§ The House having been called over,
Lord Kenyonmade the motion of which he had given notice yesterday. He thought that, considering the agitated state of the public mind, the fullest explanation ought to be given on this most important topic. He then moved for "Copies of all Communications which have taken place between his Majesty's government, and her Majesty's legal advisers, touching pecuniary supplies; together with an Account of all Sums of Money furnished from the Treasury for her Majesty's use, since her arrival in June last."
Lord Kingdisliked the motion, because it only went to disclose the expenses which had been incurred on one side. He thought it right that the whole transaction should be known to the House in all its particulars. It was evident, from the testimony of several of the witnesses at the bar that large sums of money had been paid or promised on this occasion. It was, important that the House should know on what authority those sums had been promised or paid, and from what funds they had been taken, or were yet to be drawn. It would be satisfactory also to know, if any estimate had been made before hand. He alluded to the case of Warren Hastings, wherein such an estimate had been given, though the eventual expense far exceeded it. No doubt the money spent and to be expended on the present occasion, would be a sum of great magnitude and it would be well for their lordships to be informed of it. The object of the motion proposed was chiefly to secure the furnishing of proper means to the Queen for her defence. No question but that in appearance, her majesty would be most amply supplied; but would those means be all furnished? Government would, perhaps, give directions to ministers and ambassadors on the continent to give all facilities to the Queen's agents, and advance the necessary means. But upon application to those ministers, it might turn out that there was a double entendre in the orders given for that purpose. The object of the motion was a very proper object. But it would be much better, if it were so shaped, as to bring the whole expenses of the transaction before the House.
The Earl of Liverpoolhad no difficulty in agreeing to the motion of the noble 1296 baron, as it stood on a specific ground. As to the expense of the whole proceeding, there would be no difficulty on the part of government, at the proper time, to lay the accounts before parliament. At present he thought it would be most inconvenient and improper to call for those accounts.
The Lord Chancellor put the motion, adding after the words "legal advisers" the words "and agents." A division took place. The numbers were, Contents, 133; Non-contents, 73.
The Earl of Darnleythen observed, that as an account of the pecuniary advances to the queen, with a view to enable her majesty to prepare for her defence, was to be laid before the House, he thought it also desirable that the House should be informed of all the expenses which had been incurred from the outset of this unfortunate business. He should therefore move for "An Account of all Sums of Money expended in the Inquiry relative to her Majesty the Queen since the time of her leaving England, in 1814."
§ The Earl of Essexobserved, that he should vote for the motion, but if the noble earl opposite would give a pledge, that at a future period he would lay before the House the whole of the expenses incurred in this business, including that of the Milan commission from its first establishment, he would advise his noble friend to withdraw his motion.
The Earl of Liverpool, in the fullest and most explicit manner, said, he would do so when the business was concluded, adding, that it would be inexpedient to make such a communication at present.
§ The Earl of Darnley withdrew his motion.
§ The order of the day being read for the farther consideration and second reading of the bill of Pains and Penalties against her Majesty; and for hearing counsel for and against the same,
§ Counsel were accordingly called in.
The Lord Chancellorrecapitulated what had taken place yesterday at the close of the proceedings, and the question which had been raised on the examination then in progress. He had considered the subject, and would move, that the following Questions be proposed to the learned Judges:
1.—"If upon the trial of an action brought by A. (plaintiff) against B. (defendant), a witness examined on the part 1297 of the plaintiff, upon cross-examination by the defendant's counsel, had stated, in answer to a question addressed to him by such counsel, that at a time specified in his answer, he had told a person named C. D. that he was one Of the witnesses against the defendant, and being re-examined by the plaintiff's counsel, had stated what induced him to mention to C. D. what he had so told him, and the counsel of the plaintiff should propose further to re-examine him as to the conversation between him and C. D. which passed at the time specified in his former answer, as far only as such conversation related to his being one of the witnesses, would such counsel, according to the rules and practice observed in the courts below with respect to cross examination and re-examination, be entitled so further to re-examine such witness; and if so, would he be entitled so further to re-examine as well with respect to such conversation relating to his being one of the witnesses against B. as passed between him and C. D. at the time specified, after he had told him that he was to be one of the witnesses, as with respect to such conversation as passed before he had so told him?
2.—"If upon the trial of an indictment against A. a witness examined on the part of the Crown, had stated upon cross-examination by the counsel of A. in answer to a question addressed to him by such counsel, that at a time specified in his answer he had told a person named C. D. that he was one of the witnesses against A., and being re-examined by the counsel for the Crown, had stated what induced him to mention to C. D. what he had so told him, and the counsel for the Crown should propose further to re-examine him as to the conversation which passed between him and C. D. at the time specified in his former answer, as far only as such conversation related to his being one of the witnesses, would such counsel be entitled so further to re-examine him; and if so, would he be entitled so further to re-examine as well with respect to such conversation relating to his being one of the witnesses against A., which passed between him and C. D. at the time specified, after he had told him that he was to be one of the witnesses, as with respect to such conversation as passed before he had so told him."
§ The Questions were delivered to the Lord Chief Justice, and the learned Judges requested leave to withdraw.
1298§ During the absence of the learned Judges,
Mr. Broughamsaid:—Perhaps your lordships will allow me to perform a very painful duty; but one I owe to the profession, and I may say to the court. My lords, I am unwilling at all times to complain of any use or even any abuse, if it is kept within ordinary limits, of the press; but as a minister of this court, in which I have the honour to practise, I think there are some bounds which ought to be prescribed, and which I humbly submit to your lordships, for the purpose, not of punishment, but of warning and hint for the future; and I am sure there will be on all sides of the bar a most ample disposition to concur in the propriety of this proceeding. My lords, in giving the evidence which passed yesterday, one of the morning papers of this day has made the following most gross, and I will add, flagitious mis-statement—flagitious, because no man who heard it could think that any thing like what was said, is what was here given, and the motive and purpose of altering it is equally apparent. The question asked was—"Did any conversation take place between the witness and Marrielti, relative to his being a witness against the Queen?"—The pretended answer—"When he told Marrietti that he was going as a witness against the princess, Marrietti told him that Mr. Brougham, brother to her royal highness's counsel, had said he would bestow favours on those who would not go, "charging that honourable relation of mine with tampering with witnesses, and imputing an offence to him which must, my lords, if you have privileges, suspend this inquiry, until you shall have called that person to the bar, or at least his agent Mr. Marrietti, and have dealt with him, as a person 'deserves to be dealt with who dares to tamper with the witnesses before your lordships bar. My lords, there was nothing like this said; it was only said, that that person had been with Mr. Marrietti that morning, and had desired him to go—I do not believe even that was said—but that he had been with the witness, and as he, Mr. Marrietti considered himself to be under some obligations to me, then he was going to say something else, obviously that he then came to ask what Sacchi had to say upon the subject. I put it to any man who hears this read, whether a more gross, more scandalous, or more flagitious misstatement ever was made of a proceeding in 1299 a court of justice; and if any motive were wanting to make me most earnestly hope that the opinion of your lordships and the learned judges might be such as to enable the evidence to be gone into, which I, not knowing the extent of human malignity and misconstruction, did, for the purpose of regularity, object to, that is supplied, and I now waive all objections, and most earnestly desire the whole of this matter to be probed instantly to the bottom, in whatever way your lordships may think most consistent with your privileges. And if the charge is meant to be made against me, for the purpose of fixing the Queen, I, who never saw Mr. Marrietti since November last, and know nothing about what he has been doing, waive my privilege of parliament, and do implore your lordships to inquire into my conduct, and to deal with me as you would by any other witness not having the privilege of parliament. The only thing I am apprehensive of, is your lordships not going into this inquiry fully. I will only add, if any corroboration is necessary of the total falsehood of this report, that I have put into the hand of one of his majesty's ministers, who has taken a very active part naturally on this subject, a letter from Mr. Mariettas father to his own son, in which the circumstance of young Mr. Marrietti having gone to Sacchi was mentioned: and I am not sure that this communication having been made by me is not the very ground of this matter being brought forward—that letter was, to complain of colonel Brown having threatened Mr. Marrietti with being sent out of the country under the Alien Bill, and the noble earl immediately relieved that young gentleman's fears. I only mention this to show, that I was the person who told lord Liverpool, by showing this letter, that Sacchini had been gone to by young Marrietti, as Mr. Vizard had a right to go to him, or to any others, to see what evidence they had to give, and as the lords of the Admiralty sent for two of the Queen's witnesses, as they had a right to do, being sea officers, to ask them what evidence they had to give. The paper he had alluded to was the Morning Post.
The Attorney Generalsaid, that his learned friend had gone much further than he was warranted; for his observations went to charge him with having held some communication relative to Marrietti with his majcsty's government. He never heard, however, of the facts till they came 1300 out upon Sacchi's examination by his learned friend. He was then informed, through a channel which it would be improper for him to mention, of that which led him to suppose, that it might be important to have the whole of the matter sifted to the bottom. His learned friend should be a little more cautious how he imputed to him the holding any communication: with the earl of Liverpool on the subject; which he could assure the learned gentleman never took place. With respect to the conduct of the press, his learned friend had produced that which by no means corresponded with the statement of the witness at the bar, and to that he should have confined himself.
The Earl of Liverpoolfelt it material that he should state how the matter of fact stood. It was perfectly true, that the learned counsel did, with great courtesy, about three evenings ago, send him such letter and representation; and he (the earl of Liverpool) took the liberty of stating to the learned counsel immediately, that there was not the smallest foundation whatever for what had been said about any liability of M. Marrietti's being sent out of England; and informing him that he might assure M. Marrietti, the son, that he had full protection of the government, for any thing which he might do in this case. He had felt it his duty to communicate the point to another person in office, in order to ascertain the correctness or otherwise of the fact; and to M. Marrietti, the father, the proceeding he had taken, in order that he might be aware of the circumstances in which he was placed, if any such thing (which he did not believe) had been really said. But he thought it also his duty now to state, that he never had any communication, personal or direct, with the attorney-general on the subject; if he had any knowledge of the fact, it must have been through other channels.
Lord Melvillesaid, that it having been stated, that the lords of the Admiralty had sent for two officers of the navy, in order to put questions to them, he should wish to state what was the real case, and with what view any proceeding of the kind had taken place. It did so happen, that with a view of bringing forward evidence, as to the residence of persons in different parts of the world, the professional gentlemen retained in support of this bill, had from time to time made applications to the Admiralty, to know where certain individuals 1301 in the navy resided, and where they were to be got at. In acceding to those applications, the lords of the Admiralty had done no more than their duty. He would go farther, and say, that if any' applications of a similar nature had been or should be made by the professional gentlemen retained against the bill, their lordships would feel it to be equally their duty to comply with them. It also so happened, that one of those persons whom it was wished to produce at their lordships' bar in support of the bill, was an English seaman, in his majesty's service, and had been on board of a certain polacre, of which noble lords had heard so much. Within these few months the same man was on board one of his majesty's ships. This had been ascertained by reference to the naval department; but what had become of him since was not known. He had no hesitation in saying, that it had occurred to him to send for two British naval officers, who were also on board the polacre, thinking that they might happen to know where that seaman could be found. He therefore felt it his duty to desire, that they might be sent to the Admiralty in order to be asked that single question. That single question was all they were asked: at least he might take upon himself to state, that the person or persons who saw them, unless they had acted quite contrary to his instructions, had done no more.
§ Lord Erskinesaid, he was satisfied the counsel meant no insinuation as to the fact which had been so satisfactorily explained. The learned counsel had, with a very natural feeling, consented to withdraw his objection to the question, which had been put on account of the insinuation made against himself. He (lord E.) however, could not consent that the rules of evidence should be departed from on account of that insinuation.
The Lord Chancellor.—It certainly does appear, from the short-hand writer's notes, that the publication which has been complained of, is by no means consistent with the evidence which was given. My lords, with respect to representations and misrepresentations which are found in the public prints, I trust your lordships will excuse me if I take the liberty of saying, that if you throw aside your privileges with reference to such publications, you must insist on their being minutely correct. My lords, what it may be fit hereafter to do, with respect to some publica- 1302 tions that have gone forth to the world with reference to this matter, is, perhaps, that which may hereafter be brought under your lordships' consideration—whether it will be expedient at present is another question.
After some time, the Learned Judges returned; when the House being informed that the Learned Judges differed in their Opinion as to the Answer to be given to the Questions proposed to them, they proceeded to deliver their Opinions seriatim.
Mr. Justice Richardson—
My lords; two questions have been proposed by your lordships for the opinion of the judges. The first question is in these words: "It upon the trial of an action," &c. [Here the learned judge read the first question]. The other question proposed by your lord-; ships for the opinion of the judges, states the same question in reference to a criminal proceeding; My lords, this question I feel my self entitled to answer in the negative, namely, that the re-examining counsel would not be entitled, by the rules and practice observed in the courts below, in respect of cross-examination of witnesses, to examine to the extent of the conversation alluded to; and I think there is no difference, in this respect, between a civil proceeding and a criminal proceeding.—My lords, I abstain from staling to your lordships at length the reasons which have induced me to form this opinion, because I am aware those reasons will be stated in detail by the lord Chief Justice of the court of King's-bench, and that it would therefore be a waste of your lordships' time.
Mr. Justice Best.—
My lords; I assure your lordships, with the greatest sincerity, that I never before rose in the state of embarrassment I now feel. I air. embarrassed because I feel myself to differ from all those whose opinions I respect. But, my lords, short as the time has been, during which I have filled the office of a judge, I have learnt, that if to form an accurate opinion is the first part of my duty, to declare that opinion, without regard to the opinion of others, is the second.—My lords, I feel myself bound to answer these questions in the affirmative. I cannot myself discover any difference between the two questions, namely, that which relates to criminal and that which relates to civil proceedings; because I have always understood (and if I had time I would have furnished myself with a case to show that to your lordships), that the rules of evidence are the same in civil and in criminal proceedings.
My lords; the rules of evidence are formed with a view to the attainment of the truth: they must be the same, whatever the practice may be; therefore I give precisely 1303 the same answer to the question relative to an indictment, that I give to the question relative to a civil action. My lords, the question is this: "If upon the trial of an indictment against A. a witness examined on the part of the Crown had stated, upon cross-examination by the counsel of A. in answer to a question addressed to him by such counsel, that at a lime specified in his answer, he had told a person named C. D. that he was one of the witnesses against A. and being re-examined by the counsel for the Crown, had stated what induced him to mention to C. D. what he had so told him"—My lords, some difficulty may, perhaps, arise upon the wording of this part of the question; but I think that difficulty may easily be got over—it may be taken to be the meaning of your lordships, that the witness at this time is supposed to have declared all the motives which led him to give that answer. My lords, he might have at that time stated all which occurred to him as to what were his motives, and yet the answer given by the person to whom that expression was used, might have brought to his recollection other motives which did not at the instant occur to him. Your lordships will see this from the experience you have had in this place upon this trial. If the witness is stopped, the administration of justice must consequently fail—motives may be extracted from witnesses by questions subsequently put to them that did not occur when the previous question was put. And, my lords, for one, I feel that great mischief would be produced in the administration of justice—that often criminals would be placed in a dreadful situation, and witnesses in a most tremendous situation—in such a situation, that hardly any one would endure to be examined as a witness, if, at the moment that certain motives were got out, all inquiry was to be stopped, and no further questions were to be permitted which might lead to a full statement of his motives. I feel it my duty to state on that ground, that the examination should be proceeded in, in order to give to the witness an opportunity of stating, whether any other circumstances operated upon his mind, to induce him to make that disclosure. But my judgment is not formed upon that—I rest my opinion upon this broad ground, which I have always understood to be the practice of all the courts of Westminster-hall, that when you receive a part of a conversation, you must and ought to receive the whole, and that, in my opinion, no cause would be safe, and more particularly no witness would be safe, if the whole is not received. And I think, as a judge, that it is not only my duty to do justice to the parties, so far as I can, but to do justice to the witness, who, by becoming a witness, places himself under my peculiar protection. I think, therefore, that I am bound to give him an opportunity of stating all that passed at the time, for the purpose of his going out of court 1304 with the same character as that with which he entered it, and in a complete state of protection against any proceeding that may afterwards be. instituted against him; and, my lords, I do not sec how this is to be done unless the whole of a conversation is stated. My lords; there are two cases which occur in the course of examinations to conversations—one is the examination as to a conversation with the party, and the other is the examination as to a conversation with the witness. The effect of those conversations upon the cause is extremely different; a conversation with a party is evidence directly upon the issue in the cause.—If a party has said so and so, that is to be used for the purpose of proving the case against him. A conversation with a witness is not evidence directly upon the issue; it is evidence only to the credit of that particular witness. But, my lords, the rules by which the examinations in the one case and the other are to be governed, in my opinion, are the same, and must of necessity be the same. Now, my lords, there is no man will deny, that if a witness be asked, what a party in the cause has said, the whole which that party has said must be received in evidence, though part of what he has said may make directly in his favour; and the counsel who puts that question exposes himself to that consequence at the time he puts the question. In that case it would be made directly evidence in the cause upon the issue; but with respect to that said by a third person to the witness, it is no otherwise material, than to enable the court afterwards to judge upon the degree of credit to be given to that witness, and it is the duty of a judge, to say to the jury, supposing an examination to take place on a question of this sort—"Be so good as to remember, that that which has passed in this conversation is no further material, than as it tends to destroy or support the credit of the witnesses." He will not treat any of the facts stated in that conversation as facts proved in the cause; but, that duty being performed, in common sense and in common justice, I conceive the law is the same in both cases, and in both the whole of the conversation must be heard. My lords, if that be so, not merely that which preceded the declaration of the witness explaining his motives, but that which he said afterwards, must be received; because your lordships are to judge from the character and complexion of the conversation, and that which has been said immediately after, may be most material to explain that which has passed before. I do not myself comprehend how a conversation passing between two parties can be perfectly understood, unless you hear what both parties have said; for, unquestionably, that which I should say would be better understood by hearing the answer; the immediate answer of the person with whom I conversed, explains how he under-stood me at the time; and therefore you do 1305 not do justice to me, if you receive that which I said, if you refuse to receive that which that person said in answer to me.
My lords; I would wish also to state this to your lordships; it may be said, if the motive be fairly got, what reason can there be for going further? and it may be urged, that it would be laying down a dangerous rule to say, that what may be got out afterwards cannot be material—that when a witness has said, "I am a witness in the cause," any thing which passed in a subsequent conversation, cannot be material either to explain or do away that in any manner whatever. But, my lords, is there any man, accustomed to the administration of justice, who will be bold enough to say, that he has not five thousand times seen and heard that stated, as to which he has not at the moment seen that any thing said afterwards could explain or do away the effect of it, but which he has afterwards heard explained by what passed afterwards, so as to show that the words bore a very different meaning from that which they would -appear to bear without that subsequent information? If that be so, it appears to me, it would be doing the greatest injustice to the witness to refuse to hear it, and that we proceed upon principles which do not obtain the truth of the case, if the whole of the conversation is not to be heard; and that a conversation is to be examined into in the same way with respect to a witness, as where it has taken place with a party.
My lords; it was very shortly since, that this question was submitted to me. I do not believe, however, that, if I had had more time, any authorities would have been found to support the opinion; because, from the manner in which these things pass in a court of justice—I am not aware that any judge was ever called upon yet, to decide the question; I believe this is the first moment that the subject has been brought under the consideration of a judge—because, in general, in the courts below the questions are so put, that it is not necessary for judges to decide points of this sort, but another question is immediately put which saves the necessity of deciding upon it.
My lords; no man can venerate any part of the law more than I do, or feel a greater respect for the laws as they are administered; but my conscientious opinion is, that the rules in the courts are too narrow—that they exclude too much. I am desirous that these rules should not be narrowed, but be extended as far as they can consistently with the principles which have received the sanction of the most learned and eminent judges. I therefore think, that if the point occurred in a court below, I should certainly feel it my duty to hear the further part, in order that I might judge of its materiality and application; but feeling myself bound to tell the jury, that they were not to act upon the facts stated in that conversation as facts proved, hut to con- 1306 sider that which was stated only with reference to the credit of the witness. I have felt it my duty to state the opinion which I entertain; feeling it a great misfortune to be under the necessity of differing from the rest of the judges—but upon these grounds, I feel myself bound to answer these questions in the affirmative.
Mr. Baron Garrow—
My lords; after the very anxious discussion and consideration of the questions put by your lordships, I shall follow the example of my learned brother who addressed your lordships first, in stating, that upon the fullest consideration which I have been able to give to the subject, I concur with him in answering those questions in the negative. I shall not trouble your lordships with any arguments or reasoning upon the subject at length, for the same reason he has given—to save your lordships time, and to avoid giving you unnecessary trouble, the Lord Chief Justice of the King's Bench has been pleased to put into writing the answers in which several of us concur, and the reasoning upon which those answers are founded; and they will be better stated to your lordships and to the court than I could pretend to present them by any statement of my own. I beg leave to say, that my answer to this question stands entirely upon the form of the questions put to us by your lordships; and I beg to point to this circumstance as belonging to this statement, that it supposes and assumes, that the witness in the courts below, to whom it is proposed to put further questions in explanation of conversation he has had with C. D. has already stated his motive; for unless he had already stated his motive, if there were any thing that remained to be stated which, either for the sake of his consistency or character, he was desirous should be stated, I should have thought in the courts below it was due to him, that he should be permitted to go to the full extent of making that explanation.
Mr. Justice Burrough—
My lords; knowing perfectly the opinions which will be delivered by the lord chief justice, and concurring in the reasons he will give, upon which we have consulted long together, I will merely say, that I entirely concur in the answer which has been delivered by my learned brother who spoke first, and my learned brother who last addressed your lordships.
Mr. Justice Holroyd—
My lords; I feel myself compelled to answer the questions your lordships have proposed to the Judges, in the negative. J shall abstain from stating the grounds of my opinion, inasmuch as they are contained in those which will be delivered to the House by the lord chief justice; and therefore on that account, I will not trouble your lordships further, than by saying, that I agree with my learned brothers who are of opinion, that these questions must be answered in the negative.
Mr. Baron Graham—
My lords; in forming my opinion in answer to the questions your lordships have proposed to us, I have adverted to that which I understand to be the statement made—namely, that the witness on his oath has had an opportunity of explaining those circumstances which led to the expressions respecting which inquiry was made on the cross-examination, and of disclosing all those motives which induced him to make use of those expressions; and founding myself upon that part of this statement it is that I perfectly agree in the opinion, that those questions must be answered in the negative.
Lord Chief Baron Richards—
My lords; I concur in opinion with the learned judges who have answered the questions in the negative. We have considered them with all the care we could: and my lord chief justice has had the goodness to take the trouble of including his own words and those of others in the Answer he will deliver. For these reasons, I do not feel it necessary to say further, than that I am of opinion these questions must be answered in the negative.
Lord Chief Justice Dallas—
My lords; I fully concur in the opinion which has been expressed by the majority of the learned judges who have preceded me, and therefore, without going at large into the subject, I will content myself merely with stating, that having seen the Answer which your lordships will hear from the lord chief justice, I have thoroughly considered the reasons on which it is founded, I adopt them altogether, and therefore, to save your lordships time, I content myself with referring to them.
Lord Chief Justice Abbott—
My lords; I agree with the other judges in considering the two questions proposed to us by your lordships to be, with reference to the point on which our opinion has been asked, substantially one; and that question, as proposed by the House, contains these words: "The witness being re-examined, had stated what induced him to mention to C. D. what he had so told him," by which I understand that the witness had fully explained his whole motive and inducement to inform C. D. that he was to be one of the witnesses; and so understanding the matter, and there being no ambiguity in the words "I am to be one of the witnesses," I think there is no distinction to be made between the previous and subsequent parts of the conversation, and I think myself bound to answer your lordships question in the negative.
I think the counsel has a right, upon reexamination, to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful; and also of the motive by which the witness was induced to use those 1308 expressions; but I think he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motive of the witness. And as many things may pass in one and the same conversation relating to the subject of the conversation (as in the case put by your lordships, the declaration of a witness that he was to be a witness in a cause or prosecution), which do not relate to his motive, or to the meaning of his expressions, I think the counsel is not entitled to re-examine to the conversation to the extent to which such conversation may relate to his being one of the witnesses, which is the point proposed in your lordships' question to the judges.
And I distinguish between a conversation which a witness may have had with a party to the suit, whether criminal or civil, and a conversation with a third person. The conversations of a party to the suit relative to the subject matter of the suit, are, in themselves, evidence against him in the suit, and if a counsel chooses to ask a witness as to any thing that may have been said by an adverse party, the counsel (or that party has a right to lay before the Court the whole that was said by his client in the same conversation; not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the part introduced upon the previous examination, provided only, that it relate to the subject-matter of the suit, because it would not be just to take part of a conversation as evidence against a party, without giving to the party at the same time the benefit of the entire residue of what he said on the same occasion. But the conversation of a witness with a third person is not in itself evidence in the suit against any party to the suit; it becomes evidence only as it may affect the character and credit of the witness which may be affected by his antecedent declarations, and by the motive under which he made them; but when once all that had constituted the motive and inducement, and all that may show the meaning of the words and declarations has been laid before the Court, the Court becomes possessed of all that can affect the character or credit of the witness, and all beyond this is, in my opinion, irrelevant and incompetent. On these grounds, I feel called upon to answer your lordships' question in the negative.
The Lord Chancellor.—My lords; the question on which the difficulty arose yesterday was this, "Upon your saying you were a witness, did Marrietti make any observation upon the subject of your being a witness?" Her majesty's attorney-general objected to that question: the attorney-general was heard in support of the question, and then the counsel were directed to withdraw. My lords, several 1309 of the judges have laid stress upon the circumstance, that in this question these words occur, namely, "and being reexamined by the counsel for the Crown, had stated what induced him to mention to C. U. what he had so told him." The learned judges having laid particular stress upon these words, I think it my duty to state to your lordships, why it appeared to me that those words should be inserted. My lords, the question put by the attorney-general was, "What induced you to make the statement to Marrietti that you were a witness against the Queen?" He answered in these words, "Marrietti when he came to pay me a visit, had already been told by somebody that I was a witness against the Queen, and he asked me whether it was true what he had heard, that I was a witness against her majesty? I answered in the affirmative. He then told me"—and then the witness was stopped; so that the answer of the witness to that question was an answer that was not finished; and I do not think, that I should have been justified in putting the question in the terms upon which I have made the observation, if there had not another question been afterwards put in these words: "Before you stated to Marrietti that you were a witness upon this subject, had he said any thing more than you have already stated?"—to which the witness answers," No."—Therefore it seemed to me, I own, to be clear, upon the two answers, taken together, to the two questions, that the statement of the witness was this,—that nothing had been stated to him before he declared that he was a witness against the Queen, except what I have before mentioned to your lordships. This appears to me, therefore, to embrace the whole question. We are now to decide—looking at what has passed only to ascertain what would be the opinion of the judges on a question arising in other courts—whether this question is or not to be put, regard being had to the general rules of evidence and applying those general rules of evidence to a case in which, as it seems to me, upon this answer, we must take the witness to have stated, previously to his having stated, that he was a witness for the Queen—the inducement that he had so to state. My lords, it is necessary further to call your lordships attention to this—that whatever instructions or commands you may give me to inform the counsel what they are to do, 1310 the information given to the counsel will not bind the House as to any question any noble lord may put; and if any question is put by any noble lord, it must be considered with reference to the circumstance of—not the counsel asking the question—but one of the judges, if I may so express myself, putting the question. My lords, with respect to any opinion I may have formed upon this point, I do not set a very great value upon it, because, as I have before stated to your lordships, it has not occurred to me of late years to attend to this subject of cross-examination, and therefore I think it much safer, upon the whole, to act upon the general opinion of those who have been conversant with such matters, than to act upon what would be my own opinion before I heard what I have now heard; but I must confess to your lordships I have been long in an error, if the rule with respect to reexamination or cross-examination, does not go the whole length of entitling a wit-ness to have the whole of that conversation stated, I have no hesitation in expressing that opinion.
§ Lord Erskinesaid, he had no difficulty in concurring with the recommendation of the noble and learned lord as to the propriety of adopting the opinion stated by the majority of the judges, and rejecting the dissenting opinion of one of them. They had fallen into the present difficulty by using a term which could not be found in the notes of the short-hand writer, the witness having never used the word "conversation;" and he would ask' how it was possible that any thing which Marrietti might have said afterwards could affect the motive by which the witness had been previously influenced.
§ Lord Redesdaleacknowledged that he felt himself in an awkward situation, differing, as he did, from the opinion of the majority [of the judges. The principle on which it appeared to him that their lordships ought to act was clearly laid down in the books as well as in practice. That principle was, that witnesses should state the truth, the whole truth, and nothing but the truth. In the present instance, it was manifest, that they had not the whole truth before them until an answer was given to the disputed question. The witness himself was proceeding to state something further, when, he was stopped. It had been admitted, that if the witness had held a conversation with one of the parties, the whole of the con- 1311 versation ought to be stated; but witnesses would be exposed most unjustly to prosecutions for perjury, if counsel were permitted to draw out part of an answer, and then to stop him. The answer falling short of the whole truth would expose the individual without any fault of his own. He did not state this particularly of the present case, but as applicable to general cases, and it was their lordships duty to endeavour to extract the whole truth, not only as it affected the case, but as it affected the credibility of the witness. It was the more important that they should do this, when the}' considered how often in their confusion witnesses misunderstood the questions put to them. Upon the whole, he conceived that their lordships were bound to proceed on the principle of extracting the whole truth, and he should feel himself at liberty to put any questions with that object.
The counsel were called in, and were informed by the lord chancellor, that the question, "upon your saying you were a witness, did Marrietti make any observation upon the subject of your being a witness," is a question that the House are of opinion cannot be put.
Then Giuseppe Sacchi was again called in, and further re-examined as follows by the Attorney-general, through the interpretation of the Marchese di Spineto.
You have stated, that when you came to this country, you assumed the name of Milani, what was the reason why you assumed that name? I took this name on account of the tumult (tumulto) which had taken place, and of the danger I should have run if I had come under my name, knowing that I should have been known.
You have stated, that you have taken another name; when was it that you assumed the name by which you now go? It was immediacy after the affair that happened at Dover.
You have stated that you took an oath to your deposition, when was that? I do not remember exactly the day, but it is about two months ago.
On what occasion were you sworn to that deposition I It was proposed to me by the advocate Powell.
For what purpose? He told me—
Mr. Broughamhere submitted to their lordships whether the question could be put consistently with the decision that their lordships had already arrived at. If this question was not evidence, for the sake of regularity and the rules of evidence, let it be rejected. He felt how a counsel was exposed to the imputation of wishing to conceal a truth—that a witness might disclose in his answer, when 1312 he interposed an objection of this nature. In the courts below the judges would relieve him from this difficulty by stopping the question as irregular.
The counsel were informed that the answer should be given.
He told me that he (Mr. Powell) had received a letter from lord Liverpool, who had said that it was necessary I should take this oath.
Mr. Broughamsaid, he had made the objection after the first three words used by the witness. The remainder of his answer showed how necessary it was, that he should have interposed at that moment, for it disclosed not only that the witness was giving in evidence what Mr. Powell told him, but also what lord Liverpool wrote to Mr. Powell.
The Lord Chancellorsaid,. "that Mr. Brougham was right to take his objection whenever it best suited him, but that their lordships could not shut out the answer given by the witness.
The Attorney General maintained that his question was regular.
The counsel were informed that the answer should be received.
Did he state any thing more of the purpose for which this deposition was to be used? He added nothing else.
§ Examined by the Lords.
Earl Grosvenor.—You have described yourself as having been an officer in the army of Italy, do you receive any half-pay in consequence of having served in the army? I have no pay.
When you were discharged from acting in that army, did yon offer your services as a soldier to any other government? After three years I asked to be taken into the service of Switzerland, who had agreed to furnish troops to the king of France.
What was the answer you received to that application? As I asked for the same rank of officer which I held in the army of Italy, it was answered to me, after a little time, that there was no vacancy.
Did they offer you any inferior situation? They offered me the rank of a serjeant.
Is it customary with persons in the situation you held under the princess to withdraw the curtains or other covering of the carriage without their permission, particularly persons in the high rank of the princess?
The Attorney Generalbegged leave to submit, through the House, how far the custom and usage of servants could be received in evidence upon this occasion.
The question was directed to be proposed.
As every morning I had a custom to go to the carriage of her royal highness, to see whether she had any orders to give me, so sometimes I found the carriage open, sometimes I found that the curtains were drawn, 1313 and having clone so some time, I was never reprimanded, or even admonished by her royal highness that I had done any thing which was wrong.
Do you know whether Mr. Krouse was a friend of Mac Demont? I have never tried to search into other people's business.
Do you know whether Mr. Krouse was a friend of Mac Demont or not? I do not know.
Are you yourself a friend of M Demont? Yes, I have known her in the house of her royal highness.
Do you know whether she assumed the name of countess Colombier in London? I know she had assumed the name of Colombier, but never the name of countess Colombier.
Do you know whether she assumed the name of countess Colombier in Frithstreet, and dropped it in Oxford-street? I have said that I have never known that she had ever taken the name of countess Colombier.
You have said that you assumed different names at different times, that as to one name you wished no inquiry to be made, lest it should lead to difficulties or inconveniences; have you any objection to state to the House the number of names you have assumed within the last ten years? I have never changed my name before I changed for these last two times.
Lord Kingston.—You have stated in your cross-examination that you were not offered any money to induce you to come here to give your evidence; have you been offered any money by any person, or has any body endeavoured to persuade you not to give your evidence here since you arrived in England? No one has ever made me a promise of money, and no one has ever endeavoured to dissuade me from coming, because I never have communicated this thing to any body.
Marquis of Buckingham.—How long have you been acquainted with Marrietti? Since my arrival in London.
Is he a banker in Milan? I know at Milan the family of Marrietti.
Are they bankers at Milan? It is said they are bankers, but I never had any business with them.
Who is the Marrietti you are acquainted with in this country? I have known three brothers Marrietti.
In London? In London.
You have said, in the course of your examination, that one of the Marrietti's knew of your being a witness in this cause, have you not? I have said that Marrietti knew that I was a witness when I told him so.
Did any one of the Marrietti's, whom you are acquainted with in London, make any proposition to you touching the evidence you were to give in this cause? Guiseppe Marrietti came to my lodgings one day, and told me he wanted to speak to me; and he told me that he was directed by Mr. Brougham, 1314 the brother of the attorney-general of the Queen, who had called upon him in the morning, and inquired whether he knew me; he answered that he knew me; then the brother of Mr. Brougham asked him whether he might be able to learn from me something relating to her majesty; Mr. Marrietti added, as Messrs. Broughams have done me some service whilst I had some transactions with her royal highness, I should like to render them also some service; however, before I communicate to you what I have got to say, I beg to tell you, that I come as a friend, and not to dissuade you from doing what you have resolved; having also represented to Mr. Brougham that I would not either commit myself, 'or wished that the parties should commit themselves; and he added, as ministers will not grant the list of witnesses, or the head of charges against her majesty, we should like to know something from you, if you know any of the witnesses, if you know their number, and if you can inform us about any thing concerning the depositions they have made; then I answered, that although I knew something, I would not tell it, for it would commit me; but I knew only one of the witnesses, and that I knew no deposition of any other witness, and I could give him no other account. Mr. Marrietti added, that it was wished to know so much, that her majesty the Queen might preface her own defence. Afterwards he asked me, whether I might know something concerning the deposition, repeating again his assurances, that he did not wish to know this from me to commit myself, or to commit any of the parties; I remember no more.
Did Marrietti at any time give you any advice as to the evidence you were to give in this cause? Never.
Did Marrietti offer you any money in respect of the evidence you were to give? Never.
The Marquis of Buckinghaminformed Mr. Brougham, that if there was any other question which he wished to put as to this interview, he would willingly put it.
Mr. Broughamsaid, there was not. He had no reason to be dissatisfied with the answers already obtained, though others might be.
§ Earl Grey.—Had you ever gone by the name of Milam before you came to England? I took this name in Paris.
At what time, in what year, did you take that name in Paris? Four or five days before I set out for England.
When was that? In the month of July last year.
What was your motive for taking that name at that time in Paris? As I knew that I was known in London by my own name, I endeavoured to shelter myself against any inconvenience that might happen-to me.
What tumult had happened at that time, 1315 that induced you to take that name? I was warned that the witnesses against the Queen might run some risk if they were known.
Had you been informed that they had actually run any risk? They had not run any risk then.
The following question and answer were read from the previous evidence of the witness on this day.
"You have stated, that when you came to this country, you assumed the name of Milani, what was the reason why you assumed that name?
"I took this name on account of the tumult (tumulto) which had taken place, and the danger I should have run if I had come under my name, knowing that I should have been known."
Having stated in a former answer that you changed your name to that of Milani in consequence of a tumult that had happened, what did you mean by that statement? Whilst I was at Paris a gentleman came, accompanied by the courier Krouse, and the only time I saw him; and he told me that it would be necessary to change my name, because it would be dangerous to come to England under my own name, as I had told him I was known in England under my own name; and that already something had happened on this account; not on my account, but on account of other people.
Did he tell you that a tumult had taken place? He told me some tumult, some disorder.
On what occasion did he say that tumult had taken place? He told me nothing else.
You are understood to say it was with respect to other persons; what did you mean by other persons? He meant to say that some disorder had already happened, in regard to other persons, for similar causes.
What do you mean by similar causes? I have repeated what that gentleman told me.
Did you understand that it was with respect to witnesses who had come to give evidence in respect to the Queen? I believed it was for this object.
Did you know that any witnesses had at that time come over to give evidence in the cause of the Queen? I did not know with certainty; but in the same way I was coming, 5 might imagine that some other people might have already come.
It was then in consequence of having been sent for that you came at that time to England? Precisely.
Where did you lodge when you first came to England? In Leicester-square, at the Sabloniere's hotel.
How long did you continue there? About a fortnight.
Where did you go afterwards? To Arundel-street.
How long did you remain in the name of Milani? Until the affair of Dover happened.
1316 It was then that you changed it, and not before? Not before.
§ Earl of Darlington.—What was the cause of your being discharged from the service of her royal highness?—It was in consequence of a difference which I had with the confectioner.
Who was the person that discharged you? Count Schiavini sent for me in the morning, and told me that he had received orders from her royal highness to discharge me.
You have said, in a part of your deposition, that you lived with a Mr. Godfrey since you came to England; in what capacity did you live with Mr. Godfrey? As I was ill in London, I sought after a place in the country, where to go and establish my health; and it was proposed to me to go to Mr. Godfrey's.
You have spoken of some balls, which were given at the Barona; were those balls given previously to her royal highness going to Turin? Some were given before going to Turin.
Do you recollect at Turin, the king and queen of Sardinia, or either of them, coming to the Hotel de "P Univers, to her royal highness? I do not remember.
Marquis of Huntley.—When count Schiavini gave you your discharge, did you not receive a certificate of character, signed by the princess of Wales?
Mr. Brougham submitted that the question was objectionable, as asking to the contents of a written instrument.
The Counsel were informed, that that question could not be put, until there was proof of the signature of her royal highness.
Did you receive a certificate at the time you were discharged from the service of her royal highness? He did not give it me on the same moment, but he gave it to me on the following day.
What rank had you, when you first joined the army in Italy? A common soldier.
Were not you raised to the rank of lieutenant from your own good conduct and merit? Yes.
Were you acquainted with any officers in the army, in winch you served at that time, who subsequently obtained commissions in the Swiss army of which you have spoken? I do not remember.
Viscount Falmouth.—You are understood to have stated, that the princess was present during the balls mentioned by. you, as given by her royal highness at the Barona, how long was she usually present at those balls? As her royal highness had her own apartment contiguous to the ball-room where she had her own party, so she came from the room and came into the ball-room, where she staid three or four minutes, and returned into her own room.
You have stated that the women were 1317 taken out of the ball-room at the will and pleasure of the men, do you remember that on any one occasion any of the women were taken out of the ball-room in her royal highness's presence? I never made this observation.
Did you consider yourself as entitled to mix with the company at those balls? All had equal liberty.
You are to be understood that yon did consider yourself as One of the company? Certainly.
Were you, or were any of the other servants, allowed to invite your friends to those balls? As far as I am concerned, no; in regard to others I do not believe they had such a power.
You are understood to say, that the princess herself, or another person directed by her, asked the company? Certainly.
At the time you left her royal highness's service, had you any recent quarrel with Pergarai? I do not remember.
Earl of Lauderdale.—Do you speak and understand the French language? I do.
Was the speech which the princess made to you about the girls in the court, when she was with Pergami, in French or Italian? Her royal highness spoke to me always in French.
Can you state in French, the terms she used? Her royal highness, in the court, said to me, "Je veux faire un cadeau à quel-qu'unes de ces demoiselles qui viennent à la danse; comment peut on les habiler ces vierges, M. Sacchini; croyez-vous qu'elles sont telles?"—"Moi j'ai repondû, quant à moi, je crois qu'elles sont des honnêtes filles, et je n'ai rien à dire à leur charge." Son altesse me dit, "Eh coquin, je sais que vous avez couché avec trois d'eux, et aussi combien de fois vous avez eu commerce avec eux."
Did the princess of Wales say nothing more? Not on that occasion.
Did you see those virgins at a ball and the princes of Wales present, subsequent to that period? I do not know what verginelli she was speaking of; I thought she was speaking in a general way.
Were there any balls subsequent to that period? There were.
Were they attended by the same sort of company? Nearly by the same persons.
What sort of a carriage was it in which the princess of Wales was when you opened the curtains, was it a carriage in which persons must sit, or was it a carriage in which they might either lie or sit? As her royal highness had three or four carriages in her suite, sometimes she went in one, sometimes she went in another; but I do not know whether they might be either sitting or stretched—sitting most certainly, because I have seen them sitting.
Do you recollect in which carriage her royal highness was, when you opened the curtain early in the morning? I do not remember.
1318 Had she more carriages with curtains which you could open than one? I believe she had two.
In either of those carriages, was not it possible for a person to lie at lull length? I believe that one might.
Do you recollect whether her royal highness and Pergami were sitting or lying at the time the scene took place, which you have described? To me they appeared to be sitting.
Have you said, that there was nobody else in the carriage that morning? I have said, that I do not remember this circumstance.
Can you say whether the countess Oldi was there? I have said that I do not remember, that it is not present in my mind; I cannot say whether she was present or not.
If there was any body present, are you not certain that the princess and Pergami were sitting next one another? I saw them one next to the other.
Earl of Balcarras.—At the time you withdrew the curtain did her royal highness sit on the right or left of Pergami? Her royal highness was sitting on the right hand of Pergami.
Was the opening of the small clothes on the right or the left of Pergami's person? On the right.
Earl of Rosslyn.—When you opened the curtains did you ask for orders? No, because they were asleep.
Did you wait? I did not.
Lord Calthorpe.—Did you ask to see the princess after Schiavini gave you your discharge? I asked to see the princess after I had received my certificate, the evening before I went away.
Did you see the princess after you had received that certificate? I do not remember.
Did you see her royal highness after you understood you were to quit her service? I did.
What passed upon that occasion? Her royal highness told me, that she gave me my discharge, in order to give an example to other servants, to prevent quarrels taking place in the house.
Did her royal highness state what the cause of these quarrels was? She told me, that as I had this quarrel with the confectioner, and* that she did not like that such quarrels should happen in her house.
Did she state any other cause of dissatisfaction with you? She did not.
Did you make any reply to her royal highness? I replied to her royal highness, that I did not believe it to be a fault sufficiently great for me to be discharged.
Did she make any allusion to your former conduct, previous to these quarrels? Her royal highness always showed her satisfaction towards my conduct.
Did she then make to you any promise of a
* Sic.1319 certificate of good conduct? We did not talk about certificate.The following Questions were put by a Lord, at the request of the Attorney-General:
Do you know this paper [a paper being shown to the witness] to be the hand writing of Schiavini? As far as I know it is the hand-writing of Schiavini.
Have you seen him write? I have also received letters from Schiavini.
Have you seen him write? Several times.
Do you believe that to be his hand-writing? I think I am sure of it.
The following Question was put at the request of Mr. Brougham: Did you not say just now, "Son altesse royale aura parlé mieux que moi (mais c'etoit à tel effet)?" No.
Do you mean to say that you used the first part of the words, but not the last part; that you did not say, "mais c'etoit à tel effect?" No, I said, "mais ça est le fait."
The Witness was directed to withdraw.
The lard-Chancelloracquainted the counsel on both sides, that a witness, whose attendance was required on the part of the Queen, was abroad, and indisposed, and suggested, for the consideration of the counel, whether they would consent that the witness should be examined by commission.
Then Robert Hare was called in, and sworn, and examined as follows by the Solicitor-General:
Are you cashier in the banking-house of Messrs. Coutts and company? I am.
How long have you held that situation? About thirteen years.
Does her majesty the Queen keep any cash at the house of Coutts and company? She does.
How long has she done so? I do not recollect the exact time, but previously to her going abroad.
Have you, as cashier, from time to time, paid her drafts? I have.
State whether you believe that signature to be the hand-writing of the Queen?"[A paper being shown to the witness. I think it is the hand-writing of the Queen when princess of Wales.
§ Cross-examined by Mr. Brougham.
§ Do you know the hand-writing of his majesty the King? I have seen it.
§ Do you know his hand-writing when you see it? I think I should know it.
Mr. Solicitor General.—Have you ever seen the King write? Never.
How do you know the hand-writing of the King? I have only seen it in a commission.
What commission? I do not exactly re- 1320 collect what; but the King's signature has been shown to me in a commission.
Have you any other knowledge of the handwriting of the King, except that a paper, purporting to be a commission, was shown to you, and; you were told that was the hand-writing of the King? Not any knowledge.
§ Were you cashier at that time? I was.
§ Did you pay his drafts? He did not draw himself.
§ The Witness was directed to withdraw.
§ The paper spoken to by the Witness was read as follows:
§ Pesaro, li 5 9bro 1817.
§ S. A. R. la Principessa di Galles certifica a chiunque, che il Sigr Giuseppe Sacchi, nativo di Como, e da un anno al servizio della sullodata S. A. R. e prima nella qualityà di corriere e poscia come scudiere, è fornito di ottimi costumi, ed ha servito con tutta l'assiduità, zelo, e fedeltà. Si certifica pure che detto Sigr Sacchi viene messo in libertà per semplici misure economiche, e per la sola preferenza che devono avere li anziani al di lei servizio;
§ CAROLINA,
§ Principessa di Galles.
§ Pesaro, 5th November 1817.
§ H. R. H. the Princess of Wales certifies to whomsoever, that Mr. Joseph Sacchi, native of Como, and during a year in the service of H. R. H. at first as courier and afterwards as equerry, is endowed of the best be haviour, and has served her with all assiduity, zeal, and fidelity: It is also certified, that the above-mentioned Mr. Sacchi has been dismissed merely for motives of economy, and for the preference alone which older servants in her service ought to have.
§ CAROLINE,
§ Princess of Wales.
The Attorney Generalproposed to give in evidence the certificate produced by Majoochi, referring to the evidence in pages 361 and 362; and it appearing on the further evidence that Schiavini (in whose hand-writing it was proved to be) was marshal of the palace, and that he had in several instances given certificates to the servants,
Mr. Broughamobjected to the same being given in evidence.
The Counsel were informed, that in the opinion of the House this certificate could not be received in evidence.
The Attorney Generalthen stated to the House, that certain persons resident at Lugano, who were intended to be produced as witnesses, had set out in order 1321 to give their evidence; that they had advanced as far as Beauvais, when reports and rumours had reached them that certain persons who had come here for the purpose of giving evidence, had been extremely ill-treated at Dover; that they were alarmed, and in consequence of the apprehensions they entertained, they went before the magistrates at Beauvais on the 27th of July, and made a deposition to that effect, and not thinking it prudent to proceed, had returned to Lugano; that this deposition being received in this country, persons were immediately dispatched, hi the hope of overtaking them before they had reached their home, but that they had reached their home before they could be overtaken; that on Monday last, letters had been received from Lucerne, near to the residence of the witnesses in question, in which it was stated, that those witnesses had altered their determination, and were about, on the following day, the 29th of August, to set out for England for the purpose of giving evidence; that as their arrival might therefore be expected in a very few days, he begged to ask of their lordships an adjournment, to permit that evidence, which he conceived to be important, to be laid before the House.
Mr. Brougham, in resisting the application, said, that the only analogy to guide the House was to be found in the proceedings of courts below: there, such a motion as that the remainder of a trial should be postponed when it had been half gone through, because a material witness was absent, had never yet been heard of. Motions of the kind were invariably made before the trial commenced, and then the party must swear to the importance of the testimony, to his inability to procure the attendance of the witness, and his expectation that in a short time he might be procured, was generally added in the affidavit. As, however, by the forms of the House, affidavits could not be admitted, he presumed that it would be required those points should be established at the bar. He was ready' to assume therefore that the attorney-general was prepared to do so, and he should oppose the present application on very obvious grounds. The prosecution had been commenced (and he only used the word prosecution for shortness, as, for aught he knew, this was nothing more than an amicable suit, and most of all unlike a prosecution), and the prosecutor had had full time to prepare himself: for months and years he had known 1322 that it was to be brought into court; he had chosen his own time, and he had, above all, begun it with a debate staring him in the face, originated on the part of her majesty, and in which the attention of the attorney-general was called most especially to this point. "Do not begin," said the counsel for the Queen, "before you are quite ready, for delay in the commencement is comparatively of no importance, but delay interjected in the middle after the accusers case is closed, may lead to the most mischievous consequences." A delay, however, between one part of the prosecution and another had never entered into their imagination, and the argument was directed against any interval between the case for the accusers and for the accused; but, let it be observed, after this the attorney-general did not go on at once; he took an additional three weeks to prepare his case—he would not proceed instanter, as the Queen's message, and her counsel, most earnestly entreated, but he insisted upon waiting three or four weeks, under pretence that his witnesses were not ready. The House had granted that delay; it had granted it on the distinct understanding that on the 17th of August he would be fully prepared for his undertaking. This delay having occurred, a strong disposition prevailed on the part of the counsel for her majesty, that three or four days further time should be allowed for their personal accommodation: they were told, however, that it was impossible, that no noble lord could propose it, and although the Queen's solicitor-general and himself were in an infirm state of health, and though medical certificates could have been produced to show that six or seven days might make all the difference between sickness and health, and between danger and security, they were told that delay was totally out of the question. Yet now, in the face of all this, the attorney-general came forward and told the House that he was expecting three or four more witnesses, and that he must be allowed to stop, to mend, and patch up his case by the testimony of some frightened Luganians. He asked, if there was any thing like fairness—any thing like equal treatment, in this—whether referring to the analogy of other trials, a prosecutor was to be allowed to pause in the middle, until he could hunt up new evidence to prop his case, that could not stand without fresh support? If any impediment had been put in the way of the 1323 witnesses by her majesty, which was not pretended, there might be some ground for such a request; but was the House, merely because this story (to which he would not give the vulgar application due) was told from Beauvais, to grant time for the collection of new evidence and the promulgation of fresh slanders? He did not say, that the attorney-general would abuse the interval so to be allowed—he was incapable of it: he did not say that those who sent him here (whom he did not know, because every time they were mentioned they were veiled in additional obscurity) would abuse it; but he entreated the attention of the House to the consequences that might result from a concession of this kind for the purpose of defeating the ends of justice. In ordinary cases the absence of a material witness in the middle of a trial invariably led to the acquittal of the defendant, and he felt satisfied that even in this unprecedented proceeding, their lordships would not consent to this most unprecedented demand.
Mr. Denman, before he followed on the same side, wished to know at what time these supposed witnesses were at Beauvais?
Mr. Denman.—On the 27th of July these witnesses rerurned from Beauvais, because they had heard rumours of what had passed at Dover. He requested their lordships to ask themselves, whether if any of the witnesses for the defence had been alarmed by reports that the Alien bill would be put in force against them, or that the English ambassadors at foreign courts—active agents against the Queen—were using their utmost efforts to bring them into trouble, the)' would think it a sufficient ground for delaying the progress of the defence; more especially when it had been commenced at the time chosen by the counsel for her majesty, and when, therefore, they came plighted to pursue it to a conclusion. Yet such, in truth, was the request on the other side regarding witnesses who were to be here four or five days hence, and who might have been here four or five days ago, if ordinary diligence had been used by the agent who had them in his charge. Where was this to stop? Was the attorney-general to be permitted thus to supply defects in every instance where he had completely failed in establishing the facts he had 1324 opened? Was he on such paltry pretexts as these to introduce fresh cargoes of Luganian witnesses? What agent would not in future take care to neglect his duty, if it were to place his employer in a situation so advantageous? When would the prosecution be terminated, if excuses like these, which would be scouted in every court of the kingdom, were accepted by the House, to induce them to abandon all the known forms of justice? From day to day opportunities for preparation and completion had been afforded to the other side; and now, in the last hour of trial, when that period had arrived for which the Queen had been so long and so anxiously waiting, she was told that she was to be again exposed to the pelting of new dirt, by reinforcements of supplemental witnesses. Surely from every quarter she had enough to complain of, without being subjected to this additional suffering! To consent to the application would be the most gross and intolerable injustice; and he was confident, that the honourable minds of their lordships would refuse at once to subject to it that illustrious female, who for weeks had been the victim of calumnies to which the attorney-general had not even ventured to allude. He entreated the House to have some consideration for the feelings of that illustrious lady, at the moment when she expected to be called upon for that defence with which she was fully prepared, and which would clear her from all the foul aspersions cast upon her character and conduct. In no cases but those protracted prosecutions for treason had adjournments taken place from day to day; but, here, not the slightest ground had been laid for the motion; and recollecting the weight of imputation resting on his illustrious client, he was confident that in their lordships she would at least in this respect find a bulwark and protector against the additional attack now so unjustifiably made against her.
The Attorney Generalcommenced his reply by complaining of the unfair opportunities taken by the other side of deviating from the real question for the sake of making declamatory addresses, and offering insinuations against the witnesses already produced. He had also some reason to complain of the manner in which the present application had been treated. It had been said, that the object was to mend and patch up the case of the supporters of the bill; but, after having 1325 stated the particular circumstances, he appealed to their lordships whether this charge were deserved, and whether the motion was not founded in reason and justice? It has been asked, why the request was not made on the 17th of August; but the answer was clear—because there was then every reason to suppose that the witnesses would arrive in time for the inquiry. Next, it had been said, that the agent had neglected his duty, when the tact was, that no agent had been employed to conduct the. witnesses, and there was every reason to suppose from their conduct, that they were willing to give their testimony. The procès verbal before the magistrate of Beauvais, which he held in his hand, was decisive as to the real cause of the delay. From the endeavours used there was now every reason to believe, that the witnesses were actually on the road, and this was not the first time they had been beard of. The order of the House, under which he attended, desired him to produce the evidence in support of the bill, and this was a part of the original evidence; they were no new witnesses, their names and the nature of their depositions was known, and but for an accident some of them would probably by this time have been examined. It had been urged that ample time had been allowed to the prosecutors, as they were called, to prepare; but he had had no notice to attend until the second reading had been fixed; and when he had opened his case, he had done so in the firm persuasion that all the witnesses would arrive in time to support the statement. Their lordships would deal with the application as they thought best; but he had done no more than his duty in requesting that time might be allowed for the procuring of that evidence which the House had ordered him to produce. It was a little singular that this objection to a short postponement should come from those who had obtained a delay for the purposes of more effectual cross-examination.
The Lord-Chancellorthought, that the House would find infinite difficulty in arriving at a decision; but, in his opinion, the question would not be fairly raised until proof had been given at the bar of the cause of the detention of the witnesses, their materiality, and other circumstances of alike nature. It would be very dangerous for the House to proceed to a decision upon any case mere- 1326 ly assumed. He wished, therefore, to know what the Attorney-General was prepared to prove in this respect; and also to be informed whether the trans actions to which the witnesses were to swear had been included in his original opening. Then might arise a question, whether the counsel for the Queen were prepared to go into the further cross-examination of the witnesses already produced; and if in the interval, and before the summing up of the Solicitor-General, the witnesses arrived, the subject would be attended with less embarrassment. He did not mean it to be at all understood that he should be ready to accede to the present proposal, because it required most deliberate and anxious consideration.
§ The Counsel were directed to withdraw.
The Earl of Liverpooldid not rise to offer any opinion, but merely to state a few points for the attention of the House. He admitted that the special grounds ought to be established at the bar, and he took it to be quite clear, in the first place, that, until the case of the Attorney-General was closed, it was competent to him to bring forward any evidence with which he might be furnished. If this application had never been made, the Attorney-General would have been entitled to call on the other side to finish their cross-examinations before he concluded his case. If the Queen's counsel replied that they had not the means of doing so without an adjournment, then the case of the supporters of the bill would be still open, and, without any request of this kind, they might call and examine the Luganian witnesses. If, on the other hand, the Queen's counsel required no time for cross-examination, then, of course, it would remain for the other side to submit to the House what course it would be proper to adopt. The facts to be proved by these new witnesses had been opened to the House by the Attorney-General.
§ Lord Erskinefelt it his duty to oppose, in the first instance, such an outrage upon public justice, as that of interposing a delay in the middle of a case, for the purpose of producing fresh witnesses. No such instance had ever been heard of in any court of justice. Indeed, so decidedly averse were the courts to interpose delays in the course of justice, that in the instance of the assassination of 1327 Mr. Perceval, the court refused to give time, on an application on behalf of the prisoner, who was tried for murder, to send to Liverpool to obtain witnesses to prove his insanity. This was on an application to put of the trial; but an application in the middle of a trial on the part of the prosecution, to interpose a delay for the purpose of obtaining fresh witnesses, had never before been heard of in any court of justice. To grant such an application would be subversive of all those principles upon which the security and the life of every individual in the kingdom depended. He could not believe that their lordships would agree to it, but if they did, he should feel it his duty to enter his solemn protest against such a decision. He had attended with great inconvenience to himself, at his advanced age, to state upon points of law or evidence, whatever his long experience in courts of justice enabled him to do; but if such an application as the present was agreed to, his attendance would be useless, as his knowledge or experience could afterwards be of no avail. With regard to the decision respecting the cross-examination, he certainly never understood that if the cross-examination by the counsel for the Queen was postponed, that that was to authorise the production of fresh evidence in behalf of the Bill.
The Earl of Carnarvonobserved, that the attorney-general ought first to be asked whether he was prepared with evidence to support his application.
§ The Counsel were again called in.
Lord Chancellor.—Mr. Attorney-General, do you propose, and are you prepared, to enter into any proof of the circumstances on which you found this application?
Mr. Attorney General.—My lords, I think I shall be able to lay before the House such proof as would be received in a court of justice.
Mr. Brougham.—We submit to your lordships that as my learned friend is not even ready to say that he can prove this—
Lord Chancellor.—The question was put by the House to the attorney-general, and no other person is authorized to interpose. Are you now prepared to enter into any proof of the circumstances on which you found this application?
Mr. Attorney-General.—I will state to your lordships what documents I have, and what I shall be able to prove before your lordships. I hold in my hand the original procès verbal taken before a magistrate at Beauvais, which will disclose the facts to which those witnesses deposed before him. I shall be enabled to satisfy your lordships, undoubtedly, that these persons are in my judgment material witnesses, and it would ill have become me to have made this application to your lordships if they did not speak to facts to which I referred in my opening. I shall also be able to lay before your lordships the only evidence which I believe is ever required in the courts below; I mean the statement of persons, from the letters that have been received, that they believe the contents of those letters are true. I believe, in an application of this kind in the courts below, that is all that is required. When I made the application to your lordships I was not aware in what manner it would be received by my learned friends, and by your lordships. I beg to repeat, that I thought myself doing no more than my duty in making it. Having made this application, it is for your lordships to deal with it. I trust I shall be considered as having clone no more than my duty imperiously called upon me to do.
Mr. Solicitor General.—Your lordships are aware, that in an application to a court of justice to put off a trial, on account of circumstances that have come to the knowledge of the party making that application, the evidence by which that application is supported, is of a very different character and description from that which it is necessary to introduce into a court of justice in the conduct of the cause. All that is necessary on the occasions to which I refer is, in the first instance that a party shall make an affidavit, that he believes the witnesses to be material, and that he is informed and believes that these witnesses will arrive at the time indicated in the affidavit. He is also to explain, not by the positive oath of an eye-witness, but from the information and belief of the party making the affidavit, that such and such facts have occurred which have had the effect of preventing the arrival of the witnesses; and I undertake to say, that if an affidavit were transmitted to this country, sworn before a notary in a foreign country, stating that such and such circumstances had occurred preventing the arrival of a 1329 particular witness in this country, and the party receiving that document were to annex an affidavit stating, that he was informed and believed the contents to be true, that that would be quite sufficient to support the application.—Now, my lords, I am aware that it is not competent for us to make an affidavit at your lordships bar, for the purpose of supporting this application; but I apprehend, that if we are in a condition to submit to your lordships precisely that character of evidence which would be sufficient for supporting an application of an analogous nature, if made in an ordinary court of justice, your lordships will consider—whatever opinion your lordships may entertain with respect to the application itself—that the ground of the application is at least sufficiently laid, in order to support the application made at your lordships bar. Now, my lords, we are in a condition to do this. We have before us an affidavit sworn abroad. We are in a condition to make the necessary affidavit, that we believe these witnesses to be material and necessary, and that we believe the document before us is true in all its parts. We are therefore at present in a condition to make such a case in point of fact, for the purpose of supporting this application, as would be sufficient to support the application if it were made before an ordinary tribunal. Under these circumstances, I think your lordships will be of opinion, that though we have not sworn an affidavit, we have not been neglectful of the duty your lordships imposed upon us—that we are in a condition to do that which is required of us—and that, so far from neglecting our duty in conducting this proceeding, we have, with a pain and an anxiety which no individual but those placed in our situation can possibly estimate, gone through all the details of this? most distressing inquiry.
Lord Chancellor.—The question the House wish to put is, whether you would be prepared to go on with the cross-examination which is reserved to you, if they closed their case now?
Mr. Brougham.—Your lordships will see, that the resolution I have come to, in conjunction with my learned colleagues, must be hypothetical—it must always be on a consideration of what case may be made out; and if these witnesses are be- 1330 lieved (which I cannot conceive to be possible), or if they are not believed, I trust that no application will induce your lordships to delay the case till new facts are proved. If your lordships should, the resolution I have come to now may be wholly altered and rescinded by that event; but if your lordships call upon me to state now, what would be my course upon the supposition of my learned friend, the attorney-general, now telling your lordships that his case is closed but for my cross-examination, and that unless I delay my cross-examination he has done—on my part I have no hesitation in stating to your lordships, that upon this supposition, and in this case, I propose to ask your lordships to call back one of the witnesses, and to put three or four questions to him, and then to close.
§ Adjourned till to-morrow,