The order of the day having been read for the attendance of the Judges (who were all present), to give their answers to the three questions referred to them, the 1st and 2d of which went to enquire whether, according to law, a witness could demand to answer a question, the answer to which might render him liable to an action for debt, or to a suit for the recovery of the profits of public money? and the 3d, to ascertain whether a witness who, on making a full and fair disclosure, was to be excused from certain debts, could not be legally objected to, on the ground of his being interested?
Lord Chief Justice Mansfielddelivered 223 the opinion of the Judges, which, with respect to the first two questions, would, he said he feared, leave their lordships in nearly the same state of doubt in which they were before, although his learned brethren and himself had devoted as much attention to their consideration as the time allotted for the purpose would allow. The Judges were, however, upon those two questions, which they considered to be resolved into one, divided in opinion. Those who were of opinion that a witness in such, a case could not demur, might be prepared to give a decisive answer to that effect, but with respect to those who were of a contrary opinion, that opinion was qualified by a great number of exceptions, which it was not their province to descant upon under the general terms of the questions, and which, indeed, it would be scarcely possible for them, under a general question, to give a decided opinion upon.—With respect to the 3d question, they were unanimously of opinion, that a witness in the situation described, could not he repelled on the ground of being interested, as whatever was offered, on condition of his making a full and fair disclosure, could legally make no difference with respect to his evidence, he being bound by his oath, by law, morality, and honour, to declare the truth, the whole truth, and nothing but the truth.
Lord Aucklandexpressed his disappointment at the opinion which he had just heard from the learned Judges, which he had expected would have been decisive one way way or the other. In order, however, to obtain an answer, which might perhaps be all that would be necessary, with reference to the bill, he begged leave to propose another question, whether, according to law, any officer or agent employed under any officer entrusted with the application of the public money, could demur to answer to any question relative to the matter in issue, the answer to which might render him liable to any suit respecting the application of such money? This question, however, he was very willing to withdraw, if any other noble lord suggested a better mode of attaining the same object.
It being suggested by the clerk that the answers of the Judges should be delivered in writing, they were accordingly delivered. The answer to the third question was similar to that given verbally by lord chief justice Mansfield. The answer to the other two questions stated, that they were so 224 general in their nature, that the Judges could not give a satisfactory answer.
§ Lord Eldonsaid, it would be in the recollection of their lordships that he had on a former occasion expressed his doubts, whether they would derive much precise information from the opinion of the Judges upon such general questions. The great difficulty in his mind, with respect to framing more specific questions was, that they could not do so without going into the merits of the case which was to come before them by impeachment, and upon which they ought to preserve their minds clear from all previous opinions upon the subject, until they came before them regularly in evidence.
Lord Hollandobjected to the noble lord (Auckland's) question, on the ground of its being too particular, and protested against the admission of the Judges' answer, because it recognized a principle which he contended was unparliamentary, viz. that questions referred to the Judges should be of a particular and not of a general nature. He was decidedly of a contrary opinion, and had no hesitation in saying, that it had been the uniform practice of parliament before the trial of Mr. Hastings, and that it was essential to the preservation of the independence and dignity of their lordships' house, the highest judicature of the kingdom, to refer no questions to the Judges of a particular nature, but to consult them on the general point of law.—All questions that it could become the house to refer to the learned Judges, were in his opinion reducible to these three heads. 1st, a question of pure abstract law, illustrated by an A. and B. case. 2dly, a question on the practice of the courts below. 3dly, a question on the construction of a particular act of parliament.—If, therefore, this was sound constitutional doctrine, and the Judges were permitted to decline answering questions because they were general, it would follow, either that the house must depart from the principles of their ancestors and the wholesome constitutional maxim of confining their questions to general points, or the attendance of Judges would become nugatory and useless.—The reason of the principle laid down, was obvious. If every particular case was referred to the Judges, we should not be consulting them for the purpose of gaining information upon which we might form our own opinions, but we should be asking them advice upon our 225 own conduct, and consulting them how to regulate it according to law. Were that the practice adopted, and they were required to give opinions on the case, and not simply consulted on the general points of law, there could be no reason stated why the whole body of evidence on a trial, or any other proceeding, might not be referred to the Judges, and they required to advise the house what verdict to give. Such a doctrine and such a practice would be derogatory to the dignity of the house; subversive of the law and usage of parliament; and a virtual surrender of the independence and dignity of the highest judicature in the country, to the practice and rules of the inferior courts. He was therefore convicted that the learned Judges attended on the woolsacks, to furnish their lordships with such information as they might feel necessary towards regulating their conduct, but not for the purpose of being consulted as to what that conduct should be: and being convinced that the recognition of the impropriety of general questions being put to them, would be an acknowledgement that the object of their attendance was for the latter and not the former purpose, and that such acknowledgement would be pregnant with serious evils to the law and usage of parliament, he felt bound to protest to the admission of the answer given in in writing by the Judges.
§ Earl Stanhopesaid, his noble friend had mistaken the practice of parliament, with respect to the questions referred to the Judges. If his noble friend had, like himself, endured the misery of attending for six years, during the trial of Warren Hastings, he would have known that it had been constantly the practice to refer questions to the Judges, upon specific points, and individual cases. He could not, at the same time, agree with his noble friend, as to the general propriety of requiring an answer from the learned Judges, to a question, respecting an abstract point of law. Such a question might involve both negative and positive, relations, and how was it possible for the learned Judges to give a general answer, of yes or no, to a question, which they could not, indeed, answer, without making a thousand, or, perhaps, ten thousand, exceptions to the general rule laid down? With respect to the bill itself, he was of opinion, that there should not be a different law for A. to what there was for B.; 226 and he had an idea, if it was not carried into effect by any other person, of proposing a general law upon the subject, contained in a short bill, according to which, the evidence given by any person respecting any matter in issue, should not be afterwards made use of in any way against him.
The Lord Chancellor (Erskine) ,after briefly stating the circumstances which gave rise, on a former occasion, to putting these questions to the Judges, observed, that it was clear, from the statement of the learned chief Justice, that the learned Judges had not really declined to answer the question, on account of its being of too general a nature, but that they had differed in opinion with respect to the subject matter which that question involved, and, therefore, they could not return a general answer, either one way or the other. He looked up with reverence and respect to the opinion of the Judges; he wished to have their opinion upon such a question; the house had a right to call for their opinion. The variance between the verbal statement of the learned chief Justice, and the answer delivered in at the table, was obvious to the house; it was also clear that the difference of opinion amongst the learned Judges was, not as to the form of the question put to them, but upon the merits of the question itself. Under these circumstances, therefore, he thought that the house was entitled to call fur an opinion from the Judges, and, as they could not agree, that they should deliver their opinions seriatim. He, at the same time, wished to pay the highest deference to the opinion, upon this subject, of his noble and learned friend (lord Eldon).
§ Lord Grenvilleperfectly concurred in what had fallen from the noble and learned lord on the woolsack. He wished to pay every respect to the learned Judges, but their lordships were entitled to an opinion upon the questions referred to that learned body; and, however painful or unpleasant the task, they must do their duty. He concurred in the propriety of hearing the Judges seriatim.
§ Lord Hawkesburyalso agreed that the Judges should be heard seriatim; the only question appeared to him to be as to the mode of getting rid of the answer to the first two questions which had been delivered at the table. It occurred to him that the best mode of doing this, would be to consider that answer as not having been delivered, and that it should be un- 227 derstood that the learned Judges were to deliver their opinion upon the question, as if no such answer had been given. With respect to what had fallen from his noble. friend (lord Holland) as to the proceedings of the house being controlled by the opinion of the Judges upon specific points, that opinion was not sanctioned by precedents, one of which occurred to him at the moment—the case of Dr. Sacheverell, in which the house acted in direct opposition to the unanimous opinion of the judges. As to the idea started by the earl (Stanhope) of a general law to prevent the evidence of witnesses from being used against themselves, he thought it would not have the effect which the noble earl proposed, as, if the witnesses were compelled to disclose facts, that disclosure might afford a clue for proving those facts against them.
§ Lord Eldonsaid, he felt it incumbent upon him to state, that he gave too positive an opinion upon the point involved in the bill. He had said, that there was no doubt that a witness had no right to demur to a question, the answer to which might involve him in a civil suit; that opinion he must now retract, as he found there were doubts upon the subject amongst persons of high legal authority. He concurred in opinion that the judges should be heard seriatim, and therefore moved that the Judges, having given a decided opinion in the negative as to the third question referred to them; and it having been stated that they differed in opinion as to the other two questions; that they should be heard seriatim upon those questions, and that they should attend to-morrow for the purpose of delivering their opinions.—This motion was agreed to, and on the motion of lord Holland the further consideration of the bill was postponed till Tuesday, for which day the lords were ordered to be summoned.