§ Mr. Bond wished to put a question hon. gent. opposite (Mr. Whitbread), the answer to which would probably prevent the necessity of a particular Motion. The house having instructed the attorney general to prosecute lord Melville for the criminal matter imputed to him in the tenth report, he conceived it was not in the power of the attorney general to exclude from the range of that prosecution any offence whatsoever contained in that report. If therefore, it was proper that any particular transactions, should be excluded from the prosecution; it was fit the attorney general should be structed as to such exclusion. There could be now no doubt that the forty thousand pounds, advanced to Boyd and Benfield, was one point on which there could be no intention to prosecute. He was of opinion that the case of Jellicoe also should be excluded, as not of sufficient importance to be made a ground of charge. But,as he recollected that the hon. gent. opposite (Mr. Whitbread) made it the ground of one of the articles of impeachment which he Meant to have presented, he asked, that hon. gent. now whether he Meant it should make one of the subjects of the prosecution directed by the house? If the hon. gent. did not think it should, and if no intimation of a contrary sentiment came from any other part of the house, he thought that it would be sufficient to let the attorney general know that this also was not to be included in the prosecution
§ Mr. Whitbread had certainly considered Jellicoe's business as of importance, and had made it one of the grounds of impeachment. He admitted, however, that it did not make the same impression on the house, and therefore he doubted whether he should have produced that article. He had not any wish individually that this matter should be included in the prosecution by the attorney general.
§ The Attorney General trusted he should not shew the slightest disrespect for any 485 individual, if he wished that the house should honour him collectively should be distinctively expressed. If the house thought proper to supersede that jealousy which seemed constitutionally to belong to it, when one servant of the crown was to be prosecuted by another, he supposed it would at least be thought proper not to leave it matter of question, how far the officer charged with the prosecution should or not comply with the wishes of the house, in the steps he might take. He trusted, therefore, that it would not be thought improper in him, if he wished, instead of collecting indiscriminately from the whole body of the reports, such matter as might be made the ground of criminal charge, that the house should specify what it thought proper to be prosecuted, and what it did not. He should also be glad to have the authority of the house as to whether the civil suit he had been directed to institute against lord Melville and Mr. Trotter should be wholly suspended, or whether he should endeavour to carry it on against Mr. Trotter singly; he said endeavour, because a considerably formal difficulty and delay would arise from suing the one without the other. He also wished to know whether, if he proceeded civilly against Mr. Trotter, he was at liberty to make use of him as a witness against lord Melville. Also, whether he was at liberty to bring in proof against lord Melville what had fallen from him in that house, at the bar, which he could not do without instructions from the house, though he could be under no difficulty as to its being received in the court where the prosecution was to be carried on. These points he thought it necessary to state to the house, not to argue. He had further to remark a difficulty which arose from the practice newly adopted, of ordering prosecutions to be immediately instituted at the command of the house, rather than by address to his majesty, praying his majesty to direct such a prosecution to be instituted. Under the former practice, if any difficulty should arise on any points, and he should find instruction necessary, the course was to report the difficulty to the secretary of state, and the government would give its instructions in consequence. If the difficulties suggested should appear to confine the prosecution within too narrow limits, it was probable a message would be brought down to the house in consequence of the occurrence, and the house would then have an opportunity of learning the particulars, 486 and of judging whether the proceedings in the new form would answer its wishes, or whether a new address should be carried up to enforce a more satisfactory course. This would be a better mode than if he were left alone to collect the matter of the charges, to carry on the proceeding, to acquaint,the house of what he had done, and to argue how far he had complied with the wishes of the house. He therefore hoped the house would instruct him more specifically by vote as to what it wished to make matter of particular charge.
§ Mr. Bond, in explanation, said, he had no,objection to propose a vote for excluding the matter of. Jellicoe, though he thought the simple mode of ascertaining the sense of the house he had already noticed, was sufficient. As to the other difficulties suggested by the attorney general, it Would be presumption in him to notice them. He left it to the attorney general, if he should aftertwards find these, difficulties stand in his way, to make them the subjects of further motions.
§ Mr Whitbread hoped the house would find a way for the hon. and learned gent to get out of all the embarrassments with which he found himself surrounded, and enable him to do complete justice between the individual who was the object of his prosecution and the public. His own intention was, if the impeachment had been agreed to, to suspend the civil suit with respect to both lord Melville and Mr. Trotter, and if that was not sufficient to enable Mr. Trotter to be a witness, to bring in a bill of indemnity for him, with a view that the whole system of the navy pay office should be laid open. He should be inclined to think the same course ought still to be adopted; but it rested not with him, but with the hon. gent. Who had recommended the mode proceeding agreed on by the house, bring in the regulation which were necessary in consequence.
§ The Chancellor of the Exchequer thought enough appeared,from What had passed, to shew that it would have been wise in the house,to have proceeded with more deliberation. With respect to the matter now before that house, it Was impossible his hon. and learned friend could collect the wishes of the house from what fell loosely in the expression of individual opinions. It was not enough to leave out the matter of Jellicoe leaving the whole remaining matter of the report for the learned gent. to glean out of. It Would be proper to exclude, by specific resolution. 487 such other matter as it Was not advisable to prosecute, and to state, distinctly by other resolutions what was to be prosecuted. The difficulties with,respect to the manner,of proceeding also deserved consideration; and he confessed all these things appeared to him to furnish sufficient ground for reconsidering the resolution the house had come to, and for Again enquiring whether a prosecution by the attorney general should be adhered to rather than an impeachment. He confessed he was still, after all the consideration he had given to the subject, of opinion, that neither ought to have been resorted to thought, after the decision the house had come to, he must feel much delicacy in declaring such an opinion. Being of this opinion, he had not at the time turned his mind to the consideration of which of the two proposed modes was best, in a prosecution which he disapproved of generally. But the more he reflected on this matter, the more he considered the difficulties that had arisen since, the more he considered what was required by the constitution in general, what was due to the privileges of peers, to the substantial justice to which the party was entitled, and to the delicacy owing to the confidential servants of the crown; the more he considered all these things, the more he was convinced, that the mode which had been adopted was not that which he majority of the house would, on reflexion,,think applicable to the proceedings it wished for. He hoped the attention of the house would be called to this, matter on an early day, and that those disapproved of any part of the course lately agreed, upon, would then have an opportunity of supporting the most constitutional measure corresponding to the circumstances.
§ Mr. Fox said, he would not now enter into particulars, as the whole matter was to be made the subject of future discussion; but he could not admit the difficulties, stated by the attorney-general, as they were insisted upon by the right, hon. gent. (the chancellor of the exchequer) in all prosecutions directed by the house, the attorney-general was responsible. If the prosecution was instituted by address, an intermediate responsibility rested upon him; but the attorney-general was not thereby exempted from all responsibility. With respect to the mode of proceeding, he was one of those who approved of the proceeding by impeachment but though that mode was not proved of he could not admit that the sense 488 of the house was not fairly taken upon it. The forms of the house admitted an amendment, by omitting all the original motion but the Word "that;" he could not help thinking, however, that such amendments were disgraceful to the house. The only distinct parliamentary course was a motion, and an amendment upon it. Nothing was more clear, than that this was they proper parliamentary course, though his majesty's ministers had not thought proper to coincide in it. His majesty's ministers, though they then voted against both the modes of prosecution proposed, now did him and his friends the honour to say they would have voted with them in preference. He was glad to hear this even now, but he wished they had thought proper to declare their preference then. The majority was formed of persons some of whom thought one mode preferable, others another, but all agreed that either was desirable rather than no prosecution whatever should take place. This would be the principal subject of the discussion which would take place on another day; but that the attorney-general was not to take upon him the responsibility of the prosecution, or that it might not be put upon him, was what he could not allow. If the mode of impeachment had been adopted, difficulties would have, attended that also; and if the plea of difficulties now offered was to be allowed, there was no one prosecution which might not be stopped and abandoned on the same grounds. He wished gentlemen to bear this in mind when they came to consider the right use to be made of the ulterior proceedings; and when gentlemen came to consider had been resolved upon and what was further to be done, the propriety of departing from a resolution deliberately formed would be a material point of the deliberation, particularly when the reconsideration was suggested by a party which was not friendly to either of the proposed modes of prosecution
§ Mr. Bond wished here to give notice, that he would the next day move an instruction for excluding the matter of jellicoe; but, on the suggestion of the Chancellor of the exchequer, who thought any motion on the subject likely to greater part of the general question, he deferred his notice till Tuesday.
§ Mr. Sheridan thought the mode of proceeding by the intervention of the secretary of state, not likely to be always attended with all those advantages the attorney-generad imputed to it. The secretary of state 489 might be the person under prosecution, and was the attorney-general to communicate with him on a prosecution against himself for it did not follow that he would be dismissed when a prosecution was ordered against him. Those who were most anxious now to recal the impeachment they before resisted, seconded the difficulties started by the hon. gent. had joined in supporting the original motion, he would have made it impossible for that happened which was now matter of complaint to him, and he would have had the best chance of carrying the point he aimed at, that of preventing all prosecution; because though they who proposed impeachment were content to vote for the criminal prosecution, on the failure of that, those who brought forward the criminal prosecution would not have voted for the impeachment. The right hon. gent. was therefore guilty of a blunder, as he often was, in not taking part with them in the first instance. If the right hon. gent. had followed this course, the house would not have fallen into the situation in which it now stood; for, of 470 who were present, it appeared now that 420 were of the same option; and that a minority. But having once come to the resolution of adopting a criminal prosecution, it was now a delicate question to think of recalling that resolution to return to another, in preference to which it had been adopted. This could not be done without running the risk of having no proceeding at all, for the whole of the existing plan should be rescinded before any thing new could be adopted, and it was matter of chance whether any substitution would be made. The house would expose itself to the imputation of fickleness, and it would shake itself in the opinion of the country by abandoning all that had been done in this case, without the certainly of being able to receive and recover the good opinion it would have lost.
§ Mr. Canning allowed, that if a minority of 50 imposed its sentiments on a majority of 420 that was not in itself a reason for recalling the consideration for the purpose of reversing the decision so made. But it was worthy of the consideration of the house, whether, if an opportunity was afforded it should not reconsider the great constitutional question, whether a man should be tried by his peers or not.
§ Mr. Harrison said, this was the first time since he had a seat in that house, that 490 he had heard the attorney-general call for instructions, when a prosecution was ordered on points, which he must know better than the house. The imposed the task on him, and confided on him for the proper management of it; and then he came to the house for a specification of the grounds of charge. If the noble lord was to be prosecuted, it was for the learned gent. to judge what could be proved against him, and, how the proof could be brought forward. What was started by the attorney-general, and the other right hon. gent. on the same side, appeared to him but a plan to bring off the criminal from a prosecution directed to be instituted against him. The house had come to a specific resolution that a breach of trust had been committed, and the attorney-general was to prosecute for a gross violation of the law, and a high breach of duty. The attorney-general was the proper person to judge what crimes he would select, and not the house, which had not the same means of judging, as gentlemen were not in general sufficiently conversant with the law.
§ The Attorney-General, in explanation, said it was not with respect to points of law that he wanted instructions; but, as he was to execute the wishes of the house, he trusted he did not depart from his duty in asking some instructions as to those wishes.
§ Mr. Bankes saw no reason for altering the resolution the house had come to; and he conceived that those who formerly pressed a different mode, would now see reason to recommend this. With respect to the propriety of a specification of the criminal matter contained in the report now given generally in charge to the attorney-general, he should reserve himself till the day when that was to be the subject of a distinct discussion.
§ Mr. Rose admitted that there was no instance on the journals of specific instructions to the attorney-general for managing a prosecution; but there was no case on the journals like the present; none of the examples on the journals was so complicated as this—Mr. Bond's notice of an instruction with respect to Jellicoe's business was fixed for Tuesday.