Star. — London, England, 1820-08-18 00:00:00

I' ; i t was introduced, to have shrunk from the task. If it were said that the charge of adultery could not be proved, but that conduct little short of convicted adultery could be proved, he would then put it to the Ministers of the Church and those of the Law, who heard him, to say, if they ever knew any whir grounds upon which a divorce had been allowed than that of adultery proved in the very fact ? But, if even that could be proved, still, he conceived, there was no ne cessity for going into the investigation, which was wholly uncalled for. On the subject of her criminality he would offer no opinion, because he had not even a shadow of ground by which he might he enabled to decide. He, however, cherished the strong feeling which was prevalent in every part of the country, that this was a question the agitation of which could produce no public good. It was clear that the House of Commons participated in that feeling, since they ' had declared, that, whichever way it might ultimately be decided, the proceeding would be a injurious to the best interests of the empire." If they continued in this course, they would excite and alarm the pub lic feeling, without any sufficient public motive; and he could not suppose that any private motive could exist of so much weight as to justify so extraordinary a proceeding. These were the grounds on which he objected to this measure altogether—grounds which he would have previously stated, had circumstances permitted, and which now induced him to oppose the motion that Counsel should be called in. Earl GREY said, that as his Noble Friend had thought it necessary to explain the grounds on which Le had voted against the question for proceeding with the case, he should also avail himself of the opportunity to state the reasons•by-which he was in duced to vote in favour of it. That vote was indeed a painful one to him, but lie could not decline his duty, however painful to his feelings the performance of that duty might prove. When his Noble Friend objected to Bills of Pains and Penalties, he agreed ith him in all his general reasoning on the subject. t the question which their Lordships had just de cided, had been brought before them without any arguments assigned in its favour, and the object to which it went was that of inducing them to rescind their own order, and to place the House in the pre dicament of contradicting itself, and abrogating its own proceedings. Under those circumstances he had voted with the . majority. When his Noble Friend contended that Bills of Pains and PenaltieS 'trete Inid in principle, as ex postfacio laws, and as extraordinary exertions of power, he felt and acknow ledged the force of his observations; but he could not help feeling, at the same time, that in cases of great State necessity Parliament had extraordinary. passers to ensble them •to do what the ordinary Courts of Law could not accomplish. The general objections, there:ale, were wall liainded, and unless tie justification of State necessity could be made out, they ought to he fatal to the Bill. His Noble Friend Lad asked what public advantage could arise from the proceeding, and insisted, at the same time, that much public mischief was likely to result. If the House stood in a different situation from that in a Lich it was placed at present; and if, under that diiietctat situation, he was an adviser of the Crown, such arguments would, no doubt, have considerable weight with him, and produce much hesitation be foie he could resolve upon advising a prosecution under all the circumstances. It certainly appeared somewhat strange, that when Ministers were willing to allow her Majesty the rank of Queen abroad, an allowance of £50,000 a year, a respectful attention from our Foreign Ministers, and a recognition of her legal rights to be signified to any Court which she might select for her residence, it appeared somewhat strange, after so much was admitted, that the single circumstance of her return to England should be suf . fisient to induce them to proceed as. they were now proceeding. • But this was - not the question now. The question was, what Parliament ought to do in tto situation in which it stood ? There was a charge against the Queeroof England. On that charge he slould give no opinion, be had formed no opinion, lie stood there as a Peer of Parliament, unconnected either with the King or with the Queen, and free from all bias, to deliver an impartial judgment on the case, according to the fair impression of the evi dence. He bad bet Ore him the Queen of England, arraigned of charges which, if proved, must render her unworthy to fill that high situation. When his Noble Friend asked what was the State necessity? he would answer, that they were placed in a condition which left them no choice but to adopt some mode of trial, by which the fact of guilt or innocence could be ascertained, or continue in that exalted sta tion an individual whose character was liable to such imputations. When the charge was brought, he could not, without a cowardly and pusillanimous de. sertion:of his duty, refuse to hear the charges. As to the . question, whether they should proceed by that Bill of Pains and Penalties, he. had already stated his objeCtions to it.; but he was willing to admit that, if there could be no.other course of proceeding, that course must be .adopted.• But was that the case ? Was it certain that they could not proceed otherivise, bscause the crime imputed did not amount to the crime of High Treason ? He felt great diffidence in dissenting from any opinion stated by such an autho rity As that of the Noble Lord on the Woolsack, but. be was bound to express his sentiments freely and without disguise. The Noble and Learned Lord had stated, first, that he entertained doubts of the received construction of the statute of Edward the Third— and, secondly, that even if the received construction were true, the circumstance of such a crime being committed abroad with a foreigner, who owed no alleiiance to the King of this country, must prevent the crime from being considered High Treason in the Queen, as it was not High Treason in the other party. Wen this was stated by a Noble and Learned Lord, who had spent so long a life in legal habits, the first years' in the study, and the last in the administra tion of the law, and when it appealed, moreover, • that he entertained nothing more than doubts on the subject, they ought to satisfy themselves; the House ought to ascertain, 16r its own satisfaction and direc tion, whether the received construction of the law was sound or not. Ile believed that the opinion of all the text writers of the law would be found to favour the construction. Lord Coke, Lord Hale, Mr. Serjeant Hawkins, and Mr. Justice Blackstone, were authorities on that side; but he thought they should have the opinion of the Judges of the land, statingafirst, whether tinder the statute of Edward( the Third, an act of adultery, vont:pitted tinder such circumstances as were imputed, was cognizable by the ordinary tribunals of • the country. And here he would beg leave to declare, that nothing short of the clearest and most overwlielmingevidence of an adulte rous act, could satisfy his mind or justify him to his own conscience in voting for the Bill. It must, as far as his support was concerned, and he had no doubt that their Lordships would take the same view of the stibject themselves, be supported by evidence supe r rior to all suspicion. He now came to the second assertion of the Noble and Learned Lord, who had r said that as the Queen's guilt, supposing the case to be made out, was that of an accessary, she could not I be subjected to the penalties of High Treason, the principal himself not having committed an offence of that character. It was true, that in general cases accessaries could not be prosecuted unless with the principal, or after his conviction, but this alluded to accessaries before or after the fact. He believed, that upon every principle of law, a Queen found guilty of such charges as the present, was guilty as a principal in the second degree. There were two degrees of principals, and those who were guilty of , aiding and assisting in the commission of the crime .i ' were considered as principals in the second degree,.l and, as such, Could be proceeded against without the principal offender. According to the principle the Treason Laws, there wa s no a cc e ss ary ; and as the act alleged could not be committed without dip presence of -the Queen, supposing it to be proved, l i i she was, according to his notion, a principal in the' second degree, and, in his view, came under the pe-, nalties of the Statute of Edward the Third. Sup posing a foreigner had committed violence on the person of the Queen abroad, and that an Englishman' standing by held her hands while the act was corn-, rnitted, would it be contended that the Englishman, who was a liege subject of the Clown, wasnot guilty as a principal in the second degree, because the fo reigner was not guilty of High Treason? He wished also that this question should be put to the Judges, whether the commission of such a crisife with a fo-1 reigner abroad amounted to the crime of High Trees son ? Gen fo: hid that they or any one should think him capable of recommending any proceeding in consistent with the humane spirit of the times. If the Judges pronounced the crime High Treason,' he would purpose in that case to dismiss the present Bill, and to bring in another, altering the Law of Treason in that respect, so far as to limit the punish ment to degradation and divorce. By that means the-charge might be preferred in a fair, legal way, and the Queen would be afforded an opportunity of making a fair defence, under all the advantages which it was desirable that she should possess. If the Judges answered those questions affirmatively, he would willingly vote with his Noble Friend to get rid of the measure. If they doubted that the Law of Treason applied to the case, he would sug gest the propriety of making a declaratory law, and if they professed themselves decidedly against it, though he would have preferred an Impeachment by the other House, he must consent to the progress of the present Bill, being determined at the sacks time to act juditially, as he was confident all their Lordships would. This he stated in justice to their Lordships, for he never could be brought to coun tenance the charges made against the House of Lords, believing, as he did in his conscience, that if the case was proceeded in, it would receive a fair and impartial hearing, and be determined according to the principles of substantial justice. His Lord ship afterwards moved as an Amendment, " That the following question should be referred to the Judges, Whether, if the wifa of the Heir Apparent to the Crown, re siding out of this realm, be violated by a foreigner not owing all to the King, she consenting to such violation,- whe ther she be guilty of. High Treason under the true construction of the Statute of the 25th of Edward the Third ?" The LORD CHANCELLOR said, that he felt an anxiety to explain his notion of the law on the sub ject, and observed, that the Noble Earl (Grey) ap peared to be a much better lawyer himself than he was willing .to take credit for. He had given his opinion before, that to the act, whether committed abroad with a foreigner, or with a foreigner at home, all the objections against constructive Treason ap plied more forcibly than to any other—(ficar, hear). He entertained considerable doubt whether the doc trine laid down by the text writers was correct. He could with great truth declare, with the Noble Lord, that he was now exercising a mcst painful duty; but, he would also declare with him, that however pain- ful the task, he felt that he ought not to decline it. But suppose the law to be as the Noble Lord had desci 'hen it, could they say that the had committed the crime of High Treason, when the person with whom she was represented to have committed it bad been guilty of no such crime ? The thing to which she was accessary . mus: be a crime; but if it was,not such a criale in the man, there must be at least a !oubt whether it could be such in the person who co:!sented. Unless the fact on the part of the viola -1 tor was Treason, it could not be Treason in the ac cessary—(l/ecr, hear!) Lord LIVERPOOL admitted, to its fullest extent, the fairness of the argument adopted by the Noble Earl (Grey), although he differed from him on some points. As regarded the p resent qu e st i on , h e hoped every Peer would treat it as a judicial, and not as a ' political question; and that on this occasion, how lever on others they might be biassed by political feel ing and connections, he hoped and trusted that every Peer would decide independent of every feeling ex cept a desire to do justice—impartial justice to the Illustrious Parties concerned—(Hear, hear).—His opinion on this subject was, that it would have been most desirable that this inquiry and this proceeding should have been avoided ; and lie was persuaded it might have been avoided, if her Majesty would have consented to remain abroad ; and, with this impres sion on his mind, he should never be ashamed of any terms which had been offered to her Majesty, with a view of rendering the proceedings unnecessary. But her Majesty having persisted in coming to this coun try, it was necessary inquiry should be instituted, or that her Majesty should be admitted to her full rights and privileges; and even the Noble Earl opposite, had acknowledged that Ministers, if possessed of charges, would have been guilty of a criminal neg lect of duty had they not brought them forward.— , Now, with respect to the present proceeding, the only question was, whether it was the most convenient mode of proceeding? lie was ready to, admit that proceeding by Bill of Pains an . d Penalties ought only to be adopted in titre me cases. The proseq, he con ' tended, was one Allow eases, on account of the un certainty df the law on the subject. With respect to ' impeachment, it was well known that - difference of opinion existed oh the subject of adultery. namely, whether it would amount to the crime of High Trea son : and if it did not.amount to the crime of High Treason, was it, by the general law of the land, a crime which would attach to 'the Queen, even if , proved to the fullest extent ? He was.persuaded that ., question, if put to the Judges, must have been an swered by them, that it was no crime at. all. The Noble Earl then proceeded to defend the course of, proceeding which had been adopted, from the charge of peculiar hardship or injustice. The same degra dation which would attend the Queen, should this Bill be adopted, attended the wife of every Peer in every Divorce Bill in which a Peeress was a party, which passed their Lordships' House. It was not from any reluctance to retrace his steps, that he now persisted in the course which had already been adopted ; but because be was convinced the present was the course most convenient, and most likely to forward the ends of justice. He had no objection to the questions of the Noble Earl being put to the Judges, provided the present proceedings were not delayed, by waking for the answer of those Learned • - , persons. The Marquis of LANSDOWN .begged leave to state his reasons for acquiescing in the course recom- ' mended by his Noble Friend, Earl Grey. With re spect to the general nature of the proceedings recom mended by Ministers, be could not go tlfe length of affirming, though he knew many persons in and out of the house affirmed, that in iio case whatever should Bilis of Pains and Penalties be introduced into, or attempted to be pissed through Parliament. With all the iuconveuiencies and hardships attaching to such measures, the extent of which he was as well aware of as any of them, he felt conscientiously that the House could not safely give up the power of in troducing such Bills; thar in so doing they might give up a privilege which, in eventful times might be made the foundation of •the safety of the State. It was a power which be felt it his duty to defend and preserve, convinced that in some conjunctures it might be directed to the preservation of the country. But it was for their Lordships to consider the grounds upon which such Bills were recommended for their adoption, and he should ask, if that which had been proposed to induce their Lordships to entertain the present Bill had not been the allegation of the Noble Earl opposite (the Earl of Liverpool), that no other means whatever existed, from the peculiar circum stances of the case s of bringing into a course of judi cial examination and suitable punishment the crime which was said to have been committed ? On the ,establishment of that ground only could their Lord ships be induced to assent to the passing ofshe Bill ' on the table. He had befote protested against certain preparatory steps, which, he feared, had operated ex tensively throughout the country to the pfejndice of the proceeding ; but he had felt it hie duty' td say, that he would listen to the grounds* on which the Noble Lords opposite asserted they could maintain the measure, since Parliament was driven to such a necessity. Now Parliament was in this situation, that the Bill having been laid on the table, and fixed for the second reading this day, they were called on to comply with an order of a- former day to that effect. - , The question proposed by his Noble Friend tended ' to enable the House to form an opinion for them- selves, whether the Bill of Pains and Penalties intro- , duced, was the only possible mode of investigating 1 the offence, and satisfying public justice? His:Noble Frierid asked the Noble Earl to suspend the proceed- 1 ing until the opinion of the Judges, whether there was any other within their power, should be obtained. Until that opinion was obtained, their Lordships were not in possession of the knowledge whether they ought, consistently with their duty, to proceed in the mode which had been originated, or whether there was any other and better one ? He allowed there was some considerable inconveniency in suspending, the proceedings ; but how much greater was that likely to result to the Public from persevering in a course, which, on all hands, was admitted to be ob r jectionable—(Hear, hcctir)—and which the Noble Earl (Liverpool) himself admitted to be justified only by .11 the necessity of the case ? He said, that much less inconvenience would result from the suspension of proceedings which their Lordships might thereafter ave cause to think improper, because unnecessary, should such be the inference, from taking the opinions of the Judges, 'the whole blame and responsibility must rest with the authors of the Bill. He had rea son to believe : that some of the highest Authorities entertained an opinion upon the point of law differ- tut from.that laid down by Judge Forster, and stated •by, the Lord Chancellor, and concluded with again tecommendief the adoption of the cour s e p ro p ose d by his Noble Friend ; (Earl Grey). Lord LIVERPOOL. add Earl GRAY each said a few words in explanation. . The question for calling in Counsel, and the amend ment of Earl GREY for putting his questions to the consideration of the Judges were then. put., • Lord CARNARVON replied, and observed, that although he had no expectation of inducing the House to depart from the course it bad adopted, he must state his conviction', that nothing but pure and unqualified' evil could result from the proceeding. The motion of Earl GREY for referring his ques tion to the Judges was then agreed to, and the Judges withdrew to deliberate. Lord LIVEIIPOOt. suggested the propriety of continuing to call over tire House daily, to insure a continued full attendance.—This proposition, together with some regulations as to form, were adopted. After being absent twenty minutes, 'the Judges returned, and The LORD CHIEF-JUSTICE delivered their de cided opinion to the following effect :—" The Judges have conferred together upon the question proposed to them by the House * whether, if a foreigner, owing no allegiance to the Crown of England, •iolates in a foreign country the wife of the King's eldest son, and she consents thereto, she commits High Treason, within the meaning of the Act of the 25th Edward ? And we are of opinion that such an indiviH dual, under such circumstances, does not commit' High Treason, within the meaning of that Act:— This opinion, his Lordship continued, was grounded upon the language of that statute of Edward 111. atich declared it to be Treason for any man to vio late the wife of the King, the wife of the• King's eldest scs, /cc. the Judos holding that, unless. there were a man who could be legally charged ‘vith such a violation—the charge being that he did the act against his allegiance—it could not be said that Treason had been committed. An act done by a foreigner, therefore, owing no allegiance to the Crown, could not amount to that crime. • The opinion of the Judges having been pi-Omen:T.% The Marquis of LANSDOWN said, before tl.e motion was put for calling Counsel to the Par, he mnsralßirt-m. riot eiretnnstatice,' naaiety, that no less than five of the Counsel about to appear - at the bar, were Members of the other House. He had no intention to deprive the Illustrious Parties concewd here of the advice of the eminent Counsel they had selected, but he must now - call the attention of their Lordship; to the circumstance to prevent its being drawn into a precedent; and . hc must at the same time advert to the anomaly of perions being Counsel at their Lordships' bar, in a case in which - they .may hereafter be called on to become Judges. The LORD CHANCELLOR having put the Clues: tion, whether it was their Lordships pleasure that her Majesty's Counsel should be called in?' The Duke of HAMILTON rose to inquire under what instructions, and by whose order, his Majesty's Attorney-General appeared at their Lordships' bar ? The ATTORNEY-GENERAL stated, that an Order of that House laid been served upon him, from which Order it appeared that Counsel would be allowed to be heard in the course of the Bill before the second reading thereof; and in obedience to that order Ie had felt it his duty to attend personally, or to ap point Counsel- to attend, in order to produce toe evidence which would hereafter be brought forward in support of the Bill. The Duke of HAMILTON said, he had as yet to learn under what instructions his Majesty's Attorney General had proceeded. The ATTORNEY-GENERAL repeated, that in con sequence of the Order which he h - ad received, he felt himself bound either to attend in person, or to depute some other Counsel. As it. was necessary to produce evidence at their Lordships' bar, he hal taken the only course which was opea to 1:;:-n, namely, to obtain information from the pi cpt. , 7 source. He had accordingly applied' to the 'Se cretary of Stale, who had supplied him with the ne cessary information: The Duke of HASULTON said, he was certainly anxious /o knew who was the prosecutor upon the present occasion, and if he understood the statemen:t of the AttorneyAktieral, it apreared that the Secre tary of State war. the prosecutor—(Cries (J lion, some parts of the House). : The Earl of LIVERPOOL said, that his .lajesty's Attorney-General had =taken the best means'of ob taMing information by applying to the Secretary cl 'State; that information had been supplied, and the regular course would be, that his Majesty's Attorney General should proceed to open the case at their Lordships' Bar. • • Lord HOLLAND agreed that the Cockle whkh the Attorney-General had taken, with a view .of ob taining information, was sufficiently satisfactory: Mr. BROUGINAX then addressed their Lordships to the follow ing effect—" My Lords, have the honour to attend at your Lordships' Bar. on behalf of her Majesty the Queen. A ant anxious not to incur the most•distant risk of interrupting this Court, or of interpoeing-between what any of your Lordships may deem fit to say; cad I certainly-wish to be stopped the too meat I appear to be interrupting your l.ordships. My Learo-d Friend, the Attorney-General, does. not appear to know xe , y exactly in what capacity he attends here. He has saia That notification has been served upon hirn by order of your. Lord ships, but in what capacity he attends at your Lordship~ does hot very distinctly appear. - Whatever uticertainty„how ever, may exist in the mind of his Majesty's Attorney-General, or however equivocal the capacity in which he attends here, I and my Learned Friends have the honour of attending at your Lordships' Bar, distinctly and clearly on behalf of the Queen. The last time I had .the honour of standing' in this place and in this capa c i t y, your Lordships deemed it proper to delay belting, till a subsequent stage cf the proceedings, the arguments which I humbly ventured to tender to your Lord ships' consideration against the principle of the Bill. By the order of your Lordships on 6th July, her BLjesty's Counsel were informed, that in the observations which they were tbeu permitted to make, they would be confined to the mode of pro ceeding upon the Bill which had been read a first time, and to the time or times of prooeeding thereupon. Your Lordships will recollect, that I then ventured, not indeed to complat:', but to express my extreme regret that your Lordships did not think fit to allow me a greater latitude 9f observation. Your Lordships, however, intimated that all that latitude of obser vation should be reserved to a subsequent stage of the proceed ings, and that upon the question for the second reading of the Bill, I should be enabled to object to the principle of the Bill altogether. I humbly conceive that this period has now arrived, and that independently of any evidence which may he produced as to the facts —before any evidence is gone into as to the allega tions of those facts—laying those allegations out of view for the present, or even admitting them to be true, for argument's sake, all of which; if it were necessary, I deny, u solemnly now as on all former occasions, t °have any colour or foundat lee whatever— I still demur to the principle of the Bill, upon grounds of which the force cannot be weakened or affected by any proof that can be offered as to the truth of the facts. If I were called swots to Chew, that I am sanctioned by . precedent in objecting to the principle of this Bill—although I admit that the present pro ceediog has not the remotest resemblance to any which have preceded it, I would remind y o u r L or d s hi ps o f the cue of the Dukeand uchess of Norfolk in 1692. In that case it swears from your Lordships' Journals, that proceedings took place of the following natur e :—First, the Duchess of Norfolk presented a Petition to the House of Lords, not stating that a Bill had been brought in, or that a copy of it had been served Upon her, or even that she had received regular notice of the intention to bring in such a Bill—but stating only, that she had been in formed that the Duke of Norfolk hid offered a Bill, and hum bly prayiog to be heard before the Bill was received. The House having taken this Petition into consideration, made an Order on the . Bth January,-1692, that her Grace should have notice that the Bill had been offered, but not received, ant that she should be heard by her Counsel on the following Tuesday, as to what she had to object against receiving the said Bill.— Your Lordships will observe, thit Counsel were to be heard even against receiving the I have been told before, that such a thing. was utterly impracticable, and I have been put down with something approaching to scorn, when I presumed to suggest, that in behalf of any party, however menaced, Coun sel could be heard against the first reading of a Bill of. Pains and Penalties. I cannot now ask to be heard against the receiving of this Bill, nor even against the first reading of t h e Bill, f or t he decision of your Lo r d s hi ps has precluded me from asiing what Butwould have been wart . tee by by precedent li t conceding. But how do I now stand? The Duchess of .Norfolk, let it be recollected, was heard over and over again. She was heard against receiving the Bill,.she was heard against the Ent reading of the Bill, and she was twice heard-on the second reading upon the point of principle, and upon the point of evidence. The nest eases to which I would refer s if I am not unnecessarily troubling Lour Lordships, are t h at o f K n i g h t v. Burton, in 1698, ani rd Anglesea's case in 1700. The case of the Duchess of Nor folk, and that of Lord Angleeea were both cases of divorce. I regret, and it is with unfeigned reluctance that I ant compel', 1 to make this observation, in passing, upon the Report made by a Committee of your Lordships. I regret that :hat Committee were not aware of these cases, and that they did not happen It' turn to those pages of the Jonmals which were so german to the matter of inquiry. Lists of witnesses, it will be found, were ordered to be 'furnished to the persons against whom the pro ceedings were instituted. I shall be told, perhaps, that the Re port of the Committee refers only to Ihils of and Ptilaltrs, ~w - =.; !~ • _r-