HL Deb 17 February 1806 vol 6 cc170-2

On the order of the day being read for the second reading of this bill, and for the attendance of the judges, who were all present,

Lord Eldon

adverted to the till which was before the house last session, and which embraced the same object as the bill now under their consideration. He at that time called the Serious attention of their lordships to the bill, which he considered to be in the nature of an ex post facto law, and he then proposed certain questions to be put to the judges, in order that there might be a clear understanding, as to the nature of the law upon the subject. He now rose to propose, that similar questions should be put to the judges, with the same view. He could not help, however, observing, that the principle attempted to be established by the present bill, was one which demanded the most serious consideration of their lordships; was one, for not guarding against the introduction of which they might deserve the reproaches of posterity. The bill expressed doubts as to the liability of a witness to answer a question, the answer to which might involve him in a civil suit, he could only say, that he had been 30 years in the profession of the law, as counsel, and in a judicial character, and it was the first time he had heard that them was any doubt upon the subject, although he was aware, that upon this point a high legal authority was against him. He wished, however, their lordships to be fully aware of the nature of the bill, which went, as it might happen, to give persons sums of money (for it was the same thing, whether the money was actually given, or whether they were freed from any process, for a sum of money claimed by the public) for giving evidence at their lordships' bar, and not only were such persons, on that account, discharged from any process on account of debts due to the crown, but from any process on account of debts due by them to individuals, according to the words of the act, "any other person or persons." He saw so many objections to the bill, that he could not help recurring to the admirable speech of lord Hardwicke, upon a bill of a similar nature, which was before the house in the year 1742, and to which he had referred last sessions, when that great man concluded his speech by observing, that he would much rather be the object of such a bill, than the author of it. His lordship concluded by moving to refer to the judges for their opinion, three questions, varying in terms, the object of which was to ascertain, whether, according to law, a witness had a right to demur to the answering any question, relevant to the subject under in vestigation, the answer to which might tend to acknowledge a debt recoverable by civil process? or which might render him liable to civil process generally? or which might render him liable to civil process at the suit of the crown, for the profits of any public money converted to his own use?

Lord Holland

said, he should not now comment upon the objections made to the bill by the noble and learned lord, as this was not the proper time for discussing the bill. He could not help, however, observing upon one point urged by the noble and learned lord, in which he thought the noble and learned lord was not borne out by the words of the bill. He did not conceive that there was any provision in the bill which could authorize the construction, that a witness giving evidence under the sanction of its provisions would be therby exonerated not merely from civil process on account of the application of public money, but also on account of debts due from such witness to private individuals. On the contrary, he conceived the bill to apply solely in its enactments, as it certainly did in intention, to the discharging such witness from process on account of public money.

Lord Eldon

admitted that the bill did not apply to merely private debts. He, however, wished to put the case of transactions arising originally out of the employment of public money, becoming so far transactions between individuals as to give rise to debts which could only be a subject of contention between those individuals by whom and to whom they were contracted.—After some further explanation between lord Eldon and lord Holland, the questions were referred to the judges, who requested time till Thursday se'nnight to consider of them.

Lord Holland

expressed a wish that an earlier day might be appointed for the judges to deliver their opinion, which he thought would be practicable, as questions similar to the present were referred to the learned judges last session.

The Lord Chancellor(Erskine)

said, that the delay asked by the judges was, he conceived, no more than ought fairly to be allowed, considering the variety of avocations by which their time would in the mean while be occupied. The sessions at the Old Bailey would intervene, which would necessarily employ the time of some of the learned judges and, upon questions of such importance as these, they would naturally wish to deliberate upon them when all of them were present. He said this merely to shew that it was the other avocations of the judges which prevented an earlier day from being fixed.—It was then ordered, that the judges should attend on Thursday se'nnight, to which day the second reading of the bill was postponed, and the lords ordered to be summoned for that day.

Lord Eldon ,

adverting again to the importance of the law considerations which the bill gave rise to, intimated the probability, that upon further turning over the subject in his mind, he should feel it incumbent on him to move for a committee to search for precedents. In case such should be his determination, he proposed to give notice of it to-morrow, and to move it on the subsequent day.