their arms to our very doors. The Bill was then passed. Further Debate in the Commons on the American Prohibitory Bill.] Dec. 21. A Message from the Lords, acquainting the House with the Amendments they had made in the American Prohibitory Bill. Sir Grey Cooper moved, that the said Amendments be now taken into consideration. The last Canada. Two regiments are taken pri- Mr. Hartley. Sir, upon this pause which is offered to you by the return of this Bill from the Lords, I confess that I feel a kind of superstition to wish for one last word to deprecate the fatal blow, and that our unremitted opposition and remonstrance from the first to the very last stage of this Bill may remain as a memorial, that some of us, at least, lament this final separation of America with an affectionate regret. We are overpowered by numbers, and all our entreaties and remonstrances are in vain. An inflexible majority in parliament have now declared all America to be an independent hostile state. Disputes originally between administration and America, are become, by the influence of administration, the ground of a parliamentary war with America. The sense of the nation is not with that war, and I trust it never will be. However, speaking in parliament to ministers as they seem determined to drive all things to extremities, I must ask whether you are to expect that while you burn their towns, take or destroy their ships and property, they will sit with their arms folded, or whether they will not be driven to repel injury by injury. You have found their active powers of defence by the experience of the last year, when by your orders the shedding of the first civil blood was precipitated on the fatal 19th of April, before your pretended conciliatory motion could be proposed to any of the American assemblies? Why were you found unguarded in Canada? You have lost all separation you now declare the Americans | false, for they belied the wishes as well as to be enemies in form, therefore it is your prevailing opinions of the very constituent selves that force upon them the rights of bodies whose public acts they were preenemies. You must now be responsible tended to be: and thus the prince was to your country for the events of your own deceived, the nation dishonoured, and its war, to which they have been so reluctant interests sacrificed, to the deep and danand you so precipitate. When this coun- gerous machinations of a desperate faction. try shall come to open its eyes, to see and Addresses were hawked about from parish to feel the consequences, they will know to parish, from house to house; promises, of whom to require an account. Sir, I threats, and various means equally unjus shall now move you, instead of agreeing tifiable were employed. The most abject to the amendments of the Lords, to ad- and abandoned, who were neither entitled journ the consideration of them for six by property, or franchise, were hired to weeks; I confess with very little hopes of give a sanction to those iniquitous proaverting this Bill, but as I told you at my ceedings. He then turned his attention out-set, from a superstitious feeling in my to what he called the barbarous warfare, mind, to perform the last ceremonial office carrying on against the inhabitants of the of affection and everlasting farewell to North American sea coasts; and termed peace and to America. The fate of it an hellish policy of making war upon America is cast. You may bruise its heel, old men, women, children, and other inbut you cannot crush its head. It will re- nocent and defenceless persons. vive again. The new world is before them. Liberty is theirs. They have possession of a free government, their birthright and inheritance, derived to them from their parent state, which the hand of violence cannot wrest from them. If you will cast them off, my last wish is to them; may they go and prosper! When the final period of this once happy country shall overtake ourselves, either through tumult or tyranny, may another Phoenix rise out of our ashes! Sir Joseph Mawbey seconded the motion. He spoke chiefly to the means employed by ministers, their tools, and partizans, to obtain addresses to the throne. He observed, that every nerve had been strained to procure those paltry addresses, from every remote, obscure, indigent place, that had the name of a corporation, from one end of the kingdom to the other; that in other places, where the objection of poverty did not hold good, the most infamous methods had been adopted. In some, no county meetings were called, to take the sense of the freeholders; in others, a few profligate and corrupt magistrates, under the influence of some silly lordling, some court sycophant, or servile Jack in office, assembled in private rooms: or if in the usual place for holding such meetings, locked themselves in, and excluded all the wealthy, respectable, and independent citizens or townsmen, and then fabricated the most fulsome, adulatory, and shameful addresses. Those they had the effrontery to carry to the foot of the throne, as the genuine sentiments of the people; though nothing could be more [VOL. XVIII.] Mr. Bayley insisted on the injuries sustained by the West India islands. He was fully convinced, that the inhabitants of those islands must be starved; and though they should not, their crops must be lost, as they had not nearly lumber enough to save the present; that such being the case, the proprietors must be ruined, and the consequences would in the end reach the merchants, so as, he feared, to bring on a general bankruptcy among those in any manner interested in the West India trade. Governor Johnstone observed, that this Bill, in its passage through this House, relative to the point mentioned by the hon. gentleman who spoke last, was solely defended by administration on the ground that provisions might be had from the Floridas, and flour and lumber from Quebec ; that both those resources were known already to have no existence. For the Floridas had not provisions sufficient to support the few inhabitants; and no supply could be expected from Quebec of any kind. For probably, by this time, we were not in possession of a foot of land in that province. From whence, he asked, is the supply of either lumber or provisions to come? This was a matter of weighty consideration. He remarked, with severity, on those who caused shameful inisrepresentations of facts to be published in the Gazette. He quoted several instances since the commencement of hostilities in America, in proof of this assertion. The motion was negatived, and the Amendments agreed to. [4 B] inflicted on peers, whose offences were of the capital kind. For the trial of such offenders, too public, too awful, too ceremonious a mode could hardly be adopted. For the sake of example, this was neces sary; for the sake of terror, it was perhaps useful. But with respect to the case before their lordships, it was a charge, not of bigamy, but polygamy; it was a clergyable offence. The indictment was instituted, not really at the suit of the crown; it was the prosecution of private individuals. There were offences of a public nature, of which the Attorney General, as an officer of the king and of the public, had a right to take cognizance. He might exercise his discretionary judgment in determining what should and what should not be sub Debates in the Lords relative to the Trial of the Duchess of Kingston.*] November 20. Lord Mansfield observed, that a bill of indictment had been found by the grand jury for Middlesex, against Elizabeth duchess dowager of Kingston; that a copy of that indictment, together with the Certiorari, had been laid before their lordships agreeable to order. The agent for the prosecution had been asked, "Whether he was apprised of the existence of a sentence obtained from the ecclesiastical court?" He had answered affirmatively, "That he was apprised of the existence of such a sentence, but nevertheless he meant to pursue the indictment." Such being the intention of the prosecutors, it remained with their lordships to settle only the time and place of trial.jected to judicatorial tribunal. This would This was a matter entirely within their not apply to the case before their lordships. own jurisdiction; their lordships possessed The Attorney General had not in virtue of the right of adjusting every formality ne- his office taken cognizance of the supposed cessary to the trial of peers, and they were offence. It came simply before their lordcompetent to the exercise of that right in ships as a matter, although of a criminal a manner most suitable to their own ideas. complexion, yet entirely of a civil nature. The king and peers of the realm formed It was connected with other disputes about a court of judicature altogether consonant property. The indictment was to be pur with the spirit of the constitution; but sued in defiance of the sentence obtained whether the trial of a peer was carried on out of the ecclesiastical court, which senin the Parliament Chamber, in Westmin- tence to this hour remained in full force: ster-hall, a church, or in any other spa- no attempts had been made to invalidate cious building, was altogether immaterial; this sentence; nor had the decree affirmed immemorial usage had vested the power by the court of Chancery, grounded on of place and time in their lordships' breasts. that sentence, been yet appealed from. If the trial of the lady whose indictment This should seem, as if the lady's oppo had given rise to this deliberation should nents were too conscious of the force of be fixed in that House, the Lord High the sentence to attempt an invalidation. Steward would act only in the capacity of They might be justified in this apprehenSpeaker: the interrogatories must be pro- sion; for the noble lord had himself pounded through him, but he would have, determined a case, wherein a gentleman in other respects, no authority whatsoever; of the same family with the earl of Bristol he would give his single voice like any (the late Thomas Hervey) was concerned. other peer. The ascertainment of time It appearing by a sentence of the eccle and selection of place being thus within siastical court, that he had been married the power of their lordships, it remained to a lady who claimed him as her husband, only to state the species of crime alleged a verdict had been given on the ground of against the lady, the better to guide their that sentence. There was a still stronger lordships in their judgment on the occa-case to evince the validity of ecclesiastical sion. There were crimes for which, if on their arraignment peers were found guilty, the legislature had denounced terrible punishments. Their lives were forfeited to public justice; their noble blood was corrupted; their estates were either alienated by forfeiture to the crown, or they escheated to the parties, of whom they had been held. Such were the punishments For the Trial of the Duchess of Kingston, see Howell's State Trials, Vol. 20, p. 355. sentences. A man had been tried for the forgery of a will. The forgery was clearly proved, but a probate of the will was exhi bited and allowed to be a sufficient bar to conviction. These cases operated strongly. They operated, not only to shew that the trial, so far from being as public, should be as private as possible, but they gave rise to this objection, "Whether, in point of justice, there should be any trial at all?" A peeress of England was to be tried by her peers. The curiosity of Europe would bar of that House on the 18th of December next." The motion was agreed to. be excited. Admitting her to be convicted, cui bono? What good would result to the public? What advantage would accrue to the prosecutors? Her conviction would not in the smallest degree affect any civil Dec. 8. The Lord Chancellor recited suits now pending, or that might hereafter the several measures which had been purbe instituted against this lady. And as to sued relative to the removal of the Certhe public at large, would her conviction tiorari in the duchess of Kingston's case, operate as an example? By no means; from the inferior court, wherein the infor no punishment could be inflicted on her. dictment was originally preferred. His Say that she was arraigned at the bar of lordship defined the offence to be of a the House. Well! the ecclesiastical sen- bailable nature, but not a capital felony, tence would be exhibited in defence, and although, in his opinion, the blackest perhaps, put a stop to the trial. Admit- crime which came within the benefit of ting, however, that this was not the case; clergy, and the most grievous consequences suppose the lady found guilty. What attended the conviction. The lady alluded then? Why then she makes your lord- to had been indicted in an inferior court, ships a curtsey, and you return the com- for a second marriage, during the life of pliment with a bow. There is, to be sure, her first husband, by the name, stile and for clergyable felonies such a thing as title of "Elizabeth the wife of the hon. burning in the hand. To the hand of a Augustus John Hervey," now earl of lady this might be very disagreeable: but Bristol. In a petition she had presented there happens to be an act of parliament to the House, praying the removal of the which will not permit peers to suffer cor- Certiorari, she had stiled herself" Elizaporal punishment for any thing under a beth duchess dowager of Kingston." Her capital crime. The lady therefore pleads right, therefore, to be tried as a peeress her peerage, and takes her leave.-Can being indisputable, it became necessary to there be no forfeiture? Yes, of the per- consider what regulations should be adoptsonal effects. But if the lady should be ed to give greater dignity to their proceedconvicted, the earl of Bristol has a claim ings. As the lady had been admitted to to her personal effects; and as he has for- bail, the law required that she should surmally renounced all title to the lady, he render in discharge of her bail. But into will scarcely contradict himself, by laying whose custody? Whether the Usher of claim to effects which can be his, only in the Black Rod, the Serjeant at Arms, or virtue of marriage. The prosecutors there- the Lieutenant of the Tower, must be left fore cannot acquire the smallest advantage to their lordships. Supposing the trial from the conviction. This being an exact should last longer than one day, to what state of facts, the trial, neither being at-prison should the lady be committed? In tended immediately with any service to the public, nor eventually with any advantage to the prosecutors, if, nevertheless, there was yet to be a trial, the more privately it was conducted the more prudent would be the measure. His lordship would not move to have the trial waved. There were several modes of effecting that purpose. A noli prosequi was sometimes obtained by an authorization under the sign manual: sometimes the secretaries of state directed the measure. In the case before their lordships, the House might be moved to address his Majesty that he would be graciously pleased to give directions to the proper officer to grant a noli prosequi. His lordship did not intend to move for such an address; he threw out the measure only as a matter of future consideration. For the present he should move," That Elizabeth, commonly called duchess of Kingston, should be tried at the his opinion the Tower was the prison which properly appertained to that House. It might be necessary therefore to give orders that the lieutenant of the Tower should attend on the morning of the trial to receive the lady into his custody after a surrender, in discharge of her bail.—The next matter was, whether agreeably to precedent, they would insist on the lady to make her obeisance to the House on her knees? Or, whether in consideration of her sex, they would remit that part of the ceremony? Another thing was, whether in case any of the evidences should, through age or infirmities, require such indulgence, chairs might not be appropriated for them? It was also proper to consider, whether an address ought not to be presented to his Majesty, praying, that a party of the guards may be ordered to attend on the occasion. Lastly, What space without the bar should be allotted to the lady's counsel; what number of persons, or whether any should be admitted to be present at the trial; all these matters the Chancellor moved, might be left to the determination of a committee.-Agreed to. Dec. 12. The doctors Schomberg, Warren, and Faulk, attended according to order to give an account of the duchess of Kingston's health. They thought she would not be able to attend her trial on the 18th. The Report from the Committee of yes terday was received, and the first Resolution being read, Dec. 11. Lord Lyttelton presented a Petition from the duchess of Kingston, praying to have her trial put off for two Lord Mansfield. I rise to give my nemonths. Amongst other things set forth gative to this Resolution, 1st, because I in the Petition, it was alleged that her think the committee have exceeded the grace had been confined to her bed with a order of reference, and decided upon a severe fit of illness for several days past, matter not properly before them; and and was at this time in the said situation. 2ndly, because there is not the least neHer physicians, Dr. Warren, Dr. Schom- cessity for trying the lady out of this berg, and Dr. Faulk, had given it as their House. As to the order of reference, it opinions, by certificates under their hands, imported nothing more than that the comthat from the present situation of her mittee should consider of several circumgrace, they thought it impossible for her stances, relative and preparatory to the to be able to attend before their lordships trial, which had not been before deterat the time appointed. The Petition like-mined on by the House, and which at the wise set forth, that it was with the utmost concern and grief that she found herself under the necessity of supplicating the indulgence of their lordships, and of submit. ting to remain longer under the imputation of a criminal charge. time, I moved the several former resolutions, now on your lordships' Journals, I deferred for future consideration. The first of those resolutions ordained, that the trial should be within the Chamber of Parliament. The first resolution of your committee now reported contradicts that directly; for it says the trial shall be had The Lord Chancellor said, if the House was satisfied with the allegations of the Petition, it would be proper to allow fur-out of the Chamber of Parliament. This ther time, and there was not the least doubt but the House would indulge the petitioner, when the reasons for such indulgence were made satisfactory to their lordships; that as to the certificates from the physicians, no notice could be taken of them unless delivered in upon oath. The House went into a committee to consider on the forms to be observed on the trial of the duchess dowager of Kingston, and came to the following Resolutions: 1. "That notwithstanding the regulations proposed by the said committee, the Chamber of Parliament is a very inconvenient place for a solemn trial; and that the committee find no precedent of a peer or peeress being tried at the bar of this House for any felony. 2. That upon the said Elizabeth calling herself duchess dowager of Kingston, appearing at the bar, she be taken into the custody of the Black Rod; and in case the trial lasts more than one day, she be committed by the House to the Tower of London. 3. That the House be moved, That an humble Address be presented to his Majesty, to desire that his Majesty will be graciously pleased to give orders, that a party of the guards do attend during the trial." it does, to be sure, in an indefinite manner, without ascertaining the place where the trial ought to be had; but it, nevertheless, contradicts a resolution taken in a very fuli House, against which, as well as my recollection serves me, not one dissenting voice was heard; but even if there had, or that the House had not been so well attended, the effect would have been the same; for until the resolution had been rescinded, it can require little argument to prove, that it was totally incompetent for your committee to enter into any consideration relative to the proper place of trial. The reference did not, nor could not mean, that they were to consider of the properest or most convenient place of trial. That proper place had been already fixed by the House; therefore as long as the resolution remains on your lordships' Journals, no proceedings could be, had thereon. The committee have exceeded their instructions, and of course have acted irregularly. I do not conceive that the charge against the lady has any thing sufficient to distinguish it from many others tried at your lordships bar. In 1725, I was present my. self, when lord Macclesfield was tried |