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London, England, 1820-07-15 00:00:00

ter he ab.uta like them.
it welt for Pailisitent to
Oct)har function, which
srcure • keep perfect the
act in exact conformity with

Legislation a rule which prekeribed:the prin. '
Ind practice of 'lllka andlPeasilties.
•, hear 4 —I t wits clear, thdrefore; that they
with such Bills upon their *Pacific and
merits as they arose. The only principle
most ever keep in view was the attain.
the rods et isuhatootial• justice. Upon •
least, he was sure they were all agreed ; and
ground be called upon their Lordships to se-
the motion of pus Nulele and Leaman' Friend.
place they were bound to cosisider whet
course was calculated the most to contribute to the
attainineist Of lbw rude of sulisisiitnl justice ; In
the second, what course would lead, with the •
greatest speed, to that anal ttttt ent ; and thirdly,
by what particular ennuis that course could he con-
ducted. As to the first pond. lie had not heard a
single word *loch weed to shear that the old-
Wale attainment of substantial justice would be
eudaugered by adopting the course pointed out in the
Motion; on the contrary, he thought it quite clear .
that the ends of justice would be speedily forwarded
by the adoption of it, for it would altogether ob-
elate the great incutivrnience and real evil of an
adjournment the midst of their proceedings.
which it was is all 'muds admitted they insist allow
.to the Muni-toga accused, to enable her to prepare
fur . her defence. That great isicooveitience they
would obviate, as well also as the oilier serious 1111.
,pediment to impartial justice, namely, the public
coition of the evidence for the prosecution going
forth unaccompanied by that for the defroce, and
creating thereby iii ex-p arte feeling. prejudicial to
the attainnwilt of substimusil justice ; that publica-
, two would be a great evil, and Oleo, us' the 'other
band, it would be an evil equally objectionable, to
.put it in the power of arty of her Majesty's Cohost!!
~tooiay, that had he had the whole of the evidence
before liim, and been fully apprised of the
impression it created elsewhere, lie should have been
timely prepared with the menus of rebutting the
unfavourable impression thereby occasioned. It
was, in every view of the ease, essentially impor-
tant that the evidenceou the our side and on the other
should go forth hand-in-hand, and that the most
effectual larallll shookd be taken at the outset to
conned the our branch of the proceedings with the
other in the nearest possible space of time. Re-
ference had been very forcibly made by liniLeartird
Friend to the list of witnesses endorsed on the buck
of ordinary bills of indictment. It may be said that
this was not prescribed by law, but yet was it nut
the practice by sufferance ?—(Herr.f—The accus.
ed had practically, if not legally. the list or the
accuser's witnesses on the back of the instrument
containing the specification of the charge ; why
then not by stiffrance give the puny herr the same
advssitage Let there he; if it was deemed essrn-
. hal. a reservation to call fresh wituesses tin the part
of the. prosecution, but let the list of the witnesses
at present contemplated be delivered to the accursed.
—(Hear.)—The prosecutors must be prepared
with such a list, and ought to feel no difficulty is
making it out. The charges had been long in pros
oration ; time enough had elapsed tor digesting
its materials, and providing all the proof deemed
necessary. Let then that information be giVeo
Cu far as the list of witnesses went, and let it
he considered al given , to avoid the inconvenience
of an adjoutmoritt alter the proceedings were ac-
tually commenved. lie would confidently ask
whether the grunting tint list how to save delay, of
the yielding to an adjournment during the proceed.
logs of one mouth, two months, or perhaps throe
months, which he could easily conceive her Ma-
jesty might br iu a situation to ask, which course
would lir more calculated to interfere with the
anal tttt tem of the ends of justice ? Let them Otto
look tit the time whets the delay, which be wished
by the motion to see if possible avoided, was
likely to occur—at a moment of great public (ta-
ntrum'''. of great inflammation arising out of
the nature of the accusation, and the means
taken to support it—the foul and impure cha-
racter of the accusation (without meaning in
any wily to pass an 011101011 IVO!, its meriti)
must at that time be generally knows', sop
productive of abundant feeling. Lordships
would dint have during the delay to witness the
operations of such an inflammation out of doors,
without having it in their power to ;accelerate dist
to which all good persons would then-so sostiously
look—he meant the termination of Ilse paisitiii
end tttttt °riotous proceedings in which they were
'swaged. To obviate such evils, and to leave no
cause exist any where to question the fair equality
of their Lordships' course, he shosild'inost certainly
'support his Noble and Learned Friend's *Bottom—
( Hear.)
The Earl of Livrwroor. said, that in avowing his
intention to oppose this motion, lir was prepared to
meet the subject on the broad claim of stibstantial
justice—the ground on which it had been so
liffollgly put. lie agreed with the Noble Lords
opposite, that litlls of Pains sod Penalties. so far
from being in accordance with the ordinary course
of juatice, were in their endure exceptimis to the
regular law of the land. lie agreed with them
also, that in this tniniteptops case, they were not
called upon to abide by the rigid rules of prece-
dent, hot rather to be governed by the substantial
justice of the case.—(Heur, lieur.)-11; therefore,
tin the fornor slight he had expressed a desite nn
the point of precedents—if lir had wished that such
precedents were sought for and examined, it was
not with atty anxiety thut their I,,orihrhips should
fix their attention altogether upon any. inflexibility
of precedent ; for if the precedent% lied been as
clear on the one side as they prayed to be 011 the
other. he should still think that the only safe
course wits to consider what, mode was hen calcu-
lated to secure the attainment of substantial justice.
When lie alluded therefore to precedent, his prin.
cipalobject was that they should come to the dm-
cussi upon this point %nth all the lights that
could be thrown upon lb...with no other view wee
lie 4011100$ to have a search made into precedents.
is ass now clear that there no precedents to justify
this mown,. But lir repealed his readiness to put
out of Ilia consideration the plea of precedent, and
In admit that the !orient application ought to be
granted, if it were not found to fie inconsistent
with the anal iiii tent sit substantial jastice. (Jo
that pond then he was prepared to join issuer
with die
,Noble Lards opposite. A past of the
Noble and Leitrim! Lord's there,' (Lord Er-
skine's) eras taken up with sliewing a sort of
analogy between their Lordships' proceeding sit
this can auJ a trial for high ttesion, and 111 tbe

e •
mule :Of hi. argument, he. portly fonOtleaSvrea-
vetoing upon the Act of King William, and upon
the prettier of endorsing lists of witnesses noon in-
dictineuts. The Noble and Learned Lard had
even insinuated that lie knew there were proton.
who had vetoed snme'griemblino about Ilast statute.
•He would candidly give the Noble and Learned
Lord Iris opinion ti that Act. Ile would at
once avow to him, that though lie Paw great intone
'entente', and many objecti to the statute in
notation, though hie. doubted muck that its 114111 all•
owes were greater than its Aieadvantages, yet still
he was equally ready to confess he had no tamer,
on that account, to see it expunged from the sta-
tute hook. It had lasted long, and he had Nees,
Wait justiet had worked Os even way with it
',vetty fairly between the accuser and the Wersowd.—
'(Hear.l—ile teas not a permits who in the diaeliarge
of Ins duty weight he controlled or infleetietel by
popular clartmir. If that Act bad worked badly,
. tf it had let oil the guilty 111;114 and been ineffec-
tual to tlw just nectieer, lie should not hesitate to
propose, in defiance of any chamois'', the repeal of
such a law. But if it were generally admitted that
.this law had Idabel long, and worked its may as
• fairly as other laws generally did, without tieing
Worked by any &grant ineflicery. then lie should
say, that it would be inexpedient to repeal such a
View, orto touch that which hail an long remained-a
part of the law of the land. The prupnety of that
admits. the Noole and Learned Lord well knew had
here strongly doubted, not by high-flyers of pre.
roe:love. or Jscobitets, but by the greatest Whio
Lawyer whore opinions were ou record. The Noble
and Learned Lord was aware of the statute of
Anne, c. 111, which regulated the preceding Act.
What was the history of the Act ? The provieitowo
-of the statute were not, as had heen said, intended
altogether for the benefit of the accused. it was
mit-titled to give its benefit only in the event of tile
death of the Pretender—from and after that event
accused was to be entitled to a list of the wit-
nesses against him within ten days idler his arraign-
meet. Tii skew the spirit of the Gainers of that
statute, and !sow far it was from being an unqualified
*Omission of the printiple, thst the accused should
have this indulgence, need he state any at ger
proof than thia, that for 70sears dint statute remained
a dyad letter, tinrwas it until Lord Geo. Gordoott's
case, in 1780, it was ever acted upon ; that was the
first tune it was brought from the Statute Book.
His Noble and Learned Friend (the Lord Chan-
cellor) had upproprietely qnoted the opinion of a
very eminent mate (Judge Foster,) a man who was
the greatest conalitutional lawyer, and the moat fa-
vourable one to public liberty whose name stood on
record. That lawyer had said that furnishieig the list
of the witnesses for the prosecution may be productive
of many bad porpoise', while it could only serve one
good one. namely, that of giving the prisoner an
opport yof inquiring into their characters. It
was of use. lie said, merely in this arose to the indi-
vidual, while in its general effect it had little of pas-
time- or sound policy. If equal justice were to be done,
said Judge Foster, the Crown ought to have a list
of the privoner's witnesses, to he enabled to sift their
cheracters, as well as the ((((( titer had the power to
sift Omer for the Crown. By this law it was mani-
fest that the accused had all the advantage. and the
licenser none. Whatever degree of perjury might
he disclosed by a defroilant, under this law the
Crown had no 'lower to rebut it by future witnesses,
he they ever so credible, unless their names were in
the original list furnished to the prisoner, though,
when that hot was made out, there was no posaibi-
lily of gatiMag at the ntistatements which after-
wards followed, and though they could not be
known to the Crown, or the advocate of the Oriole
—(/terra. hear.)—The Noble and Learned Lord
who had introduced this motion seemed disposed to
overlook the distinction between the statute of trea-
son and the present proceeding. The same privi-
leges might, lie thought, he given in the one as in
the other, and he then asked what difference was
there in the intenment, that in the nor care it was
degradation, on the oilier death—and then. exclaim-
ed the Noble cud Learned Lord, " who is there
that would not prefer death to degradation ?" He
(the Earl of Liverpool) was most ready to agree with
him, that to the feeling and sensitive mind, alive to
its own reinititioti, death would at any lime be
preferable to degradation. But it was not on this
principle of refined feelings that the Legislature
could act ; suds feelings were above the control
of the legtalator, and out of his calculation in the
practical consideration of legislation ; they could
not. in fact, be recognized in the Way in which
their influence was operative. was indeed per-
fectly ready to admit that the statute of William
and Anne gave a material advantage to the stymied,
in the way of preparing a defence, much as they
militated against the rejoinder of the accuser.
The disadvantage of conferring that indulgence in
a care not warranted by law, must also be con-
lettered in smother view ; it must he considered in
its effect, or the likelihood of its effect, upon stop.
ping by intimidation, by three', or even by vio-
lence, the approach of the evidence for the prose!,
cution ; it waylays justice in its course ; it prevents
its coining purely and fully before you—/Hew./
ll' what was said be true of popular clamour,
it was evidently material that the witnesen
for the prosecution should be preserved fro.
any direct liability to its influence. He thought,
therefore. on the fullest consideration of tiro
whole case, that so fur from its being like',
the tools of justice would be best attained bt
granting this list, the very reverse would he the
courequence of compliance. The Noble Earl then
pronounced au eloquriot rulogium upon the sacred
character of the law of England. and the manifold
advantages it conferred upon the subject beyond
any seemed for the people of any other mu.
This great superiority could he easily traced, with-
lout melting any invidious comparison,' with the new-
modelled lawn of other Stales. To that law, moire
which they had so !wig prospered, cud whick,
firmly secured to them the steady administration of
equal justice, he entteated them now firmly to sal
here. He preferred !o slut.by its general Oise
ciple, rather than by the specific proviWou of aor
single statute. Allusions had been made to 48
list of wittiessiess which sometitnes appeared on thli
back of indictments. But was it nut known that
5001 a hie merely contained the names of wilnessite
who were trego before the Grand Jury and Wallit
not equally known, that in toasty instituters not on
were few 14 those witnesses actually remitted
fore the Greed Jury, but did it mit also happen'

I N)a


1.

that other and different witness', weir brolight to
tiupport the accusation when it came to be lieml
full trial ? Whir rheireil that the practice era.

. _ .
so general as the Noble Lord., opposite .reolt.4l
atomise to place it .—(/fear.) - fie should tine
come to apply both the feeler-al law mid the ono.
eiples which governed it to the particular cAlle,
very mode required by the law in gleieg a list t.i'
witnesses puts . a ciewstive moose motion.
a 110 were to he given as till. it must be a
and cemplete list. huh how .11110 11 in turn
power to give such a list ? The Noble Lerila
is tlwir argument% repeatedly and forcibly tiro.
, that en impeachtneut wools) lie tow more snita:d..
course to have taken on this occasion. Supt...-.
then, fur argument woke, eri isrpeachment WA. 1.,
slit died—would a list or aiturasea.he stw„ ,
spook! their Lon/whips hive the power to give 0,
their inclitiatien what it may, that IN to Kite 11 .)
as to nervier the object of Ow party welting it ,
an impeachment Alien Lordship. entelil Is", .2,r4„t
a list of witnesses without the 'lowan...tic, ..1
House of Commons, soul suppose they laid that
co eiciirrence, of what would it' avail for the Ni.
cased, edamr the-Coinmosis had still the !Neer not
only of !stinging forward fresh svitnessea as ultra as
they pleased, bet also new charges without limita-
tion ? II
the trial then came we by impeachinette
the recuseil could not have iii any way received tie
benefit now sought by this must. 4.--(ifeve)
Their Lordships loud not lure to try a simple itsup
betWeell two 1111filet ; 111141 no regulation as to wit.
~eases at tlw outset could conclude the prectio.
Humber to be Balled. .Their Lordships had milt-
%futurity an undeitiable tight to-call witnesses to the
ease—witnesses too who could not he anticipated in
the early stage of the proceeduip, lie need out
refer them to a case heard a few years ago at their
b ir, when some of the Most important evideuce given
was not from the witnesses celled: by the parties at
ether side, but by individual Members of that
house.—(Hear.)—Rut it was said that if this list
of witsiessrs were new gi•anted, it wool) obviate
the more than probable isicutivenieitee of an ad-
ojournment to the midst of their procreditigs. fie
tinned that it would obviate this inconvenience, it
would not get rid of it, so that there was ail
end to the argument so far as convenience was
• urged ; fur if the list was
still easily foresee a variety of occurrenices clueing
the investigation, which would justify her 31113
icesly.. Counsel in ciellirg fur this delay; and
leave their Lordships 110 alieroative but submit.
„ling to it. Ile was of opinion, therefore, that
neither the principle nor rearms of • the ea,.•
went with the applications—that no iiiconvemence
would be obviated—that a complete list was im-
possible. from the very nature of the proceedino24—
awl that a partial one, which wits all that could now
be made out, so far froni bring of use to the accus-
ed, might rather prove the reverse, and look here-
after like *prep intended fora disingenuous purpose.
lie had now stated alt he meant to urge in reply to
the arguments in favour of this motion, and how
he thought conceding the claim would affect, sin-
fairly affect, the witnesses for the proarcittion. Ile
would now leave their Lordships to decide which
was more to be dreaded—the !tower of the Crown 011
the one side oventretching its authority, or popular
clamour on the other exciting undue inflamma-
tion.— ( Hear, hear, hear. 1— Let the uccusation
be fairly and unequivocally set forth ; let the
witnesses be then heard in its support, and af-
terwards let their characters or testimony be oar-
ed to whatever extent may be required; let a
fair, he would say a liberal advantage be given
the illustrious accused to make every preps.
ration fur her defence, but let them take care,
while securing the full 'possession of those just op-
portunities, their Lordships might not go a step
further, and adopt a course which; instead of facili-
tatilig, was inure calculated to impede the strain-
mein of that great object which they had all lit
view—(ups and substantial justice.

Lord Hot.L•rin remained on the strong eon-
fusion which pervaded, the speech of the Noble
Earl who had just sat down, and which was, in the
view he (Lord H.) took of it, utterly inconsistent
with the atta 11111 l rut of speedy and substantial joss
lice. The Noble Earl, in his argument, was very
ready to acknowledge that, in in this core. they
ought not to be inflexibly bound by precedent—
he had failed to skew that there was in GCS any
precedent which bore in such a case as
and yet still he talked of rule and practice. as
if there was the light of either to guide Own)
in this lonian! and -momentous inquiry. Hr
seemed to argue as if rule and precedent applied
iu this case with the seine Flailosuphy and reason
es they applied in others, and that their Lordships
had only one path to tread in pursuing this inquiry.
The Noble Earl had justly and eloquently eulo-
gised the laws of this country, but his eulogy was
misplaced at the very moment when he twined a
deaf ear to a claim so just and so fair as that ;im-
posed in this motion. Let it not he imagined by
those who rejected this motion, that they were tak-
ing the course best calculated to amens ektesues of
substantial justice—let them " not place that
flittering unction to their souls"—let them not
believe that the course of proceeding they were
now about to adopt had • reference to the
fair administration of impartial justice. It was.
un the contrary, an exception to she principles and
practice of law, as well as to the ordinary course
of parliamentary proceedings. The Roble and
Learned Lord, in allusion to the necessity of
adhering to form and prartic,, as au indispe,...
sable ingredient in the procerilings of Cour!.
of Justice, has very justly said, that it is .11.-r
to suffer a particular mischief to occur. than r.•
avoid it by the sanction of a general measure, windy
court be carried forward as is precedent hereafter.
All that was very well, but what application had
it to this case? Was this the orderly course of
proceeding, or was it not an anomalous one, ut-
terly at **hence with all the prescribed rules of
law, and opposed to all the ordinary unities of con-
ducting the administration of justice ? Their course
was, iu fact, to say to the illustrious penwiage wit('
was the object of this inquiry, ,* Your rank and con-
dition in the country is such. that no iMpeachrnent
under the circumstances of the case will reach you ;
the ordinary forms and common In:mints of law
cannot also touch you ; we ate therefore obliged
to resort to a course *hich it not jellified by law,
by reason, or by necessity, and we camel control
that Comte by any principles or tales drawn from
the practiee of other tribunals." net might add.

n. He ilia the Levis
to dives; iit Ciple and pi
eh were —akar. A
the ttetstifistioaii;liad must deal
with► the Courts b*w. peculiar ins
Lir statute which losdeis which they
he would say, that Irgis. 'smut of all
proper to apply the prinei-
,that. at lea'
uhamentary proceedings. nor that grin
te.Legishiture Awed tabor- cede to the I
motile Mtn. consideration, In the first
of it ware I course was