Sitting of 27 June 1805

MINUTES
Mr. Serjeant Best gave notice that he should postpone his motion on the eleventh report of the commissioners of naval enquiry which stood for Monday, to Thursday.—Mr. Giles brought up the report of the committee on the Bank Forgery bill. The amendments were agreed to, and the bill ordered to be read a third time to-morrow.—The Leith Harbour bill was read a second time, and ordered to be committed to-morrow.—Lord Glenbervie reported from the committee of secresy, to whom so much of the eleventh report of the commissioners of naval enquiry, as relates to the advance of one hundred thousand pounds for a secret naval service, was referred; and who were empowered to report their opinion and observations thereupon to the house; that the committee had considered the matter to them referred, and had come to a resolution thereupon, which they had directed him to report to the house; and he read the report in his place, and afterwards delivered it in at the table, where the same was read;

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and the resolution of the committee is as followeth, Resolved, "That it is the opinion of this committee, that the said 100,000l. was advanced for an object to which the supplies granted for naval services were applicable; that the application thereof to that object was a measure in which the interests and honour of this country were concerned; that it was issued by the comptroller of the navy under orders from the lords of the treasury, with the knowledge and authority of the first lord of the admiralty, and in the fittest mode for answering the end proposed; that the clearing bill for 95,000l., part of the said sum of 100,000l., was granted on just and proper grounds; that the circumstances of the application of the money were of such a nature, that a .disclosure of them, either .at the period when they took place, or at any time since, would have been attended with public inconvenience; that it must be matter of regret, if any thing has occurred in the mean time which may have tended, in any degree, to such a disclosure; and that the reasons against such disclosure still continue, and render it the duty of the committee to abstain from entering into any farther particulars on the subject." Ordered, that the said report do lie upon the table, and be printed for the members of the house.—The British Museum bill for the purchase of the Townleian collection was committed, and the report was ordered to be received to-morrow.—Mr. sturges Bourne obtained leave to bring in a bill to enable the commissioners of his majesty's treasury to purchase certain grounds and premises adjoining the town ball of Westminster, for public purposes. The bill was afterwards brought in, read a first time, and the second reading ordered for to-morrow.—Lingham's Divorce bill was read a second time. Evidence being heard to prove that Mrs. Lingham was out of the kingdom, the service on her mother, Mrs. Dixon, was declared to be good service.—In pursuance of a message from their lordships, the speaker attended in the house of lords, and on his return informed the house, that the royal assent had been given by commission to the Lottery bill, the Additional Stamp Duty bill, the Spanish Red Wine Duty bill, the Loyalty Loan bill, the Post-horse Farming Duty bill, the Irish Malt Duty bill, the Irish Licence bill, the commissioners of Taxes bill, the Paymaster Generals Regulation bill, the Auditors Accounts bill, the West India Imports and Exports bill, the Irish Freehold bill, the British and
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Irish Militia Pay bills, the Irish Compensation Commissioners bill, the Militia Subalterns bill, and a number of private bills.—On the motion of Mr. Huskisson, the house went into committees on the act relative to the drawbacks on sugar, and on the act relative to the duty on hops. The reports of these committees were ordered to be received to-morrow.—On the motion of Mr. Whitbread, Mr. Serjeant Best was ordered to be added to the committee, to whom Was entrusted the drawing up of the articles of impeachment against lord Melville.—Mr. Whitbread gave notice, that to-morrow he should move for leave to bring in a bill to indemnify Mr. Trotter from the penalties he had incurred by the acts detailed in the tenth report of the commissioners of naval enquiry.—On the motion of the secretary at war, the house went into a committee on the bill for enabling his majesty to keep in full pay the officers of the militia, notwithstanding the reduction.—Colonel Stanley introduced a clause, empowering his majesty, where the establishment of a militia regiment consisted of a colonel, two lieutenant-colonels, and two majors, in case of the death or resignation of one of the majors. to retain the junior lieutenant-colonel with his own rank, but with the pay of major alone. By this measure the hon. colonel contended, that his majesty would frequently be enabled to retain a valuable officer, who would wise be lost to the service. After a few words from the secretary at war and lord Temple, the clause was agreed to, and the house having resumed, the report was ordered to be received to-morrow.—On the motion of Mr. Rose, it was ordered that the house should, to-morrow, go into a committee on the act relating to the drawbacks on the exportation of linens from Great Britain.—The Custom House Fees bill, and the Warehouse bill, went through committees, and the reports were ordered to be received to-morrow.—Mr. Rose brought in a bill for imposing additional duties on straw bonnets, &c. imported into Great Britain; and Mr. D. Giddy a bill for encouraging the Pilchard fishery, which were read a first time, and ordered to be read a second time to-morrow.—Mr. Paull gave notice, that to-morrow he should move for papers relative to the appointment in India of the hon. Henry Wellesley.—Mr. S. Bourne brought in a bill for purchasing ground in Old Palace-yard, &c. which was read a first time, and ordered to be read a second time to-morrow.—The house went into a committee

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on the Irish Loan act, the report of which was ordered to be received to-morrow.—Colonel Craufurd, adverting to the returns of the effective strength of the regular army that had been laid on the table yesterday, observed that in the last return the recruits at the foreign depot in Great Britain for the regiments on foreign service were stated as part of the effective strength of those regiments, while in the early returns they were not included, so that the house would be unable to judge accurately of the comparative strength of our regular army at different periods; he therefore moved, that there be laid before the house a return of the number of recruits for regiments on foreign service at the foreign depôt on the 1st of January, 1804, 1st of January, 1805, and 1st of June, 1806; observing that as these returns could with ease be made by to-morrow, he should not be obliged to delay his motion on account of them.—The secretary at war said, that in the returns of the two first periods in the hon. colonel's motions, those recruits (amounting then to 1000 men) had not been included in the return of the last period, (to the amount of 2000 men) they had been included. Colonel Craufurd's motion was then agreed to.—The Dublin Harbour Improvement bill was read a second time, and ordered to be committed to-morrow.—On the motion of Mr. Foster, it was ordered that the house should to-morrow go into a committee on that part of a certain act which related to military surveys in Ireland.—Mr. Orinsby brought up the report of the committee of supply, the resolutions of which were read and agreed to, and bills ordered accordingly.—The Exchequer Bills bill went through a committee, in which a clause was introduced on the motion of the chancellor of the exchequer, to indemnify the bank for advancing money on the exchequer bills of the year 1803. The occasion of this clause was, that among the occasions of the vote of credit for that year, stated in the preamble of the bill, the invasion then apprehended was mentioned as the first. In engrossing the bill, by an inadvertance of which this was not the only instance, all the other Occasions but the invasion were left Out. As there could be no doubt that the objects of parliament in passing the vote of credit were not restricted to the event of the invasion the money had been advanced; and it was not till lately, perhaps from the effect of events that had recently happened, that it Occurred to them to desire this indemnity,
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which there could be no doubt the house would grant for their satisfaction. The clause was agreed to. The reports were ordered to be received to-morrow.—Mr. Lamb from the South-Sea company presented to the house, pursuant to orders, an account of the amount of all unclaimed dividends on the public funds, which were receivable before 10th of October 1780, remained unpaid on 30th September and 31st December in the same year, and have since been paid at the South-Sea House; and also, an account of the amount of all unclaimed dividends on the several annuities payable at the South-Sea House, which were receivable before the 10th of October 1802, and remained unpaid on 30th September and 31st December in the same year; and also, an account of all stocks standing at the South-Sea House in the name of the accountant general of the court of chancery or the deputy remembrancer of the court of exchequer, in trust for the suitors of those courts respectively; made up to the 1st of October 1804. Ordered that the said accounts do lie upon the table.—Mr. Bulle from the exchequer presented to the house, pursuant to their address to his majesty, an account of all monies which had been issued by his Majesty's orders, pursuant to the addresses of the house of commons, and which have not been made good by parliament; with a duplicate. Ordered, that the said account do lie upon the table.—Mr. Huskisson presented to the house, pursuant to their orders, return of the number of men raised for the new levies between the 1st January and 1st May 1805, which are included in the adjutant general's return of recruits raised during that period, by the ordinary mode of recruiting; and also, return of the number of men who had volunteered from the militia into the regular army under the act of the 10th April 1805, who are included in the adjutant general's return of the effective strength of the army on the 1st of May 1805. Ordered, that the said returns do lie upon the table; and be printed for the members of the house.

DUKE OF ATHOL'S CLAIM
The chancellor of the exchequer moved the second reading of the duke of Atholl's Compensation bill, which was opposed by
Mr. Curwen, who alleged that the increasing revenue, which was one supposed ground of compensation, arose not out of the prosperity, but out of the misfortunes of the country, and that therefore his grace

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had not a fair claim upon the public. He moved that the bill be committed this day three months.
Mr. Fuller suggested the propriety of appointing commissioners to enquire into the facts of the case, and report thereon to the house before the passing of the bill.
Mr. Davies Giddy did not deny that the noble duke had lost most splendid honours, but he denied that he had sustained any loss in property.
Mr. Windham said that there was not the least. appearance of a case made out on the part of the noble claimant. By the natural and fair exercise of our own power, we had so diminished the revenues of this island, that his grace voluntarily sold his inheritance for what was then a full compensation for his annual loss of income; he was neither compelled by Mr. Grenville nor any other person.—The question was then put, and the numbers were for the second reading 50, against it 12, majority 38, after which the bill was ordered to be committed to-morrow.

SMUGGLING PREVENTION BILL.
On the order of the day for the third reading of this bill, counsel was called in on behalf of the petitioners against the bill. Mr. Plomer appeared as counsel for the petitioners against it, from the islands of Jersey, Guernsey, Alderney, and the Isle of Man; and represented their use at considerable length. He went into the various charters, and tenures, by which the islands of Jersey and Guernsey were held by the crown of England, and maintained, that the parliament of England were not entitled to legislate internally for those islands, which had always internal regulations of their own. He dwelt very particularly on the rights of the island of Guernsey; and maintained, that this island having, as well as Jersey, been under the dominion of the dukes of Normandy, before the conquest of England, by William I. and being the only part of the original possessions of that conqueror, now under the British crown, they had as good, if not a better right, originally to legislate for Great Britain then, than Great Britain had to legislate for them. He then stated the length of time in which those islands had been in possession of this commerce, without which, they would, in fact, have no trade at all, and be deprived of their subsistence. Neither would it be ultimately beneficial to the revenue; for, thought the provisions of the bill would rain those islands for ever, yet the eventual effect would be, that, at the return
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of peace, the same trade would inevitably be transferred to the opposite coast of France.—After the counsel had withdrawn;
The Chancellor of the Exchequer rose, and said, that he had listened very attentively to the speech of the learned counsel, and as many of the points urged by him wore an air of argument and novelty that might appear to deserve some consideration, he should have no objection, if it was desirable to members, to postpone further proceedings on the bill till to-morrow. At the same time, he considered, that the right of a British parliament to legislate for those islands, was established by long usage, and precedents in number, beyond all possibility of doubt. He therefore moved, that the third reading of the bill be postponed till to-morrow.
Mr. Windham rose, he said, with his mind strongly impressed by the very forcible arguments which he had just heard from the learned counsel at the bar, many of which, even in a constitutional view, required very serious consideration, and, on the ground of policy, suggested the necessity of proceeding with cautious deliberation, before a law was adopted creating crimes subject to very severe punishments, and suddenly operating too upon a people to whom it would be totally new, and to whom, without some more reasonable warning, it would, no doubt, be productive of many serious and vexatious embarrassments in the way of their trade. Revenue was certainly a good thing for a minister to look to; and smuggling was a very great evil, which required the greatest vigilance and exertion for its prevention:but in this case there were other considerations also to be looked to; and first, whether this bill could be fairly considered as a constitutional infringement upon the alleged independence of those islands inhabited certainly by a people of a very ardent spirit, and who had long manifested their loyalty and attachment this realm, and to whom, perhaps, at this particular crisis, it might not be altogether wise to give any feasible cause of irritation, by the passing a law which could not fail to operate vexatiously, if it was to have any very speedy effect, and the motives for which, the people on whom it would operate, had not fully or fairly before them: and, secondly, whether in grasping at money, we might not risk the loss of the islands. He was not going to question at this moment the right of the country to legislate for those islands, the right of the strong over

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the weak. It was to the prudence of the proceeding at this particular crisis that his doubts were directed. He took shame to himself, that he had not attended to the previous progress of the bill, but he thought the objections to it were in no inconsiderable degree increased, by the proposed law being brought in as a clause in another bill, instead of being, as it ought, a distinct measure, and being brought forward at so late a period in the session. He was glad, however, the, right hon. gent had agreed to postpone proceeding, but thought it should be to a more distant day.
The Chancellor of the Exchequer answered, that with respect to the right of a British parliament to legislate for those islands, no doubt whatever could exist, as the right had been established time immemorial by usage and precedent. He did not feel it necessary to go quite so far back, as the learned counsel in tracing the question. But it would be found, on recurring to the rolls of parliament, in the reign of Edward the IIId and to the statutes of queen Anne, that the British parliament had passed laws imposing duties on, and otherwise legislating internally for those islands. That the act of habeas corpus, in the reign of Charles II. extended its operations to those islands by name, in the same manner as in this country, and that an act of the 2d of George II. imposed a sixpenny duty on ships in their ports, for the support of Greenwich hospital, to be collected by officers within their islands; and here again was internal legislation. The act of settlement also annexed those islands to the British dominions, and required that all civil and military officers within those islands, should take the oaths of allegiance to the British crown; therefore the question of legislative right was put beyond all doubt. He was aware of the hon. gent.'s observation, as to the ardent spirit of the inhabitants of those islands; that one was more jealous than the other of its aristocratical dignity, on the ground of high descent, and that the other might feel jealousy on the score of what they called the rights of fair trade;—very different construction, however, from that species of commerce, from what it usually bore in this country. However, it would not be denied, that revenue was a matter of most material consideration to this country in the midst of a war; and when it was remembered, that the loss of revenue occasioned to the country by the smuggling trade, carried on through the medium of those islands, was
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not trivial, but enormous, he trusted the house would feel the necessity of adopting effectual checks for reducing the commerce of those islands to the same controul with all the other branches of his majesty's dominions. That the measure had not been discussed sooner was not his fault: it was introduced early in the session, and printed above a month; there was a petition against it before the house for a considerable time, and the parties were at liberty to come forward by their counsel, if they had so thought fit, in any former stage of the bill, without waiting to the very last stage.
Mr. Grey coincided in the objections of his right hon. friend (Mr. Windham) and said, there was one point urged by the counsel, which struck him as a circumstance for very mature consideration; namely, that of bringing persons from withinthe jurisdiction of their own laws and government for crimes created by this bill, and trying them before a British court and jury. He would admit that smuggling was there carried on to a most mischievous extent. He lived on a part of the coast where he had opportunities of knowing the fact; but he thought it would be wise to try if the evil could not be checked by other means, without resorting to a measure of this nature. Were. it in time of peace, the only effect would most probably be to transfer the trade now carried on at those islands to the French coast; but in a period of war, and when these islands were to this country so valuable as a commercial medium, no risks should, be run of a loss infinitely greater than any benefit to be derived through the operation of this bill.
Mr. Fellowes allowed it was a strong bill; but it was admitted by all who best knew the extent of the evil, that nothing but a strong measure could check it.
Mr. Sturges Bourne thought it rather a strange argument to offer to a British parliament, that the independence of those islands was less injured by being governed under the more arbitrary principle of edicts from the king in council, than under the constitutional protection of a British parliament. With respect to the observation of the hon. member who spoke last but one, namely, the bringing persons out of the jurisdiction of Guernsey and Jersey to be tried in England for crimes committed within that jurisdiction, it was by no means intended by this bill; and if the clause was thought to be worded so as to convey that meaning, it would certainly be modified, for it was meant that all crimes committed within those

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jurisdictions should be also tried there.—The further proceeding on the bill was deferred till to-morrow.—Adjourned.

MINUTES.
The lord chancellor, the duke Montrose, and lord Walsingham, sat as commissioners, and notified the royal assent to several public and private bills. Among the public bills were, the Irish Stamp Duty bill, the Irish Malt Duty Bill, the Irish Spirit Licence bill, the London Fish Market bill, the Army Paymaster's Regulation bill, the West-India Free Port bill, the Irish Election bill. &c.—The Clothiers' bill, and the bill for regulating the corn trade between Great-Britain and Ireland, were brought from the commons and read a first time.—Mr. Pitt's Indemnity bill was read a third time and passed.

CONDUCT OF JUDGE FOX.
Lord Hawkesbury having moved the order of the day for the second reading of the bill for continuing the proceedings against Mr. Justice Fox till next session, observed, that a noble lord, who was not now in in his place, had expressed his disapprobation of this measure. He was, however, at a loss to conceive on what ground any objection could be made to a bill which was so evidently calculated to promote impartial justice with respect to the public, with respect to the petitioners, and with respect to the learned judge himself. He would do that learned judge the justice to say, that he had shewn every disposition on his part to meet the charge fairly, and to facilitate that investigation, which he was, doubtless, desirous should be completed as speedily as possible. With respect to the witnesses, it was obvious that much expense would be saved, by rendering it unnecessary to bring back to this country those who had already been examined. If it should appear that the bill would violate any broad constitutional principle, it certainly ought not to pass; but it was far from having any such tendency. He reminded their lordships that it was the practice of the house to make a distinction between measures which were strictly legislative, and those which were judicial. The latter were continued from session to session, but the former always ceased upon a prorogation or dissolution. There were other measures, which, though not strictly judicial, were

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analogous to judicial proceedings; and with respect to these, it had been the practice to bring in a bill for continuing them, to prevent the inconvenience of being obliged to renew them. Such a proceeding took place in the case of sir Thomas Rumbold, and also in that of Mr. Hastings. He could not see how this bill was to interfere either With the prerogative or the privileges of the other house of parliament. It could not pass without the consent of the other branches of the legislature, and when it had their consent it became their act. The only possible ground on which it appeared to him the bill could be consistently objected to, was that of the charges against Mr. Justice Fox being of so trivial a nature as to deserve no farther investigation. Now to enable the house to form an opinion on this view of the subject, they had the ex parte evidence taken before the former committee, to which he should not have referred, had it not been made public at the desire of the learned judge, and also the whole of the evidence given at the bar on one of the charges.—In alluding to this last evidence, he should only say, in the words of the counsel for the petitioners, that until their lordships heard what the learned and venerable judge had to say upon that evidence, no man could regard a single fact as proved. It would be very improper in him, or any one, to pretend to pronounce an opinion on the charge from that evidence; but this he would say, that it appeared to afford ground for some farther proceedings—for giving, at least, the learned judge an opportunity of explanation and vindication. Though there was no precedent that perfectly applied to the bill, the measure was supported by its analogy to other cases. He therefore moved, that the bill be now read a second time.—The bill was then read, and ordered to be committed.

GARDNER'S DIVORCE BILL.
The Lord Chancellor quitted the woolsack, and called their lordships serious attention to the standing clause which the bill contained, and to the principle upon which provisions of the kind proceeded. What they were called upon to do in such cases, was to alter the legal qualities of one whose case was brought under the consideration of the legislature, not for its own demerits, but on account of the delinquency of the parent. Clauses of the kind should be sparingly inserted. There were instances he admitted, in which the legislature could have no
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hesitation: such as where the husband was out of the country, or where a physical impossibility of any nature interfered. Besides the strong objections in point of legal principle, a provision of the kind was, in ninety-nine cases out of one hundred, unnecessary; as the persons interested had legal means in their power of perpetuating the testimony whose evidence they thought would establish the point in view. The noble lord then referred to some of the relevant circumstances of the present case, as they had appeared in evidence, though a part of the testimony to which he referred was of that kind that should be looked at with caution and jealousy; yet he had little doubt as to the result of that evidence. But then there was at least a possibility of the circumstance having been otherwise; and the present was that particular case upon which the legislature should never proceed but upon the clearest possible evidence; and, therefore, with reference to the principle he had laid down, and to the moral rights of legislation, he would propose that the clause to which he had adverted should be expunged.
The Bishop of St. Asaph supported the leading observations of the noble lord on the woolsack.—The clause, on the question being put, was ordered to be expunged, and the bill was then read a third time and passed.

OFFENDER'S ESCAPE BILL.
Their lordships having resolved into a committee on this bill,
The petition of Mr. Justice Johnson, presented and read last night, against certain clauses of the bill, which went as stated to affect his case in the nature of an ex post facto law, and praying, as in the concluding terms of the petition, "that his case might not be affected by a law which was not in existence at the time of the alleged offence," was read.—Mr. Adam and Mr. Parke were then heard, the former at considerable length, in support of Mr. Justice Johnson's petition. Mr. Adam went into a history of the former act to amend which the bill before the committee was intended; also the case of his learned client, from the time of its first being brought under the consideration of the Irish courts of law, to the present moment of its pending in the Court of King's Bench in England. He dwelt upon the consideration Of the bill in its present shape, going to affect the learned judge's case in the form of an ex post facto law; adverted to the point, that the act

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under which he was to be tried, afforded no power of compelling the attendance of witnesses from Ireland, argued for the propriety of trying the learned judge before an Irish court of law, in a country where his person, character, and conduct, were better known, than they could possibly be in this. The learned counsel enforced principally these leading considerations, with his usual talents and scientific knowledge.—Mr. Parke supported the arguments of his learned brother. He dwelt forcibly on the objectionable considerations of an ex post facto law, and adverted to the circumstance of there being no act before the 44th of the king, by which the learned judge could be tried in an English court of justice; and stated, that the learned judge had no opportunity of being heard before the other house of parliament, because the clauses he principally objected to were not introduced till the third reading of the bill, when they were added by way of riders.—Mr. Adam, in the course of his address, referred to some clauses, the introduction of which, he humbly submitted, would, on the others being expunged, render the bill unobjectionable in the way complained of by the learned petitioner.—Their lordships then proceeded to the discussion of the provision; and several amendments, chiefly verbal, were made, on the suggestion of the lord chancellor.
The Earl of Westmeath, confessing himself not adequate to the task, said he would not trouble the committee with any law observations upon the subject, but begged leave to move the introduction of one or two clauses, which, we believe, were similar to those adverted to by the learned counsel.
The Lord Chancellor observed, that what was now proposed, brought on the question of the desired amendments, and the proposed clauses. The adoption of those as proposed, he felt it his duty to resist, as nothing could be more true, or clearer in law, than that for a libel published in England, one could duly be tried by the laws of this country. He meant not now to go into the consideration of the general law, as relating to the publication of libels, but merely to say that he knew enough to be convinced, that were he or any man to write a libel in London, and publish the same in York, or vice versa, no lawyer could say that such would not involve two distinct offences, and for which the libeller might be tried either in the counties of
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York or Middlesex. With respect to the idea thrown out that there was no opportunity of compelling the attendance of witnesses, he observed, it was the general duty of all his Majesty's subjects to attend in, the king's courts of law, and that the process issued was the only means of compelling such due attendance. With respect to certain other considerations, which had been adverted to as applicable to the bill in question, he should certainly. give the points his best attention, and try whether he could not, either on the report or on the third reading propose a clause, which would be the means of doing ample justice to the country, and to the individual concerned; as he freely admitted, justice could not be done to the country, if it were with-held from the individual. What he proposed would go to obviate any thing which might result from the present bill, in the way of construction, to prejudice the pending cause. adverted to, and afford the party the means of compelling the attendance of witnesses on his behalf.—After, some farther observations from the lord chancellor, the clauses proposed by the noble earl, who seemed to express himself satisfied with the tendency of what fell from. the noble and learned lord, were negatived.