Sitting of 27 February 1806

MINUTES.
A message was brought from the lords, stating that their lordships had agreed to the five millions exchequer bills bill without any amendment.—Dr. Duigenan brought in the Irish first fruits bill, which was read a first time.—
228
Mr. Francis moved for, extracts of any letters or accounts received from the presidency of Bombay, relative to the sum of 31,25944 Bombay rupees, inserted in the account of their disbursements, from the year ending the 30th April 1803, and said to be money lent to the Guicowar. Lord Morpeth stating that there was no objection to the motion, the same was agreed to.—On the motion of lord H. Petty, it was ordered, that there be laid before the house, an account of any offices in Ireland, that may have been granted to two or more persons, for their concurrent lives, with benefit of survivorship.—On the motion of lord H. Petty, it was ordered, that there be laid before the house an account of all the duties retained and not drawn back, on the exports of foreign and colonial goods, from Great Britain to Ireland, during the years 1801, 1802, 1803, 1804, 1805, and to the 6th of January 1806. As likewise a similar account of duties on similar exports, from Ireland to Great Britain, down, to 5th January 1806.—The secretary at war moved for leave to bring in a bill for extending the liberty of enlisting foreign soldiers into the service of this country, and for indemnifying those by whom the enlistments had been made. The right hon. gent. stated the fact of an excess to the extent of 3,000 men, beyond the provisions of the former act, having lately taken place in recruiting the German legion, while in Hanover; and that it was deemed expedient that no time should be lost in acquainting parliament of this circumstance, and asking indemnity Leave was accordingly given to bring in the bill,—Sir P. Stephens brought in the marine mutiny bill, which was read a first time and ordered to be read a second time to-morrow.—On the motion of lord Morpeth, a variety of papers, comprising the details of the revenue and expenditure of the different presidencies of India, were ordered to be laid on the table, preparatory to the bringing forward of the India budget.—On the motion of Mr. Fitzgerald, the Irish lands partition bill went through a committee.—On the motion of lord Temple, the house went into a committee on the Greenland whale fishery acts. After some conversation between Mr. Lee, lord Temple, and Mr. Vansittart, a resolution was agreed to, that leave be given, to vessel's engaged in the Greenland whale fishery, to complete their number of men at certain ports for the present season.—On the mo-

229
tion of Mr. Vansittart, it was ordered, that there be laid before the house an account or estimate of all duties of customs and excise in Great Britain charged and outstanding on the 5th of Jan. 1805, and on the 5th of Jan. 1806, respectively, distinguishing the several articles, and temporary from permanent duties.

AFFAIRS OF INDIA.
Lord Folkestonesaid, that though there had been some difference of opinion as to the propriety of investigations into the expenditure of the monies of the company, he presumed to think there could be no objection to the motion he had now to make, which was, "That there be laid before this house, a list of all pensions payable by the East-India company, and a return of all sums of money granted, by way of gratuity, by the court of directors to individuals, from the year 1793 up to the present time: specifying the services and considerations for which such pensions and sums of money have been given and granted respectively."
The Speakerintimated, that it any hesitation appeared in the house to accede to this motion, the noble lord had better content himself, in conformity with what he (the speaker) conceived to be a rule established in the house, with giving notice of his motion for a future day.
Lord Folkestonedeclared himself hostile to the practice, or to the establishment of any such rule. Particularly in such a case as the present; Where no possible objection could be made to the motion, he by no means conceived himself bound to give notice of it. If, however, the house should determine to establish such a rule, he trusted that its operation would not be partial, but that it would be rigidly adhered to in every instance.
The Speakertrusted that the house would do him the justice to believe, that he was influenced by no motive in the remark that he had made, but the wish to uphold their received practice. Since he had enjoyed the honour of sitting in that chair, it had certainly been the received practice, not to entertain any motion of a public nature, without a previous notice, except, indeed, the annual accounts, &c. which were mere matters of course. The reason of this usage was evidently to prevent the house from being under the disagreeable necessity of rescinding on one day what they had agreed to in the day preceding, in the absence perhaps of those members who were competent judge of the propriety of the
230
question. If however, the house thought proper that this practice should be abandoned, it was for them to express their pleasure.
Lord Folkestonerepeated his objections to the practice of giving notices. It would be better to get rid of any obnoxious motion, by calling for the previous question.
Mr. Francis,as an old member of the house, felt himself entitled to express his opinion on this subject. During the two first parliaments in which he had held a seat, no such practice was resorted to, except on very particular occasions. The present motion was not one of those which appeared to him to require previous notice. It was not a political question; it was a question, the propriety of which could not admit of debate, as it merely related to the public expenditure, information concerning which, the house, as guardians of the public purse, must ever be solicitous to obtain.
Mr. Percevalspoke in favour of the prevailing practice, and thought no member could object to give notice, unless he had a disposition to take the house by surprise. There might be times, he observed, when, perhaps, there might be only one member of that house capable of judging of the propriety or impropriety of producing papers. That member might be absent on one particular day; but if a notice were given, he would, of course, feel it is duty to attend to it.
General Tarletonthought, that, in the present instance, there was one good and sufficient ground for requiring a notice, as there happened to be no more than one India director then present in his place.
Mr. Secretary Foxsaid, he considered the practice of giving notice on ordinary occasions, as an abuse which was so long suffered to prevail, that it was not at present easy to get rid of it immediately. In the present instance, however, he saw no occasion whatever for a notice, as he did not understand that there would be any objection to the motion. If any member of the court of directors stated any reason why he might wish for delay, he made no doubt but the noble lord would willingly consent to it. The practice now attempted to be enforced, he could only consider as a general instance of relaxation of duty, and was not to be found in the original constitution of parliament. In a constitutional view, every member was supposed to be bound to attend upon all

231
questions relating to the supplies, the ways and means, and every expenditure of the public money. Whatever modes might latterly have prevailed, he confessed, that he liked the old practice better, which was to attend to all subjects of grievance; and he was convinced that the custom of giving notice on such Occasions was not founded on the principles of the rights of parliament.
Mr. P. Moorethought a notice to be unnecessary, at least if no objection were stated to the motion.
Lord Folkestoneexplained, that he wished some general rule to be at once adopted, in this respect, to regulate the proceedings of the house. It was in the power of any gentleman, who felt any difficulty or objection to his proposition, to move an adjournment of the debate, which he should not object to, if any sufficient reason were given for it.
Leewas of opinion, that this question should at once be decided, one way or other. The right hon. secretary (Mr. Fox) appeared to him rather to incline to a notice being given in the present instance, conformably to practice. What he wished to suggest was, that it should be made a part of the law of parliament, for every member to desist from pressing a motion without notice, if it should be objected to; for if no precise rule were suffered to obtain, there might be no end to such desultory debates. The motion was then put and carried.

VOLUNTEERS.
Mr. whitbreadrose to submit his promised motion, for a return of the effective volunteer force, to which as no opposition had been manifested when he gave his notice, he trusted none would now be made. There was no subject on which it behoved the house and the country to be more completely informed than the present. They had been buoyed up with the most magnificent descriptions of the state of the voluntary defence, and it was now highly expedient to ascertain the actual fact. At such a crisis as the present, this was particularly indispensible. It was of the utmost importance, previous to the sums being voted for the clothing and expences of a considerable portion of the volunteer establishment, that the house should know what number of men were likely to take the field in case of emergency. He was sure that his hon. friends, who were near him, would give this subject all the attention that its great importance de-
232
manded. Were it not for this conviction, he should consider it his duty himself to found a motion on the papers, for which he should on that evening move. As it was, however, he should leave it with perfect confidence in their hands. One additional remark he would make, which was, that not only the number of effective men should be clearly ascertained; but that the rank of the officers should likewise be considered and arranged. He was himself in the command of a volunteer corps, and he was solicitous that neither he, nor any other officer in a similar situation, should be circumstanced in that particular in the way in which he now was. He would say no more on the subject at present, but rest satisfied with moving, "that there be laid before the house, an account of the returns of the different volunteer corps of cavalry, infantry, and artillery, in that part of the united kingdom, called Great Britain; describing the effective strength of each corps, together with their state of discipline, and fitness for service, as reported by the general officers and inspecting field officers of the different districts throughout the kingdom, in their last returns; and also the names of the officers by whom such returns have been signed."
General Tarletonwas very happy to give his support to the motion. The volunteers and the public at large were anxious to know, whether or not any new measure of defence was to be adopted. It was now near March, a period at which a campaign usually commenced, and this circumstance, added to the dangers with which the country was threatened, pointed out the necessity of expediting as much as possible any military plans that might be in contemplation.—The motion was then agreed to.

Earl. ST. VINCENT.
Lord Henry Petty,previous to moving for a committee on his majesty's message relative to earl St. Vincent, acquainted the house, that he had his majesty's commands to recommend to them that the annuity now limited to the two heirs male of the noble earl, should be extended to the two next heirs of the peerage in succession. It was his duty to add, that when the pension was first granted it was so continued, but it had happened that in proceeding through the house it became limited, He thought it right, distinctly to state this, to shew that it was no new favour granted to earl St. Vincent,

233
although he had no doubt if it were so, that the undiminished zeal with which at his advanced period of life, the noble earl was sacrificing, his ease, and devoting himself to the service of his country, would induce the house cheerfully to accord with such a proposition.
Mr. Rosecorroborated the statement of the noble lord, that it certainly was intended when the grant was first conferred on earl St. Vincent, that it should devolve to the two next heirs of the peerage in succession. He felt it a duty which he owed that noble earl to declare, that when the subject of extending it was first mentioned to him, he had said that he felt himself sufficiently rewarded, and requested, that if any thing farther were in contemplation, it might be done without his interposition.—His majesty's recommendation, as just communicated by the noble lord, having been ordered to be referred to the same committee, the house resolved itself into a committee on his majesty's message respecting earl St. Vincent; when a resolution was agreed to, in conformity with the said message; and the house having been resumed, the report was ordered to be received tomorrow.

TREASURER OF THE ORDNANCE.
Lord Henry Petty roseto move for leave to bring in a bill for the better regulation of the office of treasurer of his majesty's ordnance. The principal object which he proposed by this bill, was to afford the public that security for the due administration of their money, to which they were entitled, by making it a legislative provision that all balances remaining in the hands of the treasurer should be deposited in the bank of England. It was true that there existed an order given by the board of ordnance to that effect; but it was desirable that the public should have better security than the mere act of any board, that the money which had been voted for particular purposes should be appropriated to those purposes, and to no others. As he was on the subject, he would take this opportunity of giving notice, that it was his intention to move for leave to bring in bills for enforcing similar regulations, and carrying into effect a similar principle, in the post office, excise office, custom house, &c.
Mr. Long,after bearing testimony to the measures which lord Chatham, whilst in office, was pursuing to the same effect, expressed his satisfaction at finding that the
234
same regulations were meant to be extended to all the public offices. He thought, however, that in the course of this arrangement, if the money accruing were, in all cases, to be deposited in the bank of England, it may be a proper consideration, whether there should not be increase of salary to the officers who heretofore had the benefit of holding sums of money for some time in their hands.—Leave was then given to bring in the bill.

WITNESSES' INDEMNITY BILL.
The order of the day having been read for the attendance of the Judges (who were all present), to give their answers to the three questions referred to them, the 1st and 2d of which went to enquire whether, according to law, a witness could demand to answer a question, the answer to which might render him liable to an action for debt, or to a suit for the recovery of the profits of public money? and the 3d, to ascertain whether a witness who, on making a full and fair disclosure, was to be excused from certain debts, could not be legally objected to, on the ground of his being interested?
Lord Chief Justice Mansfielddelivered

223
the opinion of the Judges, which, with respect to the first two questions, would, he said he feared, leave their lordships in nearly the same state of doubt in which they were before, although his learned brethren and himself had devoted as much attention to their consideration as the time allotted for the purpose would allow. The Judges were, however, upon those two questions, which they considered to be resolved into one, divided in opinion. Those who were of opinion that a witness in such, a case could not demur, might be prepared to give a decisive answer to that effect, but with respect to those who were of a contrary opinion, that opinion was qualified by a great number of exceptions, which it was not their province to descant upon under the general terms of the questions, and which, indeed, it would be scarcely possible for them, under a general question, to give a decided opinion upon.—With respect to the 3d question, they were unanimously of opinion, that a witness in the situation described, could not he repelled on the ground of being interested, as whatever was offered, on condition of his making a full and fair disclosure, could legally make no difference with respect to his evidence, he being bound by his oath, by law, morality, and honour, to declare the truth, the whole truth, and nothing but the truth.
Lord Aucklandexpressed his disappointment at the opinion which he had just heard from the learned Judges, which he had expected would have been decisive one way way or the other. In order, however, to obtain an answer, which might perhaps be all that would be necessary, with reference to the bill, he begged leave to propose another question, whether, according to law, any officer or agent employed under any officer entrusted with the application of the public money, could demur to answer to any question relative to the matter in issue, the answer to which might render him liable to any suit respecting the application of such money? This question, however, he was very willing to withdraw, if any other noble lord suggested a better mode of attaining the same object.
It being suggested by the clerk that the answers of the Judges should be delivered in writing, they were accordingly delivered. The answer to the third question was similar to that given verbally by lord chief justice Mansfield. The answer to the other two questions stated, that they were so
224
general in their nature, that the Judges could not give a satisfactory answer.
Lord Eldonsaid, it would be in the recollection of their lordships that he had on a former occasion expressed his doubts, whether they would derive much precise information from the opinion of the Judges upon such general questions. The great difficulty in his mind, with respect to framing more specific questions was, that they could not do so without going into the merits of the case which was to come before them by impeachment, and upon which they ought to preserve their minds clear from all previous opinions upon the subject, until they came before them regularly in evidence.
Lord Hollandobjected to the noble lord (Auckland's) question, on the ground of its being too particular, and protested against the admission of the Judges' answer, because it recognized a principle which he contended was unparliamentary, viz. that questions referred to the Judges should be of a particular and not of a general nature. He was decidedly of a contrary opinion, and had no hesitation in saying, that it had been the uniform practice of parliament before the trial of Mr. Hastings, and that it was essential to the preservation of the independence and dignity of their lordships' house, the highest judicature of the kingdom, to refer no questions to the Judges of a particular nature, but to consult them on the general point of law.—All questions that it could become the house to refer to the learned Judges, were in his opinion reducible to these three heads. 1st, a question of pure abstract law, illustrated by an A. and B. case. 2dly, a question on the practice of the courts below. 3dly, a question on the construction of a particular act of parliament.—If, therefore, this was sound constitutional doctrine, and the Judges were permitted to decline answering questions because they were general, it would follow, either that the house must depart from the principles of their ancestors and the wholesome constitutional maxim of confining their questions to general points, or the attendance of Judges would become nugatory and useless.—The reason of the principle laid down, was obvious. If every particular case was referred to the Judges, we should not be consulting them for the purpose of gaining information upon which we might form our own opinions, but we should be asking them advice upon our

225
own conduct, and consulting them how to regulate it according to law. Were that the practice adopted, and they were required to give opinions on the case, and not simply consulted on the general points of law, there could be no reason stated why the whole body of evidence on a trial, or any other proceeding, might not be referred to the Judges, and they required to advise the house what verdict to give. Such a doctrine and such a practice would be derogatory to the dignity of the house; subversive of the law and usage of parliament; and a virtual surrender of the independence and dignity of the highest judicature in the country, to the practice and rules of the inferior courts. He was therefore convicted that the learned Judges attended on the woolsacks, to furnish their lordships with such information as they might feel necessary towards regulating their conduct, but not for the purpose of being consulted as to what that conduct should be: and being convinced that the recognition of the impropriety of general questions being put to them, would be an acknowledgement that the object of their attendance was for the latter and not the former purpose, and that such acknowledgement would be pregnant with serious evils to the law and usage of parliament, he felt bound to protest to the admission of the answer given in in writing by the Judges.
Earl Stanhopesaid, his noble friend had mistaken the practice of parliament, with respect to the questions referred to the Judges. If his noble friend had, like himself, endured the misery of attending for six years, during the trial of Warren Hastings, he would have known that it had been constantly the practice to refer questions to the Judges, upon specific points, and individual cases. He could not, at the same time, agree with his noble friend, as to the general propriety of requiring an answer from the learned Judges, to a question, respecting an abstract point of law. Such a question might involve both negative and positive, relations, and how was it possible for the learned Judges to give a general answer, of yes or no, to a question, which they could not, indeed, answer, without making a thousand, or, perhaps, ten thousand, exceptions to the general rule laid down? With respect to the bill itself, he was of opinion, that there should not be a different law for A. to what there was for B.;
226
and he had an idea, if it was not carried into effect by any other person, of proposing a general law upon the subject, contained in a short bill, according to which, the evidence given by any person respecting any matter in issue, should not be afterwards made use of in any way against him.
The Lord Chancellor (Erskine)after briefly stating the circumstances which gave rise, on a former occasion, to putting these questions to the Judges, observed, that it was clear, from the statement of the learned chief Justice, that the learned Judges had not really declined to answer the question, on account of its being of too general a nature, but that they had differed in opinion with respect to the subject matter which that question involved, and, therefore, they could not return a general answer, either one way or the other. He looked up with reverence and respect to the opinion of the Judges; he wished to have their opinion upon such a question; the house had a right to call for their opinion. The variance between the verbal statement of the learned chief Justice, and the answer delivered in at the table, was obvious to the house; it was also clear that the difference of opinion amongst the learned Judges was, not as to the form of the question put to them, but upon the merits of the question itself. Under these circumstances, therefore, he thought that the house was entitled to call fur an opinion from the Judges, and, as they could not agree, that they should deliver their opinions seriatim. He, at the same time, wished to pay the highest deference to the opinion, upon this subject, of his noble and learned friend (lord Eldon).
Lord Grenvilleperfectly concurred in what had fallen from the noble and learned lord on the woolsack. He wished to pay every respect to the learned Judges, but their lordships were entitled to an opinion upon the questions referred to that learned body; and, however painful or unpleasant the task, they must do their duty. He concurred in the propriety of hearing the Judges seriatim.
Lord Hawkesburyalso agreed that the Judges should be heard seriatim; the only question appeared to him to be as to the mode of getting rid of the answer to the first two questions which had been delivered at the table. It occurred to him that the best mode of doing this, would be to consider that answer as not having been delivered, and that it should be un-

227
derstood that the learned Judges were to deliver their opinion upon the question, as if no such answer had been given. With respect to what had fallen from his noble. friend (lord Holland) as to the proceedings of the house being controlled by the opinion of the Judges upon specific points, that opinion was not sanctioned by precedents, one of which occurred to him at the moment—the case of Dr. Sacheverell, in which the house acted in direct opposition to the unanimous opinion of the judges. As to the idea started by the earl (Stanhope) of a general law to prevent the evidence of witnesses from being used against themselves, he thought it would not have the effect which the noble earl proposed, as, if the witnesses were compelled to disclose facts, that disclosure might afford a clue for proving those facts against them.
Lord Aucklandwithdrew his motion.
The Earl of Radnorthought the Judges ought to be called upon to deliver then opinions seriatim.
Lord Eldonsaid, he felt it incumbent upon him to state, that he gave too positive an opinion upon the point involved in the bill. He had said, that there was no doubt that a witness had no right to demur to a question, the answer to which might involve him in a civil suit; that opinion he must now retract, as he found there were doubts upon the subject amongst persons of high legal authority. He concurred in opinion that the judges should be heard seriatim, and therefore moved that the Judges, having given a decided opinion in the negative as to the third question referred to them; and it having been stated that they differed in opinion as to the other two questions; that they should be heard seriatim upon those questions, and that they should attend to-morrow for the purpose of delivering their opinions.—This motion was agreed to, and on the motion of lord Holland the further consideration of the bill was postponed till Tuesday, for which day the lords were ordered to be summoned.