Star.
London, England, 1814-06-25 00:00:00


pnlsion from that House. If upon a dispassionate and
careful review of the case itself,, under all its circum-
stances, the House should think the conviction was
erroneously pronounced, and the judgment of the
Court below erroneously founded, be hoped he had
no deficient sense of that high honour which ought to
fasten itself upon the conduct of a Member of that
House, or that he should not be backward in visiting
that case, it it should be found to be due to it, with
that vote of eepulsion which was usual in such cases;
but he protested against being bound to come to such
a conclusion from the mere effect of the judgment,
without being satisfied that that judgment had been
founded ,fn justice. He had made these observations
from a pure sense of what was due to the case under
all its circumstances. He never had the slightest
personal knowledge of the Noble Lord, he never was
introduced to him, he never spoke to him, never was
in his company-;-he spoke without any other influence
than that possibly which the severity of the sentence
might have excited, but with no disposition to avoid
that conclusion to which he might arrive upon a care-
ful review of the case.
Mr. BROADHEAD, as he stood so committed
on this occasion, trusted that he might be allowed to
say a few words. He could assure the House, that
he did not entertain the slightest feeling or disposi.,
tion to urge the business in which he had engaged in
any way that should not completely correspond with.
the general sentiment. With respect to the Honour.,,
able Gentleman's motion, be would abstain from.:
giving any opinion upon it. He certainly had had
it in contemplation to submit to the House, an Fri-
day next, a motion, founded solely on the document
which had that evening been laid on the table; and
he believed, that in entertaining such an intention he
wes justified by the usages of Parliament. If, how-
ever, the Honourable Gentleman desired, further in-
formation, for the purpose either of lb. tisfying himielf
of the guilt of the individuals in question, or of in-
ducing the House to think more favourably of those
individuals, he had not the slightest wish to throw.
any impediment in the way of the success of his motion.
Mr. HOLMES offered to read an extract from
Lord Cochrane's Letter to him, but the House did
not seem disposed to hear ir.
The ATTORNEY GENERAL *declared, that
be rose on this occasion with very unpleasant sensa-
tions. If, consistently, with his duty, he could do any
, tliipeeits meliorate the situation of the individual in
questidn, it would afford him a high gratification ;
but he apprehended that it would be impossible for
him to accede to the present motion, consistently with
his respect for the due administration of the functions
of Parliament, which he could not consent should be
used for purposes that, howeier they were considered,
mast embarrass their pi ozecdings, fort ign as they were
to the legitimate objects which Pariiament ought
always to keep in view. It was impossible for him
to acquiesce rn the motion consistently with his re-
spect for that sacred,instlustion— the Trial byinrY.
For what-was it proposed to the House eb do r Ti;
review a conviction by a Jury !—to sit at a Conti 01
.Appeal...-.to sit as a•Couit of Error en the fins on
which "a Jury hid pronounced a Verdict it ware
proper to do tat, ought not the House, in point of
justice, 19 go a step further—lo permit'the prosecutor
to appear at the bar and amend his case, and to per.
nil the defendant to add new evidence to that which
be bad adduced in the Court Lalow ? This, however,
at once appeared so 'anomalous, so inconvenient, that
the. very Weosion of it seemed to alaini:the Honour-
able Gentlemen.—Pis_ the'gencral merits of the case
itself,. he. would cautiously abstain from .uiterisig at
single syllable; for, compelled as he was to resist a
proceeding by which it was supposed the situation of
the iudividual in question would be ameliorated, he
was particoliely _options at 'least not to make any
observation' which might be prejudicial to that situ-
ation. Hp.tieas sure also, that the lit-use would not
expect, from such an humble individual as himself,
that he would conduct himself so indecorously and
improperly, as to attempt to vindicate the judgment
of a Court formecteaceurding to the institutions of
the country—a Court, the members of whicb, he
would vpritore to say, were as distinguished by learn.
lag as 'any that ever sat in Westminster Hall, 'and
who Were not more distinguished by their learning
than by their strict and uniform attention to justice.
Ile, therefore, only laid in a claim, if the sentence Of
that Court had experienced the universal 'censure
whieta the Honourable Gentleman opposite declated,
that it had, to have it considered as the result of deep
and impartial deliberation on :the part of persons of
high and unimpeachable honour, who were in every
way calculated to discharge, with advantage to the
country, the,important duties cusifided to them.—
Whether the circqnsiontes of the rank and station
pf the indiv;disal in question, or the services which be
bad formerly render ed the country, might be deemed
fit matter for representation in a quarter to which a
proper appeal vitas never made without success, he
would not say ; but this he would say, that the House
of 'Commons 'would depart from then- constitutional
functions if they entered into a consideration Whether,
;he punishment inflicted by one of the Coitus of
Westminster Hall was too: great tar too little in its
ampunt.' There was one most grievous error, on
*hif.l3 an Honourable Gentleman opposite (Mr.'
Browne) lad founded a great part of his argument.
He had spoken of certain technical rules which had
isteveitted the party convicted from obtaining a revi-
sion of the verdict pronounced against him, and had
Stated that that party complained of the injustice of
ihe verdict,.
.Now, re-ally, lk (the Attorney-General)
had 'lever,. to the whole course pf *hi; practice, met
with a sile case at a person so convicted who had
apaid the court a compliment on his conviction, by
abstainiirg from inveighing against similar terms.
If the Noble Lord inveighed against his sentence,
Iherefore, he was in a numerous class. But the tio:
nourable Gentleman had maintained, that the indivi.
dual in question had taken every possible means to
obtain a re-hearing of his cape, but in vain ; betauie
the practice of the Court was et) fenced round by
technical rules, that all his efftirts were thereby ren.'
dered abortive. The direct contrary of all this was
;host uniquitrocallitrue. It became necessary for
him to state what had' actually- been theiourse of
troceeding, in order to chew that there hid been no
sinpedinierrs obtruded, no technical rules, no fencing
tote according la thiglegations of the Honour.
able Gentleman.' Thai was it sale of CoOrt which
tiovided, that in the case of several perions convict-
of aconspiracy; if any one of them came into

Court and desired a new trial, his request-could not'
be granted until the other conspirators should come
into Court also. The rule was fokinded on this wise
principle—namely, that if several persons were con-
victed of a conspiracy, and one, probably the least
implicated, were on coming into Court to apply for
and obtain a new trial, all the rest would be entitled
to come in and take the same benefit ;—but in the
event of his not obtaining a new trial, those other per-
sons, though the most deeply involved in the crime,
would have the best opportunity afforded them of
eluding the punishment. This was the technical rule.
It was with great pleasure, however, he stated that
no technical rule, however wisely forma, or however
long it might have been acted on, was permitted in a
British Court of Justice to work injustice towards any
one. The Court would find a season for doing jus-
tice. It would make technical rules bend when they
stood in the way of substantial right. What had been
the coarse of proceeding in the recent instance ?
The brand Jury found, a true bill against De Beren-
ger and others for a conspiracy. The defendants
could not have been compelled to take their trial
until the sittings after term (ten or twelve days after
the period at which he was addressing the House),
but both parties, the prosecutors and the defendants,
made an earnest application to the Lord Chief Justice
to deranv the ordinary forms by accelerating the
trial. 'lO the prosecutors his Lordship said nothing,
the wish of the defendants he would not listen to from'
their attornies or any ordinary agents ; but requited
that their Counsel should appear in Court to make
the application. This being done, the Lord Chief
Justice in consequence (to the irconvenience of all
other suitors in the Court), did appoint an early day
for the trial. At the trial the defendants were de-
fended by persons highly eminent for their talents and
legal knowledge. They were tried by a Special Jury
of the City of London, reduced by one of themselves
(Mr. Cochrane Johnstone.) By that Jury they were
found guilty. On a subsequent day, within the pe-
riod prescribed by law, the individual to wham the
present conversation principally related, applied in
the Court of King's Bench for a new trial; Com.
mencing his application by stating, that he under-
stOod it could not be .made by Counsel. In this state-
ment he was corrected by the Court. And he was
also told, as other persons convicted of a conspiracy
had been told the same morning, that the Court could
not hear a motion for a new trial in the case of a con.
spiracy, when one alone of those who had been en-
gaged in the conspiracy made the application. The
Askews had that morning made an affidavit, that they
could not bring into Court the persons who had been
convicted with them, and yet they were told, that
unless they did so their application could not be lis-
tened to. The Noble Lord was told the same. Let
the House mark the sequel. The Counsel for the de-
fendants on a subsequent day moved for an arrest of
judgment. Atleast the Learned Serjeant, who was
Counsel for Butt, and who did every thing that he
undertook with the greatest ability, followed by se-
veral others of the highest talent, nioved for an arrest
utiudgment for his client., if Butt had succeeded in
this application—if judgment had been arrested with
'respect to him, it must have been arrested with re-
spect to every one of those Implicated with him in,
!he same offence. The. Court, howover, were clearly
of opinion, and delivered that opinion reriatim. that
there was nothing in any of the points which had been
urged that called for an arrest of judgment. What
4. was the next proceeding ? TNe Noble Lord did pre-
Lisely that which the technical rules of the Court had
prevented hint from doing on the preceding day. lie
read from a paper, which was very ably written, and
which evinced a profound knowledge of the law, a mi-
nute and scrupulous examination of theevidence which i
had been adduced at the trial, and lie then offered to
the Court Certain affidavitsin support of his application.
Did the Court intrench itself behind their technical
rules, or say that it was too late to grant a new trial ?
—lf persons convicted came up fur judgment at the
distance of six yeart from the trial, the Court would
grant a new trial if they thought fit. But the Court
had, heard from the Noble Lord all that could pos-
sibly have been addressed in his favour. The paper
which he read in Court was drawn up by no mean
hand, and had evidently the finish of a master. As
to the matter of affidavits, in a case like that in ques-
tion, it was the constant rule of Court to refuse them.
But what were the . affidavits offered by the Noble
Lord ?

Mr. HORNER rose to order. If neither the re.
port of the evidence, nor the affidavits were to be
allowed to be laid before the House, it was not fit-
ting that they should take an account of the contents
tif these affidavits, on the credit of any Member, how-
ever high his character in the House.
The ATTORNEY-GENERAL, was thankful for
the interruption, but if the Honourable and Learned
Gentleman had listened to him, he would have found
that in the way be would have spoken of the affi-
davits, he had no intention of injuring the cause of
the Noble Lnrd.
Mr. HORNER said,- he had not interrupted the
Honourable and Learned Gentleman because he was
afraid that he meant to prejudge the cause of the
Noble Lord, but because he wished that nothing
should be stated which might in any way prejudice
the cause of either the prisoner or the Crown.
The ATTORNEY-GENERAL merely wished
to state, that no technical rules had stood in the way
of the Noble Lord. 'He did not mean to state the
contents of the affidavits, because he did not know
them himself, but merely the grounds on which they
were not received. One of the affidavits contained
the evidence of a servant who was examined at the
trial • but it neveLcould be permitted that a witness
should be allowed to amend, retract or detract from
the evidence given at a trial, a practice which would',
be pregnant with the most dangerous consequences.
Another of the affidavits was that of person in at-
tendance in Court, and capable of heing called, but
actually not called at the trial. Here he would ap-
peal to the common sense f justice in the Hops if,
such an affidavit ought t be received ? if such a
practice were allowed, t e would be al end to
every thing like a trial. The prisoners had d: advice
and assistance of the most able Counsel ; if they did
not instruct the Counsel to call those persons it was
their own fault ; and if the Counsel thought it upon
the whole more advantageous not to call the wit-
nesses, they this was no reason no* to send the pri-
soners to a riew trial. The prisoners were not, in fact,
shut out from an act of justice. The Court bad taken
. the propriety of ' a sew Will ipto their consideration,

-

anJ, then was no ground, for it.
W
to grant a new trial in that House, because the Jury
tat in
was their
jnodbrectenotithe present motion ? It was
had not come to a proper verdict on the facts before
them. But the consequences of this would not apply
to Members merely, but must open the doors of the
House wide to all the inferior subjects of the realm.
—They would have to retry also the Asketvs, and
others in their situation. He should think that no
thing was cakulated to give a deeper wound to the
' insaitutinn, of Juries, than for the House of Commons
to take upon them to revise the testimony on which
they came to their conclusions. With respect to the
notes of Lord Ellenborough, they could not produce
the effect on the House which was done on the Jury,
by the sight of the witnesses, traversing the Ccurt
with their eyes, and fixing on Berenger. The effect
of the Motion would be to place the House in the
situation of a Jury, without the sanction of an oath.
Mr. HORNER, though he agreed with the Hon.
and Learned Gentleman in the conclusion which he
,had come to, differed with him so entirely, on the
grounds of that conclusion; that he could not silently
vote with hint against the motion. With respect to
the punishment, there was nothing which could in-
duce him to express his opinion of the sentence, as,
long as it had any chance of being taken into consi.
deration in that quarter where alone it could under.;
o modification. (Near, hear.) As to the. Rules of
, Court, he had not' the least doubt, that the Court pro.
'traded strictly and regularly io the present case, ae-
' cording to their established rules. If the rule was
established, it was necessary to enforce it in that and
all other cases. But with regard to the rule itself;'
the term, ruppored wisdom, made use of by the Ho..
nourable and Learned Gentleman, in speaking of
it, seemed to him no bail description of that rule.:
—He could not discover in it the least reason or
wisdom, and a thousand cases might occur where
it would lead to hardship and oppresssion. • (Cries of
Hear, hear.) He opposed the motion, because he
had the most unshaken conviction of the regularity of,
the proceedings at the trial. The motion related to
two species of papers, the Report and the Affidavits.
The House might order the affidavits, and other pa.
pert, tending to throw light on the question before
them, to be laid before them ; but, as to the notes, he.
believed there was no precedent to warrant them in
calling for that private document which was kept by
the Judges for the information of the Jury, and of the
Secretary of State, for the sake of ulterior proceedings.
It was not in the ordinary course of the proceedings of
the House, therefore, to call for the report. Whether'
a case might not arise, when it might be proper to ad.
dress the Prince Regent, for the notes taken at a trial,
was a question altogether different ; but nothing in
the present case was stated which rendered such a_
proceeding advise-able. But while he stated this,
he differed with the HOPI. and Learned Gentlemen, as
to what he had said with respect to the examination of
evidence in this case, which, he contended, to be enter-
ing upon a new trial. The House were not doing any
thing in the ordinary course of criminal jurisprudence,
but excicising a species cf. jurisdiction peculiar to them-
staves; and there was no rule to prevent them from cal.'
ling forevidence where it might be proper Ica. them to in-
terfere. A case might be stated, in which the conduct of
the Jury and Judges was such as to call for the inter-,
ference of the House : but no such case as this wis at
present laid before them. In suet) a case, however,
the House might properly call for all manner of evi-
dence which they might deem necessary. The Hon.
and Learned Gentleman had contended, that they
would be ,obliged, on this principle. to try over again
evei y person under a similar sentence with that of
the Noble Lord ; and among others, he mentioned
the Askew's. But the House, it was pioper to recol-
lect, were here called on to expel one of their Mem-
bers ; and the information they wished etas merely
for the sake of informing their own consciences with
respect to the vote which they might come to on
that subject : they had nothing*to do with the Courts
of Justice, except something was stated which.called Oa
them to act in their inquisitorial capacity. The quest'
tion reduced itself to this, whether, tor the purpose of
voting on the motion for the expulsion, it would be
necessary for them to go over the evidence at the trial?
In this case, it did not seem necessary to him to call
kir more information than they had before them.—
He was fully satisfied with the verdict of the Jury
and the judgment of the Court. But on the princi-
ples on which he had formerly voted for the expul-
sion of Members of that House, he declared that in
doing so lie considered that he did nothing more than
send back to his constituents the person excluded.—
He considered a Member as a trustee for the people
who sent him, and it in the course of the trust, any
thing should occur, whether in consequence of the
verdict of a Jury or otherwise, which might call for
a revision of that trust, it would be proper to expel
him the House; it was in that light, and no other,
that he could give his support to such a measure. The
verdict of a Jury ought; in his opinion, to have credit
given to it by the House, so fat as to give the con-
stituents an opportunity for say ing whether they would
any longer consider the Member expelled as a fit per.
son to be goat so Parliament. On these grounds he
shciuld vote against the motion.
Mr. W. WYNNE did not think that any reason
was given to induce the House to depart from their
practice in former instances of a similar natttre. Had
any thing been stated against the justice of the Court;
or had any unfairness on the part of the Judge, from
fomcumtle;mrialbt:titnibeonff
whatever cause, whether of a political nature or other,
wise, been alleged, he should feel it a case where the
House might with proprittr inquire into the pro-
ceedings of the Court of Law ; but in this case no
adequate grounds had been stated to induce the
House to go into the inquiry.
The motion was then negatived. •
(MANGY ASSOCIATION.
Sir JOHN NEWPOIt said he held in his hands
a Petition signed by a number of Protestants and
At the conclusion of a
Ca-
tholics of Ireland, friends to civil and religious liberty.
tioonsfili.urviddates.iret
gtihrereaitaatnpemed,aaciennscos! peace abroad, it was necessary
be by puttiog an end to allnd
enngde would.s
Associations throughout
At the end of 120 Years the •
victor ought not to be
allowed any longer to triumph over the vanquished.
He would 'appeal to thetufeergs the House of
if the
battle of Cullodin had been :annually celebrated in
Edinburgh,
'that tr{nquillity Would have been esta-
blisher:in SeCdand
He felt confident that no im-
roper motive would be attributed to him on Ate pee.
.•