Debate On A Motion For Indemnifying Evidence Relating To The Conduct Of
The Earl Of ORFORD.
The following debate having been produced by an occasion very uncommon
and important, it is necessary to give an account of such transactions
as may contribute to illustrate it.
The prime minister being driven out of the house of commons, by the
prevalence of those who, from their opposition to the measures of the
court, were termed the country party, it was proposed that a committee
should be appointed, "to inquire into the conduct of publick affairs, at
home and abroad, during the last twenty years;" but the motion was
rejected.
It was afterwards moved, "that a committee should be appointed to
inquire into the conduct of Robert, earl of ORFORD, during the last ten
years in which he was first commissioner of the treasury, and chancellor
and under treasurer of the exchequer," which was carried by 252 to 245.
A committee of one-and-twenty being chosen by ballot, and entering upon
the inquiry, called before them Mr. Gibbon, who declared himself agent
to J. Botteler, and said, that Botteler, being a candidate for Wendover,
and finding that no success was to be expected without five hundred
pounds, sent a friend to N. Paxton, with a letter, and that he saw him
return with a great number of papers, in which he said were bills for
five hundred pounds.
Botteler and his friend being examined, confirmed the testimony of
Gibbon; and Botteler added, that he sent to Paxton as an officer of the
treasury, acquainted with those who had the disposal of money; that his
claim to the favour which he asked arose from a disappointment in a
former election; that he never gave for the money any security or
acknowledgment, nor considered himself indebted for it to Paxton or any
other person.
Paxton being then examined, refused to return any answer to the question
of the committee, because the answer might tend to accuse himself. Which
reason was alleged by others for a like refusal.
The committee finding their inquiries eluded, by this plea for secrecy,
which the laws of Britain allow to be valid, reported to the commons the
obstacles that they met with; for the removal of which a bill was
brought in like that of indemnity; which, having passed the commons,
produced, in the house of lords, a debate, in which the greatest men of
each party exerted the utmost force of their reason and eloquence.
The bill being read a second time, and a motion made for its being
referred to a committee.
Lord CARTERET spoke to this effect:--My lords, as the question now
before us is of the highest importance both to the present age and to
posterity, as it may direct the proceedings of the courts of justice,
prescribe the course of publick inquiries, and, by consequence, affect
the property or life of every lord in this assembly; I hope it will be
debated amongst us without the acrimony which arises from the prejudice
of party, or the violence which is produced by the desire of victory,
and that the controversy will be animated by no other passion than zeal
for justice, and love of truth.
For my part, my lords, I have reason to believe, that many professions
of my sincerity will not be necessary on this occasion, because I shall
not be easily suspected of any partiality in favour of the noble lord to
whom this bill immediately relates. It is well known to your lordships
how freely I have censured his conduct, and how invariably I have
opposed those measures by which the nation has been so far exasperated,
that the bill, now under our consideration, has been thought necessary
by the commons, to pacify the general discontent, to restore the publick
tranquillity, and to recover that confidence in the government, without
which no happiness is to be expected, without which the best measures
will always be obstructed by the people, and the justest remonstrances
disregarded by the court.
But however laudable may be the end proposed by the commons, I cannot,
my lords, be so far dazzled by the prospect of obtaining it, as not to
examine the means to which we are invited to concur, and inquire with
that attention which the honour of sitting in this house has made my
duty, whether they are such as have been practised by our ancestors,
such as are prescribed by the law, or warranted by prudence.
The caution, my lords, with which our ancestors have always proceeded in
inquiries by which life or death, property or reputation, was
endangered; the certainty, or at least the high degree of probability,
which they required in evidence, to make it a sufficient ground of
conviction, is universally known; nor is it necessary to show their
opinion by particular examples, because, being no less solicitous for
the welfare of their posterity than for their own, they were careful to
record their sentiments in laws and statutes, and to prescribe, with the
strongest sanctions, to succeeding governments, what they had discovered
by their own reflections, or been taught by their predecessors.
They considered, my lords, not only how great was the hardship of being
unjustly condemned, but likewise how much a man might suffer by being
falsely accused; how much he might be harassed by a prosecution, and how
sensibly he might feel the disgrace of a trial. They knew that to be
charged with guilt implied some degree of reproach, and that it gave
room, at least, for an inference that the known conduct of the person
accused was such as made it probable that he was still more wicked than
he appeared; they knew that the credulity of some might admit the charge
upon evidence that was rejected by the court, and that difference of
party, or private quarrels, might provoke others to propagate reports
once published, even when in their own opinion they were sufficiently
confuted; and that, therefore, an innocent man might languish in infamy
by a groundless charge, though he should escape any legal penalty.
It has, therefore, my lords, been immemorially established in this
nation, that no man can be apprehended, or called into question for any
crime till there shall be proof.
First, that there is a _corpus delicti_, a crime really and visibly
committed; thus before a process can be issued out for inquiring after a
murderer, it must be apparent that a murder has been perpetrated, the
dead body must be exposed to a jury, and it must appear to them that he
died by violence. It is not sufficient that a man is lost, and that it
is probable that he is murdered, because no other reason of his absence
can be assigned; he must be found with the marks of force upon him, or
some circumstances that may make it credible, that he did not perish by
accident, or his own hand.
It is required, secondly, my lords, that he who apprehends any person as
guilty of the fact thus apparently committed, must suspect him to be the
criminal; for he is not to take an opportunity, afforded him by the
commission of an illegal act, to gratify any secret malice, or wanton
curiosity; or to drag to a solemn examination, those against whom he
cannot support an accusation.
And, my lords, that suspicion may not ravage the reputation of Britons
without control; that men may not give way to the mere suggestions of
malevolence, and load the characters of those with atrocious wickedness,
whom, perhaps, they have no real reason to believe more depraved than
the bulk of mankind, and whose failings may have been exaggerated in
their eyes by contrariety of opinion, or accidental competition, it is
required in the third place, my lords, that whoever apprehends or
molests another on suspicion of a crime, shall be able to give the
reasons of his suspicion, and to prove them by competent evidence.
These, my lords, are three essentials which the wisdom of our ancestors
has made indispensable previous to the arrest or imprisonment of the
meanest Briton; it must appear, that there is a crime committed, that
the person to be seized is suspected of having committed it, and that
the suspicion is founded upon probability. Requisites so reasonable in
their own nature, so necessary to the protection of every man's quiet
and reputation, and, by consequence, so useful to the security and
happiness of society, that, I suppose, they will need no support or
vindication. Every man is interested in the continuance of this method
of proceeding, because no man is secure from suffering by the
interruption or abolition of it.
Such, my lords, is the care and caution which the law directs in the
first part of any criminal process, the detainment of the person
supposed guilty; nor is the method of trial prescribed with less regard
to the security of innocence.
It is an established maxim, that no man can be obliged to accuse
himself, or to answer any questions which may have any tendency to
discover what the nature of his defence requires to be concealed. His
guilt must appear either by a voluntary and unconstrained confession,
which the terrours of conscience have sometimes extorted, and the
notoriety of the crime has at other times produced, or by the deposition
of such witnesses as the jury shall think worthy of belief.
To the credibility of any witness it is always requisite that he be
disinterested, that his own cause be not involved in that of the person
who stands at the bar, that he has no prospect of advancing his fortune,
clearing his reputation, or securing his life. For it is made too plain
by daily examples, that interest will prevail over the virtue of most
men, and that it is not safe to believe those who are strongly tempted
to deceive.
There are cases, my lords, where the interest of the person offering his
evidence is so apparent, that he is not even admitted to be heard; and
any benefit which may possibly be proposed, is admitted as an objection
to evidence, and weakens it in a measure proportionate to the distance
of the prospect and the degree of profit.
Such are the rules hitherto followed in criminal proceedings, the
violation of which has been always censured as cruelty and oppression,
and perhaps always been repented even by those who proposed and defended
it, when the commotions of party have subsided, and the heat of
opposition and resentment has given way to unprejudiced reflection.
Of these rules, my lords, it is not necessary to produce any defence
from the practice of distant nations, because it is sufficient in the
present case, that they are established by the constitution of this
country, to which every Briton has a right to appeal; for how can any
man defend his conduct, if having acted under one law, he is to be tried
by another?
Let us, therefore, my lords, apply these rules to the present bill, and
inquire what regard appears to have been paid to them by the commons,
and how well we shall observe them by concurring in their design.
With respect to the first, by which it is required, that there be a
known and manifest crime, it does not appear to have engaged the least
attention in the other house; for no fact is specified in the bill, upon
which a prosecution can be founded, and, therefore, to inquire after
evidence is somewhat preposterous; it is nothing less than to invite men
to give their opinion without a subject, and to answer without a
question.
It may be urged, indeed, that there is a universal discontent over the
whole nation; that the clamour against the person mentioned in the bill,
has been continued for many years; that the influence of the nation is
impaired in foreign countries; that our treasury is exhausted; that our
liberties have been attacked, our properties invaded, and our morals
corrupted; but these are yet only rumours, without proof, and without
legal certainty; which may, indeed, with great propriety give occasion
to an inquiry, and, perhaps, by that inquiry some facts may be
ascertained which may afford sufficient reasons for farther procedure.
But such, my lords, is the form of the bill now before us, that if it
should pass into a statute, it would, in my opinion, put a stop to all
future inquiry, by making those incapable of giving evidence, who have
had most opportunities of knowing those transactions, which have given
the chief occasion of suspicion, and from whom, therefore, the most
important information must naturally be expected.
The first requisite qualification of a witness, whether we consult
natural equity and reason, or the common law of our own country, is
disinterestedness; an indifference, with regard to all outward
circumstances, about the event of the trial at which his testimony is
required. For he that is called as a witness where he is interested, is
in reality giving evidence in his own cause.
But this qualification, my lords, the bill now before us manifestly
takes away; for every man who shall appear against the person into whose
conduct the commons are inquiring, evidently promotes, in the highest
degree, his own interest by his evidence, as he may preclude all
examination of his own behaviour, and secure the possession of that
wealth which he has accumulated by fraud and oppression, or, perhaps,
preserve that life which the justice of the nation might take away.
Nothing, my lords, is more obvious, than that this offer of indemnity
may produce perjury and false accusation; nothing is more probable, than
that he who is conscious of any atrocious villanies, which he cannot
certainly secure from discovery, will snatch this opportunity of
committing one crime more, to set himself free from the dread of
punishment, and blot out his own guilt for ever, by charging lord ORFORD
as one of his accomplices.
It may be urged, my lords, that he who shall give false evidence,
forfeits the indemnity to which the honest witness is entitled; but let
us consider why this should be now, rather than in any former time,
accounted a sufficient security against falsehood and perjury. It is at
all times criminal, and at all times punishable, to commit perjury; and
yet it has been hitherto thought necessary, not only to deter it by
subsequent penalties, but to take away all previous temptations; no
man's oath will be admitted in his own cause, though offered at the
hazard of the punishment inflicted upon perjury. To offer indemnity to
invite evidence, and to deter them from false accusations by the
forfeiture of it, even though we should allow to the penal clause all
the efficacy which can be expected by those who proposed it, is only to
set one part of the bill at variance with the other, to erect and
demolish at the same time.
But it may be proved, my lords, that the reward will have more influence
than the penalty; and that every man who can reason upon the condition
in which he is placed by this bill, will be more incited to accuse lord
ORFORD, however unjustly, by the prospect of security, than intimidated
by the forfeiture incurred by perjury.
For, let us suppose, my lords, a man whose conduct exposes him to
punishment, and who knows that he shall not long be able to conceal it;
what can be more apparently his interest, than to contrive such an
accusation as may complicate his own wickedness with some transactions
of the person to whom this bill relates? He may, indeed, be possibly
confuted, and lose the benefit offered by the state; but the loss of it
will not place him in a condition more dangerous than that which he was
in before; he has already deserved all the severity to which perjury
will expose him, and by forging a bold and well-connected calumny, he
has at least a chance of escaping.
Let us suppose, my lords, that the bill now under our consideration,
assigned a pecuniary reward to any man who should appear against this
person, with a clause by which he that should accuse him falsely should
be dismissed without his pay; would not this appear a method of
prosecution contrary to law, and reason, and justice? Would not every
man immediately discover, that the witnesses were bribed, and therefore
they would deserve no credit? And what is the difference between the
advantage now offered and any other consideration, except that scarcely
any other reward can be offered so great, and consequently so likely to
influence?
It is to be remembered, that the patrons of this bill evidently call for
testimony from the abandoned and the profligate, from men whom they
suppose necessarily to confess their own crimes in their depositions;
and surely wretches like these ought not to be solicited to perjury by
the offer of a reward.
How cruel must all impartial spectators of the publick transactions
account a prosecution like this? What would be your lordships' judgment,
should you read, that in any distant age, or remote country, a man was
condemned upon the evidence of persons publickly hired to accuse him,
and who, by their own confession, were traitors to their country?
That wickedness, my lords, should be extirpated by severity, and justice
rigorously exercised upon publick offenders, is the uncontroverted
interest of every country; and therefore it is not to be doubted, that
in all ages the reflections of the wisest men have been employed upon
the most proper methods of detecting offences; and since the scheme now
proposed has never been practised, or never but by the most oppressive
tyrants, in the most flagitious times, it is evident, that it has been
thought inconsistent with equity, and of a tendency contrary to publick
happiness.
I am very far, my lords, from desiring that any breach of national trust
should escape detection, or that a publick office should afford security
to bribery, extortion, or corruption. I am far from intending to
patronise the conduct of the person mentioned in the present bill. Let
the commons proceed with the utmost severity, but let them not deviate
from justice. If he has forfeited his fortune, his honours, or his life,
let them by a legal process be taken from him; but let it always be
considered, that he, like every other man, is to be allowed the common
methods of self-defence; that he is to stand or fall by the laws of his
country, and to retain the privileges of a Briton, till it shall appear
that he has forfeited them by his crimes.
To censure guilt, my lords, is undoubtedly necessary, and to inquire
into the conduct of men in power, incontestably just; but by the laws
both of heaven and earth, the means as well as the end are prescribed,
_rectum recte, legitimum legitime faciendum_; we must not only propose a
good end in our conduct, but must attain it by that method which equity
directs, and the law prescribes.
How well, my lords, the law has been observed hitherto, on this
occasion, I cannot but propose that your lordships should consider. It
is well known, that the commons cannot claim a right to administer an
oath, and therefore can only examine witnesses by simple
interrogatories. That they cannot confer upon a committee the power
which they have not themselves, is indubitably certain; and therefore it
is evident, that they have exceeded their privileges, and proceeded in
their inquiry by methods which the laws of this nation will not support.
That they cannot, my lords, in their own right administer an oath, they
apparently confess, by the practice of calling in, on that occasion, a
justice of the peace, who, as soon as he has performed his office, is
expected to retire. This, my lords, is an evident elusion; for it is
always intended, that he who gives an oath, gives it in consequence of
his right to take the examination; but in this case the witness takes an
oath, _coram non judice_, before a magistrate that has no power to
interrogate him, and is interrogated by those who have no right to
require his oath.
Such, my lords, is my opinion of the conduct of the committee of the
house of commons, of whom I cannot but conclude that they have assumed a
right which the constitution of our government confers only on your
lordships, as a house of senate, a court of judicature; and therefore
cannot think it prudent to confirm their proceedings by an approbation
of this bill.
The commons may indeed imagine that the present state of affairs makes
it necessary to proceed by extraordinary methods; they may believe that
the nation will not be satisfied without a discovery of those frauds
which have been so long practised, and the punishment of those men by
whom they have so long thought themselves betrayed and oppressed; but
let us consider, that clamour is not evidence, and that we ought not
either to recede from justice, or from our own rights, to satisfy the
expectations of the people.
To remonstrate against this invasion of our privileges, my lords, might
be at this juncture improper; the dispute might, in this time of
commotion and vicissitude, distract the attention of those to whom the
publick affairs are committed, retard the business of the nation, and
give our enemies those advantages which they can never hope from their
own courage, or policy, or strength. It may, therefore, be prudent on
this occasion, only not to admit the right which they have assumed, to
satisfy ourselves with retaining our privileges, without requiring any
farther confirmation of them, and only defeat the invasion of them by
rejecting the bill, which is, indeed, of such a kind, as cannot be
confirmed without hazarding not only our own rights, but those of every
Briton.
For here is a species of testimony invited, which is hitherto unknown to
our law, and from which it may be difficult to tell who can be secure;
the witnesses are required to disclose all matters relating to the
conduct of _lord ORFORD, according to the best of their knowledge,
remembrance, or belief!_ A form of deposition, my lords, of great
latitude; a man's belief may be influenced by the report of others who
may deceive him, by his observation of circumstances, either remote in
themselves, or imperfectly discovered, or by his own reasonings, which
must be just or fallacious according to his abilities; but which must
yet have the same effect upon his belief, which they will influence, not
in proportion to their real strength, but to the confidence placed in
them by himself.
There is only one case, my lords, in which, by the common course of
proceedings, any regard is had to mere belief; and this evidence is only
accepted on that occasion, because no other can possibly be obtained.
When any claim is to be determined by written evidences, of which, in
order to prove their validity, it is necessary to inquire by whom they
were drawn or signed; those who are acquainted with the writing of a
dead person, are admitted to deliver, upon oath, their _belief_ that the
writing ascribed to him, was or was not his; but such secondary
witnesses are never called, when the person can be produced whose hand
is to be proved.
There is yet another reason for which it is improper to admit such
evidence as this bill has a tendency to promote. It is well known, that
in all the courts of common law, the person accused is in some degree
secured from the danger of being overborne by false accusations, by the
penalty which may be inflicted upon witnesses discovered to be perjured;
but in the method of examination now proposed, a method unknown to the
constitution, no such security can be obtained, for there is no
provision made by the laws for the punishment of a man who shall give
false evidence before a committee of the house of commons.
It may likewise be observed, that this bill wants one of the most
essential properties of a law, perspicuity and determinate meaning; here
is an indemnity promised to those who shall discover _all_ that they
_know, remember, or believe_. A very extensive demand, and which may,
therefore, be liable to more fallacies and evasions than can be
immediately enumerated or detected. For how can any one prove that he
has a claim to the indemnity? He may, indeed, make some discoveries, but
whether he does not conceal something, who can determine? May not such
reserves be suspected, when his answers shall not satisfy the
expectations of his interrogators? And may not that suspicion deprive
him of the benefit of the act? May not a man, from want of memory, or
presence of mind, omit something at his examination which he may appear
afterwards to have known? And since no human being has the power of
distinguishing exactly between faults and frailties, may not the defect
of his memory be charged on him as a criminal suppression of a known
fact? And may not he be left to suffer the consequences of his own
confession? Will not the bill give an apparent opportunity for
partiality? And will not life and death, liberty and imprisonment, be
placed in the hands of a committee of the commons? May they not be
easily satisfied with informations of one man, and incessantly press
another to farther discoveries? May they not call some men, notoriously
criminal, to examination, only to secure them from punishment, and set
them out of the reach of justice; and extort from others such answers as
may best promote their views, by declaring themselves unsatisfied with
the extent of their testimony? And will not this be an extortion of
evidence equivalent to the methods practised in the most despotick
governments, and the most barbarous nations?
It has always been the praise of this house to pay an equal regard to
justice and to mercy, and to follow, without partiality, the direction
of reason, and the light of truth; and how consistently with this
character, which it ought to be our highest ambition to maintain, we can
ratify the present bill, your lordships are this day to consider. It is
to be inquired, whether to suppose a man guilty, only because some guilt
is suspected, be agreeable to justice; and whether it be rational before
there is any proof of a crime, to point out the criminal.
We are to consider, my lords, whether it is not unjust to hear, against
any man, an evidence who is hired to accuse him, and hired with a reward
which he cannot receive without confessing himself a man unworthy of
belief. It is to be inquired, whether the evidence of a man who declares
only what he _believes_, ought to be admitted, when the nature of the
crimes allows stronger proof; and whether any man ought to be examined
where he cannot be punished if he be found perjured.
A natural and just regard to our own rights, on the preservation of
which the continuance of the constitution must depend, ought to, alarm
us at the appearance of any attempt to invade them; and the necessity of
known forms of justice, ought to incite us to the prevention of any
innovation in the methods of prosecuting offenders.
For my own part, my lords, I cannot approve either the principles or
form of the bill. I think it necessary to proceed by known precedents,
when there is no immediate danger that requires extraordinary measures,
of which I am far from being convinced that they are necessary on the
present occasion. I think that the certainty of a crime ought to precede
the prosecution of a criminal, and I see that there is, in the present
case, no crime attempted to be proved. The commons have, in my opinion,
already exceeded their privileges, and I would not willingly confirm
their new claims. For these reasons, my lords, I openly declare, that I
cannot agree to the bill's being read a second time.
Lord TALBOT spoke next, to this effect:--My lords, so high is my
veneration for this great assembly, that it is never without the utmost
efforts of resolution that I can prevail upon myself to give my
sentiments upon any question that is the subject of debate, however
strong may be my conviction, or however ardent my zeal.
But in a very particular degree do I distrust my own abilities, when I
find my opinion contrary to that of the noble lord who has now spoken;
and it is no common perplexity to be reduced to the difficult choice of
either suppressing my thoughts, or exposing them to so disadvantageous a
contrast.
Yet, since such is my present state, that I cannot avoid a declaration
of my thoughts on this question, without being condemned in my own
breast as a deserter of my country, nor utter them without the danger of
becoming contemptible in the eyes of your lordships; I will, however,
follow my conscience, rather than my interest; and though I should lose
any part of my little reputation, I shall find an ample recompense from
the consciousness that I lost it in the discharge of my duty, on an
occasion which requires from every good man the hazard of his life.
The arguments of the noble lord have had upon me an effect which they
never, perhaps, produced on any part of his audience before; they have
confirmed me in the contrary opinion to that which he has endeavoured to
maintain. It has been remarked, that in some encounters, not to be put
to flight is to obtain the victory; and, in a controversy with the noble
lord, not to be convinced by him, is to receive a sufficient proof that
the cause in which he is engaged is not to be defended by wit,
eloquence, or learning.
On the present question, my lords, as on all others, he has produced all
that can be urged, either from the knowledge of past ages, or experience
of the present; all that the scholar or the statesman can supply has
been accumulated, one argument has been added to another, and all the
powers of a great capacity have been employed, only to show that right
and wrong cannot be confounded, and that fallacy can never strike with
the force of truth.
When I survey the arguments of the noble lord, disrobed of those
ornaments which his imagination has so liberally bestowed upon them, I
am surprised at the momentary effect which they had upon my mind, and
which they could not have produced had they been clothed in the language
of any other person.
For when I recollect, singly, the particular positions upon which his
opinion seems to be founded, I do not find them by any means
uncontrovertible; some of them seem at best uncertain, and some
evidently mistaken.
That there is no apparent crime committed, and that, therefore, no legal
inquiry can be made after the criminal, I cannot hear without
astonishment. Is our commerce ruined, are our troops destroyed, are the
morals of the people vitiated, is the senate crowded with dependants,
are our fleets disarmed, our allies betrayed, and our enemies supported
without a crime? Was there no certainty of any crime committed, when it
was moved to petition his majesty to dismiss this person from his
councils for ever.
It has been observed, my lords, that nothing but a sight of the dead
body can warrant a pursuit after the murderer; but this is a concession
sufficient for the present purpose; for if, upon the sight of a murdered
person, the murderer may lawfully be inquired after, and those who are
reasonably suspected detained and examined; with equal reason, my lords,
may the survey of a ruined nation, a nation oppressed with burdensome
taxes, devoured by the caterpillars of a standing army, sunk into
contempt in every foreign court, and repining at the daily decay of its
commerce, and the daily multiplication of its oppressors, incite us to
an inquiry after the author of its miseries.
It is asserted, that no man ought to be called into question for any
crime, who is not suspected of having committed it. This, my lords, is a
rule not only reasonable in itself, but so naturally observed, that I
believe it was never yet broken; and am certain, no man will be charged
with the violation of it, for accusing this person as an enemy to his
country.
But he that declares his suspicion, may be called upon to discover upon
what facts it is founded; nor will this part of the law produce any
difficulty in the present case; for as every man in the nation suspects
this person of the most enormous crimes, every man can produce
sufficient arguments to justify his opinion.
On all other occasions, my lords, publick fame is allowed some weight:
that any man is universally accounted wicked, will add strength to the
testimony brought against him for any particular offence; and it is at
least a sufficient reason for calling any man to examination, that a
crime is committed, and he is generally reported to be the author of it.
That this is the state of the person into whose conduct the commons are
now inquiring; that he is censured by every man in the kingdom, whose
sentiments are not repressed by visible influence; that he has no
friends but those who have sold their integrity for the plunder of the
publick; and that all who are not enemies to their country, have, for
many years, incessantly struggled to drag him down from the pinnacle of
power, and expose him to that punishment which he has so long deserved,
and so long defied, is evident beyond contradiction.
Let it not, therefore, be urged, my lords, that there is no certainty of
a crime which is proved to the conviction of every honest mind; let it
not be said that it is unreasonable to suspect this man, whom the voice
of the people, a voice always to be reverenced, has so long condemned.
The method of procuring evidence against him by an act of indemnity has
been represented by the noble lord as not agreeable to justice or to
law: in the knowledge of the law I am far from imagining myself able to
contend with him; but I think it may not be improper to observe, that a
person of the highest eminence in that profession, whose long study and
great abilities give his decisions an uncommon claim to authority and
veneration, and who was always considered in this house with the highest
regard, appears to have entertained a very different opinion.
It was declared by him, without the least restriction, that all means
were lawful which tended to the discovery of truth; and, therefore, the
publick may justly expect that extraordinary methods should be used upon
occasions of uncommon importance.
Nor does this expedient appear to me very remote from the daily practice
of promising pardon to thieves, on condition that they will make
discoveries by which their confederates may be brought to justice.
If we examine only the equity of this procedure, without regard to the
examples of former times, it appears to me easily defensible; for what
can be more rational than to break a confederacy of wretches combined
for the destruction of the happiness of mankind, by dividing their
interest, and making use, for the publick good, of that regard for their
own safety, which has swallowed up every other principle of action?
It is admitted that wickedness ought to be punished, and it is
universally known that punishment must be preceded by detection; any
method, therefore, that promotes the discovery of crimes may be
considered as advantageous to the publick.
As there is no wickedness of which the pernicious consequences are more
extensive, there is none which ought more diligently to be prevented, or
more severely punished, than that of those men who have dared to abuse
the power which their country has put into their hands; but how they can
be convicted by any other means than those which are now proposed, I
confess myself unable to discover; for by a very small degree of
artifice, a man invested with power may make every witness a partner of
his guilt, and no man will be able to accuse him, without betraying
himself. In the present case it is evident, that the person of whose
actions the bill now before us is designed to produce a more perfect
discovery, has been combined with others in illegal measures, in
measures which their own security obliges them to conceal, and which,
therefore, the interest of the publick demands to be divulged.
That Paxton has distributed large sums for purposes which he dares not
discover, we are informed by the reports of the secret committee; and I
suppose every body suspects that they were distributed as rewards for
services which the nation thinks not very meritorious, and I believe no
man will ask what reason can be alleged for such suspicions.
But since it may be possibly suggested that Paxton expended these sums
contrary to his master's direction, or without his knowledge, it may be
demanded, whether such an assertion would not be an apparent proof of a
very criminal degree of negligence in a man intrusted with the care of
the publick treasure?
Thus, my lords, it appears in my opinion evident, that either he has
concurred in measures which his servile agent, the mercenary tool of
wickedness, is afraid to confess, or that he has stood by, negligent of
his trust, and suffered the treasure of the nation to be squandered by
the meanest wretches without account.
That the latter part of the accusation is undoubtedly just, the report
of the commons cannot but convince us. It appears that for near eight
years, Paxton was so high in confidence, that no account was demanded
from him; he bestowed pensions at pleasure; he was surrounded, like his
master, by his idolaters; and after the fatigue of cringing in one
place, had an opportunity of purchasing the taxes of the nation, the
gratification of tyranny in another.
I presume, my lords, that no man dares assert such a flagrant neglect of
so important an office, to be not criminal in a very high degree; to
steal in private houses that which is received in trust, is felony by
the statutes of our country; and surely the wealth of the publick ought
not to be less secured than that of individuals, nor ought he that
connives at robbery to be treated with more lenity than the robber.
Therefore, my lords, as I cannot but approve of the bill, I move that it
may be read a second time; and I hope the reasons which I have offered,
when joined with others, which I expect to hear from lords of a greater
experience, knowledge, and capacity, will induce your lordships to be of
the same opinion.
Lord HERVEY spoke next, to this effect:--My lords, as the bill now
before us is of a new kind, upon an occasion no less new, I have
endeavoured to bestow upon it a proportionate degree of attention, and
have considered it in all the lights in which I could place it; I have,
in my imagination, connected with it all the circumstances with which it
is accompanied, and all the consequences that it may produce either to
the present age, or to futurity; but the longer I reflect upon it, the
more firmly am I determined to oppose it; nor has deliberation any other
effect, than to crowd my thoughts with new arguments against it, and to
heighten dislike to detestation.
It must, my lords, immediately occur to every man, at the first mention
of the method of proceeding now proposed, that it is such as nothing but
extreme necessity can vindicate; that the noble person against whom it
is contrived, must be a monster burdensome to the world; that his crimes
must be at once publick and enormous, and that he has been already
condemned by all maxims of justice, though he has had the subtilty to
escape by some unforeseen defect in the forms of law. It might be
imagined, my lords, that there were the most evident marks of guilt in
the conduct of the man thus censured, that he fled from the justice of
his country, that he had openly suborned witnesses in his favour, or
had, by some artifice certainly known, obstructed the evidence that was
to have been brought against him. It might at least be reasonably
conceived, that his crimes were of such a kind as might in their own
nature easily be concealed, and that, therefore, some extraordinary
measures were necessary for the discovery of wickedness which lay out of
the reach of common inquiry.
But, my lords, none of these circumstances can be now alleged; for there
is no certainty of any crime committed, nor any appearance of
consciousness or fear in the person accused, who sets his enemies at
defiance in full security, and declines no legal trial of his past
actions; of which it ought to be observed, that they have, by the nature
of his employments, been so publick, that they may easily be examined
without recourse to a new law to facilitate discoveries.
The bill, therefore, is, my lords, at least unnecessary, and an
innovation not necessary ought always to be rejected, because no man can
foresee all the consequences of new measures, or can know what evils
they may create, or what subsequent changes they may introduce. The
alteration of one part of a system naturally requires the alteration of
another.
But, my lords, that there is no necessity for this law now proposed, is
not the strongest argument that may be brought against it, for there is
in reality a necessity that it should be rejected. Justice and humanity
are necessarily to be supported, without which no society can subsist,
nor the life or property of any man be enjoyed with security: and
neither justice nor humanity can truly be said to reside, where a law
like this has met with approbation.
My lords, to prosecute any man by such methods, is to overbear him by
the violence of power, to take from him all the securities of innocence,
and divest him of all the means of self-defence. It is to hire against
him those whose testimonies ought not to be admitted, if they were
voluntarily produced, and of which, surely, nothing will be farther
necessary to annihilate the validity, than to observe that they are the
depositions of men who are villains by their own confession, and of whom
the nation sees, that they may save their lives by a bold accusation,
whether true or false.
That the bill will, indeed, be effectual to the purposes designed, that
it will crowd the courts of justice with evidence, and open scenes of
wickedness never discovered before, I can readily believe; for I cannot
imagine that any man who has exposed his life by any flagrant crime,
will miss so fair an opportunity of saving it by another. I shall
expect, my lords, that villains of all denominations, who are now
skulking in private retreats, who are eluding the officers of justice,
or flying before the publick pursuit of the country, will secure
themselves by this easy expedient; and that housebreakers, highwaymen,
and pickpockets, will come up in crowds to the bar, charge the earl of
ORFORD as their accomplice, and plead this bill as a security against
all inquiry.
That this supposition, however wild and exaggerated it may seem, may not
be thought altogether chimerical; that it may appear with how little
consideration this bill has been drawn, and how easily it may be
perverted to the patronage of wickedness, I will lay before your
lordships such a plea as may probably be produced by it.
A man whom the consciousness of murder has for some time kept in
continual terrours, may clear himself for ever, by alleging, that he was
commissioned by the earl of ORFORD to engage, with any certain sum, the
vote or interest of the murdered person; that he took the opportunity of
a solitary place to offer him the bribe, and prevail upon him to comply
with his proposals; but that finding him obstinate and perverse, filled
with prejudices against a wise and just administration, and inclined to
obstruct the measures of the government, he for some time expostulated
with him; and being provoked by his contumelious representations of the
state of affairs, he could no longer restrain the ardour of his loyalty,
but thought it proper to remove from the world a man so much inclined to
spread sedition among the people; and that, therefore, finding the place
convenient, he suddenly rushed upon him and cut his throat.
Thus, my lords, might the murderer represent his case, perhaps, without
any possibility of a legal confutation; thus might the most atrocious
villanies escape censure, by the assistance of impudence and cunning.
A bill like this, my lords, is nothing less than a proscription; the
head of a citizen is apparently set to sale, and evidence is hired, by
which the innocent and the guilty may be destroyed with equal facility.
It is apparent, my lords, that they by whom this bill is proposed, act
upon the supposition that the noble person mentioned in it, is guilty of
all those crimes of which he is suspected; a supposition, my lords,
which it is unjust to make, and to which neither reason, nor the laws of
our country, will give countenance or support.
I, my lords, will much more equitably suppose him innocent; I will
suppose that he has, throughout all the years of his administration,
steadily prosecuted the best ends, by the best means; that if he has
sometimes been mistaken or disappointed, it has been neither by his
negligence nor ignorance, but by false intelligence, or accidents not to
be foreseen; and that he has never either sacrificed his country to
private interest, or procured, by any illegal methods, the assistance
and support of the legislature; and I will ask your lordships, whether,
if this character be just, the bill ought to be passed, and doubt not
but every man's conscience will inform him, that it ought to be rejected
with the utmost indignation.
The reason, my lords, for which it ought to be rejected, is evidently
this, that it may bring innocence into danger. But, my lords, every man
before his trial is to be supposed innocent, and, therefore, no man
ought to be exposed to the hazards of a trial, by which virtue and
wickedness are reduced to a level. A bill like this ought to be marked
out as the utmost effort of malice, as a species of cruelty never known
before, and as a method of prosecution which this house has censured.
I did not, indeed, expect from those who have so long clamoured with
incessant vehemence against the measures of the ministry, such an open
confession of their own weakness. Nothing, my lords, was so frequently
urged, or so warmly exaggerated, as the impossibility of procuring
evidence against a man in power; nothing was more confidently asserted,
than that his guilt would be easily proved when his authority was at an
end; and that even his own agents would readily detect him, when they
were no longer dependant upon his favour.
The time, my lords, so long expected, and so ardently desired, is at
length come; this noble person whom they have so long pursued with
declamations, invectives, and general reproaches, has at length resigned
those offices which set him above punishment or trial; he is now without
any other security than that by which every other man is sheltered from
oppression, the publick protection of the laws of his country; but he is
yet found impregnable, he is yet able to set his enemies at defiance;
and they have, therefore, now, with great sagacity, contrived a method
by which he may be divested of the common privileges of a social being,
and may be hunted like a wild beast, without defence, and without pity.
Where, my lords, can it be expected that malice like this will find an
end? Is it not reasonable to imagine that if they should be gratified in
this demand, and should find even this expedient baffled by the
abilities which they have so often encountered without success, they
would proceed to measures yet more atrocious, and punish him without
evidence, whom they call to a trial without a crime.
It has been observed by the noble lord who spoke last, that there are
crimes mentioned in the report of the secret committee of the house of
commons, or that at least such facts are asserted in it, that an
accusation may, by easy deductions, be formed from them. The report of
that committee, my lords, with whatever veneration it may be mentioned,
by those whose purposes it happens to favour, or of whatever importance
it may be in the other house, is here nothing but a pamphlet, not to be
regarded as an evidence, or quoted as a writing of authority. It is only
an account of facts of which we know not how they were collected, and
which every one may admit or reject at his own choice, till they are
ascertained by proper evidence at our own bar, and which, therefore,
ought not to influence our opinion in the present debate.
Nor is the bill, my lords, only founded upon principles inconsistent
with the constitution of this nation, apparently tending to the
introduction of a new species of oppression, but is in itself such as
cannot be ratified without injury to the honour of this great assembly.
In examining the bill, my lords, I think it not necessary to dwell upon
the more minute and trivial defects of the orthography and expression,
though they are such as might justly give occasion for suspecting that
they by whom it was written, were no less strangers to our language than
to our constitution. There are errours or falsehoods which it more
nearly concerns us to detect, and to which we cannot give any sanction,
without an evident diminution of our own authority.
It declares, my lords, that there is now an inquiry depending before the
senate, an assertion evidently false, for the inquiry is only before the
commons. Whether this was inserted by mistake or design, whether it was
intended to insinuate that the whole senatorial power was comprised in
the house of commons, or to persuade the nation that your lordships
concurred with them in this inquiry, it is not possible to determine;
but since it is false in either sense, it ought not to receive our
confirmation.
If we should pass the bill in its present state, we should not only
declare our approbation of the measures hitherto pursued by the commons,
by which it has been already proved, by the noble and learned lord who
spoke first against the bill, that they have not only violated the law,
but invaded the privileges of this house. We should not only establish
for ever in a committee of the house of commons, the power of examining
upon oath, by an elusive and equivocatory expedient, but we should in
effect vote away our own existence, give up at once all authority in the
government, and grant them an unlimited power, by acknowledging them the
senate, an acknowledgment which might, in a very short time, be quoted
against us, and from which it would not be easy for us to extricate
ourselves.
It has, indeed, been remarked, that there is a large sum of money
disbursed without account, and the publick is represented as apparently
injured, either by fraud or negligence; but it is not remembered that
none but his majesty has a right to inquire into the distribution of the
revenue appropriated to the support of his family and dignity, and the
payment of his servants, and which, therefore, cannot, in any degree, be
called publick money, or fall under the cognizance of those whom it
concerns to inspect the national accounts. Either the civil list must be
exempt from inquiries, or his majesty must be reduced to a state below
that of the meanest of his subjects; he can enjoy neither freedom nor
property, and must be debarred for ever from those blessings which he is
incessantly labouring to secure to others.
There is, likewise, another consideration, which my regard for the
honour of this assembly suggested to me, and of which I doubt not but
that all your lordships will allow the importance. The noble person who
is pointed out in this bill as a publick criminal, and whom all the
villains of the kingdom are invited to accuse, is invested with the same
honours as ourselves, and has a son who has for many years possessed a
seat amongst us; let us not, therefore, concur with the commons to load
our own house with infamy, and to propagate reproach, which will at last
fix upon ourselves.
Innumerable are the objections, my lords, which might yet be urged, and
urged without any possibility of reply; but as I have already been heard
with so much patience, I think what has been already mentioned
sufficient to determine the question: and as I doubt not but the other
defects and absurdities will be observed, if it be necessary, by some
other lords, I shall presume only to add, that as the bill appears to me
contrary to the laws of this nation, to the common justice of society,
and to the general reason of mankind, as it must naturally establish a
precedent of oppression, and confirm a species of authority in the other
house which was either never claimed before, or always denied; as I
think the most notorious and publick criminal ought not to be deprived
of that method of defence which the established customs of our country
allow him, and believe the person mentioned in this bill to deserve
rather applauses and rewards, than censures and punishments, I think
myself obliged to oppose it, and hope to find your lordships unanimous
in the same opinion.
Then the duke of ARGYLE answered, in substance as follows:--My lords,
whatever may be the fate of this question, I have little hope that it
will be unanimously decided, because I have reason to fear that some
lords have conceived prejudices against the bill, which hinder them from
discovering either its reasonableness or its necessity; and am convinced
that others who approve the bill, can support their opinion by arguments
from which, as they cannot be confuted, they never will recede.
Those arguments which have influenced my opinion, I will lay before your
lordships, and doubt not of showing that I am very far from giving way
to personal malice, or the prejudices of opposition; and that I regard
only the voice of reason, and the call of the nation.
Calmness and impartiality, my lords, have been, with great propriety,
recommended to us by the noble lord who spoke first in this debate; and
I hope he will discover by the moderation with which I shall deliver my
sentiments on this occasion, how much I reverence his precepts, and how
willingly I yield to his authority.
I am at least certain, that I have hitherto listened to the arguments
that have been offered on either side with an attention void of
prejudice; I have repressed no motions of conviction, nor abstracted my
mind from any difficulty, to avoid the labour of solving it: I have been
solicitous to survey every position in its whole extent, and trace it to
its remotest consequences; I have assisted the arguments against the
bill by favourable suppositions, and imaginary circumstances, and have
endeavoured to divest my own opinion of some appendant and accidental
advantages, that I might view it in a state less likely to attract
regard; and yet I cannot find any reason by which I could justify myself
to my country or my conscience, if I should concur in rejecting this
bill, or should not endeavour to promote it. I am not unacquainted, my
lords, with the difficulties that obstruct the knowledge of our own
hearts, and cannot deny that inclination may be sometimes mistaken for
conviction; and men even wise and honest, may imagine themselves to
believe what, in reality, they only wish: but this, my lords, can only
happen for want of attention, or on sudden emergencies, when it is
necessary to determine with little consideration, while the passions
have not yet time to subside, and reason is yet struggling with the
emotions of desire.
In other circumstances, my lords, I am convinced that no man imposes on
himself without conniving at the fraud, without consciousness that he
admits an opinion which he has not well examined, and without consulting
indolence rather than reason; and, therefore, my lords, I can with
confidence affirm, that I now declare my real opinion, and that if I
err, I err only for want of abilities to discover the truth; and hope it
will appear to your lordships, that I have been misled at least by
specious arguments, and deceived by fallacious appearances, which it is
no reproach not to have been able to detect.
It will, my lords, be granted, I suppose, without hesitation, that the
law is consistent with itself; that it never at the same time commands
and prohibits the same action; that it cannot be at once violated and
observed. From thence it will inevitably follow, that where the
circumstances of any transaction are such, that the principles of that
law by which it is cognizable are opposite to each other, some
expedients may be found by which these circumstances may be altered.
Otherwise a subtle or powerful delinquent will always find shelter in
ambiguities, and the law will remain inactive, like a balance loaded
equally on each side.
On the present occasion, my lords, I pronounce with the utmost
confidence, as a maxim of indubitable certainty, _that the publick has a
claim to every man's evidence_, and that no man can plead exemption from
this duty to his country. But those whom false gratitude, or contracted
notions of their own interest, or fear of being entangled in the snares
of examination, prompt to disappoint the justice of the publick, urge
with equal vehemence, and, indeed, with equal truth, that _no man is
obliged to accuse himself_, and that the constitution of Britain allows
no man's evidence to be extorted from him to his own destruction.
Thus, my lords, two of the first principles of the British law, though
maxims equally important, equally certain, and equally to be preserved
from the least appearance of violation, are contradictory to each other,
and neither can be obeyed, because neither can be infringed.
How then, my lords, is this contradiction to be reconciled, and the
necessity avoided of breaking the law on one side or the other, but by
the method now proposed, of setting those whose evidence is required,
free from the danger which they may incur by giving it.
The end of the law is the redress of wrong, the protection of right, and
the preservation of happiness; and the law is so far imperfect as it
fails to produce the end for which it is instituted; and where any
imperfection is discovered, it is the province of the legislature to
supply it.
By the experience, my lords, of one generation after another, by the
continued application of successive ages, was our law brought to its
present accuracy. As new combinations of circumstances, or unforeseen
artifices of evasion, discovered to our ancestors the insufficiency of
former provisions, new expedients were invented; and as wickedness
improved its subtilty, the law multiplied its powers and extended its
vigilance.
If I should, therefore, allow, what has been urged, that there is no
precedent of a bill like this, what can be inferred from it, but that
wickedness has found a shelter that was never discovered before, and
which must be forced by a new method of attack? And what then are we
required to do more than has been always done by our ancestors, on a
thousand occasions of far less importance?
I know not, my lords, whether it be possible to imagine an emergence
that can more evidently require the interposition of the legislative
power, than this which is now proposed to your consideration. The nation
has been betrayed in peace, and disgraced in war; the constitution has
been openly invaded, the votes of the commons set publickly to sale, the
treasures of the publick have been squandered to purchase security to
those by whom it was oppressed, the people are exasperated to madness,
the commons have begun the inquiry that has been for more than twenty
years demanded and eluded, and justice is on a sudden insuperably
retarded by the deficiency of the law.
Surely, my lords, this is an occasion that may justify the exertion of
unusual powers, and yet nothing either new or unusual is required; for
the bill now proposed may be supported both by precedents of occasional
laws, and parallel statutes of lasting obligation.
When frauds have been committed by the agents of trading companies,
bills of indemnity to those by whom any discoveries should be made, have
been proposed and passed without any of those dreadful consequences
which some noble lords have foreseen in this. I have never heard that
any man was so stupid as to mistake such a bill for a general act of
grace, or that the confession of any crimes was procured by it, except
of those which it was intended to detect; I have never been informed,
that any murderer was blessed with the acuteness of the noble lord, or
thought of flying to such an act as to a common shelter for villany.
Such suppositions, my lords, can be intended only to prolong a
controversy and weary an opponent; nor can such trifling exaggerations
contribute to any other end, than of discovering the fertility of
imagination, and the exuberance of eloquence.
For my part, my lords, I think passion and negligence equally culpable
in a debate like this; and cannot forbear to recommend seriousness and
attention, with the same zeal with which moderation and impartiality
have already been inculcated. He that entirely disregards the question
in debate, who thinks it too trivial for a serious discussion, and
speaks upon it with the same superficial gaiety with which he would
relate the change of a fashion, or the incidents of a ball, is not very
likely, either to discover or propagate the truth; and is less to be
pardoned, than he who is betrayed by passion into absurdities, as it is
less criminal to injure our country by zeal than by contempt.
That bills, without any essential difference from that which is now
before us, have been passed in favour of private companies, is
indisputably certain; it is certain that they never produced any other
effect, than such as were expected from them by those who promoted them.
It is evident, that the welfare of the nation is more worthy of our
regard than any separate company; that the whole, of more importance
than a part; and therefore, the same measures may be now used with far
greater justice, and with equal probability of success.
The necessity of the law now proposed, my lords, cannot more plainly
appear, than by reflecting on the absurdity of the pleas made use of for
refusing it, which, considered in the whole, contain only this
assertion, that the security of one man is to be preferred to justice,
to truth, to publick felicity; that a precedent is rather to be
established, which will for ever shelter every future minister from the
laws of our country; and that all our miseries are rather to be borne in
silence, or lamented in impotence, than the man, whom the whole nation
agrees to accuse as the author of them, should be exposed to the hazard
of a trial, even before those whom every tie of interest and
long-continued affection has united to him.
It is, indeed, objected, that by passing this bill, we shall transfer
the authority of trying him to the other house; that we shall give up
our privileges for ever, erect a new court of judicature, and overturn
the constitution.
I have long observed, my lords, how vain it is to argue against those
whose resolutions are determined by extrinsick motives, and have been
long acquainted with the art of disguising obstinacy, by an appearance
of reasons that have no weight, even in the opinion of him by whom they
are offered, and of raising clouds of objections, which, by the first
reply, will certainly be dissipated, but which, at least, fill the mouth
for a time, and preserve the disputant from the reproach of adhering to
an opinion, in vindication of which he had nothing to say.
Of this kind is the objection which I am now to remove, though I remove
it only to make way for another, for those can never be silenced who can
satisfy themselves with arguments like this; however, those that offer
it expect it should be answered, and if it should be passed over in the
debate, will boast of its irrefragability, and imagine that they have
gained the victory by the superiority of their abilities, rather than of
their numbers.
That we shall, by passing this bill, give the commons a power which they
want at present, is unquestionably evident; but we shall only retrieve
that which they were never known to want before, the power of producing
evidence; evidence which we, my lords, must hear, and of whose
testimonies we shall reserve the judgment to ourselves. The commons will
only act as prosecutors, a character in which they were never conceived
to encroach upon our right. The man whose conduct is the subject of
inquiry, must stand his trial at our bar; nor has the bill any other
tendency, than to enable the commons to bring him to it.
What can be alleged against this design I know not; because I can
discover no objections which do not imply guilt, and guilt we are not
yet at liberty to suppose. I am so far from pressing this bill from any
motives of personal malevolence, that I am only doing, in the case of
the minister, what I should ardently desire to be done in my own, and
what no man would wish to obstruct, who was supported by a consciousness
of integrity, and stimulated by that honest sense of reputation which I
have always found the concomitant of innocence.
I hope I shall be readily believed by your lordships, when I assert,
once more, that I should not only forbear all opposition to a bill
intended to produce a scrutiny into my conduct, but that I should
promote it with all my interest, and solicit all my friends to expedite
and support it; for there was once a time, my lords, in which my
behaviour was brought to the test, a time when no expedient was
forgotten by which I might be oppressed, nor any method untried to
procure accusations against me.
Whether the present case in every circumstance will stand exactly
parallel to mine, I am very far from presuming to determine. I had
served my country with industry, fidelity, and success, and had received
the illustrious testimony of my conduct, the publick thanks of this
house. I was conscious of no crime, nor had gratified, in my services,
any other passion than my zeal for the publick. I saw myself
ignominiously discarded, and attacked by every method of calumny and
reproach. Nor was the malice of my enemies satisfied with destroying my
reputation without impairing my fortune: for this purpose a prosecution
was projected, a wretch was found out who engaged to accuse me, and
received his pardon for no other purpose; nor did I make any opposition
to it in this house, though I knew the intent with which it was
procured, and was informed that part of my estate was allotted him to
harden his heart, and strengthen his assertions.
This, my lords, is surely a precedent which I have a right to quote, and
which will vindicate me to your lordships from the imputation of
partiality and malignity; since it is apparent, that I do only in the
case of another, what I willingly submitted to, when an inquiry was
making into my conduct.
But, my lords, this is far from being the only precedent which may be
pleaded in favour of this bill; a bill which, in reality, concurs with
the general and regular practice of the established law, as will appear
to every one that compares it with the eighth section of the act for
preventing bribery; in which it is established as a perpetual law, that
he who, having taken a bribe, shall, within twelve months, inform
against him that gave it, shall be received as an evidence, and be
indemnified from all the consequences of his discovery.
To these arguments of reason and precedent, I will add one of a more
prevalent kind, drawn from motives of interest, which surely would
direct our ministers to favour the inquiry, and promote every expedient
that might produce a complete discussion of the publick affairs; since
they would show, that they are not afraid of the most rigorous scrutiny,
and are above any fears that the precedent which they are now
establishing may revolve upon themselves.
To elude the ratification of this bill, it was at first urged that there
was no proof of any crime; and when it was shown, that there was an
apparent misapplication of the publick money, it became necessary to
determine upon a more hardy assertion, and to silence malicious
reasoners, by showing them how little their arguments would be regarded.
It then was denied, with a spirit worthy of the cause in which it was
exerted, that the civil list was publick money.
Disputants like these, my lords, are not born to be confuted; it would
be to little purpose that any man should ask, whether the money allotted
for the civil list was not granted by the publick, and whether publick
grants did not produce publick money; it would be without any effect,
that the uses for which that grant is made should be enumerated, and the
misapplication of it openly proved; a distinction, or at least a
negative, would be always at hand, and obstinacy and interest would turn
argument aside.
Upon what principles, my lords, we can now call out for a proof of
crimes, and proceed in the debate as if no just reason of suspicion had
appeared, I am not able to conjecture; here is, in my opinion, if not
demonstrative proof, yet the strongest presumption of one of the
greatest crimes of which any man can be guilty, the propagation of
wickedness, of the most atrocious breach of trust which can be charged
upon a British minister, a deliberate traffick for the liberties of his
country.
Of these enormous villanies, however difficult it may now seem to
disengage him from them, I hope we shall see reason to acquit him at the
bar of this house, at which, if he be innocent, he ought to be desirous
of appearing; nor do his friends consult his honour, by endeavouring to
withhold him from it; if they, indeed, believe him guilty, they may then
easily justify their conduct to him, but the world will, perhaps,
require a more publick vindication.
These, my lords, are the arguments which have influenced me hitherto to
approve the bill now before us, and which will continue their
prevalence, till I shall hear them confuted; and, surely, if they are
not altogether unanswerable, they are surely of so much importance, that
the bill for which they have been produced, must be allowed to deserve,
at least, a deliberate examination, and may very justly be referred to a
committee, in which ambiguities may be removed, and inadvertencies
corrected.
Lord CHOLMONDELEY spoke next, to the following purpose:--My lords, this
bill is, in my opinion, so far from deserving approbation, that I am in
doubt whether I should retard the determination of the house, by laying
before you the reasons which influence me in this debate; nor, indeed,
could I prevail upon myself to enter into a formal discussion of a
question, on which I should have imagined that all mankind would have
been of one opinion, did not my reverence of the abilities of those
noble lords who have spoken in defence of the bill, incline me, even
against the conviction of my own reason, to suspect that arguments may
be offered in its favour, which I have not yet been able to discover;
and that those which have been produced, however inconclusive they have
seemed, will operate more powerfully when they are more fully displayed,
and better understood.
For this reason I shall lay before your lordships the objections which
arose in my mind when the bill was first laid before us, and which have
rather been strengthened than invalidated by the subsequent debate.
It appears, my lords, evident to me, that every man has a right to be
tried by the known laws of his country; that no man can be justly
punished by a law made after the commission of a fact, because he then
suffers by a law, against which he never transgressed; nor is any man to
be prosecuted by methods invented only to facilitate his condemnation,
because he ought to be acquitted, however guilty he may be supposed,
whom the established rules of justice cannot convict. The law, my lords,
is the measure of political, as conscience of moral right; and he that
breaks no law, may indeed be criminal, but is not punishable. The law
likewise prescribes the method of prosecuting guilt; and as we, by
omitting any crime in our laws, disable ourselves from punishing it,
however publick or flagrant, so by regulating the process in our courts
of justice, we give security to that guilt, which by that process cannot
be detected.