Lords Sitting of 16 March 1808

ORDERS IN COUNCIL BILL.
The order of the day was read for resuming the adjourned debate on the motion of lord Grenville, for rejecting the Orders in Council bill.
Lord Grenville, having on a former evening stated his reasons for moving the rejection of this bill, declined again urging them, but trusted to the indulgence of their lordships to allow him to reply to any arguments that might be urged in the course of the debate.
Lord Hawkesburyobjected to the strictness of construction given to the Standing Order by the noble lord, on a former evening, and contended, that the practice of the house was in direct opposition to the principles urged by the noble lord in support of his motion. His lordship quoted several precedents support of this proposition, some of them in the reign of queen Anne, soon after the passing of the Order; some in the beginning of the reign of his present majesty, and others of recent date, consisting of Bills of Aid and Supply, which contained clauses either not necessary to the object of the bill, or

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foreign to and differing from the purpose of the bill, and which were, notwithstanding, agreed to in that house. One instance he quoted was, the Act for carrying into effect the commercial treaty with France, on which a question of rejection on the Standing Order was moved in that house, and negatived. In the Annual Malt Bill, and in the Irish Stamp act passed in 1803, clauses were contained foreign to their purpose. His lordship entered into a detail of these precedents, for the purpose of proving the practice of the house to be in opposition to the noble lord's construction of the Order; and then went through those clauses of the Bill to which objections had been taken, contending, that in no instance could they be considered as bringing the bill within the meaning of the Order. Most of the clauses objected to were, in his opinion, evidently growing out of the bill, as a bill of Aid and Supply; and with respect to the limitation of action, on which most stress had been laid, he denied, that it at all contained an indemnity for issuing the Orders in Council; and that the question of legality might still be tried, although this clause was agreed to. He urged, that it would be unjust to apply the Order to this bill, after a continued practice of a contrary tendency so clearly proved, that the intention of the Order was to apply it in cases where there was an evident intention on the part of the commons to better the discretion of that house, by annexing clauses to Money Bills foreign to their purpose; that a general application of the Order would defeat the object of it; and that it could not, in any fair or just view of the cave, be applied to the present bill.
Lord Erskinecontended, that whatever the practice of the house might have been, it could not set aside the written Orders of the house; practice might decide with respect to unwritten law, because, in that case, the decisions upon the subject declared the law, but where there was a written statute, no practice could set it aside; the written law remained to be referred to, and to shew the course to be pursued. Thus it was with the Standing Order; and he could not conceive what the noble lord meant in arguing that the general application of the order would defeat its object. Was it to be argued, that an order general in its nature, and clearly stating its object, was only to be applied to particular instances, or was it to shew what instances it ought to be applied to?
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Either it ought to be applied according to the terms of it, as distinctly stated, or else it ought to be repealed. The precedents quoted by the noble lord were either not in point, as proving only that clauses inserted in bills contrary to this order, had been unnoticed by the house, or else they proved too much; for if they were to be taken as declaring the sense of the house upon this subject, then there was an end of this Standing Order. There were however two instances of recent date in which the house had acted upon this Order, the one in 1789, when lord Thurlow was chancellor, when a bill of Aid and Supply was rejected as containing clauses foreign to its object; and the other in Jan. 1807, when he had the honour of sitting on the woolsack, and of pointing out to the house the necessity of enforcing their Standing Order. As to there being no indemnity contained in the bill, he thought, on the contrary, that if it passed, and supposing the case of ministers being impeached for issuing the Orders in Council, that that house could not, after passing this act as it now stood, find them guilty. His lordship went through those clauses of the bill which were adverted to on Monday evening by lord Grenville, and contended that they were foreign to and different from the object of the bill, as a bill of Aid and Supply, and therefore that the bill, in conformity with the express words and meaning of the Order, ought to be rejected.
Lord Mulgraveinsisted that a rule of the house, like a law, in courts of justice, might be explained by long practice. He perfectly concurred with the argumentative speech of his noble friend, the secretary of state; and trusted that their lordships, always regardful of their own privileges, would not, from any mistaken notions in point of form, delay a bill of the highest importance to the welfare of the British empire.
Lord Hollandanimadverted on the speech of the noble lord who spoke last, who he said, had repeated more feebly the arguments of the noble secretary of state. He said the instances adduced in explanation of the order were not contemporaneous with it, that they were eight or ten years posterior, and that the example of the 9th of queen Anne, on which so much stress had been laid, was after lords Somers and Cowper had left the woolsack, and the seals were in commission; so that it could not be supposed the house could receive the able assistance to

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which it had been accustomed, for the preservation of the respect due to the Standing Orders.
Lord Harrowbycontended for the interpretation of the Order as evinced in the practice of the house, immediately subsequent to passing it, as well as in bills of more recent date.
Lord Sidmouthsaid, that it was necessary to say a word or two upon the origin of the Standing Order which had been read. During the reigns of Charles II. and William III. in the progress of half a century, numerous attempts had been made by the house of commons to introduce into the house of lords objectionable measures, by connecting them with Money Bills; so that unless their lordships condescended to such measures, the aids for the service of the state were refused. Urged by this endeavour, the house of lords, for the preservation of its own independence, entered on the Journals this Standing Order, and when so adopted it must either be obeyed or repealed. The order itself might require some explanation. The Money Bills therein referred to were easily distinguished: they always originated in a committee of ways and means, as did the Bill now under consideration: they had the preamble, in which the name of the lords' house was excluded, as in this Bill; and when the royal assent was given, it was not 'le roi le veut,' but le roi remercie ses bons sujets, accepte leur benevolence, et ainsi le veut;' and so it would be given to this Bill, if it proceeded to that state of maturity. The instances adduced ought to be Money Bills of this description; and if they were not, the Standing Order had no reference to them whatever. Trying, then, the examples or precedents stated by this test, he found that out of eight submitted to the attention of the house, only two or three in the course of a century were applicable to the purpose to which they were referred. If their lordships regarded their own consistency, independence, and dignity, he. thought they could not dispense with the Standing Order on the present occasion, and that the Bill must be rejected.
Lord Melvillecontended, that the practice of the house ought to be taken as the interpretation of the Order, and that therefore, even upon this ground, the bill ought not to be rejected. He had, however, examined the bill, and had put the question to himself, whether there were any clauses in it which were foreign to, or different from its object as a Bill of Aid
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and Supply, and in his conscience he believed there were no such clauses.
The Earl of Lauderdalecontended, that. no argument had been advanced by the noble lord, to shew that the last clause in the bill, that of indemnity, was a natural part of the bill of Aid and Supply. The noble lord had advanced no reason that could convince any man; he had made it a matter between himself and his conscience—and his conscience was satisfied; but he had not satisfied the understanding of noble lords who heard him.—The noble earl went over the other regulations of the Bill, to shew that they were now totally unconnected with the Supply; and appealed to the noble and learned lord on the woolsack, whose peculiar duty it was to watch over the Orders of the house, to say whether this important Order of 1702 would not he totally violated if they entertained this Bill?
Lord Grenvillebegan by expressing his surprise, that upon a question of this nature, the house had not yet heard the opinion of the person whose duty it more peculiarly was to study, to explain, and to enforce those Standing Orders which were enacted for the regulation of its proceedings, and which were as binding upon it as the laws of the land were upon the courts below. That a Standing Order of the utmost importance was, in the instance under consideration, attempted to be violated, the noble lord endeavoured to prove, by shewing, that several of the clauses were foreign to, and different from the matter of a bill for Aids and Supplies. For this purpose, he referred particularly to those clauses which prescribed commercial regulations. Upon the merits of the bill itself the noble lord animadverted with his usual ingenuity and force. Under the terms of the clause which related to the East India Company, he contended that they could not dispose of any goods whatever for home consumption. But the most objectionable feature in the measure was that provision by which ministers were enabled to exempt any merchant from all its operations upon such conditions as they might think proper to settle. The idea of investing any ministers with such an extraordinary discretion, appeared to his mind utterly irreconcileable with the freedom of commerce. It would indeed go to arm them with such a degree of power over the mercantile body, as never was assumed or possessed by the most despotic government upon the

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subject of commerce. He could not, in fact, conceive how the character of commerce could consist with such an arrangement. From this point, the noble lord proceeded to comment upon the clause, limiting prosecutions against those who acted under the Orders in Council. This limitation was so contrived both as to time and place, that any person who might have cause to complain, or spirit to appeal against any illegality in these orders, or any injustice in their execution, was intirely precluded from the possibility of obtaining redress. The noble lord concluded by declaring his opinion, that the adoption of the bill before the house must lead to inevitable ruin.
The Lord Chancellorasserted, that no part of the bill before their lordships was inconsistent with the Standing Order alluded to by the noble lord who had just sat down. On the contrary, he maintained, that the whole stream of their lordships' proceeding, for a series of years, was in direct conformity to the practice objected to by the advocates for the motion. This was his opinion at the time the noble lord first stated his objection, but yet he thought it becoming in him to postpone the declaration of that opinion, until he should have heard all those noble lords who were disposed to speak upon the question. That course, he perceived, had exposed him to some animadversions, in the course of which it had been observed, that where a man who held a judicial situation doubted, he was unfit for that situation. Now, his opinion was directly the reverse of that observation; for he thought the man who entertained doubts in a judicial situation was the most fit for such a situation.—The noble lord entered into an enumeration of the several precedents referred to by the advocates of the motion, and contended, none of them in any degree bore on the conclusion which those noble lords would deduce from them. There was not, he maintained, a single provision in the bill upon the table which was not in strict alliance to and in pursuance of its main object. Therefore it could not be held, that it contained any thing foreign to and different from a bill of Aids and Supplies. So thinking he could not of course agree in the notion, that their lordships would in passing such a bill infringe the letter or spirit of the Standing Order alluded to. Indeed clauses directly similar to these, objected to as inconsistent with a bill of Supply, were be found in almost
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every bill of that nature upon the Statute Book.
Earl Greysaid, that the cases cited by the noble lord on the woolsack did not seem to him to warrant the opinion his lordship had delivered, and he believed that many cases might be found in the Journals of the house that even justified a contrary opinion, He would therefore propose that a committee of precedents should be appointed to select such cases as might be found applicable to the matter then under their lordships consideration, and then the house could more easily judge from those cases than from the partial ones produced during the debate.
Their lordships then divided on lord Grenville's motion, for rejecting the bill.

Contents

25

Proxies

34—52

Non contents

66

Proxies

63—120

Majority

—70

[PROTEST AGAINST THE ORDERS IN COUNCIL BILL.] The order of the day being read, resuming the adjourned debate on the motion to reject the Bill entituled "An Act for granting to his majesty until the end of the next session of parliament, Duties of Customs on the Goods, Wares, and Merchandize herein enumerated, in furtherance of time provisions of certain Orders in Council." The Standing Order No. 25. was read after long debate.—The question was put, whether the said Bill shall be rejected; it was resolved in the negative.
"DISSENTIENT: Because the annexing any clause or clauses to a Bill of Aid or Supply, the matter of which is foreign to, and different from the matter of the said Bill of Aid or Supply, is unparliamentary, and tends to the destruction of the constitution of this government.—Grenville, Vassal Holland, Cawdor, Lauderdale, Auckland, Ponsonby, Grey, Carysfort, Erskine, Jersey, Spencer, Nugent, (Buckinghamshire,) Cholmondeley, Crewe, Clifton, Stafford, Ponsonby, (Imohilly,) Albemarle, Cowper, Essex."
"DISSENTIENT: 1st, Because, such has been the anxiety to maintain inviolate the true spirit of the Standing Order of this house, No. 25, declaring 'The annexing any clause or clauses to a Bill of Aid or. Supply, the matter of which is foreign to or different from the matter of the said Bill of Aid or Supply, is unparliamentary, and tends to the destruction of the constitution of this government:' that Bills not of Aid or Supply, if they contained a clause imposing a duty upon his majesty's

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subjects, have been recently rejected, on the ground, that regulation, though not altogether unconnected with the purpose for which such duty was imposed, might be considered as foreign to and different from the aid given to the use of his majesty by such clause.—For we observe in the entry on the Journals of this house, on the 3d of Aug. 1807, that a bill entituled 'An Act for abolishing fees received by officers in the service of the customs in the several ports of Ireland, and for making compensation to the said officers, and for regulating the hours of attendance, and the number of holidays to be observed by them,' was, after reading the said Standing Order, rejected; the following lords being that day marked as present.—The duke of Cumberland, lord chancellor Eldon, the duke of Portland, viscount Melville, lord Redesdale, lord Erskine, viscount Sidmouth, Longueville, bishop of Oxford, archbishop of Canterbury, earl of Cholmondeley, Selkirk, Balcarras, Glasgow, Graham, Buckinghamshire, Grosvenor, Kingston, Limerick, Normanton, viscount Carleton, lord Napier, Holland, Walsingham, Hood of Cath, Arden, Rawdon, Lauderdale, Boringdon, Douglas of Lochleven, Stewart of Garlies.—2d, Because it appears to us, that the Bill entituled 'An act for granting to his majesty until the end of the next Session of Parliament, Duties of Customs on the Goods, Wares and Merchandize herein enumerated, in furtherance of the provisions of certain Orders in Council; the motion for the rejection of which has been negatived by this house, is a Bill of Aid or Supply, and that it contains, 1. A clause, which as it at present stands, clearly prohibits the merchants of England trading to the East Indies, from selling any of the goods or merchandize they may import, and compels them on bringing any of the said goods or merchandize into this country, to warehouse them under the king's lock for re-exportation. 2. A clause, for taking off, in certain cases, a duty of two shillings a ton, imposed on ships of the United States of America, by the act of the 37th of his Majesty's reign. 3. A clause, enacting that no action or suit shall be brought or commenced against any persons for any thing alone in pursuance of the Orders in Council, of the 9th and 25th of November, 1807, except such action be commenced within three calendar months after the fact committed and many other clauses which are, stronger and more direct violations of
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the said Standing Order, than any thing contained in the bill rejected on the 3d of August, 1807. 4. Because, when we reflect, that the bill rejected on the 3d of Aug. 1807, purports to be a bill for establishing Regulations tending greatly to the benefit of the fair trader and the security of the Revenue; and that the bill now under the discussion of this house, is a bill which appears from the votes of the house of commons, to have been complained of by numbers of petitioners, as destructive of trade and revenue, we cannot conceive any reasonable ground why this house should now disregard a Standing Order, which is of such fundamental importance to the preservation of the constitution, and which it has on all occasions, particularly in the instance above referred to, shewn so much anxiety to enforce, whenever any attempt to contravene it has attracted attention.—We are therefore apprehensive, that this departure from the established principle and recent practice of the house, may be suspected to have proceeded from a desire to hurry through parliament this complicated and dangerous measure, which threatens the destruction of our commerce, and to prevent the people of this country from being heard against the provisions of a bill, which may prove ruinous to their most valuable interests. Lauderdale, Spencer, Grenville, Auckland, Essex, Grey, Vassal Holland, Cowper, King, Jersey, Stafford, Erskine, Cawdor, Cholmondeley, Crewe, Clifton."