to the public interest or to the individuals concerned, under such circumstances, without any departure from the principle of the original motion, he thought it might be prudent to refer that part of the letters to the discretion of the secret committee. But this had been ground of opposition to the original motion. In order to obviate that objection, he should not himself object to revert to what was the original course proposed by his noble friend; and to amend the motion in this way—"for the production by Mr. Powell of such parts of his correspondence with colonel Browne as may relate to the mission of Restelli to Milan." He meant to follow this up by a second motion, to refer the copies or extracts so produced, to the secret committee, to report upon such parts as they might deem fit to submit to the House. He thought that this would be the more desirable course on the whole; but that they should examine and inquire seemed to him to be indispensable. This he conceived to be a necessary form of proceeding; and without it their lordships must see that nothing could be, in effect, more nugatory, if they were to refer the matter to the witness at the bar, and leave it in his power to make such explanations as he pleased. Perhaps he might not produce the originals; but copies of such parts as he chose to select, or what he might call copies. It would be, indeed, nugatory and absurd. In saying this, he was not now throwing any doubt upon the accuracy of Mr. Powell's statement; that remained to be confirmed, and confirmed, he trusted, it would be; but he also trusted, that their lordships would not make the result of their appointment a mere nonentity, as it would be, unless it led in some degree to the production of the originals before the House, so that the explanation which was called for might be certainly and decisively known. As he wished the question might be put in the most explicit 908 manner, lie should propose, as an amendment, that after the word "that" in the original motion, all the following words should be omitted, and these be substituted in their stead:—"that Mr. Powell be directed to produce such parts of his correspondence with colonel Browne as may relate to the mission of Restelli to Milan."
The Earl of Liverpoolhad no objection to offer against a motion, that Mr. Powell should lay before the House copies of such parts of his correspondence with colonel Browne as related to Restelli's mission to Milan; nor had he any objection to Mr. Powell's being again called to the bar and examined upon that part of the transaction. But he had a decided objection to the production of the original correspondence; because those letters related to other matters not at all connected with this part of the case. He conceived the whole purpose of the noble mover would be attained by directing that Mr. Powell should produce a sealed copy of that part of the correspondence which referred to Restelli's mission to Milan; and by afterwards referring that copy to a secret committee of their lordships, giving to that committee the power of examining Mr. Powell, in order to verify the extracts.
§ Earl Greysaid, his object was, to conduct the inquiry in such a manner as to obviate any objection which might be urged against it. He had no objection, therefore, to take it as it was proposed by the noble lord.
The Earl of Limerickrepeated the objections he had urged against the proposed course of proceeding. He most strongly objected to the principle here, or in any case, of calling on the agent. In all cases, too, he was most averse to the appointment of secret committees, unless they were indispensably required. His objections remained unaltered; and if he should find no noble lord to entertain his own feeling on the subject, he would divide singly.
§ Earl Manverssaid, he would support any motion that had for its object the accounting for this strange mission of Restelli to Milan. The reasons given at their lordships' bar by Mr. Powell were not at all satisfactory to his mind. He should, therefore, consider himself guilty of a gross dereliction of duty, if he did not support any motion, the object of which was to account for this extraordinary transaction—a transaction which, 909 if their lordships omitted to have cleared up in a manner perfectly satisfactory to themselves, would fix a stigma on them that could not be wiped off.
Lord Somersobjected to the principle upon which both the motion and amendment were grounded. He could not support a proceeding, the tendency of which was, to do away with those laws, which were most essential to the preservation of our glorious constitution. He conceived that there was no act more destructive to the constitution, than that which went to destroy that confidence which existed between agents and their principals. He would ask, how any man could engage with honour and satisfaction in any case, if he was to be under the continual fear of having his letters and communications brought before the public? Nothing could have a more injurious tendency than the establishment of such a precedent. If he rightly understood the noble lord who spoke last, his vote was grounded rather on the conduct of Mr. Powell, than on the merits of the question itself.
§ Earl Manversbegged to say three words in explanation. The noble lord had certainly misunderstood him. He had made no reference whatever to the witness, who was not, at the moment, in his mind, excepting only as regarded the fact of Restelli's absence, which he considered most mysterious and singular. He had no hesitation in saying, that he conceived it was absolutely necessary for Mr. Powell's character, that it should be cleared up. He admitted that there was difficulty in the course proposed, but of two evils he would choose the least, and would prefer the proposed inquiry rather than endure the odium which the circumstance must otherwise draw upon them.
§ The Earl of Harewoodperfectly agreed with those who thought that there was a very great difficulty in this question. On the one hand, he should be the last man in the world to authorize the production of any confidential communication between a principal and his agent; because a line of that description, taken by that House, would be absolutely ruinous to all confidence between man and man. But, under the particular circumstances of this case, notwithstanding Mr. Powell's words and declarations, which he was disposed to take as true, there was something on the face of it which required the House to investigate the whole of the corres- 910 pondence upon the particular point to which their attention was directed. There was something in the absence of Restelli which appeared to demand inquiry, and which could not be accounted for but by a most satisfactory explanation. Of course there would be in the committee a strict understanding, that nobody on that committee should look into the original correspondence, except for the verification of the extracted copies of the parts alluded to. To look beyond this would be to exceed the duty of the committee, and to commit a breach of honour with the parties. He had no doubt, however, that if the committee were appointed, it would do its duty in a just and proper manner, and make such a report as the exigency of the case required.
§ The Earl of Hardwickesaid, he concurred fully with what had fallen from the noble earl who had last spoken.
§ Earl Greyobserved, that his motion would be so restricted that every noble lord would have full security that the object in view, and that only, would be obtained. In answer to what had fallen from a noble lord, he had only to observe, that it would, in his opinion, be better to proceed as was now proposed, than to allow the imputation which the absence of this witness would cast upon their proceedings. If their lordships were determined not to adopt his amendment, he was determined to propose an immediate suspension of their proceedings. What he now proposed was, first, to move as an amendment to his noble friend's motion, "That Mr. Powell be directed to produce at the bar such extracts from the correspondence between him and colonel Browne as related to the mission of Restelli to Milan." He intended to follow up this motion with another, namely, "That a secret committee should be appointed to inquire into those papers, and report thereon; with power to examine Mr. Powell, in order "to compare his answers at the bar with those extracts." He wished it to be understood that the functions of the committee were to be strictly limited to this inquiry.
The Earl of Donoughmorethought, the House were imperatively called upon to make further inquiry into this transaction. This committee was not called for with any view of contradicting Mr. Powell's evidence, but for the purpose of corroborating it, by a reference to the original 911 letters of colonel Browne respecting Restelli, which Mr. Powell admitted he had in his possession. There was no breach of confidence in this; for the House were the original employers of Mr. Powell; he was their confidential agent. It was they, therefore, not Mr. Powell, that were responsible for whatever disclosures might arise out of the matter. It was impossible for the House to do that justice which the case required, without opening their doors as wide as possible for the admission of truth.
The Marquis of Lansdownsaid, that he so entirely concurred in the motions as amended by his noble friend, that he had no objection whatever to withdraw his own motion to make room for their adoption. It was, he thought, indispensable for the character of the House that this inquiry into Restelli's journey should go on. The committee would, of course, not enter further into the examination of the original letters than to verify the extracts: to that their examination would, of course, be restricted, and the House might rely with confidence upon the propriety of its committee, and that they would not exceed the limits assigned to them.
The Earl of Lauderdalesaid, that if they decided upon going into this inquiry at all, it was, of course, necessary they should go into it effectively; but his difficulty was how they could confine their examination of the originals to a verification of the extracted parts merely relating to Restelli's business. He could not see how the whole of the correspondence could be opened without going further than he thought the House ought to go consistently with the principles of justice.
§ Earl Greyrepeated, that he meant simply to confine the committee to a verification of the extracts, by comparing them with the originals; and not to go through the whole correspondence in any way beyond what was actually necessary for the purpose of verification.
The Earl of Carnarvonsaid, that the proceedings of the committee ought to be opened as wide as truth required. What was it they were now about to do? It was, in fact, little or nothing, compared with what the case called for. They were by this motion merely calling upon Mr. Powell to make out his own case. As the committee now stood restricted, Mr. Powell would be the committee, and not the noble lords whom the House might 912 appoint. Why should not the committee have power to ascertain whether the extracts put in were, or were not, garbled? He did not mean to insinuate that Mr. Powell would garble them; but the committee ought to have power to make their duties fully effective, and not dependant upon the inclination of any individual, to obviate all possible misconception. If they did not give more latitude to the committee, they would not satisfy the ends of justice, nor afford the Queen that protection which she had a right to demand. It had been said, "Will you produce the confidential papers of this prosecution? To this he would answer, "Had they not already produced them in their case for the prosecution? Aye, and gone beyond them, he had no doubt." [Hear, hear!] He also thought her majesty had a right to complain that this debate had been carried on in the absence of her counsel, who might have it in their power to submit, that the House were restricting the just scope of defence to which she was entitled. Injustice to the Queen, they ought to call in her counsel, and ask them if they were satisfied with the proposed proceeding, which, however, he thought, as it now stood, was nugatory, and could not afford satisfaction to any party.
The Marquis of Lansdown,with reference to what had fallen from his noble friend who spoke last, observed, that what the House was discussing had nothing* whatever to do with counsel [Hear, hear!] It was merely an inquiry within the House respecting the violation of one of its own orders [Hear!] The intended proceeding was not either a negative one, but rather of an affirmative character; for it was to show whether the evidence given at their bar was correct, according to the documents referred to in that evidence. It was, in fact, to pursue the ends of justice by getting at the truth, the whole truth, and nothing but the truth, as connected with a particular part of this transaction.
The Earl of Carnarvonsaid, in explanation, that what he complained of was Mr. Powell's having to make the extracts instead of the committee.
§ Earl Greyhoped, in explanation, to be allowed to say, that the documentary evidence was called for to support what Mr. Powell had said at their lordships' bar. The only power which the committee required in furtherance of this ob- 913 ject was to have reference to the originals for the purpose of verification. If in their inquiry they should see any necessity of calling for fresh powers, they must return to the House to call for that augmentation.
The Lord Chancellorthen put the question, that Mr. Powell do produce the extracts of the correspondence between him and colonel Browne relative to Restelli's mission to Milan, and the House divided—
Contents 122 Not-contents 79 Majority in favour of the motion 43
§ On re-entering the House, we found the earl of Carnarvon on his legs, contending that the inquiry ought not to be by a secret committee, but by the House. The motion for a secret committee was, however, carried without a division, and the following peers were then appointed on the committee:
| The Lord President of the Council. | Earl of Lauderdale. |
| Lord Erskine. | |
| Earl Grey. | Lord Ross. |
| Earl of Rosslyn. | Lord Amherst. |
| Lord Manners. | Marquis of Lansdown. |
| Lord Arden. | |
| Lord Ellenborough. |
§ The following Protest against the appointment of the said Committee was entered on the Journals:
§ "DISSENTIENT—Because this resolution appears to be inconsistent with the principles upon which all courts refuse to compel the production of any part of the confidential correspondence of professional persons employed confidentially as such in the matters to which the correspondence relates.
§ "Because no particular circumstances in this case appear to be sufficient to authorize our not adhering to the rules of proceeding founded on those principles.
§ "Because, therefore, this resolution, if acted upon as a precedent, may dangerously affect the administration of justice.
| Eldon, C. | Clinton. |
| Queensberry. | Carrington. |
| Rous. | Cathcart. |
| Montague. | Loftus (Marq. of Ely). |
| Somers. | |
| Farnham. | Belmore. |
| Northampton. | Mayo. |
| Limerick. | Brooke & Warwick. |
| Saltersford (Earl of Courtown). | Gordon (Marquis of Huntley). |
§ The Counsel were again called in.
Mr. Broughamsubmitted, that it became his duty, and a matter of necessity, to make an application on behalf of her majesty, with respect to an inquiry, in which the counsel were allowed to bear a part on Friday and Saturday last, which applied to a material witness of the name of Restelli; that an agent for the prosecution, who appeared to be the person who sent the witness out of the way, was examined, in the course of which examination the House were pleased to direct, that the counsel for and against the bill should have permission to put certain questions to the witness, on the subject matter of the inquiry into his conduct; that the counsel thereby necessarily became parties to the proceeding; that it became necessary for him now to ask for the assistance of their lordships to investigate the obstruction by which they were impeded, by the production of the whole correspondence either to the House or to a committee of the same, and that the counsel for the Queen, who had been allowed to take a part in the examination of Mr. Powell, or some of them, should be permitted to take a part in his further examination upon this subject.
§ The Counsel were directed to withdraw.
The Earl of Carnarvonconceived that Mr. Powell ought to be called in again. 915 It appeared obvious to him, that the agents to the Milan commission had withdrawn from this country the witness Restelli. In doing so, they appeared to be guilty, not merely of culpable neglect, but of the absolute obstruction of public justice. The charge, at least, was made; and it was necessary to sift it to the bottom. But how was that to be done? Not by putting counsel within narrow limits, but by opening wide the gates of inquiry, by the production of the correspondence, and the further examination of the agent. He would therefore move, that Mr. Powell be called to the bar.
The Lord Chancellorsaid, that, without making any observation, he would merely say Not-content; and he would do so, because he considered the proceeding a most dangerous one.
The Marquis of Lansdownsaid, that the sending Restelli out of the country amounted to a breach of their lordships' order; and that, too, by the agent for the bill. Would not their lordships then inquire into the conduct of that individual?
The Earl of Liverpoolsaid, that if any special ground were stated for bringing up Mr. Powell, that might be a question for further consideration; but, at the present moment, he would resist the motion.
The Marquis of Lansdownapprehended, that for the purposes of justice and the attainment of truth, Mr. Powell ought to be examined, and to be ordered to produce the papers which he had in his possession. He thought that, as counsel had been present at his former examination, they ought to be permitted to attend and future examination.
Lord Hollandsaid, that, their lordships had already called upon the counsel to assist in the inquiry respecting the disappearance of Restelli. That inquiry was not deemed satisfactory. Their lordships discovered that mysteries hung about that transaction which it was necessary to clear away. They established a committee called Select; but it was well understood, that that committee was to be a secret committee; that they were not to divulge their proceedings either to their lordships or to the public. Their lordships, it would seem, were resolved not to communicate with counsel, though they had done so on the former occasion. Their lordships must have had some reason for establishing a committee; the reason was, that their lordships felt that the inquiry was neither complete nor satisfac- 916 tory. The counsel for her majesty was interested in the inquiry; their lordships made them parties to it, because they had directed them to employ their minds upon it. To put questions to the agent, to sift the matter in issue, counsel did attend the examination at the bar; and they, like their lordships, felt that the partial inquiry already had was neither conclusive, nor satisfactory. Could they say to the counsel, "You have no right to interfere in this inquiry, because the Queen is not interested in the issue of it? We have called on you before—we made you parties to an inquiry which, however, we now acknowledge was not satisfactory; but though we have made you parties in the one case, we will not consult you in the other; and we will assume, that the Queen is not interested in an inquiry, which has for its avowed object to discover, whether an obstruction of justice has taken place in a case which so vitally affects her interest, and her honour." Was there ever a proceeding more anomalous, or more contradictory? The truth was, that their lordships could not shut their eyes to the case before them; an obstruction of justice had occurred, and they were bound to one of these conclusions; either they would proceed to inquire into and to ascertain the whole of the cause of that obstruction of justice, or they would say we are not able to do so, and therefore we are not able to proceed further in this bill. Their lordships were bound to call Mr. Powell to their bar, notwithstanding the appointment of a committee. He wished that noble lords, when they talked of abiding by the rules of law, and who at the same time, asserted, that bills of pains and penalties were part of the constitution of this land, would show to the House, what rules of evidence ought to be followed in proceeding on those bills. If their lordships were determined to abide by the rules of evidence in this long, tiresome, and, he would add, contemptible proceeding, they must suppose, that the rules of evidence led to the attainment of justice; if not, they ought to give up the proceeding altogether; because the only justification they had for proceeding at all was, to come at the truth.
Lord Ellenboroughthought that the obstruction of Restelli should be considered in two points of view; first, as an obstruction to her majesty's defence; and secondly, as a breach of privilege. It was under the first 917 point of view alone that the House had determined that counsel should be called to take a part in the examination of Mr. Powell. As a question of privilege, the counsel had nothing to do with the business; and it was as a question of privilege alone that he conceived the correspondence had been ordered to be laid before a select committee. The appointment of that committee was not, therefore, he conceived, any objection to recalling Mr. Powell, with respect to the alleged obstruction of justice; but he would not consent that he should be called, on an abrupt motion for that purpose, without any special application having been made by the counsel for her majesty.
The Earl of Darnleylooked upon the obstruction which had taken place as a great injustice towards her majesty; and, in that point of view, he considered that the counsel ought to be allowed to reexamine Mr. Powell. He agreed, that with the case of a breach of privilege alone the counsel had nothing to do; but when an obstruction to the defence of their illustrious client arose out of it, he thought they ought to be allowed a very considerable latitude in their re-examination. He did not think, therefore, that this application could be resisted with that view to substantial justice which the noble earl opposite had enforced on a former occasion. If their lordships should refuse this application, he would exercise his privilege as a peer, and put questions to Mr. Powell on this subject when he came to the bar with the papers. He fully concurred with his noble friend (lord Holland) in his observations on the whole of this unfortunate case; and he would repeat, that it was a disgusting and contemptible proceeding. In this opinion he was more and more confirmed every day. He was firmly convinced, that their difficulties on the subject would increase daily, and that they would never arrive at any satisfactory conclusion. When he came daily to that House, and saw the paraphernalia by which they were surrounded, he doubted whether he was not waking from some feverish dream.
Ac velut in somnis oculos ubi languida pressit Nocte quies, nequicquam avidos extendere cursus Velle videmur, et in mediis conatibus ægri Succidimus; non lingua valet, non corpore notæ Suffciunt vires, nee vox nee verba sequuntur.Their lordships would excuse him from pressing the quotation further. It was 918 his firm belief, that this proceeding would never come to any satisfactory conclusion.The Counsel were again called in, and were informed, that it was not the pleasure of the House, that Mr. Powell should now be called in.
Mr. Broughamstated, that he would now proceed to another part of the case, understanding it to be open to him to resume his application as to taking a part in the examination when it was determined that Mr. Powell should be called.
Then Colonel Alessandro Olivieri,was called in, and having been sworn, was examined as follows by Mr. Tindal, through the Interpretation of the Marchese di Spineto:
Were you ever in the service of the viceroy of Italy? I have been.
What rank did you hold in the army? My last was colonel of cavalry.
Did you serve in the campaign of Russia I did.
Were you taken prisoner there? Yes.
When did you return from Russia? On the 18th of February 1815.
Were you afterwards in the French army? Yes.
What rank did you hold in that army? Colonel.
When were you first introduced to her royal highness the princess of Wales? In the month of November 1816, whilst she was at the Villa d'Este, at Como.
Who introduced you to her royal highness? Baron Cavaletti.
Do you recollect afterwards seeing her royal highness at Rome? I do.
When was that? In the year 1817, when she came to Rome and remained there two months.
Do you recollect the month? I think in the beginning of June.
Did her royal highness at that time give you any invitation to visit her? Often, many times; she did me the honour to admit me at her table.
Did she at any time invite you to visit her at her Villa of Pesaro? She invited me in the month of November.
Did you pay her a visit at that time? Yes, I paid her a visit on the 11th of November.
Was her royal highness at that time living at the Villa Caprili? She was.
Was any proposition made to you to join her royal highness's suite? There was.
In what situation were you to join that suite? As one attached to tier court.
Were you to receive any pension or salary for that service? Yes.
How long did you serve in that capacity? I continued so till the 4th of November of the following year.
919 That would be the year 1818? Yes.
Did you then receive any other appointment under her royal highness? I Had the honour of being appointed her chamberlain.
Were you sole chamberlain, or jointly with some other person? There were others; but at court there was nobody else except Bartolomeo Pergami and myself.
How long did you remain in the situation of joint chamberlain? Till last February.
Do you receive at this time any pension or salary from her majesty? I do not.
Have you received any since the time when you left her service? No.
Are you a married man? lam.
Have you any family? A daughter.
Where do your wife and daughter live? At Rome.
Were they, at any time whilst you were in the service of her royal highness, at Pesaro with you? Never.
Are you living with them at present when you are at home? I am.
Do you recollect her royal highness being at Rome at the beginning of August 1817? She at that time set out from Rome.
For what place did she set out from Rome? She set out for Bologna, but I know that she went to Sinigaglia.
Did you sup with her royal highness the evening before she set out, or the evening of her setting out? I had that honour.
At what time in the evening or night did she set out on her journey? About midnight.
Did you hand her royal highness into her carriage? I had also that honour.
Into what carriage, what kind of carriage, did you hand her? It is what we call in Italian carrettina, a landaulet, an English carriage.
Besides her royal highness, who got into the same carriage? Countess Oldi and the chamberlain Pergami.
Do you remember a little child of the party?
[The Witness answered before the Question was translated.]
And the child Victorine.
Do you remember whether Mr. Vassali was upon that journey? I do.
Was Mr. Hownam also on the journey? Yes.
Did you see them in their carriages? I saw them, and I bowed to them.
Have you ever since travelled yourself in the same carriage in which her royal highness travelled that night? I have travelled, but not on that occasion.
Have you often used the carriage since? Sometimes.
Do you know the carriage very well? Yes, I know it.
Do you know who rode as courier from Rome upon that occasion? I saw Carlo Forti set out as a courier.
920 During the time that you were joint chamberlain with Pergami, what were the manners and conduct of Pergami towards her royal highness? The conduct of a respectful servant.
Did you ever see any thing improper or indecorous in his conduct towards her? Never.
When her royal highness was at Rome, who were the persons who visited her? Very many persons of the first nobility.
Can you name them, or any of them? Cardinal Gonsalvi, cardinal Ruffo, cardinal Vidoni, cardinal Cacciapiatti; I cannot remember, they are so many, besides ladies; the princess Ghigi Do you remember the baroness Aniajani? She was one of the dames d'honneur of her royal highness.
By whom was she appointed? I believe the government.
Did you ever see her royal highness in the company of his holiness the pope? No.
Do you know the duchesse Togarella? I do not.
Do you know the prince and princess Gabrielli? I do.
The duchess of Bracciano? I do.
Did she also visit at her royal highness's? Many times.
At the time these visits were paid, was Pergami in the company of her royal highness as chamberlain? He was.
What society did her royal highness keep at Pesaro, who visited her there? The whole of the first nobility of Pesaro.
Do you recollect the governor? I do.
Is there an archbishop Briolo? Yes; but he was the archbishop of Urbino.
Did he upon any occasion, about the time you are speaking of, visit her royal highness? Not at Pesaro, but at Urbino, when her royal highness went there.
Do you know whether Pergami has been received at any of the houses of the persons you have mentioned, when her royal highness has not been in his company? I too have been present there many times.
Have you seen her royal highness, when walking, take the arm of any gentleman of her suite? I too have sometimes had this honour.
What was the conduct and demeanor of her royal highness towards the gentlemen of her suite generally? Affable, but at the same time dignified.
After her royal highness appeared in the morning, who generally attended her? All those who belonged to her court.
How did she generally pass her mornings? After haying taken breakfast, she went generally to lake an airing in the carriage, and then she went into her library, or wrote.
Who generally attended her royal highness upon those occasions? If you ask during the time her royal highness was at Rome, I cannot tell; but if you ask after the time I was in her service, then I will explain myself 921 That is the time to which your attention is directed? I repeat, all the suite attended her.
During the time her royal highness was at Pesaro, did she enter into society? She had the society at her own house continually.
Was there company besides those of her own suite? Yes, sometimes there was somebody who came during that hour.
Do you know whether her royal highness ever used a carriage that had an apron to it when she was at Pesaro? I never saw such a carriage; I never saw it.
Are you to be understood that you do not know whether her royal highness had such a carriage? I cannot say, because I have not seen it.
Cross-examined by Mr. Attorney General.
What countryman are you? Of Tivoli; I was born at Tivoli, but I dwell at Rome.
Where were you living at the time you were first introduced to her royal highness? I was returning at that time from France to Rome.
How long had you been in France? Till the year 1816.
How long had you been in France at the time you were returning, how many years? I remained in France till the end of the year 1815, then I went to Milan, and then I went to Rome in the year 1816.
You left France at the latter end of the year 1815? Yes.
Were you in the army at the time you left France? No; when the army of the Loire was disbanded, I left the service.
How long did you remain at Milan in your way to Rome? Till the month of November 1816.
You remained at Milan from the end of November 1815, till the end of November 1816? I remained at Milan from the beginning of the year 1816, till some days in November.
Where were your family at that time living, at Milan or at Rome? Always at Rome.
What was the occasion of your staying so long at Milan at that time? Because I had commanded a regiment; and because I had some accounts to settle with government.
Are you to be understood that you remained there during the period you have mentioned, for the purpose of settling your accounts? Some credits that I had towards government.
What regiment were you in when you were in the army of the Loire? In the army of the Loire, I was in the etat major of general Reillé.
Did you belong to a French regiment at that time? No, 1 belonged to the etat major of general Reillé.
How long had you been upon the staff with general Reillé? Till the army of the Loire was disbanded.
For how long before it was disbanded? From the retreat of the army, till it was disbanded.
922 For what period? After the battle of Waterloo, when the army retreated upon Paris.
How long before the battle of Waterloo had you been in the French service? I entered the service of France about that time; after I was released from being a prisoner in Russia, I went to France.
How long had you returned from Russia, before you entered into the French service again? From the 18th of February, as I have just stated.
In what year? 1815.
Were you in the service of the king of France before the return of Bonaparte? Never.
Did you not say you were in the French army in February 1815? No.
What month in the year 1815 was it that you entered into the French service? I entered the French service in the month of May.
What regiment was it that you went to Milan to settle the accounts of? The dragoon of Napoleon.
How long before the time of your return to Milan was it that you had served in that regiment? How could I go into the regiment before I went into Italy; the regiment itself had been raised in Italy; it is a question that I cannot understand.
What regiment is it that you went to Milan to settle the accounts of? When I went in the year 1814 the army of Italy had been disbanded; when I came from Russia the army of Italy had been disbanded; and I went to Milan on the 18th of February, and then passed to France.
Have you not stated that when you went to Milan in the year 1816, you remained there for the purpose of settling some regimental accounts? Yes, because the Austrian government had established there an express commission charged with that.
Was it in the month of November 1816, you were first introduced to her royal highness at Como? Yes.
How long have you known Pergami? I knew him then for the first time.
You stated that you afterwards saw her royal highness at Rome, was that the first time that you saw her royal highness after you had seen her at Como? This was the first time.
Where was it the proposition was made to you to join her royal highness's suite? It was at Pesaro, when I went there on the 11th of November 1817.
Who made the proposition to you to join her royal highness's suite? Her royal highness caused it to be said to me by her chamberlain Pergami.
Then it was Pergami made the proposition to you? By the order of her royal highness.
Was that what Pergami said to you at the time? Yes.
In what situation were you in her royal highness's suite, when you first joined it in 923 consequence of that application? I want to know whether the question is applied to my family, or to the service of her royal highness.
The question refers to the situation you were in in her royal highness's suite, when you first joined it? I had no fixed employment then.
How long was it then before you became chamberlain? It was on the 4th of November of the following year, 1818.
Did you continue with her royal highness from the month of November 1817, when the proposition was first made to you to join the suite, till the following month of November, without any particular employment? Yes, without fixed employment.
How long did you continue her chamberlain? Till last February.
Where was it you quitted her royal highness's service? At Rome How long have you been in England? About two months, or two months and a half, thereabouts.
Did you come to England alone, or in company with any other person? I came in company with count Schiavini.
Do you live in her majesty's family now? Her majesty has done me the honour to permit my being in the house, but I do not form a part of the family.
Have you been in the house of her majesty ever since your arrival in England with Schiavini? On the following day that I arrived in England with Schiavini, her majesty sent for me, and had the kindness to make me lodge in her house.
Did Schiavini come with you from Rome? No, he came with me from Pesaro; I went through Pesaro-to take him, and he came with me here.
When was it you went to Pesaro? When I came here.
Had you remained at Rome from the month of February, when you quitted her majesty's service, till the time you quitted it for Pesaro in your way here? Yes, in the country near Rome, on a small estate of my own.
Who paid the expenses of your journey to England? I believe it has been government, for I have been indemnified by the advocate of her majesty.
Whom do you mean by the advocate of her majesty? I cannot name them, because the count Schiavini, who has received the money, has given me my share; but I know that the money has come from them.
The Interpreter was asked whether the word avocato meant merely an advocate, and answered, that it referred to any person who had to do with the law—an attorney, a counsel, and sometimes a judge.
Who was the person who applied to you to come to England? Nobody has spoken to me on the subject, but I thought it my duty to write to the Queen when I heard that a process was making, as I saw from the newspaper of Lugano.
924 When did you see Pergami last? A t Rome, when I left the service of her majesty.
Have you seen him since? No.
You said that Schiavini paid your expense* here, or let you have money to pay them; have you received any thing besides your expenses for coming here? Nothing.
How much was it that you received from Schiavini? Eighty-five pounds sterling.
How long or how often were you at Como, in the month of November 1816? I was at Como once only.
You have been asked about her royal highness's setting out from Rome for Singaglia, and you have stated that Mr. Hownam and Vassali went upon that occasion, are you to be understood that they were in the same carriage? I have not said that I was on that journey.
You were understood to say, that you saw them set out? Yes, I did; they were in two separate carriages.
Who went besides Mr. Hownam and Vassali, what other persons? Those whom I have mentioned, and the two femmes de chambre of her royal highness, Mr. William Austin, Louis Pergami I think, and I remember no others.
Are those all that you recollect? Those I remember; I do not remember any others.
Was Schiavini one? Schiavini set out on the day after.
How many carriages accompanied her royal highness? I think two besides her own; two or three, but two I am certain of, I do not remember the third.
Do you know the courier Sacchi? I do.
Did you see Sacchi set out on that occasion? No.
Will you swear that Sacchi was not the courier upon that occasion one of the couriers? I did not see him; I swear I did not see him; I saw Carlo Forti set out, and I did not see other couriers set out.
What time did Carlo Forti set out? Together with the carriages of her royal highness.
Do you mean from the Villa Brandi, or from whence? From the Villa Brandi.
How often have you seen Sacchi at the Villa Brandi? Almost every time that I had the honour of going to dine with her royal highness.
Was Sacchi at that time one of the couriers? I do not know whether he was a courier of her royal highness, for I saw him dressed as a hussar.
Do you remember afterwards, at Pesaro, Sacchi being an equerry of her royal highness? When I went to Pesaro Sacchi was no longer there; he had left the service of her royal highness.
You have mentioned that there was a lady of the name of the baroness Aniajani, who was one of the ladies of honour of her royal highness at Rome; how long did she remain 925 one of the ladies of honour of her royal highness? During the whole time her royal highness staid at Rome.
Do you mean at Rome or at the Villa Brandi? At the Villa Brandt which is within the city of Rome.
Did she live in the house? She came every morning, and remained there during the whole of the day: I saw her always there.
You have mentioned the names of several of the Italian nobility who visited her royal highness at Rome, can you mention the names of any English ladies who visited her royal highness at Rome? On the days that I went to dine there I do not remember to have seen any; I have seen some of the Roman nobility, but I do not recollect to have seen strangers.
At Pesaro did you ever see any English ladies? No, I did not.
Did Louis Pergami dine at the table of her royal highness? Sometimes he did.
Did he not always dine there when he was at Pesaro? I did not see him always.
Do you know Pergami's sister Faustina? I do.
Did she dine at her royal highness's table? Never.
The mother of Pergami, was she at Pesaro when you were there? She was there for a little time.
When she was there, did she dine with her royal highness? Almost never, for she was always ill.
Did she ever dine with her royal highness? Yes, sometimes.
Do you know the wife of Pergami? I do not.
You have never seen her at Pesaro? Never.
§ Re-examined by Mr. Tindal.
§ You have been asked whether you ever saw the wife of Pergami at Pesaro, have you ever seen your own there? Never, she never came to Pesaro.
§ You have been asked, whether any English ladies visited her royal highness at Rome; do you know whether there were any English ladies of consequence at that time at Rome? I do not know.
§ What part of the year was it you are speaking of? 1817.
§ What part of the year, what season? In the months of June and July.
§ Is that the season when the Malaria prevails at Rome? It begins then, certainly.
§ You were asked whether at Pesaro any English ladies visited her royal highness; do you know of any English families being there? None.
§ Examined by the Lords.
Lord Ellenborough.—You say, count Schiavini left Rome the day after her royal highness, left for Sinigaglia; at what hour did he leave Rome? He set out on the following; evening, together with the equipage.
926 What equipage? All the articles of property that her royal highness had left behind; all the luggage.
Earl of Liverpool.—In what situation was Faustina in her royal highness's family? I think she was charged with keeping of the effects, of the linen j but it is a thing that did not belong to me, and I do not remember. I beg you will say to these noble lords, that I cannot know with certainty, because it was not my own department, and I did not go about inquiring into those details.
§ Earl Grey.—Were you acquainted with Sacchi before he entered the service of the princess of Wales? I had known him at Rome.
Did you know him when he was in the army of Italy? Never.
Earl of Lauderdale.—Where did yon see the Lugano newspaper that first informed you of the proceedings against herroyal highness? At Rome.
§ The Witness was directed to withdraw.
§ Ordered, that the further consideration and second reading of the said bill be adjourned to to-morrow morning ten o'clock.