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Proceedings of Parliament.
HOUSE OF LORDS.
had no right or interest to challenge it Moncay, March 10.
being disinherited by the deed 1771.
The heir answered, that the deed 1771 MR Whitbread presented an addition could be no bar, because it was revoked
al article of inpeachment against and made void by the terms of the Lord Melville.
clause above mentioned, in the deed Tuesday, March 11.
1793. To which Mr Coutts replied,
1st, The revocation was not complete, The bill for compelling witnesses to but qualified; and, 2dl)', That the heir give evidence, notwithstanding its sub could not be allowed to approbate the jecting them to a civil process, passed deed 1793, so far as it was a revocation, through a Committee. A proviso was and reprobate it, so far ss it was a dispo. introduced, on the motion of Lord El sition. The Court of Session, in 1795. don, that the Court shall not repell an decided in favour of Mr Coutts; but, ohjection made by a witness to answer, upon an appeal, the House of Lords, where such objection is made specially, expressing great doubts of the propriety and no specific grounds stated, but shall of that decision, remitted the cause to decide on such objection according to the Court, to be reheard ; this was in the law as it appears to them; and that 1799. In Februaty 1801, the Court a witness shall not be compellable to an adhered to their former decree, and there swer as a defendant in a Court of Equi. was a second appeal taken, upon which ty, on a bill being bled against him. the present judgment proceeds. Friday, March 14.
Lord Eldon (ihelete Chancellor) spoke Scots APPEAL.
to all the points of law which had been Mr Howison Moody, v. Thomas Coutts, Esq. tions on the learning and industry of
agitated, and bestowed great commendaJudgment was this day given in the the Judges of the Court of Session, dislong depending cause between the Heir played in the different stages of this at Law of the late Col. Craufurd, of cause; but after the maturest deliberaCraufurdland, and Thomas Coutts, Esq. tion, (and he never had bestowed so banker in London.-Col. Crauturd, by much almost upon any cause), he could a testamentary deed, made in 1771, con not agree with the majority of the veyed his estates to Sir Hew Crawfurd, Judges. He said this appeared to him Bart.; but, upon his death-bed, in 1793., a cause depending on its own particular he made another deed, conveying the circumstances, and the decision could same estates to Mr Coutts, and this last, scarcely affect any other case, or overdeed contained a clause, “revoking and turn any rule established in law, or on making void the deed of 1771, so far as which practice had been founded. The it was a grant of the estate to Sir Hew question came to this, whether any Craufurd, but declaring it valid and suf rigtit to the estate remained in Sir Hew ficient to the extent of the powers of re Craufurd, under the deed 1771, at the vocation and alteration thereby resery death of Col. Craufurd; he did not ed, in order to make effectual the dispo mean a substantial right, whereby Sir sition to Mr Coutts.” At Col, Crau. Hew could in any event take the estate, furd's death, both these deeds were but such a ight as could aid Mr Coutts, found subsisting and entire. The heir or be set up as a bar to the heir's chalat law of the Colonel brought an action lenge of the deed 1793, as for want of for setting aside the deed 1771, as interest. This seemed to depend on voked by the last deed, and the deed the terms of the revoking clause in the 1793, as made on death.bed. Mr.Coutts, last deed, and he could not conceive admitting that the last deed could not how a deed, revoked and declared abso. stand by itself, argued that the heir lutely void and null, so far as it purportApril 1806.
ed to convey to Sir Hew, could leave Col. Craufurd; and in consequence of even the shadow of right in bim. The the above decision in his favour, (by clause indeed declared the deed 1771 which he has acquired a very large proto be still effectual, so far as regarded perty,) he will be obliged to use the the power of alteration and revocation, surname and bear the arms of Craufurd but that was doing nothing ; it did not of Craufurdland, in the shire of Ayr, reserve a particle of right in Sir Hew along with the surname and arms of as a disponee, to be opposed to the heir Howison of Braehead, in the county of at law.
It was true that the same Mid Lothian.] clause declared with what view that reservation was made, that it was to sup
Wednesday, March 19. port the death-bed deed, and the inten The declaratory bill respecting wittion was manifest; but a declaration was passed, all the additional of intention is not enough, unless it is clauses being withdrawn. The bill now formally and properly executed. The stands as it was brought in by Lord heir at law can be barred only by means Erskine. of a disposition to a stranger, made in due time, and it must be a subsisting
Monday, March 24. disposition at the death of the granter,
Lord Melville attended in his place, by which, or under the cover of which, and gave in his answer to the last arthe estate may pass. Here the first ticle of impeachment. It stated, that he disposition was put out of the heir’s protested against the additional article, way by the revocation, and the second as a proceeding which was unprecedentdeed, being thus left unprotected, was ed, and contrary to the usage of Parliaopen to the heir's challenge on the ment; but, notwithstanding that, he head of death-bed.-As to the argument felt it incumbent on himself, being thus that the heir was approbating and repro called upon, to answer (saving all ob. þating the same deed, his Lordship said, jections, and all his rights and privileges there was nothing in it. The heir was as a Peer of Parliament, &c.) that he taking nothing by the deed 1793, and was in no way guilty of the alledged was only referring to it as the evidence crimes and misdemeanours, and that he of a fact, and to evidence founded on was ready to prove so to the House.by Mr Coutts himself. His Lordship The answer was ordered to be sent by said further, that Lord Thurlow and the a message to the Commons. late Lord Rosslyn were of the same opi
Tuesday, March 25. nion with him, and indeed they went further, for they were inclined to say,
Mr Whitbread delivered at the Bar that independent of the special ground the replication of the Commons to Lord he went upon, the declaratory ciause in Melville's plea, in which they maintain the deed 1793, the attempt to keep up
that they are prepared to prove that he the deed 1771, in order to support the
is guilty. On the motion of Lord death-bed one, was unavailable as Fitxwilliam, the 29th of April was fixed fraud upon the law. On the whole, for the trial of Lord Melville. therefore, his Lordship moved to reverse Lord Grenville, after a handsome eulo. the interlocutors of the Court of Ses. gium on the conduct of Admiral Duck. şion, which was agreed to.
worth in the late glorious action in the The Counsel who argued the cause West Indies, moved the Thanks of the the last in the House of Lords, on the House to that Officer, to Admirals part of the appellant, the beir at law, Cochrane and Louis, and to the other were the Lord Advocate (Hope), vow Officers, Seamen and Marines, engaged Lord Justice Clerk, and Mr Macco. in the action off St Domingo; which pochie;-Counsel for Mr Coutts, Messrs was of course agreed to nem, diss. Adam and Clerk.
The Duke of Norfolk wished to call [The heir at law in the above cause the attention of the House to the serviis the son of the Rev. James Howison ces of Sir R. Calder, who had gained a Moody, one of the ministers of Perth, victory with an inferior furce, yet he who married the only daughter of James had received no mark of approbation Howison of Braehead Esq. in Mid Lo- from the Legislature. His case he thian, by his wife, the sister of the said thought extremely hard.-Lord Romney
was of the same opinion. He thought further security for the proper approhighly of the merits of Sir R. Calder; priation of monies voted for the public he had enjoyed his friendship for many service in that department, by obliging years, and he was still proud to call the said Treasurer to hand over such him his friend. Lord Grenville suggest. balances as shall, from time to time, reing the irregularity of the discussion, it main in his hands, into the Bank of was dropped.
England. The Noble Lord, at the same Thursday, March 27.
time, intimated his intention to carry
the same principle to the departments Lord Grenville moved an address to
of the Post Office, Excise, and every his Majesty, praying that a suitable office connected with the receipt and portion of Westminster Hall might be expenditure of public money. fitted up for the accommodation of the Commons at Lord Melville's trial. Or
Friday, Feb. 28.
Monday, March 3.
LORD ELLENBOROUGH'S APPOINTMENT.
Mr Spencer Stanhope said, that his pension of 1000l. a-year for life on Adm.
mind was free from all party motives, Sir John Duckworth.
and that, under any Administration, he
should have been ready to make his Scotch APPEALS.
Had Lord Kenyon John Glassels, of Long Niddry, Esq. been appointed to a place in the Cabi. against the Earl of Wemyss
. The judg: net, such a measure would have been ment of the Court of Session was affirm. warmly opposed by the Rt. Hon. Secretaed. W. Allan, merchant in Leith, a ry, and he should certainly have felt it gainst Cornelius de Vox of Hamburg, and his duty to support him. The present Ramsay, Williamson, Edge Co. his agents. was a question of a great and imporJudgment of the Court of Session af tant nature, and highly interesting to the firmed, with costs. This was a question public; and it was his opinion, that regarding Mr Allan's discharge under should the Chief Justice withdraw from the bankrupt act, which the Court re
his situation as a Cabinet Minister, the fused in the circumstances of the case,
Administration would be stronger in and which is now affirmed.
the opinion and affections of the coun.
try. It was a principle of our common HOUSE OF COMMONS.
law, that no man should be at the same
time a Judge and party in the same Thursday, Feb. 27.
In those prosecutions, which Mr Whitbread moved for returos of are conducted at the instance of the the several corps of volunteers, cavalry, Privy Council, the Chief Justice, who infantry, and artillery, in Great Britain, is a niember of the Cabinet, must be specifying their state of discipline, and both a Judge and a party, unless he the fitness for general service of the re withdraw from it while such discussions spective corps. Ordered.
are going forward. He concluded his Lord H. Petty obtained leave to bring speech, by moving, “That it is the opi. in a Bill to regulate the office of Trea. nion of this House, that it is expedient surer of the Ordnance : the object of that the functions of a Minister of the which was, he said, to give the public a Crown be preserved distinct from those
of a Judge at Common Law :-That time, was the late Lord Mansfield, at the Members of the Cabinet Council the latter end of the late reign, and the are the confidential aIinisters and advi. beginning of the present: but his retensers of his Majesty :- That it is a prac. tion of that situation was unknown and tice peculiarly inexpedient, and tending carefully concealed from Parliament; to render the administration of justice so much so, that when that Noble less satisfactory, if not less pure, to Lord acknowledged the fact in the unite in une person the offices of a Prio' House of Lords, the Earl of Shelburne vy Councillor and of a Judge at Com- expressed his astonishment at it, as a mon Law."
discovery entirely new; but he appealMr Canning said, he disdained any ed to those who heard him, if the illuswish to abridge the Sovereign of his trious character and fame of Lord privilege to select the Members of his Mansfield would not have gone down Council, or any personal disrepect to to posterity much more respected, if he wards the Noble Lord, the subject of had not blended in his own character the motion, for whose talents he bad the Judge and the Cabinet Counsellor, every respect; nor had the personal He conciuded by observing, that whatcharacter of that Judge, or any other, were the qualifications of Lord any thing to do with the question. The Ellenborough for a Cabinet Counsellory independence of the Judges upon the all the services he could render in that Crown was settled by Act of Parlia way were dearly purchased, by the surment; yet by conferring upon a judge render of a single hour of his services the post of a Cabinet Counsellor, that in the Court of King's Bench. independence was done away, because Mr Secretary Fox said, that he never he was appointed to a place from which did foresee, that a Cabinet Council, a he was removeable at the pleasure of Council of whom nothing could be the Crown. If this appointment was found in the statute books, could ever continued, all future Chief Justices of be made the subject of a question of the King's Bench would consider their this nature, except it were upon perseats, not as independent of the Crown, sonal grounds. If a question were starbut as a starting place for new prospects ted as to the introduction of an improper of preferment; aspiring Judges would person into the Privy Council, it would view the Bench as only a new step on be a fair subject of discussion ; but that the ladder of Court favour, and, he there should be a doubt, whether a per. hoped, an example so pernicious might son should do the duties that as Privy be done away. It may be said, that no Counsellor he was bound and sworn to law authorities were quoted to prove do, appeared to him a novelty. No the illegality of the appointment; but Council of this description was ever was it not sufficient to state, that it was acknowledged by law, except the Pri. contrary to the spirit of the constitu- vy Council. Every principle would tion and was it desirable, at such a have guided him to deny the doctrine crisis, to excite a general alarm and un of considering the Cabinet, as it was easiness in the country, for the sake of called, as a distinct and recognised bosuch an appointment? It was in such a dy. Every man in the Privy. Council case the province of the Legislature to had a right to advise his Sovereign. interfere ; and if no desirable point of His idea of a Cabinet was, that it was expediency called for such an arrange- a body never recognised by Parliament, ment, it would be desirable to do it for very good reasons. It was a custom away, and put an end to such appre never recognised, but connived at, for hensions. He admitted the cases quot- convenience, to avoid the mischief of ed of Lord Hardwicke having held the acknowledging it, which might be of Chief Justice's place in the King's no trivial nature. Any doubt that might Bench after he was appointed Chancel have existed on this point, he hoped lor; and that the present Lord Eldon might be removed by this debate. The did the same in the Common Pleas till Hon. Gentleman had said, that nobody a successor was appointed ; but the on knew Lord Mansfield was a Cabinet ly example, he believed, of a Chief Minister till he confessed it. In that Justice of the King's Bench holding a he was certainly wrong : but as to the place in the Cabinet for a length of difficulty and the impossibility of mak,
ing the Cabinet a responsible body, he whether it were an attachment he felt must think that argument conclusive. to the old benches, or what was the But, as Gentlemen seemed very fond cause, he did not know; but certain it of calling it a responsible body, he should was, he did not wish to see them hastily wish Gentlemen to shew him where' abandoned by their present occupants; and how it was responsible as a body. and much as he admired the AdminiIf they recognised that selection from stration, he did not even require a can. the Privy Council, they would intro did opposition, much less did he desire duce a novelty without precedent. He or expect a numerous one. He could had not sat in many Cabinets. His opi- endure the language of impatience from nion of a Cabinet was, that it was a the Hon. Gentlemen in their altered meeting of persons high in office, to predicament: one of them had lost a converse upon public affairs, and to warm naval cloak (Mr Canning,) angive advice to the King. The best other a splendid India shawi (Lord mode of responsibility was, to make Castlereagh,) and a third a graceful the agent responsible. It was as Privy professional robe (Mr Percival,) and it Councillors, and not as Cabinet Coun. was natural to expect, they would feel cillors, that responsibility attached. a little the chill of disappointment.
Gentleraen were not prepared to say, The House divided, --for the motion that the Judges in the House, and the 64, against it, 22 2. Master of the Rolls in the House of In a Committee of Supply, the folCommons, should not be Members of lowing sums were voted; ordinaries of the Legislature. As to the judicial the navy for 1806, 1,453,53cl.; for builand the executive, there was the Lord ding, repairing, and wear and tear of Chancellor, always a Cabinet Minister. ships, 1,988,8351.; for hire of transports, Where was the distinction between a
1,255,000l.; for prisoners of war in criminal and a civil Judge ? He could health, at home and abroad, 400,000l.; not discover that maxim in law. Jus. for sick prisoners of war, 45,000l.; for tice Blackstone had said, that a Judge hospitals, &c. 30,000l. ought not to be a Minister of State ; he
Tuesday, March 4. begged leave, however, to demur a little as to his authority. He said, that Mr Whitbread brought up a report the latter part of Charles the Second's from Lord Melville's Impeachment reign exhibited the Constitution in a Committee. It stated that 10,000l. was state approaching to perfection. Now, due from Lord Melville to the public he could not think that he who held when Mr Trotter came to the Paymas. such an opinion could be a constitution. tership, in January 1786. How this al oracle. But what did that Judge had come about couid not be stated in really mean, when he said that a Judge the former reports. It had happened, ought not to be a Minister of State. however, before Mr Trotter became He believed he meant to use the last Paymaster; and as Mr Douglas had term in the true English acceptation of been the Paymaster during Lord Mela it; not as the French, Germans, and ville's first Treasurership, the Commit. Italians do, whose use of it may be best tee had examined as many of the late translated by our phrase, Privy Coun- Mr Douglas's books as they could find. sellor. The Right Hon. Gentleman Lord Melville came to the Treasurer. then recapitulated the leading argu- ship in 1782. Till the 6th of Novemments of his speech, and observed, that ber 1782, the money issued from the the admission of a Judge into the Cabin Exchequer was paid into the Bank. net was not condemned by any thing From that time the course was altered, that had fallen from the opposite side, as 45,000l. was then issued to the Treaand that it had the example of the best surer, only 40,000l. of which was paid of times.
into the Bank. The other soool. was Lord Castlereagh, Mr Wilberforce, and deposited in an iron chest at the TreaMr Percival spoke for the motiun ; surer's office. On the 22d of the same Earl Temple, Lord Henry Petty and Mr month 50,000l. was issued, out of which Sheridan against it. The latter, allud- 47,000l. went to the Bank, and 3000l. ing to the new opposition, said, he, for was placed in the chest. In the follow. one, did not deprecate their exertions, ing December 93,000l. was issued, of