Horace Twiss.

The public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) online

. (page 9 of 65)
Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 9 of 65)
Font size
QR-code for this ebook

that government will not aid a project which must remove the chancellor from his
house the next hour that it takes effect, and from his office at the same time. I am
confident that I can satisfy you that it could not reasonably be expected of me that I
should adopt any other conduct if this matter takes effect, much as I should in every
way wish to prove myself, Yours most truly,

" I 1 ] i. ntiN .

"I have no doubt that I could settle the matter by arrangement with the proposed

Lord Liverpool answered thus :

"Coombe Wood, Sept. 3d, 1820.
" My dear Lord,

"I hope to be able to-morrow to set your mind at ease about the house in Hamilton
Place. I have desired Colonel Stephenson* to prevent, if possible, the purchase of
it by or for the queen, and have little doubt he will succeed.

" Believe me to be, my dear Lord,

" Very sincerely yours,


* Of the Office of Works.
VOL. II. 5


The neighbourly intentions of the queen and her immediate friends
toward the chancellor were not to be damped by the Office of Works.
A treaty for buying the house by means of private contributions,
independently of the aid of government, was instantly opened on her
behalf by Mr. Alderman Wood ; but it was as promptly counteracted
by Lord Eldon.

(Lard Eldon to the Hon. Mrs. E. Ban fees.)

(Sept. 6th, 1820.)

"The queen, by her friend Alderman Wood and her city friends, was yesterday
about to buy the Duke of Bedford's house in Hamilton Place, for the express purpose
of annoying me. To defeat this, I managed, by a little advance in price, to buy it in
the name of a friend, before Wood's contract was complete. I had no other means
of preventing the destruction of my present house as a place in which I could live,
or which any body else could take. The purchase-money is large but I have already
had such offers, that I shall not, I think, lose by it."

In the short vacation afforded by the adjournment of the House of
Lords, Lord Eldon paid a visit to Encombe. Writing thence to his
brother, he says :

"I was saluted at Ringwood by a collection of people, shouting into my coach*
while changing horses, 'Queen Caroline for ever:' and I had the same salutation
from passengers on the road. Here they have settled all matters, because they say
sweepingly, Italians are not to be believed. In short, the cause here is all against
the king. I have long thought that the effect of recrimination will be produced, even
if evidence of recrimination should be refused. But I wanted some scrap, to enable
me how to argue the point whether it should be refused, for I can hardly escape
being called upon to say something about it. In ordinary bills of divorce, they are
not tendered to the House in the first instance by a lord: the husband petitions for
leave to have a bill brought in: the proceeding is therefore in the nature of Ids suit.
As against him, it is fair to show that he ought not to be relieved ; he is a party, in
somewhat of a strict sense, in the proceeding; he has therefore no right to complain,
if his actions are examined in that proceeding; of his actions, Commons, Lords and
king are to judge. But in this proceeding, the king is no petitioning party (more than,
one foolish thing has been said by those who should not have said it, attending to
this circumstance,) the bill is not brought in upon leave at his suit a lord brings it
in upon his own responsibility might bring it whether he would or not he has
not, as a petitioner, placed himself in a situation in which he has submitted his
actions to examination in a proceeding in which he can repel imputation by proof,
even if, as a king, he could submit his actions to examination he has nothing to do,
in form and upon principle, with the proceeding, till the bill is tendered to him for
his assent to what Commons advise and Lords advise: they can't try his conduct.

" The received notion, that this would be treason if committed here, is to be looked
to. Suppose, it had been committed here, adultery on his part would have been no
defence could not have been given in evidence. See then what would be the case
she is convicted does he pardon, so as to save her life] If he can't have a
divorce, because of adultery on his part, he must either let the law take its course
against her, and divorce by execution, or take the pardoned traitor to his arms to
love and to cherish.

"Notwithstanding all that can be said, I should, if was to decide to-day, argue the
case as if recrimination had been proved. But it is very essential to settle the point
whether it should be admitted; for, whatever notoriety there may be in this case, it
would be monstrous in a possible case to admit it: the case for instance in which,
after shameful notorious adultery in a wife, the husband, suing for a divorce, had, in
a single instance, in an unfortunate moment, sinned, righteous altogether before his
wife's adultery."

On the 3d of October, the House of Lords reassembled, and Mr.
Brougham opened the queen's defence. He was followed, on a sub-
sequent day, by Mr. Williams, and witnesses having been called on
the part of the queen, her case was summed up by Mr. Denman and


Dr. Lushington. The attorney and solicitor-general were both heard
in reply, and on the 2d of November the lord chancellor opened the
debate, on the motion for the second reading of the bill. The follow-
ing extracts are from his speech, as given in Hansard's Parliamentary
Debates, according to the original edition corrected by Lord Eldon

He began by some observations upon the order of proceeding; and after express-
ing his opinion, that no man could properly vote for the second reading, unless he
was satisfied that the allegation, in the preamble, of an adulterous intercourse, had
been fully proved, he proceeded to make some observations upon the nature of the
measure itself:

"Much," said he, "has been urged in the way of objection to that species of par-
liamentary proceeding denominated a bill of pains and penalties. I will not detain
your lordships by a long disquisition on the merits or demerits of such bills. I wish,
nevertheless, to say a few words respecting them. It has been repeatedly declared,
in the course of these proceedings, that such bills are not justifiable, unless in cases
of extreme necessity, in which the safety of the state is imminently endangered.
Now, my lords, in looking back as far as the period of the Revolution, and I wish to
confine myself within that period, I find that such bills have been passed over and
over again, when there has been no such urgent necessity no such pressing diffi-
culty. In some instances, indeed, such a necessity has existed; but there are a great
variety of cases, in which there appears nothing of the kind. In a former discus-
sion on this subject, I took the liberty of saying, that a bill of pains and penalties,
provided the proceedings are properly conducted, is more favourable to the accused
than impeachment I am not asking at present whether it is or is not more constitu-
tional than an impeachment. When I say 'if the proceedings are properly con-
ducted,' I mean when the inquiry is carried on according to the ordinary rules of
evidence, and the decision is governed by the ordinary principles of law. What is
the nature of an impeachment! In an impeachment, the proceeding in the House
of Commons must be an ex parte. proceeding. One vote must decide the question;
and, if that vote should be erroneous, the error is final.* The proceeding is not
similar to one before your lordships. In the House of Lords we have the means of
pursuing an inquiry according to the ordinary rules of evidence, given upon oath,
and we are governed by the ordinary principles of law. In the House of Commons,
there are no such means ; yet without those means they are to pronounce whether
the accused person is guilty or not guilty. That question is decided by only one
vote; and if that vote should be erroneous, the error is without remedy. But how-
is it, my lords, in the case of a bill of pains and penalties 1 In the first place, the
question undergoes an examination in both Houses, not, as in the case of an im-
peachment, an ex parte examination in the House of Commons; but an examination
in which the evidence is heard on both sides; an examination in which an oppor-
tunity is afforded for scrutinizing the facts; an examination in which the error of
to-day may be corrected to-morrow, and the error of to-morrow may be corrected the
day after. It has been urged, and with considerable weight, that by adopting the
present course of proceeding by a bill of pains and penalties, we submit the judg-
ment of this House to the judgment of the House of Commons. But, my lords, are
we not doing this in the case of every divorce bill, which originates in your lord-
ships' House] I do not state now whether this will be a divorce bill or not; that is
a subject for after-consideration. The case might have been much more anomalous,
had the proceeding been first by impeachment, and afterwards by a bill brought in
upon the verdict of guilty on impeachment. If that mode of proceeding, by two
measures instead of one, had been adopted, might you not have involved the House
of Commons in a contradiction, if either on a bill originating with them after a con-
viction on an impeachment, or on a bill so originating with this House, the House of
Commons, examining evidence on both sides of the question, should come to a dif-
ferent conclusion from that upon which they voted the impeachment upon hearing
the evidence of one side onlyl

" But, passing this by, I come to another objection which has been made, and made
with much emphasis, to the course that has been pursued in this case; namely, that
the accused party was not furnished, in the first instance, with the specification of

* Final, as far as respects the House of Commons.


the charges, and with a list of the witnesses by whom those charges were to be sup-
ported. I mention this, my lords, because it has been argued that, in consequence of
this omission, the party accused has been placed in a situation of difficulty; and
because I am perfectly ready to acknowledge that, when it shall appear that any such
difficulty has existed, it is your lordships' duty to give the party accused the benefit
of that fact, and proportionably to incline in her favour. But we ought not to raise
up visionary difficulties where no real difficulties exist. My lords, I ask in what
possible way could the list of witnesses have been communicated so effectually as by
producing those witnesses at your lordships' bar, and then postponing the defence,
which the accused party was called upon to make, to the period to which that party
wanted or chose to postpone it? I am prepared to admit, that the immediate cross-
examination of a witness may be of great advantage ; and, with regard to the absence
of Kestelli, I have already given my opinion; but I say, that the loss to the accused
party of an immediate cross-examination is by no means equal to the benefit of
hearing the whole case and trial as against her, and then giving her the opportunity
of meeting the charges and commencing her defence whenever she pleases. The
benefit derived from the one privilege is next to nothing, as compared with the im-
mense benefit resulting from the other.

" My lords, you are, in this important case, bound to attend to one of the great
principles of British justice principles which are inseparably connected with every
part of our constitution, and which, if you once relinquish them, I fear you will
never regain, or find any thing to console you for their loss; I mean that, in every
case of charge, you are to recollect that accusation is no proof of guilt. An
accused person may, nevertheless, be an innocent person; and your lordships are
bound to consider an accused person an innocent person until guilt has been satis-
factorily proved. So also, either in this form of proceeding, or in the way of im-
peachment, or under whatever shape an accusation may assume, it is your lordships'
bounden duty to pronounce an accused party innocent, unless you are perfectly
satisfied that the guilt of that accused party has been established by evidence. You
are, likewise, my lords, in looking at the nature of the evidence, to consider the
peculiar difficulties which may belong to this case. My lords, you will recollect it
has been urged that there has been, and there may have been, and indeed it may be
taken for granted that there has been, much more facility with respect to the pro-
duction of witnesses in support of the charges than with respect to the production of
witnesses in answer to them. Of that fact, if your lordships are of opinion that such
is the fact (and I do not say that it can be denied) the accused ought to have the full
benefit. Your lordships have also to consider the circumstances which have been
disclosed with reference to Restelli. The imputations upon him may have been
founded in mistake: or, on the other hand, there may have been there have been, if
you please corrupt endeavours on the part of that and of other individuals to pro-
duce, by bribery and subornation, testimony in support of the allegations in the bill.
Of that fact, also, if it be a fact, the accused ought to have the full benefit; not only
as it may operate to induce your lordships to lay aside that particular testimony to
which it directly applies, but as it may operate to induce your lordships to regard
with some suspicion the testimony even of those witnesses to whom it does not
directly apply. Of all these considerations the accused party ought to have the full
benefit. Your lordships ought to approach the consideration of the evidence with all
that sincere disposition to scrutinize the testimony that has been adduced in support
of the accusation, which is justly due to the illustrious individual accused.

" But, my lords, the ground of the opinion which I am about to state to your lord-
ships is this: Laying aside all the testimony in this case, which can by possibility
be suspected, I ask myself this question Does the unsuspected evidence, which has
been produced in support of this bill, and does the testimony which has been pro-
duced in reply, together with the negative evidence, or the want of that evidence
which might have been produced in reply; I say again, laying aside all evidence
liable to suspicion or which has been contradicted, does the unimpeached testimony
which has been produced on the one side, connected with the positive testimony
and the negative testimony, or want of evidence which might have been produced on
the other, support the allegation of an adulterous intercourse, or does it not?

"The course which I shall take is of this nature ; and I am now about to state the
opinion, which, after the most painful and anxious attention, that course compels me
to form. I apprehend then at least, my lords, so it seems to me that, if we look at
one or two of the cases or circumstances which have been proved at your lordship's
bar, by witnesses entirely beyond suspicion, to whom suspicion has never attached


during the whole of these proceedings, and if we then look at the situation and his-
tory of the person with whom the act of adultery is alleged to have been committed
it appears to me, from this view of the subject, I am very sorry to say it, but I
cannot shrink from the duty of saying it, that we cannot possibly draw any other
inference but that there has been an adulterous intercourse.

"My lords, with respect to the negative evidence for the bill the want of contra-
diction to the evidence in support of the bill it is my duty to say, that I have fre-
quently thought more effect has been given than ought to have been given, in what is
called the summing up of a judge on a trial, to the fact that there has not been the
contradiction, on the part of the defence, which it is supposed the witnesses for the ac-
cusation might have received. For, my lords, we ought to look at the circumstances
of a case in which this absence of contradiction occurs. It may often happen that,
in the course of a trial, circumstances are proved which have no bearing on the real
question at issue; and it may also happen that facts are alleged and sworn to by
witnesses which it is impossible for the accused party to contradict; circumstances
may be stated by witnesses which are untrue ; yet they may not be contradicted,
because the party injured by them, not expecting that that which never had any exist-
ence would be attempted to be proved, cannot be prepared with opposing witnesses.
So also, in cases in which an individual witness speaks to occurrences at which no
other person was present but himself. There it may be absolutely impossible to con-
tradict him. But, my lords, in a case in which the facts sworn to by a witness are
sworn to have occurred in the presence of many individuals, and when those indi-
viduals (which we know to be the case in the present instance) who are within the
reach of the party whose interest it is to contradict such testimony, are not produced,
then the want of that contradiction becomes a matter of great importance, and for
many reasons. I have no right to impute to any man that he has given false and
perjured testimony, when other persons were present at the period to which his testi-
mony refers, whom I have the power to call but whom I decline calling. Unless I
call those persons to contradict the witness, he is clearly entitled to credit. In my
opinion, such a circumstance is a tacit admission of the fact by those whose interest
it is to contest and deny it. If they do not contradict the fact hy testimony which
they have the means of producing, they tacitly admit that it is incapable of contra-
diction. The party who declines to avail himself of such an opportunity of disprov-
ing the evidence on the other side, so far from being entitled to impugn that evidence,
confers additional credit upon the testimony which he thus leaves uncontradicted."

Lord Eldon then entered into an examination of the evidence upon this case in its
principal points, and having stated them in outline, he concluded thus:

" Such, my lords, is the view in which I regard this great question. There are
many points of the case to which I have not alluded, and to which I do not intend to
allude. But taking into my consideration all that has been sworn by unimpeached
and uncontradicted witnesses ; adverting to what passed, both while her majesty was
on board the Polacre, and before and after that period, at Aum, the Barona, the Villa
d'Este, Garlsruhe, Catania, and elsewhere; referring to the various acts of famili-
arity which have been proved, and which there has been no attempt to deny; and
recollecting the rapid and extraordinary promotion of this man and his family, and
their having been all brought about her majesty's person, with the exception of his
wife, I cannot withdraw myself from what appears to me to be an imperative duty,
namely, to express my firm belief that an adulterous intercourse has taken place. I
express that opinion, because, although the positive act of adultery has not been
seen, and could not be seen, it is the language of the law that, if the circumstances
are such, that a reasonable and plain man, addressing his mind dispassionately to
the consideration of those circumstances, and to the principles of conduct by which
human nature is governed, cannot but infer the commission of the crime, it is suffi-
cient; although the absolute fact itself has not been proved. Of the maxims of law,
as to legal presumptions, I am sure. Whether or not your lordships think that such
a case as that which I have described has been made out is another question.

"One word more, my lords, and I have done. As to what has passed or is passing
out of doors, I will take no notice of it, for I am not supposed to hear it, or to know
any thing about it; only this I will say, that, whatever has happened or whatever may
happen, I will perform my duty here. But in the course of this solemn inquiry, your
lordships have heard from the bar of this House, what I was very sorry to hear, and
what I believe was never before addressed to a court of justice. Something like a
threat was held out to your lordships, that if you passed judgment against the queen,
you would never have the power of passing another judgment. I do not profess to


use the words of the speaker, but the impression is distinct upon my mind. My lords,
however that may be, I will take upon myself to declare, that an address of such a
nature, such an address of intimidation to any court of justice, was never until this
hour considered to be consistent with the duty of an advocate; and that such an
address, whether an advocate has a right to make it or not, ought to have no effect
whatever on your lordships. You stand here as the great and acknowledged protec-
tors of the liberties, the character, the honour and the lives of your fellow-subjects,
and you cannot discharge that high trust a moment longer than while you can say to
one another, and for myself, if I had not a moment longer to live, I would say to

y OU ' ]3 e j u st and fear not !' My lords, I know the people of this country. lam

sure that, if your lordships do your duty to them, by preserving their liberties, and
the constitution which has been handed down to you from your ancestors, the time is
not far distant when they will do their duty to you ; when they will acknowledge that
those who are invested with the great judicial functions of the state ought firmly to
meet all the reproaches to which the faithful performance of those functions may
expose them; to court no popularity ; to do their duty ; and to leave the consequences
to the wisdom and justice of God, who guides the feelings and actions of men, and
directs the course and consequences of all human affairs. My lords, I have shortly
stated my opinion and the grounds of it. Having thus discharged my individual duty,
it is for your lordships to declare what it is your pleasure to do with the bill before

After a debate of four days, the House divided, on the 6th of
November :

Content ... 123

Not content ... 95

Majority for the second reading 28

The smallness of this majority, in a House where 218 peers were
present, gave rise to a very general anticipation that ministers would
abandon the measure. Lord Eldon strongly deprecated such a dis-

(Lord Eldon to Sir William Scoti.)

(1820, probably the beginning of November.)
" Dear Brother,

"I complained not only of a deadly want of energy in the public, but a want of it
in the administration. Most expressly I complained of the latter want. I think, if
the latter did not exist, we should not see quite so much of the former; whereas most
of those who are infected with the latter, attribute their own conduct, I think errone-
ously, to necessity arising out of the apathy of the former.

"How is it possible that ministers can help the propagation of reports ? How is
it possible that they can avoid determinations, in given cases, to go out? Their
friends, as they call themselves, are constantly complaining that the cabinet don't let
them know how much they make a point of this or that matter, excusing their luke-
warmness and their non-attendance, because they were not informed that this or that
point was material; if they had been so informed, oh ! they would have been in their
places and have given the most entire support! Ministers are, therefore, driven to
state upon what they put their existence, to those they believe to be their friends; but
it does so happen, that some of those whom they fancy to be such are living with all
parties, wishing to be well with all parties, and, therefore, some studiously and some
by surprise upon themselves, giving to the opponents of ministers the information
wh ich ministers meant to give exclusively to friends, and which they have been com-
pelled to give them. It is some such friend who has told Brougham, or the person

whoever he may be, what has been told to Lady , who has been as willing as

any body to keep herself out of a scrape, of being a witness on a late occasion. If
ministers do mean to insist upon the queen's being kept out of the Liturgy, could
they permit all whom they call friends to be pledging themselves, before Parliament
meets, that they, their friends, will make no point of the Liturgy? The king may be
false, but he has told me twenty times, and within these forty-eight hours once, that

Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 9 of 65)