fact, and that it is competent to this House, and not contradicted by precedent, that it may, by right and ancient usage, appoint the trial to be held in any chamber your lordships shall judge fit. But let us, my lords, come nearer to our own times; let us refer to the well known case of the earl of Strafford, who being ordered to be tried at the bar of this House, the Commons objected to it; and after several resolutions taken by both Houses on the subject, a conference was appointed, at which the proof was put on the Commons to esta blish the precedent. And when the earl of Bath reported the proceedings, it ap peared the Commons were obliged to rest their arguments solely on the ground of convenience. Such was the temper of the times, joined perhaps to the prevailing dis position of the House at that time, that their lordships conceded, and the trial was held in Westminster-hall. The reasons assigned by the Commons, besides the argument of inconvenience, were similar to some of those now urged. The necessary solemnity was much insisted on, so was the po ous consequences, and of course requiring ster-hall. On the point of inconvenience, none of those solemnities usual on similar I shall say nothing. What I contend is, occasions; but in this again I differ very that the position stated in the motion, widely from the learned lord, for I think" that it is unprecedented, &c." is false in a conviction for felony, pronounced by your lordships, as the first court of criminal judicature, a punishment that the most obdurate must very sensibly feel. The offence with which the lady is charged is of the blackest dye, and said to be attended with the most aggravating circumstances of criminality, to shew that the trial should be had with all possible solemnity such a charge demands. If your lordships should determine that the place of trial still remains at your own option, I have one of the greatest authorities to shew that you cannot dispense with the usual form of appointing a lord high steward. Lord Coke says, "Though the House of Peers have a right to try one of their own body at the bar of their own House, yet there must be a lord high steward appointed to preside at such trial." On the whole, my lords, taking the inconvenience, the point of precedent, and the solemnities required on such oc casions, time immemorial, I shall move you, "As the Chamber of Parliament has been found an inconvenient place, and as it is unprecedented to try a peer or peer-pularity. What was the consequence of ess, indicted for felony, at the bar of this House, that Elizabeth, calling herself duchess dowager of Kingston (indicted by the name of Elizabeth Hervey, wife of Augustus John Hervey, esq. now earl of Bristol, and one of the peers of this realm) be on Wednesday the 24th of January next, in Westminster-hall." The Earl of Marchmont. I do not rise to oppose the whole of the noble viscount's motion, though I think it is expressed in harsher terms than I would wish to see adopted. What I rise chiefly for is, one of the grounds on which it is maintained, that of its being unprecedented to try a peer charged with felony at the bar of this House; because I believe I shall be able to satisfy your lordships, that the precedents all tend the other way. From the earliest and most authentic records, so early as the reign of Richard the 2d, we find that no one place or chamber had the preference to another, the choice entirely resting in the House. This is plain, from their lordships appointing the Chambre Blanche for the trial of the earl of Arundel in the reign of Richard the 2d, which could never have been the case, if the constant usage had been to try peers in Westmin this first concession, which was followed by several others, is totally needless to repeat. A case of a similar nature happened the very next year, more immediately ap plicable to one part of the present motion; that was the case of lord Mordaunt for felony. Here the same controversy was renewed, and continued from the beginning of 1641, to June 1642, when the legal government being overthrown, the matter never came to be finally settled. On both those occasions the great Selden, to whom your lordships are much indebted for the very valuable manuscripts now in your pos session; and who had twenty years before received the thanks of both Houses, for his useful and learned researches into the ancient records of the kingdom, particu larly into those respecting the origin of parliaments; was an active member of the other House; and would, it may be well presumed, have maintained the usage trying peers in Westminster-hall, at the conference, if in his power. That not being the case, I am, I think, warranted, as well on that account as that the Commons themselves gave up the point in controversy, and rested all upon the argument of inconvenience and popularity, + of in affirming that it is not unprecedented to try a peer or peeress indicted for felony at the bar of this House. The precedents now alluded to prove this, though neither of the noble lords were tried here, for the reason before assigned, their lordships having relinquished in one instance on the ground of convenience, and in the other Imatter having dropped, and in both the House having manifested a spirit of improper concession, which, in the end, terminated in their own ruin and dissolution: not, however, objecting to the ground of inconvenience, if the noble viscount consents to withdraw that part of his motion respecting the precedent, though I think it will still have the appearance of violence and severity, I shall not be for disagreeing to the motion thus amended. quote a single instance in which any peer has been tried for felony in any other place but Westminster-hall. The precedents besides, urged by his lordship, are in the reign of Charles the 1st. I should have been better satisfied, if his lordship had referred to some since the Revolution: for long before that period, the trials in this House were utterly disgraceful. It was in the power of the prince, by selecting a certain number of his creatures, under the denomination of a committee, to sacrifice any man, who by his independent spirit had rendered himself obnoxious to himself or his ministers. If, however, the noble earl produces one precedent, which contradicts the terms in which my motion is conceived, I am willing to relinquish the objectionable part of it. Earl Gower. I still remain of my former opinion, that Westminster-hall, on the ground of solemnity and convenience, is a much fitter place for the intended trial than the bar of this House. The noble earl who spoke last, has, indeed, confessed this in part. I shall not enter into a view of the noble earl's sentiments. It is sufficient to determine, without entering into a further consideration, that the committee have declared their opinion, that the Chamber of Parliament is inconvenient; and that no sufficient reason has been yet assigned to shew that the trial ought not to be held at Westminster-hall. I must however observe, that the state of the lady's health is at present very precarious; and that her mind is so far affected, as to render her very unfit for making her defence against a charge of so heavy a nature. It is my opinion, therefore, before we take any other steps, except appointing the place of trial, that we should call upon her physicians, some day between this and the recess, to know what condition she is in, and whether she will be able to undergo the fatigue of a trial, so early as the day appointed in the motion. If she should, then it will be time enough to decide upon the mode and all the other circumstances consequent upon a trial in Westminster-place for that purpose; the natural conhall. Viscount Dudley. The noble earl who objects to the word 'unprecedented,' has great pains to shew, that this House have claimed a right of trying their members where they pleased. If his arguments went only to that, I should readily acquiesce: the position contained in my motion, does not contradict it: it only states a fact, and I defy his lordship to The Earl of Marchmont. I think the cases alluded to, fairly prove that the noble viscount seems to doubt. They at least prove, that the choice remains with your lordships; and it seems very hazardous to establish a precedent which might, on some future occasion, establish a doctrine of a very dangerous nature. It is a great mistake, that a fact establishes a precedent; whereas nothing can be more different. There may have happened many facts, without laying a foundation for establishing a single precedent. Those facts may have been attended with a variety of circumstances now impossible to be ascer tained or decided on. That no direct proof can be produced of any peer being. tried for felony at the bar of this House, may be true; but that, in my opinion, comes very short of a precedent. The present motion, if carried, would at least imply, if not establish such a precedent, which cannot be supported by any rule of former proceedings. Lord Lyttelton. We are convened here this day, my lords, merely to decide on the time and place for the trial of the duchess of Kingston. The committee appointed by your lordships have reported that the Parliament Chamber is an inconvenient clusion from which is, that the trial ought to be held in Westminster-hall. I have not heard a single consideration of the least weight urged against it. If indeed it had appeared, that by any accident or uncommon circumstance, the lady had been brought into a situation which would render a trial necessary, and in which the charge was of such a nature as to bespeak the innocence of the culprit, no one would be readier to grant every possible indulgence the nature and circumstances of such a case would necessarily be entitled to. Is that the case here? No, my lords, should the lady be convicted of the charge made against her, she will be convicted of a crime deeply affecting the peace and happiness of civil society; and should the conviction be attended with proofs of fraud and collusion, it will appear with every aggravation of the most unexampled iniquity. If the lady be innocent, she will surely be happy in having her innocence made manifest: if the charge brought against her should turn out to be true, none of your lordships would, I dare say, wish to have any of the mortifications resulting from a public trial mitigated or softened, much less totally prevented. For my part, I think it incumbent on your lordships to make the trial as public as possible. Places where justice is administered should be open to the eye of the public. What will be the case here? There will be room for twenty or thirty persons. This, in my opinion, would be establishing a very dangerous precedent. It might materially affect this House, it might affect your lordships' posterity, and the whole body of the British peerage. A time might come, when a peer might be brought to his trial at this bar, when only the same number would be admitted; and care might be taken to occupy the room with persons admitted on purpose to misrepresent what had happened, which would consequently deprive the peerage of the privilege of a fair, indifferent, and open trial. The noble earl, who has this day endeavoured to produce so many precedents, has, I think, drawn them from times very unfavourable both to public liberty and true constitutional government. His lordship has taken them from the time of Charles the 1st. But I trust that the principles of the parliaments in those times were as opposite to the present, as the disposition of that mistaken tyrant was to that of his present majesty. As to the precedent this motion may tend to establish, I do not pretend to decide on it. However, as it has been so strongly objected, I would recommend to the noble lord who made the motion, to substitute the word unusual' for unprecedented.' The Earl of Sandwich. The noble earl to whom this House has been so often, so highly, indebted for his great and extensive knowledge in matters of order, has I think this day employed his great learning to very little purpose. He has found fault with the motion made by the noble viscount; and after all his learned researches, he has produced what he calls two precedents: but when we come to examine those precedents, what do they turn out to be? Why, one of them is no precedent at all, for the noble lord alluded to was never tried; and the other proves expressly the very contrary of what the noble earl has endeavoured to establish; lord Strafford being tried in Westminsterhall, and not in the Parliament Chamber. I think the motion establishes no new precedent, recognizes no old one: it simply states a matter of fact, that it is unprecedented to try peers charged with felony, in the Parliament Chamber. If the noble earl can contradict it, the matter will be at once settled: if not, I cannot see any solid objection to the motion, as it now stands. Lord Sandys. I think the option of trying any member of our own body, either here or in Westminster-hall, is clearly vested in this House; nor can I see the two precedents mentioned early in this debate, in the same light with the noble earl who spoke last; for the proof being put on the Commons, and their not being able to make it out, appears to me a very strange reason, that the precedent was in their favour. Viscount Dudley. I have no desire to press the motion, as it now stands, on the House; yet I have not heard a single reason to induce me to change my opinion. The first part states a fact, which remains uncontradicted; and I believe ever will, from any thing that has hitherto passed on a similar occasion. The noble lord (Lyt telton) has suggested an alteration, by substituting the word unusual' for 'unprecedented; but I think it better to omit the whole sentence than admit of any such change, which would imply what is not warranted by fact-that trials for felony have at any time been held in the Parliament Chamber.-His lordship then made the motion thus amended; which was agreed to. 1776. Debate in the Commons relative to a Message sent to the Parliament of Ireland concerning the Employment of Foreign Troops.] Feb. 15, 1776. Mr. T. Towns hend spoke fully upon the privileges of the House of Commons. He maintained, that the only true substantial meaning or idea ، Extract from the Address of Knights, &c. to Lord Harcourt. [1130 those privileges conveyed was, that they shall remain out of the kingdom. I am were the indubitable right of all the Com- further commanded to inform you, that as *mons of England, who had one general his Majesty has nothing more at heart than interest in them. That to be sure, in a the security and protection of his people of more confined sense, they were particu- Ireland, it is his intention, if it be the dee larly applied first to that House, as a de sire of parliament, to replace such forces, liberate body, and one of the branches of as may be sent out of this kingdom, by the legislature: secondly, to the indivi- an equal number of foreign Protestant dual members who composed that body. troops, as soon as his Majesty shall be He did not intend to make them, how- enabled so to do. The charge of such ever, the subject of this day's business ; | troops to be defrayed without any expence f they were but of inferior consequence, to this kingdom. when opposed to that great privilege, the power of granting money, or keeping the purse of their constituents safe from the the hands of violence, art or fraud. This was a trust of the first magnitude; it, in fact, included every other; for so long as that was preserved inviolate, the crown would remain under the constitutional controul of parliament; so soon as that was wrested by open force, defeated by indirect means, or done away by fraud, the liberties and the privileges of the people would be annihilated. He expatiated on the commendable jealousy of that House whenever the least attempt had been made in that way even by the other House; but when any endeavours were made by the crown, or its ministerial agents, the Commons at all times caught the alarm; they had uniformly united, as if they were actuated by one soul, to resist any attempt of the crown to encroach upon their power of granting or refusing the money to be raised on themselves or their constituents. He then | opened the cause which induced him to make these observations; and read the following papers: "Message to the Irish House of Commons. "Jovis, Nov. 23, 1774. "HARCOURT.-I have his Majesty's command, to acquaint you, that the situation of affairs, in part of his American dominions, is such, as makes it necessary, for the honour and safety of the British empire, and for the support of his Majesty's just rights, to desire the concurrence of his faithful parliament of Ireland, in sending out of this kingdom, a force not exceeding 4,000 men, part of the number of troops upon this establishment, .appointed to remain in this kingdom, for its defence, and to declare to you, his Majesty's most gracious intentions, that such part of his army as shall be spared out of this kingdom, to answer the present exigency of affairs, is not to continue a charge upon this establishment so long as they "That your excellency will be pleased to return his Majesty our most grateful thanks for his gracious declaration, that his Majesty hath nothing more at heart than the security and protection of his people of Ireland, of which his Majesty has given a signal proof, by his offer, if it shall be the desire of parliament, to replace such forces as may be sent out of this kingdom, by an equal number of foreign Protestant troops, the charge thereof to be defrayed, without any expence to this kingdom." "Extract from the Votes of the House of Commons of Ireland. "An amendment was proposed to be made to the resolution, by inserting after the word resolved,' the following words, viz. " That having, in consequence of his Majesty's gracious recommendation, and of our mature consideration of the state of this country, repeatedly declared our opinion, that 12,000 men are necessary for ble that it would be a violation of the trust the defence of this kingdom; being sensireposed in us, should we have subjected our constituents to a very heavy expence, in times of perfect tranquillity, for the purpose of providing a force, which we are to part with in the times of danger; and being convinced, that since the time at which we first declared 12,000 men to be necessary, the probability of a war has increased, and not diminished." "Mr. Speaker's Speech to his Excellency Simon Earl of Harcourt. "Lunæ, 25 Die Decembris, 1775. "May it please your Excellency: The conduct of the Commons, in the course of this session, has marked more strongly, if possible, than in any former period, their loyalty, duty and affection to his Majesty, and their zeal for the interest and honour of Great Britain. At the hazard of their own safety they have consented to part with one third of the forces deemed necessary to be maintained at all times within this kingdom for its defence, in a season when powerful reasons existed for retaining them, without putting Great-Britain to the expence of replacing them, though generously offered; and they have cheerfully granted to his Majesty a very considerable supply, in addition to all former duties, though the liberality of the last session served only to expose the weakness of their resources. This disposition in the Commons they doubt not your excellency will improve to their advantage; and they trust that through your excellency's favourable representation, it will serve to unite Great Britain and Ireland in still closer bonds of mutual affection, so necessary to the security and propriety of both. They acknowledge with gratitude your excellency's generous efforts to open to them new sources of commerce, and to remove some restraints upon the old; they see with joy a beam of light break through that dark cloud which has so long over shadowed this nation; and they are animated with the hope that the honour is reserved for your excellency's administration, of establishing this important truth, that nothing will contribute more to augment the strength and wealth of Great Britain, than the increase of both in this kingdom." Having read these papers, he said, the message contained two propositions, by both which the parliament of Great Bri. tain were pledged to the parliament of Ireland, if it should accept the conditions held forth by this message, to pay for the troops to be sent to America, and to replace them with 4,000 foreign Protestants; and further to induce the Irish nation to accept of this insidious bargain, she was to have 12,000 men within the kingdom, and at the same time to be relieved of a burthen of 80,000l. per annum. Such a proposition could only have originated in the worst designs, or must have been the effect of the most consummate folly. For what was the whole measure taken to. gether? the minister on this or the other side of the water, no matter which, makes the King engage his royal word, that the expence shall be borne by the parliament of Great Britain; but adding folly to temerity, makes him promise, that Great Britain shall pay for 8,000 men, though if the bargain was accepted, she would ac tually have but 4,000 men in her service. After thus stating, in his opinion, the meaning of the words, he proceeded to shew, that they were received in this sense by the Irish parliament, though neither of the offers were received in the terms proposed, and quoted the Speaker's speech, delivered at the bar of the House of Lords, on the 25th December, 1775, in which he offers, in the name of the Commons, to send the 4,000 natives out of the kingdom, without putting Great Bri tain to the expence of replacing them, though generously offered. He then stated the complaint in the following words: "That the earl of Harcourt, lord lieutenant-general and general governor of Ireland, did, on the 23d of November last, in breach of the privilege and in derogation of the honour and authority of this House, send a written message to the House of Commons of the parliament of Ireland, signed with his own hand to the following effect." [Here he recited the message in p. 1129.] He moved, "That a committee be appointed to enquire into the matter of the said Complaint, and to report the same, as it shall appear to them, to the House." Sir George Yonge seconded the motion. Lord Clare said, the right hon. gentleman who made the motion, had been lavish of his encomiums on Ireland, but did not offer a syllable in behalf of poor Britain. Ireland retained a proper sense of freedom; she would not admit fo reigners, even with the consent of parlia ment; her principles were sound, her manners pure; her counsels uncontami nated; while poor degenerate Britain was fallen from her former greatness, and was sunk into the lowest extreme of corrup tion, folly, and want of spirit; yet while he was proud to hear his country so highly extolled, he could not help lamenting that fallen Britain had not one friend to stand forth in her defence. His lordship having continued his vein of irony for a while, commented upon the two propositions. The offer of sending foreigners and of defraying the expence signified nothing; no such offer or promise was intended; it was all the idle reveries of a gentleman, whom, for the familiarity of expression, he would call by the name of Mr. Edmund Sexton Perry. He knew Mr. Perry very well, and knew him to be a good sort of a considerate, honest, sensible man; but, however sensible Mr. Perry might be, the House was not bound by his interpreta |