Star. — London, England, 1820-07-15 00:00:00

1 4- a being a grumbler, if .he might so express himself, against it. He would state to their Lordships the' sentiments of a great lawyer, and a Whig besides, .11fir. Justice Foster, with respect to this Statuto;— " The Statute (he said), whatever might be its be nefits in particular rases, works great injustice."— The Noble and Learned Lord (Erskine), indeed, ad • mined the justice of this opinion, in the Resolutions sthich lie had submitted to their Lordships. Upon the occasionsin which he (the Lord Chaneator) had to engage in cases of iligh Treason, on the part of the prosecution, he must say that he found it very difficult to do his duty, regard being had to that Statute. When - called upon, in the course of his' duty, to urge a prosecution for 'Treason, he had first of all to recollect that there was a Statute in forge which required of him to furnish to the defendant-a list of the witnesses to be called in order to substan tiate the charge. If it happened, however, that, in the name of one witness in the list, he had substi tuted the letter A for the letter 0, though that wit ness was the most ipiportant, and, indeed, the main. one, upon whose evidence the whole case rested—still he could not be called, in consequence of this mis arrangement of the letters of bis name. It therefore became the business of the Attorney-General, not - only to foresee and provide against all probable de fects, but also against those which, by human possi bility, might occur. From the experience which he had had, and from the consideration of the facility of such an occurrence, he knew . that it was possible that a successful defence might be made in cases where a true defence could not be established ; for although the defence which was imposed upon the Court and the Jury might he known to half the individuals pre sent to be a tissue of falsehood, yet if the conductor of the prosecution, could not have foreseen the nature of the proceeding, he could not call a single witness to contradict the take evidence which had been then adduced. With all these inconveniencies flowing from the Statute, he must yet be permitted to say, that he would not part with it; and had the Noble, and, he would be permitted to say, the Learned Lord near him (Lord Holland), been in the situation to ex perience the injuries which the Statute sometimes in flicted upon justice, he would undertake to say, that that Noble Lord, who was as good-natured and as kind a man as ll there was in the world, would be much more inclined to grumble than he (the Lord Chancellor) had been in the course of his office.— However, as he had stated before, with all its incon vertiencies, all its injuries, all its abuses before him, he would still say—" This is the law as it stands, and fit it has stood—it is consonant to the opinions and feelings of the People, .let it not be disturbed:— But it was remarkable, in the whole argument of his Noble and Learned Friend who moved the Resolu tions, that he was compelled to dissent from the pro priety of the doctrine of that Statute itself, for he had said in his second Res.olution, " True, the law says, you must furnish a list of the witnesses in pro , oeedings for High TreasOn; but stigmatize those proceedings by adopting this Resolution, because it is obviously unjust nct to allow 'other witnesses to be called. than those vs lu.se names appeared in the fur 'tiled list, which the Statute does not permit." The case betnre their Lordships was to be governed wholly by the principles of ordinary justice and its rules, since it was found that a course, by which their Lordships were to be governed in their proceed ings, was left unprovidcd for by the wisdom of their ancestors. And here he should beg to recur to the Re solutions of the Noble and Learned Lord. He (Lord Erskine) had pressed their Lordships to assimilate their proceedings as much as possible to those of the *Courts below. lie (the Lord Chancellor) concurred in the sentiment ; the more their Lordships proceed- I ings, were likened to those of the Courtathe more partial would he be found to them. But in acknow ledging this opinion, would he agree that Parliament should divest itself of its peculiar functions ? and the necessary absence of which in the Courts below was sometimes found an obstacle to the complete fulfil ment of the ends of justice there. Their Lordships would here remark, that when the Statute of Wil liam passed, no provision was annexed extending its operations to Parliamentary proceedings—nay, Par liament went farther :: for by one of their Acts (the Act of :nth George H.) they declared, not in ex pression, but in substance, that the assimilation be tween the proceedings in Parliament, and those of Gouts of Justice, should go no farther than a per mission to the defendant to be heard by Counsel a> to the law and the fact of the charge against him. No mention of indirect allusions ever was made in the granting a list of witnesses; and here he would ask of the Noble and Learned Lord, than - whom no man was more intimately acquainted with the proceedings in the Courts of Law, what would become of the civil and 'criminal administration of justice, if it was adopted as a general rule to prevail in all cases of ci iminal and civil process, that a list of the witnesses under the con ditions annexed to it in cases of High Treason, should be furnished on both sides, each to 'the adversary?— No man was better calculated, from his long experi ence and his penetration, to determine the extent of mischief which such a regulation would introduce. The reason why the rule was not extended to all cases of accusation was this—that it could not be allowed with safety to prevail in such cases. The Noble and Learned Lord, admitting in effect this principle, asked of their Lordships to make an exception of the present case—but why, upon what grounds, or what pretence, the Noble and Learned Lord had not stated. The Noble and Learned Lord had spoken of the Mi lan Commission. Of that proceeding, however, he would say nothing; but he felt that it would not be denied, and particularly by the Noble and Learned Lord, that an ex-parte inquiry might sometimes be the means of averting a most painful course of inves tigation. The Noble and Learned Lord had argued as if this case might have been carried on more pro perly in the Ecclesiastical Court. Upon what grounds the Noble Lord might have wished that the Supreme Ordinary of that Court should stand by the accused, when clothed in a white sheet, he was not able to say ; neither could he see by what possible course the present case could be brcught into, or confined to the jurisdiction of than Court. The question for their Lordships consideration was this--would they sacri fice a principle which had prevailed in the general administration of justice in Courts, and in the uni versal administration of it in Parliament ? It was the Arm conviction, that a gre a t s principle would b e sar i by agoeciug to the Woos of the Noble I Lord; that Indottisl him, - with whatever . gift whatever pails of mind, to vobs against Nreituis of LANSDOWNsaiid, het ad . the House . ihat eveninf with its impression r of the aissolatifins, derived from a Alin coo! of the case; and this impression, he owned, confirmed, by one of the orstable and-convincing, the most calm and' dispassionate speeches he over heard within the walls of Parliament. He was glad that the notice of this motion arose out of a conversation in that House en a former night, and , .not upon the application of her Majesty; and he was' of opinion, that.not only justice to the accused, but a regard for the accusing party, required that their Lordships shoald agree to the claim which his Noble and Learned Friend had put forward that night. The oase was considered upon two points, precedent and 'analogy. With respect to the first, he believed the case did not admit of any precedent ; for the Noble Lord opposite had stated, with great candour, that the proceeding was not to be guy:.. tied by precedent, but that their Lordships were about to erect a prefe dent, and found a law. If it was a case to bego verned by precedent, I e (the Marquis of Lansdown) wished to know *here was there a precedent for such a proceeding as the introduction of a Bill of Pains and Penalties, upon the Report of a Committee of Inquiry? Had those whp spoke of precedent been aware that they had violated all analogy? And would they now, after committing themselves to a perilous and tempestuous sea, call on their Lordships to attach themselves to these landmarks, which, by the recommendation of those very advisers, had been originally abandoned? Were their Lordships' pro ceedings in consonance with those rights, those regu lations and guards. which the wisdom and patriotism of their ancestors had provided to secure the freedom of the subject? Did they resemble any Tribunal known to the Laws and Constitution of the country? If, indeed, they could chew a stream of clear prece dent, issaing from the fountain of some constitutional principle, and enriching itself in its course by the de terminations of succeeding authorities, he would ask of their Lordships to admit it as the iule of their proceeding. But when he saw that amongst the cases which had been brought forward as approich ing to a connexion with the present—some few had been justifiable cases, and these justifiable on their peculiar merits only--when he saw this, was it pos sible for.him to say that their Lordship's were to draw from such cases a rule to influence their present pro ceedings? All great writers had united in saying that Bills of Pains . and Petelties were to be intro duced only in extreme circumstances. Sir William' Blackstone, the imitistrions and philosophic searcher into Nair system of law, the moment he came to men tion Bills ( f Paris and Penalties, exclaimed—" l speak not of theM ; they'are, pro re nata, subject to no laws, and referable to no laws: '—(l.frar, heart) 11 here was there a• digest 'of the laws upon this branch of proceeding? Where, iti this book-making, age, was the lawyer that thought proper to impose a' volume upon this subject on the student, in addition to the immense matter upon which his industry was, to be exercised? And why ?—Because such prow ceedings arose out of circumstances which no inge nuity could foresee, and the repetition of which was wholly out of the range of probability. In sport, it would be just as prudent and as useful to attempt to prescribe a path in the Heavens, in which all the co, (nets that were to appeal. in future time were to coo-. fine their course, as to say in what manner, by what principles, and subject to what rules, the proceedings in such cases were to be conducted. He supported the Resolutions of his Noble and Learned Friend, upon three considerations :—first, that the ends of justice would be best secured by adopting them; secondly, that it would famish the means of conducting the proceedings with the greatest dispatch ; and, thirdly, that it fuinished the greatest convenience to the Tri bunal conducting the' proceeding.—As to the first point, he was confident that if' the ConcessiOn•which. was now sought forleece withheld, a great interrep. Lion sh ould take placeuitte proceeding, to the ma nifest prejudice of the. defendant's case—an *occur; rencp which was unifornily reprobated by the Bench. And here he would be& leaye to remind their Lord ships, that a delay taking place between the period of die accusation and the defence, may create a pre judice, not to the 'defendant but to her adversary, particularly in the present state of the public mind; becausi., although the charges might be made public, and openly discussed, yet the resolute assertion on the part of her Majesty's friends, of her capability to overturn all the charges, may be pretty generally be lieved, and thus a prejudice dangerous to justice might be produced. He was at a loss to know how it would be inconvenient to have this list produced ; since on the back of summonses the names of wit nesses were set forth very frequently ? Ile could not agree with the Noble Lord on the Woolsack, in thinking that the second Resolution of his Noble and Learned Friend was at all injurious to the principle of the Act of William. He wished that a list of the witnesses should be furnished, together with a state ment of the specific chairs against her. This Voul. enable her to proceed with her defence with regula rity—whereas, if the advantage were withheld, and that she came to the knowledge of die charges and the names of the witnesses only at the time of acou sation, it would be in all probability necessary for her Majesty to apply for a delay of two or three months, in order.to enable her to make out her defence; and he begged to ask their Lordships, would not the si: tuation of her Majesty, under such circumstances, be much mere contrary to all precedent—to all ana logy, though a course, however inconvenient, that would produce delay—that would leave the case of her Majesty, or that of her adversaries, to be•preju diced, and would render more difficdlt the final con clusion of the proceedings ? Lord LIVERPOOL said, there were few questioas of this description on which he bad bees more anxious to deliver his sentiments than on this; because he must know but little of his own feelings, .or of the character of the question under deliberation, if he could be induced to hesitate ono moment, after the appeal of the Illustrious Personage, or of the Noble and Learned Lord (Erskine). He was ready to agree' with that Learned. Lord, that a Bill . of Pains and Penalties was agairist all the ordinary rules and prin ciples of law. He was also ready to agree with him. ,that in the present case they'ought to proceed, not by precedent, but by'lhe forms and principles of substantial justice. But at the same thine he would contend that it was tight for them to know how the he had - cedents necessary ingredient . discover if any light could be Lad in their proceed. ing; and it was on these grounds that he had - seri ported the motion of a Noble Lord for a search for precedents. He was ready to admit with the Noble Lord, however, that the present case would admit of no precedents ; and that if it were consistent with substantial justice, a list of witnesses ought to be granted—(fiear, hear, hear).—There was one point of the speech of the Noble and Learned Lord, wherein he contended that. there was a sort of ana logy between this case and cases of High Treason, and. wherein he stated all the advantages which, under the Act of King William, were given to the party accused, in granting a list of the witnesses, on which he was desirous of saying a few words.— The Learned Lord said he knew there were some persons who grumbled a little about this Statute of King William. Now he would say, although his opinion was that great inconvenience was incurred under that Statnte, and he doubted whether the justice it afforded in some instances was equal to the inconvenience it occasioned in others, that he would not meddle with that Statute—(Hear, hear). He had seen justice, in some instances, done under it both to the Crown and to the accused ; and on that account, as well as on account of its long standing, he was unwilling to interfere with it.— But nevertheless, the principle upon which it had been founded was always matter of doubt—not amongst the Jacobites only, but amongst the greatest Whigs, and mast constitutional Lawyers. The same doubt prevailed with respect to the 7th Ann ; which, whether intioduced as an act of justice Or an act of mercy, enacted that the practice of giving a list of witnesses was not to be force till after the decease of the Pretender, so that this Act was a dead letter on the statute book for upwards of seven years. The case of Lord George Gordon, lie believed, was the first in which it was acted upon. The Noble mid Learned Lord (Lord Erskine)'had alluded . to the greatest Constitutional Lawyer—one whci had been most disposed to favour liberty ; and what, he would" ask, were his sentiments on the subject of furnishing the prisoner with a list of witnesses?. He said, whilst it had one advantage in it, it was calculated' to serve many bad purposes. The purposes he alluded - te 'a ere obvious, and was thi s_ single adeaetage to weigh against the innumerable bad purposes? The accused ' was allowed a list of ail the witnesses against him, whilst the Crown had none on the contrary side; and therefore, whatever perjtirk - was brought forward by the accused, it was not possible that the Crown could be prepared to controvert it. In drawing the ane. logy between the present case and cases of high trea sos, he could only say, that however degradation might, to a feeling miud, be more than death, still it was not so in legislation. He would say, - that except in cases of treason, the giving a list of witnesses, was open to many exceptions. It might give the accused the power of bringing a false case ; it gave him also the power to act by intimidation. It might be the means of stopping Justice in her course—of preitnt ing their being able to bring their witnesses fair and free into Court—(Hear, hear). CM the other hand, some consideration was so be given to the popular clamour and prejudice which might be stirred up so, ,as to weigh against the accuser. Let those who did not think the law of this country sufficiently tender towards criminals, look at the tribunals of foreign countries, and having seen the spirit of their law, they might then turn their regards upon their own country, and pronounce upon its attributes. They might then pronounce on those laws which are the admiration of all foreign countries, and of every great writer ; under which we had prospered, and which he would therefore stand by—(Hear). He-now came to app)Tthe law to this case, and those princi:. pies ib particular, on which there was now a ques tion ; and he was prepared to say on this point, that the very mode in which Noble Lords on the opposite side had put this, was wrong ; for unless a full list was given, or if any new witnesses were afterwards added, the effect of the list, • instead of assisting, would he to deceive the accused—(lleaY, hear). — Noble Lords had also characterized the course adopted in the present instance as unmerciful, and contended that it would have been less objectionable had the matter originated with the Commons, by way of impeachment. B ut he wou ld ask, whe ther: in that case a list of witnesses could have been granted ? It could not.; for net only could the Com mons in that case, have brought new witnesses, but new charges also against her Majesty—and this was the course contended for by Noble -Lords who op posed the present proceedings—( Hear, hear, hear). — In every point-of view it would be wrong to accede to this motion, as it would tend to paralyse some of 'the peculiar - functions which that House possessed over every other tribunal. They would give up that power of probing into matters beyond what other tribunals possessed, which was of singular advan tage. Even were they to give the list of witnesses, though it were a complete one, there would still 'arise circumstances for delay. They would therefore get rid of no inconvenience whatever, and he hoped be had shewri that neither precedent nor the ends of justice called upon them to accede to this motion. The question therefore was, as it would obviate no inconvenience to themselves, and confer no advan tage upon the accused, who would, on the contrary, by an imperfect list being given, be subjected to be ensnared, deceived, and betrayed —would they give in to a proposition, which, by affecting the witnesses in the way he had described, would be an act of in justice? He put it to their Lordships whether the efforts of the Crown were to be exposed to the po pular clamour, where no advantage was to be gained by it ? (Heat, hear)—on the contrary, let the accusa tion be fairly set forth ; and then let the character of the witnesses be sifted to the bottom--(Cheers). Lord HOLLAND said, the Noble Lord had dis tinctly admitted that the present case was . not one in which they ought to be guided by precedent- lone. He said that precedent was an ingredient, bat that their Lordships were bound to proceed so as to admi nister substantial justice. How far that fair and li beral concession wai consistent with the zest of the speech of the Noisip Lotd, he was at a kiss to deter e were not, it seemed, to regard the prin. down for them—and sure he was, that the which they were about to establish ought looked upon av a rule for future proceed- Noble Lord argited, that rules and pre ere not binding on their Lordships; but if precedents long established as the shield of and the protection of the accused, applied to the present, proceeding, he saw' no reason why they should be departed from, because he saw n o reason why this Illustrious Lady should be deprived of theaordinary redress of an ordinary individual.— The Noble Ls-rd had pronounced an eloquent eulo tehaedminiintisutrpataisontheofadpiubhrlaictijiztoefcefoinredigritsr served the 'praise so eloquently bestowed upon it :. nat egia.uu i mn o t n r s, 7; and he (Lord Holland) admitted that it dee but, however animated the eulogiums of the Noble Lord, he could not held thinking that they Were :net of place; for while the Noble Lord held up to tie: admiration of their Lordships the administration of the justice of this country, he called upon tem tee deviate from its spirit, and to depart from its equitae ble regulations—(flear, hear)—for this proceediee was an exception to the general rule of justice, eel also to the law of Parliament. The Noble Lo:d shad very truly pointed out the necessity of a strict adherence - to precedent; but the present was an ex ception to that principle. The present case was complete anomaly : and it was a solecism to say, that in considering it, their Lordships were to be guided by the principles which belonged to other cases. Their Lordships now said to the accused -" Your high birth and rank place you beyond the reach of common Tribunals; and there is no other Tribunal before which you can appear but this."— Then, upon an application being made t their Lord ships, on behalf of her Majesty, for a particular in dulgence, they turn round and say--" We would willingly grant you what y..: ask for; but we cannot do se, because we are tied down by precedent (Hear, hear)s—Yet they were at the very same time departing from all rule and precedent. They we, e 'acting the parts of Accusers, Jurors, and Judges, and at the same time they were bound down by rule and precedent ! An eminent author, he believed it wes Lord Bacon,- had said, that the rules and forms "f -law were like the bark and rind of a tree; for Chit although they-did not form any part of the timber of-that tree, they were the channels through which it received' its nutriment, and they. protected it from the wind and weather. But here the protecting forms of the law, which were - so neeeseiry for the due ad ministration of 'justice, were entirely taken away. They had before them a strange and anomalous case, and the Illustrious Person who was the subject of it was placed in a most extraordinary situation. The Noble Lord hadsaid, that a case of Treason was the only one in which an accused party was ever fur reshed with a list of the witnesses; but would the Noble Lord say that a case of Treason was the only one in which an accused person was able to learn the names of the witnesses? There was not one case its one himdred in which an accused party tame to the bar of a Court of Justice with so little knowledge of the charge against her, or the case itself, as the Queen. When persons were taken before a Magistrate, they heard the accusation against them ; they saw the witnesses, and knew bow to be on their guard against them ; but there was no such advantage here. The Noble Lord had observed, that the prosecuting party were not compelled to confine themselves to those witnesses. Bet he (Lord Holland) contended, that the most important part of the evidence intended to be brought forward against any person committed for trial by a Magistrate, was known to such person long before his trial, so that he had every possible means to prepare for a defence. The Noble and Learned Lord on the Woolsack, who seemed to have made himself a champion between the Courts of Law and the Parliament, had stated that Parliament was not to be bound down lay the rules.of the Courts. He (Lord Holland) fully agreed with him in that doc trine; and would maintain, that on that very account their Lordships ought, in the. present case, to exer cise a discretion of their own, according to the prin ciples of reason and justice., , and-sot follow the rules or precedents of any Law Courts. If their Lord ships resolved to proceed according - , to law, let tee accused party have all the advantages of lasi ; but if they meant to proceed. according. to the exercise of their discretion, let - them exercise it in an equi table manner, without looking to what were the rules observed in Courts of Law,--(Hear, hear, hear). — He wished that the Noble Lord had stated accurately on what precedent it was that he acted ? Let him point out any case that had ever occurred before, and say, whether it bore any resemblance to the pre sent : No—he could not do so ; and, of course, this was one upon which discretion alone was to be exer cised. In point of justice, they were bound to grant what her Majesty now requested ; they were also bound to do it in point of policy : he did not mean the policy of :gratifying popular clamour. The Noble Lord had said, that the House of Commons would have a right to produce fresh witnesses ; but, how ever extraordinary the power of the House. of Com mons was, yet, when the case came before them, they *odd know the - witnesses and the general complexion 'of the case. Therefore, in point of policy, he wished 'them to consider, for their own satisfaction, and for their character's sake, hew differen* the case would come forward in the House of Commons; for there the accused would have the advantage of knowing all the evidence on the second trial, which should come on there. Then the House of Commons would have the advantage of a .better and fairer case to try ;. and he begged tha t t h e i r L or d s hi ps would not, by concealing the names of the witnesses, deprive themselves of a similar advantage, but come an the trial of the case free from all objections.- - As to Bills of Pains and Penalties, so far from making for the Noble Earl (Liverpool's) argument for delay between the accusation and defence, it shewe'l that such measures proceeded from the necessity of dispatch. In many cases the adoption of such a Measure arose from a fear of the parties escaping the hands of justicee, or from their having escaped beyond the immediate reach of t h e law. - The Noble Lord apologized for having occupied so much of their Lordships' time. He should only fatigue the House, if he attempted again to prove what had been so sa tisfactorife proved by his Noble Friend (Lord Erskine). He should therefore sit down with stating, that he gave his most cordial support to-the motion. Lard ELLENBOROUGH said, he rose with dit: eluctance, precesTeattltoed after the Bill had beet- !mod minty They t them the table; .Bepposing it had happeeedtliat thls *pre- afles laid do id entered' cedenta panted Oh* wey-4frat - they :wen' in , precedent wh in favour favour'. of b list of wftnesher biting granted, he *add not to be lot sideration ask their-Pirdships *bed* it wouki havelieen amyl ingt. The N was fully for diets to have rejected the requtit 'cif stleltft list? cedepts were evincing, Hicontended, therefore, that theAnowledge of 'pre- rules and pre s he had cedents was a necessary ingredient in the case; to innocence, an 1 i ! i . 1