§ The House was called over; and the order of the day being read, for the further consideration and second reading of the Bill, intitled "An Act to deprive "Her Majesty Caroline Amelia Eliza "beth of the title, perogatives, rights, "privileges, and exemption of Queen "Consort of this Realm, and to dissolve "the Marriage between His Majesty and "the said Caroline Amelia Elizabeth;" and for hearing Counsel for and against the same; Counsel were accordingly called in.
The Lord Chancellor.—In obedience to the commands of the House, I have now to ask you of Counsel to the Queen, in what manner you propose to proceed in the Defence?
The Lord Chancellor.—Proceeding forthwith, do you mean that it is your wish to proceed in opening the Case, and then following it immediately by Evidence, or to open the Case, and then to pray time to produce the Evidence? I understand it to be my duty to ask you that question.
Mr. Brougham.—Undoubtedly, my lords, we wish to give every information to the House, consistently with our duty to our 2 client. It is probable—but really I cannot say for certain.—it is probable, that we shall wish to call evidence; in which case, there are two classes of evidence, to one of which the observation respecting delay alone is applicable. The other class is not within the scope of that remark. Your lordships will allow me to say, that if I shall feel it advisable to call evidence; and in the second place, if I shall also feel it advisable to call evidence not now in this country—in that case, it will be necessary for us to entreat the indulgence of the House, after having been heard to open our case. I trust I have made myself understood. My lords; my learned friends about me desire me to add, and I feel myself also authorised to add on my own account, that it is also possible I shall not feel it necessary to trouble your lordships with evidence—It is possible.
§ The Counsel were directed to withdraw.
The Earl of Lauderdaleobserved, that it was obvious, after the answer just given by her majesty's attorney-general, that it was necessary be should have a longer time allowed to bring over his witnesses. He thought, however, the answer given by the counsel to the question put by the noble and learned lord on the woolsack, was by no means as explicit as it ought to be; and he therefore trusted that the counsel would be called upon to give a more definite answer.
§ Lord Erskinewas of opinion, that the learned counsel ought now to be permitted to proceed with his case in defence of her majesty the Queen, without be- 3 ing called upon to determine whether he would stop, or where he would stop, in the evidence he meant to offer to their lordships. He ought not to be now called upon to give any answer to such a question as it was the wish of his noble friend to put. When he (lord Erskine) practised at the bar, he should have complained of any question which went to influence his determination in the defence of his client until he had entered upon and proceeded with that defence. The learned counsel ought to be at liberty to begin his defence just as he pleased, and afterwards either to call witnesses, or not to call them, as suited best his own sense of the trust reposed in him. In all the courts of law—and he begged to assure their lordships that it was his anxious wish, in this case, to follow the analogy of their practice, as far as it could be applied to so anomalous a case as the present—in all the courts of law the line of proceeding was this:—The case was set down for a hearing: when its turn came, the counsel for the case were called upon to proceed forth-with: they must do so, or show ample cause why they could not; or they must render the further proceeding unnecessary, by withdrawing the record. When the counsel once began their case, it was too late to stop it—their course was then onward, and the defence must follow in consecutive and immediate order. If, in the course of these proceedings, in the order he had mentioned, any apparent injustice had been committed, which the presence of a particular witness, who could not then have been forthcoming, would have prevented, then the law wisely provided a remedy in the shape of an application for a new trial. In the courts below, the scales of justice were held equally poised between both parties in the cause; the practice in them was calculated to work without partiality or prejudice; for the law of England was a law of humanity and mercy.—He would just remind their lordships how the case of her majesty the Queen was now placed by the proceedings had before their lordships. The bill had gone forth to the world, the preamble of which contained the charge against her majesty. The case in support of that bill had been heard; and lie humbly submitted, that if their lordships meant to have called on the counsel for the defence to proceed straight-forward through the whole of their evidence, they ought to have, in the 4 first instance, furnished them with the means of meeting the charge, by giving them, if not a list of the witnesses, at least a specification of the times and places to which the accusation referred. Had their lordships given this information, by acceding to the motion which he had, on a former occasion, submitted to them, and then postponed the commencement of the case until proper time was allowed for all parties to be prepared, there would have been no ground for claiming any delay between the evidence for the prosecution and that for the defence. But their lordships had thought proper to reject his motion; and they had by so doing deprived the accused of the opportunity of knowing any thing like the particular line of defence which it might be necessary for her to adopt, until the whole of the case for the Bill had been gone through. He could not, under these circumstances, see how they could call upon her majesty's attorney-general to state the precise course which it was his intention to take in shaping the defence. To call upon him now to say whether he was ready to go through his whole evidence would be quite peremptory, considering that their lordships had already admitted that delay would be necessary to enable the counsel fully to cross-examine the witnesses in favour of the Bill. It was obvious, he thought, that they had as yet hardly time to acquire that information respecting the witnesses which could be supposed to qualify them properly for a full cross-examination. At all events, the question of adjournment was not now before their lordships, and they were not called upon to anticipate it. For that reason, they ought not to interpose and prevent the counsel from entering upon the defence, now when the season had arrived for his meeting the charge. The attorney-general had lately made an application to their lordships" for delay, which he had afterwards withdrawn; and the noble and learned lord on the woolsack subsequently admitted the propriety of that application, and added, that the attorney-general had a right to make it. Why, then, say to the Queen's attorney-general, "You must adjourn now, or not at all?" Why anticipate that he may make an application for delay, which may not, at the time he shall make it, be proved to be right, to be reasonable and proper? He conjured the House just to reflect for a moment at its present situation. 5 The case for the bill was closed: the counsel against it were called upon for their defence; they replied, that they were ready to proceed with it forthwith. Yet, notwithstanding their undoubted right to meet the case so adduced, some of their lordships appeared to think that the case had better be now adjourned, until the counsel could say they were prepared with the whole of their evidence. A delay under such circumstances would, he thought, be most unfavourable to one of the parties. The evidence in support of the bill had gone forth up to the present state; it had gone forth not only to the public of this, but of every other country. To say that such a publication of the evidence was calculated to make no impression, was to utter that which could not be the fact; indeed, the noble earl opposite (the earl of Liverpool) had, much to his honour, admitted that it was calculated to make such an impression, but that there was no avoiding it; though he added, that he had no doubt their lordships, who were the judges in the case, would suffer no impression to be made upon them until they had heard the whole of the case on both sides. But how was it possible for them to avoid the influence of this first impression, which the statement of one part of the case was necessarily calculated to produce? He hoped no man would consider him either blasphemous or irreverent, when he said that God could not make them forbear feeling that which he had in his wisdom already ordained, and which it was the constitution of human nature to feel, according to the influence of circumstances. It was therefore impossible for their lordships, with the attributes which belonged to human minds, to look over the minutes of these proceedings, without feeling that impression which they were calculated to excite. If they had intended to adjourn without hearing any statement from her majesty's counsel, they were bound to have adjourned when the evidence for the Crown closed; there they should have stopped, if such had been their intention, and not permitted the solicitor-general to have summed up. What was that summing up? It was what it ought to be, standing as the solicitor-general was placed. He (lord Erskine) had left his seat, and had gone into one of the galleries for the greater convenience of hearing it. The learned solicitor-general had said, in his summing up, not 6 only that the evidence, as it stood, made out a clear case against her majesty, and in support of the whole crime set forth in the preamble of the bill; hut he had felt it his duty to add, that he could not, by any possibility, see or imagine how, from the nature of the evidence, the facts stated by the witnesses could in any manner he combatted. He had repeated over and over again, that it was impossible the facts could be rebutted—that no such consequence could arise from any evidence which could be produced for the defence. The learned solicitor-general, in making these comments upon the case he was bound to support, had done no more than his duty; but if their lordships, after hearing that speech, decided upon adjourning without hearing any observations from the counsel against the bill, then they would, during the time of their adjournment, be it for two or three months, be exposed, not alone to the impression of the evidence for the bill, but also of the speech made in support of it in the summing up of the evidence. He begged leave just to put a case. Suppose the case of a prosecution which had terminated at a late hour in the day, and that the counsel for the prosecution applied to the judge to adjourn until the following day, when it would be more: convenient to begin with hearing the defence; suppose, then, the counsel for the I defence should say, "No, I oppose the adjournment; I desire to have my right of answering this case before the jury shall go home under the influence of the prosecutor's statement: I seek now to be heard to take off that impression, which I can do." Did their lordships think any learned judge upon the bench would tell that counsel who demanded to be heard, that he must desist from removing the impression created by the counsel for the prosecution until the following morning? No judge would say so; if he did, he would violate his duty.—Besides, he desired to know on what ground the question of adjournment was brought at all under their lordships' consideration at the present moment. No adjournment was now called for, and no decision upon it was now necessary. Whenever that subject came before them, their lordships could consider the grounds upon which it was made, and dispose of it as their sense of justice dictated. An adjournment now would, it was said, be favourable to the Queen, as it would enable her ma- 7 jesty fully to meet the evidence against her: now, on the contrary, he thought it would be rather unfavourable to her, after the summing up had been permitted. He conjured the House to suffer the Queen's attorney-general to proceed: he had stated that he was prepared with testimony which would overthrow the impression which the statement of counsel for the bill was calculated to produce. Let, then, "the bane and antidote" go forth both together; and Jet their lordships carry home in their minds the statement on each side, instead of the statement on one. If they suffered the counsel against the bill now to proceed, they would, as he thought, be acting right; if they refused him the permission he claimed, then he thought they would be inflicting a great wrong. It was only right to call upon their lordships to suspend, so far as they had the power, the prevalence of any opinion upon the case, until the whole was gone through. For himself, he had no feeling upon it but the attainment of the real ends of justice; but he begged that he might not be under the necessity of meeting an adjournment under the impression of ex-parte evidence and a summing-up speech.
The Earl of Lauderdalesaid, that the question on which their lordships were now called upon to decide was precisely this—whether, if an adjournment were necessary, that adjournment should take place at the time the case for the bill had closed; or whether the counsel against the bill should be permitted to make his opening speech, and then to have an adjournment before the production of his evidence. Now, he was prepared to contend, that if the House adjourned at all, the present was the proper time when that adjournment ought to take place [Hear, hear!]. They could take no other course respecting an adjournment without committing great injustice. He was perfectly ready to concur in opinion with his noble and learned friend, that an adjournment at any time was a great evil; but they had in this case a choice of evils, and they were bound to select the lesser of the two. It was true that, if they adjourned now for the space of two months, both the evidence and the speech of the solicitor-general would go forth to the world during such a recess; but it was a mistake to say it went forth unaccompanied by cross-examination; for there had been cross-examination, and the adjournment afforded 8 ample opportunity of collecting whatever evidence could be had to combat the facts asserted in support of the bill. He felt convinced that no fair man, that no member of their lordships' House, would suffer any impression to operate upon his mind to the prejudice of her majesty the Queen, until he had heard her defence, and had arrived at the conclusion of the whole case. He was at a loss to see what just grounds of complaint the counsel for her majesty could have at the summing-up being permitted before the adjournment: that adjournment, surely, would enable them the better to ruminate over the case for the prosecution, and the value attached to any of the details of evidence in its support, and to make a more complete and decisive reply to all that had been urged. As the case stood, the evidence had gone forth, and the summing-up could be compared with that evidence; but if they permitted the attorney-general of her majesty to proceed now, they would be hearing a statement unaccompanied by any proof in its support. He knew the counsel of her majesty to be men of as much honour, respectability, and talents, as could be found, and that there was no danger of their making use of the opportunity of stating their case to assert any thing as a fact which they were not instructed they should afterwards have the means of substantiating in evidence; but he could not consent to intrust counsel any where with the privilege of stating the case for a client, unless they were to be immediately after called upon to adduce their evidence. He saw great danger in extending such an indulgence to any body. Indeed, such a proposition as this had never before been made in any court. To talk of what the courts below would do in such a case, was to reason without analogy; for there never before was tolerated, in any case in the courts, such an adjournment as their lordships were now ready to concede to the Queen, between the opening of the case and her defence. But he did remember having been present at the hearing of a case in the courts below, when an application made on the part of the defendant for a few hours' delay was peremptorily refused. Did not the late lord Ellenborough, in lord Cochrane's case, give that refusal? The case for the prosecution had been closed, and the counsel for the defendant made an application to have until the following morning 9 to prepare the defence. Lord Ellenborough instantly rejected the application: he said that he had a great many hours of the day yet to spare, and that he could not think of interrupting the proceedings. He was perfectly at a loss to conjecture the object of the learned counsel of the Queen in wishing to have a speech, and then to adjourn their evidence. If they had their witnesses ready, why not go on? If not, how could they comment upon evidence which might not hereafter be available for them? He submitted to their lordships' candour, whether it was not the general understanding, that the adjournment, if at all, was to take place in the present stage of the proceedings? The fact was, that her majesty's counsel, if their application were granted, must either state a case far short of what they would be able to prove, or else indulge their imagination; and unless he had lost all idea of what was likely to influence the minds of men, such a proceeding would be directly calculated to produce that effect.
The Lord Chancellorsaid, he had never, in the course of a professional life, felt more strongly inclined to avoid any duty, than that which he now was called upon to execute. He begged to be understood as by no means opposing the indulgence in the first instance suggested—the giving time to counsel, if time they required, for the preparation of their defence; but, painful as it was for the House to resolve upon a course, the effect of their resolution would not be confined either to the present case or to the present day; they must act upon some principle on which they could fairly leave the future and the general administration of justice. Most unjustifiably he should disguise his opinion if he said, that evil did not attend the view which he had taken of the case. True, every individual who sat in that House would stand convicted of violating his duty, if he suffered himself to infer any thing even approaching to guilt from the evidence which had been laid before him. It was the duty of the House to remember, that every syllable of it was capable of being disproved, and to guide its conduct by that recollection; but, at the same time, it would be most unjust to represent, it was impossible even to hope, that either the House or the public could, after what they had heard, go away without some prejudice unfavourable to the Queen. Their lordships, then, had but a 10 choice of evils; and it was for them to consider what would be the consequence in criminal cases hereafter, if that evidence which was necessary to the statement of any case which counsel might have to offer were postponed to an indefinite period after that statement had been made. Himself, as well as his noble and learned friend, lord Erskine, were approaching the term of their natural existence. No doubt both acted from a feeling of their duty. He gave credit to that noble and learned lord for more experience in matters of similar description than he could have; still they might differ—they did differ. He agreed with the noble lord that the House had no right to say to a counsel, "If you open your case, you shall pledge yourself that you will call witnesses, or that you will not call witnesses." It would be difficult for him to illustrate his (meaning by any reference to the proceedings of the courts below, because in those courts adjournment even for a week was a thing never heard of; and an adjournment for two I months was out of the question; but he would ask the noble and learned lord, or any noble lord conversant with the practice of the courts below, whether the rule was not this:—You cannot call upon a defendant's counsel in opening his case, to say whether he will or will not examine witnesses; but if he does commence his statement, and at the close of it is of opinion that he ought to call witnesses, then the commencing his defence has given an implied pledge to the court that his witnesses, should he think fit to call any, are ready to be produced. He did most confidently assert, that in opening a case every counsel gave an implied pledge to the court that he was ready to finish it. Such a counsel might call evidence if he pleased, or, without evidence, take the opinion of the jury; but he must close his case in one way or the other. He made (the noble lord continued) liberal and large allowance for the prejudice which the one side might suffer in the public mind; but suppose the prosecutors had demanded to open their case before they were ready to call their evidence, would such a proposal have been endured? Then look at the nature of the prejudice, which, as to the one party, would be excited. The supporters of the bill had stated their case, and examined their witnesses; the other side had enjoyed the benefit of cross-examination, and of occa- 11 sional observation upon such cross-examination; but if the House permitted the statement of the defendant's case, what would be the consequence? He agreed with the noble lord upon the cross-bench, that great confidence might be reposed in the honour of the learned counsel to whom the defence of the Queen was committed; and he hoped never to see at that bar any man in whom the fullest confidence might not be placed; but, as a general principle, the security of the administration of justice demanded that implicit credit should not be given to counsel; and it was not because the individuals at present concerned were men of honourable and cautious character that the House would be justified in establishing a precedent, which must be abided by under circumstances perhaps of a different description, it was upon general principles applicable to all men, and upon such principles only, that the House could safely and properly act. But if the House acceded to this request of counsel, what would be the consequence, what the prejudice sustained by the other side? Their lordships would have before them the statement of the defendant, unsupported by evidence, or only by partial evidence; and perhaps, by-and-by, evidence brought forward applying to a case entirely different. And the noble and learned lord told the House that, this was all owing to the want of specification in the bill. It was no such thing: a proposition had not long ago been made by the noble and learned lord to delay the proceeding altogether for a considerable time, and then to commence and complete it without stopping; but such a course would have been impracticable; the very nature of the case would have compelled the counsel for the defendant to call for delay at the close of the evidence in support of the bill. In addition to what he had said, he would merely state that he had taken the earliest opportunity of addressing the House with no other view than to discharge a painful, but an absolute, duty. Consistently with that duty—consistently with the honour of a peer, or with the duty of a man—he could not consent to the proposition of her majesty's counsel. He could not agree to their opening their defence without a positive statement that they meant to complete it—unless the House took the commencement as an implied pledge for the completion; and he should have 12 thought that he acted unworthily if he had permitted them to give that pledge without announcing that as a pledge lie should consider it.
§ Earl Greydeclared, that the present question seemed to him most important in every point of view. It was important as it affected the pending proceeding—important as it affected the influence and the character of the House; and he should have felt himself unworthy of that rank which he always hoped to hold in the opinion of their lordships as an honest and independent peer—if not blessed with those brilliant talents which upon some occasions he could wish to command—if he had not upon such a question offered his opinion in opposition to that of the noble and learned lord who had last sat down. He agreed that it was a case of difficulty, and it was with difficulty that he had come to a conclusion upon it. He had hesitated, doubted, and when he should at last decide, he should feel with the noble and learned lord that he took a choice of evils. With that noble and learned lord, however, he could go no further. He could not agree that the present difficulty ought not to be ascribed to the previous proceedings of the House. It appeared to him to arise entirely out of those proceedings—out of the refusal to give in this case to the Queen that certainty of situation, that specification of crime, and that knowledge of witnesses, which the law of England allowed to every individual similarly situated. The noble and learned lord upon the woolsack had made an assertion—which was merely an assertion—that even if those advantages (rights he ought rather to have called them) had been granted, the counsel for the defence must at last have come to an application for delay. He was at a loss to understand upon what principle that assertion could be grounded. If the specification of charges, the list of witnesses, and the other advantages had been given, nothing could have occurred, as it appeared to him, to entitle her majesty's counsel to make such an application; nothing which could give them any claim to a deviation from those forms in similar cases commonly observed; but, refused those rights by the noble earl opposite, and by the House at large—attacked by charges spreading, in time, over a period of six years, and in space over three quarters of the world—denied that specification of facts, that list of witnesses, 13 which would have been granted to her in the ecclesiastical courts, and which, if indicted for treason, she might, by the law of Edward III, have claimed even before that House—denied those advantages, an equivalent at some stage became absolutely necessary, in order to enable her majesty to enter upon her defence with that power which the law of England granted even to the meanest culprit—the power of doing justice to her innocence, if innocent she was. The equivalent was necessary; the equivalent was promised; and the question was now, in what manner it should be given?—His noble friend upon the cross-bench, and the noble and learned lord upon the woolsack, had stated the extreme disadvantage which was to arise, if, after hearing an opening speech from the counsel for the Queen, and, still worse, if, after hearing the evidence in part, the House were to adjourn the proceeding. In the first place, he would endeavour to set the House right as to what he took to be a misapprehension of the learned counsel at the bar. He had not understood the learned counsel to propose that, after hearing, the evidence in part, the House should adjourn until farther evidence should be procured. The proposition of the learned counsel he took to be this—that he would proceed forthwith with his statement, but that he could not, until he should have concluded that statement, take upon himself to say, whether the impression which it had produced upon the House would or would not make it necessary for him to call evidence. That evidence was of two kinds—part actually in the learned counsel's possession, and part at a distance; but he had not understood the learned counsel to say, that if, at the conclusion of his statement, he should decide to call evidence, he would first produce that which was in his possession, and then apply to suspend the case until he could collect that which was at a distance. The difference was material; for although he heartily concurred in the first application, he was by no means prepared to accede to the second. He had admitted that the House had only a choice of evils, and he would admit, that there would be considerable disadvantage in sending forth to the country a statement, not only unobserved upon by the opposite counsel, but unsupported by evidence, and perhaps incapable of being sustained by the evidence afterwards to be brought in support of it; hut the 14 House was not to presume, and God forbid they should have reason to presume, that any counsel, much less those now employed by her majesty, would abuse the privilege granted to them by the House, for the sake of producing a temporary impression. That was not a character to be given to any counsel standing in the situation of attorney-general and solicitor-general to the Queen; and, from his knowledge of the gentlemen who now filled those offices, he was confident that they would state nothing which they did not think material to their case, and nothing which they had not the means, by evidence, of supporting. He admitted that there were questions to be decided, not upon individual character, but upon general principle; that, however they might be disposed to trust the counsel, they must remember that counsel acted from their instructions, and that those instructions might be furnished to them by persons not actuated by the same liberal and honourable principles. He admitted all this; he would admit evil to any extent which the noble lords who opposed the application might desire; he admitted all the difficulty; but he desired them to look at the other side, and to view the effect of the course proposed by the noble lord upon the cross-bench. In what situation did that course leave the Queen? It left her exposed to the effect of all the evidence, true or untrue, which had already been produced. It was said, that all that had been set right by the cross-examination; but it was not by cross-examination only that evidence could be answered. A clever witness, deposing to falsehood, might baffle cross-examination, especially when, understanding the language in which the question was put, he had time to frame his answer while the question was translating. This might defeat cross-examination in any case; but here the cross-examination was of necessity imperfect. What could be hoped from cross-examination, when the examining counsel knew neither the character, the residence, nor even the name of the witness, until he appeared at the bar, and when he was compelled to adapt his questions merely to the circumstances which the witness had deposed to? It was only by contrary proof that such witnesses were to be contradicted; and he would put it to those who now dreaded the effect of a mere statement going forth for three months, to say what would be the effect 15 of suffering the evidence of perjured witnesses to go forth during the same period. He did not mean to give that character to the witnesses in the present case; but the House had been told, that they must act upon general principles. But it was not the evidence merely that was to go forth. That evidence had been followed up by the summing-up of the solicitor-general, bringing all its circles to one point before the view of the House, and concluding with a complaint of hardship on the part of the learned gentleman (a hardship, however, of which counsel were sometimes given to complain), a complaint that the case had been so strongly made out, that it was impossible for him to foresee what defence could be offered. Now, looking at the comparative disadvantage of granting the application, and of refusing it; and looking at the situations of the parties who, by such disadvantage, were to be affected; he did ask the House, whether, in the spirit of English law, or in the spirit of universal justice, upon any principle of common humanity or compassion, they could subject the accused to that disadvantage, and give every advantage to the accuser? or whether they ought not to respect that humane principle of English law, which surrounded the accused on every side with protection, and cast disadvantage, if disadvantage must be the lot of one, upon the side of the accuser? This he would contend for as a general principle; but in the particular case before the House, it was an argument irresistible; because, how had the disadvantage been created? By the act of the House itself—by the bill of Pains and Penalties—by a proceeding altogether anomalous, for which no precedent could be cited, and which, he trusted would never be cited as a precedent. It was that proceeding that had embarrassed the House with difficulties; every step they took, their embarassments were increasing; the House had encountered nothing but difficulties since first they entered that
Perfidious bark,Built in th' eclipse, and rigg'd with curses dark."—The House had denied a right; they had promised an equivalent. This was the equivalent demanded, and yet the Queen was told that she must submit to have all the evidence against her circulated for months, and not to be permitted to say one word to weaken the prejudice which 16 that evidence had created. In this choiće of evils he must choose the least, and he did so when he supported the application.—He had already trespassed too long upon the time of the House, but he could not forbear to say a few words upon the case which had been cited by the noble lord upon the cross-bench; that case had been decided by the late lord Ellenborough; and when he mentioned the name of lord Ellenborough, he mentioned the name of a person for whom he felt the highest respect, who had done honour to the seat which he had filled, and whose conduct, ability, and learning, would be remembered as long as the law should continue to exist; but he had often heard the case in question mentioned, and never without regret on the part of the noble lord's best friends, for the course which he had taken upon that occasion. The case was this:—At a late hour of the night, a counsel (a learned judge now present was the individual) had applied to lord Ellenborough for time, stating his own personal inadequacy, from fatigue, to the task of addressing the jury; and the inadequacy of the jury, from the same cause, to afford him attention. Lord Ellenborough insisted that Mr. Serjeant Best should proceed immediately. Mr. Serjeant Best then did what the learned counsel at the bar now proposed to do—he went on. And, what was the consequence? Did he proceed to the end of the cause? On the contrary, he stopped when he had opened his case. The cause which the judge refused to suspend before the opening the case, had been suspended before the production of the evidence. A case more unhappy, as regarded the arguments of the noble lord who had cited it, he had never heard.—I have troubled your lordships (said earl Grey) longer than I intended; but I have been induced to do so from an imperious sense of duty. From day to day, since this disastrous proceeding commenced, we have been engaged in new difficulties, inconsistent not alone with the rules of parliament, but inconsistent, I am sorry to be obliged to add, with the principles of justice. It is not, my lords, longer ago than yesterday, when a communication was about to be made from your lordships to her majesty's counsel, on a point preliminary to her defence, that a question was put by a noble earl (Lonsdale), founded on an understanding, which was the result of an application of a certain number of your 17 lordships to the head of the Treasury, as to a separation of the parts of the present bill [Cries of Hear, hear!]. This unheard-of proposition, the recollection of which, even at this moment, shocks me, did not, happily, receive much approbation when explained. To-day we are called upon to make a decision on a choice of evils, all brought upon ourselves by our own acts, and any decision on which, we have the authority of the noble and learned lord on the woolsack for saying, must be productive of bad consequences. I do believe the noble and learned lord. I do feel the character of the whole proceeding to be this—that whatever course we take—whatever decision we adopt, must be injurious to the public safety. But, my lords, in this admitted choice of evils, there still is to be found a duty—and if in the exercise of a sound judgment, we can fix on that choice which is the least encumbered with difficulties, that is the decision which I think we should approve. But if the course I recommend is less surrounded with evils; it has, in my judgment, also this powerful recommendation, that, if we are so situated as not to be able to proceed, without imposing difficulties on both the parties whose interests are affected by this bill, we are bound to adopt that course which the spirit of justice and the whole analogy of British law inculcates, namely, that if difficulties must be imposed, they should be thrown upon the accuser, and not upon the accused—they should be imposed upon those who uphold the bill with the whole influence of authority and power, rather than upon the illustrious personage against whom the whole of that influence and power is directed. My lords, this is the choice which I feel to be dictated by the principles of law and justice; and to the spirit of those principles I appeal. For my own part, I never gave a more satisfactory vote in the whole course of my political life, than I shall do in support of the application this day made by her majesty's counsel.
The Earl of Liverpoolwas ready, he said, to admit the proposition which had been laid down by the noble earl in the beginning of his speech, and with the repetition of which he had closed it—that if the question were one of equal disadvantage to either side, the benefit of the doubt ought to be given to her majesty. But the question for the House to consider was, whether the inconvenience on 18 one side was not beyond all comparison greater than on the other; and he was much mistaken if he should not show their lordships, that whatever inconvenience the Queen might sustain from a refusal of the application, that inconvenience would be incomparably less than that which would result, not only to the particular case in question, but to the general course of justice, from that application being granted. Before, however, he came to that part of the question, he wished to say a few words in answer to what had fallen from the noble earl, as to the cause by which the present inconvenience had been produced. He did not mean, at this time of day, to enter into the question whether the proceeding by bill of Pains and Penalties was the best or the most proper course that could have been pursued; but of this he was certain—that, as far as it regarded the accused party, it was a course far more favourable than the course by impeachment, which had been proposed by the noble earl himself. If the course by impeachment had been adopted, the first proceeding would have taken place in the House of Commons; the evidence would not have been given upon oath; such as it was, it would have been merely ex parte; it would not have been subjected to cross-examination, and the accused could have brought no witnesses in her defence. The consequence would have been that a much stronger mass of evidence would have been gone into (because things would have been merely stated, perhaps, which would not have been sworn to); and the whole of that evidence, without cross-examination, without even a remark from the counsel employed on the part of the Queen, would have gone down to the public many weeks, or perhaps months, before the business coming on in the House of Lords would have given her majesty the opportunity of making her defence. Add to that, all the privileges claimed in such cases by the House of Commons; there would be no list of witnesses there; no specification of charges; nay, new charges might be introduced at pleasure; and no one could doubt that, whether the course adopted was or was not the most expedient and most constitutional, it was, as regarded the Queen, beyond comparison the most favourable. In the present case, the facts were charged as specifically as the nature of the transaction would admit; and the accusers came with their evidence upon 19 oath, and subject to cross-examination and to comment. As to furnishing the names of the witnesses, there was no precedent for it, there was no law which authorised it, with the exception of the law of high treason—a law that stood on its own particular ground—and which exception grew out of the severe nature of the penalties attached to the crime. That exception was contrary to all the principles of our law; and let it be remembered, that some of the highest constitutional authorities known in this country had expressed serious doubts whether, even in cases of high treason, such an indulgence ought to be granted. It was, however, perfectly true, that in the course of the discussions on the present case, it was agreed, not merely from the consideration that a list of witnesses was refused, but on account of other considerations, which had infinitely more weight on his mind—namely, the nature of the crime itself, and the circumstance of its having been committed abroad—that her majesty should have an interval between the close of the accusation and the commencement of the defence, in order, if possible, that she might be enabled to rebut the evidence adduced against her: but he would ask of their lordships, when that advantage was held out to her majesty, whether there was any one of them who supposed or believed that it was to be granted in the middle of the defence, and not at the end of the prosecution; or who understood it in any other sense but this—either that the counsel for her majesty was to proceed immediately with the defence when the prosecution was closed, or else to ask for any reasonable delay that might be necessary to give him an opportunity for the collection of such evidence as would shake the case laid before their lordships? That, however, which was now required was not a delay previous to the defence, but in the course of the defence, and at any period, too, in which the counsel for the Queen might please to demand it. This was a proposition inconsistent with every possible principle of justice. A noble and learned lord (Erskine), for whose authority on subjects of this nature he entertained, as he ought to do, the highest respect, had said that his majesty's solicitor-general could have put off his summing up. He would ask how the solicitor-general could have put it off? How could their lordships have said one word to the counsel for her majesty until the 20 case was closed on the other side? If the cross-examination had been postponed, that would have been the proper period for their lordships' adjournment, in order to afford the opposite party the time necessary for procuring witnesses. But the cross-examination having gone on, the moment the attorney-general for the Queen said, "I have no further questions to ask," then, he maintained, his majesty's solicitor-general was bound to proceed with his summing up, and they had no right to press that circumstance against the counsel for the bill. They had heard a great deal about this cross-examination, of witnesses, and he must say that he did, on a former day, when questions were agitated by a noble and learned lord (Erskine) on the subject of furnishing a list of witnesses, state his opinion, that her majesty's counsel had a right to adjourn their cross-examination, because it was hard to suppose that they should be forced to adopt a course that did not seem to them to be most advantageous for the interests of the illustrious individual in whose behalf they appeared; and as they had waved all farther cross-examination, it was to be inferred that they had done so, because any further questions appeared to them to be unnecessary. It might be said, that the counsel for her majesty were not possessed of the names of the witnesses, and that they could not imagine who would be brought forward on the part of the prosecution. Undoubtedly witnesses were produced, of whom, perhaps, they had never heard, and of whom probably they had not even thought. But he conceived it almost impossible for them to read the preamble of the bill, without perceiving of what description some, and those material witnesses for the bill, were, and to what class of persons they belonged. He did not mean to take this observation for more than it was really worth; but he could not allow the remarks that had been previously made on this part of the subject to pass without stating so much.—He now came to what he conceived to be the main point of the question; namely, was there any comparison at all between the convenience which her majesty would derive from the delay required, and the inconvenience that it would occasion to the great cause of public justice? He spoke of a delay not now, but in the middle of the defence. In commenting on this question, he wished, in the first place, to guard himself 21 from being supposed to throw any reflection whatsoever on the counsel employed for her majesty. He believed they acted as honourably as any men placed in their situation could do; and that, in the course of this proceeding, they looked only to a proper discharge of their duty. But they had said, that, having the interests of a great and illustrious person in their hands, they were bound to consult her advantage in every thing and by every means. He thought, therefore, their lordships had a right to argue, not on the perfectibility of the individuals, but with reference to what might happen hereafter in cases of a similar nature. How did the matter stand? The case had been opened—witnesses were called in support of it—they were cross-examined by counsel, and reexamined by their lordships. The evidence—the ex parte evidence, if they pleased—had been sifted as far as such evidence could be sifted. The case, he admitted, had been summed up—a circumstance on which he had already made an observation. Their lordships had the case for the prosecution before them—they were in possession of the charge, and of the evidence adduced in support of it. He did not mean to say that no inconvenience would result from the circumstance of the charge going forth and remaining in the minds of their lordships and of the public for a period of two months. He admitted that it must produce inconvenience. Although their lordships, he was convinced, were desirous to keep their minds in a state of perfect impartiality, unbiassed either one way or the other, yet he could not contend that a disadvantage might not arise, in consequence of their being acquainted with the whole of the case on one side, and the evidence by which it was supported. It was, therefore, a choice of difficulties. And, in coming to a decision, it was necessary that they should consider what situation the House might be placed in, if the application for delay, in the midst of the defence, were conceded. If it were allowed, learned counsel (and he here spoke of learned counsel generally) might open a case on false information, which they possessed no means of proving and verifying. Their lordships might have an imaginary case stated before them, without any evidence whatsoever to support it. What, then, was the difference between a case going forth together with the evidence on which it was founded, and 22 a statement going forth without any means of ascertaining how it would be supported? In the one case, they had the evidence with the statement; in the other, they had a statement without any evidence at all, much less with any evidence capable of cross-examination, or being sifted in any way whatsoever. He could see no just ground of comparison between those two cases. The difference between the inconvenience on the one side and on the other, was as great as that which might arise from pursuing a course of justice or of injustice. He declared he could see nothing so difficult, nothing so objectionable, in point of justice, as stopping suddenly in the middle of a defence. The learned counsel had, he believed, stated (he knew not whether he understood him accurately), that he had no right to declare whether he meant to produce evidence. He admitted that he could not be called on to state whether any evidence would be adduced until he had made his statement for the defence. But he understood the learned counsel to express a wish that he should be placed in this situation—namely, that he should be allowed to call for an adjournment after his statement, or after the examination of any part of the evidence which he might think proper to bring forward. Would that be a prudent time to grant a delay? Would such a delay be consistent with the forms of justice? The noble earl (Grey) had stated, that he felt the latter proposition, to be so untenable, that, though he had no objection to granting a delay after the statement for the defence had been made, yet he could not agree that a delay should take place in the middle of the evidence. He could not, however, perceive the great difference between the two courses. The very statement made by the noble earl pointed out the great difficulty of adopting the proceeding which he declared himself ready to support; but where, he asked, was the difference between the one proceeding and the other? Here was a statement to be made which was ultimately to be supported by evidence; and he contended it was not fit, when such a statement was made, that it should go forth to the public without the evidence being produced along with it. Where was the difference, then, between saying, "I will let it go forth without any evidence; but if any part of the evidence is adduced, then the question is over, and I will not agree to that?" For 23 his own part, he conceived that allowing the statement to be published with a portion of the evidence, was less objectionable than sending it out unaccompanied by any evidence at all. The more, however, they considered the proposition altogether, the more untenable it would be found in every point. He knew of no case but a whole case. The case for the prosecution was a whole case, as it referred to the prosecution; the case for the defence was a whole case, as far as it went to the defence. There was an opening statement, the examination, cross-examination, and re-examination, of witnesses, and finally the summing-up. This formed a whole case; it was indivisible in its nature, and could not be separated. The course which their lordships had agreed to adopt—that of granting a delay before entering on the defence—was, to a certain extent, dangerous; but it was clearly contrary to the principles of justice that the subdivision of a case should be permitted. If they once allowed it, what were the limits to which such a practice should be confined? Where were the points at which that subdivision should cease? The more they looked at the proposition, the more evidently would they perceive, that to act on it was wholly impracticable. They were willing to grant a proper delay before the defence was entered on. That he contemplated as the only proposition that could be fairly and prudently adopted; but to agree to this subdivision of the case, would be to commit tenfold more injustice than could be effected by any other means. He by no means wished to conceal from their lordships that there was no inconvenience, no hardship, in the course that had been adopted; but he would contend, as he had done from the beginning, that there was no inconvenience or hardship attendant on this mode of proceeding that would not have been incurred if impeachment had been resorted to. Beyond this, he was bound to say that the inconvenience and hardship that would be suffered on the side making the application, bore no comparison whatsoever to the inconvenience and injustice that would be suffered by the other side, if the proposition were agreed to. He contended that they could not divide the defence more than they could divide the accusation. They must take the whole together. Her majesty's counsel was fully entitled to his option, to begin now and to proceed with his 24 defence altogether. When he said now, he did not mean this day, but after the lapse of a few days, during which he might arrange his evidence, and shape the manner of the defence. That pause being allowed, he might, if he pleased, go through with the defence completely. But if, on the other hand, he conceived that an adjournment was necessary to the success of his cause, he had a right to demand it before he entered on the defence, the House having previously understood that this was the only alternative. But for the reasons he had given, and from the view which he had taken of the subject, it appeared to him, that no argument could be adduced, and that no analogy could be stated, in support of the claim that was now made for an adjournment in the midst of the evidence.
The Marquis of Lansdownwas anxious to offer a few words, for the purpose of calling their lordships' attention to the order of their proceedings. As far as he knew, there was no question before the House; no application had been made for delay, as he understood, by the counsel lately at the bar; and no motion had been submitted to their lordships that this House should adjourn. He knew too well the propriety of conduct which distinguished the learned lord on the woolsack, to imagine that he could think himself justified, after the difference of opinion which had been manifested, in stating any thing to counsel at the bar, without an express direction from the House; and he now desired to know (he hoped it was not disorderly in him to do so) what it was the noble earl opposite wished to move should be stated to counsel in the name of the House.
The Lord Chancellorobserved, that a motion was about to be proposed relative to the statement to be made to counsel when they were called in.
The Marquis of Lansdown wished to know its purport. After a few words from the earl of Liverpool, his lordship proposed the following resolution, which was read by the Lord Chancellor:—
"That the Counsel be called in, and the Counsel for Her Majesty informed, that if they thought proper now to proceed to state the Case of Her Majesty, and meant to produce Evidence, they must proceed, at the close of the Statement of the Case, to produce the whole Evidence intended to be adduced, such being the usual course of proceeding; but 25 that the House were willing to adjourn for such reasonable time as the Counsel for her Majesty might propose, in order that when they began their Statement, they might be able to proceed in producing their Proof at the close of it."
The Marquis of Lansdownsaid, that now understanding distinctly, for the first time, the terms of the proposition before the House—a proposition not occasioned by any application from counsel at the bar, and no reason having been given to them for proposing that such a communication should be made to counsel in this stage of the business—he felt himself called on to state, with all humility (not being so much acquainted with the course of proceedings in the courts below, nor in matters of higher judicature, as many of their lordships were), that, so far as he was informed on the subject, a more unusual communication than that now proposed to be made to counsel at the bar, had never been known in any court of judicature whatsoever. He would go farther, and say, that if, in answer to that communication, the learned counsel at the bar stated that he would not agree to cither proposition, but that he would reserve himself, in performing his duty towards his client, to make such application to their lordships as he might think fit at the moment, and under the peculiar circumstances of the period which might call for that application—if the learned counsel said this, he would, in his opinion, do nothing more than discharge the duty which he owed to his client. And he believed, that, of all the learned counsel who were lately at their lordships' bar, there was not one who would think it consistent with his duty to enter into such a regulation as that now proposed for their lordships' adoption. A more extraordinary proceeding never occurred in a court of justice: such a proceeding was, in fact, never before heard of. A proposition was made to their lordships for the purpose of opening a treaty, and entering into a compact with counsel at their bar—with individuals selected to perform a most important duty. Surely so extraordinary a proceeding was never before contemplated in a court of judicature. What was proposed to be done? Nothing less than this—that the learned counsel at the bar, who were ready to proceed—who stated they were ready to proceed—who had a right to proceed, on account of the situation in which the case now stood—should 26 be told, in direct terms, "You shall not proceed unless you will undertake, in no case whatever, and under no circumstances whatever—ignorant of the evidence you may be able to produce, not knowing its bearings or character—still you must undertake to make no application for delay." This was one part of the question. But in what sort of a situation was the House placed? What were their lordships to do? Why, they were to say, "We, on the other hand, in return for the concession which we demand from you, bind ourselves, say what you will, let whatever circumstances arise, let the varying forms of justice connected with the case be what they may—we bind ourselves to listen to your communication; but, beyond that, we shut ourselves up, we close our ears to the applications of justice, and, by this compact between the judges on the bench and the counsel at the bar, the case is to be decided."—They had heard—and he thought it was absolutely disgraceful to, and unfortunate for, the character of the Crown—of conferences held, of agreements proposed, between the ministers of the Crown and the counsel at the bar; a proceeding that had never yet been made the subject of comment in that House. It was, however, a proceeding that had given to every reflecting man in this country, cause for much sorrow and much regret. It must have grieved every individual who considered the subject, to see the Crown of England in such a situation—negotiating with a subject—treating with regard particular concessions—and these very matters entertained in parliament. But he hoped, at least, that nothing like a treaty, nothing like a compact, nothing like a protocol of what had been done between the House and the counsel at the bar, would be entered amongst their proceedings as a part of that grave, solemn, and judicial inquiry which now occupied their attention. He must, therefore, under a deep sense of duty, protest, for one, against being bound by this resolution. He, for one, would not consent to forbid the counsel at the bar to do that which he conscientiously thought the)' were perfectly competent to do; neither would he bind himself by the terms of that proposition, to act, in the course of these proceedings, in a manner which he could not pursue without betraying his duty. He would not consent to a motion which in any degree would prevent him from fol- 27 lowing that course which at a future moment he might deem necessary.—Having said this much with regard to the extraordinary proceeding which their lordships were called upon to adopt, he would now advert to all the difficulties with which the case seemed to be surrounded. He would say, agreeing entirely in the sentiments of his noble friend (earl Grey), that, navigating this sea unknown without a chart, it was impossible for them to steer clear of danger, let them take whatsoever course or direction they might; but he found this difficulty considerably augmented by the particular moment at which the matter was brought forward; and he would say, notwithstanding what had fallen from the noble earl opposite, that if any such interposition as that now before the House was thought necessary, with a view to the supposed interests of justice, it was incumbent on the House to have originated it before his majesty's solicitor-general had summed up the evidence on the other side. For what was the object of summing up by a counsel? Here, before he answered this question, he would observe, that his noble friend on the cross-bench (lord Lauderdale), the noble earl opposite (Liverpool), and the learned lord on the woolsack, who had insisted on this particular course of proceeding, and recommended it by their votes, had all of them, with feelings which it was impossible that minds like theirs would not experience, expressed their earnest wish, hope, and belief, that the evidence adduced at the bar would not be allowed to make an impression on their lordships minds. At the same time, the noble and learned lord, in justice and candour, found himself bound to admit, taking a proper view of human infirmity, that the publication of that evidence must produce a certain degree of impression. The learned lord viewed this circumstance as an evil, and expressed the greatest anxiety that the evidence should not be allowed so to operate; and yet, he would ask their lordships, what was the effect of the proceeding which was recommended? They had admitted the comments of the solicitor-general on the predetermination of adjourning the moment these comments were closed, which was described as the legal, the proper, and the natural mode of proceeding. But what was the wish of the learned solicitor-general in making these comments? His design evidently 28 was, to give a bias to the case, to strengthen that impression which their lordships had deprecated, to point out those parts of the case that were strong, to pass over those that were weak, and to give that direction to the minds of those who heard his statements, which would lead to a conviction that the bill was fully supported by the evidence. Their lordships feeling the necessity of adjourning, and wishing to keep clear of any bias or impression, should have selected an earlier period for that purpose. But now, an adjournment was proposed when the solicitor-general had closed his case, which must produce a considerable effect during the period of adjournment. Their lordships had allowed the solicitor-general, who would have been as able to sum up at a future period as now—who might have made a statement without any danger of producing an undue bias on their lordships minds—they had permitted him to make all his comments on the evidence, for the express purpose of creating an impression, if it did not exist before; and having heard all that he had to say, having heard every thing that could aggravate the circumstances of the case, they exclaimed, "this is the proper moment for adjournment," before any observation whatever was made on the other side in consequence of those comments. This was the course which, to his utter astonishment, accustomed as he was to the great candour and sound judgment of the noble earl opposite, that he counselled them to pursue. This was what he termed the most equal balance of justice—this was the most proper moment, in his idea, for suspending proceedings in this case! It was an equality of balance coming to this—"Hear all the evidence on oath on one side—hear the comments on that evidence—hear every thing that can be brought together to make against that side of the case; and, at the very moment when the feeling intended to be raised is wrought up to the highest pitch, then declare that to be the best and the safest moment, in justice to both parties, for suspending the proceedings." They had said, that to suspend the proceedings at all would be to do an injustice; but, to alleviate that injustice as much as possible, they were told that a proper and convenient time would be selected, and the present moment was pointed out to them as that proper time, when the whole weight of evidence and the whole weight 29 of comment militated against one side! The inconvenience that might have been produced by adopting another line of conduct was nothing, when compared with the gross and palpable injustice of allowing all the evidence to come out, enforced by the reasonings of the solicitor-general, calculated as they were to create an unfavourable bias on the public mind. What did the noble earl think of the foundation on which his bill stood, when he feared so much for its ultimate success? It was supported by evidence on oath—it was sustained by the comments of the solicitor-general; and that which could be now alleged against it could amount only to a mere statement. But the noble earl seemed to think, notwithstanding the manner in which the bill had been supported, that if, unhappily, it were attacked by one day's comment on the other side, it would be defeated; and he called out, "that the permission to make those comments, even for a day, would be so grossly unjust, would be such an abandonment of all the principles of right and wrong, that it ought not to be conceded." He seemed to think that there would be an end of the case, and that no man, however sanguine his expectations might have been, could be sure of its success under these circumstances. The real balance of inconveniences was on the other side, and not on that where the noble earl seemed to suppose it was. It was undoubtedly a great evil, a great inconvenience, that a delay of any sort should take place; but that delay being the inevitable consequence of the course which their lordships had had the misfortune to pursue, and which the accused party had opposed—was it not most unfair to allow the case for the prosecution, the evidence in that case, and the comments on that evidence, to go forth to the public perhaps for two months uncontradicted? Was it not fair that a comment at least should go forth from the other side; not, indeed, supported by evidence, but which would point out to their lordships and to the public, in what respect the testimony for the prosecution was vulnerable? This was all that was proposed; and, looking to the great advantages possessed by the other side, he conceived that it ought to be granted.—The noble earl opposite had spoken of making an impression by means of the speech of counsel unsupported by evidence; but was it to be for a moment 30 supposed that the learned counsel at the bar could so far forget the interests of their client, could so far forget the substantial interests of the cause, as to make a number of assertions which could not be supported by evidence, and which, if not supported by evidence, they must know might prove fatal to their case? On the contrary, if any difficulty presented itself to the course proposed by her majesty's counsel, it appeared to him to arise from an opposite cause; it arose from the course in which their lordships had proceeded, a course which left counsel unacquainted with time, place, and circumstances. The difficulty thus occasioned, he begged leave to tell their lordships, was much increased in the case of innocence; for consciousness of guilt could supply what their lordships had refused. With all the difficulties which arose from this cause, and with the necessity of counsel, as it were, feeling their way, it appeared to him that there was much greater danger that counsel would; fall short, and make a statement more limited and more restrained than the case might warrant; because they must be aware, that asserting what they did not know could be supported by proof would prove injurious to the case they were advocating, and to the ultimate interests of their client. He freely admitted that if, after the examination for the defence-should have commenced, any application should be made for delay, he felt more strongly perhaps than the noble lord near him the necessity of refusing such an application, because of the multitude of inconveniences arising from an interruption of a protracted examination in a long list of witnesses—an interruption of which-the effect might be to bring forward witnesses to support what had failed in the testimony of witnesses previously examined. But with respect to the opening speech being made, and an interval then occurring before any witnesses should be called, no such objection could be made. He would ask the noble lord opposite, upon what ground they could be deceived by the counsel at the bar? The noble lord opposite could not suppose, no noble lord who knew the nature of the case and the character of the counsel at the bar could suppose, that the learned counsel could so stultify themselves, as it had been expressed, as to decline further and protracted cross-examinations of witnesses on the other side, and now, with all the dif- 31 ficulties which surrounded them, to propose to open the case for the defence, without some other advantage to compensate in some measure the disadvantages of an opening in such circumstances. What other advantage, then, could they propose in return for not availing themselves of a delay in cross-examining, than the advantage of guarding their client from the disadvantage of all this evidence going out to the world without one word of contradiction, or one word of comment on the part of the accused? They could have no view but that proper one of guarding the interests of their client, and of preventing all the evidence and arguments on the other side from going forth unaccompanied with any comment or contradiction. There could be no intention of making any impression on the minds of their lordships, or of the public, by unsupported statements; at least any permanent or beneficial impression could not be made for their client by statements unsupported by evidence on the other side. Their lordships would give him leave to say, that in a choice of difficulties, and in forming his resolution as to the decision he should come to, he could not exclude from his mind that their lordships, while they were not to be unmindful of the interests of the prosecution, ought to lean, if any leaning at all existed, to the accused. He could not exclude from his mind, that this was not the first time that her majesty was accused without means of defence; that this was the second time before their lordships that the accused was exposed to charges and accusations without any room for defence. Their lordships, while they determined on the course of proceeding on the present occasion, ought to call to their recollection, that the report of their secret committee was allowed to circulate for two months without affording any means of contradiction to the accused. This was a great disadvantage, to which the accused had before been exposed. And now it was contended, that for the second time, evidence should go forth against her for two months, and evidence supported upon oath, without what, in all other cases, accompanied such sworn and published accusations. He could not conceive how their lordships could consistently now decide that evidence upon oath, circulated among the people, should be left for months without any explanation, contradiction, or comment. On 32 those views he should give his vote against the motion.
The Earl of Carnarvonallowed that their lordships were placed in circumstances of great difficulty, in consequence of their having refused to grant her majesty a list of the witnesses, and a specification of the charges to be preferred against her. Had that refusal not taken place, and had a proper time been allowed to the counsel for her majesty to prepare her defence, their lordships would have been enabled to proceed in a way analogous to the usual forms in all courts of justice. The unfortunate decision to which he alluded had been the fruitful parent of a multitude of evils. He was far, however, from thinking that those evils would be amended by adopting the course recommended by his noble friend who had just sat down. On the contrary, unjust and anomalous as in his opinion had been the refusal of their lordships to afford a list of witnesses, and a specification of the charges, it would be ten times more unjust and anomalous to permit the counsel against the bill to open the case for the defence, and then to defer calling the evidence by which the allegations of that case were to be substantiated. His noble friend had asked if their lordships were to enter into a capitulation with the counsel at the bar. Was not that what they were daily doing? With respect to this very circumstance of delay, had it not been already stated to their lordships by the counsel, that if their lordships agreed to the resolution for refusing a list of witnesses, and a specification of the times and places of alleged offence, two months delay must be afforded them for preparation, and had not their lordships, on their part, intimated to counsel, that if they did agree to the resolution they would concede that delay? That was a pledge which their lordships had given; counsel were now called upon to say, whether they would avail themselves of that pledge, or at once enter on the defence. He willingly allowed the inconvenience of any interruption whatever, and he admitted that their lordships were, with reference to their former proceeding, responsible for that inconvenience. But the question now was, by what mode to meet the inconveniencies of the case? Were those inconveniencies, emanating, as they did, from the very nature of the case—was the impression which it was apprehended would be made on their 33 lordships and the country, from the circulation of the evidence en oath, to be met by the circulation of assertions merely, on the other side of the question? Was it not probable—was it not certain—that if the counsel attempted to go into the defence now, that they must, (in consequence, perhaps, of that ignorance of which the refusal of their lordships to which he had already alluded, was certainly one cause), advance statements which would not be subsequently sustained by evidence? There was one point more which, if their lordships wished justice to be done to all parties, ought to make them pause. If their lordships had attended to what had already taken place in the course of the cross-examinations at their bar, they would perceive that the case of the counsel against the bill would go to involve all the witnesses for the bill in a charge of direct perjury, and to involve other persons, and those of high consideration, in the still worse charge of subornation of perjury. It would no doubt be stated by the counsel against the bill, that the whole proceeding was a foul conspiracy, and that the witnesses which had been produced at the bar were of an infamous and perjured description. Now, could their lordships, with justice to the witnesses, with justice to the persons he alluded to, permit such a statement to go forth and rankle for two or three months in the public mind? Unquestionably those individuals were entitled to be protected from such an evil. It was most important in all judicial proceedings, that when a charge had been made, the evidence to sustain it should be proceeded upon at once. If the opening speech of the counsel against the bill were allowed to be made, he would rather that even a part of the evidence should be produced, although the rest of it were to be deferred, than that the whole mass of libellous matter should be allowed to circulate without either proof or disproof. Such, he conceived, must be the wish of every man who did not desire
———spargere voces,In vulgum ambiguas.He was persuaded that their lordships would so guard their proceedings as not to allow them, to be made the channel for such a purpose, and that they would not allow that to be addressed to them which, although it would not act prejudicially on their own minds, might be vary opera- 34 tive in that respect elsewhere. He apologized for having so long trespassed on their lordships attention, but declared that he should not have felt that he had done his duty to the House and to the country, if he had not expressed his sentiments on the present most important question.
The Lord Chancellorbegged to be allowed to state the view in which he conceived that there had been no compact, no stipulation, with the counsel. Their lordships had authorised him to put a question to the counsel at the bar. The answer to that question had not been given in the usual and ordinary way. When that was stated, and upon the principle from which he could never be removed, that a counsel, when he stated his case, was understood to be ready with his evidence, he conceived that the only question was, to open the defence then, or to ask delay. He had put the question to the counsel in a manner which he thought the most respectful to the House and to the counsel; and when the counsel said, that he was ready to open his defence, he was thereby understood to be ready with his proofs, and not merely to circulate statements, which, by the way, if delay intervened, might be put into the hands of witnesses. When he stated the ordinary mode of proceeding, he did not mean to shut out deviations which might be allowed in extraordinary cases. On special grounds, further time would be granted in the present case; but it must be implied that they were going on, unless the contrary was fully understood, on the ordinary grounds.
Lord Calthorpesaid, that differing, as he did, on the present occasion, from many of his noble friends, he felt it necessary to state the ground of his opinions as shortly as he could. It appeared to him, that the arguments of the noble lord, forcible as they were, were founded on an analogy to the courts below. He did not mean to deprecate the authority of the courts; on the contrary, he believed, if there was any thing that commanded respect and confidence in this country, it was the administration of justice in those courts. Entertaining this opinion, it appeared to him that the House, as a court of judicature, should not deviate from the course of proceeding in the courts below, but on very strong grounds, though certainly the House had a right to act upon their own discretion. If there were any 35 proof more than another of the exercise of that discretion by the House, it was to be found in the extraordinary extent of cross-examination granted to the counsel for her majesty. Such a stretch of cross-examination would not be allowed in the inferior courts, and it appeared to him, that this indulgence was granted to counsel as an equivalent, for refusing to them a list of the witnesses produced against their illustrious client. Considering how sparingly counsel had availed themselves of the power thus given to them, it appeared to him, that the House could not withhold the further indulgence which they asked for, at the same time the indulgence asked for was of so peculiar a nature, and the benefit to be conferred so extensive, that if granted, it should be recorded on their Journals, so that it might not be considered as a precedent for the future. He could not sit down without observing, on an argument of the noble earl opposite (Liverpool); that noble earl had argued, that her majesty would be placed under much greater disadvantage than she now laboured under, if she were tried by way of impeachment; but he would say, that if this were a trial by impeachment, the House would not find itself in the present difficulty, nor would her majesty have to contend with the present disadvantage. He thought the disadvantage under which her majesty laboured was a strong argument indeed in favour of the indulgence which she sought; and entertaining, as he did, a high opinion of her majesty's counsel, he was sure that that learned and honourable person would not compromise his high character by abusing their indulgence; he was sure that he would not, as an advocate for the Queen, forget what he owed to the public justice of the country. He believed that if that learned person received this indulgence from the louse, he would consider it as an important trust committed to his hands by their lordships, and that he would feel himself responsible for the execution of that trust, not to her majesty merely but to the House and to the public. The noble lord said, he was persuaded that the attainment of justice was the object of their lordships; he hoped, therefore, that they would, on this occasion exercise their discretion; convinced he was, that they would best promote the cause of public justice by granting the indulgence sought for.
§ Lord Redesdalelamented that the present proceeding had taken place at all. He had considered the subject with much anxiety and with the utmost attention, and the result of his observations went to convince him that the best mode of proceeding would have been by impeachment. He founded that opinion on the highest authority, on the authority of a great man, lord Somers, who had been the principal instrument of bringing about the Revolution of 1688. In a trial by impeachment, they had nothing to do but to lay down the law, and to declare what the law was—their judgment would be the judgment of the law itself; but he did not see that they had a right to make a law to meet a particular case. It was, in his opinion, going directly contrary to ancient statutes and established usage. With respect to refusing a list of witnesses, so much complained of, he did not see how it was at all possible to furnish such a list; and as to the extraordinary course which their lordships were now called upon to take, he was of opinion that such a course was impracticable and would be most mischievous. They were called upon to allow counsel, who stood not at all responsible for his statement, to make whatever statement he might think fit, and to leave it for a length of time under the public eye, unanswered and unrefuted. As to what had been said to show that the adjournment ought to have taken place, if at all, before the solicitor-general summed up the evidence, he would ask, what did the statement of that learned person amount to? To nothing more than the recapitulation of the evidence. The case would be quite different with respect to the statement of counsel for the Queen. There was no balance between the two cases—one predominated greatly above the other.
The Earl of Darnleythought himself bound to make a few observations in the conscientious discharge of that most difficult and painful duty which, in common with all their lordships, he had to perform. He must confess he could attach but little importance to what had been said by his noble friend (the earl of Carnarvon) respecting the inconvenience that would result if they allowed counsel to proceed at present with a statement of the defence, which would necessarily produce considerable influence on the public mind. That consideration was unquestionably an objection to what had been said by his 37 noble friend (the marquis of Lansdown); but still, weighing the inconveniences on both sides with that impartiality which all their lordships must be desirous to evince to both parties, he, on such a balance, was inclined to give the indulgence asked by her majesty's counsel. It he understood aright the proposition of the noble and learned lord on the woolsack, it was, to give one of two alternatives to counsel—either to make them proceed now, not only to state the case for the defence, but also to adduce all the evidence; or to grant at present such delay as might be necessary or expedient, and after that to go on with his case. With the opinions he held, he could not consent to such a proposition; for if counsel preferred going on immediately to allowing the interposition of any delay, he should say, considering this not as a case likely to form a precedent in future, and acting on the fair analogy of their lordships former proceedings, that if counsel were now compelled to proceed and call all their evidence, the House could not deny them such a delay as they might require to bring forward other evidence, which the difficulties of their situation might at present prevent them from procuring. The noble earl opposite, when he adopted a different line of argument, appeared to have forgotten the admissions which he himself had made on a former occasion, in suffering counsel to break the cross-examinations, and resume them again at any future period that they might choose. On every principle of analogy, therefore, he thought they were bound to allow the evidence for the defence to be divided, as they had formerly allowed the division of the cross-examinations, on a fair case being stated to the House; and, with this impression on his mind, he could not vote for the motion of the noble and learned lord. Several noble lords had spoken of the impossibility of carrying on the proceedings in any other than the present manner; but he contended, that all the evils and all the difficulties in which they were now involved might have been avoided, and that they had brought them on themselves, not only by the vicious course of proceeding to which they had resorted, but by instituting any proceedings at all. Their lordships now saw the evils with which they were surrounded; and he should always state, when an opportunity occurred, that they had voluntarily brought this mischief on themselves, and that the whole might have been, and 38 ought to have been avoided, for they were not called upon to commence any proceeding whatever. The only consequence that had as yet resulted from this proceeding was, that their lordships and the country had had an absolute surfeit of filthy disclosures, without any good whatever being done. In the unfortunate situation in which the House was placed, the only consolation to him, and to those with whom he had the honour of acting, was, that they had given their decided, though unavailing opposition to the whole course of proceeding.
§ The House then divided: Contents, 165; Not-contents, 60. Majority for the resolution, 105.
| List of the Minority. | |
| Duke of Glocester | Rosebery |
| Somerset | Besborough |
| Grafton | Darnley |
| St. Alban's | Caledon |
| Bedford | Blesinton |
| Devonshire | Vise Bolingbroke |
| Hamilton | Torrington |
| Argyll | Hood |
| Leinster | Gage |
| Marq.of Lansdown | Anson |
| Downshire | Duncan |
| Earl of Derby | Clifden |
| Suffolk | Downe |
| Thanet | Lord De Clifford |
| Essex | Saye & Sole |
| Jersey | Ducie |
| Albemarle | King |
| Cowper | Holland |
| Stanhope | Belhaven |
| Oxford | Kenyon |
| Filzwilliam | Bolton |
| Darlington | Foley |
| Stair | Alvanley |
| Grosvenor | Calthorpe |
| Romney | Dundas |
| Fortescue | Erskine |
| Breadalbane | Hawke |
| Rosslyn | Gwydir |
| Grey | Yarborough |
| Minto | Auckland |
§ The Counsel were again called in.
The Lord Chancellor.—The House has commanded me to inform the Counsel for her Majesty, That if they think proper now to proceed to state the Case of her majesty, and mean to produce Evidence, they must proceed at the close of the statement of the case to produce the whole evidence intended to be adduced, such being the usual course of proceeding; but that the House are willing to adjourn for such reasonable time as the counsel for her majesty may propose, in order that when 39 they begin their statement, they may be able to proceed in producing their proof at the close of it. Will you communicate to the House what you propose to do in consequence of that?
Mr. Brougham.—My lords; if by stating the case on behalf of her majesty is meant opening the evidence which her majesty may have to adduce in her behalf, should she be advised to adduce evidence at all—then, my lords, I have humbly to submit to your lordships, that should her majesty be advised to adduce evidence at all, I have no wish whatever, on behalf of her majesty to state the case, in that sense of the word; that is to say, to expound even one tittle of that evidence, until a certain reasonable delay shall have been granted by your lordships; but if your lordships will allow me, on behalf of her majesty, to make another application, I would humbly submit to your lordships our claim upon the justice and indulgence of the House, to be allowed in this present stage of the proceedings, that is to say, at what hour to-morrow your lordships may think fit to appoint, to be heard to comment upon the case already made out on the other side; binding myself in the course of that comment, not to offer to your lordships one single word describing or in any way opening or even alluding to the particulars of any statement of evidence which we may hereafter, after having made our comments on the case made out on the other side, advise her majesty to bring forward upon her part. I trust I have made myself understood by your lordships.
§ The Counsel were directed to withdraw.
The Lord Chancellorsaid, that if he rightly understood the application of the learned counsel, it was, that he might be permitted, to-morrow, to comment on the evidence in support of the bill without going any further into a statement of the defence. He considered comments on the evidence for the prosecution to be, in the strictest sense, a part of the statement of the defendant's case; and as such he was of opinion that this application could not be granted consistently with the decision to which their lordships had come on that point. Justice to the witnesses required that the value of their evidence should be estimated, not by the comments of counsel, but by evidence adduced on the other side.
§ Lord Erskineasked, if they refused the 40 present application for the reason assigned by the noble and learned lord on the woolsack, why they had permitted the kind's solicitor-general to sum up the evidence for the prosecution and to comment upon it? Why had not their lordships allowed that evidence to go forth without such comments? and then, after a reasonable time had been granted, they might have ordered the counsel for the bill to sum up, and her majetsy's counsel would immediately have followed with a statement of the defence. Reflecting on what had taken place, he could not possibly conceive, on what principle of justice their lordships could, prohibit her majesty's attorney general, since he was not yet prepared to bring forward the evidence for the defence, to comment on the testimony on the other side, which had been allowed to go abroad with the comments of the counsel for the Crown. It might be said, that such a course was unusual but that was no argument against the application of the learned counsel, because the whole proceeding was unparalleled, and without precedent. He should therefore move, "That counsel be called in, and told, that to-morrow her Majesty's Attorney-General would be allowed to comment on the evidence adduced in support of the bill without entering into any statement of the case for the Defence."
§ The House divided on lord Erskine's motion: Contents, 49; Not-contents, 170. Majority, 121.
§ The Counsel were again called in.
The Lord Chancellor.—I am commanded by the House to inform you of her majesty's counsel, that you will not be allowed to comment to-morrow on the evidence adduced in support of the bill—
Mr. Brougham.—My lords; placed in this new and unprecedented situation, I entreat your lordships to allow us till tomorrow to form our opinions, and finally come to a resolution of peculiar importance in the management of this case.
The Lord Chancellor.—Your lordships have placed the counsel in that very si- 41 tuation which is the situation of counsel in all proceedings in all courts. I apprehend, however, you will undoubtedly feel it perfectly reasonable to accede to his re quest—I am authorized, Mr. Brougham, to state to you, that the House will receive your answer at ten o'clock to-morrow morning.
§ The Counsel were directed to withdraw, and the House adjourned.