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subject. Although it might not be attendance of four judges could surepossible, according to the Queen's re- ly be procured at an earlier period. quest, to begin the trial in twenty- The Earl of Liverpool assured the four hours, yet no longer period noble lord, that it was impossible to ought to elapse before the mode of procure the attendance of the judges conducting it should be distinctly sooner, consistently with a due regard laid down. A division took place on to the administration of justice. As this question, when the motion of to the charges, he conceived that they Lord Liverpool was carried by a ma- were already sufficiently made known. jority of 56 to 19.
They were as fully detailed in this On Monday, 10th July, according- bill as ever they had been in any ly, the Earl of Liverpool proceeded to other of the kind. With regard to state his views with regard to the the other and more important point course of proceeding. He particu- -the communication of the names of larly dwelt on the importance of se- the witnesses-he had already given curing an attendance of the judges. it his most serious consideration, and It was impossible, however, without he was perfectly satisfied that no claim materially interfering with the admi- whatever could in justice be made to nistration of justice, to procure, with such a communication. in any tolerable period, the attend- Lord Holland conceived that the ance of the whole twelve ; nor did proceedings against Lord Treasurer this appear to be necessary. The Middlesex in 1623, afforded a preceearliest time, however, when it would dent for laying a full statement of the be possible to command the attend- charges, and of the evidence by which ance even of four, was the 17th of they were to be supported, both beAugust; and he proposed to fix for fore the accused party and the House. that day the second reading of the This precedent was supported by the bill. Notwithstanding the inconve. practice in courts of law. Where nience of the period, he trusted that informations were taken before a mathe extreme importance of the case gistrate, the depositions were generalwould secure a full attendance of ly given in the presence of the party their Lordships.
accused; but whether they were sworn Earl Grey did not, in the present in the presence of the person accused state of his information, mean to op- or not, when the case came before pose the motion, but he was anxious the court for trial, they were commuthat something should be done to nicated to the judge. They were proprevent the interruption of the pro- duced for the purpose of giving the ceedings after they had begun, and to judge an opportunity to ascertain the avoid the necessity of allowing time credibility of witnesses, by checking for the preparation of the defence. the evidence sworn at the bar with This, he thought, might be accom- that which had previously been given plished, by communicating to her before the magistrate. It had been Majesty a copy of the charges, and usual for committees to give much a list of the witnesses against her, more particular information as to the which he considered nothing more
contents of papers referred to them, than what strict justice required. than had been done on the present Unless such an arrangement could occasion. He conceived that the acbe made, he saw no necessity for de- cused party was fully entitled either laying till the 17th of August, as the to a list of the witnesses, or to a precise and particular statement of the The Queen, who was always ready evidence.
to act with promptitude, did not fail The Earl of Liverpool thought it to press the claim now advanced in would be better to make a distinct her favour. On the following day motion on the subject, than thus to (11th July,) Lord Auckland presentintroduce it incidentally. The noble ed the following petition :lord candidly admitted, that the application of his case was doubtful. “ To the Lords Spiritual, fc. There were many later instances, par- “ The Queen having received inticularly that of the Bishop of Ro- formation from the House of Lords, chester, in which copies of the depo- that the second reading of a bill for sitions had been peremptorily refu- the degradation and divorce of her sed. Their Lordships would see that Majesty, is fixed for the 17th of Autheir judgment was not to be founded gust next, and deeming it essential either on the depositions, or on the to her defence that she should be furreport. They all agreed that it would nished with a list of the witnesses inbe improper if the House were asked tended to be examined against her, to declare an opinion on these docu- desires that such list should be forthments; and it had been stated all with delivered to her Majesty's Atalong that the case was to be proved torney-General." by oral testimony at their Lordships' bar, subject to the examination, cross- Lord Lauderdale now moved the examination, and re-examination, to appointment of a Committee to search which oral testimony was always lia- for precedents, with respect not only ble. He admitted the advantage of to the giving of lists in analogous proceeding with celerity, after the cases, but to the whole proceedings. business had commenced; at the same Lord Liverpool being of opinion, time, if a previous list of the wit- that the object of the search should be nesses, or else a period of delay be- precisely pointed out, moved, as an tween the accusation and the de- amendment, That the inquiry should fence, were demanded, he would de- be, whether it had been customary to cidedly prefer granting the latter. grant lists of witnesses in cases of bills
Lord Ellenborough expressed the of pains and penalties, and of impeachsame opinion, while, after some ex- ment. Lord Holland urged that a fuil planation from Lord Holland, Lord view of the whole proceedings,however Erskine strongly urged the Queen's voluminous, was indispensable; otherright to an immediate communication wise it was impossible to see the prinof a list of witnesses. This was op- ciple upon which the House had forposed by the Lord Chancellor, who merly acted. The House divided, said, he should be glad to know whe- when Lord Bathurst's amendment ther his noble and learned friend was carried by a majority of 18 to could state an instance, except in the 10. case of high treason, where, accord- On the 14th of July, the Earl of ing to the principles either of law or Shaftesbury brought up the report of justice, a list of witnesses was given the Committee. It stated that the to the accused party preparatory to Committee had examined the precetrial.
dents, from the earliest period down The motion was then carried, and to the latest date on the journals, of a strict call of the House ordered for bills of attainder, bills of pains and the 17th of August.
penalties, and of impeachments, and
VOL. XIII. PART I.
they had found two cases only bear- none of which are, however, specified ing at all on the subject under their in this bill. The illustrious person consideration. Those were the cases against whom this bill was now diof Sir John Bennet in 1621, and the rected, stood in need of the same the Earl of Strafford in 1640, both guards with which persons accused of being cases of impeachment. Of these High Treason are surrounded, to setwo cases the Committee thought it cure them against the weight of power necessary to state the particulars. Ist, and influence, with which they have With regard to Sir John Bennet's case, to contend. Those accused of treathe 5th resolution states, in answer to son were, by the statute of William his request, that he might have liber- III., to have a copy of the indictty to examine the witnesses brought ment, stating the different overt acis against him, and have a list of their with all that precision which is the names, it was resolved that he should glory of the law of England. He was have leave at the hearing to cross- also to have a list of witnesses, the examine the witnesses, and that the use of which was, that the accused names should be delivered to him also might know every thing relating to at the hearing. 2dly, In the Earl of them-might be able to estimate what Stafford's case, it appeared that no weight their character gave to their answer was given to that part of his testimony-and might be in possesapplication which related to the names sion of all those circumstances which of the witnesses.
might go to invalidate their evidence ? Lord Erskinerose to support strong. There were few indictments for high ly the motion he had formerly an
treason that had all the ministers of nounced, for allowing the Queen a the Crown asaccusers, and none where list of witnesses. This appeared to the judges were like those before whom him absolutely imperative on their her Majesty was to be tried. He knew Lordships. The bill carried back the that this statute had been grumbled charge to a period so long ago as the at; but he also knew that it had stood year 1814. "It stated that her Ma- for a century. In this opinion be could jesty, being then at Milan, engaged have no bias. He stood in a relation to in her service, in a menial situation, the King which few of their Lordships a foreigner, who had before served in did. He had known him for many a similar capacity. It afterwards went years, and had passed the best part of on to state, that her Majesty, unmindc his life in his friendship; but he reful of her exalted rank and duty, con- peated, that he would allow no perducted herself towards the said fo. sonal consideration to influence him reigner, both in public and in private, on the present occasion. The noble in the various places and countries lord then pointed out the advanwhich she visited, with indecent and tages which those accused of aduloffensive familiarity and freedom, and tery possessed, by the previous procarried on a licentious, disgraceful, ceedings in the Ecclesiastical Court. and adulterous intercourse, which Besides, delay would be necessary “continued for a long period of time.” to prepare her defence after the evi. Thus the crime here charged was not dence for the prosecution was heard, laid on any particular day, nor stated if she was not in the first place put in to have been committed in any parti- possession of the advantage which he lar place, but to have occurred du- now claimed for her ; and let their ring a period of six long years, and Lordships consider what would be in foreign countries, remotely distant, the consequences of that delay on the
public mind, from that uncontradict. ture of the defence; for if, after the ed testimony hanging over her. In evidence forthe Crown was heard, the ordinary cases, jurors, during such prisoner brought forward a defence an interval, were either locked up, or founded on perjury, he could not call brought under a promise not to con- a single witness out of the list to converse with strangers. Were their tradict it. He did not grumble at Lordships to be locked up, then, till this statute. (Here some dissent was her Majesty could prepare for her expressed by Lord Holland.) The defence, or to be prevented from noble, and, if he would allow him to speaking on the evidence which they add, learned Lord - for learned he had heard ? However determined certainly was in the law had said, their Lordships might be to adhere that this looked something very like to the strict principles of justice, they grumbling. The noble and learned ought to adhere to the established Lord had never to endure any part rules of law, and carefully to place of the trouble, or to undergo the exthemselves above all suspicion. Let ertions that he had in the execution her have all the protection which this of this statute, or he would havegrumindulgence would afford, to com- bled still more. He admitted the adbat the immense difficulties with vantage of assimilating their proceedwhich she would have to contend. ings as much as possible to those which Let them stand by the maxims of an- the wisdom of ages had sanctioned cient times ; let them stand by the in courts of justice; but was Parliaprinciples of the Revolution; let them ment, on that account, to divest itstand by the statute of William, which self of its great functions? He was had continued for upwards of a cen- convinced that a great essential contury.
stitutional principle would be sacrifiThe Lord Chancellor could not ced, if the petition of the Queen were conceive that, with regard to prece- complied with. dents, their Lordships ought to ap
The Marquis of Lansdowne suppeal to times when the accused could ported at great length the motion of not defend themselves by law and Lord Erskine. His original impresfact; neither ought any regard to be sion had been greatly strengthened paid to whether the party was high by one of the most convincing, calm, or low. No man living could deny, and dispassionate speeches he had that the giving of a list of witnesses ever heard. The noble Lord had to the accused conferred a great, and, manfully and rightly stated, that the in many cases, a fair advantage, in House on this question was not about the examination of evidence. The tes- to follow, but to create a precedent ; timony of witnesses might be crush- and, in fact, to make a new law ap. ed to pieces, and entirely destroyed, plicable to cases of this magnitude. by a cross-examination, proceeding Was it not rather too much for those upon a knowledge of their characters. who had induced tlie House to abanAt the same time, the general adhe. don all precedent, and to violate all rence to such a system would render analogy–who had prevailed upon it the administration of justice in all to put to sea on this perilous voyage cases inconvenient, and in some near. of discovery, without compass or ly impossible. He had often expe- landmark, now to contend in favour rienced this in cases of high treason, of that very course which they had being obliged to call unnecessary themselves deserted ? All great conwitnesses, and even to divine the na- stitutional writers had considered bills
of pains and penalties as irregular acts, was impossible for the crown to prove justifiable only by extreme necessity. the falsebood of his witnesses. It Blackstone described them as sub
might give the accused the means of ject to no law, and referable to no preparing a false defence, and it also law.” No law-writer has attempted gave him the power of acting by into lay down rules for their conduct. timidation. Thus, instead of forwardIt would be just as rational for an ing, it waylaid justice; and might astronomer to decide the path of every prevent witnesses from coming forcomet visiting our system, as for a ward to prove the charges alleged lawyer to define the rules applicable against the accused. If their Lordto bills of pains and penalties. Al- ships were to consider that the hand thougin, by the statute of William, of power was raised against the accuthe furnishing a list of witnesses was sed, they should also guard against compulsory only in cases of high trea- the possibility of public clamour opeson, yet by sufferance, upon every rating prejudicially against the accuindictment a list of witnesses was in- ser. It was only a very small number dorsed. In the exercise of a sound of witnesses that were named on the discretion, (itself constituting one of back of an indictment. If a list was the few merits and advantages of the to be delivered at all, it must be a proceeding now adopted), the House full list; for, if not full and commight give to the accused party all plete, it might deceive the party acthe benefits derivable from the act of cused, instead of being an advantage. King William; but, at the same time, That a full list could not be granted reserve to itself the power of calling in this case was so evident, that no new witnesses, where they were ne- noble Lord had attempted to support cessary, and not wantonly obtruded such a proposition. It would, in every for the purpose of creating delay. case, be impossible to tie up their
The granting the present request Lordships from calling new witnesses, would at once prevent delay, and and even from bringing forward new avoid any suspicion of unfair dealing charges if they were so inclined. The towards her Majesty.
accused might then demand time to The Earl of Liverpool was of opi- meet these new witnesses and charnion, that, though precedents ought ges, and thus the object of obviating not to govern this case, yet they delay would in no degree be attainformed matter of consideration, and ed. No inconvenience, in short, would were therefore proper to be inquired be obviated by agreeing to the preinto. He would not wish to disturb sent proposal. a practice so long established, as that Lord Holland argued at great of furnishing to the accused a list of length in support of the motion; he witnesses in cases of high treason ; at particularly urged, that an incomthe same time, he could not be insen- plete list of witnesses was still better sible, that it was subject to many in- than none. As they were sitting there conveniences. By this law, which en- on a most anomalous proceeding in titled the accused to a list of the wit- criminal equity, they ought to give the nesses for the crown, while the crown illustrious party accused every privicould not obtain a list of those for lege. Would the noble Lord
that the accused, a great advantage was there w
was one case in a hundred—nay, given to the latter ; and therefore, would he say that there was one in whatever perjury the defendant might ten thousand-in which the person bring forward in his exculpation, it arraigned came to the bar with so little