The British Press; or, Morning Literary Advertiser.
London, England, 1820-08-18 00:00:00

appoint some one else to appear at their Lordships'
bar, to support the Bill before them: he had there.
upon used the proper means, and lad applied to
the Steretary of State, from whom having obtained
information. he now appeared to support the Bill.
After a few words from Lord HOLLAND. .
Mr. Brougham proceeded to address their Lord.
ships. He said that his Learned Friend (the Attora
ney-General) appeared there, but for whom was not
so clear; for himself, 1w was before their Lord.
ships for an individual, for her Majesty the Q.seesi,
of whose Counsel he appeared. It might be in the
recollection of their Lordships. that the last time
lie had appeared at their b..r, they had thought pro-
per to delay to • subsequent stage the arguments
which lie had considered it his duty to tender to
their Lordships, against the principle of the Bill
now before their Lerdshipe. It was also the plea.
sure of the House that Counsel be informed that
they were to confine themselves in their arguments
to the mode nr procredeilx before the House. Their
Lord-hips might probably remember, that he at
that time regretted that their Lordships would not
allow him a greater latitude of observation; but
their Lordships had observed that that latitude
of ohstrvatiou would be restored to hire, and that
on the second reading or the Bill be would be coo,-
bled -to inike h a objections to the principle of it.
He conceived that the period had now 'arias*
when laying the truth or falsehood of the ullego.
bons nit of view, aid admitting ilie recta to be
true as stated in the preamble of the Bill, _,
which he had denied, tied did now deny. to pastes
any colour or found:if .whatever in truth, and Ise
was sure their Lordships' sagacity and justice would
not allow them to mistake the admission which he
now made merely for the sake of raising the argu-
ment to demur and object to the principle of the
Bill. The objection which he meant to urge
could not be interfered with by any proof to he
offered to the fact*. The filet case which he should
remind their Lord.hips of was that of the Duke
and Duclie-s of Norfolk, in the years 1669 and 1670.
In that rase the Duchess had presented a petition
to their Lerdshipa' House, in which she stated not
that any Bill was intended to be brought against
her. but merely that the Duke of Norfolk was
offering to their Lordships • Bill of such a nature,
and she prayed that she might he heard against it
before the Bill should be received. The order of
the House, of the Bth January, 1673, direcied
that the Duchess should have notice of the Bill
(offered but not received), and might be heard by
Counsel what she had to object against it. He did
not now ask to he heard against the first reading of
the Bill—he well remembered the scorn with
which, on a former occasion. he was put down when
he had suggested that he should be so permitted—.
he was then considered as desiring what had never
before been asked or granted—a thing, in short,
subversive of all the forms of proceeding by which
their Lordships hail governed themselves. He did
not, therefore, then ask to be heard against the first
reading, because, by their Lordships decision on
the former occasinii, he was precluded from it;
but lie stood now on the authority of the case
which he had cited, that he was entitled to
be heard against the principle of the he
cowl on the ground that the Duchess of Nor-
folk, if not on the oecopti reeding of the Bill,
had been heard in two previous stages against
receiving it, :and if that were not a cue in point,
he could not tell how • case in point could be
found on any subject whatever. There was
in May 1698, the cue of Knight and Burton,
-which was, it was true, a Bill of Pains and Pensl-
ties, arising out of proceedings in the Exchequer
Chamber; but there was also the case of Lord and
Lady Angleseu, which was a proceeding for • 818
of divorce. He would not impute any thing to the
Noble Persons who had sought fur precedents ou this
occasion; he was ratified the floes he had cited
had been by them overlooked: there was no other
way of accounting for the omission of what was so
germane to the matter ; but the facts were, that in
one of the ca-es he had cited, • list of witnesses
had been allowed. and these two cases were nor
in the Report made by those Noble Lords—while,
in the case which wus put into that Report, a hot
of the witnesses were not allowed. He would now
proceed to state in the stage at which they were
arrived, his objection to the principles of the Bill.
The LORD CHANCELLOR—" The Counsel mud
withdraw." -

Mr. Brougham hereupon retired one step from
the bar.

The Earl of LIVERPOOL said, that undoubtedly
wheis the case should be closed it would be com-
petent for the Conitserto answer and overthrow the
testimony given, and over and above they might
certainly object to the Bill itself, if it were thought
objectionable. That he conceived would be the
regular coarse of proceeding; but if he rilliqy un-
derstood the Learned Conisael, lie wished to be now
heard against the principle of the Bill.
The LORD CUANCELLOR said, there was one
srgunient in favour of the regular course as pointed
out by the Noble Burl (Liverpool), which was,
that if the facts were not proved there would be no
occasion for occupying their Lordships' time by
going at all into the arguineots ou the principle of
the Bill.
Lord
_KgNYON said, their Lordships must be
aware of the extreme regret of the country at ftrge
that any opinion should be entertained by their
Lordships of the necessity of going at all into the
evidence. lie therefore, with a view to avert that
necessity, moved thit Counsel be now allowed to
proceed.
The Earl -
question wl•
answer to
alter the decision

to, that Cuumel

only question _
course or p►oeerding.
was that the

after closing .
fur her Majesty'
The Margo'

proper to see
time of the

way. He thought
Learned Counsel
the principle of
stage of the proc
allowed to speak
therefore, thinrglit
whether they

tried brig forward their argtnueata• against the
principle of the Bill. He thosight that the coast.
deratioo of saving the tune of their Lordship, Ines
as nothing to bring saved the • disclosure of fact.,
which. if the Learned Counsel's arguments pica
trailed. would be the desirable result.
The Conner' were then ordered to he called in.
and Mr. Brougham advanced again close to the
bar.
The Loao COUNCILLOR, it4d►essieg the Coon.
eel. informed them that he was commanded by the
[louse to ark if they chose now to proceed iu their
arguments against the ritteiple of the Bill > at the
same time they meat clearly understand, that they
could not then so proceed end at any future stage
likewise.

Here there was a cry of Counsel to withdraw,
which was loudly reiterated, as Mr, Brougham had
not retreated et all from the bar; ou which, as be.
fore, he stept back a pace or two.
The Earl of LAUDIIRDALE said, that he mast
abject to the course of I►rocredutg proposed ; for
the Counsel might flood it expedient to object to the
principle founded on facts amity; from the evidence
to b- given ins the Bill ; when, by the mode adopt-
ed, they would be precluded f making the ob.
jectiow,, however well founded. He objected to
this, hecHu•e it apwareil like the Court making a
b orlon' wi.l► the Counsel to pursue a certain course
in defending his client'. cause.
The Coulasel were then ordered to be called in,
on which

Mr. Brougham slept forward to the bar and apo-
logised for his delay in withdrawing when the call
took place for that purpose, Ile .aid he had en-
derstood from those who were in the habit of attend-
ing the bar of their Lordship., that the withdraw-
ing was a mere act of form; he begged, therefore,
to clear himself front any imputaiiiiii of disrespect
to their Lordships, as he was well aware there wire
those present who were quite really to misconstrue
any thing he might do or say.—/Loud cries of
" Order ! order !"/—He now understood that he
was to make his election as to the time when he
would argue ageing the principle of the Bill, and
he the more readily chose that moment from be-
ing edified their Lordships' sense of justice would
induce them to revise their decision against here.
after heating him; should any thing essential to the
ends of substantial justice arise alter the evidence
had been gone through to render it necessary. His
first objection we., that the Bill was a private law
made for a particular case, said to punish a parti-
cular individual, a proceeding never resorted to iu
any country, or in the worst of times, without a
deep sense of its hateful nature, and its utter re-
pm:mince to every principle of jurisprudence. From
the earliest period of the Roman Curie, the greatest
Juriscorssults bad described such laws as of a
dreadful description, raid only to be justified by
absolute uecessity. Such laws were ex post
fuel* ; they first permit the deed to be done,
and afterwards define whether it he guilty or
innocent, or rather before ally notice or warn.
log given, anti then lay hold of the person and
inflict 'punishment, as if the guilt had been pre-
viously defined. He disclaimed the childish pe.
dantry of quoting to their Lordships examples from
the Roman history, but it would be in their Lord.
*hips' recollection that not only the wisest end best
of the legislators of that people, but even those of
moderate sagacity, have startled at passing lasso
like these. And in the history of our own country,
the story of the enactment was speedily followed by
the account of the repeal. It might be objected
that he was referring to a period when civil wars bad
deluged the country with blood, but he did not
refer to those times for examples, but because the
cases he was about to quote were against the exam.
plea of Bills of Prins and Penalties. In the reign
of Edward 111. the Bill against Mortimer was pass.
ed end quickly rescinded ; so also similar Bills in
the reign of Richard 111., and indeed almost all
laws of a similar nature adopted udder the pres.ure
of temporary expediency were afterwards repealed.
The case of Lord Strafford would be in the rerol.
lection of their Lordships. All the Bills against
the wives of Harry VW., any reference to which.
would involve him to the history of the violence and
cruelty of that hateful tyrant, he should for the
present purposely pass over, end take his stand at
better periods, and only just glance at the mile of
the two Charleser, when Strafford suffered under a
proceeding which' was the greatest disgrace that
ever sullied the purl.), of either House of Parlia-
ment. Hail that been a case of impeachment, it
would have been comparatively a case of justice ;
there would have been at least the forms of justice
half observed, and the spirit totally neglected ; but
it was a case of attainder, and to Oki, their Lord.
ships what was the sense entertained by their an-
cestors of that Act, lie would beg leave to res.' to
them a passetge from a history written by one of the
most eloquent men that ever existed, and • near
relative to ore of their Lordships who then heard
!situ. Here the Learned Counsel read a passage
from Mr. Fox's Hisioey of James the Scemsd,
which, after stating the fate of the Earl of Straf-
ford, proceeds to give an account of the conduct
of the House of Lords, at a subsequent period,
when they reversed the iniquitious act, and in the
preamble of the Bill stated, that to the end that
right be done to the memory of the deceased Earl,
it should be enacted, that all records of the att lin.
der shoulA be wholly cancelled, to the end that it
might not be visible to after ages, to.be drawn into
example to the prejudice of any person whatever.
Of a similar nature was that Bill.which at present
• Lordships' table, by • • of which,
exalted,

some from the face of the proereiling it elf-:
because. if any act had been committed Ili eirila•
Lion of *sty law, their Lordships would never have
entertairsed the measure. And here he mast be
allowed In make one obaervalion respecting another
mode of proceeding : he considered. that if no
:illegal act had been done, impeachment was the
merle for trying what could not be indicted by li'w.
He dad Hot mean to contend that a person might not
be impeached fur what was oleo indictable; *hat he
meant wits. that crimes may be committed not cog-
nisable by the Courts below. but still strictly coral!.
able by their Lordships. lie therefore thoughtainat
something of a raison should be given to shear-why
itnpeathment had not been resorted to. In Sire-
ford's case impeachment was resorted to, and the Bill
of Attainder was brought in pelt. she proceeding+
on the impeachment, and it was only when they at:
prehended that the impeachment would fah', that
they adopted the attainder. The present was, h •
conceietxl, in the spirit of thole proceedings. The
actors in that injustice were then on the poins%c•
bide. and their successor in the pre sent day now
have recourse to a similar measure. when they
foresee that impeachment would fail. If the
case were such as to make the promoters of
the Bill doubt of their Lorttebips entertaitting a
charge of inspeachinent, they might have laid their
papers and proofs before the other House of
Parliament ; a vote of impeachtnent might liae.!
been then brought up, and their Lordships would
tioubtlebs have suffered it to go on. Indeed, es it
was the privilege of the Commons to impeach. it
might be doubted whether their Lordship. could
avoid enterineol it. Had that step been adopted,
her Majesty's advisers would have bad a 'resin':
charge, with such peculiarity of detail as would
have enabled them to see on what points they were
called upon fur defence ; and if nut allowed a list
of witnesses, they would have hell what would at
least snake site measure bear some resemblance to 1
judicial proceeding, which at preseut it did not ;
but he trusted that it would at least resemble a judo.
coil proceeding iu its regard for substautial justice.
Another thing from which a conclusion might be
drawn, that the present was not a charge of guilt,
or the proceeding • judicial one. was this, that if
the charge had been of a something done for which
the party might be indicted, or ems impeached, lie
would be precluded from urging any thing on the
expediency of the measure, because iu (-sauna of
..iestsce such questious were wholly foreign to • ju.
dicial investigation; but when it was a question
of legislation, of a Hews law to be pa-sed, he as*
immediately let in to adduce every argument
hug to expose the impulicy or injustice of the prO-
ceeding. The Learned Counsel, in coutiommois.
observed that lie could spew front their Loidships'
proceedings, or rather front the protests of the
virtuous minorities, that such measures should 'sever
be resorted to except true failure of justice. or the
most absolute and pressing state necessity. Whhout
these exceptions nothing could justify such a
proceeding. The Leamed Counsel proceeded to
read • protest, which among other distinguished
names had that of the Lord Chancellor Cowper
signed to sit, in which the arguments he pan) just
urged on their Lordships were corroborated inn!
supported. Where then, he would ask, welt the
impelling necessity which alone could justify the
proceeding ? Was the puccessiou in jeopardy ?
Supposing that her Majesty had been b.oright
under the operation of the statute of Edward II l.
from the peculiar circumstances, from the 'ewe-
tie, or age of the parties, it would be a reason-
able inference that no danger could arise to the
succession ; yet as that would have been a case of
impeachment, he would have been lasitiod to treat it
simply as a question of fact, and could out hove
argued from inferences or probabilities; but here
lie was entitled to argue it as a law to be made.
end not a trial under any existing statute. If a
shadow of danger to the Bocce...ion could be
• then one only of his objections would
be removed. There was another danger to the
succession, which was, where it was likely o
fail fur want of a succesor. but to that be would
not call their Lordship.' intension. What then was
the ground of necessity here stated ? Why, it was
said, that the conduct of her Majesty. from the st s.
lion which She occupied, might degrade the Crow i
and the nation, and then an inference is drawn that
the connectiou between her Majssiy, the Crown,
and the nation must be broken, because of sisc:t.
conduct. On this lie would observe, first of all,
that the charge was for conduct of her Hajecy
before she was Queens, when only the wile of
• subject, though filling the highest station iu
the realm, yet but a subject. Now observe :104
that acted. If the Queen had been brought there
far on act done whilst Princess, would any woo
have denied that it was • Bill of Divorce, awl
must then have been had on the ordinary terms; all
the forms must have been duly complied with. The
party must come by Petition to their Lordships'
House, and must have come in to ask it with meal
hands. But it was delayed till her Majesty because
Queen, and then proceeded in alien her Majesty had
lost, sr some said, the rights of a private wife. and
although he did not joie iu that opinion. it was
sufficient for his argument that some entertained it.
The question now was, of the King awl .the
Queen, and not of man and wife, and he did soy,
that it would he unjust if they dial slot give to her
Majesty every benefit as Queen which she would
have eujoyed as Princess. Having raised the goes-
titiu of recriminaticra, he would put it out of
view, but he should violate the instructiorrt cf

laid on their Lordships' table, by means of which, his illustrious client if he utorsesi the wont aga,ts
rl of itIIZIWOOL thought that after the rank the most exalted, station the most respectable, without absolute necessity. He equally laid out cl " .1
Thich had been put to the Judges, the and above all, every thing dear to character and view the questions al levity of conduct ; and ill
which their Lordships had heard, and feeling were to be blasted. The obliteration of the conduct of the parties previous to marriage be
lecision which 0%4 Lordships had come attainder was not done to bring to life the odious should also postpone. because it was ounecessare
otuutel should be heard upon the Bill, the precedent; it was done in hatred to it, that it to the safety of leis client. Au advocate knew but
Lion remaining was, what was the usual might be held up as • beacon to warn, as a land- one duty—the protection of his client ; and whatever
poceoding. 'flat course, in his opinion, mark to guide, when future Princes rod Parka- the consequences might be to Princes, power*, do-
ie Attorney.Generil should proceed, and meats should oe called upon to decide in similar mission, or nations, as au advocate he was hour.d by
ig his case, it would be then competent cases, that they might avoid what had been done all the me.sus his power to stop the Bill. lie
tjesty's Counsel to reply. Lord Strafford; because in his own time it was asked if we were arrived at that period iu polished
irquis of LausnoWN said, it would be abhorred by all good men, and in the immediately society, when we dared not call things by their
ore if the argument used for saving the succeeding age was rescinded by the eons of the proper names, and when that milord to b! ciiminal
! House did not in reality press the other actors in it. Having thus stated the general ob. which was committed by dignified todunduals. He
thought it was quite clear that the jectioua to Bills of Pains and Penalties, he would would appeal to the heads of the chinch if 'idolise,
:ounsel must be allowed to speak *gantlet velment to say of the present case, that the worst of was only a crime no woman. He would .4 if the las.
de of the Bill, either new or at a future former • Bills, sot escepeing those of Henry the sour of the country were more tarnislid by whitewall
be proceeding. but that he could Rot be Eighth's wives, were , regular judicial acts, comw only ventured to be called adulterates nitwit:muse, h •
speak twice upon it. His Lordship, pared to the one Were their Lordships. He should glum by that which he would mill oddities,. is
thought that the Cisenael might to sleet assume that media( illegal could be laid to her was with jadeite psis abet this was areas frees
bey would we or at a im,
.lampeat pc. Majesty's dewy; sled that be wee booed to Imp Wee, became be Mt is COSMO* with the a- raster
•
• •
• - •