§ The order of the day being read for 723 the further consideration and second reading of the Bill, intituled, "An Act to deprive her Majesty Caroline Amelia Elizabeth, ?" and for hearing Counsel for and against the same,
The Lord Chancellor
proceeded to inform their lordships, that towards the close of the proceedings of yesterday, a question, which was put by the learned counsel appearing on behalf of the Queen against the bill, to a witness then under examination, had been objected to by the learned counsel who appeared in support of the bill. The question might be represented to their lordships—at least he thought it a convenient mode of conveying it to their lordships' minds to represent it, in these terms: "Whether a certain person of the name of Vimercati, in order to induce other persons to come forward as witnesses, or to furnish testimony against the party accused by the bill, had not offered a corrupt inducement for that purpose?" An objection was very properly taken by the learned counsel for the bill, which objection was answered by the counsel on the other side, and it became the business of their lordships to determine if that question could or could not be put. For his own part, he must say, that the case of Vimercati might differ much from those cases which had been before argued, and on which the House had ruled, that the acts of agency were not so proved, as that they ought in any manner to affect the case. In stating his opinion upon the immediate question to their lordships, he should be extremely sorry to assume that which had been offered by the learned counsel who raised the objection; namely, that Vimercati being only the counsel, or professional agent to the Milan commission, his acts could in no wise affect the proceedings of that commission. He should be extremely sorry to conclude upon so narrow a view of the case. Looking at the evidence, he conceived, that there was sufficient proof apparent that Vimercati was, in fact, an agent of the Milan commission; and an agent their lordships must consider him. Upon this understanding of the case, he wished to have the opinion of the learned judges, and he would therefore propose a question for their decision, one which he conceived to be absolutely necessary for his own and their lordships' guidance, that they should know what would be the law and the course of proceeding upon a similar case in the courts below, taking the 724 case to be one which had already proved Vimercati to be an agent of the Milan commission, and considering the fact, that he had not been called or examined, and assuming what need not be questioned, that he had offered temptations to witnesses to appear—supposing also, that no proof could be made out, that any of the witnesses who had been examined for the prosecution had been corrupted, in such a case could evidence be admitted to show that any attempt had been made to corrupt the witnesses who appeared for the defence? His question would be, "If in the trial of a civil action or a criminal indictment, evidence had been given on the cross-examination of the witnesses examined in chief for the plaintiff in the civil action, or in support of the charges of the indictment, from which it was to be inferred, that A. B. had been employed to collect witnesses for the plaintiff or the prosecution, and if the defendant in a civil action or under indictment, offered proof that A. B. had gone about to induce C. D. to give corrupt testimony in support of the civil action or criminal charges, no witness called as a witness in chief for the indictment, or the civil action, having, under cross-examination, given any proof of A. B.'s corrupt agency, would the practice of the courts below allow C. D., a witness called for the defence, to give proof that A. B* had offered corrupt motives to induce him to give false testimony in support of the civil suit or the criminal charges?"
§ Earl Grey
said, that before their lordships came to a decision on this question, he wished to offer a few words. If the noble and learned lord wished to propose the question to the learned Judges merely for his own satisfaction, he should on that ground not object to it. But he must declare he was of opinion, that even if the Judges did decide that, according to the rules of evidence in the courts below, the examination proposed by the Queen's counsel could not be allowed, their lordships were not bound to act on that decision. On the contrary, he would contend that, in consequence of the knowledge of facts which had come to them from the bar, they were bound to inquire into the truth of the allegations. He was, however, not much disposed to oppose the proposition of the noble and learned lord, because, whatever might be the answer given by the learned Judges, he should propose to their lordships to proceed in 725 the course of inquiry which was how suspended. The present point of inquiry was neither more nor less than a continuation of the case of Restelli; into that case their lordships had consented to inquire; but the evidence in that case was improperly admitted, if the rule was to be, that, unless agency could be proved, they were not to receive evidence of corruption. If the rule, however, of receiving the evidence of yesterday applied to that of to-day, the examination proposed on the part of the defence ought to be allowed. Though it was found, from the evidence, that Restelli had been constantly employed in collecting witnesses, yet it was not proved that he had been authorized to make them offers. In like manner, with regard to Vimercati, it appeared that he assisted officially in taking down depositions; but non constat, that out of the room in which the depositions were taken he had been, on any occasion, authorized to do any act. If, therefore, the strict rule of evidence was to be adhered to, the cases were substantially the same. He must also contend, that the rules of courts of law, with respect to evidence in civil actions, were not at all applicable to this case. Their lordships were now sitting as judges; and the case was of the nature of a criminal prosecution. How, then, the noble and learned lord could propose to limit his question to the rules of evidence in civil actions, was what he could not understand. The present was, in every respect, a criminal proceeding; and what was done in the courts below, with respect to civil actions, could have no relation whatever to the case. If, however, a question were to be put, he should wish it to be framed on the supposition of a prosecution for a capital offence; for nothing else could have any analogy to the case. If any one, in answer, said, that this was not a trial for life, he would ask, whether the illustrious person who was the object of this bill was not exposed by it to losses more severe than the loss of life? The question, then, which he would propose to ask, if any were put, would be, whether, in a capital case, if evidence were tendered to a judge of an attempt to corrupt witnesses, whose evidence, if received, would be fatal to the person accused, that judge would not think it necessary to relieve the case from all suspicion, and to ascertain by what means that evidence had been procured on which he was to pronounce judgment 726 of death? The question was immaterial whether agency was proved or not. The counsel for the defence proposed to prove, that an attempt had been made to corrupt justice, in order to obtain a decision from their lordships, the effect of which would be, to deprive her majesty of that rank, station, and dignity, and those privileges, which, to any individual in her situation, must be dearer than life. He thought, therefore, that their lordships, without reference to the Judges, ought to decide that the examination should proceed. Having already received similar evidence, were they now to turn round, and alter the rule they had made? What was now proposed was, not the introduction of a new rule, but of one which had been followed after all the evidence on one side of the case had been heard. What was the necessity of inquiring into the practice of the courts below? If, either on the prosecution or the defence, a case arose in which corruption was alleged, and an attempt to impose false evidence upon their lordships, they were bound to inquire into the facts, unless they were disposed to shut their eyes to every thing which might prove the proceedings into which they bad been drawn, to be the result of a foul and wicked conspiracy to deprive the illustrious individual of all those possessions which were to her far more valuable than existence. For these reasons, he must again say, that he saw no ground for referring the question to the Judges; and was of opinion, that the testimony which had been offered ought to have been received yesterday. At any rate, he could not regard what passed in courts of law on civil actions, as having any reference to the evidence offered; for he considered this as a criminal proceeding of the highest kind. When, in the trial of such a case, evidence was offered, that an attempt had been made to corrupt justice, and to bring to their lordships' bar false testimony, whether that attempt was attributed to an agent or to any other person, he trusted their lordships would not turn their backs on that inquiry which was necessary to detect such iniquity. If that should be their conduct, they would not appear to the public to be doing that justice which was expected from them.
The Earl of Liverpool
wished to offer a few words in consequence of what had fallen from the noble earl. In the first place, as to the objection to confining the 727 question to be proposed to the Judges to the practice of the courts in civil actions, he believed his noble and learned friend would have no objection to strike those words out, and to let the question go to the Judges without any limitation. With regard to the general argument of the noble lord, he thought the view taken by him was altogether founded in mistake. He did not know what the opinion of the learned Judges might be, and would therefore postpone the expression of his own sentiments on the question, till after it had been submitted to their decision, if the House should think proper to take such a course. But, he understood the argument of the noble earl to be founded on this question—Whether or not it was fit, in this stage of the proceedings, that their lordships should go into an inquiry on a charge of general corruption, which had no immediate application to the case now before them, which could have no relation to the business under consideration, and no effect on the ultimate issue. The noble earl had said, that he considered this to be a criminal prosecution, and for a capital offence. He had no objection to take the question on this ground, and consider the present to be a criminal prosecution, and for a capital offence (for the punishment that might be inflicted did not affect the law of the case), and still he would contend, that the noble earl was mistaken in his view of the business. But it was asked, if a subornation of witnesses to appear in this cause can be proved, if it can be shown that any witnesses have been corrupted, or attempted to be corrupted, ought not this to be inquired into? He would admit, that, if it should appear that any of the witnesses produced at their lordships' bar had been corrupted, or attempted to be corrupted, or if any witness could be found to have been engaged in corrupting—in such a case he conceived (giving his opinion as an unprofessional man) their lordships ought to receive the evidence. But the question was here, not whether evidence should be received of an attempt made to corrupt witnesses who had appeared at the bar; but whether evidence could be received of attempts made to corrupt persons who had not been brought forward as witnesses? He desired that no man should suppose that he meant to argue that it was not as bad to endeavour to corrupt those who had not been brought forward as witnesses, as it was to 728 suborn those who had actually been before the House. In his opinion, to attempt corruption in the one instance was just as iniquitous as in the other; but, what he contended was, that, in the latter case, they had nothing to do with it at this time, and ought not to be called upon to go into an irrelevant inquiry, which he did not see could have any effect on the present proceedings.—He would now apply himself to another part of the question, stating what he had to say very shortly, and merely throwing it out for their lordships' consideration in the absence of the Judges, if they should go out on the question now proposed to be submitted to them. He would put it to their lordships, whether they ought to go into an inquiry respecting the conduct of the persons engaged at Milan, without giving some sort of notice to the advocate Vimercati and colonel Browne that those persons might at least have an opportunity of being here to defend themselves? He would go further, and ask if this were not done, supposing the learned Judges should give it as their opinion that the evidence which had been tendered could be received, would their lordships feel themselves justified in receiving it, without admitting, at the same time, evidence of every thing that went to affect the conduct of those who had formed the Milan commission? He considered the admission of all the evidence that might be offered on this subject, to be the necessary consequence of receiving that which was now tendered: and therefore he wished the House to consider well what would be the effect of their pursuing the line of conduct now recommended to their adoption. He had already stated, that he had not the least objection to the gentlemen who had formed the Milan commission being examined respecting all they had done, and he was content, that the advocate Vimercati should, if they pleased, appear at their lordships' bar. All he had to say against receiving the evidence in question was this—that it would lead the House into an inquiry that he could not regard as relevant to the matter now at issue. If the Judges should be of opinion that the evidence might be received, he considered that justice would require, that they should hear what the parties accused could offer in their defence.
§ Lord Erskine
thought their lordships ought not, from a consideration of what might be the future consequences of their 729 decision, to deliberate whether or not they should do right now. If the evidence were proper to be admitted, they ought to decide for receiving it. Having considered the matter still further, and called to his recollection his practice at the bar in early life, he felt convinced with his noble friend, that the examination of the witness ought to be allowed, without any question being put to the Judges. He thought it strange, that, after the admission had been made, that the House were bound by no technical rules, but were to attain the truth and administer substantial justice, the admission of this testimony should be opposed; and in that anomalous proceeding all the disadvantages were still thrust upon the Queen, and none of the advantages accorded to her. Notwithstanding that admission, and the admission (reluctantly made) that nothing could make amends to the illustrious accused, for the absence of a material witness, it was not only wished to fasten them down to the rules of law, but to rules of law totally inapplicable to the present case. He would suppose a criminal indictment preferred against persons for suborning witnesses against the Queen. Were he counsel for the prosecution, he would first prove the existence of the conspiracy, and then endeavour to bring it home to the parties by witnesses who would prove the acts of the agent. In the case of the state trials of 1794s this was the mode in which his noble and learned friend proceeded, A conspiracy to dethrone the king was first attempted to be proved, and then to prove the agents. In the trial of Hardy, the defendant objected, that none of the acts proved were made to connect with him: and the learned judge who presided had said, that the charge was of two parts, and the prosecutor might first prove the existence of the conspiracy, and then bring it home to the parties as well as he could. In like manner, the learned counsel might bring proof of a conspiracy against her majesty. He might bring it home first to Vimercati, he to colonel Browne, and colonel Browne to the actual prosecutor. If there had been a conspiracy on foot, no matter by whom, it was the duty of their lordships to sift it to the bottom, to prove the acts of the agents, and thus trace it to its source. The attempt of Restelli to corrupt witnesses was almost unexampled in the history of jurisprudence. And, 730 were their lordships, with the knowledge of this fact, to suffer the matter to rest here? If the counsel for her majesty proved various acts of subornation of witnesses, how were their lordships to know whether the witnesses already examined had not been procured by these means? He must think they had been suborned, because no person deviated from the truth without some sinister motive; and when their lordships found witnesses declaring on oath what was notoriously and wickedly false, ought they not to be particularly cautious in the evidence they admitted to weigh on their minds? If their lordships divested themselves of the right to probe and examine into the alleged conspiracy, they might undoubtedly do so; but no man who was not a fit inhabitant of Bedlam would say, that, if the evidence were gone into, they were not competent to judge of the probability or improbability of the charge; if they were not, they ought to retire from the situations which they now filled. It was the duty of the counsel for the defence to bring forward evidence to prove this conspiracy; and it was no less the duty of their lordships, as he conceived, to near that evidence and decide upon it. If it was proved, that an agent of the Milan commission had offered to bribe a single person to give evidence against the Queen, that single proof of a conspiracy tainted the whole evidence; for, although there might be some witnesses who could not be proved to have been thus bribed, yet it threw a suspicion upon the whole. He would appeal to the noble earl opposite, whether, if he had known, before the commencement of this unfortunate business, what he knew now, he would have gone into the prosecution? He felt perfectly convinced that he would Dot. Their lordships were not to confine themselves to the rules of a court of justice, for no court of justice ever had to decide on such a cause. He entreated their lordships to permit the counsel to trace the conspiracy to its source; for of the existence of a conspiracy no one could doubt. Their lordships would thus best discharge their duty to the sound principles of justice, to their own character, and to that posterity by which their conduct would hereafter be judged.
The Earl of Lauderdale
said, he could not but deprecate the line of argument pursued on the other side of the House, by which all the rules of evidence were 731 to be abandoned, and all regularity completely annihilated. He should like to know for what purpose rules of evidence were laid down and adopted in courts of law, unless to elicit truth, and facilitate that regularity which ought always to characterise the administration of justice; and, if that were so in ordinary and common cases, he should like also to know on what novel principle it was, that the highest court should not be governed by the same principles of regularity which governed the proceedings of the lowest? If a common or ordinary case were to be subject to rules and bounds to ensure the regularity of its proceedings, surely a bill of pains and penalties equally demanded the same caution and care, to ensure the eliciting of truth. He had minutely examined the whole of the evidence, and it appeared by that evidence, that the conversation supposed to have been held with Vimercati, as the agent of the Milan commission, was, in point of fact, held when that commission was functus officio, because, according to Mr. Powell's statement, its operation ceased in 1819, and this conversation was supposed to have taken place in 1820. As far as colonel Browne was concerned, Vimercati certainly assisted him. His lordship said, he was most anxious that the opinion of the Judges should be taken on the subject, and that no deviation should be allowed unnecessarily from those established rules of evidence which experience had proved to be best calculated for the discovery of truth.
The Earl of Rosslyn
said, he felt great diffidence in rising to address their lordships on this question, after the able manner in which it had been discussed by his noble and learned friend near him (lord Erskine) and his noble friend below him (earl Grey). His noble friend who had just sat down was, however, of a different opinion. He was of opinion that their lordships ought to be bound by the rules of evidence in the courts below, because the experience of ages had shown that they were in general best calculated for the discovery of truth. He admitted the fact, and he admitted the ground on which his noble friend had placed his argument. He was of opinion, that the rules of the courts below were the best that could be invented for regulating proceedings between two parties, and those parties too, fairly opposed to each other. He could not but feel the necessity for 732 not permitting any deviation from the rules of the courts in such cases, on account of any hardship which any of the parties might suffer; because, the benefit which one individual might gain by taking advantage of the rule of law, or the injury which another might sustain, was not to be put in competition with the public interest in the regular and uniform administration of justice. The rules, however, might differ, and did considerably differ, in civil and criminal cases. The great object in both was the ascertaining of truth; but in criminal cases, the principle of protecting the defendant was carried farther than in civil actions; for the judge was not only held to be impartial, but by a species of humane fiction of the law, was considered as counsel for the accused. In the present case, there was no party except on one side, and certainly none that could suffer by any deviation from the ordinary rules. What were their lordships now doing? They were not trying colonel Browne or M. Vimercati—they were not trying any ordinary case that fell within the known limits of established law; but they were considering how they could punish without law—they were deliberating on a measure, the penalties of which were to be applied to acts, for which the individual charged with them was not amenable to any Taw previously existing. For it had been allowed on all hands, even by those who brought forward the bill, that if the illustrious individual who was its object, were tried by any of the laws which were supposed to apply to her offence, it would be impossible to find her guilty. On this ground, which was the foundation of the bill, its patrons had called on its opposers to show why it should not pass into a law. The opposing party had then doubtless a right to show that the allegations on which the bill was founded were false—to show that the facts were false, the testimony corrupt, and the whole grounds of the bill unsound and fallacious. In the case of this being shown, the dignity and character of the illustrious party would be preserved; because, on showing that the charges were founded in falsehood, their lordships would not pass the bill: for the whole proceeding was a measure of expediency; and surely there was no man in that House who would say, that without any proof of guilt it would be expedient to inflict punishment. But who was the other 733 party in the bill? That party was said to be the state. It was said to be expedient for the interests of the state, that an individual committing certain acts should be degraded from her rank in the state; although by those acts she had violated no law by which degradation was declared to be the punishment attending them. Their lordships had adopted the part of the state in this case, by ordering the bill to be proceeded in, and by commanding the attorney-general to appear for the purpose of opening the case for the bill, and of bringing forth the proofs in support of that case. They were now deliberating on the question whether they would exercise their legislative functions in this way. But it also now became a question for their consideration, whether a conspiracy had not been entered into to deceive them by false evidence? He did not charge the conspiracy against the prosecutor; he did not charge it against the party to the bill; he did not charge it against the Milan commission; nor was he bound to prove the connexion of any of those parties with it. But what he would say was this—"Do not pass this bill until you ascertain whether, and how far you have been misled." It was sufficient to induce them to go into the proposed examination, that there appeared reason to suspect the existence of a conspiracy. It was not necessary that it should be got up by agents of this country; it might be the work of foreign powers. But it mattered not by whom it was hatched. This might eventually appear to be a conspiracy, in which both foreign as well as British agents were employed. But how was this conspiracy to be got at, unless the whole of the agents employed were known, as well as the parties for which they were to be considered as responsible? A notable argument had, indeed, been used—namely, that they ought to confine their inquiries as to the abettors of corruption, if any there were, to the witnesses who had been examined at their lordships bar. In reply to this argument he should say, that these were exactly not the persons to whom they ought to confine their inquiry respecting the imputed corruption; for the persons fed and nurtured at the pampered board of corruption were not likely in person to come forward, and run the risk of detection: on the contrary, they were most probably engaged in the underhand machinations of a system to 734 promote, through the means of others, the main object of their activity. It was not likely that the corrupt agents themselves would run the risk of being stopped in the cause; nor indeed, if they did come forward in person, could it well be expected that they who had sworn falsely, and had been suborners of perjury elsewhere, would speak the truth for their own detection, when they appeared as witnesses in the cause. It was, he thought, obviously impossible to bring to light the acts of such men, except by the failure of some of their efforts to corrupt individuals which individuals might afterwards confront those who attempted to suborn them. The inquiry into these facts had, he thought, become imperative, not indeed for the parties in this cause, but for the honour and dignity of that House. Would their lordships not think it a direct attack and gross outrage upon their privileges, if it were discovered that any of the agents employed in a bill legislatively and judicially before them, should have dared to prop up that bill by the production of tainted evidence, or by an attempt, to obtain it? The House was bound to dispose of the bill according to the evidence adduced by the promoters of it; but, was it nothing to ascertain in what manner that evidence had been collected? Was it nothing to show that the fountain from which it was drawn was corrupted, and that truth could not flow from such a source? Was it nothing to show this from those who had refused the proffered bribe, and who declared the agent that tendered it? Did any body, in point of fact, doubt the agency of Vimercati in this cause? Nobody could now doubt the agency of either colonel Browne or Mr. Powell; for the latter, by his refusal to give the letter of the former, clearly established the direct agency of both. If, with these palpable facts before their lordships, with these proceedings of agents so long engaged in collecting testimony, they should deem it right to reject, in the present stage of their proceedings, the only inquiry which could make their future progress safe, then indeed he should be obliged to confess, that he saw no safety for the administration of justice there—that he saw no hope of the salutary protection of the community, no safeguard against the recurrence of dark and dubious means to entrap testimony destined to sap the foundation of justice. Where was this 735 protection to be found, if parties were, among themselves, to be permitted, for two years, to originate this cause in a foreign country, to corrupt and suborn witnesses, to transmit written depositions, and have them sworn to, before the parties making them were brought before the proper legal authorities; and then to be considered as irresponsible, as men whose acts were altogether to be deemed alien from the inquiry? Were their lordships to be shut from the knowledge of such facts, at the moment when they were called upon to act upon the evidence so impugned? Were they to turn their eyes from the offer to prove the polluted source from which such evidence came? The moment they so decided, in vain would they shelter themselves under the expediency of acting by rules; they would at once appear to the public, not as honest and unbiassed judges, but as parties in the charge of corruption in which the agents were involved, and for a purpose injurious to the interests of that public, and disgracing the functions with which they were intrusted for the administration of justice.
§ Lord Manners
considered the question now before the House to be one of great importance. It was this—whether, under the circumstances of the present case, they would be justified in making it an exception from those rules, which were prescribed for governing cases of the like character in the courts below? It was expedient, in his opinion, to consider the reason upon which these rules, as applied to the evidence of agents, were founded, before they resolved to depart from them. The law as affecting the employer and agent was clear. The employer, for every purpose, must necessarily be bound by the declarations and acts of his agent. This was a plain rule, arising out of the necessity of the case. Before, however, the acts of a supposed agent became binding upon an employer, it was absolutely essential that his relationship of agent should be clearly ascertained. To apply this rule to the present case:—commissioners had been employed to inquire into certain acts charged to have been committed by the individual accused at their lordships' bar, and it was clear, that whatever those commissioners might have done, or whatever they might have authorized others to do, must be received in evidence in the present inquiry. That was a proposition clearly understood.
736 But the declarations and acts of persons not employed by those commissioners, it was equally clear, must be altogether rejected. If this were not the case, any unprincipled fellow might defeat the ends of justice, by assuming a character which did not belong to him, and, under that assumption, committing acts of the most flagitious nature. Any act, therefore, that any unauthorized party had done, could not be received for the purpose of discrediting the witnesses in this case. He confessed that of all others, he considered the principles which bound the courts below—principles which had been sanctioned by time, and found, by experience, to be the best for the attainment of truth—were the most desirable to be adopted by their lordships in the discharge of their important duty on the present occasion. Upon this ground, he should vote that the question proposed should be submitted to the learned Judges, persuaded, as he was, that the rules by which the courts of law were bound, were the best calculated for the safe and substantial administration of justice.
The Earl of Donoughmore
was happy that the opinion of the learned Judges would be interposed on the present occasion; because, under the peculiar circumstances of this case, the bias of his mind rather induced him to open the door as I wide as possible to the attainment of truth; a course which might, from the view which he now took of the arguments before the House, tend rather to obviate than to assist the general cause of justice. He could not help, on this occasion, animadverting upon the wide range of observation in which noble lords on his side of the House had indulged, upon a mere abstract question, as to whether certain evidence should or should not be received at their lordships' bar. He wanted to know what those observations had to do with this question, or upon what principle of justice it was, that they were called upon to listen to a long line of argument on the subject of a supposed conspiracy? Were they now trying a case of conspiracy? If grounds existed for charging the Milan commissioners, or his majesty's ministers, with conspiracy, surely the time for examining that charge had not yet arrived. They had heard a great deal of eloquence, sometimes a great deal of misrepresentation, both prose and verse, which he thought might have been spared; and they had heard a great deal of inflamma- 737 tory language which he thought ought to have been spared. Whether this were ludicrous, or whether it were serious; whether it were the spontaneous effusions of learned or unlearned persons, or whether it arose from side-wind hints within or without the bar, still he thought that such a course of proceeding was greatly to be condemned. The noble lord concluded by reiterating his satisfaction that the question at issue had been referred to the learned Judges.
considered the present question of the greatest possible importance; and although he had not yet troubled their lordships on this subject, he was anxious shortly to state his reasons for thinking that this question ought not, at the present moment, to be submitted to the Judges. He wished to God that the whole question were brought to a decision! He considered the measure as objectionable and unconstitutional in every point of view, and therefore his mind was made up as to the vote he should ultimately give. With regard to the immediate point under the observation of the House, whatever might be the decision of the Judges, he thought that their lordships should not be bound by technical objections, and that they should unreservedly enter upon an examination of the conduct, not alone of Vimercati, but of every person who had been found acting in this mysterious case. It was said, that this was not the time to enter into an examination as to the character of this conspiracy; but he contended, that, of all others, this was the season when this subject should be fully investigated; for it was now that the conspiracy had begun to develope itself. This was its dawn, and the present was the only time forgetting at the truth. He by no means wished to disguise the difficulty which arose from the circumstance that Vimercati was not in this country to be produced. But whose fault was that? It was not a difficulty which ought to be allowed to operate as a gross hardship on the accused. The noble earl opposite had too much manliness, he was sure, to deny the agency of Vimercati; more particularly since Restelli's case had thrown doubts upon the manner in which the witnesses had been collected. All they knew now respecting Restelli was, that strong suspicions attached to his share of the business. That he had offered money was directly alleged; and that he might have 738 been sent out of the way to screen himself from the consequences of such detection was by no means impossible, though he did not mean to assert that such was the fact. If the case had been conducted by English witnesses, then there would be no difficulty in ascertaining the respective share of: each; but here, when mixed; up with the agency of foreigners, the discovery became more perplexed and difficult. He still thought a short bill, now that the other House of Parliament was about to sit, might be brought in, compelling the residence here of the witnesses until the case should be terminated; otherwise he saw no prospect of rendering them responsible for their evidence, particularly after what had occurred in Restelli's case.
§ Lord Redesdale
observed, that it would be useless to address any arguments to the noble earl who had just sat down, that noble earl having declared, that he had made up his mind on the subject. The point on which their lordships were now called upon to decide was, whether a question should now be put to the witness, although it was of a nature not permitted by those rules which the wisdom and experience of ages had determined were essential to the sound and regular administration of justice? Why, in this particular case, those rules ought to be departed from, he was utterly at a loss to conceive. If those rules were not effective to the production of the truth, they ought to be abandoned every where; if they were so effective, they were universal in their character, and ought to be invariably maintained. For his part, he knew not how the honour and life of any individual could be safe, if those rules were departed from. Although his own opinion was that which he had already expressed, he was very desirous to have the assistance of the learned Judges, whose long legal habits and constant experience so eminently qualified them for aiding their lordships in the consideration of the question; that should he find they differed from him on any point of this description, he should be very careful indeed before he determined to act on his own opinion.
The Lord Chancellor
said, he would shortly trouble their lordships by stating the grounds upon which he thought this question ought to be submitted to the learned Judges. The House had been now between thirty and forty days en- 739 gaged in the present proceeding, and up to this time, by common consent, they had agreed to abide by the rules of evidence; as administered in the courts below. If those rules had not their foundation in the principles of truth and justice, then the sooner they were altered, the better. It became, then, important that they should satisfy themselves whether they had better maintain their consistency by still adhering to the rules in the courts below, or whether they could venture to strike out into a new path, and make rules for themselves of a different character. If, upon full consideration, they thought the safer course would be to adhere to those rules which had been for ages deemed the best calculated to aid the administration of justice, then he thought it, for their satisfaction, material that they should ascertain, from the proper authorities, what was the rule of practice as applicable to the present point. If the learned Judges were to determine that the proposed question might be asked, he put it to those noble lords who were now of that opinion, whether they would not feel much satisfactory confirmation by such a statement? If, on the other hand, the opinion of the Judges should be, that the question ought not to be put, their lordships would then have to consider all that had passed, and all that must yet pass on the subject, and inquire why they were to be called upon to depart from the principles on which they had hitherto acted, and let in an unprecedented laxity to their proceedings? A great deal had been said about bills of Pains and Penalties, and Impeachments, and other things, which were wholly unconnected with the immediate question before their lordships. He would make only this remark—that if their lordships continued strictly to observe the rules of evidence in the present proceeding by a bill of pains and penalties, it would be hereafter extremely difficult for any man to show that such a proceeding was unconstitutional, or to deny that it was infinitely more favourable to the person accused, than a proceeding by Impeachment. As to the witnesses, he would not say a word with respect to them, but that every one was entitled, until the close of the proceedings, to be considered as a person against whom their lordships were not justified in advancing a charge of corruption. He did not mean to deny that there were witnesses whose testimony 740 ought to be received with scrupulousness and jealousy; but if the testimony of any of those persons who had been so loudly attacked, should eventually prove true, he would ask whether such a witness, ultimately set right, would not have great reason to complain of those who had used such language as he (the lord chancellor) had heard on the subject? The ground which he took was of mighty importance in all cases, and especially in the case of a bill of pains and penalties, which was to be sent down to the other House of Parliament, to abide by the general rules of evidence; admitting, at the same time, the possible existence of a case in which a departure from those rules would be justifiable. Reverting to the decision of yesterday, the noble and learned lord observed, that he had then stated, that if the learned Judges gave an opinion differing from his own, on their opinion he was prepared to act. On the present occasion he would follow exactly the same course. But, taking into his consideration all the circumstances of the case, he should not deal honestly by their lordships, if he did not allow that, on the present occasion, there was doubt enough in his mind to make him at least wish for the assistance of the learned Judges upon it. With respect to the words of the question, he admitted that the expression "civil action" might be struck out as unnecessary, and the question be confined to a capital offence.
The Marquis of Lansdown
said, he wished to offer a few words on the subject. It was not his intention to protract his remarks to any length, not because he did not consider the proposition under their lordships consideration of great importance, but because the merits of the case had been more forcibly stated than he could hope to state them, by other noble lords, and more especially in the comprehensive, able and constitutional speech of his noble and learned friend on the bench behind him. Far as he should be from considering himself bound by the opinion of the Judges on the question which it was proposed to submit to those learned persons, he did not rise to oppose that particular proposition, since it appeared that to obtain that opinion would be satisfactory to the noble and learned lord on the woolsack, as well as to other noble lords. But in order that the answer to the question should be satisfactory to any body, it appeared to him to 741 be necessary that the question should have a precise reference to the case as stated by the counsel at the bar. He was not sure that the way in which the question was proposed to be put, would not have the same effect as would be produced by expressing it in another manner; but certainly he understood, that the object of the counsel at the bar was, to prove, not that an attempt had been made to bribe a witness actually to give evidence against her majesty, but that an attempt had been made to abstract from that witness certain papers in his possession, which were necessary to her majesty's defence. It might be that the terms of the proposed question were applicable to both cases, but to him it would certainly be more satisfactory, if the question to be put were drawn up in such terms, as would point to the alleged attempt to injure her majesty by the abstraction of papers necessary to her defence.—Having thrown out this observation on the wording of the question, he would say a few words as to what he considered ought to be the course to be pursued by their lordships, after the opinion of the learned Judges should have been communicated. He perfectly agreed with the noble and learned lord under the gallery, that it was material that their lordships should take into their view the extent to which undue practices might have been resorted to by the agents for her majesty; and that they should not launch into a kind of inquiry in which those agents might be enabled to deceive them by the creation of a fictitious agency on the other side. It was on that ground alone that he had felt any hesitation on the proposition which had been made by his noble friend near him; because, although it was not probable that such a person as Riganti should be employed for such a purpose by the agents for her majesty, there was not enough to satisfy their lordships that such a thing was altogether impossible. But, with respect to Vimercati, could any one of their lordships, looking at the evidence which had been adduced at this bar, believe it possible that by any delusion however skilfully contrived, that person, evidently acting with the Milan commission, and in constant correspondence with the agents for the bill in this country, could, throughout the whole of that time, be in fact a corrupt agent of the Queen's attempting to deceive their lordships in her favour? He affirmed that the thing was utterly impos- 742 sible; and therefore that no such Inconvenience as that apprehended by the noble and learned lord could result from an inquiry into the conduct of Vimercati.—It had been urged by the noble and learned lord, and by the noble earl opposite, that their lordships bad, in the course of the present inquiry, adhered invariably to the rules of evidence by which the courts below were governed, and therefore that to depart from those rules in this instance would be attended with material injustice and inconvenience. He had heard this assertion with astonishment, for he perfectly recollected, that their lordships had not invariably adhered and considered themselves bound by those rules. He remembered that in a case which made against her majesty, on an occasion precisely analogous to the present, the opinion of the Judges having been taken with respect to a question which it was proposed to put, and that opinion being adverse to the putting of the question, the question was nevertheless deliberately put and that without a single word in opposition to it from the noble and learned lords who now contended for a strict adherence to the ordinary laws of evidence. In support of this assertion he referred their lordships to the 455th page of the printed Minutes of Evidence. They would there find, that the attorney-general wishing to examine the witness, Sacchi, as to any conversation that Marietti had had with him, put the following question:—"Did Marietti make any observation upon the subject of your being a witness?"* To this question the attorney-general of the Queen objected. The consequence was, that it was referred to the opinion of the learned Judges; and in one of those answers which, in the course of the present proceeding had been delivered with so much clearness and ability, and in a manner calculated to throw so much light on the subjects on which they bore, the learned lord chief justice then sitting at their lordships table said, he thought the counsel had a right, upon re-examination, to ask all questions which might be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they were in themselves doubtful, and also of the motive by which the witness had been induced to use those expressions; "but," he added, "I think he has no right to go* See Vol. 2 p. 1294.743 further, and to introduce matter new In itself, and not suited to the purpose of explaining either the expressions or the motive of the witness. And as many things may pass in one and the same conversation relating to the subject of the conversation (as in the case put by your lordships, the declaration of a witness that he was to be a witness in a cause or prosecution) which do not relate to his motive, or to the meaning of his expressions, I think the counsel is not entitled to re-examine to the conversation, to the extent to which such conversation may relate to his being one of the witnesses, which is the point proposed in your lordships question to the Judges."*
§ Lord Redesdale
observed, that if the noble marquis would refer to the first part of the learned lord chief justice's remarks, he would find the matter fully explained.
The Marquis of Lansdown
said, he would read to their lordships the early part of the lord chief justice's observations. They were as follow:—"I agree with the other Judges in considering the two questions proposed to us by your lordships to be, with reference to the point on which our opinion has been asked, substantially one; and that question, as proposed by the House, contains these words—'The witness being re-examined, had 'stated what induced him to mention to 'C. D. what he had so told him;' by which I understand that the witness had fully explained his whole motive and inducement to inform C. D, that he was to be one of the witnesses; and so understanding the matter, and there being no ambiguity in the words, 'I am to be one 'of the witnesses,' I think there is no distinction to be made between the previous and subsequent parts of the conversation; and I think myself bound to answer your lordships question in the negative."—What he wished to point out to their lordships attention was this; that notwithstanding the opinion which had had been thus given by the learned Judges, they would find, that the following question had actually been afterwards put to the witness Sacchi: "Did any one of the Marietti's whom you are acquainted with in London, make any proposition to you touching the evidence you were to give in this cause?" What he contended for was, that the answer to this question brought* See Vol. 2, p. 1308.744 out precisely that which in the opinion of the learned Judges could not be permitted to be brought out, in conformity to the rules of the courts below, namely, the conversation between Marietti and Sacchi. Their lordships, on the mere suspicion that Marietti might be an agent of the Queen's, meddling with a witness, although there was no proof whatever of the fact, were induced, in order to elicit the truth, to allow of a question being put, for the purpose of ascertaining the conversation which had taken place; and they had thereby departed from the principle which the narrow rules of the courts below prescribed. He maintained that on that, and on other grounds which he would not detain their lordships by specifying, and more especially on the ground of the allegation of the counsel at the bar, that a conspiracy existed against their client, it was the duty of their lordships to admit, at the time when it was most important it should be admitted, an inquiry into the nature and extent of the alleged conspiracy. He was utterly at a loss to conceive now any man could believe that the alleged conspiracy ought to be inquired into, and yet contend that it ought not to be inquired into at that time! If not inquired into at that moment, it could not be inquired into hereafter; or if it were, the inquiry could not be followed by the beneficial result which might flow from it if it were put at once. Good God! the allegation of the counsel at the bar was, that a conspiracy existed to prove certain acts against her majesty. On the evidence which it was alleged was the fruit of that conspiracy, their lordships were proceeding to depose the Queen, and having removed her from the throne, they were then to set themselves about inquiring whether the evidence on which they had done so was actually the produce of conspiracy or not [Hear, hear!]. It was gravely proposed to their lordships to pass a bill deposing her majesty, and after having sent that bill to the other House to require their concurrence, and having also required the assent of his majesty to the measure, then to commence a new inquiry, to ascertain whether or not the alleged facts on which they had so acted were the offspring of conspiracy. Why, perhaps by the time that this new inquiry was terminated his majesty might have married another wife [Hear, hear!]. When that was done, it would be a great reparation to his majesty (for to his ma- 745 jesty such a proceeding would be highly injurious), to her majesty, and to the country at large, if it should be found that all the alleged facts on which the bill of degradation had been agreed to, had their source and origin in a scandalous and infamous conspiracy; and that their lordships must set themselves to pass another bill of divorce, by which the new queen should be deposed, and the former queen reinstated. [Hear, hear!]. The real question for their lordships was, in his opinion, what was the best way of bringing out the facts of the case, on whatever principle that might be done. Quite aware of the danger to which the noble and learned lord under the gallery, had adverted, he was unequivocally of opinion that at least as far as related to the members of the Milan commission, every one of whom might be justly considered as forming a part of the agency for the measure, their lordships were bound to hear and examine, and conclude respecting the conduct which had been observed in the prosecution of the proceeding. On these grounds he should feel it his duty to vote for enlarging the rules of ordinary courts to such an extent as might render them applicable to the case before their lordships—a case for which there was no precedent, and which he trusted would never afford a precedent for future times.
apologised to the noble and learned lord on the woolsack for making the observation, but, he conceived that the words in which the question was framed, would still not exactly meet the case.
The Lord Chancellor
replied, that no apology was due from any noble lord for such an observation. On the contrary, it was conferring a great obligation on him. He was anxious to frame the question so, as to render the answer as satisfactory to their lordships, as, under all the circumstances of the case, could be expected.
observed, that it had been contended there was no proof of Vimercati's agency. In contravention of this assertion, the noble lord read an extract from the Minutes of Evidence, by which it appeared that Vimercati had agreed to give ten livres a day to a witness in support of the bill. He should vote against putting the question to the Judges, let it assume whatever shape it might; but still he thought, that the part of the evidence which related to Vimercati's agency, should be referred to in the question.
After some conversation, it was at 746 length agreed, that the following Questions should be proposed to the Judges:
The learned Judges desired leave to withdraw for a time; which was granted accordingly. Having been absent for an hour, the learned judges returned, and prayed for leave for further time to consider the said Questions till to-morrow morning; leave was granted accordingly, and the lord chancellor moved an adjournment, when,
- 1. "If in the trial of an indictment for a capital offence, or any crime, evidence had been given upon the cross-examination of witnesses examined in chief in support thereof, from which it appeared A. B., not examined as a witness, had been employed by the party preferring the indictment as an agent to procure and examine evidence and witnesses in support of the indictment, and the party indicted should propose, in the course of the defence, to examine C. D. as a witness to prove that A. B. had offered a bribe to E. F. in order to induce him to give testimony touching the matter in the indictment, E. F. not being a witness examined in support of the indictment, or examined before it was so proposed to examine C. D., would the courts below, according to their usage and practice, allow C. D. to be examined for the purpose aforesaid, or could such witness, according to law, be so examined, if the counsel, employed in support of the prosecution, objected to such examination?
- 2. "If in the trial of an indictment for a capital offence, or other crime, evidence had been given upon the cross-examination of witnesses examined in chief in support thereof, from which it appeared that A. B., not examined as a witness, had been employed by the party preferring the indictment as an agent to procure and to examine evidence and witnesses in support of the indictment, and the party indicted should propose in the course of the defence to examine G. H. as a witness to prove, that A. B had offered him a bribe to induce him to bring to him papers belonging to the party indicted, G. H. not having been examined as a witness in support of the indictment, would the courts below, according to their usage and practice, allow G. H. to be examined for the purpose aforesaid, or could such witness, according to law, be so examined, if the counsel, employed in support of the prosecution, objected to such examination?"
The Earl of Carnarvon
rose. He said, he did not conceive that their lordships could be more unprofitably employed than in sitting in that place discussing technical questions; because it appeared to him, that the point of law which had been so much debated had no connexion whatever with the point of duty, on which they would ultimately be called to decide for themselves. Whether this alleged conspiracy was proved or was not proved, the real question for their lordships' decision must be, whether they would yield to the demand of ministers, first to give them the human sacrifice for which they thirsted, and, when they had immolated the victim, to proceed to inquire by what foul crimes, by what wicked artifices, that victim had been dragged to the altar? This was the most extraordinary proposition that a minister of the Crown had ever assumed, the right of submitting to their lordships; but still it was the true question now before them. Their lordships might amuse themselves by putting questions to the learned Judges, but it was impossible for them to get rid of the question which he had stated; and therefore, he thought they had better at once meet that question boldly and manfully. But if they thought proper to wait for a decision on this point of law, which, he repeated was wholly irrelevant to the point of duty, it would seem as if they were afraid of the great question. He would not apologise for this short appeal, which, to some, might appear to be a waste of time, because he was convinced that they could not waste their time worse than by pursuing the line of proceeding which they had adopted.
§ Lord Erskine
rose for the purpose of proposing, that another question should be referred to the learned Judges, with the view of ascertaining, whether evidence like that on which their lordships had been debating, and on the propriety of receiving which, no decision had yet taken place, might not, under particular circumstances, be legalized, and rendered admissible. Although the question put to the learned Judges might be by them decided in the affirmative, he would assume that a negative decision had taken place, and under that supposition, he would put the following question:
3. "Supposing that, according to the rules of law, evidence of a conspiracy to suborn witnesses in support of any prosecution ought not to be admitted, except 748 such as directly applies to a prosecutor or an agent employed by him, general evidence of such a conspiracy may not, nevertheless, in the first instance, be received, as a preliminary step to affecting the prosecutor himself, or any agent employed by him; and whether the same rule would not apply as to receiving evidence from a defendant indicted, seeking to establish the existence of a conspiracy to suborn witnesses against him?"
The Lord Chancellor
said, that though he did not see how this question bore on the proposition in dispute, yet the same principle which led him yesterday to state, that if any noble lord wished to have the opinion of the Judges, he should feel obliged to him for demanding it, and that he would look with deference to the opinion of those learned persons, whatever his own might chance to be, now led him to think that the question of his noble and learned friend ought to be put.
§ The Question was referred to the Judges, and the House adjourned.