Sitting of 17 April 1806

MINUTES.
A new writ Was ordered for the borough of Kinsale, in Ireland, in the room of Samuel Campbell Rowley, esq. who has accepted the Chiltern hundreds.—Mr. Francis, previously to the 2d reading of the bill for extending the powers of the commissioners for liquidating the Debts of the princes of the Carnatic, wished to throw it out, in the way of a suggestion, or a notice, that he thought it extremely proper for the members of that house, who were of the legal profession, to be prepared to give an opinion, whether, by the fair construction of the act of 1784, the court of directors of the East-India company had a right, by law, to delegate the powers with which they were invested by the act, to commissioners or any other persons?—On the motion of sir P. Stephens the house went into a committee on the acts relating to the discovery of the Longitude. A resolution granting 10,000 l. for the purposes of the act was agreed to.—On the motion of sir J. Sinclair, a committee was appointed to examine into and report upon the grants already made payable out of the Forfeited Estates in Scotland, as also the balances relating thereto.

WITNESSES' DECLARATORY BILL
The house having resolved itself into a committee on this bill,
The Master of the Rollssaid, that from what had passed upon a former occasion, he had reason to expect that such objections as he had stated to it, would have been obviated; and even though he had found it to be so intended, he knew that, having declared his opinion that the bill was quite unnecessary, he was not bound

769
to contribute any thing towards the perfection of it. However, finding also that the house was called upon to declare the provisions of this bill, according to the opinions of the twelve judges, he thought it right that the provisions should be made as much as possible to correspond with those opinions, as they were delivered. The judges by no means laid it down as an universal proposition, that witnesses were bound to answer all questions, to criminate themselves. They all admitted that there were exceptions, and therefore he did not think the legislature should interfere, so as to establish a rule, which does away all exceptions. He did not know that they had stated any particular cases of exception, and he could only conceive them to have meant, that a man was not bound, in courts of law, to answer questions against which he would be protected in a court of equity. What he wished, therefore, was, to leave the discretion of the judges in a court of law, the same as it would be if no such bill existed, and authorise them to afford the same protection to witnesses, as would be allowed them in a court of equity. For this purpose he moved a proviso, "that nothing in this act contained should preclude a witness from objecting to such questions as he would not be called upon to answer in a court of equity; nor preclude the judge from deciding on the validity of such objections."
The Solicitor-General (Mr. Romilly)said, that he had so high a respect for the opinion of his right hon. friend, that it was with great unwillingness he felt himself obliged to dissent from him on the present occasion. The great objection he had to this proviso was, his conviction, that the rules of evidence at common law could not be reversed, or remedied, by the authority of any court of equity, neither were they, in fact, determined even by the statutes. No judge, in a court of common law, would allow a witness to state, as an objection to a question, that he would not be compellable to answer it in a court of equity. He saw not the least necessity whatever for this proviso, which might occasion the bill to be thrown out in another house. This bill would not oblige a judge to compel a plaintiff to prove that the debt he sued for was an unjust one, nor would a court of equity compel a man to disclose a forfeiture of his estate by a breach of contract; but the same rules were not applicable to courts so distinct. At Nisi
770
Prius, the judge must, of necessity, take upon him to decide on a sudden, what, in a court of equity, might turn out to be a matter of great nicety, and requiring mature deliberation. Upon these, and various other grounds, he opposed the proviso, as being totally unnecessary.
The Attorney-Generalsaid, he gave his right hon. friend, who spoke last, full credit for having the very best intentions; but, though the bill originated in another house, which was itself the supreme court of judicature in the kingdom, and, of course, attracted the attention of the highest and most distinguished law authorities in the country, he could not help feeling, that it was capable of being predicated of the bill, that, in its present shape, it did not declare what was, in fact, the opinion of the twelve judges, who all admitted that there were exceptions to the general rule. He was, therefore, in favour of the proviso; for, as the law would stand according to the present bill, the judge would have no discretion, but be obliged to compel a witness to disclose every thing. A man, for instance, may hold an estate by a defective title, of which he had no notice when he gave a valuable consideration for it, but by this bill, the judge could leave him no alternative, but compel him to disclose, upon oath, that defect, which would, at once, reduce himself and his family, perhaps, from affluence to a workhouse. The laws of evidence, in courts of justice, were not the same now as at the time of the Crusades to the Holy Land, from which period, he believed, they took their date; for, during the space of 30 years that lord Mansfield presided in the court of king's bench, he established a variety of rules which were not in use before, and subsequent chief justices had followed the same precedent. Upon full consideration, he was satisfied, that if the bill were not qualified in the manner now proposed, the judge could do nothing in such cases; and bound, by a declaratory law, could not even listen to any just objections relating to the effect which evidence may have in any civil suits to be afterwards instituted.
The Master of the Rollssaid, that his learned friend (Mr. Romilly) certainly possessed, in a very eminent degree, the faculty of expressing himself with great accuracy, as well as fluency; but notwithstanding these advantages, he must confess, that with all the attention in his power to give to his observations, he could not

771
comprehend whether he gave it as his opinion, that after this bill should pass into a law, the judge would have the same discretionary power in these cases, as he possessed at present. If that were the true construction of the bill, he should not persist a moment longer, nor have any objection to withdraw his motion, which would be rendered unnecessary, if the judge were not bound to decide according to this law. If the house should think proper to do so, he should feel no reluctance to referring this bill, in its present form, to the twelve judges, and call upon them to say, whether it were declaratory of their opinions? For his own part, he could not find the rule so much insisted on, in any of the books of law, except in cases where it had a reference to the proceedings of a court of equity; neither did he know of any authority on which the judges could have been induced to ground their exception, except that of a single case, to be found in the Reports of lord chief justice Parker. The case he alluded to was that of M'Queen v. Newman, in which it was held, that a witness was not bound to answer any questions, against which he would be protected in a court of equity. Lord Mansfield, through a long course of years maintained the same doctrine; but his successor, lord Kenyon, denied even the existence of the rule. The same judge, however, in a case of an arbitration, which afterwards failed, decided on the trial of the cause in court, that the party was not bound to disclose any compromise he might have offered to make, under the circumstances of the arbitration. But however these decisions might occasionally have varied, of this he was positively certain, and ready at any time to maintain, that according to the genius and principles of the old law of England, a witness was no more compellable to confess a debt than he was to confess a felony. Were it otherwise, the consequence must be, that in a civil suit, a man might be obliged to disclose a former transaction, in which he was guilty of perjury, the effect of which might be to ruin him in his circumstances; in many cases, even to affect his life. In treating of this subject, in his Commentaries, Blackstone observed, that the law was different on both sides of Westminsterhall for that the court of chancery decided one way, and the court of king's bench another; but he continued to say, that he felt himself at a loss to determine this how this variance could be reconciled to the
772
common sense of mankind. He was, however, very far from being disposed to agree to this observation of Mr. justice Blackstone; for, to carry it to its full extent, it would tend to destroy all distinction between courts of law and courts of equity. The apprehension entertained heretofore upon this subject was, that the courts of law might one day carry the rule as far as a court of equity; but the effect of the bill would be, to make them go much farther. As far as he was informed on the subject, no law yet made, ever imposed on a defendant the necessity of proving that his demand was not a just one; otherwise a man who had no evidence by which he could enforce a claim, might prove it by the oath of the plaintiff himself, give a full disclosure, and afterwards subject him to the penalties of perjury, for not giving evidence against himself; a principle which be believed was not to be found in the judicial or municipal proceedings of any country. So far was it otherwise with us, that in all cases or felony, the judges were in the habit of cautioning witnesses against making admissions, or giving any evidence which might eventually subject themselves to punishment. By the old law of England, until the reign of king William, when it was abrogated, a man, even in actions of trespass, was liable to amercement, for not obeyihg the king's writ; but no attempt was ever made, even in former times, to exact from any defendant a confession of that disobedience which would subject him to a penalty. The general rules of evidence, in common law, were not governed by statutes, nor by any analogy with the proceedings of the courts of equity; for down to the statute of Henry VIII. no such thing as a court of chancery was ever known to the laws of England. Another bad consequence would, in his opinion, result from the law, as it was now proposed, which was, that for the purpose of enforcing it, the courts of law must, before their decisions upon such points, be acquainted with the practice of the court of chancery, which every one conversant with it must know, was only to be learned in that court itself: thus they made the rules of common law courts conformable to those of another court, which was not recognised, or even known, in law, at the time that these rules were established. For all these reasons, he considered the objections offered, to be invalid, unless it should be proved that the proviso itself was unnecessary.
The Solicitor-Generalin reply to what was asked by his right hon. and learned friend, in one part of his speech, was happy in being able to declare to him his decided opinion, that after this bill should pass into a law, the judges would be as much, at liberty to protect a witness from any disclosure, by omission of the conditions of forfeiture, or any defect of title to estates, as they would be, if there were no such law in existence. He would not presume to state, that the ingenuity of some gentlemen might not devise a case, but his imagination was incapable of forming to himself any, in which a witness, if questioned as to any defect of his title, might not answer, under the sanction and protection of the court, "I do not think myself obliged, and therefore will not answer any question, the effect of which may be to deprive me of my estate." In considering the opinions as delivered by the twelve judges, he did not find that there was any one of them who stated, that the rules of evidence in courts of law were to be governed by any reference whatever to those of equity, but that they all maintained a contrary doctrine. As to the necessity of this declaratory bill, he said it arose from the uncertainty which prevailed upon the subject, from the sentiments expressed by some of the judges; and he considered that necessity to be increased by the authority of his right hon. and learned friend (the master of the rolls), who seemed to concur in the opinions of the minority. It was some satisfaction, however, to reflect, that, to the 8 judges, whose opinion was in favour of the obligation on witnesses to answer such questions as might afterwards subject them to civil process, were to be added the authorities also of the present and late lord chancellor: so that of the persons who must be considered as best qualified to decide, there were 10 who maintained, that witnesses could not protect themselves from answering such questions, against only 4 who seemed to hold a different opinion.
Mr. Percevalsaid, he thought it would be much better if the bill had not been brought in, and very much to be desired that it should not pass. It was a great pity the other house did not put the question to the learned judges, in order to know precisely, what the exceptions were to which they alluded in their several opinions. Instead of this, as he had been informed, a similar proviso to that now un-
774
der the consideration of the house, was introduced in the lords; and after considerable argument, negatived; and then they send it down to this house, and put them into the dilemma in which they now found themselves. It was evident, that the attorney and solicitor-general were directly at variance on the point, and therefore be thought the bill ought not to proceed, especially as it was, in his opinion, altogether unnecessary. Certain he was, that it would be better the proviso should stand, than that the bill should pass without it, as it was the only mode that could, with propriety, be adopted, to get rid of the objection.
Mr. Secretary Foxsaid, it had been his particular wish to hear the opinions of the learned gentlemen of authority, before he rose to say any thing on the subject, and in having done so with the utmost attention, he could not but say, that he differed entirely with the learned gent. who spoke last, who had certainly delivered his sentiments with great force and perspicuity. He was, for his own part, after every consideration he had been able to give the subject, decidedly in favour of the bill; but he agreed entirely with his learned friend near him (the solicitor-general), that it ought not to pass with the proviso. He thought, at the same time, that what this bill declared, was not the precise opinion of the majority of the judges; but what had been said in the course of the present debate completely convinced him, that the bill ought to pass; for when there was so great a difference in opinion among men of such high authority as the judges, and also among gentlemen so learned in both the theory and practice, as the right hon. gent. (the master of the rolls), as well as the other learned gentlemen who had delivered their opinions on the subject, he thought it was high time the law should be made clear, and no doubt left remaining on the subject. He observed, that great stress had been laid on the words used by the learned judges in delivering their opinions; namely, that in speaking to the point in question, they say, "generally," or, "generally speaking," a man is compellable to answer; though he may, by so doing, render himself liable to a civil suit. But he could not suppose they meant otherwise, by the words "generally speaking," than that he was compellable to answer, leaving it to be determined by the judges, whether this civil suit were of that nature as ought to bring him within any of the exceptions to

775
which they had many of them referred, but which, unfortunately, had not been explained. The question, however, now was, whether the doubt which prevailed should be removed, and he thought it could not be done too soon. The opinion of the right hon. and learned gent. (the master of the rolls), seemed to him to be, in a great degree, warped, by adverting to the practice of the court in which he so very ably presided, but which, it was to be recollected, was a court of equity, the rules of which were very different from those of the common law. The right hon. gent.'s argument went to impugn the opinions of the majority of the judges; but, highly as he thought of the right hon. gent.'s abilities, he did not think he should be justified in allowing himself to set it up against the opinions of the majority of the judges, who had, by their superior knowledge and abilities in the profession and practice of the law, raised themselves to the first stations of authority in it, and gave those opinions in the most serious and solemn manner, on a most important occasion. For his own part, he was clearly of opinion, that the majority of the judges were right in the decision they had come to; but he did not mention his own sentiments, as of the value of a feather, in aid or support of what had been delivered by them. Then, said the right hon. gent. (Mr. Fox), comes the question, whether the courts of law are to be sent to enquire into the merits of the subject, from the court of chancery? He was, he owned, very much surprised, that any such doctrine could have been held, or even conceived. It was well known, the courts of law were much more ancient than that of equity; and had rules by which they were governed, before the court of equity was ever known in this country; and he believed lord Holt, or any of the great and learned judges who presided in the courts of law, both before and after him, would have been startled at being told, they were to apply to a court of equity for rules, by which they were to proceed in the courts of law. But the right hon. and learned gent. had said, he did not send you to a court of equity, he only travelled with you there; but he did not see, for his own part, what the court of equity could possibly, in point of fairness, have to do with the question at all. He had looked over the papers containing the opinions of the judges, and he believed there was not in any of them the smallest allusion made to
776
a court of equity. He had no doubt but the learned judges had formed their opinions on the general principles of the common law of England, and not with the smallest analogy or reference to a court of equity. He thought, therefore, no man would wish for this proviso, if the bill could pass without it. He had not had the advantage of hearing the opinion of the judges delivered, but he should be glad to know, if their opinion were asked, as to this proviso, if any one of them, even of those who were in the minority, would be in favour of this proviso? He believed not; on the contrary, he was almost certain they would be against it to a man, as tending to infringe on the line and rule of their own conduct, and to subject them to the guidance of the rules of another court, very different from their own, both in point of principle and practice. It had been mentioned by some hon. member, that this proviso had been introduced into the house of lords, and partly adopted by them, but that it had afterwards been rejected; this to him appeared very extraordinary, that the house of lords, immediately after they had received the opinions of the judges, and while they were warm in their recollection of them, should adopt this proviso, and should afterwards, without any particular reason being assigned for it, proceed in so contradictory a way, as to reject it. If this argument proved any thing, it was that the lords were clearly of opinion, that the proviso ought not to be part of the bill, because it militated against the opinion of the majority of the judges, which ought also to weigh materially with that house. If the case of a purchaser for a valuable consideration, without notice, be allowed, it might perhaps be better to insert the proviso; but it did not appear to him from all he had heard on the subject, that it ought to be, and, the right hon. and learned gent. had not stated any other exception. The house would, however, call to mind, that when the judges delivered their opinions in the house of lords, they were serious. They did not conceive it to be a light or trivial point, and when they said "generally," they meant, he was well satisfied, "solely." He hoped, therefore, the house of commons would consider whether the proviso was necessary; and if they should be of opinion that it was so, he, for one, would much rather the bill should notpass at all
Mr. Jervissaid, that when he came to the house, he was rather under an impres-

777
sion on his mind, that the bill required some modification; but from the arguments he had heard, and particularly those which had just been delivered with so much force and eloquence, by the right hon. gent., he had entirely altered his opinion; and upon more minutely looking into the words of the proviso, he thought it contained no more than the opinion of the majority of the judges: as such he should certainly vote against it.
Sir V. Gibbssaid, that he thought the arguments of the right hon. secretary of state were extremely forcible, and they had completely convinced him that the bill would be far better without the proviso. Nothing could be more clear to him, than that the judges of the common law should not be obliged to refer for rules to a court of equity, for, as had been most ably enforced, the common law existed long before a court of equity was ever known or heard of. The court of equity was originally instituted for the purpose of softening the rigour and. severity of the common law, the courts of which had always been governed by their own rules. The court of equity had unquestionably taken rules from the courts of common law, because it was indispensably necessary to them, but it had always been the reverse in the courts of common law, the judges of which had uniformly been governed by their own rules. Another reason which induced him to disapprove of the proviso, was, that the bill declared what the opinion of the majority of the judges was, and they, in delivering those opinions, had not, in any one instance, referred to the rules of equity. He thought that, from the expression "generally speaking," the judges did not lay down the rule universally; but, as the house were now about to declare the law, they should be extremely careful not to do so, contrary to the opinion of the majority of the judges.—The question was then put, and the proviso. negatived.

MILITARY OPINIONS RELATING TO THE ARMY.
Mr. Yorke, pursuant to notice, rose to bring forward his promised motion for the production of "Copies of all Military Opinions in writing as may have been given, in consequence of a requisition from his majesty's government, on the, subject of recruiting the Army in future, by enlisting for a term of years." He had, he said, flattered, himself with the expectation, that no objection would have been made by his majesty's ministers to the production of papers so indispensably ne-
778
cessary to the information of the house, in order to enable them to discuss the principle proposed by the right hon. gent. for enlisting soldiers for limited periods, and consequently to determine on the propriety of its adoption. He understood now, however, that there were some objections for which he was at a loss to account, when he considered the repeated professions, made by his majesty's ministers, of their desire and readiness to give the house the fullest information upon every subject, and more especially upon one which involved the vital interests of the country, and perhaps the future existence of our army. However necessary he thought the production of those opinions, as documents for the better information of the house, he did not mean to say the house should be entirely guided by those opinions; but he did hope, that the house would not finally decide upon a question of such magnitude, without consulting the opinions of general officers, whose experience in the military service must render them competent to give the most important and necessary advice upon the subject. The only reason he had yet heard from his majesty's ministers, for the adoption of a principle so perfectly new to the British service, was, that the principle had been long adopted on other services on the continent of Europe; but he had good reason to believe, that there was no service in Europe where limited enlistments prevailed, without preserving also some principle of conscription; and that it was the uniform custom of those services, at the expiration of such terms of enlistment, not to discharge a man until the completion of the army to its full complement was ascertained. On this fact he had the authority of the late British quarter-master-general, in whose hands he saw a very long detailed document of the principle pursued in the Austrian armies upon this head. Whether this document would be laid before the house or not, he was unable to tell; but surely the house ought at least to be furnished with the opinions of the officers of our army, which were the best authorities parliament could resort to. Such opinions, he understood, had been given to his majesty's ministers, and surely they ought to be laid before the house. In those opinions he understood there was some difference; some were in favour of, and others opposed to, the principle of limited enlistments; how the balance preponderated he could not tell

779
but, if the opinions of eminent military men were thus at variance, it was still stronger argument to prove the necessity of extreme caution on the part of the house, how, at a moment like the present, it should be induced to adopt the principle which must change the whole constitution of our army, for the sake of an unnecessary experiment, which must be extremely hazardous to the interests of the service, and pregnant with the greatest danger to the country. He understood the objections against his motions were, that the documents for which he intended to move, were considered as confidential communications which ministers could not disclose without a breach of their duty. The same kind of answer might be opposed to any other motion for documents, the correspondence of an ambassador, the terms of a treaty, or, in short, any other paper parliament might deem necessary for its information. But if his majesty's ministers did not chuse to communicate the information he required in the form he proposed, he should hope it would be laid before the house in some other shape; suppose that of a report, or that they would not object to the examination of those officers at the bar of the house. For surely it was of high importance, when the house was called on to enact a principle so revolting to the established usage of the army, to have for its guidance the opinions of military men who had themselves commanded regiments; who had lived amongst their soldiers; who consequently knew their habits, their sentiments, and feelings, and were therefore competent to advise what was best to be done; instead of taking the opinions of young generals, who had not an experience of similar intimacy with the soldiers; and who, though no doubt, at a future day, they might contribute, by their prowess, to the honour of the service, and the glory of their country, had not yet sufficient experience to render their opinions very decisive on a subject of this delicate and important nature. Though the opinions of many general officers were given on the subject, there were others of great experience, whose opinions, if they were asked, by some accident were not communicated. Among them were, lord Cathcart, lord Hutchinson, and general Prescott. But he hoped, the right hon. gent. would not think of proceeding to the conclusion of his plan, without taking the opinions of all military officers of experi-
780
ence in the kingdom. The right hon. gent. concluded by moving, for "Copies of all Military Opinions in writing as may have been given, in consequence of a requisition from his majesty's government, on the subject of recruiting the army in future, by enlisting for a term of years."
General Walpolesaid, there was a short answer to the argument of the right hon. gent., that the principle of enlisting soldiers, in general and even colonial service, for limited and short periods, was new to the British service. On the contrary, so far from being new, it was neither unusual nor unfrequent. It had been done in the seven-years war; it had been done in the American war, when men were enlisted for a term of only 3 years, and the number of men raised after the adoption of this measure, far exceeded what had been raised prior to it. He could not therefore see what necessity there existed for calling for opinions on a subject, the merits of which had been already decided by experience.
Mr. Secretary Windhamobserved, that the impatience of the right hon. gent. that night for the production of the papers which he moved for, was pretty much of a piece with. the eagerness which had prevailed on other points, with a view to anticipate the premature discussion of subjects not before the house. The question to which the motion and the argument of the right hon. gent. that night were directed, was not before the house; and when it should be brought forward, the house should certainly have the full benefit of those opinions to which the right hon. gent. had alluded. He was, however, a little surprised that the right hon. gent., in his speech on the subject, had not been able to anticipate some part of the objections likely to be urged against his motion: and, considering the tenacity of gentlemen on the other side of the house, on the subject of producing papers moved for, when they were in office, the endeavour to press the production of those documents moved for that night, was rather an unfair attempt to place his majesty's ministers in a very awkward and unpleasant situation. The right hon. gent. must certainly admit, that however it might be the wish of ministers to comply with the motion of any member for the production of documents in their possession, in order to the fullest information of the house, yet, that there were often papers which those in office must

781
feel it their duty to keep back; and though the inference drawn by the right hon. gent. on the present occasion was not a just one, yet it might be, that the papers now to be withheld, were so withheld against the inclination and wishes of his majesty's ministers. For his own part, however, he would candidly own, he made no such sacrifice, having no wish on the subject, one way or the other. But though, for the reasons he should hereafter state, he might deem it necessary to withhold those papers from the right hon. gent., he could assure him, so far from being decisive in favour of his ideas, that, in point of number and authority, they were so much at variance, and the balance so evenly poised, that it was difficult to decide which way the preponderance prevailed; but, upon the whole, he thought it rather in favour of the principle of limited enlistment. There were received the opinions of 14 military officers; 6 were rather in favour of the right hon. gent.'s opinion; 7 decidedly in favour of his own; and one might be held disputable: but he thought the claim for authority lay on his own side. These opinions were applied to three distinct points, as to the probable operation of the principle: 1st, as to its effect on enlistments; 2dly, as to its effect on discipline; and 3dly, as to its effect on colonial service. Now, 3 out of the 6 who favoured the opinion of the right hon. gent. thought the principle would have no injurious effect on the service, and that it certainly must operate to increase recruits: others said, it was impossible but it should produce some advantages, and must certainly give to the army a better order of men: some, again, said it was inexpedient; and others, that it should not be tried in time of war. This, then, being the state of opinions on each side, the house would judge whether his majesty's ministers could have any other possible motive for withholding those documents, than a sense of duty; besides, what advantage could they have in withholding them? or of what use could they be to the house if they were promulgated? for they could only prove that military men, equally respectable in authority, differed in opinion on the subject. It was not a very pleasant thing for ministers to be called on publicly to communicate the confidential opinions of military officers, privately given for the information and guidance of the commander in chief, as to the best probable means of increasing
782
the public force; and though certainly great occasions might occur in which such a delicacy might be overruled by the urgent necessity of the case, yet he did not conceive the present an occasion that called for such a communication nor would it be the most candid or delicate treatment of those military officers, to publish to parliament and to the country, without their consent, or any information to them of such purpose, the private and confidential opinions so given. Such a procedure might have a very serious effect upon the future communication between military officers and their commander in chief, on other occasions, and might be productive of very disagreeable consequences, and was certainly not desirable for adoption, when not absolutely necessary. Beside, even if the letters were laid before the house, it would only lead to a comparison of opinions and authorities, extremely unpleasant to gentlemen on both sides; neither would it give the house a single fact or opinion, that it did not know already, and which had not already been urged on both sides of the question. Was it, then, worth while, for the sake of any advantages the house could possibly hope to derive from the production of those papers, to forego such obvious objections as he had stated? The same objections would apply to the project of calling military men to be examined at the bar of the house; every gentleman who might have a favourite general, upon whose talents he built his own reliance, would start up in his place, reject all other authority, and ask why HE was not consulted? The right hon. gent. had made some allusion to young and unexperienced military commanders: he knew not whether he had any particular individual in his eye; but certainly it was not upon the opinion of one, two, or three general officers, that the measure was founded, but upon the broad principle of general consultation, and no preference given to individuals, as if to artisans who had served their apprenticeships to the art and mystery of recruiting. But, if there were no other reason than the difference of opinion which had already been evinced by military men, those reasons were sufficient to justify him in opposing the motion. As to the general principle of the measure, it was not now before the house, and it would be time enough to discuss that another day. He could not avoid remarking something very

783
whimsical in the right hon. gent.'s alluding to a document, as an authority on this occasion, which was, in fact, no authority at all; namely, a detail of arrangements in the Austrian service. Hoping, however, that he had convinced the house of the inutility, as well as the impropriety of a compliance with the motion, he should now conclude by voting against it.
Mr. Yorkein explanation, said, that the only reason why he alluded to the document respecting the Austrian service was, because the usages of continental service had been pleaded by the right hon. gent. in support of his plan.
General Tarletonwas ready to acknowledge, that the principle of the right hon. gent.'s plan in theory, appeared fascinating; but he was of opinion that it was totally impracticable as to any useful effect: more especially for colonial service. The right hon. gent. had stated, that the opinions of eminent military men were at variance upon the question, and that 6 thought one way, and 7 the other. It was extremely necessary, however, for the house to know what were the nature and form of the questions proposed to these officers. The right hon. gent. admitted, the questions were privately put, and that the answers also were private and confidential; but it was extremely necessary to scan those opinions, and to compare them with the questions in answer to which they were given. For, when the right hon. gent. said that officers disagreed, he wished to know the mode of the questions put, as statesmen sometimes put questions to military men in a way to elicit an answer applicable to their own purposes. The right hon. gent. said, the answers were confidential, and that the promulgation of them to the house would excite jealousies. To this he would reply, then examine those officers at the bar; and if it was imagined by any man they were afraid or unwilling to have their opinions known, he must know little of that emulation which pervaded the breast of every military commander, and which was the life avid soul of the army. But, with respect to the questions put to those officers, he shrewdly suspected they did not proceed from the horse-guards, as from the, authority of the commander in chief, but from some of those civil-military gentlemen who had of late assumed the management of the army. With respect to the argument of delicacy in communicating the opinions received, he thought it
784
superseded by a paramount duty to the house and the occasion. He was willing to admit what had been said by an hon. general early in the debate, that recruits were enlisted towards the close of the American war for 3 years, or during the war; and he had no objection to take as many recruits as could now be raised upon the same principle; but from what he knew of the spirit of this country, he was convinced that not 1000 men extraordinary would be produced in 12 months, by enlistment for limited periods.
Mr. Secretary Foxobserved, that the questions put to those military officers, and which produced those opinions, were not propounded by his majesty's present ministers, as insinuated by the hon. gent.; they had been put by the commander in chief during the continuance of the last administration, and the balance of opinion reflected great honour on that illustrious personage, as it shewed that he was desirous of obtaining fair and impartial information on the subject.
Lord Castlereaghsaid, he remembered some of those questions had been put during the administration of his right hon. friend; but he did not recollect that the answers communicated to them were given in such a way, generally at least, as to imply any thing secret. Two or three of them might, he said, have been marked on the covers confidential;" and though he was ready to admit that great delicacy ought to be observed with respect to secret and confidential communications, if its should appear, upon a view of the contents of such communications, that they were of that nature, yet there was no other consideration in the present case which could justify the refusal of their production. Some few of those letters might have been written in a manner which shewed the writers never apprehended they would be made public: but the rest were written in a regular official form, as if intended to meet any purpose to which government should think it necessary to apply them. He should therefore advise, that those letters of a contrary description should be sent back to the officers who wrote them, in order for such correction as they might deem necessary, with a view to prepare them as documents for the public eye, if circumstances should render it necessary; and he also thought it would not be advisable to lay any of those letters before the house, contrary to the wishes of the officers

785
Who wrote them. But he thought, however, it was necessary that their opinions should be laid before parliament, as well with a view to the satisfaction of the house, as for the vindication of his majesty's late ministers, by shewing than they had omitted no consideration, nor neglected any part of their duty, with respect to the great purpose of national defence. If they had not consulted a variety of authorities, and seen the various views in which the subject was considered by men of talents and experience, they could not have been enabled to form decisive judgment upon a topic so extensive and complicated. But from what he had been able to observe, on a comparison of those different opinions upon the two distinct branches of service, local and general, he should deduce the preponderance of opinion quite different from what it had been stated by the right hon. gentleman. The noble lord considered the measure of enlistment proposed, as one of the most delicate and important that ever that house was called upon to decide; and he conjured the house to proceed with the utmost caution, in the novel situation in which his majesty's ministers now attempted to place it, by calling upon it to depart from the long-established principles upon which our army was constituted, and to dictate to, and restrict the crown, in the exercise of that prerogative, which constitutionally belonged to it, in the mode and management of recruiting the regular army.
Lord Henry Pettysaid, he felt a right to regard with some surprise the declaration of the noble lord, that he could see no objection to the production of the papers now moved for, when during 3 years past that this subject had so frequently been a topic of discussion, he had never thought the production of them necessary to enlighten the understanding, or guide the deliberations of parliament. An hon. general (Tarleton) had evinced much anxiety to learn in what form the questions were put, to produce those opinions: whatever it was, was not now very material; and from what had that night fallen in the course of debate, the house would see that the question did not arise out of any measure or proceeding now proposed. But whatever answers might have been produced, and however necessary the house might deem the opinions of military men, towards its own general information upon a topic of this sort, it was not probable it
786
would so far depart from the dignity of its own character, as to be guided implicitly and entirely by such opinions, as to what measures it should ultimately adopt; or that, surrendering or abandoning its own judgment, it would put the enacting question, aye, or no? to any military officer who might be examined at its bar, as to what measure that house might deem proper to enact. The noble lord seemed to think that the house of commons, in legislating regulations for the army, or limiting the duration of enlistments, assumed a power extremely new, and trenched unconstitutionally on the prerogative of the crown. But if ever there was a question on which the house could more properly, or ought more effectually to consider and legislate, it was this. Did the noble lord forget, that the power not only was not new or uncommon for the house of commons to exercise, but that it did actually, and of constitutional right assume and exercise it every year, in the passing of a mutiny bill? by which bill the army, for whatever length. of time it might have been enlisted by the crown, could only exist from year to year, and must, de facto, be disbanded at the end of each year, if that bill was not renewed; and therefore the house in legislating for the army on this occasion, acted upon a constitutional rights, which no man could now question. However necessary it might be thought to consult military opinions upon an arrangement like that proposed by his right hon. friend, he thought that the house, instead of being guided by those documents now called for, would act in a manner more becoming its own dignity, and more effectual for the public service, by exercising the judgment of its own members, taking the opinions, in a parliamentary way, of military men on both sides of the house, and consulting without doors the opinions of military officers in the circle of their acquaintance, and coming prepared, with the best information they could obtain, to discuss the subject fully.
Mr. Canningin reply to what had fallen from the noble lord, said, that his friend, the late chancellor of the exchequer, had indeed; at one time, expressed himself in favour of limited service; but that he had afterwards satisfied his mind, that it was not expedient to bring forward such a measure, and, on that account, none of the opinions that he had caused to be collected were laid before the house. In the present

787
case, he should ask, was it not a proper course, in order to form a sound judgment on the subject, for the house to obtain the best information from persons, whose practical knowledge of the army rendered them better able to judge, than those whose opinions could only be formed on speculative grounds? He conjured the house to pause, before they sanctioned what would amount to a complete revolution in the military system, or adopted a measure from which if it should fail, there would be no retreat. He could not frame to himself any valid objection to the present motion. All that was asked was, merely the possession of those means of information on which the hon. gentleman had founded his plan. Let the authorities and opinions be as numerous as was consistent with convenience, but let not the house be called on to decide before they have the means of forming a judgment. If it should appear, that the opinions of military men were nearly equally balanced on the subject, he should consider this as a sufficient reason for rejecting this new plan, and remaining as we were. It was dangerous to alter what was already well, and particularly by the adoption of a new project, the consequences of which it was impossible to foresee. It was amusing, he said, to compare the professions of ministers with their practice. The right hon. gent. concluded, by saying, that a story had been related by one of his majesty's ministers(lord H. Petty), on producing the budget, of an old Roman moralist, who had wished to build his house in such a style of architecture, that every person might see into it. Like this man's house, the transactions of the present ministers were to be; but he was inclined to believe, that the architecture of the house was not Roman but Gothic, and that it was only remarkable for its huge windows excluding the light, and for its narrow passages that led to nothing.
Lord De Blaquieresaid, that every thing was of moment which branched out of this important subject, or he should have thought the present discussion scarce worthy of notice. It was with concern he differed with so many of his friends, but upon a point which had engaged his attention for the best years of his life, he could make a compliment of his understanding (slender as it might be) to no person whatsoever. It had been stated, that with a limited service, the army could not be supported: but he was of opinion, that,
788
without it they could not obtain an efficient force. The plan, as proposed, was treated as novel and hazardous; but it was no such thing. In 1759, he was employed to raise the 17th light dragoons, and as he saw no law against raising men for a limited time, he raised them for 3 years. In 1762, their time was out, and he then enlisted the whole regiment, which was quartered at Coventry, with the exception of two men, for a bounty of two guineas each. He afterwards enlisted them a third time, when they went to America, and fought like lions. Upon the great principle of the thing, it was his misfortune to differ entirely from what had generally been laid down. Training men to arms, putting them in array, and leading them to battle, was the province of the military man. In all movements of the army, in all projects for annoyance or defence, it was to the generals of the army you ought to defer, but for the purpose of finding men to create that army, was by no means the province of the military officer, it was as he conceived of that resort, which called especially for the interference and assistance of those who were most acquainted with the statistical powers of the country, those who were best acquainted with the means from whence these sources could be derived, it was the province not of the soldier, but the statesman; not of the counsel of war, but the counsel of state; which was that house. It had been said, that to attempt at such an innovation (to enlist men for a limited term) in time of war, might be fatal to the empire. Now, how was that? The farmer's son, or his servant, goes to my right hon. friend, perhaps in a fit a frenzy, or disappointment, and offers to enlist for his life. He is met on the way and told, his services are only desired for 7 years; will he refuse to enlist? and shall this be called a military and a dangerous revolution, a plan which tends only, but much more than any other which has yet been devised, to add strength to your ranks, to cement a nearer friendship and connection between the soldier and his officer, and to make the situation of the former, a state of comparative happiness and comfort. The noble lord concluded by saying, that there were some parts of the bill which he did not admire, particularly the crooked 6d. at the end of the week.
Sir James Pulteneywished, as the subject was almost new to the house, and to the

789
country, to see the opinion's of persons conversant with military affairs laid before the house. He had thought much on the subject, and yet he was convinced he should derive much information from their communications. The practice of enlisting for a term of years had indeed been partially introduced into the army, but it had produced so little effect, as not to give much encouragement for its general application. Besides, though the practice was not new, yet there was a great difference between that partial enlisting for time that had already been tried, and a general enlisting for the whole army on the same principle.
Mr. W. Dundaswas sorry to differ on this occasion from those gentlemen with whom he usually acted; but he could not consider the opinions that had been moved for, as proper for the public inspection. They had not been written for the purpose, or with the design of being communicated to the public. They were of a private and confidential nature; and besides that the publication of them might wound the feelings of individuals, the public service might suffer detriment from such a measure. Much might transpire, that might be calculated to do public mischief. But though he deprecated their being laid before the house in their present form, they might yet perhaps be revised by those who had originally given them in, and in that state, with their consent,submitted to parliament.
Mr. Yorkesaid, he had no objection, with the permission of the house, to withdraw his motion, provided his majesty's ministers would give the house to understand, that they would take the opinion of high military authorities, for the purpose of laying them before the house.
Mr Secretary Foxstated, that this was quite another question from the one that had been before under discussion, and required time to consider how far it might be proper to assent to it. There was not a single instance that he was aware of, in which parliament had resorted to military authorities, except with a view to retrospective measures. If they were once to sanction the principle of calling for communications from officers to their commander in chief, it would cause a greater revolution in the army than the measure proposed by his right hon. friend. Much had been said of altering the condition of the soldier; but this would alter, in a very extraordinary way, the character of officers
790
if their opinions confidentially communicated to their commander in chief, were afterwards found to be called for by the house. He did not know Whether it was contrary to the practice of that house to resort to military authorities for information, but he wished to know what had been the usage in former cases. Such a principle would place that house in a situation, different from that of the lords, who had 12 judges to consult; for it would give them 150 generals to refer to for information. He should vote against the motion, and if it should be brought forward in any other shape, he should then be ready to state his opinion with respect to it.
Mr. Yorkecontended, that when the subject of fortification, as planned by the duke of Richmond, was before the house, general officers had been consulted, and their opinions laid before the house.
Mr. Foxreplied, that there was a distinction between an opinion given by a board of officers, and that which was communicated individually. The case referred to had been of the former description, and, therefore, was no precedent for the measure now proposed.
Colonel Craufurdcontended, that the question respecting the fortifications of the country was a purely military one; whereas the question respecting the means of recruiting the army was not so. He thought it rather singular, that the measure of his right hon. friend should be represented as likely to cause a revolution in the state of the army, when the principle upon which it was founded, was that upon which the defence of the country rested. The first act of the administration, of which the hon. gent. who brought forward this motion was a member, was to call out the militia, to the number of 90,000; the next was for raising a force of 50,000 men for the army of reserve. These forces were raised for a limited term, and to them the country was to look for its defence. And yet they were now told that the application of the same principle to the mode of raising the regular force, inferior in number, would cause a revolution in the army.
Mr. Percevalcontended that the measures of the late administration had been eminently successful in supporting and increasing the military force of the country, and that there was no necessity for having recourse to new and untried experiments on a subject of so much importance. The new measure was of such a nature as called

791
for the opinions of practical and experienced men; but the right hon. secretary seemed so fond of theory, that he wished to exclude practice altogether. It was rather extraordinary, that his right hon. friend, now no more, (Mr. Pitt) had seen reason to alter that inclination which he had felt for the principle of limited service, from the very same cause that had confirmed the right hon. secretary in his original opinion. They had both had recourse to the opinions of military men, and had come to very different conclusions from those opinions. This should induce the house to call for the sentiments of experienced men. If such opinions were withheld from the house, the natural conclusion would be, that they were upon the whole unfavourable to the measure.
Lord Templecontended that the case of resorting to the authority of military men, when the duke of Richmond was at the head of the ordnance department in 1786, was not at all similar to the present. The noble lord read an extract from the journals, to shew that the information in that case laid before the house, was only an extract from a report made by a board of officers, appointed by his majesty, who were responsible for their opinions. It was unconstitutional to refer to opinions such as those communicated in the manner by which those that were the object of the preserve motion were given in, and as there was no precedent for examining officers at the bar of the house, on such subjects, be should object to that course of proceeding also.
Mr. Rosethought, that the subject on which a communication had been made to the house, when the duke of Richmond had been at the head of the ordnance department, respecting the best mode of fortifying the dock-yards, was a more delicate question than the present, and argued that the papers ought to be granted.
Mr. Calcraftcontended, that there could have been no breach of delicacy, in laying before the house the report of officers appointed to draw up their opinions upon public opinion referred to them for consideration. The opinions under discussion stood upon different grounds, having been confidently communicated to the commander in chief, at his desire, to assist his own judgment. It had been said, that their opinions might be referred back to those who gave them, in order to their being produced in a more perfect form. But were they all in existence? Were they at
792
hand? Or was it convenient to do so? No parliamentary ground had been laid for the motion, and he should therefore oppose it. —The question was then put on the motion, and negatived without a division.

REPEAL OF ADDITIONAL FORCE BILL.
Mr. Secretary Windham, brought up the bill for the repeal of the additional force bill of the 44th of his majesty. On the question that it be read a first time,
General Tarletonbegged to call the attention of the house to the papers that had been printed since the right hon. gent. had opened his sketch of the measures he had proposed to bring forward. These papers would shew that the bill, now proposed to be repealed, afforded the best means of obtaining a supply for the army, as it was now in full force, and all the difficulties which it had encountered were got over. He hoped the house would interpose its authority to prevent the country from being deprived of its effects. He called on gentlemen to examine these papers, in order to prepare themselves for the debate on the 2d reading of the bill.
Mr. Hawthorneconcurred with the hon. general in hoping that gentlemen would come prepared to judge of the bill, after having read the papers on the table, which, he was convinced would satisfy them that the bill had completely failed.
Mr. Percevalrecommended to the house, in his turn, an examination of these papers, because he was sure the result would be the reverse of what had been stated by the hon. member who preceded him. The right hon. gent. (Mr. Pitt) who had brought forward the measure, had stated last session, that on the average of the 3 weeks preceding the 6th of March, that year, it had produced nearly 200 per week, and on the average of the 3 months preceding, it would produce 9 or 10,000 in the year. And in the 50 weeks ending the 14th of last March, it had produced above 9000 men. In the last 15 weeks it had produced an average of 258 per week, which would give 13,200 in the year; in the last 10 weeks an average of 277, or 14,600 in the year; and in the last five weeks, an average of 356 per week, being at the rate of above 18,000 in the year; and this under all the discouragements which interfered with its operation. They would also find by the papers, that the bill had not been effectual in the first instance, because it had not been understood. When it had been explained by the inspecting field officers, the

793
result had been to give renewed activity to the bill.
Lord Templethought the house obliged to the learned gent. for the course of reading he recommended; but was of opinion that they should adopt a more enlarged system of education. He begged the house would consider not so much the number of men raised, as the means by which they were raised, and the manner in which the bill had been received in the country.
Colonel Craufurdobserved, that the hon. gent. opposite seemed to assume that the whole of the men had been raised by the provisions of the bill. He, on the contrary, was persuaded that not a man had been obtained but by means extraneous to the bill, every one of whom would have been produced if no such bill had been in existence: 16 guineas bounty were given for the regular army; 12 were given for this force, and 10 afterwards on entering the line, so that by this means the individual obtained a bounty of 22 guineas. —The bill was then read a first time; and on the question that it be read a second time,
Mr. Canninggave notice, that on the day on which this bill should be fixed for a 2d reading, he should move to defer that stage of the bill, till such time as the house should have an opportunity of judging of the measures to be brought forward by the right hon. gent. This bill was for the repeal of a measure, that afforded a resource to a certain extent to provide even for the army. He did not mean to discuss the merits of that measure, but was sure the house would do right not to get rid of it until they should know what was to be substituted for it. The course he should take would be not to get rid of the present bill, but to suspend its progress till they should be able to judge of the value of the measures to be brought forward. The right hon. gent. appeared to have proceeded in an inverted order, by proposing to repeal a measure that afforded a resource to a certain extent, before he was prepared to bring forward a substitute. He should not propose to defer the second reading of the bill beyond the present session, but for such a period as would allow the house an opportunity of judging, whether they were to look to any thing as a substitute for the measure to be repealed but visions, projects, and fancies.
Mr. Secretary Fox Mr. Secretary Fox left it to the good
794
sense of the house to determine how far the right hon. gent. was qualified, by the solidity of his understanding, to judge whether the measures of his right hon. friend were mere visions,projects,and fancies. If his right hon. friend had simply proposed the repeal of the bill, without proposing any project for the improvement of the military system, he should himself have thought the measure a beneficial one, and he should be ready to discuss the question on that ground. He was satisfied that more men would have been obtained, if this bill had never been in existence, and that not a single man had been raised in consequence of it, that would not have been procured by other means.—The bill was ordered to be read a second time on Tuesday next.

AMERICAN INTERCOURSE BILL.
Lord Aucklandin moving the order for the 2d reading of the bill upon this subject, briefly adverted to the circumstance of a noble friend of his, then absent, who would reserve his sentiments upon the subject for the committee. He would therefore move, "that the bill be now read a 2d time."
Lord Hawkesburydid not mean to oppose the motion, particularly as he understood from his noble friend, that it was intended to render the prospective part of the measure, or rather that which was thrown out on a former evening, as intended, by means of an additional clause, respecting the discretionary powers to be vested in the governors of the islands, the matter of a distinct and separate bill. Respecting this very important consideration, however, which involved topics of the greatest consequence to the commercial interests of the empire, he had it seriously to recommend it to the attention of ministers, that under the circumstances, it was preferable to postpone the discussion of that part of the subject till the next session. This proceeding would not only not operate injuriously, but not be productive of any inconvenience. His lordship pressed this point upon the serious consideration of ministers, and adverted to the importance of any topic which so deeply involved the commercial concerns of the country, and its navigation laws, as that to which he alluded.
Lord Aucklandshortly expressed his opinion, that his noble friend seemed to misconceive what had fallen from him.
Lord Hollandmade a few remarks on the
768
occasion, and seemed to entertain a similar idea with his noble friend, respecting the misconception of the noble lord opposite. With the latter, he concurred that the subject adverted to was one of considerable importance, and that full and ample time ought to be allowed noble lords to investigate and to make up their minds upon the subject. However, he did not deem it necessary to postpone the consideration until the next session; for that, on Monday next, it was his intention to bring forward a bill to the effect alluded to, and for the consideration of which, previous to its second reading, he certainly meant to give full and sufficient time.—The bill was then read a 2nd time, and committed.