§ The Order of the Day being read for the further Consideration and Second Reading of the Bill, intituled, "An Act "to deprive her Majesty, &c." and for hearing Counsel for and against the same, Counsel were accordingly called in.
Then William Carrington
was called in, and having been sworn, was examined by Dr. Lushington, as follows:
In what situation of life are you? I am sir William Gell's valet.
364 How long have you been in that situation Nine years.
What were you before? It was the first situation I had as a servant.
What situation were you in before? I was in the navy,
In what capacity? As midshipman.
Did you attend sir William Gell the latter end of the year 1814, at Naples? I did.
Did you live in the house of the princess? I did.
Do you remember Pergami coining into the service of the princess? I do.
In what capacity? As courier.
Did his coming into the service of the princess as courier excite any or what jealousy? I never beard any.
Was there any thing said about it by the servants in the house?
The Attorney-general objected to this question.
The question was waved.
Was there any jealousy after he came into that service? I never saw any.
Do you remember the first night that you arrived at Naples? Yes.
Do you recollect where Pergami slept that night? I do.
Where was it? It was in a small room over the steward's room.
Who was the steward? Mr. Sicard.
Did he sleep in the same room the second night? No, he did not.
Do you know the reason that he changed his room? Because the room was so low that he could not stand up in it.
Do you remember the room to which he removed? Yes, I do.
Do you know the princess's room? Yes, I do.
How near was the room to which Pergami removed, to the room of the princess? It was about sixty feet.
Was there any other room between the princess's room, and Pergami's room? There were three rooms and a passage.
Can you tell who occupied those three rooms? Yes, I can.
State them? William Austin the first, Hieronimus the second, and Dr. Holland the third.
Are you to be understood that those three rooms intervened between the princess's room, and the room of Pergami? Yes.
Did any of those three rooms open into the passage? Yes.
Do you remember being at a masked ball at Naples? I do.
A ball given by the princess? Yes.
Do yon recollect the servants appearing in any particular dress? No, I did not see them in any particular dress.
Did you yourself wait upon that occasion? I did.
Did you travel in the suite of the princess on the journey to Naples? I did.
365 Do you remember Mr. William Austin? I do.
Can you say where Mr. William Austin usually slept before you reached Naples? He slept in a room by himself when there was room; when there was not, he sometimes slept in her royal highness's room.
Do you know a person of the name of Majoochi? I do.
Did you ever see this person at Ruffinelli? I have.
Did you ever hear him mention the name of Ompteda? I have.
What did you hear him say respecting Ompteda?
The Attorney General
objected to this question, and, the witness having withdrawn from the bar, proceeded to argue against it. The question was, whether the witness had heard Majoochi say any tiling respecting baron Ompteda. He objected to any conversation between the witness and Majoochi, with respect to a third person, being taken as evidence. Whatever Majoochi had said of baron Ompteda could not be received as proof of any fact concerning that gentleman. Besides, he was not aware that Majoochi had stated himself to have had any conversation with the present witness; and unless he had been asked whether he had had any conversation with W. Carrington relative to baron Ompteda, no ground whatever was laid for the course of examination which he had interrupted. But, if even Majoochi had been asked such a question, still any conversation between him and the witness relative to the baron's conduct could prove nothing having any bearing on the case. In order, however, to justify the examination at all, he called upon his learned friends to show that Majoochi had been asked whether he had had a conversation with Carrington, and had denied his having any.
The Solicitor General
thought it quite clear that the question could not be put. Nothing was more fully admitted than that a witness could not be examined on conversations relative to facts collateral to the inquiry; and if the object was, to contradict the testimony of Majoochi, it had not been stated what question had been put to Majoochi which it was now wished to contradict. He apprehended that his learned friends were not entitled to refer to Majoochi's evidence in a general way, but that they must point out the particular statement they meant to disprove.
trusted he should be 366 able to satisfy their lordships that the question ought to be put. If he under stood the objection, it was twofold: first, that the proposed examination had reference to facts collateral to the inquiry; and, secondly, that supposing this not the case, that as no question had been put to Majoochi as to a conversation with Carrington, no question could be asked the latter with regard to that circum stance. Now, as to the first point, no thing was more easy to show, than that the subject of the proposed examination, in stead of being collateral, had a direct and most important bearing on the inquiry. Was it possible to contend, that, to ascertain the fact whether Ompteda had not acted as a spy on her majesty, had suborned her servants, that he had broken locks, and forced doors, in order to steal papers, with the view of fabricating charges to affect the character, the honour, and even the life of the Queen—could it be said that an examination to prove that fact was not relevant to—
§ Lord Redesdale
interrupted the learned counsel, and moved that counsel do withdraw. The learned counsel had no right to pursue the course of examination he proposed. He could not impugn the conduct of baron Ompteda by conversations which had passed between the witness and another person.
§ Lord Redesdale
said, the learned counsel was raising an argument on the subject of baron Ompteda's conduct; but he had no right to impugn any individual's character on a conversation between the witness and a third person. If he was prepared to show by evidence, that baron Ompteda's conduct had been such as he described, let him bring it forward. But to take the course he proposed to pursue at present, was to exceed those bounds of right and duly within which counsel ought to confine themselves.
§ Earl Grey
wished to remind their lordships of the state of the case. The question which the learned counsel proposed to put had been objected to on two grounds: first, that it was collateral to the inquiry; and secondly, that Majoochi had not been asked whether he had any conversation with the witness Carrington. Now, if he understood the particular point to which the learned counsel was replying when he was interrupted, it was the first ground of objection. He was going 367 on to show that facts could not be regarded as collateral which related to the conduct of a person in breaking locks, suborning servants, and doing other acts with the view of affecting the character and honour of her majesty in reference to this inquiry. The argument of the learned counsel was not that the conversation in question would be evidence against Ompteda, though it might contradict Majoochi's testimony; but it was an answer to the assertion of the counsel on the other side, that the matter was collateral. It did not appear, therefore, that the learned lord was justified in saying that the counsel had exceeded the bounds of right and duty.
explained. If evidence was to be obtained of what Majoochi had said of Ompteda, it ought to be sought from Majoochi, in the first instance, and not from the person with whom he bad conversed.
The Lord Chancellor
would not enter into the argument, but he confessed it was the first time in his life that he had witnessed an attempt to prove the conduct of a third person by a conversation which a former witness was alleged to have held with the witness under examination. Had Majoochi been questioned as to what he had said to the present witness, it would have been a different matter. As things stood, it would be necessary to look back to what had been stated by Majoochi on this subject.
The Earl of Lauderdale
referred their lordships to several pages in the Minutes, in which Majoochi had been examined with respect to his intercourse with baron Ompteda.
§ Lord Erskine
rose to order, and suggested that the counsel at the bar should refer to the pages of the Evidence.
The Earl of Lauderdale
said, that his noble and learned friend would not, perhaps, think him out of order when he knew on what account he referred to the evidence. He was of opinion that the question could be put. He wished to save her majesty's counsel the trouble of doing that by argument which was already done by evidence. In the pages of evidence to which he had referred, it would be seen that Majoochi was examined as to the imputed intrigues of baron Ompteda, and asked particularly, whether there was any talk among the household of the princess respecting the baron?
§ Lord Erskine
said, his noble and 368 learned friend was on the side which every impartial man must take; but still he thought it would be better to let the counsel go on with the argument,
§ The Counsel were again called in.
proceeded with his argument. He said that, when their lordships interrupted him, he was about to add that he certainly never conceived that the declaration of Majoochi could be evidence of what Ompteda had done, but that he meant to show that the conduct of Ompteda was not collateral, but a direct point in issue. He was going on to state circumstances which in a subsequent stage of the proceedings it might be necessary to prove, namely, that locks had been picked, that doors had been forced, and that plots had existed; because that proof would be the means of explaining that part of the conduct of her majesty which had been made a ground of imputation. It would, for instance, account for her taking care that some of her male attendants, in whom she could place confidence, should sleep near her—for her taking care to have always a person near her on whose fidelity she could depend. He contended, that evidence for this purpose was admissible, as Majoochi had thought fit to deny the existence of any plot whatever, and when examined at different times, had also denied all knowledge of any locks having been picked. His evidence was surely open to contradiction on these points. Their lordships would see, in page 63 of the printed Minutes, what answers he had given to questions about this baron Ompteda. In the first place, he said, "I do not remember the name." He was then asked—
"Did you ever, during the year after the long voyage, see a German baron dining at her royal highness's at the Villa d'Este?—In the house Villani I saw him.
"Then you do know a certain German baron who used to visit her royal highness?—He was a Prussian.
"What was his name like, as nearly as I you can recollect?—I do not remember the name, because it was an extraordinary or unusual name, but he was called the baron—baron—baron something."
After this evidence, was it not fit that her majesty's counsel should be permitted to prove, that Majoochi knew this baron's name; that he made his name and his deeds the subject of repeated conversations? He was further asked,
369 "Was there any tiling happened in the princess's family, any thing that made a noise in the family connected with this baron, whatever his name was?—This I do not remember.
"During the time you were in the service of her royal highness at the Villa Villani, or the Villa d'Este, do you recollect any blacksmith or locksmith being examined there with respect to the picking of locks?—This I do not remember.
"Or about making false keys?—This I do not remember.
"You never heard of any such thing in the family while you were there?—This I do not remember to have heard; I do not remember it.
"Do you remember no quarrel taking place between lieutenant Hownam and this German baron, while you were there?—I have heard that they had quarrelled together, but I do not know the cause of the quarrel."
Then follows a long series of Non mi ricordos, in answer to questions about the time when he heard of the quarrel. If Majoochi had denied seeing a person on his journey to Vienna, would it not be competent to prove that he had acknowledged seeing that person? He apprehended that it was perfectly open to him to show the contradiction in that witness's testimony without any contravention of the rules of evidence. The existence of the plot tended to explain and justify the conduct of her majesty. The witness denied all knowledge of that plot. He contended, that the testimony now offered did away with that part of the evidence, and left the case rectus in curia. He did not contend that he should establish any facts declared by Majoochi. But if he proved that Majoochi frequently talked of the plot, that in talking of it he sought to evince his courage as well as his fidelity, by saying of Ompteda, "If the Queen would permit me, I would kill him like a dog"—if he proved him to have said this, he did not say that he should prove the facts stated against Ompteda, but he should remove the impression which had been made in consequence of Majoochi's perjury. The only objection which he conceived might reasonably be made to their doing so was, that it was a work of supererogation to attempt to detract from credit which no longer existed, for the evidence of Majoochi was already completely destroyed.
said, that after the able 370 argument of his learned friend, little was left for him to add; but he would merely re mind the House of the purport of their defence; they did not contend that any thing said by Majoochi regarding Ompteda was evidence in—
The Lord Chancellor
here interrupted the learned counsel, and said, that a great deal of time might have been saved if the counsel had stated the point to which his question tended. He would throw out for the consideration of the counsel, whether Majoochi having said that he had heard of a quarrel between Mr. Hownam and a German baron, but that he did not know the cause, they were not at liberty to ask what Majoochi had said to him, as to the cause of the quarrel?
said, that there was perhaps a more important answer of Majoochi than those which his learned friend had pointed out. He had said he did not know what made him recollect the baron's coming to Villa Villani. If, therefore, he could show that he must have known, he apprehended that it was quite open for him to do so. He was perfectly aware that he should be stopped in the question, for, whenever the name of Ompteda was mentioned, per fas aut nefas, an objection instantly came from the other side.
The Attorney General
objected to the style of his learned friend's argument, if argument it could be called, which, consisted principally in assertion. He was not aware that any objection had been taken, whenever baron Ompteda's name had been introduced, as to the propriety of introducing it. He believed it was a mere assertion of his learned friend to say so; but, if such objection had been taken, he doubted not it had been taken properly. He must oppose the manner in which his learned friend, Dr. Lushington, had argued the present question, because he had concluded it by stating, that it was a mere work of supererogation to shake Majoochi's evidence any further, it being already clear to every body that Majoochi was perjured. Such a decision was premature at present, and was one which it became their lordships only to make upon the conclusion of the case. He had never yet heard that a witness could be asked what another witness had said to him in the course of conversation, unless that witness had been first asked, whether he had ever said it to him or not. Now, as to this particular question, he wished to say a few words. The question which 371 had been asked Majoochi was this—"Do you remember no quarrel taking place between lieutenant Hownam and this German baron while you were there" and his answer was, "I have heard that they had quarrelled together, but I do not know I the cause of the quarrel." Now, his learned friends, in order to be able to obtain an answer to the question which they had just put to the witness, ought to have asked Majoochi, "Have you ever stated to William Carrington that you did know the cause of this quarrel?" because, if they had asked Majoochi that question, he might have been enabled to recollect the conversation, if it had taken place, and to explain the circumstances under which it had taken place; but, not having asked Majoochi that question, it was taking Majoochi unawares to put the question that was now proposed to the; present witness. he had heard it said by high legal authority, that the individual with whom a particular conversation had been held must be distinctly named to the witness, before the other party could be allowed to bring forward the individual with whom the conversation had been held, to contradict that witness. At page 140 in the Minutes it would be seen, that the lord-chancellor had stated, "that it had been ruled in the court of King's-bench, that counsel ought, in the first instance, to name the person referred to, for that a person might merely state that he never had such conversation; but that, if put in mind of having been with a particular individual at a particular time, he might immediately recollect, and his former answer might be no slur upon that testimony." That rule, he apprehended, was sufficiently plain; and he called on the House to consider in what a situation witnesses, not merely in this case, but in all others, would be placed in the courts below, if that principle were now to be given up. No question had ever been put to Majoochi whether he had ever made any declaration about the knowledge of the cause of the quarrel between lieut. Hownam and baron Ompteda to any person, much less whether he had ever made such a declaration to W. Carrington; and he therefore apprehended that the objection which he had taken to the present question was perfectly well-founded, and that no sufficient answer had been made to it by his learned friends on the other side. It was an assumption on the part of his learned friends to say that there 372 had been a plot against her majesty, and that baron Ompteda had been at the bottom of it. They had made great assertions upon that point; but as yet no proof had been offered to substantiate them. If it were a part of their case to prove the facts which had been alleged against baron Ompteda (whose memory, it appeared to him, from the knowledge he had of the matter, had been covered with the most unfounded slander and calumny), they certainly might do so; but then they could not do it by offering what had passed in conversation with a third person, No evidence at all had been given relative to baron Ompteda in the case for the bill; and it was, therefore, highly unfair to let it go forth from their lordships' bar, that the slanders which had been promulgated against him had foundation in fact. The learned gentleman concluded his argument by again repeating, that in point of law the question ought not to be put, and by imploring their lordships not to permit the witness to answer it.
denied that he had argued that the facts against Ompteda could be proved by a conversation.
The Attorney General
said, his learned friend had taken up the argument in the same way as it had been taken up by Dr. Lushington, and had stated that the manner in which Dr. Lushington had argued it, prevented him from saying more.
admitted that he had done so; but said he had added nothing to the argument of his learned friend.
The Lord Chancellor
viewed the question as being one of considerable importance. It was not to be forgotten, that the authority which had been mentioned was met by other authorities on the same subject. The question, as he understood it, was this:—"Whether A. B., a witness, being called for the plaintiff in a case, and being asked if he knew of a quarrel between two individuals, and answering that he had heard of a quarrel, but did not know the cause of it; and on cross-examination not being asked whether he had made a declaration to C. D. regarding the cause; the question was, whether or not C. D. could be called to contradict him by proving the contrary, the witness not having been asked if he had held such conversation with that person." This question should be submitted to the Judges, and after they had advised, the House would be better able to decide the question.
§ Lord Erskine
agreed with his noble and learned friend in thinking, that the whole course of examination which counsel now proposed to pursue, must be built upon what Majoochi had said in his former examination, but differed from him when he said, that the present question appeared to him to be such as could not be allowed. He thought that her majesty's counsel had a right in their questions, not merely to refer to what Majoochi formerly said, but with such commentaries as they might think the nature of his evidence required. Their lordships were to look in the Minutes to what Majoochi had previously stated. Counsel proposed to show, by a conversation which had taken place between Majoochi and the witness, that what Majoochi had there stated could not be true, and that Majoochi must have known at the time he stated it, that it could not be true. In his idea, that line of examination was perfectly allowable. If, however, his noble and learned friend wished to have the point decided by the Judges, he had no objection. The House, however, were the real judges of it; and it was for them to decide whether the question, on which so much discussion had arisen, should be put to the witness or not.
begged to suggest, that, conceiving, from the intimation made to the counsel, the opinion of the House to be with him, he had not finished his argument, and requested permission now to conclude.
The Attorney General
objected to his learned friend being heard any further upon the subject, after having spoken to it so often.
The Lord Chancellor
informed the counsel, that the House, upon consideration of the importance of the question, would be ready to hear every thing that could be urged; and therefore were willing to hear the Attorney-general of the Queen, Mr. Attorney-general being at liberty to be heard in reply.
continued his argument. Past all doubt, nothing that Majoochi had said to this witness could be received as proof of any thing that Ompteda had done. But Majoochi having said, in answer to five or six questions on a particular point, Non mi ricordo, "I do not recollect," and to two questions "I do not know," he maintained, that he was at liberty to ask of the present witness whether Majoochi had not, by a conversation 374 with him, shown that he was speaking falsely when he said so, he (Majoochi) having mentioned circumstances to the witness which proved that he must not only remember it in its general bearings, but also in its more particular details. He contended, that he was at full liberty to show, that those details were given in such a way, and were of such a nature, as could not easily be forgotten; and likewise that Majoochi could not be ignorant that he told them to the witness, whom he was going to make tell them to their lordships. The rule of law, he apprehended, allowed that a negative declaration to another person might be proved. It was not denied, that if he had asked Majoochi whether he had ever said to Wm. Carrington that he knew of the causes of quarrel between lieut. Hownam and baron Ompteda, he should have had a right to put the present question. Why had he that right? Merely to impeach the evidence of that witness. In this case, too, it was likewise evidence; because it was a full contradiction of what Majoochi had said: it proved, that he did know the cause of quarrel, though he had said that he did not. His learned friends argued, that by a previous decision, in page 110 of the Minutes, a general question could not be put; and it was said, that one of their lordships had referred to the practice of the Court of King's-bench, in which you could not examine one witness to what another had said, without asking him whether he had ever said such and such things to him in conversation. But, though this had been said by some of the learned judges, it had never been ruled by them in the King's-bench; but, even if it had been so ruled, it should be considered that their lordships had precedents in their own House to go by. They would find one not only in the case of the duchess of Kingston, but also in the case of Elizabeth Canning—which, by-the-by, had been tried at the Old Bailey by a very learned judge—and there they would find that they had not considered themselves tied down by the rule of the King's-bench. They (her majesty's counsel) wished the question not to be decided in the general manner in which it had been put by his lordship: they wished that it should be put in this manner:—Whether a witness having sworn that he did not know a circumstance to which he was examined, the counsel was not allowed to prove, by de- 375 clarations from his own mouth, that he did know it. Suppose it had been a fact, and not a declaration, to which Majoochi had sworn ignorance—suppose he had asked him, "Do you know whether A. B. had forged certain keys, and picked certain locks, at which you yourself was present, and for which A. B. was turned out?" and that he had replied, "I don't know any thing about the picking of the locks, the false keys, or the turning out," should he (Mr. Brougham) not be allowed to show that he (Majoochi) had I been bodily present, and had seen the person turned out; and that, therefore, he must have known all about it; that he could not have forgotten it; and, in con-sequence, that when he said he had forgotten it, he must be speaking an un-truth? The mode proposed, was, indeed, a different mode of showing that he had sworn falsely; but it was still Stronger as the declaration came out of his mouth. He had only to say, that, even supposing the law of the case to be decided against them, the decision would be a novel one. Would they, then, considering that they had come to this trial in full ignorance of the case, and of the witnesses who were to be called against them, prevent them from putting a question, for which, if they had laid a ground in their previous examination, it was admitted, ex consensu omnium that they would have a right to put? If they did prevent them, it would be peculiarly hard that he should be shut out from the opportunity of establishing a contradiction, because, in the cross-examination of the witnesses, he had happened to omit one particular question.
The Attorney General
said, that he should only be trespassing on their lordships time if he replied at any length to what had been stated by his learned friends on the other side. He had already answered it, and he thought their lordships would not be better satisfied if he were to repeat it. But, to come to the evidence, the witness had been asked, if, while he was in the house, a quarrel had not taken place between a certain baron and lieut. Hownam? To which he answered, that he had heard of a quarrel, but that he did not know the cause. Now, my learned friends say, they can prove that he did know it, and they propose to prove his knowledge by a conversation which he had with this witness some years ago. But, he said that they could not, in fairness to the witness, and by the rule of 376 law, be permitted to prove that conversation, because they had not at the time of his examination called such conversation to his mind. He was much surprised that the experience and acuteness of discernment by which his learned friend was so eminently distinguished, should have allowed him to argue as he had done. A fact and a conversation were totally different things: a conversation he might explain; a fact he could not. The point, here, was a declaration said to have been made by Majoochi, and he would contend, that such a declaration could not be brought forward to invalidate his testimony, as Majoochi had not previously denied the conversation in which such a declaration was said to have been made. Had he been asked, whether such a conversation took place, there might have been some ground for the question; now, he apprehended, there was none at all; his learned friend had not laid the slightest foundation for it.
§ The Counsel were directed to withdraw.
put a case—that a witness had made a declaration, of which the counsel, at the time of the cross-examination, was not aware, and upon which he therefore could not examine, but that it afterwards came, in the course of the trial, to his knowledge: would it be said, that for that reason, in a court which was established for the discovery of truth, the truth should not be discovered? Above all, would it be said that such a circumstance should prevent the discovery of truth in a case of such paramount importance as the present? Whatever might be the opinion of the learned Judges upon this question, he should still feel himself bound to act upon his own judgment. The fact now sought to be established was of too important a nature to be defeated by an objection so purely technical. If their lordships wished to avoid the embarrassment of a possible dissent from the decision of the learned Judges, he saw no reason why Majoochi might not be called again, and confronted with the other witnesses. This he had often seen done in the course of his long practice. He would not believe that questions were inadmissible which were calculated to elicit the truth. As a peer of parliament, he should certainly give it as his opinion that this evidence might be received.
The Lord Chancellor
thought the qucx- 377 tion could not be put, and repeated his former argument upon the subject. He did not pretend to say, that it was not the practice to call up a witness in the manner; in which his noble friend had stated that Majoochi could be examined. Neither would he pretend to say, that Majoochi I could not be legally brought up, and the I questions put to him—"Did you over say so and so to Carrington? Or did you not make such and such declarations? The best course, in his opinion, was, to ascertain the practice of the courts below: and, in order to do that, he would shape the question to be put to the Judges in the following manner—"Whether, in the; courts below, a witness, examined in a cause, being asked whether he knew of a dispute having taken place, said, he had heard of the quarrel, but he did not know the cause; and not being asked, whether he had ever made a declaration of any: such knowledge in conversation; and afterwards, in the course of the defence, the counsel having been made acquainted with witness's declaration of such knowledge—would such proof be received in the courts below?" And, secondly, "Whether in the courts below, a witness being asked whether he remembered a dispute, said that he did not remember such dispute, it was consistent with their practice to ask a witness for the defence whether he, who made such a denial, did not, in conversation, detail those circumstances, the recollection of which he previously denied on his cross-examination?" He did not mean to say that he had no opinion of his own upon this question, but he wished to ascertain the opinion of the learned Judges.
§ Earl Grey
said, that even if the opinion of the learned Judges should be against I them, he should wish, for the sake of justice, that the question should be put. The noble lord on the woolsack had suggested a mode of proceeding which would save time, and get rid of the present difficulty, which had arisen from an omission in the examination of Majoochi. Majoochi might now be called in and asked, "Did you hold any conversation with Carrington about baron Ompteda?" If this could be done, it would be the most convenient mode of proceeding.
The Earl of Liverpool
had no objection to the production of Majoochi; but thought that, if the Judges were applied to, the House ought to adopt their opinion. It would be much better to con- 378 tinue in that course of proceeding which they had followed since the commencement of the investigation; for though it had been said that they ought not to decide upon the opinion of the Judges, but upon their own (which he admitted to be correct), yet he thought they could not do better than avail themselves of their' great legal knowledge in the decision of the present question.
said, he never meant to assert that, if the Opinion of the Judges should be in the negative on the questions, the House ought to neglect it. He merely meant to express his own dissent from it.
The Marquis of Lansdown
thought the better way would be to ask counsel on both sides whether they had any objection to Majoochi's being called.
The Counsel were again called in, and the Counsel on both sides were asked, whether they objected to Majoochi being called in, and questions put to him in reference to the declaration to which the questions to the witness had referred.
The Attorney General
addressed their lordships. He felt in a very awkward situation, and he would tell the House why. Their lordships would recollect that Majoochi had been already examined three times in the course of the proceedings. The option was given to his learned friends whether they would proceed then or not with any further re-examination. They had declined doing so, and had preferred the delay which had taken place, in order to open their case. If they suffered the proposed course to be taken in this case, knowing as they did the law upon the subject, it was their lordships' duty to be prepared for the consequences. If it were done in this case, it might be done with respect to every witness at their lordships' bar.
The Lord Chancellor
here interrupted the attorney-general. He did not apprehend that the House wished the learned gentleman to argue the case; but were desirous that he should state simply, as he was perfectly authorized to do, whether or no he withheld his consent.
The Attorney General
stated, that he did not, under the circumstances, feel authorized to give a consent; that he must leave it in the hands of their lordships.
§ Then the following Questions were proposed to the-learned Judges:
§ 1st."If in the courts below a witness examined in chief on the part of the plaintiff being asked, whether he remembered a quarrel taking place between A. and B., answered that be heard of a quarrel between them, but he did not know the cause of it; and such witness was not asked, upon his cross-examination, whether be had or had not made a declaration, stated in the question, touching the cause of it; and, in the progress of the defence, the counsel for the defendant proposed to examine a witness to prove that the other witness had made such a declaration to him, touching the cause of such quarrel, in order to prove his knowledge of the cause of the quarrel, according to the practice of the courts below, would such proof be received?"
§ 2dly. "If in the courts below a witness examined in chief on the part of the plaintiff being asked, whether he remembered a quarrel taking place between A. and B., answered, that he did not remember it, and such witness was not asked, on his cross-examination, whether he had or had not made a declaration, stated in the question respecting such quarrel; and in the progress of the defence the counsel for the defendant proposed to examine a witness to prove that the other witness bad made such a declaration, in order to prove that he must remember it; according to the practice of the courts below would such proof be received?"
§ The Questions were delivered to the Lord Chief Justice, and the learned judges craving leave to withdraw to consider them, leave was granted accordingly, and they withdrew.
§ Then the Right Hon. Lady Charlotte Lindsay was again called in, and further examined, as follows:
—Has your ladyship searched for that letter referred to yesterday? Yes, I have.
Have you been able to find it? No, I have not been able to find it.
Do you believe it not to be in existence? I believe it not to be in existence.
Have you any reason to think that it can be elsewhere but in your own possession? No, I have no reason to think it; I have not a positive recollection of having destroyed it, but I have no reason to believe that I did not destroy it.
Earl of Lauderdale.
—Can your ladyship state the grounds of your brother's request, as made in that letter?
prayed leave to submit, through the House, that this was a question which could not be put.
The Counsel were informed, that lady Charlotte Lindsay having said, that she left the service of her royal highness in consequence 380 of the request of her brother, and that that request was contained in a letter, that to the extent of asking lady Charlotte what were the terms in which that request was conveyed, it appeared to the House there could be no objection.
The question was proposed: and the witness said,
I have no distinct recollection of any thing contained in that letter, except his request and advice that I should resign my situation, and some pecuniary arrangements that were to take place between us.
Does your ladyship's recollection lead you to think that the advice was given without any cause assigned?
prayed leave to submit, through the House, whether the terms of this question were correct.
The Witness was asked,
Can your ladyship say whether your brother gave his advice without assigning any cause for that advice? I do not remember in that letter his assigning the cause, but I have some indistinct idea that the reports I before alluded to might have been mentioned in that letter, but I cannot positively say.
What reports does your ladyship allude to? Reports that I mentioned in answer to a question put to me yesterday by a noble lord, reports of an unpleasant and" degrading nature that had influenced me in resigning my situation.
Her ladyship withdrew.
Mr. Brougham then called John Whitcombe.
The Earl of Lauderdale
objected to the examination of another witness proceeding in the absence of the Judges, who ought to be present, the better to be enabled to consider any question arising out of the evidence, or the application of evidence, which might be referred to them.
thought that his noble friend entirely misunderstood the object of the presence of the learned Judges. Difficulties were very properly and wisely propounded to them, under particular circumstances; and, with great wisdom, their assistance bad been asked. They sat there for this reason—that questions might arise in their lordships' minds, upon the evidence given at the bar, which might require the assistance of the Judges in order to solve. These were questions of law, and of proceedings in law; and the Judges ought, in his humble opinion, to dismiss entirely from their minds what evidence they might have heard at the bar, and strictly apply themselves to the dry question referred to them. Conse- 381 quently, if, in the examination of a witness, difficulties should arise of this nature, their lordships were bound to put them to the Judges in such a shape as should admit of no doubt or difficulty as to their import. It was in this way, he apprehended, that those learned persons-were to perform their functions.
The Earl of Lauderdale
said, that during the period of his attendance in that House, in all cases the Judges had been present while the evidence was being given.
thought, after the explanation of his noble friend, that the practice which was contended for was still more dangerous than he had apprehended. For his own part, not only did he not think that the evidence stated at their lordships' bar was to have any bearing upon the minds of the Judges, but he thought that the questions argued at that bar ought never to be referred to them. They were not to give an opinion upon the arguments of counsel; they were to state points of law, and the construction of acts of parliament; and their assistance was intended for the preservation of their lordships' own character, importance, and dignify. The applications and references to be made to them by their lordships ought to be so framed as to bring out the clear opinion of the Judges upon them, but still with as little reference as possible to the proceeding or the evidence before the House; so that in fact it became their lordships rather to exercise their ingenuity in so framing them, as to hide their connexion with such proceeding or evidence. He really thought that, instead of the Judges sitting, as they now did, upon the woolsack, it would be just as well in effect, and perhaps more consistent: with strict legal propriety, if they gave the House the benefit of their aid in an adjoining chamber; so that any matter to be put to them must necessarily be exempt from the influence of any evidence, or of the discussions sustained by learned counsel. He thought it would be loss of time not to proceed with the examination of witnesses, when the question was so long under consideration by the Judges.
The Earl of Liverpool
would say a few words, because they were now adopting a mode different from that of their former proceedings. With respect to any doubts connected with those proceedings, which might (but which, he trusted, would not) arise, those he should desire to refer to 382 the learned Judges; and upon points of such importance he should certainly support the propriety of postponing the hearing of further evidence until they were solved. Evidence, he thought, the Judges were entitled to hear; and he conceived that the hearing of it must enable them to give a more just and comprehensive opinion upon any question arising upon it, and referred to them. Under the present circumstances, however, he had no objection that they should proceed with the evidence, unless any doubts of that material character he had mentioned should arise.
Then John Whitcombe
was called in, and having been sworn, was examined by Mr. Tindal, as follows:
In what situation of life are you? Valet to the hon. Keppel Craven.
How long have you been in that situation? Upwards of six years, not quite seven.
Were you in his service at the time the princess of Wales went to Naples? Yes.
Do you recollect the first night of the arrival at Naples in what room Pergami slept? No, I do not to be sure.
Have you ever seen the room in which he slept? Not the first room, I never was in it.
Do you recollect the second room in which he slept? Perfectly well.
Was there a passage at one end of it from that room to the room in which the princess slept? There was a passage led from one end of the house to the other, at the end of which Pergami slept, towards the terrace, the green-house rather, and the princess slept at the front of the house, at the other end of the passage.
Do you recollect the room in which Mr. Austin slept? He slept next to her royal highness.
Do you recollect the room in which Hieronimus slept? He slept next to Mr. Austin.
What situation in the princess's household did Hieronimus hold at that time? He held the situation of page, as I understood.
Do you remember where Dr. Holland slept? Doctor Holland slept in the next room to Hieronimus.
Did the three rooms which you have mentioned lie upon the side of the passage to which you have adverted? Yes, all three.
Was there a door from the room of Hieronimus that opened into the passage? Yes, there was.
Where did the door of Dr. Holland's room open? To another passage that came towards the dining-room.
Was Dr. Holland's room at the corner of 383 the two passages of which you are speaking? It was.
Did the door of Dr. Holland's room open; into the passage that turned into the first-mentioned passage? Yes.
Was that door nearly opposite the door of Pergami's room? Pergami's room did not open from that passage.
Do you remember where mademoiselle Demont, the princess's femme de chambre, slept? She slept in another room over Dr. Holland, the stairs of which led from this passage.
Have you ever been in that room? Yes, frequently.
Have you been in that room by night as well as by day? Late as well as early.
At the time you have been in that room, has mademoiselle Demont been there also? Yes; she invited me, generally, to go there.
When you have been in the room, has there been any other person there besides yourself and mademoiselle Demont? There has been sometimes Preising (Annette we called her generally), but it was seldom she staid long When I was there.
Have you then been alone in the room with De moat? Very frequently.
Was the door opened or was it fastened upon these occasions? The door was locked and bolted.
The door was locked and bolted then when you was in the room alone with her.
The Witness was directed to withdraw.
The Solicitor General
objected to the question: it was impossible not to see the object intended; he did not, however, consider it necessary for him to argue such a question. It could not be legally put.
The Lord Chancellor.
—I think Mr. Tindal you have put it as far as you could.
A short conversation ensued, when it was agreed that the last question and answer should be struck out of the minutes of evidence.
The Witness was again called in.
Do you remember the masked ball that was given at Naples? Perfectly well.
Were you in attendance upon that occasion? I was not ordered to attend at the ball; I was in attendance on Mr. Craven; and for my own amusement in the house, I walked about in the apartments any where I wished.
Do you recollect whether the servants of her royal highness were in the early part of the evening dressed in character? Yes, they were; not all of them.
In what characters were those dressed who so appeared in character? Sicard, Pergami,: and Hieronimus were dressed something after the Turkish costume.
Was that in the early part of the evening? In the early part of the evening.
384 Did they afterwards change those dresses for plain dresses? Sicard and Hieronimus went home, and never returned afterwards that I know of; I never saw them afterwards.
Did you see Pergami afterwards? I saw Pergami afterwards to the best of my recollection; he was dressed in plain clothes.
What was he doing? Walking about with me, I met him frequently in the apartments walking.
Were there any refreshments handed about? Ail the evening, during the night.
Did you or did you not see him amongst the other servants assisting? I think I saw him once or twice carrying refreshments, lemonade, or something of that description.
Were you at Naples during the whole time the princess was there? All the time.
In what manner, according to your observation, did Pergami conduct himself towards the princess? The same as the rest of the servants; the same as we all did.
Cross-examined by Mr. Solicitor General.
Did you live in the house? We lived in the house on our arrival in Naples for a few days.
For how many days, as nearly as yon can recollect, did you remain in the house? I should think three days, or four very likely; I am not certain to a day.
After that, you lived in the lodgings occupied by Mr. Keppel Craven? Yes.
You have described a passage extending from the apartment occupied by her royal highness to the apartment occupied by Pergami, that was so? It was.
And in that passage there were three rooms, one occupied by Mr. William, another by Mr. Hieronimus, and another by Dr. Holland? Yes.
Dr. Holland's being the corner? Yes, the corner.
Was there not a passage that led from the dining-room, by Dr. Holland's room, into the passage which you first mentioned? Yes.
In going along that passage would you leave Dr. Holland's room on the right? On the right.
Was there not a door leading from Dr. Holland's room into that passage? Yes, to the best of my recollection, there was.
And no door into the other passage? I am not certain whether there was or was not.
In going along that passage which had Dr. Holland's room on the right, was there not a small room on the left? Yes, on the left.
Was that room which was on the left occupied? No, I think not.
Beyond the room on the left, which you think was not occupied, and next to that room, was not that the room of Pergami? Yes.
So that Pergami's room was at the end of the passage, which you have first described, and on the left hand at the end of the small 385 passage which you have now described? Yes.
Was there not a door leading from Pergami's room, into the passage which you have first described? I am not certain to that; if it was, there was a door that led to the passage, but whether there was any partition between that and Pergami's room, I am not certain.
You have described Pergami's room as being at the end of the passage you first described, was there any mode of going into Pergami's room from that passage? Yes, there was.
By a door? Yes.
You have described Pergami's room, as being towards the garden-side of the house? It is.
Was it the corner room, or was there a small cabinet beyond it? The comer room, to the best of my recollection.
Will you swear, that going from the passage you have just described into Pergami's room, there was not beyond it a small cabinet? I cannot swear, but to the best of my recollection it was the corner room that looked into the garden.
You are not asked whether it looked into the garden, but whether there was not beyond it within, a small cabinet? I cannot be certain of it.
Was there not, in the passage which you have first described, near to the staircase that led up to the room occupied by Demont, a door? There was a door that led to Hieronimus's room.
Opposite to the door, or nearly opposite the door that led to Hieronimus's room, was there not another door? I am not sure of that, I cannot charge my memory with that. Was there not, parallel with the passage which you have first described, and beyond it with reference to Hieronimus's room, a second passage, leading from Pergami's room to the room occupied by the princess? There was a sort of inward room or passage, or something of that description; I do not know what it is called.
Was there not, near the foot of the staircase, a door from the passage you have first mentioned, leading into this communication, or passage, or whatever you call it, to which your attention has been called? To the best of my recollection there was, but I cannot be certain of it.
The Witness was directed to withdraw.
§ Lord Erskine
said, he had something to ask the witness, but for the present he must withdraw from the bar. The witness having withdrawn, the noble and learned lord said, that, before he proceeded to put some questions to the last witness, he begged particularly to call their lordships' attention to the matter out of which the questions he meant to put arose. For this purpose he should beg leave to read, 386 from the printed Minutes, p. 315. an extract from the evidence of Madame Demont, which was as follows:—
"Where did you sleep yourself at Naples? In a little apartment above, above her royal highness's.
"Did you sleep alone in that room? I slept alone in that room.
"Every night? Every night.
"That you will now swear? That I slept in my room alone? Yes, I slept every night in my room alone.
"The whole night? The whole night in my room.
"Every night, and the whole of the night alone? I slept all alone in my room."
The noble and learned lord then desired that the witness might be recalled.
The Earl of Liverpool
wished the noble lord to state what precise question he meant to put to the witness?
§ Lord Erskine
replied, that he meant to ask him, whether he spent any part of any night, or the whole of any night, in the room of Louisa Demont, when she was there and in bed?
The Solicitor General
begged leave with all respect to say, that that question could not be put. When Louisa Demont was examined, it was impossible not to foresee that the object of his learned friends, in putting certain questions to the witness, was either to insinuate or to prove that some person had slept with Demont. It was, he thought, a clear and undeniable point of law, that a witness could not be asked if she had committed an immoral act, or, if asked such a question, be compelled to give an answer, if she objected to it. It was equally clear and incontrovertible, as a point of law, that if the I witness thought proper to answer the question, and deny the fact attempted to be insinuated, that it would be incompetent for the party to negative her denial by proof. If he was right in that position of law, which he thought incontrovertible, then he submitted to their lordships, that they could not suffer that to be obtained circuitously, or by a side-wind, which could not be attempted openly and plainly. This he affirmed to be the undoubted construction of the law, as administered in the courts below. He stated it with the utmost possible submission to the noble and learned lord, for whose experience, knowledge, and talents, he had a profound 387 veneration. It was quite unnecessary to cite authorities to their lordships, for he felt he was stating a position which could not be shaken. The only consideration, then, for their lordships, would be, whether they would suffer that to be done circuitously which could not be directly attempted without a violation of the forms of law.
§ The Counsel were directed to withdraw.
§ Lord Erskine
said, he remained unconvinced that his question ought not to be put; for be thought not only that the question he was putting to this witness might have been put to Demont, but also that she might have been legally asked whether Whitcombe had ever slept with her. He affirmed that that might have been done. It was a course which he had himself often pursued at the king's bar; be had repeatedly asked a witness questions which went to show his criminality. He was perfectly ready to admit, that the witness was not bound to answer; but if be answered, what reason was there to take that answer as conclusive, and not to be shaken by other testimony? He remembered that once he had insisted upon sifting such a question: it was objected to, and he tendered a bill of exceptions, which bill he was not under the necessity of arguing; it went to all the reason of the Judges, and received the assent of the most eminent men at the bar whom he had consulted on the occasion. He had over and over again put such questions. He should state what passed in conversation between himself and lord Ellenborough at the time. For that noble lord's learning and abilities he had ever entertained the greatest deference and respect. Suppose, said he (lord Erskine), to lord Ellenborough, that you had been taking a walk among the new improvements in the neighbourhood of Bloomsbury-square, and that some fellow dared to charge you with the commission of a crime, which, if proved, would justly degrade you in the eyes of the world. I know that when the charge was made, the first thing you would do, perhaps, would be, to send for me, to undertake your defence. Suppose that we had every reason to believe the fellow who made the charge to be a scoundrel, false and wicked enough to make it with the view to extort money. The examination, we will suppose, commenced. I said to the fellow, "Who are you, sir?—A captain of a ship. Of what 388 ship?—Of a ship that has sailed abroad. Abroad! where?—She is gone to America. Look nearer to me, sir; let me see, do I not recollect you? are you not the very man that I unsuccessfully defended once, on a charge of returning from transportation? He may, I know, object to answering this question, and have all the credit of his refusal to answer it; but have I, or have I not, a right to put it? The Judge may say, No, it cannot be put; but, should your client be found guilty of the charge, you can then prove the witness to be the person you represent him, in a motion for a new trial." This, said lord Erskine in continuation, was the way in which he put the point to the late lord Ellenborough; and he added at the time, what he felt still, that to deny him the course for which he contended, and point him out in the room of it such a remedy, was a mockery of justice, and most ruinous to the rights and liberties of the subject. Nothing, therefore, was so fatal to the public security, as the position taken by the solicitor-general. But, waving that altogether in this case, and referring to the witness Demont's evidence—she is asked, and she answers over and over again, that she slept alone, during the whole and every part of the night in her chamber: she made no objection to answer; no objection was taken elsewhere: he had a right, therefore, to try the validity of the answers she had recorded, and to ascertain whether she bad lain with any body else at the time when upon her oath she declared she had remained alone in her chamber. He concluded by asserting that he had a right to have the witness recalled, and asked if he was in Demont's room on any night when she was in bed there.
The Lord Chancellor
begged to state td the House what he knew of the practice in the courts below. When he first came into Westminster-hall, which was between forty and fifty years ago, the constant practice of the Judges was, when a question of a criminatory nature was put to a witness, to inform him that he was not bound to answer the question: that practice was, he understood, of late years discontinued, and the more modern practice, as the rule was laid down in the textbooks, was, that a question of the nature he alluded to, might be put to a witness, though he was not compelled to answer, if he did not please. The rule also went further, for it was laid down, that if the 389 question were asked and answered by a witness, the party asking it could not call evidence to contradict the answer given by the witness. This rule of law certainly put the witness in this singular situation—that, if he refuse to answer, an injurious suspicion is likely to attach to him; but it was clearly and positively laid down in Phillips's Law of Evidence, in the case of the King v. Watson, that if a witness has answered such a question, it is inadmissible to call proof either to contradict or discredit that answer. This was now, according to the text-books, the clear and indisputable practice of the courts in Westminster-hall.
§ Lord Erskine
said, he could not concur in any practice which had the effect of shutting out evidence capable of throwing a light upon the testimony of a witness. Questions might still be shaped so as to sift the matter in controversy without violating the rules of evidence practised in the courts below.
The Earl of Liverpool
said, that though he felt little interest in the way in which the point was decided, yet still he could not see how the House could sift this matter to the bottom by getting that answer from the last witness which it was evidently the object to elicit from him. Demont might be called again; and yet, notwithstanding this contradiction, she might be able to reconcile what the witness stated with the evidence she had herself previously given. She might say she had admitted this person to her chamber, and still persevere in saying she had never slept the whole, or any part, of a night with any body, for that was what her answer literally stated. How was it possible to go farther than this, if both witnesses were re-examined?
§ Lord Erskine
said, that his object was merely to show a contradiction of the same fact in the testimony of these witnesses. He meant to go no farther.
§ Lord Redesdale
said, that if the witness demurred to the question, it was impossible to carry it farther. Whether a man slept with her was certainly a different question from that which she had already answered.
The Earl of Lauderdale
said, that where a disagreement as to the mode of examining a witness occurred, the decision should always be vested in the wisdom of the Judges.
The Lord Chancellor
said, that the construction evidently and plainly put upon 390 the question answered by the witness Demont, fully showed that the object with which it was put was to ascertain, out of her own mouth, whether she had been guilty of an immoral offence. She denies that fact; and in his opinion, speaking both judicially and as a peer, witnesses could not be called to contradict that denial.
The Marquis of Buckingham
thought it of very great importance that the rules of law should be preserved unimpaired, and that at the same time all the facts should be elicited from witnesses. He thought that, where a doubt arose upon a question, it ought not to be put until the sense of the House was taken upon it.
The Lord Chancellor
said, he was quite sure his noble and learned friend would not put a question until he saw that the sense of the House was with the propriety of putting it.
§ Lord Erskine
replied, that he could not know how to anticipate the objections of the House; nor could he well say beforehand what precise questions he might put. It was obvious that his questions must, after the first, depend upon the answers of the witness, of which he could have no foreknowledge.
§ The Counsel and the Witness were again called in. The Witness was asked:
§ Lord Erskine.
—Where did you sleep in the house at Naples during the time you were there? In a small room next the hon. Keppel Craven.
Did you sleep there every night? Every night during the time I was in the house.
Did you sleep in your room during the whole of every night? I slept there after I went to bed; I was not in bed till 12 or 1 o'clock.
And you never went from your own bed to any other bed during the night? No.
You after those three nights went into lodgings? Yes.
Did you, during the time you were in your lodgings, ever sleep in the house you had left I never slept in the princess's house afterwards.
Earl of Lauderdale.
—You have been six years in Mr. Keppel Craven's service? Yes, I have.
Where did you first enter into his service? At Brandenburgh-house, at Hammersmith.
Had you been abroad before? No, never.
Do you remember the year in which you entered into Mr. Craven's service? Not exactly.
Do you recollect the month of the year? I have a memorandum of the month and year, but at present I do not recollect it.
391 But you are sure it was six years ago? Yes, more than six, near seven.
Could you speak French or Italian when you entered into his service? I spoke a little French, not Italian.
Did you speak French sufficiently to make yourself understood, and to understand others? Yes.
Were you at Pesaro with Mr. Craven about a year ago? Yes, about fifteen months since.
Do you recollect Pergami and Mr. Austin coming to Mr. Craven the day of his arrival? Perfectly well, I was at dinner when they came.
Were you in the room at the time that Pergami came into Mr. Craven? I showed Pergami into the room myself.
Did Pergami speak to you upon that occasion? Me spoke to me in coming up stairs.
Did he shake hands with you as an old friend? He pressed my hand merely, as he ran up stairs, and walked on.
—Were you ever in Demont's bed-room, after having gone into lodgings from the house at which you had first been? Yes, frequently.
Have you seen any body else in Demont's bed-room? No one, except Annette, to the best of my recollection.
The Witness was directed to withdraw.
The learned Judges being returned;
The Lord Chief Justice of the King's-bench delivered the unanimous opinion and answer of the learned Judges to both the questions propounded to them, in the negative; and gave his reasons.
Then the Lord Chief Justice of the King's-bench was, by order of the House, requested to furnish this House with a copy of the reasons given by him this day in support of the unanimous opinion and answer of the learned Judges to the questions propounded to them this day.
The Lord Chief Justice of the King's-bench accordingly delivered in a copy of his said reasons; and the same are as follow:
Lord Chief Justice Abbott.
—My lords, the Judges have considered the questions proposed to them by your lordships; one of those questions is in these words, "If in the courts below a witness examined in chief on the part of the plaintiff being asked, whether he remembered a quarrel taking place between A. and B., answered, that he did not remember it, and such witness was not asked, on his cross-examination, whether he had or had not made a declaration stated in the question respecting such quarrel; and in the progress of the defence the counsel for the defendant proposed to examine a witness to prove that the other witness had made such a declaration, in order to prove that he must remember it; according to the practice of the courts below, would such proof be received?"
392 The Judges are of opinion, my lords, that this question must be answered by them in the negative. The question proposed to the witness upon his cross-examination is, do you remember? That question applies itself to the time of the examination, and many things may have taken place, and conversation may have been held upon them at one season, by persons of the strictest honour and integrity, which may at another season be absent from their memory. It must be in the knowledge and experience of every man, that a slight hint or suggestion of some particular matter, connected with a subject, puts the faculties of the mind in motion, and raises up in the memory a long train of ideas, connected with that subject, which until that hint or suggestion was given were wholly absent from it: for this reason, the proof that at a time past a witness has spoken on any subject, does not in our opinion lead to a legitimate conclusion that such witness, at the time of his examination, had that subject present in his memory: and to allow the proof of his former conversation to be adduced without first interrogating him to that conversation, and reminding him of it, would in many cases have an unfair effect upon him and upon his credit, and would deprive him of that reasonable protection which it is, in my opinion, the duty of every court to afford to every person who appears as a witness, on the one side, and on the other; according therefore to the practice of the courts below, a witness is asked on cross-examination, whether he has made a declaration, or held a conversation, and such previous question is considered as a necessary foundation for the contradictory evidence of the declaration or conversation to be adduced on the other side. I must, however, my lords, take the liberty to add, that in any grave or serious case, if the counsel had, on his cross-examination, omitted to lay the necessary foundation in the way in which I have mentioned, the court would of its own authority call back the witness, in order to give the counsel an opportunity of laying the required foundation, by putting his questions to the witness, although the counsel had not before asked them: it being much better to permit the order and regularity of the proceedings, as to time and season, to be broken in upon, than to allow irrelevant or incompetent evidence to be received.
My lords, this being the opinion of the Judges upon the question which I have taken the liberty to read to the House, it will follow as a consequence, your lordships will be aware, that to the other question which applies itself to the witness's knowledge of a particular fact, the same answer in the negative must be given; and, in addition to the reasons with which I have troubled your lordships, it may also be added, where the question proposed regards the witness's knowledge, that although a witness may have 393 mentioned a fact in ordinary conversation at a former period, it does not follow that he may have that, which in a court of law can he considered as knowledge of the fact. A fact is often mentioned in conversation from the representation of others, without such a knowledge of it as can enable a person to say in a court of law, I know the fact.
My lords, the answers to your lordships questions, which I have delivered to your lordships, are the unanimous opinion of the Judges now present. But your lordships will be pleased to consider the reasons that I have taken the liberty to offer as proceeding from myself only; there not having been an opportunity of submitting to the previous perusal of my learned brothers, the written paper from which your lordships would observe that part of what I offered was read; I trust therefore, that whatever imperfection may be found in the reasons, will be attributed by your lordships to me alone.
The Earl of Liverpool
observed, that every noble lord must have carefully attended to the opinion just delivered, and to the language in which ii was expressed. It appeared that, by the practice of the Courts below, the question might be regarded as objectionable, and their lordships would remember their own resolution of conforming generally to that practice.
The Lord Chancellor
said, that, in strict form, the examination now about to be pursued ought to be conducted by the court. If the learned counsel would have the goodness to represent to him the questions he wished to put, he would himself state them to the witness.
Then Teodoro Majoochi
was again called in, and examined by the lords as follows, through the interpretation of the Marchese di Spineto.
The following questions were put at the request of Mr. Brougham.
Do you recollect having seen at the Villa Ruffinelli, William Carrington, servant to sir William Gell? I do not remember that.
Do you remember having seen sir William Cell's English servant near Rome any where? This I do not remember.
Do you remember having ever seen sir William Gell's English servant any where? I have seen him, I think at Rome, but not at Ruffinclli.
Did you ever tell sir William Gell's English servant that baron Ompteda had employed some one to get the keys of the princess at Corao, in order to have false ones made from them? This not.
Did you ever tell that servant any thing to that or the like effect? I have never spoken of this.
Did you ever tell him that the person employed for the aforesaid purpose by baron 394 Ompteda had confessed to the police such employment, and had been discharged in consequence? I have never had any such conversation.
Did you ever tell him that if the princess had not ordered the servants to take no notice of the conduct of Ompteda, you yourself would have killed him like a dog? I never said any such thing; these things are quite new to me.
Have you ever spoke of the villany and ingratitude of Ompteda, after having so long ate and drank in the princess's house, and complained that he had brought suspicion upon the servants? Never.
Did you ever talk of Ompteda to the English servant of sir William Gell byname? No.
requested to be permitted to put a question to the witness with a view to his having said so to any person generally.
The Counsel were informed, that the House had in their discretion permitted this examination, in order to apply a contradiction to the evidence of a particular individual produced as a witness; that other questions must be presented to the consideration of the House as the cases arose.
stated, that he proposed to ask that question, not as applying to the witness having said this to other persons, but lest any difficulty should arise from his hereafter saying that he had said so, but did not know the person to whom the questions had referred.
The following questions and answers were read from the former evidence of the witness, in page 6$ of the printed Minutes:
—"Did you ever see the baron Ompteda? I do not remember that name.
"Did you ever, during the year after the long voyage, see a German baron dining at her royal highness's, at the Villa d'Este? In the house Villani, I saw him.
"Then you do know a certain German baron who used to visit her royal highness? He was a Prussian.
"What was his name like, as nearly as you can recollect? I do not remember the name, because it was an extraordinary or unusual name, but he was called the baron, baron, baron, something."
Did you ever hold any conversation with sir William Gell's English servant respecting the conduct of that baron with the extraordinary name? Never, Never; I never spoke of this baron.
The Witness was directed to withdraw.
Then William Carrington
was again called in, and farther examined by Dr. Lushington, as follows:
What did you hear Majoochi say respecting 395 the baron Ompteda? He told me that baron Ompteda was on a visit to her royal highness.
Was that Teodoro Majoochi? Teodoro Majoochi.
Was he in the Queen's service? He was.
What did he tell you respecting the baron Ompteda? He told me, that baron Ompteda was on a visit to her royal highness, and that he bad employed the postillion and the chambermaid to procure the keys of her royal highness's rooms to get false keys made.
Mr. Attorney General objected to the form of the examination.
—Did Majoochi tell you that Ompteda had employed some one to get the keys belonging to the princess at Como, in order to get false ones made? He did.
Did Majoochi ever tell you that a person had confessed that he had been so employed, and was discharged in consequence? He did.
Did Majoochi ever tell you, that if the princess would have allowed him he would have killed him like a dog? He did.
Killed whom? Baron Ompteda.
Did Majoochi state, that baron Ompteda was very ungrateful, after he had so long ate and drank in the princess's service? He did.
Did he say that he had made the servants of the house to be suspected? He did.
Did he frequently mention the name of Ompteda? He did, often.
Do you remember sir William Cell being ill at any time that he was with the princess of Wales? I do.
Where? The first time, at Brunswick.
Any where else? At Strasburgh.
Any where else? At Naples.
Do you remember the princess ever visiting sir William Gell when he was in his bed? I do.
Many times? At Strasburgh, he was on a sofa.
How was he at Brunswick? At Brunswick he was on a sofa, and at Strasburgh on a bed.
How was he at Naples? In a bed on the floor.
Was he in bed at the time? He was.
Cross-examined by Mr. Attorney General.
Where was it you had this supposed conversation with Majoochi? In the court-yard.
Where? At Villa Ruffinelli.
Who was present? At that time he was by himself.
Did you meet him there accidentally, or how came you in the court? He was there preparing the princess's carriage to go to Rome.
How came you there? I was there merely accidentally, by walking about the premises.
Was your master going to Rome too that day? He was.
How did he go? He went in a carriage.
Who prepared his carriage? I am not certain.
Had you to prepare his things to go to Rome? I had.
396 How long before they set out for Rome was it the conversation took place? This was on the same day we went to Rome.
How long before? It might be an hour, or an hour and a half.
How long before was it? I should suppose an hour.
At what time did you go to Rome? About twelve o'clock.
Do you recollect what month that was in? I think in the mouth of July.
In what year? It must be in 1817.
In July 1817? Yes, it was the time sir William Gell was with her royal highness.
How long had you been at Ruffinelli? Part of two days and one night.
Did you go to Rome that day? We did.
How long did you stay at Rome? Sir William Gell stopped at Rome for two months.
How long did you stop? As long as sir William Gell did.
Did Majoochi go to Rome that day? He did.
With the princess? With the family.
He was preparing the carriage, you say, at the time this conversation took place? He was.
Who else was in the yard or about the yard at that time? Principally the stable people, and the rest of the servants.
Do yon remember the names of any of them? I was not perfectly acquainted with the stable people.
You do not know the names of any of the persons about the stables? I know one that was near to him, I do not know whether he heard him, which was Louis Pergami; he was in a lower room opposite, where he was preparing the carriages.
What led to this conversation with Majoochi at that time? He was talking of the disrespect baron Ompteda had paid to her royal highness, and that he should like to have it in his power to have satisfaction from him.
What led to the conversation about baron Ompteda at that time? It was generally the subject of conversation through the house at that time.
At that time, in the month of July, in the year 1817? Yes.
At Ruffinelli? Yes, it was.
Did you begin the conversation, or did he commence it with you? He commenced it with me.
Majoochi? Yes, Majoochi.
And he commenced it in the manner you have been asked now, did he? Yes.
He began by saying that Ompteda had employed some one. to get the keys? He did.
He began the conversation in that way? He did.
When you came up to him, he said Ompteda had employed some one to get the keys? Yes.
Those were the first words that he used?
397 His first words were, "Have you heard of the affairs of Ompteda?"
Those affairs that had been talked of in the house while you were at Ruffinelli? Yes.
He asked you whether you had heard of the affairs of Ompteda? Yes.
What did you say to him? I said I had heard something of them, by which means he began, and told me the whole over again.
Had he told you this before? He had talked about it, but not throughout.
When did he talk about it? In the servants' hall, when he had been in the hall at dinner with the rest of the servants.
What other servants were there when he talked about it in the servants' hall? There were at the livery servants' table, I think, eight or ten footmen, and other persons belonging to the household.
Name some of them? I do not recollect exactly the names.
Do you not recollect the names of any of the servants? They generally went by their Christian names; there was one Francesco, a Genoese.
What was he? He was a footman, I believe; he wore her royal highness's livery.
Do you remember the name of any other? No, I do not recollect the name of any other; they were all strangers to me at that time, except him; I had seen him before.
He had had this conversation in your presence in the servants' hall? Yes, he had.
Still he said to you when you came out into the court yard "have you heard of the affair of Ompteda?" Yes.
How long had you been at Ruffinelli? Part of two days and a night.
Had sir William Gell been with the princess before that? He had.
Where? At Naples.
After he left Naples, was this the first visit he paid her? No, he had seen her before.
Where? In Home.
How long before? About twelve months before.
This was the second time then that the princess was at Rome? The second time that sir William Gell saw her at Rome.
That was in the month of July 1817? I am not certain of the year, I think it was 1817.
Be good enough to recollect the year if you can? I think it must have been in the year 1817 or 1818; I think it must have been in 1317.
Which was it, 1817 or 1818? I am not certain it was 1817 the first time sir William Gell saw her royal highness at Rome, or whether it was the second time.
But this was the second time? This was the second time at Ruffinelli.
There was a year between? There was a year or thereabouts.
There was a year between the first time of his seeing her at Rome, and his seeing her the Second time? There was.
398 This was the second time? Yes.
Whether it was in 1817 or 1818, you are not certain? I am not certain.
How many days did you see the princess when she was there the first time? When she was there the first time from the Turkish voyage, I think three days.
Were you at the Villa Brandi? Yes.
You were there with sir William Gell? I was.
Did sir William Gell sleep in the house at the Villa Brandi? No, he did not.
Where did he sleep? He slept at the hotel de l'Europa.
How far is the Villa Brandi from the hotel at which sir William Gell slept? A mile and a half or two miles.
Did sir William Gell use to dine with the princess, and return to the hotel in the evening? Yes, he did.
About what time did he usually return? Sometimes late, and sometimes early.
Usually? When there was a deal of company, sometimes twelve o'clock, or sometimes one at night.
How far is Ruffinelli from Rome? Four miles or better.
At the time you came from Ruffinelli to Rome, did the princess come to the Villa Brandi? Yes, she did.
It was at that time that she remained there, and that sir William Gell was there? Yes.
How often did sir William Gell dine with the princess at that time? I cannot say, but I think nearly every day.
Re-examined by Dr. Lushington.
You are understood to state, that after the princess left Naples you saw her twice at Rome or at Ruffinelli? Yes, twice.
The first time that you saw the princess, did you hear any mention made of baron Ompteda? The first time, no.
Had you any conversation with the servants of the princess prior to your seeing them the second time at Ruffinelli? I saw the servants, and dined with the servants the second time.
Was it then that you first heard of baron Ompteda? Yes, it was.
Examined by the Lords.
Marquis of Buckingham.
—You state that you have been a midshipman in the king's service? Yes.
How long have you left the service? In the year 1811.
How long were you a midshipman? About a twelvemonth.
When did you enter sir William Gell's service? At the same time, in 1811 or February 1812.
Immediately after you left the service? Yes, very soon after.
Do you understand Italian? A little.
Not well? Pretty well.
Can you speak it? I can speak it.
399 So as to make your way in Italy? Yes.
What language did Majoochi hold this conversation with you in? In Italian.
Did any body interpret between you, or did you understand one another? No, we understood one another perfectly,
You understood him perfectly? Yes.
Perhaps you cannot speak the language enough to give the words in Italian, but give the words in English that he used when he spoke of his willingness to kill Ompteda? He said, he and the servants in general had made up their minds to give him a good thrashing, and to kill him it they could.
Was that all that passed about killing baron Ompteda? That was all he said in respect of killing him; he said it in Italian.
You mean to say that he never said any thing to you respecting killing baron Ompteda, except those words you have just now stated? He said he was forbidden to do so by lieutenant Hownam; he and the servants were forbidden to molest Ompteda, in any place where they might meet him, by lieutenant Hownam.
That was all that passed upon the subject of cither thrashing or killing baron Ompteda? That was all.
Those were the only words? Those were the only words.
Those were the only words that were used? They were.
—Where is Ruffinelli? It is about four miles from Rome.
Is Rome the nearest town to Ruffinelli? Yes, I think it is; there are some small villages under the toe of the mountain near it.
Which is the nearest? I do not remember the name, but the largest is Albano; that is the next principal one that is near it; there is another small one, the name of which I do not recollect,
Have the goodness to describe the house at Ruffinelli, what is the colour of it? The colour of it is white, outside.
Be good enough to describe it? It had formerly been a convent; a long slip of a house, with a chapel at one end of it.
Is it a high house, or a low one? Rather a low one.
Is the garden before or behind it? The garden is behind it, or in the middle of it rather.
Has it a garden? It has.
Is it walled? I do not think it is; I have walked in the garden, I never saw any wall.
Was it by day, or by night, the princess visited sir William Gell when he was ill in bed? By day.
Did she come alone? I think lady Elizabeth Forbes was with her.
Were other persons in the room besides yourself and the princess and sir William Gell? I think Dr. Holland was in the room one time.
Albano is the nearest village to Ruffinelli? There is Frascati, a village in which it stands, about a quarter of a mile off.
400 Is Frascati higher or lower? I think it is higher.
Earl of Lauderdale.
—You have said that you saw Louis Pergami at the time this conversation took place between you and Majoochi? Yes.
How was Louis Pergami occupied? He was occupied in giving orders for the horses, and different orders on going from the place.
Was he assisting in preparing the carriages? No, he was not.
You heard this conversation twice at Ruffinelli, in the servants' hall, and once in the court yard? I did.
Do you recollect the names of any of the servants besides that one you have mentioned? No, I do not recollect any of the names of the servants.
Do you remember a servant of the name of Alessandro there? No, I do not; I did not dine at the table of the livery servants, and did not know them.
You did not know Alessandro Finetti? I do not recollect the name.
Did you ever see a servant of that name when you were at Ruffinelli? Not to my knowledge, I might see him, but did not know him.
Were you ever more than once at Ruffinelli? I was there part of two days and a night.
Are you to be understood to say, it was only four miles from Rome? I think it was four miles from Rome.
Marquis of Huntley.
—In what ship did you serve in the navy? I was with sir John Beresford in the Poictiers.
—What was the first year you went to Italy? I think in 1814.
Did you speak Italian before you went to Italy? I did a little.
The Earl of Liverpool.
—You say that Teodoro Majoochi told this story first in the servants-hall: state particularly the names of the servants who were there; were those the servants you saw either before or afterwards at the Villa Brandi? I saw them at the Villa Brandi afterwards.
Did you not live with them at the Villa Brandi generally, during the time sir William Gell was there? No, I did not with the livery servants.
Can you name any one you can recollect? I do not recollect their names, I know them all by sight.
Earl of Rosebery.
—Can you repeat in Italian the particular phrase Majoochi made use of, with reference to speaking of baron Ompteda? I can a little, I think.
Have the goodness to do so? Lui hanno detto a mi, vudres che lui lasciar me a fare il mio dovere, che lui vorrebbe bastonare e mazzare come un cane in mezzo alia strada.
Translate that into English? Teodoro Majoochi said he wished he had it in his power to do his duty and his pleasure, he would thrash him in the street, and murder him in the street.
Earl of Rosebery.
—Can you swear to the accuracy of those latter words "come un cane"?—Yes, I can.
Are you certain that conversation took place in one or other of the two years, 1817 or 1818? I am not certain whether it was in 1817 or 1818.
You are certain it was in one or the other? I am.
What is the English of these words "come un cane"? As a dog, or like a dog.
Earl of Darnley.
—You have staled the distance from the Villa Ruffinelli to Rome to be four miles; what miles do you mean? I mean Roman miles, or geographical miles.
Are those computed or measured miles? I understand they are measured miles.
Did you ever walk from Rome lo the Villa Ruffineili? I never did, I have always gone in a carriage.
How long were you going from one to the other? Three quarters of an hour, or an hour.
You went very slow? I did: it is all up hill.
Are you sure it was the Villa Ruffinelli or the Villa Brandi? The Villa Ruffinelli.
Marquis of Lansdown.
—Do you, recollect whether there are any measures of distance corresponding with mile-stones on the road? I do not recollect any mile-stones; it is generally called so.
Why did you leave the navy? I did not like the sea, and sir John Beresford got my discharge.
Earl of Lauderdale.
—Is Frascati near to Ruflinelli? It is about half a mile, or a quarter of a mile.
When you had this conversation with Majoochi, did he inform you how long before that time it was that this affair of baron Omptedahad happened? He did not say any time, hut said it was at Como.
Did you ever mention to any person the conversation that passed between you and Majoochi? I did.
To whom? To Mr. Vizard.
Was that shortly after the time he had spoken to you? No, it was not, it was in London.
Did yon, shortly after the lime yon had had that conversation with Majoochi, ever mention it to any persons of the suite you were with? No, I never did, I was never asked.
Can you state the day of the month in which you mentioned it to Mr. Vizard? It was in the month of September, I do not remember the day.
Was it on the day on which yon first saw Mr. Vizard? I had seen him before, it was the first day I was at his house.
Had you read the evidence in this cause antecedently? I had, some of it.
Had you read Majoochi's evidence? I had.
Earl of Hurrowby.
—You have staled that Majoochi had held some conversation in the 402 hall, among the other servants, previous to his conversation with you, can you recollect what Majoochi said in that conversation when the other servants were present? Only to the same purpose relative to the affair of baron Ompteda.
Was that conversation addressed to yon, or to the servants in general? It was addressed to me.
Did the other servants hear it? They did.
You have slated that Majoochi began the second conversation with you by asking you whether yon had heard of the affair of baron Ompteda? He did.
Earl of Rosebery.
—Wits the conversation in the servants hail, and the conversation in the yard upon that subject, held on the same day? No, it was not.
Which was held first? That in the servants hall was first, he did not mention about thrashing and murdering Ompteda in the hat!, but in the yard.
Marquis of Buckingham
—Did you ever mention this to sir William Cell? I did, after I had read the evidence.
And before you went to Mr. Vizard? No, after I had been to Mr. Vizard.
Without staling any number of times, can you stale how often you went from Rome lo Ruffinelli, and from Ruffnelli to Rome? But once.
Marquis of Loudsdown.
—Did you take any part in the conversation with Majoochi, respecting Ompteda, when you heard him mention it In the servants hall? I did not take any part further than giving car to it; but he told me more particularly in the yard.
—You have given in Italian some part of what Majoochi told you can you give in the original Halian words, the way in which he began his conversation, what were the Italian words? Avete inteso cosa ha detto il gente de la servizio di aflare de Ompteda.
§ Earl of Enniskillen.
—You were a midshipman on hoard the Poictiers? Yes.
Where were you discharged? At Portsmouth.
In February, 1812? It was in February, 1811.
When yon had the second conversation with Majoochi, did Majoochi allude to live former conversation which yon had in the servants' hall? He did In what way? Telling me many particulars in his own idea what he would wish to de.
Marquis of Buckingham.
—You mentioned this mailer to Mr. Vizard after you had read the evidence given by Majoochi? I did.
Did you mention it to any body else? I mentioned it to people in the street talking of it, that I could contradict it.
To whom did you mention it? I mentioned it to Mr. Whitcombe, who was here just now, John Whitcombe, Mr. Craven's, servant.
403 Did you mention it to him first? I think I did.
Did you ever mention it to-your own master, sir William Gell? After I had seen Mr. Vizard.
How came you to go to Mr. Vizard? I was told; I saw him at the Queen's, and I knew he was solicitor to her majesty.
Were you told he was solicitor for her majesty? Yes.
Who told you? sir William Gell.
Before you mentioned this matter to sir William Gell? Yes, before I mentioned this matter to sir William Gell.
Can you mention any other persons to whom you mentioned this besides Mr. Vizard and Mr. Keppel Craven's servant? I mentioned it to sir William Gell and Mr. Craven, after I had been to Mr. Vizard.
Before you went to Mr. Vizard? I mentioned it to persons in the Queen's household. Name them? Mr. Hieronimus, Mr. Milborn, Mr. Crachnell.
Did you mention it to any persons not in the Queen's household? I mentioned it to different people in company.
Where did you mention it to those poeple? I mentioned it at Brandenburgh house among the Queen's servants.
You say you mentioned it in the street? Yes, I did; in consequence of persons knowing I was with sir William Gell, persons asked me, and I said I knew a good deal of it was not true.
Who were they, persons known to you? Mr. De Bruhl, general Oakes's servant; Mr. Mitchell, lord Glenbervie's servant.
§ Duke of Clarence.
—Did you go by the same name when you were on board the Poictiers as you do now? I did.
Were you in any other ship in his majesty's service than the Poictiers? No.
—Have you any certificate from sir John Beresford of your service under his command? I had it, but I have not it now.
Do you mean to say you have lost it? I have.
But you are certain you received a certificate? I am.
Were you rated a midshipman on board the Poictiers? I was.
How long? I do not know rightly how long; I suppose during the time I was there.
What situation had you served in before you were on board the Poictiers as a midshipman? I had been at sea in the merchant service when I was a boy; then I had been on land, and got my livelihood in the best way I could.
You are to be understood that you were never in his majesty's service before? No.
—What countrymen are you? An Englishman.
What part of England? Essex, near Colchester.
§ Duke of Clarence.
—Having stated that you 404 had been in the merchant service previous to your going on board the Poictiers, are you to be understood to have joined that ship as a midshipman, capable of doing your immediate duty, or as a youngster? I went with sir John Beresford on board the Poictiers.
Do you mean that you entered as a youngster to learn your duty, or did you go upon the quarter-deck of that ship as a positively effective midshipman? I was not a very youngster; I did not go upon the quarter-deck for some time; but I understood I was to be a midshipman.
Are you positively sure that from the time yon joined the Poictiers, you were rated midshipman? I am not certain whether I was rated at the time or not; I was rated at the time I left it, which I saw upon my ticket.
You are perfectly clear in your own mind that you left his majesty's service for no other reason than at your own request? Nothing else.
The following question was put at the request of Mr. Attorney General:
Was the servant Francesco, whom you have mentioned, the servant of Mr. Hownam? I am not certain, I only know him by the name of Francesco, and know he wore her royal highness's livery.
Was he the only servant of that name? I recollect no other.
The Witness was directed to withdraw.
Then John Jacob Sicard
was called in, and having been sworn, was examined by Mr. Brougham, as follows:
When did you first enter the service of the princess of Wales? Next February the 1st, it will be twenty-one years.
You are a foreigner? I am a naturalized Englishman now.
Of what country are you a native? Of Anspach.
Had you been in any other place before you entered her royal highness's service? Yes, I had the honour of living ten years with the marquis of Stafford.
In what capacity did you live with his lordship? As cook.
In what capacity did you enter her royal highness's service? As cook.
By whom were you placed in her royal highness's service? By his present majesty's orders: Mr. Beek, who his now dead, appointed me.
Were you afterwards promoted to any other place in her royal highness's service? In the October of the same year, her royal highness was pleased to appoint me her maitre d hotel.
Did you remain in her royal highness's service in that capacity? Yes.
Did you afterwards serve her in that capacity till you went abroad with her? Yes.
When was that? We left England in August 1814.
405 Did you accompany her royal highness to Brunswick? Yes.
From Brunswick to Italy? To Strasburgh, and through Switzerland into Italy.
Do you remember her majesty having occasion for a courier at Milan? Yes.
Did you receive any directions respecting the hiring of a courier? Sir William Gell gave me orders to hire one.
Did he mention to you the person whom you were to hire? Partly so; he said he would be recommended by the marquis Ghisiliari.
Did you in consequence of his directions hire the courier so recommended? Certainly.
Was that Pergami? Yes.
Had you any communication with her royal highness upon the subject of hiring Pergami at all? None.
Do you happen to recollect whether her royal highness dismissed a courier about that time? No.
Do you happen to recollect whether soon after that time? Soon after, at Rome; Croquet we had hired at Geneva.
Do you recollect, on your arrival at Naples, the house in which you were the first night with her royal highness? Yes.
Was there sufficient accommodation for her royal highness's suite in that house? Not conveniently.
Were other arrangements for the accommodation of the suite made the day after? Yes, several.
Do you recollect in what room Pergami, then the courier, slept that first night of your arrival? If I am right he slept where Charles Hartrop slept, or somewhere near there, over lady Elizabeth's room.
Did he continue to sleep in the same room the following nights? I believe one night or two.
Did he then remove to another room? Yes.
Who appointed that room for him to go to then? I did.
What was that room? A small cabinet.
Did you make that arrangement for his changing his room, and sleeping in that small cabinet, by directions of her royal highness? No.
Had you any communication previously with her royal highness upon the subject? No.
Had you any communication with any other person? With Hieronimus I spoke.
Do you recollect any reasons you had? The principal reason I had was, that there was a glass door which went into the garden that was not safe, and therefore I thought it right that a servant, or some one, should sleep there, a male.
During the time that you have lived in her royal highness's service, now her majesty, have you had occasion to observe the manner of the Queen towards her servants? Yes, I have many times.
406 Have you had occasion to see the manner in which her majesty treated her servants? Yes.
The manner in which her majesty spoke to her servants? Yes.
Has her majesty frequently conversed with yourself? Many times.
What manner of conversing with or treating her servants had her majesty generally? Uncommon kind, almost to a fault.
Was this manner of her majesty towards her servants generally to all her servants, or was it confined to any one individual among them? To all.
Have you ever had occasion to walk near her royal highness, or with her royal highness? Many times, by her command.
Have you ever walked so with her royal highness in a garden? Yes, in the pleasure ground at Blackheath many times.
Upon those occasions, has her royal highness talked to you in walking? Very condescendingly.
Has her royal highness ever had occasion to take your arm in those walks? Except on steps or rising ground, and sometimes her royal highness, in the way of conversation, I have had the honour for her royal highness to put her hand upon my arm, by saying, "you understand what I mean," or, "do not you agree with me;" and I believe their lordships may have had an opportunity of that.
How long have you ever had the honour of walking with her royal highness upon those occasions? Half an hour, or sometimes more.
Do you happen to recollect whether you walked with her in the garden at Naples at all? I do not recollect it.
Do you recollect a masked ball at Naples? I do.
Given by her royal highness? Yes.
To the court of Naples? Yes, I had the management of it; Mr. Piarelli assisted me, a person who must be known to some of your lordships; lord Llandaff, I believe, knows him.
Who is Mr. Piarelli? A very respectable person; a merchant.
Did you also yourself, upon that occasion, appear in any dress? Yes, I did.
Did any of the other members of her royal highness's suite? Yes, Hieronimus and I went together.
How were you both dressed? As Turks.
Do you happen to recollect her royal highness attending that masquerade herself? Yes.
Did she appear in one or more dresses in the course of the evening? I recollect two dresses.
Do you recollect what those dresses were? One of them was a kind of a country peasant, and the other a Turkish dress, if I recollect right.
You are no longer in her majesty's service?
407 On a pension as long as her majesty pleases to give it.
When did yon quit her royal highness's actual service? Within these last three or lour months.
Cross examined by Mr. Solicitor General.
What is the amount of the pension you have from her majesty? For the present it is 400l. a year.
Did you say that that was a pension, the continuance of which depended upon her majesty's pleasure? Entirely.
You entered her majesty's service sometime before she went abroad, and were at Naples? Yes.
Did you leave her at Naples? No, her royal highness left me.
Where did you go to from Naple's? From Naples I went, with the servants and the baggage and horses, down to Genoa by sea.
Did you remain at Genoa till her royal highness arrived there? No.
Where did you go to from Genoa? Immediately for England.
When did you join her royal highness again? Not until I went out with the news to inform her majesty of the King's death, at Leghorn.
So that the only time you had an opportunity of observing the conduct of her royal highness towards Pergami, was during the time of her royal highness's residence at Naples? Exactly so.
Was it your business to allot the different apartments appropriated to the different individuals of the suite? It was mostly my business.
Do you remember stopping at the country house of Mural, the night previous to your arrival at Naples? Yes.
Did not William Austin that night sleep in the bed room of her royal highness? That I cannot tell, because I went off immediately in one of the king of Naples's carriages for Naples, to prepare the house there.
Before you left that country-house for the purpose of proceeding to Naples did you make an arrangement of the apartments for the different individuals composing this suite? Not in that house, because the mareschal de la cour settled that.
Have you no means of knowing whether any apartment there was allotted for William Austin? No.
With respect to the apartment that was occupied by Pergami, had it not a direct communication by a passage with the apartment occupied by her royal highness? Not exactly so; there were several doors.
Was there a small cabinet contiguous to the apartment occupied by Pergami? There were several, two that I remember.
Was there a public passage leading from the bed-room of Pergami to the bed-room of her royal highness? Yes.
Was there, beyond that passage and pa- 408 rallel to it, a small passage leading the whole length? There was.
Was there, at the end of that passage, a small cabinet? Not to my recollection.
Was it so constructed, that a part of the passage might, be inclosed so as to form a small cabinet? That I cannot answer what might be done.
Was there a door opening from the room of Pergami into that passage? There was.
Was there another door in that passage opening into the large passage? I believe there was.
Was there a door opening from that passage also into the room of her royal highness? These questions are difficult to answer, because I cannot point out the plan; you are asking me a question I cannot be exactly positive about; if you will point out what you mean, I shall be able to tell you.
[A Plan was shown to the Witness by Mr. Solicitor General, who stated it was not referred to as to actual measurement, and the Witness was asked,]
Assuming the apartment there described to be that of her royal highness, docs it correctly point out the other apartments? It is correct, except that there was another door in the passage.
Was there not then a communication along that passage, through this door which you have described, to the bed-room of her royal highness? Yes.
Did any body sleep there? Not that I know of.
The rooms in which Hieronimus slept, and in which Dr. Holland and William Austin slept, all communicated with the other wide and public passage? Yes.
And there was no person slept in that line of communication you have pointed out, between the room of her royal highness, and the room allotted to Pergami? I understood, that sometimes when Pergami was ill, a servant was to sleep there; hut I never saw it.
With that exception, there was nothing to interrupt the communication, provided the parties were desirous of communicating between the one room and the other? I do not recollect that there was.
What time in the evening was it that you arrived at Naples? I arrived in the morning.
What lime did her royal highness arrive? In the afternoon.
What kind of weather was it? Bad weather, rain.
Rain and wind? Yes.
Who were the servants that breakfasted together at Naples? In the steward's room, there were all the upper servants, Pergami, me, Hieronimus, Mademoiselle Demont, and Barber, lady Elizabeth's servant.
Will you undertake to swear that Pergami breakfasted at Naples in that room regularly? Mostly with us, for he was very fond of meat, and used to go into the coffee-room, "What we 409 called the Office, and have some meat for his luncheon or breakfast, he did not like tea; they do not take breakfast in Italy, not tea, not one out of a thousand.
When you say they do not take breakfast, do you mean they do not take tea for breakfast? No; they take it later, and make a meal of it.
When you were talking of the ball at Naples, you closed the ball with your Turkish dress? I, personally?
Not you personally, but that was the last dress you had? I had but one dress.
Was it the last dress her royal highness had? I do not know which was the last dress. I cannot say how many more she had after that, two I saw.
You have spoken of the dress of the peasant, and the dress of the Turkish lady, was the dress of the Turkish lady the last? I believe the peasant was the first, and the Turkish the second.
Did several persons call upon her royal highness on the morning after her arrival at Naples? For several days, several persons of distinction paid their visits.
Do you remember particularly the morning after her arrival? Of course, particularly, at first there were numbers.
Were they kept waiting by her royal highness, or did she appear at first? That I cannot tell exactly, for I did not wait in the drawing-room, I was not page.
Do you recollect going in quest of her royal highness, in consequence of persons being waiting there for her appearance? I cannot charge my memory with that; it might have been so, for it has happened in this country more than once.
You have no recollection of the circumstance on the first day after her arrival? No, not at Naples, I have not.
Have you any recollection of such a circumstance having happened on the second day after her arrival? No; not at Naples at all; I know it has happened at Blackheath once or twice, when I have been up-stairs.
Pergami rode as courier to Naples, what was his duty after he got to Naples? He was obliged to attend afterwards as a page, waiting in the drawing-room, carrying breakfast tip, and waiting at table.
Did he share that duty with Hicronimus? Yes.
Was Hieronimus also courier? He had been on the road, but as soon as he came to Naples, he acted as page.
When you speak of her royal highness taking your arm, that was when there were any impediments or steps, or any difficulty of that kind? Yes, in that way.
Or touching you in conversation? Yes, by chance.
You do not mean to say or insinuate that there was any thing further than that? No; God forbid.
As far as you recollect, is this plan [the 410 plan being again shown to the witness] correct, with the single exception of there being some subdivisions there? I cannot decide upon it, because I have not sufficiently taken notice of those rooms to be positive of it, for I never dreamt of such a thing happening.
When was the pension granted to you? No pension was granted to me, it was my salary.
The continuance of your salary? Yes, I had 300l. first, and her royal highness was gracious enough to give me 100l. a year more, for acting in the place of Mr. Hoper, as her homme d'affaires, when I came to England.
When was that 100l. a year added? About three or four years ago.
Have you been out on the continent for the purpose of bringing witnesses to this country? I had a letter from her majesty to Carlsruhe.
Did you bring any witnesses to this country? No.
Had you known Pergami at all, before you saw him at Milan? Never.
You went out you say for the purpose of communicating intelligence of the death of the king? Yes.
Where did you see the Queen at that time? I waited for the Queen's arrival at Leghorn.
Re-examined by Mr. Brougham.
Do you recollect in the passage that yon mention in which her royal highness's room, and those of the rest of the suite-were, whether there was a water-closet there? There was a small place used for that purpose, not an English water closet.
To whom did you take the letter to Carlsruhe the other day? I carried it to the agent that was sent out, and he kept it, Mr. Leman.
Do you mean that it was a letter to him, or to any other person? It was directed to the great chamberlain, a letter from the Queen, the seal was her majesty's, directed to the great chamberlain.
Examined by the Lords.
—When Pergami was first taken into the princess of Wales's service, were you desired to make any inquiries into his character? None, because the marquis of Ghisiliari recommended him for the whole.
Did you consider that sufficient? I thought so at the time, he was only engaged as far as Naples.
Did it occur to you to make any observation upon his manner? Not in an uncommon way.
In the common way? I saw his behaviour always was proper.
Did he appear superior to the situation in which he was hired? He was not quite so chatty as the Italians in general were; but I believe he behaved very properly, so far as I saw.
411 Is the single circumstance of his not being so chatty as common Italians were, the only circumstance that distinguished him from other couriers? His behaviour in general: I was never acquainted with any couriers in general, but he behaved very well in my opinion.
Did he appear to be superior to persons in his situation? Not particularly, he behaved very properly in his situation, civil, and obliging, and attentive to his duty.
Did you consider him too much of a gentleman to act in the situation of a courier? Not exactly so, he never showed himself in that way, he never refused to do any thing that he was told.
Did you consider that his manners were rather those of a gentleman than of a courier? He might have been rather more of a gentleman than of the lower sort.
Where did William Austin sleep on the journey to Naples? In different rooms, mostly in the same room with the Queen.
Was it the usual custom for William Austin to sleep in the princess's room? On the journey.
Did you receive an order for the alteration of that? None.
In point of fact did William Austin sleep less frequently on the journey to Naples in the princess of Wales's room, than he had slept before you went to Italy? As far as I can recollect on the journey to Naples he always slept there, but I believe at Naples an alteration took place.
You have spoken of a room in which you understood a servant was to sleep while Pergami was ill, do you recollect whether there was or was not a fire-place in that room? I cannot charge my memory to that.
Earl of Donoughmore.
—You have said that you engaged Pergami for her royal highness's service without having had any previous communication upon the subject with her royal highness? I did.
Were you in the habit of engaging all the servants for her royal highness's family? I was.
Were you in the habit of engaging them all alike, as you did Pergami, without any communication with her royal highness? That was an exception on the journey; he was only engaged as far as Naples.
At Naples? At Naples the other servants, yes.
Was there any other servant engaged in her royal highness's family at Naples, except Pergami himself? Yes, there was Teodoro.
Is Teodoro the brother of Pergami? No, Teodoro Majoochi.
Mention any servant who was engaged in her royal highness's service besides Pergami and Majoochi, whilst you were at Naples? There were several inferior servants, confectioner's men, but their names I cannot recollect.
Was there a sister of Pergami engaged in 412 her royal highness's service while she was at Naples, Faustina? No.
Was there a brother of Pergami engaged in the service during her continuance at Naples? None of the family; none but Pergami was engaged in the princess's service while I was there.
You quitted the service at Naples, and did not return to it again till you went over after the king's death, to announce it to her majesty? Just so.
In what situation at that time did you leave Pergami; was he a servant at that time, or had he begun to be taken up as a gentleman? Page he was made valet-de-chambre and courier.
And page? Yes.
Having hired Pergami as a servant, you left him as a servant on your quilting her royal highness's service? I did.
You have mentioned, and mentioned truly, the great condescension of her royal highness to all her servants; you were twenty-one years in the service? I was.
During that period, did that condescension of her royal highness ever go the length of admitting any servant to her royal highness's table? No, not to my knowledge.
During that twenty-one years, was there any person who had been hired as a servant to her royal highness, who was, to your knowledge, admitted to her royal highness's table? Not to my knowledge.
—You are understood to have stated, that upon the arrival of her royal highness at Naples the first apartment allotted to Pergami was over the apartment of lady Elizabeth Forbes? It was.
Was lady Elizabeth's apartment in the same part of the house with your own? Nearly so.
In the same wing? In the same wing.
Was there any apartment between that of lady Elizabeth and yours? A large passage-room, a corridor.
You spoke of the breakfast of the upper servants; can you recollect at what hour the greater part of the upper servants were assembled at their breakfast? About ten o'clock.
The servants who did not come to that breakfast, but who preferred eating meat; did they eat it about the same time, or later? Sometimes later, sometimes the same time; eleven or so.
Eleven or twelve? Between eleven and twelve.
At what hour did Pergami attend the breakfast? Ten o'clock, mostly.
§ Lord Grantham.
—You have said that till the time of getting to Naples, William Austin usually slept in the princess of Wales's apartment? Yes.
At Naples some change took place in that respect? Yes.
You say that you went forward to prepare the apartments? Yes.
413 Did you allot the apartments to the different members of the suite? I did.
Did you allot an apartment to William Austin? No.
Where did you allot a place or bed for him to sleep? His own bed he slept in, was with us.
Where did you, in the arrangement you made with the rooms, calculate for him to sleep? In the princess's room, as he used to do.
Did you receive an order to make a change in that respect? Not then; no orders whatever; the princess afterwards appointed it.
To your knowledge, did William Austin sleep in the princess's room? Yes, at first.
How soon after you got to Naples did William Austin change from the princess's room to another room? The days I cannot recollect; hut her royal highness spoke to me, that he was too old now, and he should have a room to himself.
You do not remember how soon after your arrival that was? No, I cannot.
Was it soon after your arrival? I should think about a week or so.
Did William Austin on any former occasion, to your knowledge, sleep in any room but the Queen's; not at Naples, but on the journey? I cannot recollect that he did.
Subsequent to leaving Brunswick? I cannot recollect.
§ Earl of Darlington.
—How long were you in her royal highness's suite, or rather in her household, after she left this country in 1814? Until the 15th of February 1815, when I left Naples.
When did you again see her royal highness? At Leghorn, when I had the melancholy news to carry out.
Did you ever sec any impropriety, according to your opinion, or familiarity, between her royal highness and Pergami? Never, never; I am positive not in my presence.
You have mentioned, that you were sent from this country with a dispatch, for the information of her majesty, of the late king's death? I was.
By whom were you sent with that dispatch; by his present majesty's government, or any other person? By her majesty's legal advisers.
Do you know whether any other courier or person came from his majesty's government with the same information? Not to my knowledge.
Marquis of Lansdown.
—Can you state, from your knowledge, whether at Naples the princess of Wales breakfasted alone with Pergami? Never, never to my knowledge.
Is it probable that such a circumstance could have occurred without your having known it? It might have been, but I do not believe it.
Did Pergami eat and drink with other 414 livery servants? At the steward's room, the upper servants, there were two tables; the livery servants dined below.
Did you ever know any other person that ate and drank at the steward's-room, permitted to dine at the princess's table? Not to my recollection.
At what hour did the princess usually breakfast at Naples? According—no regular hour; eleven, twelve, or one.
Earl of Lauderdale.
—Do you recollect the princess, the night after you went to Naples, going to the Opera? I recollect her royal highness going to the Opera.
Do you recollect at what hour she came home? I do not, for I had no business to wait.
You say you hired Pergami at Milan? I did.
What wages was he to receive? He had at first forty Louis d'ors, and at Naples it was-fixed at fifty.
Do you remember when you first saw him? Yes, I do.
Where was it? In the inn, when he was sent to me by the marquis Ghisiliari.
You had not seen him in the inn before that time? No, I had not.
How was he dressed? He had a scarlet waistcoat on, laced with gold, and a blue surtout-coat, and pantaloons and boots.
When you hired him, did you understand whether he was a married or an unmarried man? No, I never inquired about that.
Did you know, before you left Naples, that he was a married man? No.
Was that known in the family at all? No.
You knew nothing when you left Naples of his having a child? No, not even that.
You had not heard of Victorine? No.
Was it you that proposed to the princess that you should come to England, or did her royal highness order you to come to England? I pointed out the necessity, about different things that wanted arrangement in this country; that it would be necessary to come about the sale by auction of the furniture, and a number of bills unpaid.
When you pointed out that necessity, had you in your view to return, having paid those bills? Her royal highness made me promise that I should return, and bring my family; on those conditions she would let me go.
How came you to stay? Afterwards her royal highness travelled about, and she said she would inform me when she should want me.
Do you remember whether her royal highness informed you, that she should not want you to return immediately? Before I left Naples a long while, two months before, three months before, we fixed it for that period.
You had had no communication subsequently, directing you to remain in England? No, none at all; I expected to go out with my family as I mentioned.
415 You then waited for orders that you never received? No, I was to be prepared.
Did you wait the three years in a stale of preparation, without orders? I was so far prepared that I was ready to go at a moment's warning,
§ Earl of Harrowby.
—If you are understood in your description of the house at Naples, a person wishing to go from the apartment of the princess to Pergami's room might do so by going through a passage, and then through a email cabinet, and then to Pergami's room? As far as I can recollect that is exactly the case.
If a person wished to go from the apartment of the princess to Pergami's room, was there any other way by which a person might so go except that which has been mentioned? The passage and the room.
Was there any other way by which a person could go? No other way; there was a door from the garden.
Was there any other way by which a person could go from the apartment of the princess to the room of Pergami, except by going into the garden, and entering Pergami's room by the door which led into the garden? There were two ways to go, through the passage, and through the little rooms.
How many doors were there in the room in which Pergami slept? There were two, to toy recollection.
Do you mean to include the door into the garden? No.
There were two doors besides the door into the garden? Yes.
One of those doors opened into a small cabinet, is that so? Exactly so.
Into what room or passage did that door open? Adjoining that to the public passage.
You state that there were three doors to Pergami's room, one of those doors opening into the garden? Not from the room, but joining the room.
Was there any door leading directly from off Pergami's room into the garden, without passing through into the passage, or intermediate room? No, you must go into the little cabinet, as far as I recollect, into the little passage-room.
By that do you mean the room in which you understood a servant to have slept, when Per-gami was ill? That or the other, because I never saw a man sleep there, neither did I know whether he had done so.
Were there two doors in the small cabinet in which you state you understood that servant to have slept? Only one to my recollection.
There was one joining to Pergami's room; another cabinet besides that cabinet in which you understood that servant slept? I cannot be positive about that.
Earl of Rosslyn
—Were there not two ways by which a person could go from Pergami's room to that of the princess, one by a public passage, another by a smaller passage, and the cabinet? Yes, that is exactly the case.
416 Can you state the distance between the two rooms, or nearly? I should think the breadth of your lordship's house, or further.
Marquis of Buckingham
—If a person had gone from Pergami's room to the princess's, by the public passage, must he not have passed by the doors of the rooms in which Dr. Holland and other members of the suite slept? Yes.
If a person had gone to Pergami's apartment by the other passage, would not that person have reached Pergami's apartment without passing by any door of any room in which any other person slept? Yes.
—During the time that you were travelling on the comment in the service of her royal highness, had you no opportunities at all of observing the manners and appearance of other couriers? I had but one with us.
Had you no opportunity of observing the manners and appearance of other couriers whom you met in the course of your various journies with her royal highness? I never associated with any of them.
Did you never observe them? Not particularly.
In a former answer you stated, that you considered the manners of Pergami superior to those of the lower class of couriers? Of servants.
Do you recollect the names of the various persons whom you found in the suite of her royal highness upon joining her al Leghorn? Not one of them, except Hieronimus, the old servant.
The following question was put at the request of Mr. Brougham,
You have mentioned two ways of going from the room of the princess to that of Pergami, were there any doors to the intervening rooms in the passage to which you at first referred? There were two from the passage.
Do you mean the public passage you have already spoken of? Yes.
Have you not observed, since you entered her royal highness's service, that her royal highness was peculiarly fond of young children? Very much so.
The Witness was directed to withdraw, and the House adjourned.