On the 10th, Mr. Whitbread moved for leave to bring in a bill to indemnify all such persons, as should be required to give evidence on the impeachment of lord Melville, and who had served under him in the navy office. The reason that induced him to bring forward this motion was, that several lawyers had given it as their opinion, that questions which Mr. Trotter would be required to answer, might, if answered, expose him to the dangers of a prosecution. To obviate this difficulty, a bill had been brought in to indemnify persons in that situation from the consequences of a criminal prosecution. At the instance of sir William Elford it was intended to extend to civil as well as criminal prosecutions. The lords, however, struck out the part that related to civil suits, and the bill itself was finally rejected in the commons. Another had been adopted as far as related to criminal prosecutions. The judges had been consulted, but had not given their opinion; it was however of great infportance to the ends of public justice that the sentiments of the judges should be known before they proceeded on the circuit; which was the more requisite, as it was certain that the evidence of Trotter was indispensably necessary. He, therefore, after some other remarks, moved to bring in a bill that should indemnify persons in the situation of Trotter from the consequences of any civil suits, to which they might otherwise be liable. The motion was seconded by sir William Elford; when leave was given to bring in the bill, which was car ried through all its stages in the house of commons, and on the 12th was presented to the lords.

In the house of peers on the 13th, lord Holland moved that the "im

peachment witnesses, indemnity bill" should be read a second time on the Monday following.

Lord Hawkesbury did not mean to oppose the motion, but wished to call the attention of the house to the bill which had already been before the house, and which went to indemnify persons giving evidence on the impeachment of lord Melville, both from criminal and civil suits. With respect to the civil indemnity, certain questions had been referred to the judges, with a view of ascertaining whether persons were legally justified in refusing to answer questions, the result of which might subject them to a civil suit. The judges not having answered the questions, he suggested whether it would not be advisable now to refer similar questions, for the opinions of that learned body, before they proceeded to the bill.

After some observations from lord Holland, on the necessity of having the opinions of the judges as speedily as possible, it was agreed that they should be ordered to attend on Monday. On that day they were all present, when

Lord Eldon called the attention of the house to the bill, which he considered as an ex post-fucto law : he then proposed that certain questions be put to the judges. He could not help observing, that the principle of the bill attempted to be established, claimed the most serious consideration of their lordships, lest it might bring down upon them the reproaches of posterity. The bill expressed doubts as to the liability of a witness to answer a question which might involve him in a civil suit. It was the first time that he had heard there was any doubt upon the subject, although he was aware that there was high legal

authority

authority against him. He wished, however, their lordships to be fully aware of the nature of the bill, which went, as it might happen, to give persons sums of money (for it was the same thing, whether the money was actually given, or whether they were freed from any process for a sum claimed by the public,) for giving evidence at their lordships bar; and not only were such persons, on that account, discharged from any process on account of debts due to the crown, but from any process on account of debts due by them to individuals. He saw so many objections to the bill, that he could not help recurring to the speech of lord Hard. wicke upon a bill of a similar nature, which was before the house in the year 1742, when that great man concluded by observing, "that he would much rather be the object of the bill than the author of it." His lordship concluded by moving to refer to the judges three questions, the object of which was to ascertain, Whether, according to law, a witness had a right to demur to the answering any question, relevant to the subject under investigation, the answer to which might tend to acknowledge a debt recoverable by a civil process? or which might render him liable to civil process generally? or which might render him liable to a civil process at the suit of the crown, for the profits of any public money con verted to his own use?

Lord Holland denied that there was any provision in the bill which would authorise the construction, that a witness giving evidence un der the sanction of its provisions would be thereby exonerated on account of debts due from such witness to private individuals.

The judges, being applied to, re

quested till Thursday se'nnight to consider of the questions; which was, after some observations from the lord chancellor Erskine, agreed to. In the mean time

Lord Eldon, on the 24th, moved for the appointment of a committee to search for precedents of bills similar to that in question. The more he considered that bill, the more it appeared to him unconstitutional and unsafe; it went to give a degree of power to the other house of parliament that might prove dangerous to the liberties of the people, and repugnant to the ends of justice in matters where their lordships were to sit as judges. It gave a power to prosecutors, which prosecutors should never possess: viewing it in this light, he thought it expedient that a committee be appointed to search into precedents of similar bills, in order that from their report some light might be derived to guide the conduct of the house on the present occasion. This motion was agreed to: and on the 27th, the order of the day was read for the attendance of the judges, who were all present, to give their answers to the questions referred to them; the first and second of which went to enquire whether according to law a witness could demur to answer a question, 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 third was, to ascertain whether a witness, who, in making a full and fair disclosure, was excused from certain debts, could not be legally objected to, on the ground of his being interested?

The lord chief justice Mansfield delivered the opinion of the judges, which, with respect to the first two questions, would, he feared, leave D 4

their

their lordships in nearly the same state of doubt in which they were before, the judges themselves being divided in opinion upon them. Those who thought that a witness, in such case, could not demur, might be prepared to give a decisive answer; 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 upon which, indeed, it would be scarcely possible for them, under a general question, to give a decided opinion. With respect to the third question, they were unanimously of opinion, that a witness in the situation described, 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 that he had heard from the judges, which he had expected would have been decisive. He begged leave to propose another question, "Whether, according to law, any officer, or agent employed under any officer, entrusted with the application of public money, could demur to answer 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 he was willing to withdraw, if any other noble lord suggested a better mode of attaining the same object.

The answers of the judges were, at the suggestion of the clerk, demanded in writing. The answer to the third question was similar to

that given verbally by the lord chief justice. The answer to the other two questions stated, that they were so general in their nature that the judges could not give a satisfactory answer.

Lord Eldon said that more specific questions could not be framed, without going into the merits of the case which was to come before them by impeachment, and upon which their minds should be kept perfectly clear till it came before them in evidence.

Lord Holland protested against the opinion given by the judges upon the first two questions, as in its tendency it was unconstitutional.

He did not conceive that it rested with the learned judges to say that a question referred to them was too general; they were bound by the practice of parliament to give a specific answer, when their lordships required one. He conceived that the house had a right to an answer from the learned judges upon any abstract point of law, and that such an answer should be in the affirmative or negatite. In this case the answer delivered viva vore by the learned chief justice, and that delivered in writing, were at variance. From the former it was clearly to be inferred that the learned judges differed in opinion respecting the answer to be given, while the paper delivered in at the table was the answer of all the judges, and stated that which he was anxious should not be considered by the house as an answer that it was proper to admit.

Earl Stanhope said his noble friend had mistaken the practice of parliament: it had been constantly the custom in the case of Mr. Hastings to refer questions to the judges, on specific points and individual cases. He could not

admit the 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 it was not possible for the judges to give a general answer of Yes or No, to a question that might admit of a thousand exceptions to the general rule laid down. He intended, unless it were done by some other person, to propose a general law upon the subject, by which the evidence given by a person, respecting any matter in issue, should not be afterwards made use of in any way against him.

The lord chancellor observed, that it was clear from the statement of the learned chief justice, that the learned judges had not 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, and wished for their opinion, which the house had a right to demand. The variance between the verbal statement of the chief justice and the answer delivered in at the table, was obvious to the house; it was also clear that the difference of opinion among the judges was not as to the form of the question, but upon the merits of the question itself. Under these circumstances he thought the house was entitled to call for an opinion of the judges' delivered striatim.

Lord Grenville, lord Hawkesbury, the earl of Radnor, and lord Eldon-all concurred in the opinion that the judges should be heard seriatim; which being agreed to,

lord Holland moved that the consideration of the bill be deferred till Tuesday.

On the 28th, after the usual routine of business, the judges proceeded to deliver their opinions on the questions referred to them. Mr. baron Sutton was understood to say that, as a general principle, a witness might be required to answer a question which did. not involve him in a criminal prosecution, but which acknowledged a debt reco verable by a civil suit. Mr. baron Graham was of the same opinion.

Mr. justice Chambre took a similar ground of argument, contending that a witness under such circumstances might be required to answer, otherwise a witness could not be compelled to answer, because the answer might affect his interests, and in that case it would scarcely be possible to obtain the truth, or to do justice between party and party. He admitted, however, that there were exceptions to the general rule. In this opinion Mr. justice le Blanc and Mr. justice Lawrence concurred.

Mr. justice Grose contended that there was no established rule of law, nor any precedents of sufficient. authority, by which a witness could be required to answer, when the effect of that answer might be to render him liable to a civil action, in consequence of his being forced to acknowledge a debt, or that he was wrongfully in possession of any property, or to make any other acknowledgment injurious to his interests.

Mr. justice Rooke concurred in the same opinion: he deprecated the establishment of a principle that should compel persons to make such acknowledgments as might be ruinous to themselves and their families, while on the other hand,

in order to avert such consequences, they would have a strong temptation to perjury. He referred to the case of lord Keith, who, being unwarily led to acknowledge having acted erroneously in his situation of commander in chief, was after wards subjected to a verdict, with 10,000. damages.

Lord Ellenborough moved that the further hearing of the judges should be postponed till the next day-When

Mr. Baron Thompson said he could find nothing satisfactory on the subject involved in the questions referred to the judges, but he was of opinion that a witness under the circumstances mentioned 'was not compellable to give evidence of facts which might be afterwards used against himself.

Mr. justice Heath was of opinion that witnesses under such circumstances were compellable to an

swer.

Lord chief baron Macdonald deprecated the consequences which would ensue from the establishment of such a principle, as that a witness was not compellable to answer where that answer might tend to acknowledge a debt reco verable by a civil suit; as in that case a witness interested to the amount of five shillings, by refusing to give evidence, might defeat the just claim of a party to ten thousand pounds. In the court in which it was his lot to preside, it would also be productive of the worst consequences, as in revenue causes witnesses would on such a ground very frequently demur, and prevent the truth from being as certained.

The lord chief justice had ever considered it as an established point of law, that a witness was not compellable to answer any question

that might subject him to a civil action; this was the opinion of lawyers of the greatest eminence: it was so decided by lord Kenyon, in a case where an action was brought by a person against another who had been clerk, for money alleged to have been received for the use of the plaintiff. After a variety of arguments in justification of his opinion, he concluded by asserting, that a witness under the circumstances mentioned was not compelled to answer.

Earl Stanhope, from the differénce of opinion that prevailed among the judges, proposed a bill for the purpose of enacting that the evidence given by witnesses should not be afterwards made use of against themselves, except in cases of wilful and corrupt perjury.

Lord Eldon, after the bill had been read a first time, said he concurred with the noble earl in his opinion, as to the necessity of making some legislative provision upon this subject, but the mode of doing it must be matter for mature deliberation. He did not think the bill proposed by the noble earl would answer the purpose; as in many cases it would be of no consequence whether their evidence was used against themselves; the very disclosure, in many instances, being sufficient to point out the means by which such facts might be proved in another manner. He was aware of the necessity of enacting some legislative provision on the subject, as now the question had been mooted, and the opinions of the judges were known. He had always considered the law to be, that witnesses were compellable to answer under the circumstances referred to; such he believed was the opinion of lawyers of the first eminence, and he had

no