§ 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, ?" and for hearing Counsel for and against the same,
§ Earl Greyaddressed their lordships to the following effect:—My lords, as we may now entertain a hope that we approach the termination of the proceedings which have consumed so much of our time, whether for good or for evil, this is not the proper opportunity for remarking, I think it right to call your lordships' attention to a point which I propose to bring under your consideration at the most convenient period for that purpose, which will probably be immediately after the conclusion of the case. If your lordships will refer to the 373rd page of Phillipps's "Law of Evidence," you will there find the following passage:—"As informations, when judicially and regularly taken, are evidence against the prisoner, if the informant dies before the trial; so, on the other hand, where the informant himself gives evidence, the informations may be used on the part of the prisoner, to contradict his testimony. One of the objects of the legislature in passing the statutes, was, to enable the judge and jury, before whom the prisoner is tried, to see whether the witnesses at the trial are consistent with the account given by them before the committing magistrate. Thus, it was admitted in lord Strafford's case, that the depositions of a witness, taken before a justice of the peace, might be 1018 read, at the desire of the prisoner, in order to take off the credit of the witness, by showing a variance between the depositions and the evidence given in court vivâ voce" It seems to me, my lords, to be extremely important, considering the testimony which we have heard at our bar, and the nature of that testimony, that those examinations should be produced to us, on which the previous proceedings were founded. As the testimony which we have not heard may not correspond with the original testimony of the same witnesses, it appears to me to be of the highest importance to the interests of justice, that before your lordships come to any decision, you should have in your hands the testimony which the witnesses whom we have heard at our bar, gave on oath, previous to the investigation that took place before your lordships' secret committee. According to Mr. Phillipps, it is the usual practice for the Judge, in the ordinary courts, to have the depositions of the witnesses in his hands, that he may compare them with the subsequent evidence of the witnesses given before him; and it is further stated by Mr. Phillipps, in the passage which I have just quoted from his work, that it is the right of the Judge to call for the reading of such depositions, if he like to do so. I am perfectly aware, my lords, that the witnesses to whose depositions I am now alluding, were not examined in the particular manner to which Mr. Phillipps's observations refer. I am aware, that their examinations were not taken in the mode which he describes, namely, before a magistrate. But I think it will hardly be contended, that, because those examinations were not regular and judicial, but were, on the contrary, irregular and extra judicial, therefore, the depositions of the witnesses, depositions on oath, and laid before the secret committee appointed by your lordships, were not so taken, or under such solemn sanctions as will warrant their being produced to your lordships, if a suspicion should arise that a material difference exists between those original depositions, and the evidence subsequently given at your lordships bar. Into this I will not now enter; I have stated what I have just done merely to direct your lordships' attention to the subject. At the period at which I shall make the proposition which I have described, I will detail my sentiments more fully; but I thought it only fair and candid, on a 1019 point of such extreme importance, and one to which your lordships will, no doubt, wish to devote much serious consideration, to declare what I consider it will be absolutely necessary that we should do, for furthering the ends of substantial justice, and to intimate my intention, after the conclusion of the business immediately before us, and before we come to the consideration of the evidence, to submit to your lordships a motion on the subject.
The Lord Chancellor.—When your lordships separated yesterday, a question had arisen as to an application made by the attorney general to stay proceedings in the important case before us. Your lordships determined that you would take until this morning to consider the subject. With a view to forming my own individual opinion on the question, which opinion I am now about to state to your lordships, I have read through the whole of the Minutes of Evidence as far as they relate to colonel Browne. In the first place, I repeat that which I yesterday said, that the attorney general could do no other than prefer the request which he preferred to your lordships, and that if he had not done so, he would not have done his duty. In the second place, I also certainly think, that it was exceedingly right and proper on the part of the counsel for her majesty to resist the application so made. My lords, it has been my endeavour, since we separated, attentively to consider the evidence in question, simply and purely with reference to what is required by justice. My own individual opinion is, and it is the opinion by which I shall of course be myself governed, that considerations of justice do not require the delay that is sought from us. The grounds on which I have formed this opinion are these. Referring to all the evidenced support of the bill on the Minutes which relates to colonel Browne, and looking merely at the matter of that evidence, I do not think that we should do justice if we stayed our proceedings. But, in addition to the opinion, that the matter of that evidence does not warrant our staying proceedings, I am also of opinion, that if the matter of that evidence did make it fit that colonel Browne, should be called to the bar, yet, recollecting, that that evidence was given two months ago, it appears to me, that it would not be doing justice to her majesty, even, as I have said, if the matter of the evidence were not that which I consider it to be, to con- 1020 sent to any further delay in so solemn a case as this before your lordships, colonel Browne not being here, as he might unquestionably have been. I have also looked carefully at the case as it has been stated at your lordships bar. I use the words, "as it has been stated at your lordships bar," because it may become a subject of controversy how far some of that case may be entitled to the character of evidence. I find but the evidence of two persons whose testimony (if it is testimony that deserves credit) is applicable to colonel Browne at all. Looking at what has been stated at your lordships bar, and at the evidence of those two persons (with the credit which appears to me to be due to them), I do not think it necessary, as far as my individual opinion goes, and I do not think that it would be doing justice to her majesty, to grant the delay which has been applied for. If your lordships should be pleased to adopt my opinion, counsel must be called in and informed, that it is your lordships pleasure they should now proceed. On the other hand, if your lordships reject that opinion, counsel must be called in, and informed, that it is your lordships pleasure to grant the required delay. If, however, a question should arise on the latter proposition I, for one, will certainly not agree to it.
The Earl of Darnleyperfectly concurred with the noble and learned lord. If the proceeding were to go on at all, the opinion which that noble and learned lord had adopted on the particular point at issue, was certainly the one most consistent with justice. He repeated, that if the proceedings were to go on at all, the proposition made by the noble and learned lord was indisputably that which their lordships ought to adopt. But what he had risen for was, to state his astonishment with reference to the particular part of the evidence to which the noble and learned lord had alluded, that no individual, even on the ministerial side of the House, and he in his conscience believed, that there were many individuals on that side of the House who agreed in opinion with him on the subject, had risen and proposed an immediate termination of the business. He would take the present opportunity of entering his solemn protest against any further proceeding, on three grounds, any one of which, if their lordships were really determined to do that substantial justice of which the country had heard so much, ought, in his opinion, 4o induce them to 1021 put an extinguisher on the whole case. The first ground was, the difficulties which had been thrown in the way of her majesty's counsel following up the clue of the conspiracy which they had opened, and of the false witnesses called in support of that conspiracy. The second ground was, the abstraction of that important witness, Restelli. The third ground was, the impossibility of procuring the attendance of baron d'Ende; who would have been a most material witness for the defence. Any one of those grounds would alone be sufficient to justify an abandonment of the proceedings. The three taken together were, in his opinion, irresistible.
§ Marquis Camdenconcurred with the noble and learned lord on the woolsack, that under all the circumstances of the case, the House ought not to adjourn. He had thought it his duty, from his having had the honour to form an acquaintance with colonel Browne, to look carefully into all the evidence that affected his character; and having done this, though he thought it very hard upon colonel Browne to be denied an opportunity of vindicating his character before that assembly he could come to no other conclusion; and, in his judgment the House could pursue no other course, than that which had been recommended to them this day. He was the more confirmed in this opinion, as he understood, from what had passed in some of the discussions which had taken place, when several attacks were made on colonel Browne, that at some future time an inquiry could take place into the facts charged against that individual. For colonel Browne, he must say, that he knew him to be a gallant officer, and an honourable man. He had seen a great deal of service, had been 14 years a subaltern, and had been wounded in action not fewer than six or seven times.
Lord Hollandthought nothing could be more clear than this, that the proceedings ought not to be suspended on account of colonel Browne. He must also say, that he could not consider it proper that their lordships' should enter into any discussion on colonel Browne's merits. Colonel Browne might be a very deserving officer; but if it were right for any noble lord to pronounce a long panegyric on his services, it might be permitted to another to state what he thought of the conduct of colonel Browne in certain transactions as they stood on their lordships' Journals. 1022 From indulging in any comments on the part which colonel Browne appeared to have acted, from the evidence given at their bar, he should for the present most carefully abstain; but he thought the friends of colonel Browne ought to be equally careful not to make him the subject of their panegyrics.
The question was then put and agreed to.
Counsel was accordingly called in; and the Counsel in support of the bill were informed by the lord chancellor, that the House does not think fit to grant the delay proposed, but that it is the opinion of the House that they should now proceed.
Then Captain Thomas Briggs was again called in, and further examined 'by Mr. Attorney-general as follows:
You have stated, that you commanded the Leviathan at the time that her royal highness was on board that ship? I have.
Do you remember lieutenant Hownam being on board that ship with her royal highness? I do.
You have stated, that Pergami also was on board that ship? I have.
Do you recollect having any conversation with lieutenant Hownam upon the subject of Pergami?
Mr. Brougham stated, that he felt himself entitled to object to this evidence, but that he waved the objection.
The question was proposed.
I do.
Was it a conversation about Pergami's being admitted to a seat at her royal highness's table? It was.
State what lieutenant Hownam stated to you upon that occasion? I observed to lieutenant Hownam in a conversation, that captain Pechell had told me that Pergami stood behind his chair when the princess was embarked on board the Clorinde frigate, and I asked how it was that he was now admitted to her royal highness's table? upon which he replied, that he was sorry it was so, he was sorry the princess had admitted him, that he had entreated her on his knees, and with tears in his eyes, not to admit him to her table, but to no purpose.
Did he state to you when this happened? No, he did not state the immediate time.
Do you recollect whether he said any thing upon that subject at that time? I understood—
Mr. Brougham objected to the answer.
What did he state? I recollect that he intimated to me—
Mr. Brougham objected to the answer.
1023 To the best of your recollection what did he state? To the best of my recollection he told me it was the day in which the situation of Pergami was changed, that is to say, the very first day that Pergami dined with her royal highness at table.
Cross-examined by Mr. Brougham. When did this conversation on board the Leviathan happen? It happened when the ship was on her voyage between Port Ferrajo and Palermo.
What year was that? In 1815.
What time of the year? The month of November.
Who was present at the same time? I do not recollect that any one was.
Try and recollect? We were in conversation together walking the deck, Mr. Hownam and I, as we occasionally did after I became acquainted with him.
You frequently used to walk with him on the deck, talking on various subjects? Occasionally, not very frequently.
It is not meant every half hour? No, not every day.
Occasionally? Yes.
You do not mean to represent this as the only conversation you had with lieutenant Hownam? No.
Neither before nor since? No.
Had you frequent conversations with him since that? Yes.
You have seen him since? Yes, he came down to me from Brandenburgh-house, and wanted to find out the nature of the testimony I meant to give here, on which I declined having any conversation with him on the subject; it was about seven in the morning he came to Portsmouth; on his taking his leave of me, he said, he should feel obliged if I would tell him whether any alterations had been made in the cabins of the Leviathan, for that he did not recollect that there had been any; upon which I expressed my surprise, and brought to his recollection that alterations had been made, and made in his presence; he took his leave.
In short he had forgotten the circumstance you are now mentioning? I presume so.
You mentioned something to him about captain Pechell and Pergami; captain Pechell had made some difficulties; had he not some objection to her royal highness having Pergami sit at table on board his ship? He positively would not sit down with Pergami; no objections to her royal highness at all, but to Pergami.
He positively refused to permit Pergami to sit down? I never heard him.
That was the subject of your conversation with lieutenant Hownam? No, the subject of my conversation with lieutenant Hownam was, that he had stood behind the chair.
Were you not talking, upon that occasion, with lieutenant Hownam, about the reason which had induced captain Pechell to refuse 1024 to allow Pergami to sit down at his table? No.
I understood you to say, you began by saying that captain Pechell had said to you that Pergami had stood behind his chair? Yes. Did you not say so? Yes.
Therefore you were talking about captain Pechell and Pergami? We were.
And you were mentioning an observation captain Pechell had made to you about Pergami? I was.
And that observation operated as a reason why captain Pechell did not like Pergami to sit down at table with him, did it not? I cannot say it did, because it was long afterwards that captain Pechell objected to sitting down with him; it was not at that time, it was after captain Pechell met the princess the second time, which was at Messina.
Did you make any note of this conversation at the time it happened? None whatever.
And you are now speaking as to what you recollect at a distance of five years? I have a perfect recollection of that conversation.
When did you first repeat it again to any body? I believe I have mentioned it several times in conversation.
Do you recollect any one of the times? I recollect it was brought to my particular remembrance from a letter I received, desiring to know whether such conversation had taken place.
About what time was that? I suppose about seven or eight weeks ago.
While this proceeding was going on? Since the House met the first time.
When did you first mention it after that you say that brought it to your recollection? I wrote it in answer. I was called upon to say whether such conversation had happened, and I wrote that it had happened, that it was true.
You say that letter brought it to your recollection? I did not mean that; the fact was never absent from my recollection at all.
It was never absent from your recollection a moment? I remember the conversation perfectly well, and have always remembered it; and when I was written to, to know whether such a conversation had taken place, I answered it, saying it had.
You say it was always in your recollection.; will you name any other person to whom you mentioned it before that letter was written, seven or eight weeks ago? I have mentioned it once or twice; I mentioned it on several occasions; I perhaps could name who were present when I have mentioned such a thing; I remember once having told sir George Cockburn it had happened.
You mean one of the lords of the Admiralty? Yes, that is some time ago.
How long ago? I am at a loss to say; but I dare say many months ago, as many as four or five; but I had mentioned it long before I knew I was to mention it in this House.
1025 Sir George Cockburn bad been asking you some question upon the subject, had he not? No.
You began the conversation? We were talking; I forget what led to my mentioning it; I remember the tact of my mentioning it to him; I declare I do not know what led to it.
You have had the honour of dining with the King lately, have you not? I have, when he was at Portsmouth.
Since you were last examined in this House? Since I was last examined in this House.
Re-examined by Mr. Attorney General.
Have you the command of the guardship at Portsmouth? I have, the Queen Charlotte.
And had at the time his majesty was there? I had.
Did you, when you dined with his majesty, dine in company with other officers who had paid their respects to his majesty at Portsmouth? Yes, all the navy who were at Portsmouth; every one of the captains, without exception.
Examined by the Lords.
§ Earl of Morley.—When the conversation took place between yourself and lieutenant Hownam, did any thing pass which indicated the period or place at which Pergami first dined with her royal highness? No.
Can you take upon yourself positively to swear, that the words spoken by lieutenant Hownam were, "I had gone down upon my knees to implore her royal highness so and so," and not the words, "I could have done so"? I understood him to have said, he had entreated her royal highness upon his knees, and with tears in his eyes.
§ Earl of Darlington.—You were understood to say, you had kept no memorandum of the conversation that passed at that period between you and lieutenant Hownam; you were also understood to say it was in the month of November in the year 1815, being now five years since the conversation passed; have the goodness to say whether you think that you can recollect private conversations that have passed five years since, common conversations between you and another? Generally speaking, I cannot; but I have a perfect remembrance of that, from the circumstance of having called his attention to what captain Pechell had told me.
§ Earl of Morley.—Did lieutenant Hownam or not state to you, that the first time at which Pergami dined at the table of her royal highnes, it arose from circumstances that occurred accidentally at the moment, or in consequence of the previous arrangement? I understood him to be giving an answer to a question I had asked him, and I understood it to have happened on the day the change took place from his being a servant to becoming a companion.
1026 The Witness was directed to withdraw.
Mr. Attorney Generalstated, that as the case now stood, he should not trouble the House with any more witnesses.
Mr. Broughamstated, that it naturally arose for him to say, whether he had any evidence in rejoinder to give in this case, to rebut any thing which had now been proved, and that under the circumstances in which he was now placed, he had no evidence to tender.
The Duke of Somersetexpressed a wish, before the counsel for the Queen summed-up, that he might be allowed to recall lieutenant Hownam.
The Earl of Liverpoolsaid, that as this might be opening a wide field of inquiry, it would be well if the noble duke would state the reasons on which he grounded his proposition.
The Duke of Somersetsaid, that the purpose for which he wished Mr. Hownam to be recalled was, to examine him more particularly as to the incident of the tent on board the polacre. He thought that he might possibly be able to explain the arrangements in the interior of the tent, in a clearer manner than had been yet done.
The Earl of Liverpoolsaid, he had not the slightest objection to lieut. Hownam's being recalled, nor would he now enter into any argument with reference to the right of noble lords to recall him. He wished, however, to call their attention to what this new re-examination must naturally lead. If one witness were recalled, to state more particularly any minor facts, all the witnesses might be recalled for the same purpose; and yet, if they were all to be recalled, their authority would be no greater than it was before. He begged leave, therefore, to suggest to the noble duke that it would be better, both for the sake of convenience and of regularity, that the examinations which had been closed, should rest where they did at present.
The Marquis of Lansdownperfectly concurred in the observations of lord Liverpool. If the proposed course were to be pursued, every witness might be recalled who had not clearly and conclusively established any particular fact to which he had been interrogated. He was sure the noble duke would abstain from a course which might be productive of such inconvenience.
The Duke of Somersetdid not wish to 1027 occupy the time of the House unnecessarily, but on the points which he had mentioned, it appeared to him that the evidence of lieutenant Hownam was not sufficiently clear. In consequence, however, of what had fallen from the two noble lords who had preceded him, he had no objection to withdraw his motion.
Earl Grosvenor, for the same prudential reasons, declined making a similar application for the like object.
Cries of "Go on, go on", proceeded from various parts of the House.
The Lord Chancellorasked, whether her majesty's counsel were ready to proceed in summing up the case?
Mr. Broughamanswered, that he understood from his learned friend, Mr. Denman, that he was now ready to proceed, in order to save the time of their lordships.