Sitting of 28 February 1806

MINUTES.
A message from the lords requested the attendance of the house at their lordships' bar, where the royal assent was given by commission to the exchequer bills act, lady Nelson's and sir R. Strachan's annuity act —Lord Temple brought in a
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bill for enabling the vessels employed in the Greenland whale fishery to complete their crews; which was read a first time, and ordered to be read a second time on Monday.—The secretary at war brought in a bill to enable his majesty to employ a greater number of foreign troops. Read a first time, and ordered to be read a second time on Monday.—A petition of the president and members of the board of agriculture was presented to the house, and read; setting forth, "that his majesty having been pleased, in consequence of an address from this house, to constitute, by letters patent under the great seal, a Board of Agriculture, for promoting the internal improvement of the country, the petitioners have the satisfaction to acquaint the house, that the important purposes intended by that institution are carrying on, and are likely to be attended with beneficial effects to the public; and therefore praying, that they may be supported by a grant for the present year to such an amount as to the house shall seem meet." Ordered to lie on the table.—A petition of the committee of the company of merchants trading to Africa, was presented to the house; setting forth, "that in consideration of the various increased expenses of the establishments in Africa, and the cost of the articles required for the payment of the same, parliament was pleased to grant the sum of 18,000 l. for the support of the said establishments last year, which sum has been invested for that purpose; and therefore praying the house to grant the petitioners the like sum, for the support of the said establishments" Ordered to lie upon the table.—Lord Temple rose, to observe, that an omission, that might be attended with much inconvenience; had taken place in the Corn Regulation act of last session. No clause, allowing the export of corn to our garrisons abroad, had been introduced into it. To remedy this omission, he gave notice of his intention to move for leave to bring in a distinct bill, permitting such exportation, on Monday next.—Lord Temple also moved, that the house should then resolve itself into a committee, to consider the exportation of wool and woollen articles from the British colonies to the united kingdoms.—Sir P. Stevens brought up the marine mutiny, bill, which was ordered to a committee on Tuesday next.—Mr. Alexander brought up the report on lord St. Vincent's annuity bill, The resolution, that the annuity

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should be extended to the two next heirs of the peerage, was read, and a bill ordered to be brought in accordingly.—Mr. Johnstone stated, that several important papers relative to the affairs of India had been laid before the general court of proprietors by the court of directors, which it was material to have before the house; and therefore gave notice, that he should on Monday next move, that these papers be laid on the table.—On the motion of
Mr.Vansittart, the former orders of the house for the production of certain accounts relative to the augmentation or diminution of salaries, &c. in the public offices in Great Britain and Ireland, were discharged. He then moved, that there be laid before the house, an account of the increase or diminution that may have taken place in the number and amount of the salaries, emoluments, and expences of the different public offices in Great Britain, to the 5th Jan. 1806, specifying the dates of such increase or diminution, and the authorities for the same. Ordered. A similar order was then made for Ireland.

AFFAIRS OF INDIA.
Mr. Alderman Prinsep rose,to make the motion of which he had given notice yesterday. The object he had in view was to ascertain the proportion our commerce with India bore to that with China, and the relative amount of the capital borrowed in India, for the prosecution of each trade. He had another object in view, which was to ascertain whether the amount of stores was or was not included in the account of territorial revenue applied to commercial purposes. He conceived it very material to have these objects elucidated, and he thought they would be explained by these papers. He moved, therefore, "that there be laid before the house an account showing the annual amount of stores and merchandise respectively exported by and for the service of the East-India company to India, from the year ending the 1st of March 1793, to the 1st of March 1804; together with the expenditure and sales thereof at each presidency, and the respective balances in store and afloat, on 30th April 1793, and 30th April 1803, as far as the same can be made out. Also, an account, shewing the annual amount of bullion, stores, and merchandise, respectively exported by and for the service of the East-India company to China, from the year ending the 1st of March 1793, to the 1st
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of March 1804; together with the sales thereof at Canton, and the respective balances in store and afloat on 30th April 1793, and 30th April 1803, as far as the same can be made out."
Mr. Francisseconded the motion. He was determined to second and support every motion, the object of which was to obtain information of the commercial and financial affairs of the company, unmixed with political matter, and thus to promote the great point he had so long looked to, to save the company from ruin, and with the company the country, which would have to bear the burden of the ruin, if the company should fall. He complained, that the directors never gave an answer, even when papers of the slightest moment were moved for. The board of controul always came forward, or one was always referred to that board. The constitution of the company required, that the directors should act in the first instance; and that the board of controul should interfere only when it was necessary to check them. He did not like that the court of directors and the board of controul should act together as they had done for some time. This had not so much the appearance of a laudable harmony, as of a secret understanding.
Mr.Hiley Addingtonthanked the worthy alderman for having given notice of this motion, a consideration which he hoped the house would think due to a new board, yet unacquainted what papers ought or ought not to be produced. He saw no objections to these papers; only, as an account of the bullion exported to India. had been already ordered, it would be advisable to omit it here. These papers, however, could not be produced very soon, as the clerks were employed in preparing the accounts for the India budget. The board of controul did not wish to interfere with the court of directors; but, as a great responsibility rested upon the board of controul, it wished to discharge its duty; this, however, without interfering with the proper objects of the company's care, and without resisting the production of any necessary information.
Sir T. Metcalfesaid, that however much the hon. gent. who seconded the motion might vaunt himself the company's friend, he never could consider him as such. As to the reserve shewn by the court of directors on motions for papers, it was sufficient to state, that all the papers were in

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the office of the board of controul, and that no director could, without a violation of his oath, produce any one paper without the consent of that board. The East-India company was not an insulated company, but a company whose interests were blended with those of the country. He would avail himself of this opportunity to explain the capture of the letters in the Hope Packet, dwelt on in such a criminatory manner by the hon. gent. on a former night. The Hope was a country ship, taken up by the government of Bengal to bring home the dispatches. On her passage she fell in with Linois, in the Marengo, accompanied by the Pelle Poule, by whom he was taken. The boxes containing the dispatches were prepared to be sunk, with sand bags tied to them. The captain did not arrive here till July, 1805, when he underwent a short examination, as every captain in the company's service did, however fortunate his Voyage might have been. Captain Dunbar, of the Hope, stated, that a chain-shot had cut the ends that fastened the sand bags to some of the packages containing the letters: and thus these packages floated when thrown over. board, and were picked up.
Mr. Franciswarmly replied, that the dispatches, even if shot away, could not have floated, if loaded with chain-shot, as was the custom in his time: but, if the house were satisfied with the strange explanation now given of it, he had done with the business; though primâ facie, a communication of intelligence to the enemy was a high crime and misdemeanour; and, if done designedly, which he did not think to be the case in this instance, would amount to high treason. But, whatever he might think of that transaction, he believed it to be true, that the court of directors was under the guidance of his majesty's ministers. The hon. baronet seemed to insinuate, oil other occasions, as well as the present, that he was the enemy of the East-India company. Whoever thought so, should bring it forward boldly, in the way of accusation; and, if defiance and challenge could do any thing with the hon. baronet, he would defy and challenge him, or any man, to bring forward and substantiate such a charge against him.
The Speakerhere reminded him that he was out of order.
Mr. Francisthen said, he must submit to authority; but would beg leave to state, in explanation, that he still continued to
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think and assert, that in all motions for
papers, the court of directors was absolutely nothing.
Sir T. Metcalfein explanation, said, that as the hon. gent. often vaunted himself to be the true friend of the East-India company, he considered it no attack on him to say, that he never thought him so —After this, the motions were agreed to.

MINUTES.
Lord viscount Ansonwas introduced with the accustomed formalities, sworn, and took his seat. His lordship's supporters were, viscounts Newark and Curzon.—The earl of Lauderdale, a Scots Peer, was also introduced, in full form, sworn, and took his seat, as baron Lauderdale, a peer of the united kingdom. His lordship's supporters were, lords Holland and Walsingham.—The earl of Donough more. one of the Irish representative peers, was sworn and took his seat.—The royal assent was given, by commission, to the five millions exchequer bills bill, lady Nelson's, and to sir R. Stnachan's annuity bill.

WITNESSES INDEMNITY BILL—OPINION OF THE JUDGES.
Pursuant to an order of the house, the learned Judges again attended this day, for the purpose of delivering their opinions seriatim on the questions arising out of the discussion on this bill, and which had been previously referred to them; the principle of these, and on which a difference of opinion among the law lords was last night stated to obtain, was, in effect, whether a witness, according to law, was bound to answer questions relative to the matter in issue, the answers to which do not tend to accuse himself, but may establish, or tend to establish, that he owes a debt recoverable by a civil suit?
Mr, Baron Suttonas the junior judge, first rose to deliver his opinion. The learned baron, in the course of his argument, referred to a variety of legal considerations, cases, and decisions; on his view of which he grounded his opinions, These, considering the point as a general rule of law, liable, however, to various and numerous exceptions, dependent on circumstances, &c. were, that such witness was bound to answer. In the course of his illustrations he referred to a case, which he seemed to put hypothetically, viz.

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that of a prisoner on trial for his life, on a charge of forgery, and a most important witness to be brought forward to answer the question, whether such name or signature were his hand-writing or not? would it, in such a case, be allowed to him to object, on the ground, that tie answer might render him liable to a civil debt?
Mr. Baron Graham,after stating the difficulties in which the question was involved, declared that, in his opinion, the general rule of law was, that a witness was bound to answer every question touching the issue to be tried, with the exception only of such questions as would expose him to a criminal prosecution, or to a penalty or forfeiture. In the courts of equity it was the daily practice to force parties to answer the natters alleged against them, whatever pecuniary loss such answer., might subject them to. The justice and the reason of this rule applied equally to the courts of law, although it was not the custom there to examine the parties, as it was in chancery, where their customs were derived from the civil, instead of the common law. Although, in the courts of law, a party could not be made a witness, yet those persons, who were brought forward as witnesses, were equally bound to declare the whole truth, as the parties would be in a court of equity. If it were not so, the most monstrous obstructions would be thrown in the way of justice; those persons who were the best qualified .to give important evidence, might generally shelter themselves under that plea. It was, however, every day seen, that pawn-brokers were brought in evidence upon the prosecution of thieves, and stable-keepers on the trials of horse-stealers; and in neither of these cases; would it be permitted, for the pawn-broker, or the stable-keeper, to refuse giving testimony, on the ground of their answers obliging them to restore those things which they had so improperly received. if this were the law, whatever inconveniences might result from it, witnesses would perpetually claim this privilege, either from fear, or through favour. The point had not as yet been settled by any solemn decision, after a full argument; but, from all the lights that he could derive, and from the monstrous inconvenience that would result from the contrary supposition, he declared his opinion, as to the first question, that a witness is bound to answer all such answers as do not expose him, either to criminal prosecution,
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penalty or forfeiture; and as to the second question, that the same rule applies to the witnesses on a trial, or a suit, where his majesty is either plaintiff or prosecutor.
Mr. Justice Chambrewas of the same opinion. In the courts of equity, not only a person might be compelled to answer questions which would severely affect their pecuniary interests, but bills of discovery were filed, for the express purpose of obtaining an answer upon oath, which answer might be read as evidence in the courts of law. The rule had been laid down by lord Mansfield, which had been generally considered as the true one, that in all cases where a witness could be forced to answer by a court of equity, in order that his answer might be read as evidence in a court of law, in, all such cases, a court of law should compel him to answer at the trial. The only cases where a party could refuse to answer in a court of equity, were, when such answer would expose him to either criminal prosecution or to penalty or forfeiture. This was what he conceived the rule also at common law, and that it most unquestionably ought to be the rule, for he thought there could be no reason assigned why a man should conceive himself privileged to conceal the truth, or to refuse to do justice between A. and B. on the ground that if he did so, C. might have an action against him; which would be to say in other words, "the public must not call upon me to give evidence, or do justice between A. and B. because such evidence night prevent me from acting unjustly by C. or D. to whom I should wish to act unjustly, and from whom I should wish to withhold a just debt."As to the authorities upon the point, there were on one side a great variety of opinions, expressed at Nisi Prius, and on the other, the rule so laid down by lord Mansfield, and which he now considered to be the law with respect to evidence. There had been also a case in the court of exchequer, where an. attachment was ordered against a witness, for refusing to answer on these grounds. When he considered the practice of the courts of equity, and the manner in which this practice had been adopted in the courts of law, and also when he considered the great obstruction which would be thrown in the way of justice, if the contrary practice should prevail, he should give his decided opinion, that a witness was bound to answer questions, which did not expose him to criminal prosecution, penalty, or

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forfeiture, even although his pecuniary interests might suffer by such answer.
Mr. Justice Le Blancagreed most decidedly with the opinions which had been delivered by the judges who preceded him. He considered that it would be subversive of justice, and a thing not to be endured, if agents, brokers, or persons who managed insurances, were to decline being examined on the ground of their being themselves made liable to a civil action. Although he professed the highest respect for the authority of those judges who held the rule to be the other way, yet it must be recollected that the point had never been seriously argued before, or probably those great and learned judges might have altered their opinions. He had always held that witnesses could be compelled to answer questions, even although their answers might expose them to civil actions, and the more he considered the practice of the courts, and the reason on which it was founded, the more he was confirmed in that opinion. He, therefore, agreed with his learned brethren in the answers they had given-to the questions that had been submitted to their opinion.
Mr. Justice Grosediffered in opinion from the learned Judges who had preceded him. He conceived, that, by the mild laws of this country, no man was bound to criminate himself; or to give evidence against his own pecuniary interest, and perhaps to his utter ruin. It was allowed, that neither in a court of equity, or at law, was a man bound to answer what might expose him to a penalty or forfeiture. He could not see the reason why a man should be excused from answering questions which might expose hint to the penalty of five pounds for killing a hare, and yet should be obliged to answer questions which might expose him to ten thousand pounds in damages, or to lie in jail all his life, it he should be unable to pay those damages. This difference, it appeared, was more grounded upon practice than upon any principle. The practice, however, of the courts of equity differed most materially from that of the courts of law. In the courts of equity, although the parties were liable to be compelled to answer upon oath, yet they had time for due deliberation and legal advice, and besides the answers could not afterwards be misrepresented. It was very different, however, in a court of law, when a question rapidly put by an ingenious lawyer, and
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answered without consideration, might expose the witness to ruin. If this answer could be given against him as evidence in another trial, it would be given in without the witness having any opportunity to explain his answer. There were many other differences between the rules of evidence in the court of equity, and those of common law. In the former, an infant could not be compelled to answer, in the latter he could. He did not consider that the principle laid down by lord Mansfield was entitled to more weight, than the opinions of so many great and eminent Judges, who had determined the other way. His opinion was, therefore, contrary to the opinion expressed by his brother judges.
Mr. Justice Lawrencesaid, that he had always, until this question was agitated, considered that the rule of law was, that a witness was excused from answering such questions as involved his pecuniary rest, and, so thinking, he had concurred with other Judges in refusing a new trial moved for on that very ground. The fact was that, till the present question was started, there had been no solemn argument upon the subject, and he had never turned his mind particularly to it; but upon the present occasion, having felt it his duty to consider the subject with the utmost attention he could give to it, he had changed his opinion as to the rule of law, and was now inclined to consider that it was different from what he had formerly supposed. Whichever way the general rule lay, that rule had many exceptions;" and, although he could see many inconveniences resulting from the affirmative, as well as from the negative of the question which had been put to the Judges, yet he thought the mischiefs resulting from the negative of it considerably predominated. He therefore now considered, that the general rule of law was, that a witness was bound to answer questions, although he might become liable to a civil action in consequence of his answers.
Mr. Justice Rookecoincided with his learned brother (Mr. Justice Grose) in his opinion, that a witness was not bound to answer questions which might materially affect his pecuniary interest. He did not apprehend such evil consequences from this rule, as those who held an opinion contrary to his. Prosecutors and plaintiffs seldom came into court so badly provided with testimony, as to rely entirely on what they were to pick up by cross-exami

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nation from an unwilling witness. Neither did he think that they would decline answering on a pretence of their pecuniary interest being endangered, if, upon examination, it appeared that their interest was very minute. He thought a much greater danger would result from allowing a hasty answer, unexplained, and perhaps incorrectly taken down, to be read as conclusive evidence at a trial. There was a case determined against this doctrine, but he thought it was an extreme hard case. It was that of lord Keith, who, by an answer he gave in an insurance cause, where he was called as a witness, subjected himself to an action, in which 10,000 l. damages were given against him. No court of equity could have compelled him to state every irregularity he might lave committed when commander in chief of a fleet, and yet a hasty answer at Nisi Prius was given as evidence against him. He considered that evils of this kind were worse than would follow from the rule being the other way. As to the courts of equity, whatever analogies might be drawn, he did not consider that judges of the common law were bound to go into the court of chancery to find out what rules of evidence were received there. In the whole of his practice at the bar, and of his experience on the bench, he considered that witnesses might object to being examined on matters that would expose them to civil actions. He thought that no third person had a right to extort from a witness what debts he owed, what slanders he might have spoken, or what trespasses he might have committed, which would expose him to actions. If that were the rule, it would change the whole practice of the law, as dishonest practitioners would bring actions against one person, merely to extort evidence against another. He, therefore, was of opinion, that a witness was not bound to answer questions which would prejudice his pecuniary interests, and expose him to civil actions.—After Mr. Justice Rooke had finished, the further hearing of the Judges was postponed till to-morrow.