The British Press; or, Morning Literary Advertiser. — London, England, 1806-04-18 00:00:00

ow HOUSE OF COMMONS. A new writ was ordered for the Borough of Kin. sale, in Ireland, in the room of Samuel Campbell Rowley. &sq• who has accepted the Chiltern Hundreds. NABOB OF ouors DEBTS. Mr. FRANCIS, previomly to the second read ing . of the Bill for extending the powers of the Commissioners for liqnidating the debts of the 4rmeettif the Carnatic, wished to throw it out, in ••••kins wily of a suggestion, or a notice, that he thought 'At extremely-roper for she bielialsors ul that House, who were nt ,he legal profession, to be prepared to give an optrtion, whether, by the fair construaion of the Aft of 1784, the Court of Direaors of the East Company had a right, by law, to dtlegAte the • powers wi•lt which they were invested by the Aft, to Comm:: trters or any other persons ? Mr Knowles, from the Navy Office, pre stinted. pursuant to an ord.r of the House, a list of al Ships of the line and fritttec built by contraa, in l the years 104-5, and the expence, per ton, ar which the contrails were made—Ordered to lie on the tacit.. On the motion of Sir J.NI 7 .WPORTtheId read ing of the Irish next ; r packin 1311 WAS deferred till the sr-,.. of May and t '. e Ed reading or the I. •h Bent Note and Irish House Duty repeal B.ils, deferral till to-morrow Oa the motion of Sir P. STFPHENS, the House v...oirred its-If into a Commi•tee on the Longitude when the sum of 10,001. was sorted as a re. ward to such person ur persnwt as may discover the It-taude, or to such pets ins as sl. , •uld make such clis , ..velies as might tend to any improctments in u .vigatinn• Mr. VansittArtl.-.tight in the Appraisement . Diuy . ::1•11; witich read a 6 st, and ortice.l to be read . a second time to-morrow. • Mr.. Alex.ander hr on up the report - 110e Corn . mince of Supply yesterday, on the Miscellaneous Services, which was attreea tr. Lori OzbULSTON acquainted the House that Ills Majesty had been waited upon with theft last Address, and had been pleased to give direc tions accordingly. WITNIP.SsES' DECLARATORT On The .motion of the ATTOR.NEYtPkit NERAL, the House resolved itself into a Com mittee on this Rill ; Mr. Alexander in the Chair. The MASTER of the ROI I.S said, that from what had passed upon a former occasion, he had reason to 'aped that such objeelions as he had stated to it, would have been obviated ; and een though he had found it to be sptended, v he knew that, having declared his opt that the Bill was quite unnecessary, he was not bound to contri bute any thing towards the perfettion of it. How ever, finding also teat the House was called apon to declare the provisions of this Bill, according to the opinions of the twelve Judges, he thought it right that the provisions should,he 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 admittecithat there were ex ceptions, and therefore he did not think the Legisla tote should intefere, 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 pro teCted 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 authorize them to afford the satna protection to witnesses, as would be allowed them a Court of Equity. For this purpose he moved a provisowecc 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 fur the opinion of his Right Hon. Friend, that it was with great eh •villingness he felt himself obliged to disstint from iiim on the present occasion. The great objeeion he had to this proviso was, his conviCtion, that the rules of evidence at common law could not be re versed, or remedied, by the authority of any Coutt of Equity, neither were they, in fa& determined even by the statutes. No Judge, in a Court of Common Law, would allow a witness to state, as an objeaion to a question. that he would not be com pellable 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 J udge to compel a plaintiff to prove that the debt he sued tot etas an unjust one, nor would a Court of Equity compel a Man to disclose a forfeiture o f his estate by breach of contra& ; hut the same rules were not applicable to Courts so Jistinet. At Nisi Priem, 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 re quiring mature deliberation. Upon these, and va rious other grounds, he opposed the proviso, as be. ing totally unnecessary. The AT I'ORNEY-GENERAL said, he gave his Hon. Friend, who spoke last, full credit for hav ing 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, attrafted the attention of the highest and most distinguished law authorities in the country, he could not help feeling, that it was capable of be ing 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. lie was, there fore, 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 de tractive title, of which he had no notice when he gave a valuable consideration for it, but by this Nil, the Judge could leave him no alternative, but compel him to disclose, upon oath, that defed,which would, at once, reduce himself and his family, perhaps, from afilaence to a workhouse. The laws of evi dence, in Courts of Justice, were not the same now as at the time of the Crusades to the Holy Laud. from which period, he believed, they took their.dates for, during the space of 3.) years, that a celebrated and Learned N :tdeman (Lord Mansfield) presided in the Court of King's Beach, he established a va riety of rules which were not is use before, and sub sequent Chief Justices had followed the same pre cedent. 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 objettions relatiag to the ef ts& which evidence may have in any civil snits to lit afterwards instituted. The MASTER of the ROLLS hoped that on this occasion he might be indulged in °Crating some reply to the arguments urged against the proviso he submitted. His Learned Friend (Mr. {timidly) certainly possessed, in a very eminent degree, the faculty of expressing himself with great accuracy, as well as fluency ; but notwithstanding these ad vantages, he most confess, that with all the atten tion in hi, power to give to his observations, he could not comprahend whether he gave it as his opi nion, that after this roll should pass into a 'law, the Judge would have the same discretionary power in these cases. as lie possessed at present. It that were the true coastration of the Bill, lie should not per sist a anoinent longer, nor have any obleCtion to withdraw his motion, which would be rendered un necessary, it the Judge were not bound to de cide according to this law. If the House dmuld think praiser to do so, he should f. el no reluthusce to referring this b.ll in its present form, to the 12 Judges, and call upon them to Ay, 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 io casu where it had a selereuce to the proceedings of a Court of Equity ; neither did he know of any authority on whith the Judges could have been in. du :ed , to ground their exception, except that of a case. to be found iu the Reports of my Lord Chief Justice Parker. The case he alluded to was IMPERIAL PARLIAMENT. HOUSE OF LORDS---Vueilloar, Aram 17. The Lord Chancellor being engaged at Court, dd not.come down to the House, till halt past bow o'clock Counsel wete finally heard respecting the Irish App. al Ciuse, Gsiffiths v. Hatton and Others, from the Coint of Exch.,querChamber in Ireland, viz, Mr. Frothlongue, M.P. on the part of the Appellant, in reply Tlic LORD CHANCELLOR, who seemed to have little difficulty in his mind, as to the merits of the case, qtritted the Woolsack, and briefly address ed their Lordships on the subjet. lie concluded by movi 's that the judgment of the Irish Court be affirovid," which w as ordered accordingly. ctaidatii eL IN lERCOUKSE WiTit AmEiticA. L AUCKLAND, in moving the order for the strand reading of the bill upon this stsbjeti, be fore their Lordships, briefly adverted to the circum s' ince of a Noble Friend of his, then absent, who w raid reserve hit sentiments upon the subjeft for the Committee. Ile would therefore move, " that .the Bill be now read a second time." Lord HAWKESBIIRY begaed leave to address a few words to their Lordships ; he did not mean to oppose the Mosioa, particularly as he understood from his Noble Fiienda that it was intended to ren der ;he prospetßive part of the measure, or rather the' which was thrown out 071 a former evening, as int , sided, by -leans of ax additional clause, respect ing the discretionary powers to be vested in the Governors of the islands, the matter of a distindt and teparate ftespeaMg this very important considtretion, hOrrer.n, which involved topics of the greater consequence to the commercial inteicsts of the empire, hs bad it seriously to recommend it to the attention of Ministers, that under the cir cumstances. it was preretable to postpone the dis ; eaigioa of that part of the subjett till the next Session. Thi'l proceeding would nor only not operate injure ' ously, bu, not be produil - tive of any inconvenience. His Lordship pressed this point upon the serious conhisiera•lon of Ministers, and adverted to the im- pm-tans/id any topic which so deeply involved the ' •-icial concerns of the country, and its Na ' vialltdiaa Laws. as that to which he alluded. Lord AUCKLAND shortly expressed his opi aMn. that tsii Noble Friend seemed to misconceive wha• aad fallen from him. t r rd HOLLAND made a few remarks on the oc 'oa. and soemed to entertain a similar idea with ' oble Friend, respecting the misconception of 11-0 N(diare Lord opposite. With the latter, he con eat led chit the subjett adverted to was one of con eicferaak importance, And that full and ample time °ogle' to he allowed No de Lords to investigate atal 'to make ep their minds upon the subjeft. How ever, he did not deem it necessary to postpone the cooskleration until the next Session ; for that, en Monday next, it wan his intention to bring forward a Bill to the effeB alluded to, and for the consi deration of which, erevines to its second reading. be cc. A Bil l inl meant to give full and sufficient time. The y was then read a se cond time, and ern flitted 'or ro-morrow. The Bills upon the table were forwarded in their resesec,i , e stag.t.• a mong these, the Nee, Li , an Bill through a 'C o mmittee, and was reported with out arnenatnen . ., and the °rams:ice Treasurers' 818, aid Sir read. Duckwnrth's Anituity Bill, were se verally a second time, and ordered te be com taittrd. consideration of the Appeol Can :e from Claimer's, the Countess of Lincoln, a. the Duke at '-erecastle, being resumed — 'TI; Ag..sui dor the parties being called to the questioned respecting the evidence of die ' :.• age, it appeared it was admitted on the nest of the Appellant, that his Grace had actu ally attained his majority. • Olt Cr ANC iIELOR then said,hesheuld , •^. defer the farther consideration of the case, sic rely t:a: the proper form for the Decree might be adop:ed, woicb, on the question being put, was eider . d AC COT dingly. The hearing of the Scots Appeal Cease, Maxwell e. Goe, was fixed for the 13th of May. Some farther orders were made with respeel to the judicial business of the House; after which, their coroshios adiourned till to-morrow. -~T 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 protedeJ in a Court of Equity. Lord Chief Justice Mtain ans- fitild. through a long course of years main ed- the same doctrine ; but kis successor, Lord Chief Justice Kenyon, deni' even the existence of the rule. The s ame Ju ,3e, however. (Lord Kenyon) Sri a case of an arpitration, which after wards 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. L'ut however these decisions might occasionally have %retied, of this he eyes positively certain,and ready at any time to maintale, that according to the genius and prin ciples of the old law of England, a witness was no more compellable to confess a debt than he was to confess a felony. Wrie it otherwise, the conse quence 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 CAWS, even to affed his life. In treating of this subjeft, in his Commentaries, Mr. Justice Blackstone observed, that the law was different on both sides of West-. minster Hall; for that the Court of Chancery de cided one way, and the Court of King's Bench also?. ther; but continues to say,that he felt himseit'at a loss to determine how this variance could be reconciled_ to the common sense of mankind. He was, how. ever, very far ifrom being disposal to agree to this observation of Mr. Justice Blackstone ; for, to carry it to its full extent, it would tend to destroy all dis tindion between Courts of Law and Courts of Equity. The apprehension entertained heretofore upon this subjed was, that the Courts of Law might one day carry the rule as far as a Com t of Equity ; but the effral of the Bill would be, to make them go much farther. As far as lie was in formed 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 en force a claim, might prove it by the oath of the plaintiff himself, give a full disclosure, and after. wards suaject him to the penalties ot perjury, for not giving evidence against himself—a principle which he believed was not to be tound in the judi cial or municipal proceedings of any country, So far was it otherwise with us, that in all cases of felony, the Judges were in the habit of cautioning witnesses against making admissions, or giving an y evidence which might eventually subject them selves to punishment. By the old law ot England, until the reign of King William, when it was abro gated, a man, even in actions of trespass, was liable to amercement, for not obeying the King's writ ; but no attempt was ever made, even is former times, to eat from any defendant a confession of that disobe dience which would subjed 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 dowa to the statute of Henry VIII. no such thing as a Court of Chancery was ever known to the laws of England. Another bad coeseqnence would, in his opinion, re. suit 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 oE Chancery, which every one conversant with it most, know, WAS only to lie-learned in that court itself thus they make the tales of common law courts con formable to those of another court, which was not recognised, or even known, in law, at the time that these rules were el tablished . For all these reasons, he considered th objections offered, to be invalid. unless it should be proved that the proviso itself was unnecessaty. The SOLICITOR-6F.NERAL, in 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 opinon, that after this Bill should pass into a taw, the Judges would be as much at liberty to protect a witness from any die. closetre; by omission of the conditions of forfeiture, or any delta of title to estate', 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 defeet of his title, may not answer, under the sanction and protedioo 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 to eive Jueges: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 con trary doctrine ; as to the necessity of this declara tory bill, he said it arose from the uncertainty which prevailed upon the stabled, from .the send ments expressed by some of the Judges ; and he cos sidered that necessity to be encreasea try the authorie ty of his Right Hon. and Learned Friend (the Master of the Rolls), who seemed to concur is the opinions of die minority. It was some satisfaidion, however. to retied, that, to the eight Judges, whose opinion was in favour of the obligation on witnesses to an. , swer such questions as might afterwards subjea them to civil process, were to be added the ana thorities also of the present and late Lord Chancel. for ; so that of the persons who must be considered as best qualified to decide, there were ten who. maintained, that witnesses could not proted them selves from anseering such questions, against only four who seemed to hold a different opinion. Mr PERCIVAL said, he thought it would be much better if the Bill had not beets brought in, end 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 is their several opinions. Instead of this, ache had been informed, a similar proviso to that now under the consideration of the House, was inttoencee in the Lords; and, after considerable argument, negatived; and that they tend it down to this House, and put them into the dilemma in which they now lotted themselves. It was evident, that the Attorney and Solicitor-General were di redly at variance on the point, and therefore he 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 s hould stand, than that the J3ill should pass without it, as it was the only mode that could, with propriety, be adopted, to get rid of the ob jeCtion. Mr. Secretary FOX said, it had been his particu lar wish to hear the opinions .of the Learned Gen tlemen of Authority, before he rose to my any thing on the subiea, and in having done so with t h e utmost attention, he could not but say. that he dif fel ed entirely with the I-tarred Gel nloonen wi. spoke last, who had certainly dertvered his senti• meats with great form Cent perspicuity. He was. for his owls part, atter every consideration he bad been able to give the subjed, decidedly in favour of the Bill ; but he a freed entirely with his /lon. Friend near him (the Solicitor-General), that it ought not to pas with the pi "via°. He thought, at the same time, that what thi, Bill declares, was not the precise oraininn of the majority of the Jukes: but abet had been said in the course of the proseia debate completely eon vince.l him, that the MI ought to pass; for when there wis so grear a (1.1- ference in opinion among men of such 'higli pi.' rity as the Judges, and also among tlonaat , ;., Gentlemen so - teamed in bsali the theory .o 4 pratnice, as the aught Honoura;de Getntlentan *as the flier the Master of the R.-).1s), and his id-- noontide Friend near him, a, well as the other Learned Gentlemen " who had delivered their o is nions on the 'stele& he dustsght it was high time the taw should be 'made clear, and no doubt left remain ing on the sill-sleet. He c.bservel, that goat stress had leen laid on ,the words used by the Ltaroed Judges in delotering th..ir opinioos ; namely, t h,,:: i n 'spea.ting to the' porn: in qutai io slay, n, they s, tt Fe netkllV," or, .• generally spea:a ii," a man is corn : pellari'le to answer.; tlanegh he may, by so doing, render hinv.elf liable to a ciiiii suit. Past he cotes,. not so ppose they meant otherwise, by the vrnyji, '. generally speaking," than that he was compellable to answer, leaving it to be determined by the Judges. whether this civil soli: were of that nature as may,l.: t.. bring him within any of the exceptions to wli..:h they had many at them referred, but which, tit,fr.l - tunately, had not been explained. The questica, however, now was, whether the doubt which pre vailed should be removed, and he thought it could not be done too soon. 'he neri-ion of the Right Honourable and Learned Gent:ernan on the illarry (the Maarr of the Rolls). seemed to him to be, in a great degree, warped, by adverting to the preffice of the Court in which he so very ably presided. but which, it was to be recolleCti..l, was a Clint of Equity, the Rules of which were very different ' from tkose of the Common Law. The RIO Ho nourable Gentleman's argument went to impugn , the opinions of the majority of the dtalge but highly as he thought of the Right Hon. Gref.- deman's abilities. he did not thigh ihe should be junified in Allowing himself to set if np against she opinion of the majonty of the Judges, who hadelsy their superior knowledge and abilities in tke pro fession acid praCtice of the law, raised themselves to the first stations of authority in it, and pee thew opinions io the most serious and solemn manner, ea a most 'unpi" ant °erasion. For his own part, he was clearly of opinion. that the majority of the Judges were right in the decisioa tl.ey -ad Come t '; but he ..1:d not me - tion his own sentirnenss..'as ° F' the value of a feather , in lid or support ef,what hid been delivered by ikihl. Then, said th- !tight him. Gentleman (Mr. Fox), comes theAnestion, whe ther the C wits of Law are td he sent to iagoire into the merit, of the ~,I* I, from C....e. 5 '',Urt of Chan cery ? He was, he owned, very much surprised, that any such dodrina could have been h •Id, - ir even coaceivad. It was well known the C-ur:; . 1 Law were much more arncimt th in that of Equity I and had rules by which they were governed. twice the Court of Equity was ever known in thiacetinfry; and he believed Lord Holt, sa ataglif the great and Learned Judges, who• presided in the Coen , of Law, both before and sifter him, wonld have been startled at being„trifLfthry were to apply to a Court of Equity for rules, by which they were to proceed in the Courts of Law. 611.: the Right Una. and Leartyd Gentleman an the ti..or had said. he don's send you to a Court nf, Filthy, he only mirth \ with .you there ; but he did mit see, for his oat part, Whit( the Court iit Equ i ty cool I possibly. 1 3 point of &Wilt ss, have to do with the questim it all. He had looked over the t g fhe opinions of the Judges, and he believed t here wis not one single word in any of them about the s malls est allusion made to a Court of Equity He had no ' doubt but the Learned Judges had formed iheis rip nions on the general principles of the common la, of England. and not with the smallest analogy's reference to a Court of F.quity. He thought, th r— fore, no man would wish for this proviso, if the Bill could pass without it. He hsd not had the adi raze 01 hearing the opinion of the Ju '{tea delivref, but he should be glad to know it their .'p' i m wen asked, as to this proviso, if any one of them, eel of those who were in the minuri y, would he hi 0' your of this proviso. lie believed not ; ware r trary, he was almost certain they would be ar it to a man, as tending to infringe on the line A' rule of their own conduel, and tr sobjeS then . ' the guidance of the rules of another Coon, eer y . ' ferent from their own. both in point of p t inf and pranke. It had been mentioned by some llf r Member. that this proviso h ad been intrc.ouced. l'e to h e the House of Lords, and pa rtl y ado p ted het that it had afterwards be en re j ected ; this appeared very extraordinary. that dseHouse of Lcro ,. immediately after they had re c e ived the piating the Judges. and while they were warm in their r: collection of them , shou l d ado p t this proviso, ai so, should afterwards, without an y particular o.'?. being assigned for it, proc e e d in so contr a red way, as to reject it. if thi s argument pit' .t . . ! thing, it was that the Lords were clearl the Bi y . ot that the proviso ought nto be part of ll cause it militated against the opinion o f the mar , ' ! of the Judges, which ought also so weigh e . •• rially with that House.--If the case of a yaw,' for a valuable consideration, w i t hout 1-wise...- lowed, it might perhaps be b etter to insell,l viao ; but it dud cot appear to him, be. A.• he. ... heard on the subject, that it ou g ht to _,''-; Right l lon. and learned Gelitiema n on the g -. not stated any other eaception. The How! however, call to mind, that when th e j '' weird their opinions in the Howe of 1. ~` I 7 were se or trivi they n Cl/Wale ;hey sh would ~~ > ,A•: :ti Nir. House on his Lion I I ~c parti ct with sl Hon. fliott words more Judge 'lli in exp crest , f-,A A I e att. ig ,:n ej on t sic set Bil