The house resolved itself into a committee on the bill for Declaring, the Law with respect to Witnesses being liable to answer.
The Lord Chancellor ,in order that there might be no doubt as to the security of witnesses against being compelled to answer any question, the answering of which might subject them to penalty or forfeiture, proposed to insert the words "any penalty or forfeiture of what nature soever," instead of the mere words "penalty or forfeiture."
§ Earl Stanhoperose, and expressed his disapprobation of the bill before the committee, as a declaratory act. He expressed his hope, that, by subsequent legislative provisions, should the present bill be passed, his noble friend would guard against the mischiefs which might arise from such a measure. On this ground, however, he could not avoid coming forward and objecting to the bill as it then stood, and endeavouring to induce their lordships to divest it of its declaratory character. He was hostile to the principle of bills of that description; which, he thought, should never be passed by the legislature, except in very extreme cases. The occasion which he alluded to was, for instance, a violation of a principle of the constitution, such a case as was referred to in the preamble of the bill of rights, &c.; and such was the case of the excellent bill declaratory of the law respecting libels, proposed by a right hon. member of the other house of parliament. On that occasion, his noble and learned friend near him, (the chancellor), deserved the thanks of the country; he did not mean for his conduct with respect to the bill alluded to, but for what he had so nobly done to assert and to uphold the constitutional powers of juries. Except on Some great occasion of the kind, he never 402 approved of a declaratory bill. It was an engine by which a great deal of mischief might be done; through it the law of the land might be overturned, by its declaring that to be law, which was not law. The noble earl, in adverting, as an hypothetical case, to the return of members of parliament, through the influence of wealthy or powerful individuals, recited the anecdote of a late noble lord, who obtained the place he wished for, from the then prime minister, by threatening him, in case of a refusal, with the defection of his own support in one house, and that of his friends in the other. His brief and pithy answers to the arguments and representations of the minister, were, "There are seven of us! There are seven of us! Remember, there are seven of us!" Continuing his observations against a declaratory bill, he stated, that an actual majority of the great lawyers of the country were of such an opinion as to explode the necessity of such a bill as the present. He adverted to some opinions given by the late lord Mansfield, and among these, the case which gave rise to that recorded observation of his lordship, to the then Mr. Dunning: "if that be law, I'll burn my books."He adverted to the established compellability of pawnbrokers to give evidence, and adduced some reasons why horse-dealers should be considered in the same light. He liked not the idea of the present bill passing, to the imminent risk of that which he proposed; but, with a view of so far obviating the inconvenience to be apprehended, it would be better to pass his bill in the first instance. He adverted to some further cases, which, he conceived, tended to shew the probable inconveniences of passing such a bill as the present. He was, he observed, very stout in his opinions upon those points; he had read more acts of parliament than perhaps most lawyers, having perused all those from Magna Charta down to about fifteen years back. His lordship, towards the conclusion of his address, adverted to some farther cases; by one of which, stating it hypothetically, from the contingency of technical incorrectness in his answer, an individual might be destituted of his means support. He repeated his hope, that the inconveniences which might arise from such a construction in the law, would be guarded against by adequate legislative provisions.
The Lord Chancellorobserved, it would be better, had his noble friend postponed 403 the discussion of his own bill, until it came regularly before the house; as to that he conceived the greater part of his observations to have applied. He did not altogether approve, on such an occasion as the present, of his noble friend referring to the authorities of dead judges, as well as the living; as, in all cases of the kind, the law must be decided by the actual judges of the time. There were cases in forensic practice, in which a counsel might, allowably, fortify his opinions by a reference to those of former judges; but, on such an occasion, a poll of defunct, as well as living luminaries of the law, so as to outnumber those of the living, who might be of a contrary opinion, was a doctrine to which he could not submit. Such proceedings would tend eventually to interfere with the judicial functions of that house. A proposition, that the law was so taken from the very beginning of the British constitution, to the present moment, was what he had never heard of. The law was to be taken, from the mouths of those appointed to deliver it; but a poll in the way his noble friend appeared inclined to adopt, would be as objectionable as a poll of departed peers, with respect to decisions in that house. Adverting to the objections against the bill itself, he observed, that in such a case as it applied to, a declaratory act was more peculiarly necessary, that is, where doubts existed; as, if such did not exist, there would be no necessity of declaring what the law was.
§ Earl Stanhopeshortly spoke in explanation. He then adverted to the language of the bill, with respect to the term "lords spiritual and temporal." These descriptions, his lordship seemed to think, ought to be reversed, not only in the present, but in future bills, inasmuch as lords temporal, meaning princes of the blood, members of that house, had precedency of the very foremost of the spiritual peers, namely, the archbishop of Canterbury.
Lord Aucklanddeprecated an alteration of the kind, without the fullest and most mature consideration; deeming it far preferable to abide by the uniform practice of parliament, and to follow the example of their ancestors in such cases.—The question was then put, on an amendment as proposed by earl Stanhope, tending to do away the effect of the declaratory part of the bill, but which was negatived by the committee. Their lordships then agreed to the amendments proposed by the lord 404 chancellor; after which the house resumed, and ordered the report to be received tomorrow.
§ Earl Stanhopemoved, that the bill for the more effectual Discovery of Truth, be read a second time to-morrow, which was ordered accordingly.