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concur in the criminal action. But it is a common law principle, more ancient than the statute itself, that he or she, who consents to the act of high treason, is also guilty of high treason. All authors: therefore agree, that if the females specified, consent to their violation,--the wives by adultery, or the eldest daughter by incontinence,- they also are guilty of high treason.
• But where they are deficient in chastity, if their paramour cannot be tried for high treason, none of the three co-operating with him can be found guilty of high treason.
If they consent to a native or to a foreigner in England, they are clearly guilty of treason : but if one of these females should consent to commit adultery with a foreigner out of the kingdom, she is not guilty of treason : for if he were afterwards to come to England, he could not be tried for treason, because he was not at the time under obedience to the laws of England. This, in the present trial, has so been held by the twelve Judges.
If, in England, one of these females, like Potiphar's wife, should solicit unsuccessfully either a native or foreigner, she would be guilty of a high misdemeanour. And if she were to act with a foreigner abroad in a manner which would amount to high treason in England, surely no Lawyer will, contend that it would not be a subject for an impeachment as a high crime and misdemeanour. The dignity of the Royal Family would be diminished ; the moral sentiments of all virtuous women, by the example, if not impaired, would be greatly shocked; and the legitimate succession to the Throne might be rendered uncertain, and the peace and tranquillity of the nation endangered.
; If this is a crime which cannot be tried by an indictment and a jury, it is only upon the general common-law principle that every one in the case of an indictment must be tried in the county in which the crime was committed. But this does not apply to an impeachment.
If, then, any one of the Illustrious Personages specified in the statute should be thought to be guilty of an adulterous intercourse with a foreigner abroad, it cannot be disputed but she might be tried in an impeachñent for a high crime and misdemeanour ; and her innocence or her guilt must be made manifest to her Judges, the House of Lords, and to all the world, precisely by the same witnesses, and by the same laws of evidence, which have been admitted upon this Bill of Pains and Penalties.
...;', . A Bill
"A Bill of Pains and Penalties, conducted as this has been, is far more favourable to such an Illustrious Defendant so accused, than a trial by impeachment. In an impeachment, each Lord must declare Guilty or Not guilty, upon his honour; but in such a Bill as the present, each Lord declares, in every stage, Content, or Non Content ; and several, who are fully convinced of her guilt, may, for various reasons, in every stage, declare Non Content: but he must be a horrid monster of wickedness and iniquity, who declares that he is content that a Bill shall pass to divorce and degrade such an Illustrious Female, when, from the legal evidence, he is fully convinced of her innocence.
After an impeachment, the House of Commons do not enter into a fresh investigation of the subject by the examination of the witnesses; but if they are dissatisfied, by the verdict or declaration, of the guilt of the defendant, or if they wish it should proceed no further, they may refuse to demand judgment, in consequence of which no punishment can be inflicted. See Christian's Edition of Blackstone.
But in the Bill of Pains and Penalties, all the former witnesses, or other fresh witnesses, may be examined ; and in every stage it may be put an end to, by a majority of that House.
But if ever such a Bill should pass the House of Lords, it is to be hoped and implored that the witnesses will be examined in the same dignified manner, and by the same adherence to the laws of evidence, by which they have lately been examined in the House of Lords *.
* I was glad to see that Mr. Serjeant Onslow, a Member of the House of Commons, gave notice, that if the Bill of Pains and Penalties came into that House, he would, before the examination of witnesses, bring in a Bill to enable the House of Commons, upon that and all future occasions, to examine witnesses upon oath.
I have long represented and lamented this inability, as the greatest defect and blemish in our excellent Constitution.
The books which are printed every year, of evidence given before Committees of the House of Commons, I have perused; and several of them with much sorrow and disgust, because they are full of ignorance and the grossest misrepresentation. I am sorry to say, that, at present, a Committee of the House of Commons to examine witnesses upon any part of our Law and Government, has the effect of a proclamation for all manner of persons to come in and abuse and degrade the laws of their country. I know several honourable men of my acquaintance, in high situations, who would not, if they could possibly avoid it, join the witnesses examined by the House of Commons. The Bill ought to provide, that every witness should be examined upon his oath, should be subject to all the penalties of perjury; and if his evidence is ever to be printed, that it should be printed and published immediately, that every honest man might have an opportunity of answering it, where it is untrue and unjust.
Another distinction between an Impeachment and a Bill of Pains and Penalties, which perhaps may be thought favourable to the defendant, is, That the King has no power to put an end to an impeachment either by a prorogation or a dissolution of the Parliament; but in any stage of the proceedings, either by a prorogation or a dissolution, he has the Constitutional power of terminating a Bill of Pains and Penalties.
In the present Bill, I think a demand has made for a list of witnesses to be produced, and has been refused. Upon that subject, I think every Lawyer will agree that a delivery of a list of witnesses is unknown, by the common law, to every species of prosecution in the temporal courts.
A witness has been known to assert one thing before the House of Commons, and to swear directly the contrary before the House of Lords. A witness before the House of Commons, for prevarication, may be imprisoned till the end of the Sessions.
The reason of this immense defect is easily accounted for : When the House of Commons separated from the House of Lords, in the latter end of the reign of Edward the Third, the House of Lords retained the judicial power, and, as incidental to it, the power of administering an oath.
But the Committees under Grenville's Act, in which they examine witnesses upon oath, adhere to rules of evidence, and do justice with the greatest propriety and dignity.