she had been allowed. He of these proceedings would be should rest his argument upon found upon their Lordships' jourthe case of the Duke of Norfolk nals, two pages of which were in 1691. He could refer to that actually filled up by the specificase for a sanction to all he cations allowed to the solicitaclaimed on Saturday. The tion of the accused. All these Duchess's proctor attended on proceedings were, he repeated, their Lordships: they were a- allowed in initialibus, as was ware that the proctor was a the expression in civil law. All solicitor in Doctors' Commons. these minute particularizations He would mention, as it was their Lordships, upon their jourmaterial to the understanding nals, would be found to have of this point, the order of pro- allowed in the case to which he ceeding, as he found it in their alluded: and yet, notwithstandjournals. On the 14th day of ing the most extraordinary deJanuary, 1691, the order was tail of apparently guilty factsmade for the particulars. On three or four witnesses indeed the 16th the specification was spoke, in their examination-inordered. On the 19th the ob-chief, to the fact of finding the jection was made to the gene- Duchess actually in bed with rality. On the 23d the witnesses her paramour, and another spoke for the Duke were brought to of what had occurred in terms their bar, and two whole pages too revolting to delicacy for him of their journals contained no to repeat; yet, notwithstanding other matter but this examina- all these proofs and circumtion in initialibus, to use a civil stances, a few questions in crosslaw expression. The examina-examination, had had such an tion extended to names, mar-effect as to induce their Lordriage, abode, &c. The proctor ships to throw out the bill. The stood in the very situation in case to which he alluded, was which he (Mr. Brougham) had one, where proof to ocular destood last Saturday, and he was monstration was tendered and allowed to examine in the pre- taken, and yet the bill was rencise terms in which he had pro-dered a nullity by the crossposed to examine on Saturday. examination of the witnesses. He cross-examined thus: Did So much for the case of the you serve any other master he-Duchess of Norfolk, in 1691. He fore your present master? When did not mean to anticipate any did you leave him?" He would thing in the way of reply to the implore their Lordships' atten- arguments used by the learned tion to what had been their Counsel on the opposite side. practice in the case to which he On the present occasion such alluded. On the 19th a further a line of argument would be and more minute specification quite premature; indeed, it was called for, and also allowed. would be more-it would be On the 23d witnesses were pro- quite irregular, unjust, nay, induced at the bar by the then decent. If it were possible that Duke of Norfolk. The whole the example had been set up of

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premature comment upon any ceedings they were to be placed

in quite a different situation from that in which such parties were placed in the courts below 1Was this advantage, then, to be taken from them in one part, and were they in another to encounter, disadvantages in which no party was ever, placed in any court under either ordinary, or

arguments he might have commenced and left unfinished, then he should say that the example was one, which would be more honourable in the breach than the observance. He could not believe, however, that such an example had been set him: still less could he believe that it came from any noble person on whom extraordinary circumstances? in would hereafter lie the responsi- any way in which their lordships bility of deciding upon his ho- could place him, he had disnour" on the whole merits of advantages to encounter on the this case. To believe that an part of bis client, which no perexample of such a kind could son could have imposed upon. be set in such a quarter, would him before the ordinary tribunals be to credit the existence of of the land. These disadvan a monstrous indecorum, where tages arose out of the very naall was no doubt pure and un-ture of the anomalous mode of sullied. If, however, the exam- proceeding which had been in ple were set even in so high stituted.. O my Lords, (ex a quarter, he must refrain from claimed Mr. Brougham) mon following it; he must in common strous indeed will be the dis decency keep clear of a course advantage to which we shall which he thought utterly in- here be exposed, in comparison decorous and indefensible. But with the situation in which the he would come to the more ma- courts of common law would terial part of what he had now place us, if your lordships will to address to their lordships. now tell us that the course of Did they, he asked, with an your proceeding, and the only earnestness that he trusted be- course will be, first to hear the spoke his anxious suspense for examination-in-chief, then the a reply, mean now to retract cross-examination, then the re? what was termed "the extraor-examination, and after that noë dinary advantage" which from thing but what shall be provi the outset they were disposed to ously submitted to the opinion give to his illustrious client in of your lordships: no question the progress of the case? Was to be asked a witness except this promised advantage (to use through your lordships: no se the term applied to it) to be now ries of uninterrupted questions10 withdrawn? And were the coun- be allowed us in the situation in sel for the Queen to be now which we are placed. If this placed in one part of the conduct shall be your lordships' final of this cause, as parties were and irrevocable decision, then, placed in the ordinary course of I repeat, monstrous will be the proceedings in courts of law, disadvantages which must elle while in another part of the pro- viron us in the performance of

X

was safe, without it innocence conferred no security. He had been told that he was to enjoy in this case an extraordinary

our duty; and still more monstrous is it to tell me, that this is done in conformity with the ordinary rules of law." He implored their lordships to pause advantage, not enjoyed by an before they placed him in such accused in any ordinary case; an embarrassing situation, and for that, after the whole evidence -before they suffered it to be pre- of the prosecution had been tended that it was justified by gone through, his Illustrious any analogy with the practice of Client might have two months the ordinary tribunals. The ac- to prepare her defence. He wishcused in the courts below had, ed indeed he could take comfort upon the very form of the pro- from this, which some were ceeding against him, the place pleased to call an extraordinary where the crime was said to advantage. But where were have been committed; in a cri- the boasted enjoyments of this 'minal case, indeed, the law gave extraordinary advantage? Just him this information. It was let their lordships look for a idle, therefore, to talk of any moment at the situation in which analogy between this course of he should stand before any or proceeding and that in any of dinary tribunal. Would the the courts below, when the very witness there retire from Court, essence, as well as the form pro- as he must here, without underposed to be set, showed not an going the test of a cross-examianalogy but a contrast. And nation at the instant, from a yet this was the fair, the full, counsel well prepared by prethe candid manner in which vious information to enter into practice of the courts below minute details? In any ordihad been quoted before their nary court was the accused lordships. All he wanted was, liable to have his Judges prejuthat they should abide by the diced by the daily publication of practice of the Courts below; ex-parte evidence under all the he desired no more; that was influence which was incidental all he asked at the beginning, to such a situation? Not only and he now asked nothing more, had the illustrious accused this when, as he believed, their pro- prejudice to encounter from the ceedings were about to come daily publication of what did to a close. All he conjured of occur, but superadded to this, their lordships was, that they she had to encounter the propawould take these rules as agation of the vilest falsehoods. whole, and not frighter them away partially; not to adhere to them rigidly where they fettered the Queen, and depart from them to benefit the King. He again repeated, that all his Illustrious Client desired was evenhanded justice; with it she

For instance, in an Evening Paper of Saturday it was stated, that when the evidence came to the marks of adulterous intercourse in a bed, it was stopped. Now that was a gross and deliberate falsehood; it was too a wilful one, and fabricated for a

base purpose. These infamous over this space and along that lies were the more dangerous journey he had to cast his eye, from the circumstances of their without mark or guide to fix it being published as a representa- on any spot which it might be tion of facts occurring before advisable to measure for the their lordships. He prayed purposes of her Majesty's detheir lordships to see the abso- fence. Their lordships, with a lute nullity they would make of view to obviate this difficulty, his cross-examination, if they had promised to afford a delay confined it to the "extraordinary of two months, to seek the neadvantage," as it was called, of cessary information, from which showing special cause for putting was to be drawn the materials each question, and then putting for her Majesty's defence. Much it through their lordships. To better would it have been, had avail himself of this extraordi- their lordships afforded that innary advantage, he was in the formation which would have first place left without materials. rendered any delay unnecessary. How was he to pursue the cross-It was very easy for noble lords examination of a witness, whose to say that they ought to reguface he never saw until he was late their course by the practice produced to give his evidence? of the Courts below; but did Such was the case of the female witness whose examination was suspended: she spoke of occurrences at Carlsrhue, and that was the first time he had ever heard of such a place as having any relation to this case. To call upon him, therefore, now to cross-examine this witness, was, in fact, to extract from him a confession of his ignorance of any thing upon which he could cross-examine her. Such was the state to which he was reduced by the ignorance of names, of dates, of time and place, in which it had pleased their lordships to keep his Illustrious Chent. The consequence of the step already taken by their municated either by the indictlordships became more intricate ment or by the information. for him, from the circumstance Such were the wholesome proof the great distance at which visions of the English law: the this investigation was carried on, descendants of the framers of it from the places through which may have become wiser than her Majesty had journeyed dur- their ancestors, and may lay ing the long period of six years; down new rules for their own

they not recollect, that in all judicial tribunals, any delay, so far from being considered advantageous to the accused, was felt to be directly the reverse? With that feeling it was always considered prejudicial to the; party on trial, if even a single day intervened between the opening of the case and the defence of the accused. The prejudice of this delay was avoided by the very nature of the forms of judicial proceedings in this, country. If the case were of a civil nature, the declaration contained a full specification of the charge; if of a criminal nature, the same information was com

conduct. Until, however, this the nature of the evidence pre

was done, he agreed that the viously given; and yet, how-
established forms and practice ever important such testimony
of the courts below ought to re- might be, if the proposed rule
gulate their lordships' proceed- were adopted, he should be un-
ings; and all he conjured or de-able in the face of that rule to
sired was, that he should, on the tender such evidence. How
part of his Illustrious Client, could he produce the evidence,
have the benefit of these forms unless he were permitted to call
and of that practice. Did their back, suppose, the last witness,
fordships believe that there was and ask her, was such and such
so much magic in the dress of a the fact? If she admitted it to
counsel at their bar, or such a be true, then she disqualified
charm in his education and legal herself from being a witness; if
acquirements, as that he could she denied it, then he should
at sight of a witness whom he have to offer proof of the facts
never saw, nor ever heard of be- out of the mouths of other wit-
fore, strike upon all those points nesses.-Their lordships knew
of character and conduct which that counter-declarations form-
it were necessary to sift to ascer-ed a large part of the materials
tain moral credibility, and at for cross-examination. He would
once to enter upon a cross-exa- appeal to those of their lord-
mination with as little prepara-ships who had had experience
tion as he could read from his in Courts of Law, how often a
brief? He would for a moment knowledge of such counter-
suppose a case which would declarations had been elicited
show the difficulty in which by a sifting and persevering
their lordships' rule of proceed-cross-examination. A counsel
ing would, if rigidly adopted, cross-examining had to feel his
place him. Suppose that in way with a reluctant witness:
three or four weeks hence he he had to get his answers just
discovered any thing which went
to destroy the testimony already
given by any witness. Suppose
that a witness, A. B., had receive
ed a sum of money on condition
of his swearing against the
Queen-nay, further, that the
passing of this Bill of Pains and
Penalties was to be a condition
antecedent to the payment of
the money. All the noble and
learned lords who heard him
at least, and he trusted all their
lordships generally, would be
struck with the powerful effect
which this disclosure, if substan-
tiated by proof, must have upon

as he could, and to compare and
collect the parts in his progress;
he had, as it were, to eviscerate
the truth from the witness. It
was in vain to say this could be
done if a counsel were to pro-
ceed step by step, with each
question put (if they were put)
through the medium of their..
lordships, and liable every mo-
ment perhaps to the demurrer
of the learned counsel opposite.
When their lordships talked of
any analogy with the proceed-
ings of the other courts of law,
he begged to ask at what period
since the foundation of those