§ The order of the day being read for the further consideration and second reading of the Bill, intituled, "An Act" to deprive Her Majesty Caroline Ame- "lia Elizabeth, &c."
The Lord Chancellor
rose, and addressed the House as follows—*
My lords; the question which we are now called upon to decide—and I apprehend, notwithstanding all that has passed in the course of these proceedings, it is the only question, which we are now called upon to decide—is, whether this bill shall or shall not be read a second time? Suggestions have certainly been offered as to alterations in the bill, which would make it of a very different nature; but as it is not consonant to the practice of this House—a practice founded upon sound principles—to receive any such suggestions in the present stage of the measure, there is no other question before your lordships than this—Whether the bill shall or shall not now be read a second time?
My lords; you will probably be dis-* From the original edition, printed for John Hatchard and Son, Piccadilly.1440 posed to adopt the ordinary course, which is followed in regard to bills which, in some respects, are like the bill now before us;—I mean bills of divorce. The ordinary course as to such bills is this: you first hear the proof of the allegations contained in the bill: you afterwards hear the other side. The person, who has the honour to sit on the woolsack, then retires from the table, and states his opinion, according to the best of his judgment and ability, and the grounds on which he is induced to entertain that opinion. If he should be of opinion that the allegations in the bill are proved, of course he intimates that opinion to the House. If any noble lord entertains a different opinion, the question becomes the subject of discussion and debate, and is ultimately determined by a division. If no such difference of opinion exists, the bill is read a second time as a matter of course.
I have examined with attention all the precedents which appear to have any application to the present case, and it may perhaps be sufficient for me to state to your lordships, that it is not unusual in the committee on a bill of divorce to postpone the preamble of the bill until the other parts are considered. This postponement does not always take place. When the question "that the preamble be postponed" is put, it is competent to any noble lord to oppose that motion, and to insist that the preamble shall not be postponed. Whether the preamble is or is not postponed, it may be altered or amended, as well as may also the enactments of the bill itself. But then that alteration or amendment in the case of a bill such as that now before us, ought to be limited to a mitigation, and not extended to an increase, of the severity of the original measure.
Having stated thus much, my lords, with respect to the usual course of proceeding, I hope I may be allowed to declare—and I am sure I speak with sincerity—that I would not have addressed your lordships on this question, if I had not felt that, in the situation in which I stand, I could not consistently with nay public duty, retire from the performance of that task. There are many, many considerations, which would have induced me not only to withdraw from, but not even to come near this discussion, if it were not, as I have already said, for a sense of my public duty, which, I trust in God, is a right one, although I confess that the necessity which I am under of 1441 performing it, distresses me exceedingly. Whatever may be the consequences, I feel that I ought not to shrink from discharging it; and therefore no personal consideration or private feeling shall prevent me from discharging it with fidelity.
In the outset, my lords, I take the liberty of observing, that no man can consistently vote for the second reading of this bill, if he does not think, that the substantial parts of the preamble of it have been satisfactorily proved. It is my decided opinion, by which of course I must be governed in my own conduct, that I ought not to vote for the second reading of this bill, unless I am satisfied that the fact of an adulterous intercourse has been fully established. Of course, I do not think that any noble lord ought to vote for the second reading of this bill, unless he is satisfied that the fact of an adulterous intercourse has been fully established.
I shall now, shortly, and by no means in detail, advert to the evidence which has been adduced with reference to this bill. It is not my duty, as has been erroneously supposed, to "sum up" that evidence, in the manner of a judge, at an ordinary trial. My duty is only to state my opinion to your lordships and the reasons on which that opinion is founded; for we are all here, my lords, as judges and jurors; and we must proceed, not on any principle of summing up the evidence, but on that of communicating to one another our opinions, and discussing the grounds upon which those opinions have been formed.
In the first place, however, I wish to notice the nature of the measure. Much has been said in the way of objection to that species of parliamentary proceeding, denominated a bill of Pains and Penalties. I will not detain your lordships by a long disquisition on the merits or demerits of such bills. I wish, nevertheless, to say a few words respecting them. It has been repeatedly declared, in the course of these proceedings, that such bills are not justifiable, unless in cases of extreme necessity; in which the safety of the state is imminently endangered. Now, my lords, in looking back as far as the period of the Revolution, and I wish to confine myself within that period, I find that such bills have been passed, over and over again, when there has been no such urgent necessity—no such pressing state difficulty. In some instances, 1442 indeed, such a necessity has existed; but there are a great variety of cases, in which there appears nothing of the kind. In a former discussion on this subject, I took the liberty of saying, that a bill of Pains and Penalties, provided the proceedings are properly conducted, is more favourable to the accused than impeachment—I am not asking at present whether it is or is not more constitutional—than an impeachment. When I say "if the proceedings are properly conducted," I mean when the inquiry is carried on according to the ordinary rules of evidence, and the decision is governed by the ordinary principles of law. What is the nature of an impeachment? In an impeachment, the proceeding in the House of Commons must be an ex parte proceeding. One vote must decide the question; and, if that vote should be erroneous, the error is final. The proceeding is not similar to one before your lordships. In the House of Lords, we have the means of pursuing an inquiry according to the ordinary rules of evidence, given upon oath, and we are governed by the ordinary principles of law. In the House of Commons, there are no such means; yet without those means they are to pronounce, whether the accused person is guilty or not guilty. That question is decided by only one vote; and, if that vote should be erroneous, the error is without remedy. But how is it, my lords, in the case of a bill of Pains and Penalties? In the first place, the question undergoes an examination in both Houses,—not, as in the case of an impeachment, an ex parte examination in the House of Commons; but an examination, in which the evidence is heard on both sides; an examination, in which an opportunity is afforded for scrutinizing the facts; an examination in which the error of to-day may be corrected to-morrow, and the error of tomorrow corrected the day after—It had been urged, and with considerable weight, that by adopting the present course of proceeding by a bill of Pains and Penalties, we submit the judgment of this House to the judgment of the House of Commons. But, my lords, are we not doing this, in the case of every Divorce bill, and of every other bill, which originates in your lordships' House?—(I do not state now whether this will be a divorce bill or not; that is a subject for after-consideration), the case might have been much more ano- 1443 malous—had the proceeding been first by impeachment, and afterwards by a bill brought in upon the verdict of guilty in impeachment. If that mode of proceeding, by two measures instead of one, had been adopted, might you not have involved the House of Commons in a contradiction, if either on a bill originating with them after a conviction on an impeachment, or on a bill so originating with this House, the House of Commons examining evidence on both sides of the question, should come to a different conclusion from that upon which they voted the impeachment, upon hearing the evidence of one side only?
But, passing this by, I come to another objection which has been made, and made with much emphasis, to the course that has been pursued in this case; namely, that the accused party was not furnished, in the first instance, with a specification of the charges, and with a list of the witnesses by whom those charges were to be supported. I mention this, my lords, because it has been argued that, in consequence of this omission, the party accused has been placed in a situation of difficulty; and because I am perfectly ready to acknowledge that, when it shall appear that any such difficulty has existed, it is your lordships' duty to give to the party accused the benefit of that fact, and proportionably to incline in her favour. But we ought not to raise up visionary difficulties where no real difficulties exist. My lords, I ask in what possible way could the list of witnesses have been communicated so effectually as by producing those witnesses at your lordships' bar, and then postponing the defence, which the accused party was called upon to make, to the period, to which that party wanted or chose to postpone it? I am prepared to admit, that the immediate cross-examination of a witness may be of great advantage; and, with regard to the absence of Restelli, I have already given my opinion; but I say, that the loss to the accused party of an immediate cross-examination, be by no means equal to the benefit of hearing the whole case and trial as against her, and then giving her the opportunity of meeting the charges, and commencing her defence whenever she pleases. The benefit derived from the one privilege is next to nothing, as compared with the immense benefit resulting from the other.
My lords; you are, in this important case, bound to attend to one of the great 1444 principles of British justice—principles, which are inseparably connected with every part of our constitution; and which, if you once relinquish them, I fear you will never regain, or find any thing to console you for their loss;—I mean, that in every case of charge, you are to recollect that accusation is no proof of guilt. An accused person may, nevertheless, be an innocent person; and your lordships are bound to consider an accused person an innocent person, until guilt has been satisfactorily proved. So also, either in this form of proceeding, or in the way of impeachment, or under whatever shape an accusation may assume, it is your lordships' bounden duty to pronounce an accused party innocent, unless you are perfectly satisfied, that the guilt of that accused party has been established by evidence. You are, likewise, my lords, in looking at the nature of the evidence, to consider the peculiar difficulties which may belong to this case. My lords, you will recollect it has been urged, that there has been, and there may have been, and indeed it may be taken for granted that there has been, much more facility with respect to the production of witnesses in support of the charges than with respect to the production of witnesses in answer to them. Of that fact, if your lordships are of opinion that such is the fact (and I do not say that it can be denied) the accused ought to have the full benefit. Your lordships have also to consider the circumstances, which have been disclosed with reference to Restelli. The imputations upon him may have been founded in mistake; or, on the other hand, there may have been—there have been, if you please—corrupt endeavours on the part of that and of other individuals to produce, by bribery and subornation, testimony in support of the allegations in the bill. Of that fact also, if it be a fact, the accused ought to have the full benefit; not only as it may operate to induce your lordships to lay aside that particular testimony, to which it directly applies, but as it may operate to induce your lordships to regard with some suspicion the testimony even of those witnesses, to whom it does not directly apply. Of all these considerations the accused party ought to have the full benefit. Your lordships ought to approach the consideration of the evidence with all that sincere disposition to scrutinize the testimony, that has been adduced in support of the accusa- 1445 tion, which is justly due to the illustrious individual accused.
But, my lords, the ground of the opinion which I am about to state to your lordships is this:—Laying aside all the testimony in this case, which can by possibility be suspected, I ask myself this question—"Does the unsuspected evidence, which has been produced in support of this bill, and does the testimony which has been produced in reply, together with the negative evidence, or the want of that evidence, which might have been produced in reply;—I say again, laying aside all evidence liable to suspicion, or which has been contradicted, does the unimpeached testimony, which I has been produced on the one side, connected with the positive testimony, and the negative testimony, or want of evidence, which might have been produced I on the other, support the allegation of an adulterous intercourse, or does it not?"
The course which I shall take, is of this nature; and I am now about to state the opinion, which, after the most painful and anxious attention, that course compels me to form.—I apprehend then—at least, my lords, so it seems to me—that, if we look at one or two of the cases, or circumstances, which have been proved at your lordships' bar, by witnesses entirely beyond suspicion; to whom suspicion has never attached during the whole of these proceedings; and, if we then look at the situation and history of the person, with whom the act of adultery is alleged to have been committed;—it appears to me, from this view of the subject,—I am very sorry to say it, but I cannot shrink from the duty of saying it,—that we cannot possibly draw any other inference, but that there has been an adulterous intercourse.
My lords; with respect to the negative evidence for the bill—the want of contradiction to the evidence in support of the bill—it is my duty to say, that I have frequently thought more effect has been given, than ought to have been given, in what is called the summing up of a judge on a trial, to the fact, that there has not been the contradiction on the part of the defence, which it is supposed the witnesses for the accusation might have received. For, my lords, we ought to look at the circumstances of a case, in which this absence of contradiction occurs. It may often happen that, in the course of a trial, circumstances are proved, which have no bearing on the real question at issue; and 1446 it may also happen, that facts are alleged and sworn to by witnesses, which it is impossible for the accused party to contradict; circumstances may be stated by witnesses, which are untrue; yet they may not be contradicted, because the party injured by them, not expecting that that which never had any existence, would be attempted to be proved, cannot be prepared with opposing witnesses. So also, in cases, in which an individual witness speaks to occurrences, at which no other person was present but himself. There it may be absolutely impossible to contradict him. But, my lords, in a case, in which the facts sworn to by a witness, are sworn to have occurred in the presence of many individuals, and, when those individuals (which we know to be the case in the present instance) who are within the reach of the party whose interest it is to contradict such testimony, are not produced, then the want of that contradiction becomes a matter of great importance, and for many reasons. I have no right to impute to any man that he has given false and perjured testimony, when other persons were present at the period, to which his testimony refers, whom I have the power to call, but whom I decline calling. Unless I call those persons to contradict the witness, he is clearly entitled to credit. In my opinion, such a circumstance is a tacit admission of the fact by those, whose interest it is to contest and deny it. If they do not contradict the fact by testimony, which they have the means of producing, they tacitly admit, that it is incapable of contradiction. The party who declines to avail himself of such an opportunity of disproving the evidence on the other side, so far from being entitled to impugn that evidence, confers additional credit upon the testimony which he thus leaves uncontradicted.
Now, my lords, give me leave, for a moment, to lay out of the case all the evidence of Majoochi. Give me leave, for a moment, to lay out of the case all the evidence of Demont. And, when I desire that your lordships will allow me, for a moment, to leave the evidence of those persons out of the case, I do not presume, or mean to intimate (although there may be some, and if your lordships please, many contradictions in their testimony) that those persons have not, in many respects, spoken truth; and truth of very great importance. But I say, my lords, permit me, for a moment, to lay all 1447 the evidence of those persons out of the case; and then travel with me to the polacre.
Who is it, my lords, that goes on board the polacre with her royal highness? There are Schiavini, and Hieronimus, and the countess Oldi, and Mariette Brunette, arid Carlino, and Camera, and William Austin. I ask your lordships, if you can for a moment doubt, that, if the mere question before us were, whether her majesty and Bergami slept under the same tent, or awning, or whatever you may be pleased to call it,—if the simple issue, which we had to try were, with reference to that fact alone, your lordships could have any difficulty in deciding, as the fair result of the evidence which you have heard at your bar, that that fact is beyond the possibility of disbelief? (I forgot to mention in the proper place, that lieutenants Hownam and Flinn, also accompanied her majesty onboard the polacre.) My lords, I repeat, can any man doubt that, if the mere issue were, whether her majesty and Bergami slept for five weeks under the tent, or awning, on the deck of the polacre, during the voyage from Jaffa to Porto d'Anza, the fact of their having done so, has been clearly and indisputably established?
In the first place, with respect to the evidence of Paturzo the mate, and Gargiulo the captain of the polacre, I know of no observation which can be made on the evidence of those two witnesses, with a view of disqualifying them, except that which arises out of the compensation they are to receive for coming to this country. [A noble lord remarked that something more had been objected to them.] A noble lord says, that something more has been objected to those witnesses. I can only state that, whenever I hear what that something more is, I shall give it every attention in my power. As many opportunities will offer for the correction of my opinion, I will not fail to correct it, if that which I may have overlooked, in the case, should render it my duty to do so; and I shall be very thankful to any noble lord, for whatever remarks may enable me, either now, or at any future stage of the bill, to detect and declare any inaccuracies, into which I may have been led. At present, I can speak of the case only as I know it; when I obtain better information, on that information I will act. I say, then, with reference to the two witnessses, Paturzo and Gargiulo, that I 1448 think the compensation which they have received for coming to this country, is a consideration of little or no consequence. I am in the presence of those, who know that it is impossible to obtain foreign witnesses, without dealing with them in a manner different from that in which witnesses of our own country may be dealt with. You have no compulsory process, by which you can bring foreign witnesses into any of your courts. Foreign witnesses are not within your jurisdiction. When our countrymen attend as witnesses, in our own courts of justice, I understand that they are not, generally speaking, paid for their loss of time. Lawyers and physicians, I believe, are persons whose case is an exception to this. But foreign witnesses cannot be compelled to come here; and it is therefore necessary voluntarily to pay them for their loss of time, or they will not come.
What have Paturzo and Gargiulosworn? I fear I should fatigue your lordships were I to enter into the minute details of their evidence; and I will therefore be brief in my observations upon it. Give me leave, my lords, to suppose, then, that those two witnesses, Paturzo and Gargiulo, have proved the fact—I state it at present only as an hypothesis—of her majesty's and Bergami's having slept under the same tent, on the deck of the polacre, for five weeks, during the voyage from Jaffa to Porto d'Anza.—Supposing this to be untrue, how easily might these two witnesses have been contradicted by other witnesses. Instead, however, of having been contradicted, the fact has been confirmed by the admission of lieutenants Flinn and Hownam; and not only has it been proved by their admission, but the manner in which the proof was obtained from them, at the close of their testimony, afforded a pretty strong hint, when we recollect the reluctance, which they manifested on the occasion, how material the fact was in their estimation. But, if the evidence of Paturzo and Gargiulo were untrue; if Bergami did not repose with her majesty under the tent of the polacre, might not the falsehood of their testimony have been easily proved by the testimony of every one who slept below? Who did sleep below? The countess Oldi, the maid-servants, and all the persons, whom I have already named. Such being the case, if Bergami actually slept below, is it possible to believe that your lordships would not have had evidence to that fact?
1449 We now, my lords, come to the consideration, whether, if these parties slept under the tent, your lordships think, that from that circumstance, and from various Other circumstances, resting, as I have before observed, on the evidence of unimpeached and unsuspected witnesses, you will be justified in drawing the inference that the act of adultery did actually take place.
In considering and determining this question, your lordships will, no doubt, feel it to be your duty to keep in your recollection the various circumstances that are sworn to have occurred, not only on board the polacre, but at Aum, and at other places. You will keep in your recollection, the measures taken to secure a contiguity of bed-chambers in almost every place which her majesty and Bergami visited. You will keep in your recollection the circumstances of familiarity, which have been sworn to, and which, though they do not in themselves afford any direct proof of adultery, are important, as evincing a tendency to that intercourse, which the parties are charged with having carried on. You will keep in your recollection all the extraordinary circumstances connected with the sudden elevation of Bergami; and not merely of Bergami, but of almost every other individual of his family. You will keep in your recollection the very important fact of the introduction of the countess Oldi into the establishment of her majesty, as a person of quality, without its being known that she was the sister of Bergami; no communication to that effect having been made by her majesty to any of her family. This is, indeed, a most material circumstance; for, as the interposition of the countess Oldi's chamber between her majesty's room and Bergami's, would, if she bad been a stranger, have been a strong fact to show the innocence of the parties accused; her being the sister of Bergami, and placed in that situation without any knowledge on the part of the rest of her majesty's family, who she was, is a fact, from which, at least, your lordships cannot infer any innocence of intention.
I would now direct your lordships' attention to the evidence of Gargiulo, the captain of the polacre, at page 117 of the Minutes. Your lordships will there see, that, after speaking of the distribution of the cabins as having been made by him, previous to the outward voyage, Gargiulo states—and he has not been contradicted 1450 —that certain alterations were made in the arrangement of the cabins by her majesty; and that the change was of such a description, that the Queen could see Bergami from her bed, and could be seen by him from his.* This testimony, Irepeat, has not been disproved. I will now draw your lordships' attention to a part of the evidence of lieutenant Flinn. Lieutenant Flinn states, that on the outward voyage, the management and distribution of the cabins, in which the different persons composing her majesty's suite were to repose, was left him. He states the situation in which those different persons slept on the outward voyage. He knows where every one of them slept on that voyage. Now, I ask your lordships, to put this question to yourselves, when you read lieutenant Flinn's evidence: "How can it be accounted for that this man, who gives such direct and accurate evidence as to all these matters on the voyage outward, knows nothing, or next to nothing, with respect to them on the voyage homewards?" Looking at this, and remembering how the fact has been proved by other uncontradicted witnesses, can any inference be drawn but one—namely, that on the voyage homeward, the parties in question did sleep under the same tent or awning together? In the evidence of lieutenant Hownam, I remark the same backwardness to speak on the subject that is observable in the evidence of lieutenant Flinn. How often was lieutenant Hownam asked, where the different parties reposed, before he admitted that her majesty and Bergami slept under the tent! If, as has been asserted by lieutenant Hownam in another part of his evidence, there existed any necessity for such an arrangement, so that it might have been accounted for in a manner not discreditable to the illustrious individual accused, how comes it, my lords, that these two gentlemen, cognisant as they were of the direct evidence which had been given on the subject, were under such difficulties in stating the mere fact to the House?
My lords; it has been sworn by the two witnesses, to whom I have already alluded, that her majesty and Bergami were seen seated on a gun, and on a bench, on the deck of the Polacre, with their arms round each other, and kissing. That also has not been contradicted. Give me leave to say, my lords, that, unless I have greatly* See Vol. 2, p. 917.1451 misunderstood the nature of every divorce case that has been before me, either in this House, or in the courts below (but, few such cases, in comparison, have been before me in the courts below; many more have been before me here than I could have wished to see), from such an established fact as the parties sleeping under a tent together for five weeks, added to the circumstances of great familiarity, which have been proved to occur between them, and which, although not sufficient evidence of an adulterous connexion, in themselves show, in the language of the Books, that when to the oscula and the amplexus were added the tempus and the locum—a time and place, in which the adultery may be committed, and probably would be committed, the certain and constant inference would be, that an adulterous intercourse had taken place. For, my lords, it must always be remembered, that in cases of alleged adultery, the question is not, whether the parties have been detected in the actual commission of the act, but whether circumstances have been proved, from which a reasonable and plain man, in the due exercise of his understanding, cannot avoid drawing the conclusion that the act of adultery must have taken place.
If your lordships look at the evidence, you will also find it stated, that the tent was sometimes closed in the day while her majesty and Bergami were under it. Lieutenant Hownam denies this; he says that the tent was never closed by day. But look at the evidence of Gargiulo. Gargiulo was asked, by whose direction the tent was closed in the day; and his answer, as your lordships may remember, was, that it had been closed in the day by the direction of Schiavini. Now, I beg to ask your lordships, I beg to ask any man of professional experience, if the testimony of Gargiulo and Paturzo ought all to be thrown away, in consequence of the bargain made to remunerate them for coming here, when it is clear that they might have been so easily contradicted, if what they stated was other than the truth. When Gargiulo is asked, who gave him orders to close the tent during the day, he replies—Schiavini. Now, my lords, did Schiavini give those orders, or did he not? If he did not give them, why was he not called to your lordships' bar to contradict Gargiulo? As this has not been done, the fair inference is, that he did give those orders, and thus the evidence of Gargiulo is confirmed. It has 1452 been said, my lords, that there was a necessity for Bergami's being under the tent at night with her majesty. There is not in the evidence, however, the slightest trace of any proof that such a necessity existed. But, suppose it to have existed, what was the meaning of shutting up the tent, according to Gargiulo's uncontradicted evidence, two or three times a week during the day, and of her majesty and Bergami's retiring to it for an hour or an hour and a half together? What necessity could there be for that? The weather at the time is said to have been perfectly calm; the sea quite smooth and unruffled; the air so light, that the polacre hardly moved but with the tide. Where then, I again ask, could be the necessity for letting down the tent, with Bergami in it, during the day?
My lords; I will not consume your lordships' time by going through the whole of the circumstances that passed on board the polacre. But I must once more call your attention to this fact,—that, if the evidence respecting those circumstances were false, a number of persons were on board, who might have been called, but who have not been called, to contradict it. There is one important circumstance, however, which demands your particular notice; I mean the communication between the tent or awning on deck, and the apartment below. It has been attempted to be proved, by the evidence of lieutenant Hownam, that that communication was always open. But is that the fact? The evidence of the captain goes directly to contradict it. But, my lords, open or shut, was there any necessity that the mouths of all the persons below should be shut? Why have not the persons who slept below, been called to contradict the evidence of the captain and the mate of the vessel? It has been said, that their nerves are too delicate to meet a cross-examination. My lords, that is a reason for their non-appearance, on which it is impossible for your lordships to act; and you must therefore dismiss it altogether from your consideration. The fact, therefore, of their not having been called, remains a circumstance, which strongly affects the case for the defence.
And here, allow me to state, my lords, that the whole of the events, which occurred on board the polacre, are not to be viewed by themselves; for in cases of this nature, where the act of adultery is 1453 not positively seen, it is only by a combination of circumstances that it can be proved. This leads me to request that your lordships will look a little with me at the case of Aum. Allow what you please for the state of fatigue in which some of the witnesses represent her majesty to have been on that journey; and I then ask, what could have induced any person, who had the slightest pretension to character, having one tent within another, and in the interval between them two individuals, Theodore, and Carlino (who by-the-by has not been called) sleeping as guards; the one on the one side, and the other on the other,—what could have induced such a person, so situated, to have a man reposing with her in the inner tent? She was perfectly free from danger; and what possible occasion could there be for Bergami's being taken into the inner tent? Her majesty was sufficiently guarded without the presence of Bergami. There were no squalls,—no shippings of a sea,—no sudden heelings of the vessel to apprehend. It certainly, therefore, appears to me, that the occurrence at Aum, of the same species of fact which took place on board the polacre, is a circumstance, which ought to be of great weight in confirming the only natural inference that is to be drawn on the subject.
The case, however, does not rest here. Let your lordships consider the management respecting the contiguity of the sleeping apartments of her majesty and Bergami, which commenced at Naples, and which continued until their return from the long voyage; and ask yourselves what it could mean? Annex to it whatever meaning your lordships please, and I then ask, why were not all the persons who must know the real circumstances of the case, called to your lordships' bar to explain them? Why was not the countess Oldi called? Why were not Hieronimus, and Camera, and all those other persons called, whose names must immediately suggest themselves to your lordships' minds? And then, my lords, come the extraordinary circumstances respecting Bergami's rapid rise, and not merely his rapid rise, but the character, the merits, and the qualifications of the person so hastily elevated. My lords, there is a wide difference between such an elevation, and the case of an individual promoted, after a long life of labour, of exertion, and of fidelity, perhaps to the highest situations in the army, the navy, 1454 the law, or the church. It is one of the greatest blessings of our glorious constitution, that the highest stations in this country are accessible to those, whose merit and talents render them worthy of pre-eminence; although they may begin the world in indigence and obscurity. But that view of the subject is wholly inapplicable to the case of the individual in question; who has not only himself been raised to distinction; but every member of whose family, with one exception only, has shared in the prosperity, which has attended him. Look, my lords, at the evidence of sir William Gell, Mr. Keppel Craven, and Sicard. Sicard, a witness who gave his testimony in a manner highly creditable to his character, says, that he understood Bergami to have been engaged as courier to go only as far as Naples, but nothing more; Mr. Keppel Craven says, that Bergami was told he might expect to be promoted to be a servant out of livery, if he behaved well; and sir William Gell's evidence is, that a hope was held out to Bergami that he would be gradually advanced. How does this accord with all that subsequently happened? Did Bergami remain in that state of humble hope and expectation? Let your lordships look at what occurred within twelve months, and I then ask you, if you ever knew or heard of such an instance of promotion in the world; not only as it respects the elevation of the individual himself, but as it regards the introduction into her majesty's service, and necessarily to the exclusion of all other persons, of every member of his family, to the number, I believe, of ten or twelve, with one individual exception, and that exception—his wife? My lords, these are circumstances, at least of extreme singularity; and I leave your lordships to draw your own conclusions from them.
But, besides all this, your lordships will find in the Minutes of the proceedings in support of the bill, that there are eight or nine witnesses, every one of whom, with reference to his character, and to the facts to which he deposes, remains un-impeached and uncontradicted; unless, indeed, your lordships act upon bare suspicion, suggested in argument before your lordships, but for which there does not appear any ground whatever. All those witnesses speak to circumstances of familiarity between her majesty and Bergami, which may indeed have existed without any act of adultery having been com- 1455 mitted; but which, if it be also shown that there were time, and place, and opportunity, are circumstances, that, combined with the constant contiguity of bedrooms, and the other strong facts established by evidence, must irresistibly lead the mind of every man of plain sense and common understanding, to the conclusion, that a criminal intercourse did actually take place.
My lords; it has been very justly asked, "Why is Bergami not produced?" The reply was, that he could not be produced; for that he could not be allowed to depose to his innocence of the alleged fact. That I deny. He might have been called, and, if he could, he might have so deposed. In the case which has been alluded to in the course of this inquiry, major Hook, the alleged adulterer, was produced, and deposed to his own innocence. Nay, my lords, there are cases recorded in your lordships' Journals, in which the adulterers have been called to your lordships' bar, to prove the adultery. What, then, is the just inference to be drawn, not only from the absence, as witnesses, of all the other individuals to whom I have adverted, but from the absence of a man, who, if her majesty is really innocent of the crime imputed to her, had an obligation imposed upon him by the mighty favours which he has received, by the splendid benefits which have been conferred upon him, more transcendent, perhaps, than was ever before bestowed upon a human being, to come here, and declare the truth in behalf of his royal mistress? If he might have come—if he had this powerful obligation to come pressing upon him—I ask why he did not come? If he could establish innocence, why has he not been required to come?
There are many other points, my lords, on which I have not touched, and on which I do not mean to touch; because I am very ready to admit, that if the great leading features of the case, to which I have directed your lordships' attention, do not satisfy your mind, you ought not to read this bill a second time. I will say nothing of the Sinigaglia affair; because, although it is impossible to reconcile the evidence of Carlo Forti and of Vassali together, yet so much doubt has been thrown on the testimony of Sacchi, that I cannot come to such a conclusion in that case, as I dare trust myself to act on. So it is also with reference to the case of Trieste. To many of the circum- 1456 stances deposed with respect to that case, contradiction might have been given, which has not been given. But when I look at the evidence of Cuchi, the man who is called in support of it, and when I see him, not only speaking of her majesty's residence at Trieste for six days, but distinguishing the transactions which occurred on each of those days; and when I afterwards find that those transactions, if they did take place at all, must have been comprehended within the space of a day and a half, which was the extent of her majesty's stay at Trieste, I can place no reliance whatever on such a witness.
There are other parts of the case, however, and especially the occurrence at Carlsruhe, which are very important, and deserve serious attention. Your lordships have had Barbara Kress before you; a witness who, if we are to form any judgment of her from the manner in which she gave her evidence, is entitled to the highest credit. She speaks positively, and without any qualification, to a fact, which she says occurred on the evening of the second day after her majesty's arrival at Carlsruhe; and, although her evidence is capable of being fully contradicted, it has not been contradicted; unless your lordships consider the evidence, which Vassali gave at the close of his examination, as a contradiction of it. But, my lords, I cannot help thinking it very remarkable that this witness, Vassali, had been examined, and cross-examined, and re-examined, without having uttered a word—not a syllable—of having been present with her majesty during every hour of the evening in question, or of the splendid dress, in which her majesty was attired, until those circumstances were suggested to him by the question of her majesty's attorney-general; and he then builds up a minute account of the whole day, and of what passed in the saloon of the inn This witness is also liable to the observation, namely, that he remembers with great facility and correctness every thing that occurs at Carlsruhe, while he can scarcely remember and thing that occurs at Munich, and elsewhere. My lords, I cannot but think that the facts sworn to by Barbara Kress, and, among the rest, her having found her majesty's cloak in Bergami's bed, claim your lordships' notice.
The case of Catania also deserves your lordships' attention; and I am persuaded that, if your lordships carefully consider 1457 all the circumstances of that case, you will find it very difficult not at least to approach to the belief, that something passed at Catania, that ought not to have passed.
Such, my lords, is the view in which I regard this great question. There are many points of the case to which I have not alluded, and to which I do not intend to allude. But, taking into my consideration all that has been sworn by unimpeached and uncontradicted witnesses; adverting to what passed, both while her majesty was on board the polacre, and before and after that period, at Aum, the Barona, the Villa d'Este, Carlsruhe, Catania, and elsewhere; referring to the various acts of familiarity which have been proved, and which there has been no attempt to deny; and recollecting the rapid and extraordinary promotion of this man and his family, and their having been all brought about her majesty's person, with the exception of his wife;—I cannot withdraw myself from what appears to me to be an imperative duty, namely, to express my firm belief that an adulterous intercourse has taken place. I express that opinion, because, although the positive act of adultery has not been seen, and could not be seen, it is the language of the law that, if the circumstances are such, that a reasonable and plain man, addressing his mind dispassionately to the consideration of those circumstances, and to the principles of conduct by which human nature is governed, cannot but infer the commission of the crime, it is sufficient; although the absolute fact itself has not been proved. Of the maxims of law, as to legal presumptions, I am sure. Whether or not your lordships think that such a case as that which I have described, has been made out, is another question.
One word more, my lords, and I have done. As to what has passed, or is passing out of doors, I will take no notice of it, for I am not supposed to hear it, or to know any thing about it; only this I will say, that, whatever has happened, or whatever may happen, I will perform my duty here. But, in the course of this solemn inquiry, your lordships have heard from the bar of this House, what I was very sorry to hear, and what I believe was never before addressed to a court of justice. Something like a threat was held out to your lordships, that if you passed udgment against the Queen, you would 1458 never have the power of passing another judgment. I do not profess to use the words of the speaker, but the impression is distinct upon my mind.* My lords, however that may be, I will take upon myself to declare, that an address of such a nature, such an address of intimidation, to any court of justice, was never until this hour considered to be consistent with the duty of an advocate; and that such an address, whether an advocate has a right to make it, or not, ought to have no effect whatever on your lordships.—You stand here as the great and acknowledged protectors of the liberties, the character, the honour, and the lives of your fellow-subjects; and you cannot discharge that high trust a moment longer than while you can say to one another,—and, for myself, if I had not a moment longer to live, I would say to you—"Be just, and fear not!" My lords, I know the people of this country. I am sure that, if your lordships do your duty to them, by preserving their liberties, and the constitution which has been handed down to you from your ancestors, the time is not far distant when they will do their duty to you; when they will acknowledge that those who are invested with the great judicial functions of the state, ought firmly to meet all the reproaches, to which the faithful performance of those functions may expose them;—to court no popularity;—to do their duty;—and to leave the consequences to the wisdom and justice of God, who guides the feelings and actions of men, and directs the course and consequences of all human affairs.—My lords; I have shortly stated my opinion, and the grounds of it. Having thus discharged my individual duty, it is for your lordships to declare what it is your pleasure to do with the bill before us.
§ Lord Erskine
My lords; I cannot but agree with my noble and learned friend who has just sat down, that we ought to consider with the utmost impartiality every branch of this most important subject in which we are so unhappily engaged; but I must be permitted to say, without intending, I am sure, to depart from the course he has recommended, that his view of the case was far from being impartial; as it assigned credit to witnesses who had been entirely discredited, and did not, in my* See p. 210 of the present Volume.1459 opinion, give sufficient weight to the evidence in her majesty's defence—neither can I be supposed to differ from him when he declared that accusation was not guilt, and that innocence was always to be presumed until evidence justified or rather compelled a judgment of guilty; but here again, without questioning that ill felt and approved of immutable rule of justice, I have a right to assert and pledge myself to establish, that if this sacred principle had been adhered to by the authors of the bill before us, it never could possibly have existed; and yet when, from that manifest neglect of it, the people, with one voice, cry out against our proceeding, we have been implored not to suffer ourselves, in any manner to be influenced by their clamours, but to govern ourselves alone by the rules of evidence and the principles of law. My lords, I most readily adroit, that if we were engaged on a strictly judicial proceeding, we could be neither guided nor influenced by any other rules. We should then be bound to say, and at all hazards, "Fiat justitia ruat cœlum." No man amongst your lordships, were we deliberating in our judicial character, would stand more forward than myself to disregard popular interference; but we are in no such case: we are, on the contrary, engaged in our legislative capacity, and only act Judicially, when we examine, as in all other acts of legislature, the facts on which we are to proceed; and, what is still more applicable as an objection to what we are doing, we are legislating only to punish a supposed national wrong, when the nation itself, the only party which we assume to be aggrieved, denies that any wrong has been committed.
My lords; in explaining my reasons for the vote which I feel myself bound to give on the only question that, upon the bill before us, can, at any time, be put from the woolsack, I am anxious to lay my breast fully open to your lordships, that the House and the country may know all that, from time to time, has passed through my mind from the commencement of our proceedings.
Upon the first movement towards them, immediately after the death of the late king, I was in a very distant part of the kingdom; and when I heard that her majesty, without accusation of any description whatsoever, was by an act of government suddenly deprived of the public 1460 prayers of the national church, I not only anticipated an immediate and well considered accusation, but took it for granted, that his majesty's ministers must have taken especial care, not only to be clearly justified in strictness of law for the measure they had taken, but that they were possessed of a corresponding proof which could admit of no doubt—I took it for granted, that they would not engage in so great a national cause on ex parte evidence only. Above all, of the description we have witnessed; but that they had examined witnesses of a higher order, whose stations and characters would have assured a safer judgment, and that the impending trial would be of the shortest and clearest description. I attended the House, therefore, on my return to London, with no adverse bias whatsoever, and when the papers were first laid upon our table I was prepared impartially to do my duty, as I still am now.
On the first debate that occurred, it was objected, with great force by my noble friends near me (lords Grey and Holland), that we were disqualifying ourselves by our mode of proceeding from our constitutional jurisdiction, if the other House of Parliament, on the examination of the same papers laid before them also should think it their duty to impeach her majesty the Queen; but to this it was answered by the noble earl opposite (Liverpool), in an able and powerful speech, which, totally unprepared as X was, made but too strong an impression upon me, that adultery with a foreigner beyond the seas not being high treason within the statute, and adultery not being a crime at common law, there was no misdemeanor to be the ground for an impeachment; and I remember that the noble earl then adverted to my own unsuccessful endeavours to amend that defect in our law. My lords, I confess I yielded at the moment much too readily to this doctrine, and thought we were therefore I in the only course that could be pursued; but on the earliest examination of the subject, I saw clearly that I was mistaken, and recorded that mistake by a protest on the Journals. It was, indeed, quite plain, that as the adultery, if committed with a foreigner beyond the seas, was not high treason, it became for that very reason a high misdemeanor; although adultery in a woman being an ordinary subject standing in no relation to the public, but to her husband only, could not, as the I law stood be adjudged to be a, crime.
1461 My lords; although my individual error at that period, could have been of no consequence, except to govern my own vote, yet I hold it to be my duty thus to acknowledge it; because I have always thought, that a reserve and backwardness in public men, when even with the best intentions they have acted mistakenly, has been a great source of public calamity throughout the world.
At this period, my lords, a secret committee was proposed, to which I saw no objection, as I thought it might be the means of averting any public proceeding, unless in a case when it ought not to have been averted; but before the committee sat, a great change had taken place, the House of Commons having refused to examine the papers lying before them, declaring with the full assent of the authors of this bill, as represented at least by the member of the administration in that House, that to examine them at all would be derogatory from the dignity of the crown and injurious to the best interests of the country. Nay more—to give conclusive effect to this declaration, they had addressed her majesty (whom we were preparing to accuse), with all the reverence due to her elevated rank, and to innocence which they desired might be considered as unimpeached; and they appointed a solemn deputation, under the auspices of one of their own members of the highest consideration, to present this liberal homage of the House of Commons. My lords, if the Queen had rejected this humane and liberal mediation, although it would not have removed my objection to the form of our proceeding, yet it would have gone a great way to justify its substance; but, so far from any such rejection, her majesty laid herself at the feet of that House, declaring her readiness to be at its commands in every thing, so as her innocence was not compromised, which the House of Commons had solemnly professed to hold inviolate; expressing by her learned counsel, that the termination of all differences under its powerful and liberal sanction, was the most anxious wish of her heart.
I assert, therefore, my lords, that his majesty's ministers ought instantly to have closed with this proposition and its acceptance, by restoring the Queen's name to the Liturgy, from which, even on the admission to-day of my noble and learned friend, it ought never to have been expunged—since how could that act be 1462 justified if, as he has truly reminded us "accusation is not guilt?" But instead of this just, this happy termination of so disgusting and so dangerous a proceeding, and although they could not but see an insuperable bar to its success in this resolution of the Commons to which they had even themselves assented; they still obstinately refused to retrace their steps—or rather without even retracing them they foolishly lost the occasion of escaping from the error they had fallen into, by conceding her restoration to the Liturgy not as their act but as a corrollary to the vote that had been passed; thus throwing it on the House of Commons and escaping by a side-wind themselves; since the least reflection must have shown any man, that the House of Commons could never concur in a bill of pains and penalties, after the resolution it had voted, and the address it had presented to the Queen; but instead of this, they notoriously employed all their influence to bring the House of Commons to a kind of reversal of its own declaration, since it is quite impossible to maintain that the innocence of the Queen would not have been compromised by her continuing to be excluded (above all by her own consent) from the public prayers of the church. I appeal therefore to every one of your lordships (whatever differences of opinion may prevail amongst us on other parts of the case), whether the view I have taken of this obstacle to what we are engaged in can be denied or questioned.
In this new state of things, I declined sitting upon the committee—not from any change of opinion as to the propriety of its original appointment, if a bill had been the proper proceeding; but because it had since become improper and useless, without the probable concurrence of the House of Commons to any bill that could be proposed; and how could I possibly expect such a concurrence, after the declaration, that the very examination of even the grounds for any proceeding "would be derogatory from the dignity of the Crown, and injurious to the best interests of the country."
One preliminary question, therefore, for your lordships consideration, even if you were supported by sufficient evidence most undoubtedly is, whether you should read this bill a second and a third time, only to send it down to the House of Commons, who would be bound to reject it as an affront. Can you be weak enough, 1463 my lords, to expect, that though it refused to inquire, much more to impeach after inquiry, that it could now possibly consent to rescind its own decision, only because we have usurped their jurisdiction. And can we rationally wish, even if we could prevail in such an object, to bring the House of Commons into such a condition of humiliation and disgrace? They are the constitutional representatives of the people, whatever defects there may be in the forms of their elections; and what greater encouragement could be given to those (if any such there be) who seek the total subversion of the constitution, as by law established, than to have the positive proof,—which in that case they certainly would have, by the adoption of this bill—that their own votes and irresolutions were just nothing, when put into competition with the wishes of ministers to annul them, though their resolution had been seconded by the universal voice of the people? God forbid! my lords, that such a proof of corrupt servility should ever be made sp manifest; and, on the other hand, so great a difference between this and the other House, by their probable adherence to their own opinions, and the consequent rejection of this bill, is what every reasonable man must wish, on all accounts, to avoid.
Now, my lords, as it is perfectly clear, that if the evidence were sufficient to support an impeachment, the House of Commons has an unquestionable jurisdiction—which we began by denying—in what condition are we now placed? The bill of Pains and Penalties no longer stands upon its original ground of necessity. We do not proceed in it because there could be no proceeding by impeachment in the House of Commons, but because the House of Commons had refused to impeach; since, if it refused inquiry, the refusal of impeachment followed; and as they objected to all inquiry into the evidence at the outset, could they possibly enter into it now, when national disgust and nausea were universal. We are therefore, my lords, engaged in a direct and palpable violation of the constitution; because, whether the king, as a husband, could or could not apply to us on the principle of a common divorce bill, yet it is impossible to maintain, that adultery in a queen consort, or of a Princess of Wales, if publicly and licentiously committed, to the scandal and dishonour of the nation, is not a national offence; and 1464 her majesty, therefore, if guilty was clearly amenable to the House of Commons, by impeachment, for a high misdemeanor; and for this reason, my lords, even if I gave credit to the evidence (which I do not), I should equally reject the further progress of this bill. I am now drawing near to the close of a long life, and I must end it as I began it. If you strike out of it, my lords, some usefulness perhaps, in doing my part to aid in securing the sacred privilege of impartial trial to the people of this country, and by example to spread it throughout the world, what would be left to me? What else seated me here? What else would there be to distinguish me from the most useless and insignificant amongst mankind? Nothing—just nothing; and shall I then consent to this suicide—this worse than suicide of the body, this destruction of what can alone remain to me after death—the goodwill of my countrymen hereafter—I DARE NOT DO THAT!—Proceedings of this kind, my lords, have never been countenanced but in the worst times, and have afterwards not only been reversed, but stigmatized. The instances were most eloquently stated to your lordships from the bar, and you were justly reminded, that they were ordered, by succeeding parliaments "to be taken off the file, and burned, to the end that the same might no longer be visible in after ages;" but upon that I desire to repeat an opinion which I remember to have expressed when at the bar, that instead of directing them to be burned, they ought rather to have been blazoned in our parliaments, and in all our tribunals, that, like the characters which, appearing on the wall, were deciphered by the prophet of God to the Eastern tyrant, they might enlarge and blacken in our sights, to terrify us from acts of injustice.
If the bill, however, is not, for these reasons, to be abandoned without any consideration of the evidence, the next question of course is, whether it be sufficient for its support? The Minutes have been delivered to us daily, and are in all our possessions; but I have scarcely seen the bill itself, where the charge is alone to be found, and to which all the proof must be applied, in the hands of any one of your lordships; yet it is all in bill; because the preamble does not charge one or more secret acts of adultery, but a public and scandalously licentious and adulterous intercourse, during the whole of the 1465 Queen's residence abroad in various countries, the truth of which, or even any evidence whatsoever to establish it, I deny in the face of all England to have been laid before us. The preamble, which is one integral charge states, "that her majesty being at Milan in Italy, retained in her service Bartolomeo Bergami—that a degrading intercourse commenced between them—that she raised him to a high situation, and conducted herself towards him, and in other respects, both public and private, in the various countries and places she visited, with indecent familiarity and freedom, and carried on with him a licentious, disgraceful intercourse, for a long period of time during her residence abroad." Now, where is the proof of all this? and what has it come to at last? It has dwindled down to her sleeping under the same tent with her chamberlain, on the deck of a small polacre, during a short voyage in the Mediterranean sea. Not one of her attendants have been called to intimate even a suspicion of crime; and this solitary act, whether prudent or imprudent, was never known or heard of in the world, and never would have been known or heard of, had not this scandalous conspiracy been set on foot; since Gargiulo himself, though brought here partly from compulsion, and partly from the expectation of his 6,000 dollars, which Bergami would not pay him, did not venture to swear to his impression at the time, or that he had ever insinuated blame in speaking of it to others, until the Milan commission was established.
How, then, could this country and all Europe be scandalized on this account—how but by the course we are engaged in? Lieutenant Hownam, who must have been much better acquainted with every thing that passed there than we can be, had no feeling or impression, that any thing was criminal or indecent, and the different impressions which appear to be now made upon some of your lordships are not to be wondered at when we consider the insidious manner in which this charge originated, and the manner in which the grossest falsehoods have been collected and brought before us—I see no objection upon due grounds of suspicion, to the appointment of a commission of inquiry to be executed (as it must have been) abroad, so as we ourselves had afterwards been made the judges of all the circumstances attending its execution—I have already done complete justice to the 1466 character of Mr. Cooke, and I am a stranger to the other commissioners at Milan; but if, instead of their being only honest men, they had been angels sent down from Heaven, there are circumstances so clearly proved before us in the attempt at subornation, and the abstraction of Restelli to prevent others from coming to light, as to cast into the deepest shade the whole mass of the evidence, even if the witnesses had been able to support their testimonies without the contradiction they have encountered, and the palpable self-confessions of falsehood; objections so fatal to their credit, that after the whole has been brought before us for our final judgment, my noble and learned friend most properly disclaiming to pronounce judgment upon suspicious testimony, seemed principally to rest his sentence of guilty upon the testimony given in her majesty's defence. Let me not be mistaken. I do not mean to say, that my noble and learned friend did, in terms, admit his disbelief of all the witnesses for the bill, but that seeking properly to avoid all objections to the grounds on which he considered a judgment of guilty might be founded, he seemed mainly to rest it on the footing I have stated. Good God, my lords, consider only the favourable effect of this for her majesty's defence, when the judgment of a person whose authority, learning, and talents entitle him to such extraordinary respect, can lay its foundations on no wider an extent.—If, when at the bar, my lords, in support of any prosecution whatsoever, all my principal witnesses, one after another, had either totally failed me, or had been brought into such questionable and doubtful credit, would any judge have sanctioned my urging it farther for the chance of finding something which, though equally false, might net be within the reach of refutation? I certainly think not. Yet, is not this the very case before us? It stands admitted that her majesty reached Naples without imputation or suspicion of misconduct; and there the conspiracy seems to have commenced. On the first and second nights after her arrival there, when her destruction was secretly meditated, she had been attended in public by sir William Gell and Mr. Craven, who accompanied her to her apartments at a very late hour of the night. How, then, is it possible not to feel an abhorrence at Demont's evidence, who has sworn to her returning very early in the evening, vio- 1467 lently agitated, as a preface to the other falsehoods which must be as fully in your lordships recollections as in my own—falsehoods which, if believed, amounted to the clearest proof of adultery, and which, of course, made the strongest impression upon me, when I heard them—an impression which must have continued, and on which I must have acted, but for the positive contradictions she received, and from the unequivocal admissions of these falsehoods by herself; for what admission can be stronger than her own letters, and her declaration to Madame Martigni, that her majesty was surrounded by spies, and that all that had been circulated, were their calumnies against her?
Leaving, then, ouch witnesses thus dead and buried, as I cannot but consider them, let us see whether any sufficient support can be derived from that part of the proof which remains uncontradicted, and which called for no contradiction, I mean the admitted elevation of Bergami, which I cannot view in the same light with my noble and learned friend. If, indeed, before the period of his elevation, credit were to be given to the indecent familiarities, much more to the acts of adultery at Naples, I should then have considered every step and stage of his advancement as strong proof of the continuance of an adulterous connexion; but when that is overthrown (and who now avows to act upon it?), his elevation could not weigh as any material proof in any of the courts, towards the establishment of guilt.—His advancements were undoubtedly marks of great favour, and may, according to the various opinions of the world on such subjects, become matter of remark; but, stripped of the false colours reflected upon them by false testimony, they amount to nothing in support of this bill; he had been strongly recommended, and though in an inferior military station, he had conducted himself as a man of honour and character, and his deportment, as proved by many witnesses, was uniformly most dutiful and respectful.—Now, even imputing his gradual advancement to a greater degree of favour than might have been advisable or prudent, it might nevertheless be entirely consistent with innocence; and the conferring upon him what has been called the order of St. Caroline at Jerusalem, this symbol of her pilgrimage has made a very different impression upon me, from that which it was brought before us to produce; it was an 1468 act of distinction, wholly unnecessary for the gratification of a criminal passion, and which a sense of guilt would, in my mind, have been likely to prevent. She had just entered, with the profession, at least, of devotion, the holy city where our Saviour suffered for the world; and the institution of the order, however unauthorized, was intended as a pious commemoration of it amongst those who had attended her. She may, indeed, even so circumstanced, have cast off all sense of divine favour, but I cannot impute this without proof.
I come now to what passed under the tent in the polacre, to which, in the end, the case seems to be reduced; and if, instead of her majesty having been there publicly attended by her chamberlain even in the night, another part of the vessel had been assigned to him, and he had been traced from it secretly in the night to the sleeping place of the Queen, above all, if any previous indecent familiarities had been established, or the incredible indecencies on the public deck could be credited, I should then admit that there would be a legal presumption of guilt. God forbid that I should invade any of the rules which, under the law as for ages administered, are the securities of domestic life; but, under the circumstances before us, and in the absence, from the just rejection of the antecedent proof of the degrading passion which the preamble charges to have existed, I do not think that the legal presumption is justifiable, or can reasonably attach. When they first went on board there was an arrangement of beds below, much more favourable to an adulterous intercourse, and which was only changed from the heat of the weather, the admission of horses, and the surgeons coming on board. How, then, can guilt be reasonably inferred, by her removing to the deck, where her conduct was not only open to the constant observation of all her attendants, but of all the sailors in the ship? The tent, as has been proved, being open from below, to which her whole suite might have had access.
But to all this, it has been said, that it had been distinctly admitted, that she was attended, even in the night, by a male attendant. Had he, indeed, been a stranger, I admit that the presumption would have been different; but has it not been shown to have been of constant occurrence abroad, even in travelling by land, when no difficulties of accommoda- 1469 tion were wanting, that men were attended by women as their servants, and women in the same manner by men? I cannot, therefore, be of opinion, consistently with the rules and principles of law, as I have always understood them, that the unsuspicious and unsuspected evidence, as it applies to what passed in the polacre, ought to be accepted as any thing like sufficient to establish that scandalous, disgraceful, and licentious conduct, which is charged by the preamble of this bill. Yet my noble and learned friend seems principally to have rested his enlightened judgment upon this part of the case. [The lord chancellor here, as we underderstood, signified his dissent.] Lord Erskine was then proceeding to contrast Majoochi's evidence with his contradictions and his own admissions, particularly with the evidence of Dr. Holland, when his voice suddenly ceased. The pause was not particularly noticed at first, as it appeared as if his lordship were looking over the Minutes placed on the table before him; but, after some time had elapsed without resuming his speech, some of the peers became alarmed, and rose from their seats to proceed to his lordship. The anxiety of the whole House was now aroused, as the noble lord fell forward on the table in a senseless state. There were cries of "Open the windows,"—"Some water." The lord chancellor and the earl of Liverpool evinced the greatest concern, and proceeded immediately to lord Erskine's assistance. They, with the assistance of earls Grey and Carnarvon, lord Holland, and Mr. Baron Garrow, raised his lordship; but his speech and colour were gone. They then became seriously alarmed, and proceeded to convey him out of the House. The attack was so severe, that they were instantly obliged literally to carry his lordship out of the House, and into an adjoining room, where medical aid was immediately procured. It was at first supposed, that his lordship's indisposition would be but temporary, and, in the expectation that he would be able to resume his speech, the House, on the motion of the earl of Lauderdale, adjourned for a quarter of an hour. After the lapse of nearly half an hour, lord Erskine's indisposition being so severe as to prevent his return, the House resumed.** Lord Erskine's complaint was found to have arisen from a sudden and violent
The Lord Chancellor
said, that he had, in common with their lordships, to regret the absence of his noble and learned friend, whose indisposition had compelled him to quit his seat. But he could not permit this debate to go further without observing, that his noble and learned friend had mistaken what he (the lord chancellor) meant, when he said that he had overlooked many of the points in the case. What he meant to say was merely this—that in the points and cases upon which he had remarked, he saw enough for his own judgment: as to the rest, he had left them unreasoned upon, and refrained from pronouncing any opinion with reference to them.
The Earl of Lauderdale
My lords; in rising to address your lordships on this question, which has so much occupied and agitated the public mind, it is with truth I can assure you, that I am overawed and weighed down with the magnitude of the subject, to which I feel it my duty to call your attion; as well as with a sense of my own incapacity to present to your view a clear and distinct detail of this voluminous evidence, and to bring home to your minds the reasoning which must guide ray own judgment, and which, in ray humble opinion, ought to govern your lordships' decision, on this important question. Unfortunately, too, your lordships must all perceive, that the temporary illness under which I labour cannot fail to add greatly to the difficulty and embarrassment I must feel, in endeavouring to execute that task, which a sense of public duty imperiously imposes upon me.
Much, however, as I am oppressed with all these considerations, even these would be light in comparison of what I should feel, if I could believe that any one of your lordships could infer, from the circumstance of my rising immediately after my learned and noble friend (whose sud-cramp in the stomach, which was greatly distended, and his pulse for some time had entirely ceased, until he was relieved by something administered by sir William Knighton, who happened to be present, and who kindly accompanied him home, attended by Mr. Holt of Westminster.* From the original edition, printed for Constable, Edinburgh; and Maxwell, and Budd and Calkin, Loudon.1471 den illness no man can regret more than I do), that I had vanity sufficient to think myself capable of competing with him in the discussion of a point of law. No, my lords, whilst I know my own capacity, I have not forgotten that my noble and; learned friend has passed great part of his honourable and splendid career, at the head of a profession of which his brilliant eloquence made him in public estimation the brightest ornament. But, my lords, it is not a point of law we are now called upon to discuss; and in rising to address your lordships, I feel I am only going to deliver an opinion upon a subject, on which I am sure my noble friend would agree with me, when I state that our law and constitution supposes every juryman to be a competent judge, and, fortunately for the welfare of this country, imposes upon him the duty of deciding.
In endeavouring to execute this duty, much as I admire and respect the talents of my noble friend, there is one thing in which, on this occasion, I cannot be induced to follow his example;—I cannot be led, even by him, to mix up with this question, any discussion of the merits or demerits of the present government. I am sure your lordships will admit, that there is no man who has more frequently disagreed with, or been more ready to censure the noble lords opposite to me, than I have been; but I can in no respect regard this as a party question, and I can never approve of connecting it, in the smallest degree, with any discussion of the general politics of the day. If I differ from my noble friends around me, I can assure them, that it is to me a subject of great regret, because I respect their talents and their judgment to an extent, that, agreeing with them, I must always feel greater confidence in my own opinions. If I agree with my noble and learned friend on the woolsack, who addressed you so ably at the commancement of this discussion, and with the noble lords opposite to me, I desire distinctly to be understood, that it does not arise from any general approbation of their conduct as ministers of the Grown, but from a coincidence of opinion, after the most mature deliberation on the result of that evidence, on which we have been unfortunately here called upon, even in a compulsory manner, to decide.
I am sure it is unnecessary for me to occupy your lordships' time, in endeavouring to enforce the opinion, that this 1472 ought in no degree to be regarded as a party question, for I am confident, one and all my noble friends must agree with me on this subject; and in justice to the noble lord at the head of his majesty's government, I must say, that I think it impossible that any man could have taken greater pains throughout these proceedings to instil into the minds of his adherents, that this was a subject on which it was the bounden duty of every man to regulate his conduct, exclusively as his own judgment directed.
That this is the principle on which our conduct ought to be regulated, is a position on which I do sincerely believe there is no difference of opinion within these walls; and on this principle I assure your lordships, I do so exclusively act, that I now present myself to you, solely for the purpose of stating the grounds; on which my decision has been formed, and not with a view to guide or influence, by argument, the mind of any one who may honour me with his attention, farther than, as the views I may suggest may tend to illustrate the fair inferences, which, as a judge, it is the duty of every one of you to draw from the evidence that is now submitted to your consideration.
In executing this duty there is one consideration, from which, I am sure, all of your lordships, in common with myself, must derive the greatest consolation, amidst the overwhelming difficulties that present themselves, to all who contemplate the complicated mass of evidence which has been brought under our view; it has, indeed, afforded to me, and I doubt not to all who hear me, the greatest consolation, to reflect, that there is no difference of opinion about the nature and description of evidence, from which, in cases of this nature, the guilt or innocence of the party accused is to be inferred, nor about the rule of law, which, tracing out the line the mind is to pursue, guides and directs the inferences on which the judgment we are to pronounce ought to be founded.
For I am sure your lordships must recollect the clear and luminous exposition of the law, given in the case of Loveden v. Loveden, by the learned and excellent judge who presides in the Ecclesiastical court (sir W. Scott), which was read to you by the counsel at the bar, and it cannot have escaped you, that the doctrines therein contained have been on all sides admitted as indisputably established. On 1473 that occasion, that learned judge laid down, that, "in cases of adultery, the fundamental rule is, that there is no necessity to prove a direct act; that such an act could not be proved in one case in a hundred; that it must therefore be deduced from inferences leading to a just conclusion; that if this were not sufficient, there would be no protection for marital rights; it is not necessary" (he continues) "to enumerate the various grounds of inference; many are mentioned in the ancient writers; but besides these, there are many others depending on general manners, and other incidental circumstances which are continually changing. They must be such as to lead a reasonable and just man to the conculasion of guilt. It must not be a rash conclusion, or formed on strained and artificial reasoning; it must be in conformity with what would strike a man of plain honest sense. It is not a matter of technical rule; upon such subjects, the rasional and legal conclusion is the same.
Guided by these principles, it will be my endeavour to lay before your lordships, in detail, what I must conceive to be the leading and important facts of this case, and, without any exercise of ingenuity or refinement, plainly to state what appears to me to be the irresistible inferences to which they must naturally conduct your minds.
My lords; though there are none of your lordships who can have a greater admiration of the candid, clear, and impartial reasoning which my noble and learned friend on the woolsack has addressed to you on this occasion, in a manner so highly befitting a person possessing the authority which a long life, spent in displaying his profound knowledge and great talents has acquired for him, yet I must think, that what is becoming in him, would in no respect befit me, for your lordships must be well aware that I can pretend to no authority; it appears, therefore, to me necessary, that I should enter more at large into the evidence, and into the details of the case, before I can expect that any reasoning of mine can give such weight to the opinions I am about to state, as may, in your lordships' minds, justify the judgment which a sense of duty will force me to pronounce. I can assure your lordships, however, that both my inclination and the state of my health will secure me against intruding upon your attention longer than I conceive to be ab- 1474 solutely necessary, distinctly to explain the view of the case, which forces upon my mind the conclusions I have been compelled to adopt; with this view, I will avoid, as much as possible, reading to you the evidence in detail, which never fails to occasion interruptions, still more disagreeable to those who listen, than even to the speaker himself. It will be my object, however, accurately to detail the facts as they are in the evidence before you, and cautiously to avoid putting any refined construction upon the circumstances to which I shall have occasion to refer. Let me also, for the purpose of securing myself against the possibility of any accusation of mis-statement, entreat of my noble friends behind me, and of every peer in this House, that I may be interrupted, should any one entertain the least suspicion of misrepresentation or mistake; it will be a favour done to me, whilst it will neither discompose me, nor create the necessity of my occupying much more of your time, for I have before me indexes, by means of which I can at once refer to every passage of the evidence, and satisfy the mind of every one of your lordships of the accuracy of the facts that I may feel it necessary to state.
But before I proceed to call your attention to the evidence itself, allow me distinctly to state to your lordships the order and arrangement which, on this occasion, it is my intention to pursue. In the first place, I mean to lay aside the whole mass of evidence brought before you by the prosecutor; to confine myself exclusively to the evidence tendered to you by her majesty's counsel in the course of the defence; and to show you, that if I was forced to decide this important cause on this evidence alone, what, according to the rules which have heretofore guided the courts of law, as well as this House, must of necessity be my judgment. I shall then endeavour to point out to you the additional certainty of the accuracy of my conclusions, which, for the consolation of my mind, I derive from the evidence of the prosecutor, after setting aside and rejecting all which can reasonably be suspected. And, lastly, I shall state to your lordships my reasons for thinking, that, being convinced of her majesty's guilt, every sound view of expediency compels me to vote for the second reading of the bill now before you.
In pursuing this line, I am naturally led, in the first place, to call your lord- 1475 ships' attention to the information, such as it is, which the evidence for the defence affords us concerning the history of Bergami, the hero of this tale, who was taken into the service of her royal highness the princess of Wales, as courier, in November 1814, at Milan, and who is now baron of Franchina, knight of Malta, knight of the Holy Sepulchre, and grand master of the order of St. Caroline of Jerusalem.
From colonel Teuillé, we learn, that, in 1800 and 1801, Bergami was serving as a non-commissioned officer in the 1st regiment of Italian hussars, and that, in 1808 and 1809, he saw him in Spain acting as private courier to general Pino, whose confidence the colonel states him to have enjoyed,* and this is all that we can collect concerning this man from the evidence given in defence, till we come to his being at Milan, recommended by the marquis Ghisiliari as courier to her royal highness. From sir William Gell, your lordships have received an impression, that the marquis considered him as a person rather above his situation, and that he expressed a desire, that if he behaved well, he would be gradually advanced.† Both Mr. Craven, however, and Sicard, by whom he was hired, defined more accurately the advancement to which the marquis looked; for the former states to you, that, having recommended him as a courier on the journey to Naples, he only expressed a desire, that Bergami should remain as a servant out of livery, when her royal highness took up her residence at any particular place;‡ and Sicard declares, that he was accordingly hired to act as courier to Naples, receiving at the rate of 40 louis a year, and that when he arrived there, he was taken permanently into the service at the rate of 50. By Sicard we are farther informed, that there was nothing in the manners of this man superior to that of other couriers,§ which is confirmed by lord Guilford's observation, made at the time he was elevated to a place at her royal highness's table; for he distinctly declared to you, that he saw nothing in his manners but what he would have expected from, a man in the situation of a courier.** See pp. 432 and 433 of the present Volume.† Ibid. p. 344. ‡ Ibid. P. 331.§ Ibid. p. 411.║ Ibid. p. 312.1476 Before entering into what passed on their arrival at Naples, it is of importance I should recall to your lordships' recollection Mr. Craven's declaration, that, previous to her royal highness's arrival in Italy, he had advised her no longer to allow the boy, William Austin, to sleep in her bed-room, which was the usual place of his repose; stating to her, that the people of Italy might make observations, and that Austin had attained an age which might give rise to their criticisms.* Sicard, however, whose duty it was to distribute and arrange the apartments, distinctly states, that no separate room ever had been provided for this boy till after her royal highness's arrival at Naples, when, by her order, an apartment was allotted to him;† and though I am perfectly aware that Carrington contradicts Sicard on this subject,‡ I shall afterwards explain to you why it is impossible for me to place any reliance on this man's testimony, whilst I am sure your lordships must, in the mean time, agree with me, that, whether you reflect on the respectable manner in which Sicard gave his testimony, or on the superior opportunities he who distributed the apartments had of knowing where the various persons of the family slept, it is impossible to doubt the accuracy of his information.
According to him, then, your lordships must recollect, that, immediately after their arrival at Naples, Austin was, for the first time, dislodged from her royal highness's apartment, and that Bergami, the courier, who had slept the night after their arrival at the top of the house, in the vicinity of one of the servants of the name of Charles Hartrop,§ was removed into an apartment which communicated through a little cabinet and a corridor with that of her royal highness. This arrangement Sicard, indeed, tells you he made himself, but that it was in consequence of a communication with Hieronimus, concerning the nature of which your lordships are left in the dark, as Hieronimus, though in England, and in her majesty's service, was not called to your bar; and the only account given to you of this arrangement, which placed this courier, then hardly three weeks in her service, in an apartment so imme-* See p. 334 of the present Volume.† Ibid. p. 364. ‡ Ibid. p. 413.§ Ibid. p. 405.1477 diately connected with that of her royal highness, that by shutting one door, all the family were excluded from having access to the passage which led from the one room to the other, is, that it was necessary she should be guarded, there being a glass door out of her apartment into the garden.
I am sure, however, one and all of your lordships must have desired to know what it was Hieronimus stated to Sicard, which produced this arrangement; for, if apprehension for the safety of her royal highness's person was the sole reason for it, it must be acknowledged, that this Italian courier, unknown to every one in the family, till he had been recommended three weeks before, by a person who seemed to have an object in providing for him, was a most extraordinary selection; the princess had, in her family, servants, of whose fidelity she had experience, who had been known to her for a length of time; Hieronimus must have had opportunities sufficient, from the time he had been in her service, of establishing his character in her estimation; and Sicard himself had resided with her for years, during which time, his conduct had secured to him advancement in her service. If, then, there existed apprehension of danger for her majesty's person, who is it that has a mind so constructed, as not to think one or other of them, if not sir William Gell or Mr. Craven, was the person who would naturally have been chosen for her protector, rather than a courier, of whom neither she nor any of the family knew any thing, but for the short space of three weeks?
This, however, was only the first step towards marks of unprecedented favour and distinction shown to this man, whose figure and appearance of strength created such an impression in the mind of lord Llandaff, that he stated it to your lordships, as the reason why he was the only person in her royal highness's service whose name he recollected;* for soon afterwards, we find that a servant was allotted to him, who, during a temporary accident slept in the adjacent apartment, that he might be more immediately under his command;† that he exclusively attended on her royal highness in her bedroom when lady Charlotte Lindsay dined with her there, others being only em-* See p. 329 of the present Volume.† Ibid. p. 408.1478 ployed in bringing up the dishes;* and that, when lady Charlotte and her royal highness walked in the garden called La Favorita, he was in attendance.† Mr. Craven, too, has proved to your lordships that he saw her royal highness walking on the terrace, in the vicinity of her own apartment, followed by the courier Bergami, and that, having received a letter from England, informing him, that there was a spy at Naples, he thought it, on this occasion, necessary to caution her royal highness against outward appearances, which might be misconstrued.‡
To caution her royal highness against outward appearances, which might be misconstrued!!!
I protest I have hardly yet recovered from the surprise to which this statement gave rise; for, if nothing was known to Mr. Craven, previous to that period, more pregnant with suspicion, than what has been detailed to your lordships by Mr. Sicard, by sir William Gell, by lady Charlotte Lindsay, and by Mr. Craven himself, is it possible to understand how a chamberlain of the princess of Wales, from the mere circumstance of a servant following her on the terrace, should have presumed to caution her royal highness with regard to outward appearances? Can your lordships believe, that, after such an insult to a person in her royal highness's situation, conscious of the purity of her conduct, this chamberlain would have been allowed to remain one hour longer in her service?
Why, my lords, so far from the circumstance of her royal highness having a servant behind her, when walking on the terrace, being calculated to create suspicion, if nothing of the sort previously existed, it was what any man would have advised as the surest mode of preventing it; for though I may perhaps recollect cases, in which I have heard ladies remarked upon for walking out without their servant behind them, it is the first time in my life, and I must believe it is the first time that ever any one of your lordships heard It suggested, that walking out with her servant behind her was a ground which could make any man think it necessary to caution a lady against outward appearances.
To her royal highness, however, this* See p. 317 of the present Volume.† Ibid. p. 318.‡ Ibid. p. 336.1479 appears not to have given the smallest offence; for Mr. Craven states, that she calmly informed him that there were other persons in the garden, and she had taken Bergami with her to interpret to the workmen; and here your lordships must allow me to remark, that Mr. Craven saw this scene, which seems to have produced so formidable an effect upon his mind, from the terrace on the opposite side of the house, near lady Elizabeth Forbes's apartment, which, being higher than the terrace on which her royal highness walked, commanded a view of it, yet lady Elizabeth Forbes, though summoned on the part of her majesty, to attend your lordships as a witness, has not been called to your bar, notwithstanding that she had resided with her royal highness from the time of her going abroad, till her quitting Naples; and that, from the position of her apartments, she had an opportunity of seeing what passed on the terrace; whilst lady Charlotte Lindsay has been brought to your lordships bar, as the great female authority in relation to her royal highness's conduct, though she resided only ten or twelve days at Naples with her royal highness, two days at Rome, six at Civita Vecchia, and three in the Clorinde, making in all, including the time passed on the journey, a space of not more than twenty-four days.*
Confining myself strictly to the evidence for the defence, I have, before quitting Naples, only to remark, that, previous to her royal highness's departure from that place, her old and faithful servant Sicard was sent to Genoa, for the purpose, as he says, of proceeding to England, there to make arrangements about her royal highness's bills, under a conviction that her royal highness was to direct his return; that lady Elizabeth Forbes left her at Naples; and that lady Charlotte Lindsay tells you, that sir William Gell, Mr. Keppel Craven, and captain Hesse, also quitted her royal highness there, so that, with the exception of Dr. Holland, all the English in her suite, at the time of her arrival at Naples, now ceased to belong to her service. From Naples, it is in evidence, that Bergami, though, during her royal highness's residence there, he had been raised, first to the situation of valet-de-charobre, and next to that of a page, rode, on a journey to Rome and to Civita Vecchia, as courier; I do not, my lords,* See p. 322 of the present Volume.1480 stop to remark upon the story lady Charlotte Lindsay has communicated relative to wine being given him from the carriage on the road. It figures, in my mind, as of trivial importance; but your lordships will recollect, that during the few days lady Charlotte Lindsay lived with her royal highness at Civita Vecchia, Bergami continued to be the only servant in attendance when her royal highness walked out, and that her ladyship cannot positively swear that her royal highness did not take his arm in the course of some of these walks. From Civita Vecchia, her royal highness, attended by lord Guilford and lady Charlotte Lindsay, proceeded, in the Clorinde frigate, to Leghorn. Allow me by the way to remark, what I will afterwards show your lordships the import of, that, whilst lady Charlotte Lindsay was on board, nobody slept in that division of the cabin allotted to her royal highness but her maid.
At Leghorn, lord Guilford and lady Charlotte Lindsay disembarked; on landing at Genoa, therefore, Dr. Holland was the only Englishman in her royal highness's suite. Here, however, she was joined by lord and lady Glenbervie, and this lady, who had formerly been attached to her family, seems for a few days to have officiated as lady in waiting.* On lord Glenbervie's authority, we know, that at this place Bergami still acted as a servant, waiting at table in a fancy dress, and that soon after her arrival, her royal highness was joined by lady Charlotte Campbell, then the only lady of the bedchamber in attendance. Mr. Hownam, too, who, in the sequel, will figure in these details, arrived from England in the month of April, previous to which time Louis Bergami, Bartolomeo's brother, had been engaged in her royal highness's service, and it appears, that soon after Mr. Hownam's arrival, Faustina, the courier's sister, Victorine, his little child, and his mother, came to reside with her royal highness.
On the subject of how they came, and in what capacity, your lordships, however, have no information. Even after their arrival, their situation seems to have been involved in some degree of mystery; for Dr. Holland states, that he never was aware that any person of the name of Faustina resided in her royal highness's house at Genoa;—that there was a little child,* See p. 314 of the present Volume.1481 whose name he did not know, and that he saw an elderly person, whom he believed to be the mother of Bergami,*—and Hownam tells you, that he never saw them but once or twice by hazard, in the garden of the house which her royal highness inhabited.†
But I am sure, your lordships must, with me, be convinced, that them other of this courier, that his brother, his sister, and his child, could not have come into the house without his knowledge, as well as that of her royal highness. Here, then, we find that Bergami, retained at Milan in the month of November 1814, solely for the purpose of going to Naples as courier, for whom an apartment situated in close connexion with that of her royal highness was allotted at Naples; who had been raised to the situation of valet-de chambre, and subsequently to that of page; and who, in her walks, as well as at her private dinners, seems to have become her exclusive attendant, must have had secret conferences with her royal highness; for it is impossible that without communication, his mother, his brother, his sister, and his daughter, could have been established in her royal highness's house at Genoa.
Secrets, my lords, between two persons of different sexes, though of equal rank in society, are of the most dangerous nature. Their existence involves the certainty of a common interest between the parties, unknown to the rest of the world, inevitably leading to familiarity, too often fatal to the female character. And I am sure your lordships will think that a secret between her royal highness the princess of Wales, and a courier whom she had only taken into her service four months before, who, as has been shown from the evidence, had been making rapid strides in the acquisition of her confidence and favour, concerning the advancement of his interests and that of his family, is a circumstance of a most suspicious nature; more particularly when conjoined with what took place soon after their arrival at Milan, when lady C. Campbell, following the example of all her other English attendants, quitted her service.
On this occasion we learn, that her royal highness took as her lady of honour, and only female companion, a* See p. 420 of the present Volume.† Ibid. p. 513.1482 countess Oldi, who, in reality, turned out to be the sister of Bergami,—that, from her first entry into the service, she sat at her royal highness's table, though her brother had not yet attained that honour; and that it appears in evidence, that the connexion betwixt Bergami and this countess Oldi was, at the time of her appointment, neither announced to, or known by any member of her royal highness's family; for Dr. Holland states his ignorance of the fact, even when he quitted her royal highness's service at Venice.* And Hownam says, that he knew nothing of it when she came into the service,—that he heard it rumoured shortly afterwards,—but that he was not certain for some time † Nay, lord Guildford declares, that, though he thinks he heard she was Bergami's sister before he went to Como, in the month of November 1815, he did not till afterwards know it with certainty.‡
To your lordships, however, it must appear impossible that Bergami could have been ignorant that this countess of Oldi was his own sister; neither is it in the nature of things that you can believe that she could attain that preferment without her royal highness having had communication with him. Here, then, there must have been a secret betwixt her royal highness and this man, who had not yet been six months in her service,—who had entered it as a courier,—whose career, from the first moment of his arrival at Naples, was attended with unaccountable marks of confidence and of favour,—and whose attendance, as a servant, even in waiting at table, had been dispensed with after her royal highness quitted Genoa,—and that, too, a secret of a most suspicious and dangerous nature; for it must be obvious to your lordships, that the countess Oldi's being established as her royal highness's confidential companion, was the device, of all others, best calculated to lull suspicion in the minds of those in attendance on her royal highness who were ignorant of that lady's family and connexions,—whilst, of all others, it was the arrangement best calculated to facilitate opportunities of confidential intercourse betwixt her royal highness and her courier. In the minds of her attendants it must have inevitably allayed all doubt; however frequently Bergami may have enter-* See p. 420 of the present Volume.† Ibid p. 531.‡ Ibid p. 310.1483 ed into her royal highness's apartment, to them it must have appeared that nothing unbecoming could possibly take place; for they must have regarded the presence of an Italian countess, whom they naturally conceived to be a lady of high rank and character, to be a security against every tiling of the kind. If the apartments of the princess and of Bergami were divided by that in which the countess Oldi slept, this very circumstance must have stifled all idea that any nocturnal impropriety could exist; whilst, on the other hand, there is no end to the opportunities that might be afforded by the accommodating aid of this sister, whose interests, as well as that of her brothers, sisters, mother, and cousins, all depended on her compliance; for your lordships must recollect, that Mr. Hownam gives a list of no less than ten of the family who were, in one shape or another, attached to her royal highness's service.*
My lords; I dwell on this circumstance the more, because I know I address those who feel that favours bestowed from gratitude for services performed, or from a sense of eminent and distinguished merit, are what, in compliment to the object of them, the mind would delight in avowing; and that concealment only bespeaks a secret sense of some unworthy motive, which shrinks from disclosure, and which it is my business, as well as every one of your lordships, to decipher by reference to the concomitant facts given in evidence in the course of this extraordinary defence.
In pursuing this research I have next to observe, that, nearly about the time of this singular, if not convenient, arrangement taking place at Milan, her royal highness suggested to Dr. Holland, that he had an excellent opportunity of making a six weeks' tour into Switzerland, and that, out of that proposal, there subsequently arose a permission to Dr. Holland to return to England, from whence he was never afterwards recalled, though the attendance of a medical man seemed so necessary on her voyage to Greece that she took a doctor at Tunis; and though Dr. Holland, with the knowledge of that country which his admirable work exhibits, was the person, of all others, one would naturally have wished as an attendant on such an occasion.
From Milan the evidence shows her* See p. 531 of the present Volume.1484 royal highness to have made a short excursion to Venice,* on which occasion the only Englishmen in attendance, besides Hownam, were Mr. William Burrell and Dr. Holland, who went there on his way to England through Germany. Here her royal highness landed at the same hotel where lord Llandaff lodged; but, from the time she was at Genoa, she seems to have acquired a taste for privacy; for Dr. Holland tells you, that, at that time, her royal highness went to look at a house in the country, with a view to retirement; and, in conformity with that inclination, we also find from him, that she quitted the hotel the day after her arrival, and lord Llandaff never dined with her at Venice.
On her royal highness's return from Venice she went almost immediately to reside at the Villa Villani, and here Mr. Burrell finally took his leave of her, when she was left, with the exception of Hownam, surrounded by nothing but her servants and the relations of her courier. It was there, we are informed by this lieutenant in the navy, that her royal highness spent her evenings, indulging in what he calls les petits jeux, † which he explains to be blind-man's buff, &c.; and in this amusement Bergami, his family, and the servants, daily participated.
Before Mr. Burrell's departure Bergami appears never to have dined with her royal highness, but soon afterwards she, made an excursion to Mount St. Gothard, on which occasion Hownam informs you, that Bergami dined at table with her royal highness at Bellenzona, at Lugano, and also at the Devil's Bridge, in his courier's dress.‡ From the same authority we learn, that, soon after this journey, they went to the Villa d'Este, where Bergami began regularly to sit at her royal highness's table, which is, indeed, confirmed by lord Guilford, who, on his visit to the Villa d'Este, first saw her royal highness with Bergami alone in a canoe on the lake of Como, and afterwards dined with her there and at Milan, on both of which occasions this courier sat next to her royal highness at table. §
From Hownam we farther learn, that, about this time, her royal highness began to indulge in theatrical amusements. He, indeed, recollects only one exhibition of* See p. 421 of the present Volume.† Ibid. p. 517.‡Ibid. p. 514.§ Ibid. p. 310.1485 this nature, which he at first states to have taken place on St. Bartholomew's day, an opinion he most carefully recalls, when it is suggested to him by a question, that that was probably kept in honour of Bergami.* He perfectly well recollects that Louis Bergami played the part of Harlequin, but he does not recollect that her royal highness played Columbine, though he states her to have exhibited in a little farce, which he describes as being the history of a man who wanted to sell an automaton that could be wound up to do any thing; stating the humour of the piece to consist in the person who bought this figure finding out that it was a woman; and that her royal highness exhibited herself in this character before two hundred people collected from the vicinity. His memory is not distinct concerning the part which she performed with Bergami, but he recollects that he appeared in the character of a sort of fiddler.†
Let us here, my lords, pause for a moment, and reflect that this must have happened, according to Hownam's evidence, in the month of August or September 1815, within ten months of this man's entering at Milan into the service of her royal highness the princess of Wales, to go to Naples as courier, during which period, we have to account for the early favour which, the day after his arrival there, pointed him out as the proper guardian to occupy the apartment immediately in the vicinity of her bed-room—for his sudden elevation from being a temporary courier, to the situation of valet-de-chambre, and afterwards to that of page,—for his services being dispensed with, even in waiting at table after he quitted Genoa,—for her royal highness's increasing familiarity with him, from the hour he arrived at Naples, till the moment, in his courier's dress, he sat down at dinner with her at Bellenzona, marked by the secrecy of the arrangements which surrounded her with the different members of his family; by his child's being taught to lisp mamma, when it addressed her; and by his mother's passing by the familiar appellation of Nonna; ‡ her royal highness's familiarity with him, and connexion with them, gradually increasing as her English attendants dropped off: till it appears, soon after Mr. Burrell's retreat, to have gone to the utmost possible extent; for we then find* See p. 520 of the present Volume.† Ibid. p. 529.‡ Ibid. p. 517.1486 her daily engaged in amusing herself with blind-man's.buff with this menial servant's family,—sitting at table with him even whilst he still retained his courier's dress,—figuring as an automaton before a public audience of the surrounding peasantry,—whilst his brother performed the part of Harlequin, and himself a sort of fiddler;—and ultimately adopting him as her sole and constant companion, going arm in arm with him in her walks, sailing on the lake attended only by him in a canoe; and sitting, as lord Guilford informs you, side by side with him at dinner.
In this state of things her royal highness must have left the Villa d'Este on her intended excursion into Greece, early in the month of November 1815; for captain Briggs states, that she embarked at Genoa in the course of that month, and it does not appear to me inconsistent with the plan of confining myself to the evidence brought in defence, to rely on his testimony; for your lordships must well recollect, that her majesty's counsel, in his opening speech, loudly proclaimed that captain Pechell and captain Briggs were her majesty's witnesses.
Regarding him, therefore, in this point of view, I must call your lordships' attention to the fact, that this officer informs you, that he had prepared a cabin for countess Oldi and her royal highness's female servants, immediately adjoining her apartment, which was the arrangement in the Clorinde betwixt Civita Vecchia and Genoa, six months before, her maid being then, according to lady Charlotte Lindsay, the only person who slept in the same division of the ship. But this arrangement did not now appear satisfactory to her royal highness; she gave up to the countess Oldi a part of her own apartment, and placed Bergami in countess Oldi's room, next to that in which she herself slept; and as this apartment had only an entrance through another room, she ordered a door to be made into the dining-room, which brought the entrance to it immediately contiguous to that of her own apartment.
My lords; I do not state this circumstance with an intention of inferring that any act of criminality took place on board the Leviathan, but as justifying the conclusion, that there raust have been some reason for her royal highness's uniformly wishing Bergami's apartment to be so closely connected with her own, other than that pretended doubt concerning her personal se- 1487 curity; for on board a British ship of war no such doubt could exist. With the exception of her own family, there was no foreigner there, and her royal highness knows too well the character of British seamen, to have any distrust of them.
From captain Briggs we learn, that Bergami dined daily with her, when on board the Leviathan; that he did not consider it uncommon to see Bergami and her royal highness walking arm in arm together; that in society the greatest familiarity prevailed betwixt this courier and, her royal highness; and that when she was about to go into the Clorinde, he had conveyed a message from captain Pechell, stating that he wished to accommodate her royal highness at his table, provided she did not insist on bringing Bergami there; but captain Pechell (in my opinion, in a mannar highly becoming a British officer) desired him to submit to her royal highness, that, as a captain in his majesty's service, he could not sit down at table with a man, whom all his seamen had seen on board his ship as a servant a very short time before.*
Captain Briggs, too, avowed the same opinion, for your lordships will recollect, that he stated himself as having informed her royal highness, that if Bergami had been in the same situation on board the Leviathan, he could not have admitted him to his table; you must almost remember, that, in the course of this conversation, he remarked, that it would be easy to send Bergami's dinner into his own cabin, and that he left her royal highness with an impression that this arrangement would be adopted,†
In this speculation, however, captain Briggs appears to have been mistaken, for it turned out that the courier's presence could not be dispensed with; that her royal highness could not be induced, even for a few days, to dine without the society of this man, who had, six months before, waited on her and captain Pechell at dinner; for she declined seeing captain Pechell, sending Mr. Hownam to inform him, that she could not accede to his request, and would, therefore, provide for her own table.‡
On board the Clorinde, however, captain Pechell tells you, that her royal highness did not remain for more than four* See Vol. 2, p. 952.† Ibid. p. 957.‡ Ibid. p. 950.1488 days, and she appears ultimately to have quitted Sicily in a polacre she had hired, in contemplation of her journey to Jerusalem.
It is not my intention, at present, to say any thing to your lordships concerning what happened at Catania, for the evidence which disclosed what took place there, as well as at Aum, is not to be collected from the testimony of any witness called on the part of her royal highness. Consistently, therefore, with the plan I am pursuing, I must proceed to call your lordships' attention to the circumstances detailed to you by the evidence to have happened on board the polacre.
Allow me, however, before quitting Sicily, to observe, that her royal highness does not seem to have been of sir William Gell's opinion, that Bergami's manners sufficiently denoted him to be a gentleman; and by the way, I must say, that the reasons on which he founded this opinion were not very convincing; for your lordships will recollect, that he states it as arising from Bergami's disinclination to sit down in his presence, and the desire he showed of carrying the candles before him, circumstances from which I should have drawn a very opposite conclusion; for, I confess, I should have regarded this conduct as smelling of the shop, thinking it as clearly denoted the menial servant, as Mr. Lenitive's phraseology betrayed the apothecary, when in making love, in the character of a fine gentleman, he declared to his mistress, that he felt such a fever of love, "he verily believed it could not be dispelled, even by sixteen grains of James's powder."
Be this as it may, it is, however, clear, her royal highness thought that something more than his manners was necessary to obliterate the impression of his former situation; accordingly, before leaving Sicily, the order of Malta, which is there sold by a person who falsely pretends to have the right of conferring it, was obtained for him, and he was created a baron, by the title of Baron de la Franchina; and whilst on the subject of his decorations, to prevent future interruption, let me also add, that, at Jerusalem, he was made a knight of the order of St. Sepulchre, and in the polacre, on their return home, grand master of the order of St. Caroline.
It was at Augusta that her royal highness went on board the polacre; and here, my lords, I must confess to you, I cannot subscribe to the sentiment pronounced 1489 by the learned counsel whoso ably summed up the defence. I cannot think with him, after all that had taken place from her first acquaintance with Bergami, that her royal highness can be said to have entered that polacre in a state of purity that could not be suspected: No, my lords, I must, on the contrary, feel that her royal highness went on board that ship, under circumstances pregnant with suspicion to an unexampled degree.
Do, my lords, for one moment reflect on the history of the preceding fourteen months. You have seen her royal highness arrive at Milan with an establishment of English attendants, of a rank and character suited to the situations their held;—you have seen her there retain in her service a courier for forty Louis a year;—and the witnesses in her royal highness's defence have established, that this man, whose appearance lord Llandaff described as sufficiently impressive, made a progress unparalleled in rapidity, in her royal highness's favour and confidence, till he was not only introduced to her table, but became her sole companion and confident, necessary to her to a degree, that she kept her own table on board the Clorinde, rather than renounce, for a few days, the pleasure she derived from his society. They, too, have proved, that, whilst her English attendants gradually dropped off, her royal highness was induced to surround herself, under circumstances of concealment, in themselves most suspicious, with the relatives of this menial servant, so that, with the exception of two lieutenants of the navy, she literally had no other society, when she embarked, but the relations of this courier.
But this is not all. It cannot escape your lordships' memory, that the witnesses for the defence have established, that her royal highness had not passed these fourteen months before she embarked in the polacre, without her attention being called in the most marked manner to the inferences that must be drawn from the conduct she was pursuing. You cannot have forgot the admonition Mr. Craven at Naples gave her for walking in the garden, as he says, with this man behind her, who was now daily sitting by her side at table;—the prayers and entreaties with which Mr. Hownam stated to captain Briggs, that, with tears in his eyes, he bad implored her not to admit the courier to her table;** See p. 1022 of the present Volume.1490 which, whether true or false, I will subsequently show you, ought to have nearly the same effect upon your minds;—and I am sure you will agree with me in thinking, that the declaration of captain Briggs, and the conduct of captain Pechell, in refusing to sit down at table with Bergami, formed in themselves remonstrances such as must have called to her royal highness's mind, in the strongest and most emphatic manner, the danger of the path she was pursuing. Besides, her royal highness could not have forgot that she had, in this country, by the advice of my noble friends behind me, been admonished by his late majesty, with respect to her past, as well as with regard to her future, conduct;—and Mr. Craven's admonition to remove Austin, a boy of thirteen, from her bedroom, whom she had educated from a child, must have put her on her guard concerning the conclusions that would be drawn from Bergami's sleeping apartment being regularly in the vicinity of hers, and from at last sleeping under the same tent with him for five weeks together, to a degree, that nothing but the most impassioned infatuation can account for the scene to which I am about to call your attention.
From the plan given in evidence at your lordships' bar, of the interior of the polacre, your lordships must be perfectly familiar with the arrangement of the apartments, as settled by her royal highness previous to her departure from Augusta. You know the relative situation of Bergami's apartment, and that of her royal highness. You are aware that Hownam's account accurately agrees with the plan which was given in to the House by the mate of the polacre; and that he tells you, that, after their departure from Tunis, Bergami's bed was removed to the dining-cabin, immediately contiguous to the door of her royal highness's apartment, not to make way for the doctor who was taken on board at Tunis, as my noble and learned friend, whose absence we so much regret, stated to you (for Mr. Hownam expressly says, that this physician did not occupy Bergami's apartment),* but in compliance with that desire of approximation on the part of her royal highness and Bergami, which manifests itself throughout the whole of the evidence.
It is not, however, my intention to dwell on what took place on board this* See p. 533 of the present Volume.1491 polacre, previous to her royal highness's departure from Jaffa after her return from Jerusalem; on the contrary, I mean now to call your lordships' attention exclusively to the scene exhibited during the five weeks her royal highness passed on the voyage betwixt Jaffa and Capo d'Anza; and here, my lords, adhering to the plan I have chalked out, I must confine myself to the evidence of lieutenants Flinn and Hownam, for they are the only witnesses called on the part of her majesty who speak to what passed on that occasion. It is impossible, however, after what you have heard in the course of this proceeding, to argue upon their evidence without making a few remarks on the, credit due to them.
It would, indeed, be easy for me to state to your lordships how much, in many trivial things, these two gentlemen have contradicted each other; but that constitutes but a trifling objection to their credibility, in comparison of what arises out of the testimony given by both the one and the other, in the course of their cross-examination. My lords, it must be in your lordships' recollection how her majesty's solicitor-general, with that display of eloquence which he possesses in such an eminent degree, described to your lordships the talent of eliciting the truth out of an unwilling witness as one of the most splendid and beneficial exertions of an advocate's powers, whilst he seemed rather to deprecate and treat with contempt the faculty of exposing the falsehood of a witness by detecting him in notorious contradictions. My lords, I cannot go along with that learned gentleman in his reasoning on this subject, or accede to his conclusions; for to me both exertions appear equally laudable, as being equally necessary to elicit the truth;—to the one or to the other it is the duty of a counsel to resort, as the particular case points out which is the appropriate means. And there certainly never were two witnesses that afforded greater opportunities of exhibiting both of these talents; for it would be difficult to say whether the one line of conduct was more distinctly called for by the rash and impetuous disregard for truth which Flinn exhibited, or the other by the studied reserve, artful concealment, and prevarication, which distinguished the character of Hownam's evidence.
Of the talent which his majesty's solicitor-general displaced in the cross-ex- 1492 amination of Flinn, I need not remind your lordships; that is best established by the complete success of the exertion; for I really believe he left every man in this House convinced, that credit was not due to one word of that gentleman's evidence, after what passed at your lordships' bar.
But, my lords, to Mr. Hownam, as a witness for the defence, there appears to me to be as little credit due; he may, indeed, have been prompted by feelings of gratitude, which every roan must respect, whilst they must lament the situation into which they have brought him; for whilst his desire of concealment, his alacrity at evasion, and the difficulty of extorting any thing like the truth from him, throws, in an eminent degree, doubt upon every thing he said in favour of the party who brought him to your lordships' bar; it gives additional weight to the facts which have been squeezed out of him, obviously against his inclination.
My lords; that I am giving no exaggerated description of this gentleman's evidence, I could illustrate by reference to many passages, if it were not for the dread of occupying too much of your lordships' time. Let me, however, refer you to his first statement, that the theatrical amusements were given at the Villa d'Este, on St. Bartholomew's day, and to the mode in which he afterwards disclaims the fact, as a specimen of what sort of witness he was;* but I need not occupy your time by selecting instances from other parts of his evidence; his statement on the subject now more particularly under consideration, of what passed in, the polacre betwixt Jaffa and Capo d'Anza, must sufficiently establish the justice of my observations on his evidence.
Your lordships must recollect, whilst he admitted that her royal highness had slept under the tent on deck during the five weeks they were at sea on this voyage, the difficulty there was of extracting from him a fair admission that Bergami had slept there also; the manner in which he told you he did not know it,—the manner in which he was brought to say he did believe it;† and you cannot have forgot,* See page 519 of the present Volume.‡ Ibid. p. 523.—In the course of the debate, Hownam's unwillingness to state his belief, that Bergami slept under the tent, was, to a certain extent, denied; reference is, however, here given to the1493 that, notwithstanding all this, when he is at last brought fully to acknowledge that he does believe it, the reasons he assigns for his belief conclusively show, that from the first he never could have doubted it.
The first reason he assigns is, that Bergami told him, after the squall, that the sea had broken into the tent, from which he concluded, very naturally, that Bergami had been there at the time.* Now I only refer to this, to show his backwardness and bad faith, in, for a moment, hesitating about declaring his belief; for I am perfectly aware, that what Bergami said to Hownam, can be no evidence against her royal highness.
This is, however, not the case with regard to the second reason he details to you; for whilst it forms a ground on which, from the beginning, he might have asserted, not only his belief, but his knowledge of the fact, it furnishes also grounds upon which your lordships must judicially believe, that her royal highness passed the night under the tent with Bergami; for he tells you, that on the occasion of the squall, he saw Bergami handing her royal highness down the little ladder, or stair, and that, by that means, she came from under the tent into the cabin in the middle of the night with Bergami, to whom he and Flinn say they could not assign any place of repose, if he did not sleep under the tent, though he knew where he slept previous to their arrival at Jaffa, and where every other person slept during the whole of the voyage.
It is true, that he says that Flinn accompanied them; but, my lords, I confesspassages founded upon; besides, the argument used to show that he was not unwilling to state his belief as to this fact, in my mind, was the strongest thing of all others to prove that he was most unwilling. It was said, that even the counsel, in his examination in chief, had shown their desire, without effect, to induce him to announce his belief on this subject; now, undoubtedly, that may be urged, with justice, as proving that the counsel for her majesty were not unwilling to hear him state his belief. Yet, in so much as it proves his resistance, even to the wishes of those who called him, it seems, of all others, the statement that tends, in the strongest manner, to establish the unwillingness of the witness to disclose his belief.* See p. 534 of the present Volume.1494 I am a little puzzled to form a belief whether this is true or false; for whilst Mr. Hownam distinctly tells you so,* Mr. Flinn as distinctly states that he never quitted the deck, being engaged in giving orders respecting the management of the vessel.†
Betwixt the comparative veracity of these two gentlemen, thus pitted in opposition to each other, it is indeed a difficult task to decide; I confess, however, I am rather inclined to give credit to Flinn; first, because it is more probable that a man should be accurate in recollecting his own conduct, than that his neighbour should retain an accurate impression of it. Secondly, because it is much more probable that Flinn, who is stated to have had the charge of the vessel, should, in this moment of danger, be occupied above, than in attending on her royal highness, who, according to Hownam himself, was handed down by Bergami. And, lastly, because there is a little appearance in the way he gives his evidence, that Hownam fancied, that throwing in a third person, as coming down along with him, might, in a degree, destroy the force of the fact, that Bergami came from under the tent alone with her royal highness, though I am sure that, in your lordships minds, it could make no difference; for it is in evidence, that Flinn slept in a hammock slung on the outside of the tent, and if he had descended the ladder with them, it could have only proved that he had joined her royal highness and Bergami in the tent, previous to their going down.
Mr. Hownam, however, had no sooner admitted his belief that Bergami had slept under the tent as well as her royal highness, than he immediately betakes himself to a statement of the necessity of somebody sleeping near her royal highness on deck; and in this statement he for a length of time persevered. The rolling of the ship, the crew, who were people of different countries, successively formed the grounds of this necessity; and your lordships must recollect, that when he was asked whether some other person might not have been occasionally employed to protect her royal highness, he then stated, that there were only himself and Flinn capable of it; for that count Schiavini, a man who had never been at sea be-* See p. 522 of the present Volume.† Ibid, p. 456.1495 fore, was totally incompetent; forgetting that this was actually the case with Bergami, for whose being under the tent with her royal highness, he was endeavouring to frame an apology.
At last, however, he confesses, that there was no suspicion entertained of the crew, nor any part of it, and that he knew of no immediate or personal danger. To display the real character of this man's evidence, your lordships really must submit to my reading that part of his examination in which he ultimately discloses to the House, that he himself never saw any necessity for any person sleeping under the tent with her royal highness; and that he only did not think otherwise, because, from its taking place, he supposed her royal highness thought so:
"You have before said, that you never represented to her royal highness the princess of Wales, that it was necessary for a male domestic to sleep near her upon the deck; you consequently could not be the recommender of the measure. When you considered it necessary for a male domestic to sleep near the princess of Wales in the tent, did you consider that it was necessary for a male domestic to sleep within the tent?" "I never represented the one nor the other."—"You have said, that you thought it necessary for a male domestic to sleep near her royal highness; did you think it necessary that a male domestic should sleep within the tent?" "I never thought of the thing at at all; and probably, had there been nobody under the tent, I should have taken as little notice of it, as I did when there was somebody under the tent; when I beard it, I supposed it was necessary; I thought it was necessary within myself."—"Was it for the princess's safety, you thought it necessary a male domestic should sleep near her?" "Her royal highness thought so, and I did not think otherwise."
Thus beat out of the ground of the necessity of Bergami's sleeping under the tent, which, indeed, was from the first untenable, because, even if there had been danger, and the crew suspected, instead of there being no danger, and the crew unsuspected, yet that could not have accounted for Bergami's being uniformly the person, or for there not being a female attendant as well as him under the tent. Hownam next resorts to the ground of there being no mystery; and your lordships must recollect, with what 1496 eagerness the counsel at the bar at once exclaimed, "That's our case;" that it necessarily became their case is most true, but that it should be proclaimed to be such, can only be considered as an act proceeding from despair.—What?—No mystery, my lords!!! why, if there was indeed no mystery, and this could be clearly established to your lordships satisfaction, there never appeared before a court of justice two more perjured wretches than Flinn and Hownam. What?—No mystery about Bergami's sleeping under the tent, and yet Mr. Flinn, who slept for nearly five weeks in a hammock slung within less than five feet of it, does not know the fact, and even swears that he does not believe it? [Here some one from behind stated, that Flinn had not said there was no mystery.]
My lords; I am obliged to the noble lord for the interruption; I certainly did not mean to state that Flinn had so sworn; it is not my opinion I did state him to have done so, but surely the evidence of a witness may be arraigned by showing your lordships, as in this case, that a fact is sworn by another witness, which, if true must falsify the whole tenor of his evidence;—and my argument was, that if it was true, which Mr. Hownam had sworn, that there was no mystery, your lordships, who have in your recollection that Flinn, from the beginning to the end of his testimony, was occupied in denying either his knowledge or belief of the fact, must, on that account alone, refuse all credit to his evidence.
On the other hand, if there was really no mystery, it is equally fatal to the credit of Mr. Hownam; for I need not remind your lordships, that his evidence throughout, not only discloses that he conceived there was mystery, but that he himself, even before your lordships at the bar of this House, was to the last doing every thing in his power to involve it in mystery.
Let us then, my lords, see how this case stands, confining ourselves solely to the evidence which has been brought before you in the course of her royal highness's defence. It has been proved to you, that Bergami was retained as a courier at forty louis a year. You have seen that his rapid elevation to be the constant and sole attendant of her royal highness, and to live with her in the greatest outward appearance of familiarity was marked by circumstances the most suspicious;— 1497 that, at an early period of the connexion, there must have been secret communications betwixt them, which led to the introduction of his sister, in a manner calculated to lull the suspicions of her royal highness's attendants, and to facilitate their intercourse;—you have seen him placed at her royal highness's table, habitually sitting by her side, his presence apparently so necessary to her, that, notwithstanding the remonstrance of captain Pechell and captain Briggs, she could not admit of his absence during the four lays she passed in the Clorinde;—you have seen, that as far as vicinity of apartments affords opportunities, from whence inferences are to be drawn, that her royal highness uniformly placed him as near to her as possible;—you have seen him elevated to the title of a baron, and decorated with the orders of Malta, of St. Sepulchre, and that of Grand Master of the order of St. Caroline. Hownam has given you a list often of Iris family who were employed in her service, many of them ultimately introduced to the table with her royal highness and her favourite;—andyou have heard, that the only person connected with him, who never was admitted to appear before her royal highness was his wile.
From these facts, I desire to know what conclusion any man can draw, when he finds that Bergami slept under the tent with her royal highness, by Hownam's informing you, that he saw him come out of it with her in the middle of the night? To what motive can you fairly ascribe this conduct, but to that which sanctions the inference of guilt? Is there, in the evidence, any account of singular service performed, which can authorize any man's accounting for this rapid display of favour, friendship, and familiarity, on the ground, either of his extraordinary merits, or gratitude for service performed?
Why, my lords, if, instead of that scene, where he is supposed to have distinguished himself at Genoa, when the house is said to have been attacked by robbers, on which occasion, Hownam, describes him as coming, with a brace of candles and a sword at the latter end of the fray, for the princess and the family were by that time in the drawing room*—it had been clearly proved that he had saved her royal highness's life; would that have accounted in a satisfactory manner for all the circum-* See p. 497 of the present Volume.1498 stances that have been disclosed to you in the course of this evidence.
Acting on that principle, can any person account for the concealment of the fact, that the countess Oldi was his sister at the time she was introduced into the family,—or for his mother and his brother's not being introduced to her table at the moment the sense of his eminent services had made her royal highness resolve to show him distinguished favour, but gradually, one by one, just as the man, by secluding her from all other company, got power and ascendancy over a mind debased by the society into which her infatuated partiality had brought her.
But, above all, I ask, to what circumstance can you attribute his wife's being the only person of his family excluded from her royal highness's society, if gratitude for services had been the sole cause of his elevation; more particularly when you are informed by Pomi and Vassali, that, so far from being on bad terms with his wife, the moment he returned to Italy, after her royal highness's leaving it, she appeared at the Barona?*
Allow me farther to call to your lordships recollection, that I have not yet stated to you the full extent of the benefits which the evidence for the defence shows to have been conferred on him by her royal highness's favour;—neither have I yet pointed out the degree of degradation, to which, in the course of this connexion, she was, according to the evidence of her own witnesses, subjected—for, though I remember the learned counsel at the bar disputed its being in evidence, you will find that Fillipo Pomi distinctly proves, that the Barona, consisting of a considerable estate, in the neighbourhood of Milan, was purchased early in 1816† by that man, who, in the month of November 1814, was happy to acquire a courier's place, receiving only forty Louis a-year; and I am sure you must recollect the scandalous debasement, in point of society, to which her royal highness was reduced, as appears from the evidence of this witness, as well as that of Vassali on the subject of the balls at the Barona.
It is true, Pomi informs you, that, on* See pp. 695, and 952 of the present Volume.† Ibid. p. 689.1499 the occasion of these balls, the society that frequented the Villa Bergami were gentlefolks,—but who were these gentlefolks? The daughters of the farmer at the Barona—the wife and sister of one of the innkeepers of the village, the latter of whom he describes to be a girl well brought up, and the flower of gentlefolks—the landlady of the St. Christopher——and another girl, in calling whom a respectable woman, saying, "that she was not a prostitute,"* he speaks volumes in relation to the society which frequented these balls, with whom her royal highness occasionally joined in the dance.
By Vassali, too, this is all confirmed; for, though he certainly says that these balls were attended by a physician of the name of Tomasia, by Cavaletti, an ex-prefect—by Mocatti, the village apothecary; and that the wives of the two former were there as well as the distinguished female characters Fillipo Pomi introduced to you; yet he informed your lordships, that he did not see their daughters, and that his own wife never had been present.
Now, my lords, reflect on all these facts, which are stated exclusively on the authority of the witnesses for the defence, forming a chain of circumstances, relative to the conduct of her royal highness, from the hour Bergami was introduced as a menial servant into her house, all leading to the conclusion that a libidinous intercourse existed—facts which can be rationally accounted for on no other principle. Recollect, also, the received maxim of law, that, in cases of adultery, it is not necessary to prove a direct act; that the facts being judicially established, the rational and legal conclusion is the same which must be deduced by inference such as common sense justifies, from the facts judicially proved,—and then tell me, with the knowledge of the fact that Mr. Hownam has disclosed to you, of their sleeping under the same tent, whether it would not be a libel on the principle on which justice has been heretofore administered in cases of adultery, both in the courts below and in this House, to say, that a verdict of not guilty could possibly be justified,—or whether I, as an honest man, if forced to judge of the case exclusively on this evidence, could pronounce any other verdict than that of guilty?* See p. 693 of the present Volume.1500 What then, my lords, becomes of Restelli's conspiracy? What of that plot of which you have heard so much, of which Ompteda has been represented to be the contriver? For, unless it is supposed that the ghost of Ompteda now animates the frame of my friend, Mr. Vizard, and has induced him to retain the learned gentlemen who have so distinguished themselves at your bar, it is absurd to introduce his name, or to say that he can have any thing to do with the case. For it is clear that, in this view of the case, which infers guilt exclusively from the evidence for the defence, your lordships can believe in no conspiracy, unless you are prepared to give credit to the absurdity, that the authors and conductors of this defence, her majesty's learned counsel, who have displayed at your bar a degree of zeal unparalleled, and of talent almost unprecedented, are the conspirators.
Yet I must repeat, that if forced to decide on the evidence produced by them in defence of her majesty, excluding the testimony of all the witnesses that have been brought before this House by the learned gentlemen who have been called to your bar to support the allegations of this bill, it would be impossible for me, consistently with a due regard for the uniform practice of this House, and of the courts below, and for the principles on which criminality in cases of adultery has been inferred, not to declare that guilt has been proved.
Fortunately, however, my mind is relieved from the necessity of coming to this conclusion, solely on the ground of the evidence brought before you on the part of her royal highness; because, when I turn to the evidence for the prosecution, throwing out of the question every thing against which any exception can be taken, or to which any objection can be urged, I find confirmation of Hownam's evidence, and of the inference I have drawn, from the testimony in her royal highness's defence, more abundant than, perhaps, there ever was in any other case where a direct act of criminality was not proved, which, as your lordships know, does not happen in one case out of a hundred.
For Hownam's evidence in regard to her royal highness and Bergami's sleeping under the tent is confirmed by no less than five witnesses: three of them, the captain, Demont, and Majoochi, 1501 swearing directly to the fact; and two of them, the mate of the polacre and the cook, stating circumstances that must convince one and all of your lordships of what took place; for you must well recollect, that the former of these tells you, that, when the tent was opened, he saw Bergami lying on the bed, and the princess on the sofa; and that he states, that "What he morally knew was, that they told him they could not sleep below on account of the noise and smell made by the horses which were taken on board at Jaffa."
I am aware, however, my lords, that much has been urged at your bar against the credit of Demont and Majoochi; and my noble and learned friend, whose absence I regret, even went the length in what he addressed to you, to say that these witnesses were given up as incredible by my learned friend on the woolsack. I confess I should have been surprised if that had been the case; because I would have thought it very inconsistent with that accuracy which distinguishes my noble and learned friend on the woolsack with regard to every thing in the nature of judicial proceedings; it gave me pleasure, therefore, to hear his explanation, which accurately corresponds with my own ideas on the subject.
But I am ready to admit, in the case of Demont, that her credit is, to a certain degree, injured by the Letters to her sister produced in evidence, and the explanation of it, as a double entendre, given at your lordships' bar. I am ready even to admit that her credit is injured to a degree that I would not find her royal highness guilty in any case which depended on her evidence alone; but, my lords, she cannot be considered as an incompetent witness; and I conceive that there is not a clearer distinction in law, than that betwixt an incompetent witness and one that is in a degree discredited, I talk with that diffidence which becomes me on subjects of this nature; but I believe the rule of law, even in the case of an accomplice, who is a witness of a description much more discredited than Demont, is, that credit is due to him when his testimony is confirmed by a credible witness. Nay, that, if the general story is confirmed by a credible witness, he is held to deserve credit with regard to the minor details, even though, with respect to these, he may not be di- 1502 rectly confirmed. I believe also, that if a witness, in a certain degree discredited; specially states that the facts he relates passed in the presence of others who may be called to contradict him, if such testimony, being in the power of the opposite party, is not brought forward, it of itself gives complete credit to his evidence.
I confess to your lordships, however, that there are passages in the letters of Demont, produced at your bar for the purpose of discrediting her, which have, in my mind, a very opposite effect. If, for example, your lordships will turn to the letter she wrote to the Queen from Rimini, you will find that she thanks her royal highness and the baron for their kindness in having sent a person to accompany her. Now, I ask any one of your lordships if such a passage could have crept into that letter unless she had written under the impression that the connection existed between her royal highness and Bergami, which her evidence goes to establish? Do your lordships believe, that it could have entered into the mind of any one who had received an act of kindness on the part of her late majesty, to thank her majesty and the earl of Morton for the favour she had received? Yet, if you suppose no improper connection, Bergami stood in the same relation to her royal highness with that of the noble lord opposite to me, to her late-majesty.
I must further confess to you, that the evidence of Demont was, in my opinion, rather confirmed than dicredited by the testimony of that pert milliner of Morge, brought to your lordships' bar to contradict her, nearly at the conclusion of the case, who told you, that, upon putting questions to Demont, in the presence of two Swiss ladies, who themselves found fault with the freedom of her interrogatories; Demont put herself into a passion, and said, in reply to 'her observation, "That the princess of Wales was a femme libertine et galante;" that it was nothing but calumny invented by her ehe—mies, *—an answer which, from Demont in a passion, appears to me to be perfectly consistent with what she stated at your lordships' bar, that she had often had questions put to her in private conversation, but that she had always avoided saying what took place in the house.†See p. 984 of the present Volume.† See Vol. 2, p. 1203.1503 My lords; I am also fully aware of the prejudice which has been artfully created against Majoochi as a witness; I know the popular use that has been made of the Italian phrase "Non mi recordo;" but I think I could undertake to show you, notwithstanding his examination was, at last, artfully conducted for producing a repetition of that phrase; that if some of the English witnesses had spoken in Italian, it would have occurred as often, in a given number of pages in their testimony, as it does in his. I remember, too, the early impression against him produced by the manner in which her majesty's counsel declared that it was necessary to her case, that he should be immediately brought to your bar for farther cross-examination,—a necessity which we now know did in no respect exist; and you cannot have forgot, when he came to the bar, the pointed manner in which he was asked concerning conversations with a gentleman of the name of Hyatt, with a Mrs. Hughes, with a banker's clerk, and with a Mr. Johnston, in a stage-coach, which, I am sure, left the same impression on your minds that it did on mine, and that of the public at large, that these individuals would be called on oath to contradict him.
But has this been the case? Your lordships know, that no such attempt has been made. It is, however, certain that such a contradiction appeared necessary, even to her majesty's counsel, to invalidate Majoochi's testimony; for you have witnessed the anxiety with which it was subsequently attempted in the examination of Carrington, a witness who has, indeed, sworn to facts directly contradictory to Majoochi's testimony, but who has also sworn to facts completely contradicted by sir John Beresford: if you give credit to Carrington's testimony, therefore, your lordships are reduced to the necessity of disbelieving sir John Beresford as well as Majoochi; and I believe there is no man in this House entertains the smallest doubt of the truth of what sir John Beresford stated.
In truth, however, my lords, the testimony of Carrington, relative to the point in which he contradicts Majoochi, is in itself incredible, if you believe what his master, sir William Gell, states in his evidence; for your lordships recollect, that Carrington states this conversation about Ompteda, which Majoochi denies to have taken place, to have passed at Ruffinelli 1504 in the month of July; he doubts whether it was in the year 1817 or 1818. Now, if it was in the latter, it must be false, because Majoochi quitted her royal highness's service in November 1817; but whether it was in the one or the other of these years, it could not take place in the month of July, for both sir William Gell and his servant state, that they passed three days at Ruffinelli, returned to Rome, and then went to the Villa Brandi, sir William saying, that he staid with her there three months, and that these were the months of June, July, and August, so that in the month of July they could not be at Ruffinelli.
It is true I regard Majoochi as a witness in a degree discredited as well as Demont; he has been guilty of errors of recollection, first, in stating that Bergami dined with her royal highness at Genoa, and continued to dine with her ever afterwards. And, secondly, he is contradicted by Dr. Holland, in his assertion that her royal highness was present at Naples when Bergami's leg was first dressed; but so far from being an incompetent witness, these are errors which involve but a very slight degree of impeachment of his credit. Errors of recollection, indeed, may be of a nature rather to strengthen than impeach the credit of a witness, as far as his credit depends on a belief of the absence of all concert and design to deceive; and it must be evident to your lordships, that if he had come a corrupt and tutored witness to your lordships' bar, he never would have stated Genoa as the place where Bergami first dined with her royal highness. I avow, however, my lords, that such is my desire of certainty, so strong the inclination of my mind to decide nothing on evidence in the least degree doubtful, that I could not be brought to infer guilt from any thing stated by him in which he was not confirmed, or where it was not apparent that witnesses were withheld who had it in their power to contradict him.
To the testimony of the captain of the polacre and his mate, I have heard no ground of objection, except what arises out of the sums they are to receive for coming here, the former of whom bargained to receive 1,000 dollars a month, and the latter 800. These, I know, have been stated as sums annually amounting to 12,000 and 9,600 dollars. Taking it in this point of view, it has been insinuated that it was far more than could be de- 1505 manded for compensation; and inferences have been drawn disreputable to their credit. But your lordships are aware that there was little prospect of its continuing above two or three months at most, and you must recollect, that the captain of the polacre, who is now a merchant at Naples, states to you the losses he has already sustained in the conduct of his trade; and you know, that, as the jurisdiction of our courts does not extend to foreign countries, a party is always at the mercy of a witness, in bargaining concerning the indemnity he is to receive for his loss of time in coming to this country; and I must say, this objection comes with had grace from those who have brought the witnesses summoned on the part of her royal highness to your lordships' bar; for it has been proved, that the mason Giarolini, on whose evidence all that attack upon Restelli mainly rests, confesses, that he had got first a bond for 2,100 francs; secondly, that his son was to have five or six francs a day; thirdly, that he was to have a golden Napoleon a day; fourthly, that his son was to be taken as an apprentice by her royal highness's architect; and out of his evidence there farther arise strong presumptions that he secured to himself payment of the last instalment of what her royal highness owed him with interest thereon.
Whilst, therefore, my lords, I can discover no ground upon which the character of the captain or the mate can be fairly impeached, and can only regard the testimony of Demont and Majoochi, as in a degree discredited, I desire to know how it is possible to doubt of the fact, of her royal highness and Bergami having slept under the tent for five weeks, betwixt Jaffa and Capo d'Anza, when the testimony of Hownam is confirmed by these witnesses, as well as by that of the cook on board the polacre; and when no attempt has been made to disprove it, though your lordships well know, that if it was false, her royal highness's learned counsel could have no difficulty in finding witnesses capable of disproving it; for countess Oldi and Brunette were on board the polacre during the whole voyage, as well as William Austin, Carlino, Camera, Hieronimus, and above all Schiavini, who is the person stated in evidence to have given orders for closing the tent, when her royal highness and Bergami were under it.
But, sleeping in the polacre for five 1506 weeks is not the only important fact as bearing on this case, which has been established by indisputable evidence, brought to your lordships' bar by the prosecutor. I do not dwell on that scene of the statues of Adam and Eve, because I do not wish to occupy your time in showing you that it is not disproved, nay that the plan given in to you by the witness brought to contradict it, confirms the probability of the story you had heard; I do not wish to recall to your recollection, those disgusting scenes of licentious conduct, as stated in the evidence of Restelli and Sacchi; the absence of the former from this country, not only induces me to set aside his testimony, but to make every allowance which reason and common sense can in the least degree justify, with regard to the evidence of others whose testimony could have been affected by his presence, or even by the detection of his perjury. Neither, can I allow myself to found on any thing which has been stated by the latter; for though I think there are great contradictions in the testimony of those who have been called to contradict Sacchi, yet, acting on the principle of allowing nothing to influence my mind, concerning which there exists a doubt, I will not found upon any fact that depends upon his testimony; but I cannot pass over the uniform proximity of the bed-rooms of the princess and Bergami, proved by the arrangement of the apartments at Naples,—at Genoa,—at Milan,—at Venice,—at the Villa Villani,—at the Villa d'Este,—at Messina,—at Sira-cuse—at Catania,—at Augusta,—at Scala Nova,—at Aum,—at the Villa Bergami,—at Turin,—at Carlsruhe, throughout the German dominions,—and at Pesaro;—for in all these various cases, the relative position of their apartments has hardly been disputed, except in the instance of the Casa Boromeo at Milan, in which case, their rooms were stated to have opened into a secret stair-case, which Hownam denies, stating the stair-case to have conducted to the servants' apartments, though he admits he never saw a servant use it.*
Let me next call your lordships' attention to the important and decisive circumstance, that there are no fewer than thirteen witnesses who swear to the fact of having seen this courier embracing and kissing her royal highness. Now discard-* See p. 498 of the present Volume.1507 ing, if you will, out of that number the testimony of Majoochi, of Restelli, of Demont, of Guggiari the boatman, and of Sacchi, there are still eight witnesses unobjected to, who swear to this fact, which generally forms the prelude to, and the proof of a libidinous intercourse.
Your lordships will find it stated by Viucenzo Gargiulo; by Gerolamo Mejani; by Alessandro Finetti; by Dominico Brusa; by Giuseppe Galli; by Luigi Galdini, who states himself to have seen Bergami kissing her royal highness, with one hand round her neck upon her breast, which was uncovered; and by Giuseppe Dell-Orto, who informs you, that he saw Bergami with his hand round her neck, kissing her, in the garden.
My lords; I must desire, also, you will recollect the tender appellations of "my friend," "my heart," my love," which, it is proved, her royal highness used in addressing this man; and adding all these facts to the history of all the suspicious circumstances I have detailed to you, in the progress of his advancement from a courier, to his being exhibited at her table under the title of a baron, as the exclusive confidant and daily companion of her royal highness,—tell me whether it is possible to doubt of the inference I am compelled to draw, when I find him sleeping under the same tent with her royal highness for five weeks; for I am sure there is none of your lordships, who are so ignorant of the grounds on which the presumption of law proceeds, as to suppose that there is any difference betwixt this taking place in a tent and a room. From the testimony of Gargiulo, it, indeed, appears that the hatchway was occasionally shut up, which circumstance, as well as the fact he states, of the light being handed out of the tent by Bergami, ten or twelve minutes after they retired, a fact confirmed by all on board who have been examined, annihilates all possibility of pretending a distinction; but, even taking Hownam's account, which supposes the hatchway to have been left open, I am sure you must agree with me, that in law there is no ground for any distinction, for the presumption of law does not proceed on an assumption, that an act of adultery was committed on any precise night, but on the belief that habit, education, as well as female delicacy, naturally induce a woman to revolt at exposing herself to such a scene, under any circumstances short of that familiarity to which sexual intercourse gives birth.
1508 Hitherto, your lordships must perceive, that I have inferred the guilt, coupled with the presumptions, which this strange history affords, singly from their sleeping under the tent for five weeks in the polacre. But your lordships know, that there are many cases from which the conclusion of guilt has also been drawn by the counsel for the prosecution. In considering all of them, I must fairly confess, that, besides the polacre case, I feel myself compelled to state, that it is impossible for me not to infer guilt from what passed at Catania, and under the tent at Aum, as well as the subsequent night in the journey to Jerusalem at Bagosa; and I should feel it inconsistent with the principle of openly avowing the grounds on which I act, if I did not shortly state to your lordships, the reasons on which I have formed this opinion.
In the first place, however, allow me to observe, that, though I am not inclined to infer guilt from what has been stated as having taken place at Naples, at Genoa, at Turin, at general Pino's, at the Villa d'Este, on the occasion of her royal highness's going out of the pantry, at Monte Falcone, or at Trieste, yet I cannot deny, that all of these cases afford circumstances of strong suspicion, which, if there was any doubt, would tend to corroborate the inferences I am forced to draw in other cases, for, in truth, I reject many of these cases, from the circumstance that there is doubt, rather than because the presumptions from which guilt must be inferred, have been clearly disproved.
In the Naples case, I am not disposed to infer guilt, because the facts to which Demont and Majoochi swear are not confirmed by any other witness, and because, if I were not afraid of occupying your lordships' time, I could show you that the circumstances which they state do not carry along with them a disclosure of any particular person's being present, who could be called to your lordships' bar to contradict them.
On the same grounds, I will not infer guilt from the case of Genoa, more particularly as the facts stated by Demont are not confirmed by those stated by Majoochi, nor those Majoochi states by Demont,—neither of them giving you any details of the circumstances to which the other exclusively speaks. I reject also the case of Turin, because I am not satisfied that Birollo distinctly proves it to 1509 be the princess's room out of which he saw Bergami coming.
With regard to the scene in the pantry, as stated in the evidence of the boatman Guggiari, who declares that he saw Bergami and her royal highness retire into her bed-room, and heard the door locked,* I have no doubt that the facts are such as to authorize the presumption of guilt; but when I feel that there is evidence clear and distinct to guide my mind in other cases, I do not choose to infer it from a case that admits of the least doubt; and your lordships will recollect that Guggiari had declared Lago Maggiore was in the boat when he saw Bergami kiss her royal highness; and that this blind boatman, Lago Maggiore, was brought to prove that he saw nothing of the kind. Indeed, in the state of his eyes, when he was at your lordships bar, it was impossible that he should; but it is true, that on a question put to him with regard to his defect of vision, he very conveniently dated the disease in his eyes as having taken place subsequent to the time he had been in the boat with her royal highness.
Allow me, however, to say, that Lago Maggiore swearing he did not see what Guggiari swore he saw, is no contradiction of Guggiari. My lords, on the occasion of Majoochi coming to your lordships' bar when her majesty exhibited that scene in this House which must long remain impressed on the minds of those who witnessed it, I certainly, sitting near her majesty, saw all that took place, and could now swear to what happened; but there were other noble lords at no great distance from me whose eyes had probably been turned in a different direction, who, immediately on hearing the extraordinary exclamation her majesty uttered, asked me what had taken place; they, of course, must, if examined, swear that they saw nothing, but your lordships could not regard that as a contradiction of the details which I certainly would state on the subject. I am inclined to think, therefore, that there is no reasonable ground for doubting Guggiari's evidence, more particularly as your lordships must recollect he swears that his brother, or John Capella, were present at the time;† neither of whom have been called as witnesses. In that case, there-* See Vol. 2, p. 1264.† See Vol. 2, p. 1266.1510 fore, I do not infer guilt, rather because there are other cases which I deem stronger, and which, unfortunately, so clearly establish guilt.
The case of Trieste I put also out of the question, because undoubtedly I feel that, contradicted as the witness Cuchi is, in relation to the fact of her royal highness having remained there six days, there can be no reliance on his evidence; neither will I infer guilt from the case of Scharnitz, and the case of Carlsruhe, not because I disbelieve the witness Kress, or give any peculiar credit to Vassali;—far otherwise, for I think there is none of your lordships who recollect the evidence of Kress, and the mode in which she gave it at your bar, who must not retain a favourable impression of that woman, and of her conduct throughout; whilst, on the other hand, I must say, that the impression on my mind with regard to Vassali's evidence is of a very different nature. I cannot forget that he had confirmed Kress's evidence, till his examination by a noble lord near me, when, all at once perceiving the consequences of his testimony in confirming Kress, he states, in an answer to one of the last questions put to him, the improbable fact, that the princess having gone in full dress to an early dinner, remained in his presence in the saloon on her return home at seven o'clock without retiring, till she went again to supper at court, from whence she did not return till a late hour.
Your lordships must also recollect the mode in which he declared that Carlo Forti had first been taken into the service as a temporary courier at Loretto, till recollecting, by the aid of a question, that he had stated himself to have been hired at Milan, he all at once made him come from Milan with them as a private individual, though even this does not make his evidence consistent with that of Carlo Forti.
It is not, therefore, from any disposition to disbelieve Kress, or to give credit to Vassali, that I avow it to be impossible for me to infer guilt from the Carlsruhe case; it is because the industry used to get Kress into this country, and the difficulty thrown, in the way of baron d'Ende coming, make me think it right to refuse to listen to what I must conceive to be in some degree ex parte evidence.
On the Catania case, however, I profess not to entertain the least doubt. 1511 Your lordships will recollect, that, on their first arriving there, Bergami appears to have been lodged in an apartment which communicated with her royal highness's, through the drawing-room and a small court; that afterwards he had a temporary illness, such as might make it very inconvenient for him to be exposed; to the air, though not in itself serious; on this occasion a new arrangement of the apartments took place, a bed was put up in the room where the princess and the child Victorine slept for countess Oldi, and Bergami was removed into countess Oldi's room; the relative situation of these apartments then was, that the princess's room was divided from that which Bergami occupied by a room in which Demont and her sister slept, which formed a passage from the one to the other. Demont states to you, that generally speaking she got up before nine, the hour at which the family breakfasted, but having one day slept so late as 10 o'clock, that she saw her royal highness come out of Bergami's room with the pillows on which she always slept, and in the dress she usually wore when she went to bed. She further states, that she heard the little Victorine in the princess's room calling for her mamma, the name which Bergami's daughter habitually gave to the princess, and the countess Oldi trying in vain to soothe her. She also says, that she heard the door of her royal highness's apartment opened another night; that her sister slept in the same room with her; that her sister was up, but she does not recollect distinctly whether she was present when her royal highness came out of Bergami's room with the pillows. Now, my lords, all this remains uncontradicted. It is true, we do not learn with certainty, from the evidence, that Brunette was there, for Demont only swears that she thinks so; but your lordships will recollect, that this difficulty is done away by the learned counsel for her majesty in his opening speech, for he told you that Brunette would be called to contradict the fact, which could not have been the case if she had not been in the room with her sister. Besides, countess Oldi might have been called to your lordships bar to contradict Demont, for she must undoubtedly have known whether she was employed in quieting Victorine in her royal highness's absence; the inference, therefore, is inevitable,—withholding these two witnesses, must on 1512 every principle confirm the credit of Demont, even if she was a much more suspicious witness than there is any ground for considering her.
I have only now, my lords, to state to you the evidence in the case of Aum, which I confess to you appears to me equally conclusive. You will recollect that it was at this place her royal highness and her suite slept under tents on the journey by land to Jerusalem, the first night after they left St. Jean d'Acre, and that the second night was passed under similar circumstances at Bagosa. Hownam tells you, that the tent in which her royal highness slept on this occasion was a double tent, and that there was a gallery betwixt the outer and the inner tent. When interrogated, he also states, that he does not know, of his own knowledge, that Bergami slept under this tent with her royal highness, but he dares to say he did; Majoochi swears to the fact, and Demont declares she undressed her royal highness as usual, and left Bergami and her under the tent. The mate of the polacre swears to having seen the two beds on which Bergami and the princess usually reposed placed under this tent, and that he never saw Bergami sleep under any other tent, though, as he retired when Bergami, countess Oldi, and Austin were under this tent at dinner, and went to rest, he could not swear to Bergami's sleeping under it. Majoochi further declares, that after the princess and Bergami were shut up in the inner tent, he slept on the one side of the gallery, and Carlino on the other, during all the time of their repose.
Here, then, my lords, we have not only that concurrence betwixt the testimony of Demont and Majoochi, which fortifies both, but we have a confirmation of the circumstances stated by them, from the mate and from Hownam, which puts the truth of it beyond a doubt, more especially when it was in the power of the counsel for the defence to call to your lordships' bar Carlino, who, from the circumstance of his sleeping in the gallery, must have had it in his power to contradict Majoochi's evidence if false, and countess Oldi, Austin, and Mariette Brunette, the two former of whom are stated to have dined with her royal highness in the tent after the two beds were placed within it, and the latter of whom accompanied her royal highness during the journey to Jerusalem.
1513 To me, therefore, my lords, it appears proved, by indisputable evidence, that her royal highness was in Bergami's room during the night at Catania,—that she slept with him in the same tent at Aum, and at Bagosa,—and that she passed the night, for five weeks together, under the same tent in the polacre;—and when you recollect all the previous circumstances I have stated from the evidence concerning the sudden elevation of this courier,—the suspicious circumstances attending the mode in which her royal highness was surrounded by his family,—the favour she showed to all of them, with the single exception of his wife,—the proof we have of familiarities, to which love alone gives rise, indicated by the tender appellations she used towards him,—and the incontrovertible evidence concerning their kissing and embracing,—I desire to know whether it is possible for any man to differ on the conclusion. For I again ask, whether there is in the evidence any detail of services performed which can account for the favour shown to this man?—Nay, I desire any one of your lordships to state what service, consistent with the supposition of her royal highness's innocence, he could have performed, that could satisfactorily account for all the suspicious circumstances I have detailed to you, coupled with the fact of her royal highness's ultimately passing the night in the same room, or under the tent with this man.—To me, I confess, it appears impossible that any man, endowed with common sense, who calmly and deliberately views the case, can hesitate in regard to the inferences he must draw from her royal highness's conduct. In the course of this proceeding, I can assure your lordships, I have endeavoured, to the utmost of my power, to divest my mind of all prejudice, and, after the most laborious attention to this evidence, and the most minute consideration I am capable of giving it, I am under the painful necessity of declaring, that I cannot conscientiously express to you a doubt of her majesty's guilt;—nay, I will fairly own, that it surpasses the power of my imagination to conceive how any man of common understanding can entertain a doubt on the subject, unless, indeed, he is prepared to maintain,—that the doctrine of law, as laid down by the learned counsel on both sides of your lordships' bar, is unfounded;—that the uniform decisions in the courts of law, and in your lord- 1514 ships' House, have been erroneous;—and that, to authorize a conviction in such a case, it is necessary to have direct proof of an act of adultery.
My lords; I ought to apologize for the length of time I have occupied your lord ships; but I must fairly say, that I felt it impossible, consistently with what I owe to my own character, and to the character of your lordships' house, not to go at large into the subject, so as to give every one of you an opportunity of canvassing the grounds on which I have formed my opinion, and to dispel from your imaginations, as well as that of the public, the possibility of attributing my conduct to any indirect motive;—I say, due to the character of your lordships' house, because no one individual in it can be represented as acting from base motives without injury to all; and your lordships cannot suppose that I am igno rant of the base and scandalous insinuations, as malignant as they are unfounded, which have been brought forward to misrepresent the motives of the conduct which I have pursued, tending to create a belief that I had sacrificed my integrity, as a judge, to views of private interest, to which, I believe, it would be difficult to prove, that any man, throughout a long political life, ever showed greater disregard,
No, my lords;—far from being ignorant of the unpopular feeling which has been industriously excited against me, the numerous anonymous letters, full of the lowest and most vulgar abuse, have explained to me, more distinctly than even the paragraphs I have seen in common with your lordships in the periodical publications of the day, the mode in which calumny and misrepresentation have affected the public mind; but what disgusts me still more, is the sad view of the interested meanness of many of my fellow-countrymen, who, not being able to conceive that I could agree in a judicial question with those with whom I generally differ in politics, without having secured some object of my own, and, giving credit to the report that I was going governor-general to India, have daily pestered a person who has as much idea of going to the North Pole as of doubling the Cape of Good Hope, with applications for preferment in India.
I can assure your lordships, that, no longer ago than yesterday, I received a letter from a physician, inclosing certifi- 1515 cates of his character, and soliciting, in due form, the appointment of medical attendant on my person during my residence in India; an office, which this gentleman would, in my opinion find to be no sinecure, if he undertook to bring me home alive; but such solicitations must abundantly prove to your lordships the effect these disgraceful calumnies have had, and explain to you the anxiety of a man, conscious how little he deserves to be so unjustifiably slandered, to put it in your power, and in the power of every man in this country, to judge of the grounds on which his judgment proceeds, and to decide whether it is those who chime in with the popular clamour of the day, or those who conscientiously resist it, whose motives are most to be suspected.
My lords; it now only remains for me shortly to submit to your lordships' consideration the reasons why I, who think that the guilt of her royal highness has been distinctly proved, cannot, on the ground of expediency, concur in negativing the second reading of this bill; for, though I certainly agree with those who maintain, that no member of this House can vote for the second reading who is not satisfied of her majesty's guilt, I must admit, that it is competent even for a person, who thinks the guilt proved, to vote against this bill; nay, I can conceive the grounds on which a person may maintain, and fairly maintain, the opinion that there is no inconsistency in avowing the guilt to be proved, and in voting for the rejection or the bill; though I confess, that, in this case, where the propriety of proceeding by a bill has been fully discussed, and a majority of this House has decided in favour of a legislative proceeding, I doubt whether it is not the sounder opinion, that we ought to confine ourselves solely to the guilt or innocence of the party; the House having previously determined on this as the preferable mode of proceeding.
By many of your lordships, I know, that this bill is objected to as a bill of Pains and Penalties, and so it has been generally considered. If this, however, is a bill of Pains and Penalties, your lordships must allow me to say, that you never had in your House a divorce bill, which docs not equally deserve the appellation. It is, in my conception, a bill, which enacts, that the rights and privileges her majesty acquired by the laws of this country as Queen Consort shall cease. 1516 On the general principle that, as no rights or privileges can be enjoyed by any one without being attended with, and subjected to, concomitant duties; so it is fitting, that all rights and privileges should terminate whenever there is an incapacity to perform the duties attached to them; and I have no hesitation in declaring, that in my humble opinion, her majesty's guilt disqualifies her for the due performance of these duties.
It is a bill, of which it may also be truly predicated, that it, in substance, enacts nothing against the Queen, which is not inflicted, by the laws of the land, on every lady who has the misfortune to be divorced. It, in fact, only enacts, in direct terms, what in law is the legal consequence of a divorce bill, and what has been the consequence of every divorce bill that has ever yet passed your lordships House; and yet I cannot recollect ever having heard the objections, so much urged against this measure, stated in the case of a bill of that nature, neither can I charge my memory with its ever having been hinted, that the enactment of such pains and penalties would be attended with danger to the liberties and constitution of this county.
But, assuming that it is a bill of Pains and Penalties, I cannot agree to the general doctrine which your lordships have heard stated in this House, that bills of pains and penalties are in themselves so unconstitutional, that it is the duty of all who feel warmly for the constitution and liberties of this country, at all times, and under all circumstances, to oppose them. To this opinion, as broadly laid down, I cannot assent. On the contrary, though I think with many of my friends around me, that bills of pains and penalties ought not to be resorted to but on extraordinary occasions, I agree with them in thinking, not only that there are cases in which this mode of proceeding may be beneficially resorted to, but that it would be injurious to the best interests of this country if this practice was to be completely abandoned. For to me it appears, that the existence of it is a salutary check on those who may wantonly abuse power vested in their hands, or who may attempt to attack the rights or liberties of their fellow-countrymen.
I am aware that there are also amongst your lordships some who conceive, that though bills of pains and penalties may occasionally be resorted to, yet are dis- 1517 posed so strongly to maintain the opinion, that this is a case where impeachment would have been the more proper line to have pursued;—that they on that ground, think themselves justified in rejecting this bill. From this opinion I should also decidedly dissent, even if I thought impeachment the preferable line to have followed, because I cannot conceive on what ground a difference in the form of proceeding can now justify a denial of justice.
In truth, however, I am still of the same opinion I delivered in the Secret Committee, when I concurred in recommending a legislative proceeding. When this subject was formerly before your lordships for discussion, I did not abstain from expressing my sentiments, though I confess to you, that at that time I had some difficulty in stating to you fully the grounds upon which they proceeded. I had been a member of the Secret Committee,—of course I knew much of the evidence which was to be brought before you, though I could not then, in justice, disclose the nature of it, or dwell on the difficulties, in point of law, which I foresaw must occur, and which you have since so abundantly experienced, and which I am certain has convinced every man who listens to me, that it required all the judicial habits of this House, all the advantages we have of being enabled to examine on oath, and in having the power of commanding the attendance of the learned judges, to proceed with this case in a manner that gave any chance of our coming to a just conclusion.
With the knowledge of the nature of the evidence which was likely to be brought forward, to have brought this before the other House by way of impeachment, which would have made it necessary for that House to decide, in the first instance, on such a mass of ex parte evidence, must have appeared to all unjust in the highest degree to her majesty, unless to those who supposed, that, guided by the clamour of the day, and the dread of their constituents, that House would, with acclamation, and without inquiry, have dismissed the proceeding, which would have been disgraceful to the country, and an act of injustice to the accuser, as well as the accused.
To the accuser, because an acquittal, without a fair and impartial examination of the grounds of evidence, is, to all intents and purposes, a denial of justice:— 1518 To the accused, because an acquittal of such a nature, though it protects from penalty, in no respect possesses the more desirable attribute of proclaiming innocence.
Such were the reasons for my concurring in recommending a legislative proceeding; and I confess to your lordships, that the experience of what has taken place here in no respect makes me desirous of retracting the opinion in which I concurred with the committee; for I must fairly state, that, in contemplating all the difficulties we have encountered, I think it would have been a farce to have expected any thing like justice, where there was no power of examining upon oath, no appeal to the judges, and habits in the highest degree hostile to that calm inquiry which ought to characterize judicial proceedings.
My lords, this is no singular opinion of mine; for one of the grounds of expediency urged for not passing this bill is, the thorough impossibility, as is stated of its ever passing the other House of Parliament,—a speculation which must proceed upon the idea, that that House will decide by acclamation, because no man can prejudge the effects which evidence, duly examined, will have on the mind. With your lordships, however, I am sure, in the present state of things, this argument, to prove the expediency of rejecting the bill, can have no weight. Things are now in a very different state from that in which they would have been, had a proceeding taken place, in the first instance, before the House of Commons by impeachment; the case is now in a certain degree matured; it will come before them for decision, not on ex parte evidence, but with an opportunity of examining all the witnesses that either side may think it right to produce. I know the effect that the evidence has had on my own mind; and I do not think any man can be justified in presuming to prophesy that the House of Commons will not duly administer justice in the case. Knowing, then, what I conceive the justice of the case to demand, I cannot feel any fear or dread as to what will be the result of the deliberations of that House.
Indeed, I know not how any member of this House can, on constitutional principles, express such an opinion. Your lordships well know, that to argue, that this House ought to adopt any measure, because the House of Commons had 1519 adopted it, would be, to urge a reason to which, consistently with all ideas of order, you could not with propriety listen. Yet I must think, that the prophecies of members of your lordships House, concerning the consequences and probable result of future deliberations in the other House, would form a still more extraordinary ground for the regulation of your conduct.
I am free, however, my lords, to confess, that if I even anticipated the evils which seem so much to press upon the imagination of some of your lordships, I could not act on that narrow view of expediency, which contemplates only the danger and difficulty which may result from the decision in favour of one side of the question. If the question is to be decided on grounds of expediency, your lordships are bound to consider the consequences of abandoning the measure, as well as those of persevering in it; and I cannot believe that this House, if they agree with me in the conclusion to be drawn from the evidence, can hesitate in proceeding with this bill.
Your lordships know the wise anxiety that has long distinguished the laws of this country to guard against the fatal effects which are sure to follow from the example of immorality in the conduct of those who are placed in that situation to which the female society of the country are taught to look up.
Your lordships have long felt, in common with the country at large, that the purity of female morals has been one of the proud and distinguishing features of our national character, when compared with those habits, comparatively indecorous, which custom has sanctioned in other countries; and I confess the inexpediency of permanently endangering the continuance of that attribute, by placing a person to preside at the British court, who must be looked up to as the head of the female society of this country, against whom such accusations have been proved, far outweighs, in my mind, any danger that can result from a short continuance of the temporary clamour on this subject which has been so industriously excited.
My lords, I have now only to apologize to your lordships for the great length of time I have presumed to intrude upon you, and most sincerely to express my gratitude for the patient hearing and singular attention with which you have honoured me. I assure your lordships, I 1520 have not vanity sufficient to attribute it to aught of eloquence or of talent that I can have displayed; but I do impute it to what I will fairly own to you pleases me much more,—to your lordships' conviction of the sincerity and integrity of the man.
The Earl of Rosebery
said, that upon a question of such great national importance as the present, inferior to none which had been agitated in parliament since the period of the Revolution, and as to which, a silent vote in many cases, and probably in his own, could not give a correct expression of the opinion formed; he felt very desirous of offering a few observations to the House.
It was, therefore, for the satisfaction of his own mind and conscience, and not from the presumption of thinking that he could influence any of their lordships, which induced him to offer himself to the House at that moment: because, feeling strongly the impropriety of passing the bill, after the examination of the evidence at the bar, he was anxious to attempt to describe the views and sentiments he had taken of it, which had led to the decision at which he had arrived. Before doing so, he must be allowed to say, without arrogating to himself any particular claim to impartiality, that none of their lordships could have approached the question more free from party spirit, or bias of any kind, or more determined to discharge with fidelity, the heavy, and responsible duty which this case had cast upon the House. With respect, then, to the present bill, feeling as he did the full force of all the objections to that mode of trial and punishment, unless in instances of great state necessity, where the more ordinary and legitimate forms of proceeding could not, with safety, be resorted to: thinking that if this question could be entertained at all against the Queen, it could only be so, upon the principle of her crime being a public wrong, and if a public wrong, that it became an impeachable offence, he had given a vote, on a former occasion, for suspending this method of proceeding, for the purpose of leaving an opening for recurring to one of a more regular and constitutional character. But as the House decided otherwise, and as there did not appear in the bill itself, any additional harshness towards her majesty which was not either met by equivalents, or attended by superior advantages to her, of which the trial 1521 being before two tribunals, instead of one, and the case being one to be decided upon principles of policy, as well as from the facts adduced, were the most conspicuous; he entered upon the investigation with the intention of supporting the measure, if the evidence of the Queen's guilt was of that clear, irresistible, decisive, and uncontradictory nature, as would have carried conviction to his own mind, and which, he thought, would sooner or later have made a similar impression upon the great body of the community. But, when instead of evidence of this description, there existed such a mass of contradiction in what was brought forward, when so much of it was either tainted by perjury, or supported by the testimony of those whose credit was entirely overset; when so strong a suspicion lurked, if not of improper practices having prevailed to obtain witnesses (and in saying this he desired to be understood as conveying not the slightest insinuation against the king's ministers), at least of persons volunteering their testimony in the hope of benefit to themselves; when, in addition to these facts and appearances, their lordships found, that one witness had absented himself, and another either would not, or could not come, both of whom were stated to be of importance to the defence, the case did appear to him to be reduced to what would not justify him, acting conscientiously and honourably as a, juryman, to pronounce a verdict of guilty upon. But the present was a question as much of expediency as of fact: and in proportion as the evidence of the latter was weakened, in a still greater proportion was the inexpediency of passing the bill increased.
All those objections which were inherent to the principle of the measure, but which might have given way, and which, he thought, ought to have given way to a weight of evidence, and to flagrancy of guilt such as the House were led to expect would characterize this case, pressed forward with redoubled force when both were wanting, and when it is to be substantiated by a chain of suspicious circumstances, and by the inferences and conclusions to be drawn from these, not sufficient, in his judgment, to warrant the passing of such a bill as the present.
He would not detain the House by an enumeration of the several objections to the measure, or of the various grounds of inconveniency and hazard which would 1522 attend it. He was sure the promoters of it would have the candour to allow they were both numerous and strong; but he could not refrain from saying, that he trusted their lordships would think it to be their duty, as he should feel it to be his, notwithstanding all that had been urged by his noble friend on the cross-bench (Lauderdale), not to exclude from their consideration, the probability of the bill being rejected in another place, and to appreciate, with their just force, all the dreadful consequences which might ensue from this, to the Crown, to that House, and to the country at large. He was the last man to recommend to the House, on any occasion, to act under the impression of fear, to be influenced by popular clamour, or to abstain from doing what was just and right by the anticipation of popular resentment; but while disclaiming such views, he must say, that the conduct of that House upon this momentous question, was as much under trial not merely by the rabble or populace, but by the thinking, considerate, and most valuable classes of society, as that of the Queen was at the bar. As the object of his anxious solicitude, next to doing impartial justice to her majesty was, to uphold the character of the House in the public estimation, he entreated their lordships, to regulate their decision according to the beautiful principles, and beneficent practice of British justice; and if there was doubt in the proof, or deficiency in the evidence, to throw these considerations into the scale of mercy. He trusted they would couple with them, those reflections, which, as statesmen and legislators, must have the most important effect upon their deliberations, and then, that their lordships would ask themselves whether justice and policy combined, after the kind of evidence they had heard, demanded the enactment of this law—or whether, by passing the bill, they might not rather be defeating the one, and be acting contrary to the public interest, while they were giving to the disaffected and mischievous, a handle for wanton attacks upon the most sacred and venerable institutions of the country—the full effect, and final end of which, no one could foresee.
Such being the general view he had taken of this measure, after a most attentive and dispassionate consideration of it, he should feel it to be his duty to say not-content to the second reading of the bill, 1523 as no amendment in the committee could now reconcile him to the measure in any shape in which it could be offered to the House.
§ Lord Redesdale
said, he could not agree with the conclusion drawn by the noble earl from the evidence given in this case. He conceived, that the evidence in support of the Bill was so full and complete, that no doubt could hang upon his, or upon any other man's mind, as to the guilt of the accused party. If such evidence were to be rejected, then, he must say, that no verdict had ever been given, in any court of justice, where a contrariety of evidence appeared, that might not be challenged on the same ground: for, be believed, very few cases could be cited, in which the contrariety of evidence was not greater. He had examined the evidence most accurately, and the impression on his mind was, that this case was more fully proved than any case which he ever remembered, in which any degree of contrariety of evidence was apparent. Where any doubt or mystery hung over evidence, he had been professionally taught to use a test, which was adopted, not only here, but in every place where any thing like a due administration of justice prevailed—namely, where there was any thing doubtful in the evidence, or where it was contradicted, to try those parts on which doubt was thrown, or which were so contradicted, by the test of those facts that were unquestionably proved. When this was done, the truth was sure to be extracted. This mode he had been taught from his earliest knowledge of the profession in which he had so long been engaged; and the adoption of which in another country, where he had been employed in the administration of justice, he found to be indispensably necessary in arriving at a just decision. When he wished to ascertain the truth, be would examine contradictory evidence, in the manner be had stated; but be was convinced, that, if evidence were to be altogether rejected because some parts of it appeared discordant, efficient justice never could be done. Evidence that was contradicted he would try by the test of clear and undisputed facts—and he would then judge on which side the truth of the evidence really lay. Now, in this case, there was an abundance of undisputed facts—such an abundance, as, if duly considered, left no doubt as to the side on which the truth and weight of 1524 the evidence rested. The facts stated, with respect to what took place on board the polacre, admitted of no doubt whatsoever; because they were proved by witnesses called in opposition to the bill. When they knew this, then they must conclude that certain evidence given by witnesses in support of the bill on this point was unquestionably true, since it was completely confirmed by witnesses brought against the bill. On which side, then, did the balance of evidence lie? With this impression on his mind, that an important truth, previously stated by evidence in support of the bill, was rendered unquestionable by witnesses who were adverse to the proceeding, was he to be told that there was ground for disbelief? When he found this striking confirmation of evidence, did any thing remain, which could lead him to infer, that even the evidence of Majoochi and Demont, on which so much had been said, ought not to be credited? He protested that he believed them both, because he considered them to be witnesses, with respect to whose evidence there had been sufficient confirmation to induce him to give credit to their statements. He would not give them implicit confidence, but it would be most unjust if he rejected their evidence altogether. On the same principle he would not reject the evidence of Flinn. No; he believed him in certain points. When he spoke of the vessel being under his direction, and of his going to the princess at night, he credited the statement; and what reason had he to doubt it? But, in another part of his evidence, where he chose to say that he looked into the tent—that there was a light in the binnacle sufficient to enable him to see all over it, but that he did not see Bergami—he did not believe his evidence, because there was sufficient reason to support that disbelief. He did not mean to say that the witness spoke that which was absolutely false, but something that was not the whole truth. In the same way he would treat the evidence of others. A great deal had been said about Majoochi. Their lordships would recollect the testimony he had given, and they would not lose sight of the circumstance that it came before them by means of interpretation. The individual who interpreted his evidence was an Italian. It was therefore to be supposed that he was not acquainted with the legal forms made use of in this country; and he believed he was not ac- 1525 curately versed in the idiom of the language spoken in the country from which Majoochi came. In looking to his evidence they ought to make great allowances on these points, as well as for the manner in which many of the questions were put; and several of the questions and answers were taken down by the short-hand writer. If they looked to the evidence in that point of view, they would find many palpable mistakes. But still, taking the whole of the evidence, from beginning to end, he felt that it was, in its most material parts, entitled to confidence; and, before their lordships determined to reject it, some plain and evident grounds should be laid for that proceeding. Majoochi had been cross-examined with great acuteness, until he scarcely knew what he was saying; and on a question being put to him respecting Camera he answered, "Let me tell the whole story about that." These words were extremely important, because it was manifest that this man felt he had been frequently interrupted while he was giving his evidence. Then, what was the story which he related? He stated a conversation which he had with Camera, which, if true, was unquestionably an attempt, on the part of Camera to bring him again into the service of her royal highness. He attempted to obtain from Majoochi the certificate of character which he had received when he left the service. The offer of re-employment was made; but Majoochi rejected it, and insisted that he should give back to him his certificate. Was this story true, or was it false? If it were false, the fact might have been proved by Camera. He must, therefore, on every rule of evidence hold that this story was true: and, if it were true, why was there any anxiety to bring forward Majoochi, latterly, unless with a view to confuse his evidence. Taking the whole of Majoochi's evidence into consideration, he thought that all those parts of it which were in themselves important were entitled to his belief, and that belief he extended to them. With respect to Demont, he certainly must admit that he did not look upon her as one who had conducted herself with propriety; but was he, therefore, to reject all her evidence? He begged to know what would be the state of society if the testimony of every person whose behaviour was in any degree light or inconsiderate—who on some occasion or other had conducted 1526 themselves improperly—was to be utterly rejected on that account? How many witnesses were there in every cause against whom might be urged all that had been objected to Demont? The testimony of that witness was to be tried by itself, and by circumstances sworn to by others; and, if she were not believed, there would be no security for public justice. Looking at what Demont and Majoochi had sworn, had their lordships the slightest doubt, not only that the princess bathed on the voyage, but that she was then attended by Bergami, who had handed her down stairs? A doubt had been thrown upon the fact, from a difference regarding the cabin: it was said, that the cabin where Majoochi said the bath was placed, was not of sufficient capacity to receive it; but, if their lordships attended to the particulars sworn to by Demont, they would conclude that the princess probably bathed in the apartment of the countess Oldi. Whether it was in one cabin or in another was a matter of no consequence, the fact being indisputable, that the princess did take the bath in the presence of Bergami. Gargiulo, as well as Demont and Majoochi sworeto this point; and Demont was afterwards, and not till afterwards, called in to assist the princess in dressing. If the countess Oldi had been present, why had she not disproved it? If Brunette were there, why had she not disproved it? That circumstance alone, in his mind, afforded the strongest proof of the guilt of her majesty; for what woman, who had not surrendered her virtue to a man, would suffer him to be present as her sole attendant while bathing? What had been said by counsel regarding bathing in the Brescia, was just as applicable to any transaction in any other country as to that. The proximity of the apartments of Bergami and the princess was not disputed, and it was impossible to suppose, that the circumstance had occurred in so many instances fortuitously. Plans of the different inns had been taken for the defence, but they had none of them been produced. What ground was there, then, for doubting the testimony of Majoochi and Demont on this point? Unless the House meant to deal quite wildly with evidence—unless they intended to destroy all safety for the future—they could not hesitate to believe it.—Without fatiguing their lordships with further examination of the evidence, he would a make few remarks upon what 1527 had been said against this measure as a Bill of Pains and Penalties. He admitted that such a step ought not to be taken lightly, but he contended that it ought at all times to be in the power of the legislature to take it. What was the Act of Settlement, on which the succession of the crown depended, but a bill of Pains and Penalties? It excluded all but the issue of certain persons, because they professed the Roman Catholic religion. A great number of persons were thus deprived of their rights of inheritance. The second act proceeded on the same ground as the first, only operating more severely, by preventing even those who had renounced the Roman Catholic faith from filling the throne of these kingdoms. Could it be said that a measure was unconstitutional which formed the very foundation of our constitution? The bill excluding the duke of York was of the same kind: it had come three times before parliament: the first time it was destroyed by a dissolution, and it was not finally successful until after three distinct efforts. This was a bill of pains and penalties, yet it was passed by the men who had settled our liberties on the firmest foundation, in 1688. Were the measures they supported unconstitutional? Bills of pains and penalties were sometimes absolutely necessary for the protection of the constitution. When it was urged that they should only be applied in cases of great state-necessity, he would ask where was the great state-necessity for the South-Sea Debt act? It was certainly an important measure; but state-necessity did not render it expedient. Still less would this reason apply to the bill relating to charitable corporations and to that depriving particular persons of the right of voting. They were both measures very proper to be adopted, but called for by no state-necessity. He would ask, what were all divorce bills but bills of pains and penalties? In that respect, were they not precisely similar to the bill now in contemplation? How had the act of adultery been proved in all those numerous cases? Why was a different sort of proof to be here required? Had the proof now insisted upon been then demanded by the House, not one of all those bills could have received the sanction of the legislature. Until now not one hundredth part of the testimony given in this case had been deemed necessary. Grounds had been laid, in this instance, infinitely beyond those thought sufficient 1528 to support any ordinary bill of divorce. The power of the ecclesiastical court could only separate the parties from bed and board; it could not dissolve the marriage. Something was, therefore, superadded by parliament, whose decision was not founded upon the determination of the ecclesiastical court excepting as far as related to the evidence of the act of adultery—He begged the House to consider the consequences of not adopting this measure, or some other of a similar effect. Her majesty might demand her rights. And could there be any doubt that she would demand them? She would have a right to hold a court—was that court to be a court held as other queens have held it, dependent on the king, or was it to be a court held in opposition to the royal authority—was it to the a court at which all the nobility and rank of the country were to visit, or was it to be visited by a different description of persons? She might also require the performance of the ceremony of coronation: she might consider that one of her rights. It seemed to him that, on these grounds, the House was bound to ascertain whether the person claiming these rights was or was not worthy of them—whether, taking it as an office, the Queen had not forfeited her right to that office. The Queen was a public and political character; and so the House ought to view her in connexion with the throne. It being granted, then, that some measure was necessary, it was urged that impeachment was the proper course. First, impeachment must originate with the Commons; and no offence could be the subject of an impeachment that could not also be the subject of an indictment. He did not say, that at no time had this House commenced a proceeding of the kind; because he knew that, in the reign of James 1st, persons had been called to its bar regarding monopolies. Granting that this offence of her majesty might be treated as an indictable misdemeanor, where was the crime to be laid—where could the venue be fixed? Abroad? If so, no such indictment could lie by the common law of the land. He contended that the House, in cases of impeachment, was a court of judicature, bound by the forms and modes of proceeding in courts of judicature; and, as one of the authorities on this point, he referred to the trial of Dr. Sacheverell, reading the opinion of one of the chief legal authorities upon that occasion. He 1529 also noticed the various points then urged in arrest of judgment—following it up by the mention of the act for the further improvement of the union with Scotland. He also combatted the opinion contained in the protest lately put in by various lords on the subject of impeachment, arguing that it was founded upon a mistake in point of fact. Supposing, however, it were doubtful whether the proceeding should have been by impeachment or otherwise, was that a reason for not proceeding at all? was not, indeed, the legislative mode the better on all accounts? and was there any thing unfair in thus trying the question? On the contrary had not the party accused a great advantage? A prisoner tried for treason would not have enjoyed half the advantages now allowed. It was true, that a list of witnesses to be called might have been given him some days before he met the jury; but here the whole evidence had been produced in open court, and the Queen's counsel had had an opportunity of seeing and interrogating all the persons who proved the case against their client. It might even be said, that every witness had been upon his trial for three weeks as to his credibility; during that interval the counsel for the Queen had only to employ themselves in collecting evidence against their characters. It ought also to be remembered that some of the witnesses had been brought to the bar a second and a third time for cross-exmination. The question then came to this—whether, as a matter of expediency, the bill should be passed? Could any thing be more mischievous, after the House had proceeded thus far, than to abandon it? But it had been let drop, and rather improperly he conceived, as a reason against the present proceeding, that it might not pass in another place. Be it so, but he contended, that its being thrown out in another place would not be a tenth part so mischievous as its being thrown out by their lordships. Much had been said of the discontent which existed in the country. He did not believe that popular clamour was so loud as it was represented to be. But, if such was the case, their lordships were called upon to act with more than ordinary firmness. So far from withdrawing the proceeding, they were bound, if they believed the Queen guilty, to show to the world that they were determined to pass the bill and send it to the other House. The other House 1530 would do as they wished with it; but it would be for the public to judge to which House the most credit was due. On these grounds he should vote without hesitation for the second reading of the bill.
§ The House adjourned.