Lords Sitting of 10 July 1805

MINUTES.
Judgment was given in the Appeal Cause Redington against Redington. the decree of the Court of Exchequer in Ireland was reversed as to part of the matter in dispute, and a reference was made with respect to the other part, back to that court.—The royal assent was given, by commission, to sixty-nine public and private bills. The commissioners were the Lord Chancellor, the duke of Montrose, and lord Walsingham.—The Consolidated Fund bill, the Plate Glass Duty bill, and the Smuggling bill, were read a third time and passed.—Mr. Whitbread, Mr. Calcraft, Mr. Fuller, Mr. Giddy, and several other members of the house of commons, brought up the bill for continuing the proceedings relative to the impeachment of lord Melville notwithstanding any prorogation of parliament; which was read a first time, and some private billswere returned agreed to.—On the motion for the third reading of the bill to amend the act respecting bankrupts having privilege of parliament, the duke of Norfolk said, he objected neither to the principle nor policy of the bill; but he thought it required some amendment in this instance, that any person who should chuse to sue out a statute of bankruptcy against a member of parliament who never had any transactions in the way of trading, may compel his appearance. This ought to be guarded against as an absurdity, however unlikely it was that the inconvenience should arise. The Lord Chancellor said, the bill only went to this, to enable the court to put in an appearance for a bankrupt, a member of parliament, where a personal summons had been served on him; and this was to supersede the necessity of the distringas, which was greatly burthensome to the plaintiff, and often ruinous to the-defendant. The bill was then read the third time, and passed.—The duke of Norfolk moved, that the articles of impeach
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ment against lord viscount Melville be printed, for the use of this house only. The Lord Chancellor said, he presumed the noble duke, by using the word only, meant to restrict the use of the printed articles emphatically to the house, and he much approved of the intention.—Ordered.

TROTTER'S INDEMNITY BILL.
The order of the day, for the third reading of this bill being moved,
The Lord Chancellor rose, and introduced the amendments he intended to propose in the bill. The greater part of these was to connect the wording and phraseology in different parts of the bill: first, with respect to the mode of expressing the impeachment of lord Melville, as set forth in the bill; secondly, with respect to a better mode of expressing definitely, who the persons were it was proposed to indemnify; and, with respect to this part of the bill, his lordship observed, they would attain a certain and definite description of persons, by leaving out the word "certain." Some further alterations were of this general description. With respect to the consideration of what the parties were to be indemnified from, it was of a more serious and important nature, and required the most cautious deliberation on the part of that house: this involved two propositions; the first, relative to an indemnification against criminal prosecutions; the second respected indemnity against civil actions or suits. With regard to the latter, there had been but one sad instance in the history of parliaments of an indemnification from civil suits for evidence to be given; namely, the case of sir Thomas Coke; but that was only from suits on the part of the East India Company, his employers; but not against third persons, or demands of the king or public, or individuals in general, as was the construction admitted by the present bill. There never was an instance known, and it was contrary to every principle of law, that persons should be excused from giving answers in a court of justice, because such answers might possibly shew that other individuals had demands against them. Were there no other peer to support him on the occasion, he hoped his conduct should go down to posterity, in having stood forward alone to resist such a proceeding. Suppose a witness, who had pocketed one hundred thousand pounds of the public money, was brought forward against a person charged with a less weighty offence, and to be told he should be protected against any civil suit, for having robbed the public of so much, provided he

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gave them such and such evidence, though he might be compelled to do it, were he protected from criminal prosecutions only, would it not, he asked, be a strong temptation to such witness? Dwelling farther upon this point, his lordship stated his intention to propose the omission of that part which indemnified the parties from civil suits; and he would also propose some amendments, to confine the indemnities to acts which had reference only to the impeachment. Another objection he entertained was, that the bill was not sufficiently efficacious, in case such evidence as was required were not given; as in the case of a king's evidence in the counts below; that consideration involved, he thought, insuperable difficulties; upon the whole, he should regard it as one of the most blameable acts of his life, did he consent to such an indemnification from civil suits; and, were such determined on by the house, he would, if single, protest against it. The noble and learned lord then regularly proposed amendments to the above effect; and, lastly, to leave out the words, "and civil suits."
The Duke of Norfolk was of opinion, in his view of the case, that this important omission proposed by the noble lord would go to frustrate the object of the bill; neither did he think that part of the bill would go to protect the parties from suits generally from other individuals, but merely for acts done under the Treasurer of the Navy. The object of the bill was substantial public justice, and, to attain that, some sacrifices might be made; a free unbiassed testimony was the object in view, and this might as well ope rate in favour of the accused individual as against him.
Lord Hawkesbury thought the noble duke incorrect in his opinion as to the extent of the bill in its present shape: that part of the clause went to indemnify for all acts done, either with respect to the crown, or to individuals, while in the office under the treasurership of viscount Melville. In this, the wording of the bill bore him out. The professed amendment, he thought, might be ameliorated, by confining the indemnification to civil suits, on the part of his majesty, his heirs, or successors, which would leave the parties open to actions brought by individuals.
Lord Sidmouth was not convinced of the propriety of leaving out that part of the bill which went to afford the witnesses protection against civil suits. Such a provision was, under the circumstances of the case, he thought, conducive to the ends of public jus
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tice: the witnesses should be freed from the apprehension of suit or prosecution. The proposed amendment would, probably, cause the loss of the bill that session; and he should, therefore object to it.
The Lord Chancellor spoke at some length in explanation. In a case, he observed, where an individual, upon a weighty charge, went to be tried in a solemn manner by his peers, he held it to be his duty to the house and the public, to resist the passing of a bill, which, in its present shape, would operate as an ex post facto law. As the bill came up to them, and at such a period, the question was reduced to, whether they should pass it next session with due consideration, or pass it this session without any consideration at all? He enlarged on and enforced his former arguments, against the principle on which the indemnity from civil suits proceeded. Impeachments, though rare, proceeded upon the same principle with other prosecutions: from the articles, it was discernable, that some individuals had made immense sums; and where was the difference, in the effect, in giving a witness so much money tor particular evidence; or suffering him to keep so much of the public money, of which he was already possessed? As the law now stood, with reference to civil indemnity, an individual was bound to give evidence, an individual was bound to restore the public their money. Why, then, should a bargain be made, allowing an individual to keep that money, for consenting to give evidence, which he was at present compellable to give, provided he were secured from criminal prosecution? With respect to such a decision, he could almost say with lord Hardwicke—"I protest to God, I would almost as lief be the object of such a bill as give my consent to its passing, if it be not altered in these respects.'—In concluding, he again suggested the propriety of postponing the discussion of a bill of such novelty and peculiar importance, until next session.
Lord Sidmouth spoke in explanation, and adverted to some doubts entertained by high legal authorities, with respect to the considerations of how far witnesses in the cases adverted to by the noble and learned lord; were compellable to answer; but for the deliberate and decided opinion of his noble and learned friend, he had so high an estimation, that, as he thought, that witnesses were protected from criminal processes, they were bound, as the law stood, to answer the questions put to them; he should, under that impression, no longer resist the proposed amendment.
The Lard Chancellor spoke in facther ex

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planation, and, adverting to the legal doubts al1uded to by the noble viscount, begged leave to observe, that what he advanced was merely his own individual opinion, and, as Such, he wished it to be understood. With respect to the doubts thrown our, relative to the power of witnesses to demur in such cases, it was a additional argument for deferring the consideration of the bill till the next session, when they might have the benefit of the Judges, opinions.
The Earl of Buckinghamshire said, that relying on the authority of the noble and learned lord on the woolsack, as to the point of law, he would not oppose the amendment.
Lord Minto entered into a detailed consideration of the subject; and, from the positions advanced, drew inferences, in many cases, very different from those stated by the noble lord on the woolsack. He adverted to some precedents, which, he thought, furnished cases in point; and one even of a stronger nature, than that involved by the bill. With respect to the civil suit, he argued, that, in the mode in which it might be applicable to the individuals in question, it would have the effect of a criminal prosecution. On this point, he laid particular stress, and seemed of opinion, the proposed amendments would frustrate the whole purpose of the bill.
The Lord chancellor again quitted the woolsaCk, and replied to some points adverted to by the noble lord, who had just sat down. The question at length resolved into, whether the parties should be indemnified from the civil suits, or from the criminal process only? On this head, he retained his opinion, but repeated, that he advanced it as his opinion only.
Lord Mulgrave observed, that it was a mere matter of discretion with the public whether they would adopt a civil or a criminal process, as was evident from the votes of the other house. The public had now made their option; they had given up the one and determined on following up the other mode. There could not be any danger justly apprehended from the precedent, as the right was manifest from the circumstance of the other chamber of parliament having first made choice of one course of proceeding, and having afterwards resolved on pursuing another.
The Earl of Carysfort recommended to their lordships that further consideration should be given to the great principles of law which, by such a measure as the present, might Possibly be materially affected in the practice hereafter, if this bill were to pass
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in its present form. It was unparliamentary to express any apprehension of the close of the session, or of the dissolution of parliament, as the ground for hurrying a measure of importance through the house. Their lordships had heard the opinion of a noble and learned lord, high in rank, and high in respectability; but still he thought that it would be extremely desirable that the opinions of the judges should be had upon a point, about which serious doubts were entertained.
The Lord Chancellor expressed his deep regret at not having an opportunity to ask the noble lord who presided in the chief court of law, upon the question now under discussion. As his opinion seemed to have great weight With Some noble lords, and as he might possibly be wrong, he asked their lordships whether it would not be better that they should be certainly right, than for that legislative house of parliament to run the risk of being wrong upon a point of law, for the sake of a week's expedition in almost any measure of importance that could be brought before them? Seeing, as he did, in the strongest point of view, the Propriety and necessity of taking the opinion of the law lords on this question, he should move that the question be,adjourned, in order that time be given for taking the opinion of the judges on it.
Lord Sidmouth rejoiced to find that his noble and learned friend had at length agreed to the proposition of referring the point in doubt to the opinion of the judges. He knew that he had the authority of that most excellent propounder of the laws lord Kenyon; he had also the opinion of a man, whose name, though he was not clothed with any judicial authority, or judicial honours, must give the greatest degree of weight and authority to any maxim that received its sanction, that it was possible for the name of any man in such a situation to add to an opinion. But, though he had such high and respectable authorities on his side, he thought that it would be most candid to have a reference to the judges, and he only lamented that such an idea had not entered the mind of any noble lord in an earlier stage of the business.—After some further discussion it was agreed that the bill should pass as far as its provisions extended to indemnity against criminal proceeding, with an understanding, however, that if the opinion of the judges should be favourable to the measure, it should be competent to any noble lord to bring in a short bill as soon as possible for the further extension of the indemnity. The necessary amendments were then made, and

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the bill thus amended received the sanction of the authority of this house.

DUXE OF ATHOLL'S CLAIM.
On the question for the third reading of the bill for granting additional compensation to the Atholl family,
The Marquis of Buckingham rose to oppose it. He went into a variety of argument and detail, proving that there was no such thing as sovereignty belonging to the lords of Man; but that all they possessed was merely the dominium, which was only lordship, and had been so translated into our acts of parliament. The title had never been more than that of lord or lady of the Isle of Man. The ecclesiastical establishment of the isle, so far from acknowledging the lord of Man, was entirely under the controul of English acts of parliament. The monasteries were suppressed, and the church property that was seized was taken for the use, not of the lord of the isle, but by and for the king of England, under the act of parliament of Henry the eighth. There were, the noble marquis contended, many instances of similar jurisdictions with that of the Isle of Man, such as the counties palatine, &c. in this country. He then referred to Taylor's elements of the civil law, who, in investigating matters of this nature, observed, that private persons had frequently territories allotted to them, reserving always the public right: the imperium belonging to the king, and the dominium constituted the lordship; and this was held by a sergeantry, or petty sergeantry of various kinds. Whatever their lordships might choose to do in this business, they ought to drop the mention of the word sovereignty, since in point of fact it never had existed.—If there were any ground laid for making this claim, it was only on the increase of the revenues. In the whole of the original transaction of the compact, there was an anxious wish on the part of government to do justice. If the present case was an appeal to liberality, there was also the policy of the case to be considered; and the noble viscount (Sidmouth) whom he did not now see in his place, had last night detailed various reasons against opening or disturbing the compact. The negotiation was not precipitate. It was begun in the year 1761 with Mr. Pelham, who entrusted it to Mr. Grenville, and a great variety of documents took up the attention of ministers for a long time. Could the house shut their eyes upon ail the opinions of great and eminent law officers given from that time to this, the opinion of lord Rosslyn, sir James Manners, Mr. Wallace,

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and other gentlemen, as well as those or the law officers of the present day? The original compact had been termed matter of history. He wished that forty years hence the present transaction would merit as favourable a recollection as that which took place forty years ago. He considered it to be impossible to estimate the compensation according to any standard or criterion whatever. The bill stated loosely one-fourth of the revenue, which might amount to a very great sum.—He saw plainly, that under the operation of this question the islanders had suffered greatly. They have had, however, the advantage of parliamentary protection, and he trusted they felt grateful. We had gained, indeed, the loyalty and affection of thirty thousand subjects; and they must see how we have excited their energy. Having stated these things, he should allude to a clause in the bill, partly, indeed, on a personal account.—The money was to be paid at the Exchequer, and the public officer was to be rendered responsible and exposed to the law for any delay in the payment. Cases might occur to justify such a delay. He then instanced the case of the heir of Penderell, now before the court of Chancery, and stated difficulties that might occur in the case of the heirs general of the earl of Derby. Before he sat down, he begged to repeat, that, in what he had stated, he had only delivered his conscientious opinion on this subject, and in nothing he had said, had he intended any kind of disrespect to the noble family who were the present claimants.
The Earl of Westmoreland replied to the arguments that had been urged against the bill; he considered that the transfer was altogether compulsory on the part of the Atholl family, as appeared by the evidence of sir Fletcher Norton, his Majesty's attorney general, who stated in the house of commons as a witness, that he had heard the late duke express great sorrow upon the occasion, and say that he would not take double what was offered him as a compensation, it he was not afraid of the consequences of the bill, which was then about to be brought forward, respecting the customs of the Island. This appeared to him sufficient proof that the sale was a compulsory one against the late duke of Atholl, and that if the terms were not fair at that time, the present duke had a right to compensation. The customs of the Isle of Man were no less than 7,000l. per annum when the act was passed; and as the act itself referred to a schedule of those customs, he could not but think they formed the principal consideration for which the sum of

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70,000 l. was given. If so, it was evident that Such a sum was grossly inadequate.—There was another circumstance which, in his opinion, vitiated the whole transaction, and he wished that the learned lords would express their opinion of it in point of law.—When a tenant for life (and the dutchessdowager was no more) in the sale of property entailed, accepts of a private douceur for himself, he always conceived that that circumstance would overturn the bargain, either in a court of law or equity. In this instance, the late duke and the dutchess-dowager accepted of a douceur of 2,000 l; per ann. pension to themselves. This circumstance alone would, he believed, according to the construction of law, impeach the fairness of the transaction.
The Lord Chancellor was inclined to consider, that by the rules of equity in common cases, this pension of 2,000 l. per ann. ought to be applied to the property so entailed, and ought not to have been taken for the separate use of those who were but tenants for life. He was one of those to whom the claim had been originally referred; and he had coincided in the general opinion of the crown lawyers, that there was no reason for considering the compensation inadequate, As to the sovereignty that is now insisted upon, he thought there had been no pretence for claiming it, and as to the custom duties of the island, it was clear they were granted for the purpose of paying the public expences of the island. Upon the whole he considered, that it would be a most alarming precedent now to open again a transaction that had been closed so long as 40 years ago.
The Earl of Suffolk opposed the bill as opening a door to numerous claims of the same description.
The Earl of Carlisle supported the bill, and considered the claims of sovereignty as very immaterial, provided the rights referred to were admitted.
The Duke of Norfolk denied that the allegations in the preamble of the bill were made good, and therefore moved that the bill be recommitted. On this question their lordships divided, Contents 7—Non-contents 2. Majority against the motion 18. Several verbal amendments were then proposed by the marquis of Buckingham, which were rejected. Another division took place on a verbal amendment proposed by his royal highness the duke of Clarence, which was lost by a majority of 25 to 5. The bill was then read a third time, and passed, after a division of 24 against 5.
The following Protest against the bill was
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entered upon the journals Of their lordship's house.
Dissentient: First, "Because the bill in question appears to be grounded on the following recitals, which have not been supported by evidence. The preamble recites that the Isle of Man was granted in Sovereignty by King Henry the 4th, and that the Sovereign rights continued until the 5th year of his present Majesty; and it further recites, that the act of the 12th of George the First, chap. 28, provided for the purchase of these Sovereign rights. But this grant to sir John Stanley, and the said act, do not in point of fact convey, or confirm, or provide for the purchase of Sovereign rights in the Isle of Man; and it was not denied in the course of debate that the legislature of England had uninterruptedly legislated for internal purposes within the said Island. The preamble further recites, that by a certain deed of restriction duly executed by Charlotte, duchess dowager of Atholl, John, duke of Atholl, became entitled to the rights reserved to his family in the Isle of Man, and hath ever since continued to enjoy the same.—But this deed when produced in evidence, purports only to intend to convey—'the rents, profits, and duties of every kind payable now forth and from the Isle of Man; and does not convey any of the other rights reserved: and it appears from evidence that the duchess dowager of Atholl was lady of the Island at the time of passing the act of the 5th year of his present majesty, and has continued to exercise part of the rights reserved to her by that law ever since the act of Restriction, 1774.—The preamble further recites, that there were circumstances attending the resignation of these rights, which make it just and reasonable that a further compensation should be given, and that the duties of customs of the Island belonged to the family of the duke of Atholl, and that a compensation should be given for them to be regulated by their produce. But of these circumstances no evidence was given, nor was it proved to us that the duties in question did so belong, nor was any reason whatsoever urged in the debate to induce us to think that the compensation (if any was to be made) should be regulated by their produce.—Secondly, because the reports made at various times down to the present moment, by the law officers of the crown, on the subject of the claim for further compensation in this matter, were sanctioned and confirmed in the debate by the first legal authorities; and did satisfy us that we are well grounded in our opinion, that sufficient grounds have not been produced in proof that the compensation given

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by the act of the 5th year of his present majesty, chap. 26, was inadequate.—Thirdly, because the vague and loose manner in which the evidence has been conducted of the nature and extent of the supposed injury, or of the proposed compensation, or of the claim of the duke of Atholl, to be considered as the party to whom that compensation should be granted, forms an additional ground for the jealousy which we entertain on the danger of establishing this precedent for opening for re consideration, and at a remote period, contracts between the public and individuals. Fourthly.—Because the house having thought proper to reject an amendment proposed in the last clause for the purpose of supplying words evidently omitted by mistake; the act as it now stands enacts a very questionable process, and imposes severe penalties on "the officers of the receipt of his majety's exchequer, who shall refuse or neglect to pay the said annuity, or yearly rent, or sum, or any part thereof, according to the true intent and meaning of this act, or to do any act necessary to enable the said John duke of. Atholl, and, the heirs general of the 7th earl of Derby." But, inasmuch as the words proposed to be here added, viz. "to receive the same," were injected, this part of the act is absolutely unintelligible, and was admitted by every lord who spoke in the debate to be inexplicable and of no effect.

(Signed)

Norfolk, E. M.

William,

Nugent Buckingham,

Carysfort.

TROTTER'S INDEMNITY BILL.
The Lord Chancellor produced a bill which he proposed to be read a first time, for the purpose of obtaining the opinion of the judges on this question, which arose out of the bill of indemnity to those who should give their evidence on the trial of the impeachment of Henry lord viscount Melville, viz. "Whether, by law, a witness can be required to answer a question the answer to which has no tendency to accuse himself, but which may establish, or tend to establish, that he owes a civil debt?" which bill he moved might be now read.
The Earl of Carnarvon had no objection to taking the opinion of the judges on this point, as it was desired by the noble and learned, lord, but should have been better satisfied if the question had been put upon the bill of Indemnity which came from the commons, and which the house had passed.
The Lord Chancellor explained his reason for taking this measure to be this: his opinion had been asked, and he had given it to
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the house, on the subject of the liability of a witness to answer a question not tending to criminate himself, but tending to establish a civil, debt against him. Upon that Opinion he might be considered to be bound as if it was unquestionable law; he had given that opinion conscientiously, but to hold him to be bound by it at all events, would be to cast on him a burthen which he ought not to be called upon to bear, for he old not chuse to take upon himself to determine that he was right, on a point which he wished for a further opportunity of considering; for which reason he proposed that the house might have the opinion of the judges upon that question, which opinion might be formed in the course of the recess; for which reason he proposed to put this question to the judges, and moved, "that the judges do attend the service of this house to-morrow," which was accordingly ordered, and after the bill had been read a first time, the house adjourned.