She was exceedingly affected even to tears- and asked if he too refused to stand by her. The day was beginning to break; a Westminster election to reinstate Lord Cochrane (after the sentence on him which abolished the pillory, and secured his re-election), was to be held that day at ten o'clock. Mr. Brougham led the young Princess to the window, and said, "I have but to show you to the multitude which in a "few hours will fill these streets and that Park-and pos

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sibly Carlton House will be pulled down - but in an hour "after the soldiers will be called out, blood will flow, and if your Royal Highness lives a hundred years, it will never "be forgotten that your running away from your home and your father was the cause of the mischief; and you may "depend upon it the English people so hate blood that you "will never get over it." She at once perceived the truth of this statement, and without any kind of hesitation agreed to see her uncle below, and accompany him home. But she told him she would not go in any carriage except one of her father's, as her character might suffer-she therefore retired to the drawing-room until a royal coach was sent for, and she then went home with the Duke of York.

The fact is suppressed, through ignorance doubtless on both Lord Eldon's part and Mrs. F.'s, that the real cause of the Princess's elopement was her dread of being compelled to marry the Prince of Orange. That match had been for some time the subject of unremitting negotiation between her and her father. An attempt had even been made through one of his law officers to persuade her that after receiving some presents, and saying things construed into promises, she could be compelled, by a Court of Equity, to perform the contract. This strange doctrine, this new kind of equity, she had met with admirable presence of mind, and indeed skill, declaring her ignorance of the law, but offering to believe the proposition thus (by way of threat) laid down-provided, to prevent all mistakes, they who stated it would put it in writing and sign their names to it, that she might show it to Mr. Brougham, with whom she had been advising. Accordingly, as may well be supposed, nothing more was heard of this equitable novelty, this extension of the doctrine of specific performance. This marriage formed nearly the whole subject of the conferences

in the Princess of Wales's apartments that night; and the Princess Charlotte desired Mr. Brougham to make a minute (which would now-a-days be called a protocol) of her final resolution against the match, giving him and the others present authority, that as soon as they should hear of it being to proceed they should make this protocol public, to show that she gave no free consent, and that any pretended consent was extorted by force. All present signed this instrument-of which as many copies were made as there were persons presentor rather it was executed in sexplicate original, and each of the six was signed by the young Princess and all the other five. Thus ended the extraordinary scene- and thus vanishes the illusion of Mrs. F.'s account, which has its origin in confounding some jocose remarks of her venerable relative, and giving, as facts, some matters which he must have stated as mere speculations. The fact as we have now given it was, though more shortly, given by Lord Brougham in the lifetime of the Duke of Sussex, as well as of two of the ladies above named, and who are still alive. His account was drawn up in Lord Eldon's lifetime also; and was expected to be read by him within a few days after it was written. He died, however, while it was printing.

We here close this article, which has extended to so considerable a length that we cannot now add the commentary which remains to be given upon Lord Eldon's judgments, the portion of the subject which, as we have already observed, Mr. Twiss's work, so valuable in other respects, has inadequately treated. It is sufficient for the present to observe, first, that these decisions, numerous as they are, and involving as they do a great variety of questions both of Equity and Law, bear very rarely any marks of personal or party prejudice having usurped the mind of the Judge; secondly, that with many important faults, arising from the over-anxious and over-subtle complexion of his mind, they contain a most valuable body of judicial learning, and of positive determination, to which the student of jurisprudence will ever resort for instruction, and the tribunals of this country for direction, as long as the system of English law endures.

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ART. II. - ON ENFORCING THE ATTENDANCE OF WITNESSES AT COMMON LAW.

As we consider that we cannot render a better service to our readers than occasionally to collect and classify the latest cases on a practical subject, we shall endeavour, in the present article, to show in what manner the attendance of witnesses can be enforced in the common law courts; and we hope that those of our readers, who are daily engaged in the preparation of evidence for trials at Nisi Prius, may find the result of our labours of some practical use.

We do not, however, here purpose to discuss the mode of enforcing the attendance of witnesses by recognizance, which is a form of proceeding exclusively confined to the criminal courts, and to some few appeals at the quarter sessions; neither do we intend to treat of writs of habeas corpus ad testificandum, which are granted in those cases alone, where the witness is in custody, or, being in the military or naval service, is not amenable to the ordinary process of the law; but our observations will be confined to the incidents attendant on the service of writs of subpoena ad testificandum.

This process, which is often used in criminal cases, and constitutes the usual summons in civil proceedings, is a judicial writ, directed to the witness, commanding him, in the Queen's name, to appear at the Court, and to testify what he knows in the cause therein described, pending in such Court, under a certain penalty mentioned in the writ. If the witness is required to produce any books or papers in his possession, a clause to that effect is inserted in the writ, which is then termed a subpœna duces tecum.

This writ, equally with the common subpoena, is compulsory upon the witness, who must attend with the documents demanded therein, if he has them in his possession, and leave the question of their actual production to the judge, who

will decide upon the validity of any excuse that may be offered for withholding them.' The fact that the legal custody of the instrument belongs to another person will not authorise a witness to disobey the subpoena, provided the instrument be in his actual possession2; but documents filed in a public office are not so in the possession of the clerk as to render it necessary, or even allowable, for him to bring them into Court without the permission of the head of the office.3 Writs of subpoena suffice for only one sitting or term of the Court; and, therefore, if the cause is made a remanet, or is postponed by adjournment to another term or session, the writ must be resealed, and the witness summoned anew. So any alteration be made in the writ after it is sued out, though before it is served, it must be resealed; and, therefore, when the day of appearance named in a subpoena was altered by the attorney from one term to another, it was held that the writ thereby became void, and that the witness, on whom it was served subsequently to the alteration having been made, might consequently treat it as waste paper. But a subpoena, requiring the party to attend a trial on the commission-day extends to the whole assizes, which, by a curious fiction of law, are supposed to last but one day."

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The service of a subpœna upon a witness ought always to be made in a reasonable time before trial, to enable him to put his affairs in such order that his attendance on the Court may be as little detrimental as possible to his interest. On this principle, a summons in the morning to attend in the afternoon of the same day has, more than once, been held insufficient, though the witness lived in the same town, and very near to the place of trial. Where, however, a witness was served at twelve o'clock, while standing on the steps of the

1 Amey v. Long, 9 East. 473.; 6 Esp. 116.; 1 Camp. 14. S. C.

* Id.; 1 Camp. 14., per Lord Ellenborough.

3 Thornhill v. Thornhill, 2 Jac. & W. 347.; Austin v. Evans, 2 M. & Gr, 430.

+ Sydenham v. Rand, 3 Doug. 429.; S. C., cited 2 Tidd. 855., 8th edit.

5 Barber v. Wood, 2 M. & Rob. 172., per Lord Abinger.

Scholes v. Hilton, 10 M. & W. 15.; 2 Dowl. N. S. 229. S. C.

7 Hammond v. Stewart, I Str. 510.

8 Id.; Barber v. Wood, 2 M. & Rob. 172., per Lord Abinger,

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court-house, and being then told that the cause was coming on that day, replied "very well," the Court held that his non-attendance at five o'clock, when the trial was heard, rendered him liable to an action, since his answer was equivalent to an admission that the service was in time.1 1 So if a witness is in Court, he cannot, it seems, object to give evidence on the ground that the subpoena has only just been served upon him2; neither in criminal prosecutions can he decline to be sworn, though he has not been subpoenaed at all. In civil cases, however, a witness may always refuse to be examined unless he be properly served with a writ.* Where a subpoena, requiring the attendance of a witness on the 31st of March, and so on from day to day, until the issue should be tried, was served on the 2d of April, when the witness was distinctly told that the trial had not come on, he was held civilly responsible for disobeying the writ on the 6th of April, when the cause was heard 5; though, had he received no notice at the time of service that the cause had not then been tried, the result might have been different, and he would, at least, have avoided the penalty of an attachment. As the question whether the writ has been served within a reasonable time is in the discretion of the judge, and must vary according to the circumstances of each case, it is hoped that the decisions cited above will be sufficient to illustrate the general practice; but we may notice, that, in the United States, the reasonableness of the time is generally fixed by statute, one day being usually allowed for every twenty miles, that intervene between the residence of the witness and the

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1 Maunsell v. Ainsworth, 8 Dowl. 869., per Parke & Alderson Bs.; Jackson v. Seager, 13 Law J. N. S. Q. B. 217., per Wightman J.

2 Doe v. Andrews, 2 Cowp. 845.

3 R. v. Sadler, 4 C. & P. 218., per Littledale J.

4 Bowles v. Johnson, 1 W. Bl. 36. See contrà, Blackburn v. Hargreave, 2 Lew. 259., where Hullock B. is reported to have held, that, if a witness be in Court, having come there on other business, he cannot refuse to be sworn, though his expenses be not tendered. Sed. qu. A witness is not bound to obey a subpoena unless his expenses be tendered, although the party who requires his testimony is suing in formâ pauperis. 2 Lew. 259., per Hullock B. 5 Davis v. Lovell, 7 Dowl. 178.

6 Id. 183.; Alexander v. Dixon, 1 Bing. 366.; 8 Moore, 387., S. C.