pains and penalties, seems more likely to be the course. Let us consider next how this bill must be carried through." (p. 8.)

If the author in speaking of a bill of pains and penalties, refer to such acts of parliament, as would inflict punishments beyond, or contrary to law, passed pro re natá and have no concern with the existing law, we do not think these within the present consideration; but the bill of attainder is brought into Parliament for condemning, attainting, and executing the accused party, for treason. The measure which the author supposes to be intended, is of the most awful character. When, says Mr. Justice Blackstone, it is "clear beyond dispute that the criminal is no longer fit to live on earth, but is to be exterminated as a monster, and a bane to human society, the law sets a note of infamy upon him, puts him out of its protection, and takes no further care of him than barely to see him executed. He is then called attaint, attinctus, stained or blackened."

The ground of such a proceeding may be the violation of the wife of the King's eldest son, which is high treason in both parties, if both be consenting:* and the purpose of this law is to guard the blood-royal from any suspicion of bastardy, that might render the succession to the crown dubious.

In the case of Catherine Howard, wife of Henry VIII. the course pursued was suited to the times. "On the 16th of January, 1541-2, the Chancellor moved the Lords to consider the King's case, in relation to the Queen's incontinence, when a committee was sent to examine Her Majesty in the Tower. Upon the report of this committee, a bill was brought in, wherein the House petition the King, that she with the bawd, Lady Rochford, be attainted of high treason; and that both suffer the pains of death:"+ The Chancellor on this occasion, acquainted each House, that the Queen had acknowledged "the great crime of which she had been guilty."‡

With regard to the probable conduct of Her Royal Highness in the event of the proceeding being instituted, we have the subsequent remarks.

To violate a Princess Dowager of the eldest son, is not treason. There is no peculiar protection for the wives of the younger sons of the King. Prior to the 25 Edw. III. it was high treason not only to violate the daugh ter of the King, but also the nurses of his children.

+ State trials from the Norman conquest.

‡ Parliamentary History of England, vol. 3. p. 181.

"It will be necessary that the Princess should appear.—She cannot be divorced unheard, unless a very long time be given her, and that she refuse to defend herself. The question then is, will she appear or not? An innocent person, it may be said, cannot do otherwise than meet a charge in person; and so, undoubtedly, would the Princess of Wales, if she were to be tried by a court of justice.-But it may reasonably be doubted whether common prudence would justify her in coming before the majorities of the two Houses of Parliament, in a case, judicial indeed as far as regards names and forms, but political in the highest degree, as far as the substance is concerned. We do not, indeed, think she would run any great risk of having the usual ministerial majorities against her, as we shall presently shew; but can she be expected to feel secure of this, seeing as she does, every measure carried which the government proposes? She formerly threw herself upon the House of Commons, and was protected; but she at the same time had the unanimous voice of the country with her." (p. 8-10.)

Selden refers to some precedents for "matters done be-. yond the seas:" particularly among others, to the celebrated cases of Latimer and John Nevil, and West and Gomeniz, in the reign of Edward III. and Richard II.

The

The case of Thomas Mortimer occurred in the 21 Rich. II, when the Lords, appellants, and the Commons, accused him of treason. The King had sent his mandate by a serjeant at arms, commanding him to come and answer. Mortimer having notice of it, "withdrew himself among the wild Irish, where the same Serjeant nor any other officer of the King durst come for fear of death. Wherefore, for that his offences were notorious, they prayed judgment." Lords upon this awarded proclamation in England and Ireland "commanding Thomas Mortimer to appear in three months, and they awarded if he came not, that he should be declared a traitor, and convict of all the treasons of which he is accused. He came not, and judgment was given."* "To conclude," says Selden, " it is the just and constant course of Parliament, to bring the party accused to his answer; yea though he fly justice, to send out proclamations into the countries that he appear at a day, or else such and such judgment shall be given against him."

The writer next adverts to the length of time the initiative business must occupy.

"A measure of so extraordinary a nature, wholly unprecedented, and touching the highest matters of law and state, cannot be hurried

* Selden on Judicature in Parliament, vol. 3. p. 1620.

through like an inclosure or a turnpike-bill. We do not at present deny that this is the right form of proceeding, but we contend that it requires to be most deliberately gone about, and carefully watched, and that in every stage, they who urge the propriety of delay will be favorably listened to. It cannot be brought in without much preliminary inquiry. There must be committees of both houses to examine evidence; counsel must be allowed to attend on Her Royal Highness's part as soon as she pleases to make her appearance; the committee must report;-and the report being considered, leave must, upon mature consideration, be given to bring in the bill. Now all this delay is obviously most material to the question of ultimate success in various ways." (p. 11-12.)

Personal appearance, we presume, is not referred to, in the case of Lord Pristol in the 1 Car. I. yet when the King's attorney exhibited articles against him, then beyond seas, he had counsel allowed him.*

Of the difficulties attending the proceedings, the author wishes that the parties and the public should be apprized.

"A number of most puzzling questions will assuredly arise in the origin, and in the progress of the bill. To specify one only of those which lie about the origin of the measure. The law of the land has provided a peculiar guarantee for the purity of the royal bed. To defile it is high treason. Does it not seem that having so provided the law has stopt here? May we not well say that so high a penalty was enacted in lieu of all other safeguards? At any rate, when a bill, when a new and peculiar law is brought in for the occasion, have we not a right to ask whether the old and general law has been enforced? Do the government then intend to proceed criminally, and against whom? If the alleged treason was committed beyond the seas, does the statute of Henry VIII. authorise a trial of this species of treason within the realm? Did any of the old laws ever contemplate the case of a Queen or Princess of Wales living separate from her husband, much more living abroad with his permission? Would there be no difficulty in outlawing a princess in such peculiar circumstances, for an act alleged to have been done abroad, more especially as the statutes giving power to try treasons committed abroad say nothing of outlawry? Besides, all such jurisdiction is only over natural born subjects. How can the Princess, an alien born, be subject to trial in England for offences done beyond seas? Have not those who permitted her to reside abroad, away from her husband, abandoned all right to inquire into her conduct criminally? But the difficulty does not stop here. The same question may be asked as to the proceeding in Parliament. Have not they who partly drove the Princess abroad by bad treatmentpartly enticed her by insidious advice at any rate most improperly

Selden, ibid. vol. 3. 1626,

allowed her to go have they not abandoned all right to divorce her for acts done during her absence? There is no question as to the succession.—It is not said to be in any danger; and if it were, those who sent her away are they who put it in jeopardy. No one affects to think so. Then why seek to dissolve a marriage, which its bitterest enemies can charge with nothing but the sin of ensuring the Princess Charlotte's succession to the crown ?"-p 12—14.)

But there are other obstructions to the divorce, from the precautions of British jurisprudence, to prevent the oppression of the female by domestic tyranny. If the party accused shall prove, that the accuser has committed adultery; this is in law, called a compensation for the crime, and the accuser cannot prevail in his suit.*

So if the party accused shall prove that the accuser before the commencement of the suit had probable knowledge of the crime committed, and yet afterwards had carnal knowledge of the accused, the offender shall not be liable to a . sentence of divorce; and on the ground that the crime shall be supposed to have been remitted.+

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The author proceeds to reason on the supposition of the justice of the accusation.

"They say the Princess of Wales is guilty, and that there are proofs of it.-Well, as long as she remained in England, she defied all her adversaries, and stood the test of two most rigorous inquiries into her whole conduct. Up to the moment of quitting this country she was innocent, although she had been compelled to live in a state of celibacy and seclusion, almost from the moment of her marriage, and during the season of her youth. By ill-treatment of every kind she was driven to seek for consolation in some other attachment, and had she formed one, no person could have blamed her very severely, unless upon public grounds.-Yet she resisted the temptation, and until she left England, her conduct was unimpeachable. The same ill-treatment drove her abroad, and those who now seek to destroy her, advised her to go. If she has since erred, it little becomes them to cast the first stone; but at any rate they must prove their case by other witnesses than profligate foreigners; for as long as she remained among Englishmen, no evidence could be procured against her." (p. 16-17,)

Another consideration deserves notice. Where there appears to be any connivance or acquiescence in the adultery of the wife on the part of the husband, or he does not use due diligence to prevent it, no divorce is granted. What is the situation of the Princess? During the whole time of

her marriage, with the exception of a short interval, in the season of youth, beauty, and passion, she has been forsaken by her husband. Had she, prior to her departure, already been guilty, could a husband under this abandonment, obtain any redress? But up to that time she is pure; and it is understood, that not only with the assent, but consent and earnest wish of her husband, she leaves the kingdom to travel in remote countries. Is this using the diligence required to authorize a divorce? Is not this the very connivance or acquiescence which is sufficient to disappoint any such decision? If it be said the supreme Court of Parliament can dispose of all the rules to which the inferior jurisdictions are liable, the answer is, that these regulations of the lower courts as far as they are founded on the immutable principles of truth and justice, must be the law of Parliament, for such principles, if obligatory on subordinate, establishments are pre-eminently imperative on the highest judicial authority of the Empire.

The reasoning on the situation of the Prince, as affected by this question, is perfectly just.

"If, indeed, the succession to the crown were in any danger, there might be some reason for dissolving the marriage. But the Princess has now been for above two years beyond the seas, and that removes all doubts upon this head. Then what boots it to raise this dreadful question? The Prince wishes to get rid of a wife who has misbehaved towards him. But surely His Royal Highness is not like a private individual, whose character suffers by allowing his wife's frailty to pass uncensured.-Nothing that she does can possibly affect him; and are there, besides, no reasons why it becomes him to forbear towards her who has borne so much at his hands? He wishes to marry again. But it is strange that twenty years of voluntary celibacy should have rendered that state so intolerable to a man of fifty-five, with a constitution not quite unimpaired, and in a very precarious state of health. The marriage of men at such a mature age is at all times a matter of wonder and even of merriment. He wishes to have a son. But he has a daughter whom he tenderly loves, whom the country have for twenty years regarded as the heiress to the crown, and who has accordingly been educated as such, and as such been recently established by the wis dom of Parliament. Nor should it be forgotten, that had he chosen to live with the Princess, he had in all probability, long ago have had sons; but so far from sacrificing any feelings of his own to the wish for male children, he expressly, in writing, declared to the Princess, that "should his daughter unhappily die, he never could even in that case ask her again to live with him." This new wish to increase his family, therefore, is somewhat unaccountable; for no CRIT. REV. VOL. IV. Sept. 1816.

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