§ 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 813 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 814 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 815 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 816 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 817 the bill thus amended received the sanction of the authority of this house.