perhaps appear, will become evident, if we suppose a man brought to the
bar whose guilt was unquestionable, though it could not be legally
proved, because all those were dead who might have appeared against him.
It is certain that his good fortune would give him no claim to pardon,
and yet he could not be convicted, unless we suppose him weak enough to
accuse himself. In this case, my lords, it is not impossible, that some
might be prompted by their zeal to propose, that the foreign methods of
justice might be introduced, and the rack employed to extort, from his
own mouth, a confession of those crimes of which every one believed him
guilty.
With what horrour, my lords, such a proposal would be heard, how loudly
it would be censured, and how universally rejected, I need not say; but
must observe, that, in my opinion, the detestation would arise
principally from a sense of the injustice of exposing any man to
peculiar hardships, and distinguishing him to his disadvantage from the
rest of the community.
It will, my lords, not be easy to prove, that it is less agreeable to
justice to oblige a man to accuse himself, than to make use of
extraordinary methods of procuring evidence against him; because the
barriers of security which the law has fixed are equally broken in
either case, and the accused is exposed to dangers, from which he had
reason to believe himself sheltered by the constitution of his country.
This argument, my lords, I have mentioned, without endeavouring to
evince the innocence of the person whom this bill immediately regards;
because the intent of it is to show, that no man is to be deprived of
the common benefits of the constitution, and that the guilty have a
right to all the advantages which the law allows them. For guilt is
never to be supposed till it is proved, and it is therefore never to be
proved by new methods, merely because it is supposed.
That the method of procuring evidence now proposed, is new, my lords, I
think it no temerity to conclude; because the noble lords who have
endeavoured to defend it, have produced no instance of a parallel
practice, and their knowledge and acuteness is such, that they can only
have failed to discover them, because they are indeed nowhere to be
found.
In the case of bribery, my lords, the person accused has the privilege,
if he be innocent, of prosecuting his accuser for perjury, and is
therefore in less danger of being harassed by a false indictment. But,
my lords, this is not the only difference between the two cases; for he
that discovers a bribe received by himself, has no motives of interest
to prompt his evidence; he is only secured from suffering by his own
discovery, and might have been equally safe by silence and secrecy;
since the law supposes the crime out of the reach of detection,
otherwise than by the confession of the criminal.
But far different, my lords, are the circumstances of those who are now
invited to throng the courts of justice, and stun us with depositions
and discoveries. They are men supposed criminal by the indemnity which
is offered them; and by the nature of their crimes it is made at least
probable, that they are in daily hazard of discovery and punishment;
from which they are summoned to set themselves free for ever, by
accusing a man of whom it has not been yet proved that he can legally be
called to a trial.
Thus, my lords, in the law which the noble duke has mentioned as a
precedent for this bill, the accuser is only placed in a kind of
equilibrium, equally secure from punishment, by silence or by
information, in hope that the love of truth and justice will turn the
balance; in the bill now before us the witness is in continual danger by
withholding his evidence, and is restored to perfect safety by becoming
an accuser, and from making discoveries, whether true or false, has
every thing to hope and nothing to fear.
The necessity of punishing wickedness has been urged with great
strength; it has been unanswerably shown, by the advocates for this
bill, that vindictive justice is of the highest importance to the
happiness of the publick, and that those who may be injured with
impunity, are, in reality, denied the benefits of society, and can be
said to live in the state of uncivilized nature, in which the strong
must prey upon the weak.
This, my lords, has been urged with all the appearance of conviction and
sincerity, and yet has been urged by those who are providing a shelter
for the most enormous villanies, and enabling men who have violated
every precept of law and virtue, to bid defiance to justice, and to sit
at ease in the enjoyment of their acquisitions.
And what, my lords, is the condition, upon which wickedness is to be set
free from terrour, upon which national justice is to be disarmed, and
the betrayers of publick counsels, or the plunderers of publick
treasure, qualified for new trusts, and set on a level with untainted
fidelity? A condition, my lords, which wretches like these will very
readily accept, the easy terms of information and of perjury. They are
required only to give evidence against a man marked out for destruction,
and the guilt of partaking in his crimes is to be effaced by the merit
of concurring in his ruin.
It has, indeed, been a method of detection, frequently employed against
housebreakers and highwaymen, to proclaim a pardon for him that shall
convict his accomplices; but surely, my lords, this practice will not,
in the present question, be mentioned as a precedent. Surely it will not
be thought equitable to level with felons, and with thieves, a person
distinguished by his rank, his employments, his abilities, and his
services; a person, whose loyalty to his sovereign has never been called
in question, and whose fidelity to his country has at least never been
disproved.
These are measures, my lords, which I hope your lordships will never
concur to promote; measures not supported either by law or justice, or
enforced by any exigence of affairs, but dictated by persecution,
malice, and revenge; measures by which the guilty and the innocent may
be destroyed with equal facility, and which must, therefore, tend to
encourage wickedness as they destroy the security of virtue.
Lord CARTERET then rose, and spoke to the following effect:--My lords, I
have so long honoured the abilities, and so often concurred with the
opinion of the noble lord who began the debate, that I cannot, without
unusual concern, rise up now to speak in opposition to him; nor could
any other principle support me under the apparent disadvantage of a
contest so unequal, but the consciousness of upright intentions, and the
concurrence of the whole nation.
I cannot but consider myself, on this occasion, my lords, as the
advocate of the people of Britain, who, after continued oppressions,
losses, and indignities, after having been plundered and ridiculed,
harassed and insulted for complaining, have at length flattered
themselves that they should have an opportunity of appealing to our bar
for justice, and of securing themselves from future injuries, by the
punishment of those that had so long triumphed in their guilt,
proclaimed their defiance of justice, and declared that the laws were
made only for their security.
The expectations of the people have been frustrated by the unexpected
obstinacy of the agents of wickedness, by a plea that was never made use
of for the same purpose before, against which the known laws of the
nation have provided no remedy, and which your lordships are, therefore,
now called upon to overthrow.
That the nation calls loudly for an inquiry, that the misapplication of
the publick treasure is universally suspected, and that the person
mentioned in the bill is believed to be the chief author of that
misapplication; that at least those who have squandered it, have acted
by his authority, and been admitted to trust by his recommendation, and
that he is, therefore, accountable to the publick for their conduct, I
shall suppose, cannot be denied.
The nation, my lords, has a right to be gratified in their demands of an
inquiry, whatever be the foundation of their suspicions; since it is
manifest that it can produce no other effects than those of giving new
lustre to innocence, and quieting the clamours of the people, if it
should be found that the government has been administered with honesty
and ability; and it is not less evident that, if the general opinion is
well grounded, if our interest has been betrayed, and that money
employed only to corrupt the nation which was raised for the defence of
it, the severest punishment ought to be inflicted, that all future
ministers may be deterred from the same crimes by exemplary vengeance.
Thus, my lords, an inquiry appears, upon every supposition, useful and
necessary; but I cannot comprehend how it can be prosecuted by any other
method, than that of proposing an indemnity to those who shall make
discoveries. Every wicked measure, my lords, must involve in guilt all
who are engaged in it; and how easily it may be concealed from every
other person, may be shown by an example of a crime, which no man will
deny to have sometimes existed, and which, in the opinion of most, is
not very uncommon in this age.
It will be allowed, at least, that on some occasions, when a favourite
begins to totter, when strong objections are raised against the
continuance of a standing army, when a convention requires the
ratification of the legislature, or some fatal address is proposed to be
presented to the crown, a pecuniary reward may sometimes be offered, and
though that, indeed, be a supposition more difficult to be admitted,
sometimes, however rarely, accepted.
In this case, my lords, none but he that gives, and he that receives the
bribe can be conscious of it; at most, we can only suppose an
intervening agent to have any knowledge of it; and if even he is
admitted to the secret, so as to be able to make a legal discovery,
there must be some defect of cunning in the principals. Let us consider
from which of these any discovery can be probably expected, or what
reason can be alleged, for which either should expose himself to
punishment for the sake of ruining his associates.
It is, therefore, my lords, plain, from this instance, that without the
confession of some guilty person, no discovery can be made of those
crimes which are most detrimental to our happiness, and most dangerous
to our liberties. It is apparent that no man will discover his own
guilt; while there remains any danger of suffering by his confession, it
is certain that such crimes will be committed, if they are not
discouraged by the fear of punishment, and it cannot, therefore, be
denied that a proclamation of indemnity is necessary to their detection.
This, my lords, is not, as it has been alleged, a method unknown to our
constitution, as every man that reads the common papers will easily
discover. I doubt if there has been, for many years, a single month in
which some reward, as well as indemnity, has not been promised to any
man, who, having been engaged in a robbery, would discover his
confederates; and surely a method that is daily practised for the
security of private property, may be very rationally and justly adopted
by the legislature for the preservation of the happiness and the
property of the publick.
The punishment of wickedness, my lords, is undoubtedly one of the
essential parts of good government, and, in reality, the chief purpose
for which society is instituted; for how will that society in which any
individual may be plundered, enslaved, and murdered, without redress and
without punishment, differ from the state of corrupt nature, in which
the strongest must be absolute, and right and power always the same?
That constitution, therefore, which has not provided for the punishment,
and previously for the discovery of guilt, is so far in a state of
imperfection, and requires to be strengthened by new provisions. This,
my lords, is far from being our state, for we have in our hands a method
of detecting the most powerful criminals, a method in itself agreeable
to reason, recommended by the practice of our predecessors, and now
approved, once more, by the sanction of one of the branches of the
legislature.
The objections which have, on this occasion, been made against it, are
such as no law can escape, and which, therefore, can have no weight; and
it is no small confirmation of the expediency of it, that they by whom
it has been opposed have not been able to attack it with stronger
reasons, from which, if we consider their abilities, we shall be
convinced, that nothing has secured it but the power of truth.
It is inquired, by the noble lord, how we shall distinguish true from
false evidence; to which it may be very readily answered, that we shall
distinguish them by the same means as on any other occasion, by
comparing the allegations, and considering how every witness agrees with
others and with himself, how far his assertions are in themselves
probable, how they are confirmed or weakened by known circumstances, and
how far they are invalidated by the contrary evidence.
We shall, my lords, if we add our sanction to this bill, discover when
any man's accusation is prompted by his interest, as we might know
whether it was dictated by his malice.
It has been asked also, how any man can ascertain his claim to the
indemnity? To which it may be easily replied, that by giving his
evidence he acquires a right, till that evidence shall be proved to be
false.
The noble lord who spoke some time ago, and whose abilities and
qualities are such, that I cannot but esteem and admire him, even when
conviction obliges me to oppose him, has proposed a case in which he
seems to imagine that a murderer might secure himself from punishment,
by connecting his crime with some transaction in which the earl of
ORFORD should be interested. This case, my lords, is sufficiently
improbable, nor is it easy to mention any method of trial in which some
inconvenience may not be produced, in the indefinite complications of
circumstances, and unforeseen relations of events. It is known to have
happened once, and cannot be known not to have happened often, that a
person accused of murder, was tried by a jury of which the real murderer
was one. Will not this then be an argument against the great privilege
of the natives of this empire, _a trial by their equals?_
But, my lords, I am of opinion that the murderer would not be
indemnified by this bill, since he did not commit the crime by the
direction of the person whom he is supposed to accuse; nor would it have
any necessary connexion with his conduct, but might be suppressed in the
accusation, without any diminution of the force of the evidence. A man
will not be suffered to introduce his accusation with an account of all
the villanies of his whole life, but will be required to confine his
testimony to the affair upon which he is examined.
The committee, my lords, will distinguish between the crimes perpetrated
by the direction of the earl of ORFORD, and those of another kind. And
should an enormous criminal give such evidence, as the noble lord was
pleased to suppose, he may be indemnified for the bribery, but will be
hanged for the murder, notwithstanding any thing in this bill to the
contrary.
It has been insisted on by the noble lords, who have spoke against the
bill, that no crime is proved, and, therefore, there is no foundation
for it. But, my lords, I have always thought that the profusion of the
publick money was a crime, and there is evidently a very large sum
expended, of which no account has been given; and, what more nearly
relates to the present question, of which no account has ever been
demanded.
On this occasion, my lords, an assertion has been alleged, which no
personal regard shall ever prevail upon me to hear without disputing it,
since I think it is of the most dangerous tendency, and unsupported by
reason or by law. It is alleged, my lords, that the civil list is not to
be considered as publick money, and that the nation has, therefore, no
claim to inquire how it is distributed; that it is given to support the
dignity of the crown, and that only his majesty can ask the reason of
any failures in the accounts of it.
I have, on the contrary, my lords, hitherto understood, that all was
publick money which was given by the publick. The present condition of
the crown is very different from that of our ancient monarchs, who
supported their dignity by their own estates. I admit, my lords, that
they might at pleasure contract or enlarge their expenses, mortgage or
alienate their lands, or bestow presents and pensions without control.
It is, indeed, expressed in the act, that the grants of the civil list
are without account, by which I have hitherto understood only that the
sum total is exempt from account; not that the ministers have a right to
employ the civil list to such purposes as they shall think most
conducive to their private views. For if it should be granted, not only
that the nation has no right to know how the _whole_ is expended, which
is the utmost that can be allowed, or to direct the application of any
part of it, which is very disputable, yet it certainly has a claim to
direct in what manner it shall _not_ be applied, and to provide that
boroughs are not corrupted under pretence of promoting the dignity of
the crown.
The corruption of boroughs, my lords, is one of the greatest crimes of
which any man under our constitution is capable; it is to corrupt, at
once, the fountain and the stream of government, to poison the whole
nation at once, and to make the people wicked, that they may infect the
house of commons with wicked representatives.
Such, my lords, are the crimes, the suspicion of which incited the
commons to a publick inquiry, in which they have been able to proceed so
far, as to prove that the publick discontent was not without cause, and
that such arts had been practised, as it is absolutely necessary, to the
publick security, to detect and punish.
They, therefore, pursued their examination with a degree of ardour
proportioned to the importance of the danger in which every man is
involved by the violation of the fundamental laws of the constitution;
but, they found themselves obstructed by the subtilty of some who
confessed only that they were guilty, and determined to be faithful to
their accomplices and themselves.
A farther inquiry, my lords, was, by this unforeseen evasion, made
impossible; the ultimate and principal agent is sheltered from the law
by his guard of mercenaries, wretches who are contented to be infamous,
if they can continue to be rich, and value themselves on their adherence
to their master, while they are conspiring to ruin their country.
The nation, my lords, in the mean time, justly applies for redress to
the power of the legislature, and to its wisdom for methods of procuring
it by law. The commons have complied with their importunities, and
propose to your lordships the bill before you, a bill for making a
publick inquiry possible, and for bringing a minister within reach of
the law.
On this occasion, my lords, we are upbraided with our own declarations,
that the person mentioned in this bill would quickly find accusers, when
he should be divested of his authority. Behold him now, say his
advocates, reduced from his envied eminence, and placed on a level with
his fellow-subjects! Behold him no longer the distributer of
employments, or the disburser of the publick treasure! see him divested
of all security, but that of innocence, and yet no accusations are
produced!
This, my lords, is a topick so fruitful of panegyrick, and so happily
adapted to the imagination of a person long used to celebrate the wisdom
and integrity of ministers, that, were not the present question of too
great importance to admit of false concessions, I should suffer it to
remain without controversy.
But, my lords, this is no time for criminal indulgence; and, therefore,
I shall annihilate this short-lived triumph by observing, that to be out
of place, is not necessarily to be out of power; a minister may retain
his influence, who has resigned his employment; he may still retain the
favour of his prince, and possess him with a false opinion, that he can
only secure his authority by protecting him; or, what there is equal
reason to suspect, his successours may be afraid of concurring in a law
which may hereafter be revived against themselves.
It may be urged farther, my lords, that he cannot with great propriety
be said to have no power, who sees the legislature crowded with men that
are indebted to his favour for their rank and their fortunes.
Such a man may bid defiance to inquiry, with confidence produced by
security very different from that of innocence; he may depend upon the
secrecy of those whom he has, perhaps, chosen for no other virtue; he
may know that common danger will unite them to him, and that they cannot
abandon him without exposing themselves to the same censures.
These securities, my lords, the fortifications of the last retreat of
wickedness, remain now to be broken, and the nation expects its fate
from our determinations, which will either secure the liberties of our
posterity from violation, by showing that no degree of power can shelter
those who shall invade them, or that our constitution is arrived at this
period, and that all struggles for its continuance will be vain.
Let us not, my lords, combine with the publick enemies, let us not give
the nation reason to believe that this house is infected with the
contagion of venality, that our honour is become an empty name, and that
the examples of our ancestors have no other effect upon us than to raise
the price of perfidy, and enable us to sell our country at a higher
rate.
Let us remember, my lords, that power is supported by opinion, and that
the reverence of the publick cannot be preserved but by rigid justice
and active beneficence.
For this reason, I am far from granting that we ought to be cautious of
charging those with crimes who have the honour of a seat amongst us. In
my opinion, my lords, we ought to be watchful against the least
suspicion of wickedness in our own body, we ought to eject pollution
from our walls, and preserve that power for which some appear so
anxious, by keeping our reputation pure and untainted.
It is, therefore, to little purpose objected, that there is no _corpus
delicti;_ for even, though it were true, yet while there is a _corpus
suspicionis,_ then inquiry ought to be made for our own honour, nor can
either law or reason be pleaded against it.
I cannot, therefore, doubt, that your lordships will endeavour to do
justice; that you will facilitate the production of oral evidence, lest
all written proofs should be destroyed; that you will not despise the
united petition of the whole people, of which I dread the consequence;
nor reject the only expedient by which their fears may be dissipated,
and their happiness secured.
Lord HARDWICKE spoke next, in the following manner:--My lords, after
having, with an intention uninterrupted by any foreign considerations,
and a mind intent only on the discovery of truth, examined every
argument which has been urged on either side, I think it my duty to
declare, that I have yet discovered no reason, which, in my opinion,
ought to prevail upon us to ratify the bill that is now before us.
The noble lords who have defended it, appear to reason more upon maxims
of policy, than rules of law, or principles of justice; and seem to
imagine, that if they can prove it to be expedient, it is not necessary
to show that it is equitable.
How far, my lords, they have succeeded in that argument which they have
most laboured, I think it not necessary to examine, because I have
hitherto accounted it an incontestable maxim, that whenever interest and
virtue are in competition, virtue is always to be preferred.
The noble lord who spoke first in this debate, has proved the
unreasonableness and illegality of the methods proposed in this bill,
beyond the possibility of confutation; he has shown that they are
inconsistent with the law, and-that the law is founded upon reason: he
has proved, that the bill supposes a criminal previous to the crime,
summons the man to a trial, and then inquires for what offence.
Nor has he, my lords, confined himself to a detection of the original
defect, the uncertainty of any crime committed, but has proceeded to
prove, that upon whatever supposition we proceed, the bill is
unequitable, and of no other tendency than to multiply grievances, and
establish a precedent of oppression.
For this purpose he has shown, that no evidence can be procured by this
till, because all those who shall, upon the encouragement proposed in
it, offer information, must be considered as hired witnesses, to whom no
credit can be given, and who, therefore, ought not to be heard.
His lordship also proved, that we cannot pass this bill without
diminishing our right, bestowing new powers upon the commons, confirming
some of their claims which are most dubious, nor, by consequence,
without violating the constitution.
To all these arguments, arguments drawn from the most important
considerations, enforced by the strongest reasoning, and explained with
the utmost perspicuity, what has been replied? How have any of his
assertions been invalidated, or any of his reasons eluded? How has it
been shown that there is any foundation for a criminal charge, that
witnesses thus procured ought to be heard, or that our rights would not
be made disputable by confirming the proceedings of the commons?
It has been answered by a noble lord, that though there is not _corpus
delicti_, there is _corpus suspicionis_. What may be the force of this
argument, I cannot say, because I am not ashamed to own, that I do not
understand the meaning of the words. I very well understand what is
meant by _corpus delicti,_ and so does every other lord; it is
universally known to mean the _body of an offence;_ but as to the words
_corpus suspicionis,_ I do not comprehend what they mean: it is an
expression, indeed, which I never before heard, and can signify, in my
apprehension, nothing more than the _body of a shadow,_ the substance of
something which is itself nothing.
Such, my lords, is the principle of this bill, by the confession of its
warmest and ablest advocates; it is a bill for summoning a person to a
trial, against whom no crime is alleged, and against whom no witness
will appear without a bribe.
For that those who should appear in consequence of this bill to offer
their evidence, ought to be considered as bribed, will, surely, need no
proof to those who consider, that bribes are not confined to money, and
that every man who promotes his own interest by his deposition, is
swearing, not for truth and justice, but for himself.
It may be urged, and it is, in my opinion, all that the most fruitful
imagination can suggest in favour of this bill, that they are not
required to accuse the earl of ORFORD, but to give in their evidence
concerning his conduct, whether in his favour, or against him.
But this argument, my lords, however specious it may seem, will vanish
of itself, if the bill be diligently considered, which is only to confer
indemnity on those, who in the course of their evidence shall discover
any of their own crimes; on those whose testimony shall tend to fix some
charge of wickedness on the earl of ORFORD; for it cannot easily be
imagined how those who appear in his favour, should be under a necessity
of revealing any actions that require an indemnity.
Thus, my lords, it appears that the bill can produce no other effect
than that of multiplying accusations, since it offers rewards only to
those who are supposed to have been engaged in unjustifiable practices;
and to procure witnesses by this method, is equally unjust as to propose
a publick prize to be obtained by swearing against any of your
lordships.
If witnesses are to be purchased, we ought, at least, to offer an equal
price on each side, that though they may be induced by the reward to
offer their depositions, they may not be tempted to accuse rather than
to justify.
Should any private man, my lords, offer a reward to any that would give
evidence against another, without specifying the crime of which he is
accused, doubtless he would be considered by the laws of this nation, as
a violator of the rights of society, an open slanderer, and a disturber
of mankind; and would immediately, by an indictment or information, be
obliged to make satisfaction to the community which he had offended, or
to the person whom he had injured.
It has, my lords, I own, been asserted by the noble duke, that the
publick has a right to every man's evidence, a maxim which in its proper
sense cannot be denied. For it is undoubtedly true, that the publick has
a right to all the assistance of every individual; but it is, my lords,
upon such terms as have been established for the general advantage of
all; on such terms as the majority of each society has prescribed. But,
my lords, the majority of a society, which is the true definition of the
_publick,_ are equally obliged with the smaller number, or with
individuals, to the observation of justice, and cannot, therefore,
prescribe to different individuals different conditions. They cannot
decree that treatment to be just with regard to one which they allow to
be cruel with respect to another. The claims of the publick are founded,
first upon right, which is invariable; and next upon the law, which,
though mutable in its own nature, is, however, to be so far fixed, as
that every man may know his own condition, his own property, and his own
privileges, or it ceases in effect to be law, it ceases to be the rule
of government, or the measure of conduct.
In the present case, my lords, the publick has not a right to hire
evidence, because the publick has hitherto subsisted upon this
condition, among others, that no man shall swear in his own cause. The
publick has not a right to require from any man that he should betray
himself, because every man may plead that he is exempted from that
demand by the publick faith.
Thus, my lords, the right of the publick is only that right which the
publick has established by law, and confirmed by continual claims; nor
is the claim of the publick from individuals to be extended beyond its
known bounds, except in times of general distress, where a few must
necessarily suffer for the preservation of the rest.
This necessity is, indeed, now urged; but surely it ought to be shown,
that the present circumstances of affairs differ from those of any
former age, before it can with any propriety he asserted, that measures
are now necessary, which no other distresses, however urgent, or
provocations, however flagrant, have hitherto produced. It ought to be
proved, that wickedness had discovered some new shelter from justice,
before new engines are invented to force it from its retreat, and new
powers applied to drag it out to punishment.
The nation has subsisted, my lords, so many centuries; has often
recovered from the lingering disease of inward corruption, and repelled
the shocks of outward violence; it has often been endangered by corrupt
counsels, and wicked machinations, and surmounted them by the force of
its established laws, without the assistance of temporary expedients; at
least without expedients like this, which neither law nor justice can
support, and which would in itself be a more atrocious grievance than
those, if they were real, which it is intended to punish, and might
produce far greater evils than those which are imputed to him, against
whom it is projected.
It has, indeed, my lords, been mentioned by a noble lord, in much softer
language, as a method only of making an inquiry possible. The
possibility of an inquiry, my lords, is a very remote and inoffensive
idea; but names will not change the nature of the things to which they
are applied. The bill is, in my opinion, calculated to make a defence
impossible, to deprive innocence of its guard, and to let loose
oppression and perjury upon the world. It is a bill to dazzle the wicked
with a prospect of security, and to incite them to purchase an indemnity
for one crime, by the perpetration of another. It is a bill to confound
the notions of right and wrong, to violate the essence of our
constitution, and to leave us without any certain security for our
properties, or rule for our actions.
Nor are the particular parts less defective than the general foundation;
for it is full of ambiguous promises, vague ideas, and indeterminate
expressions, of which some have been already particularized by the noble
lords that have spoken on this occasion, whose observations I shall not
repeat, nor endeavour to improve; but cannot forbear proposing to the
advocates for the bill one sentence, that it may be explained by them,
and that at least we may not pass what we do not understand.
In the inquiry into the conduct of the earl of ORFORD, every man, as we
have already seen, is invited to bring his evidence, and to procure an
indemnity, by answering such questions as shall be asked, _touching or
concerning the said inquiry, or relative thereto_. What is to be
understood by this last sentence, I would willingly be informed; I would
hear how far the _relation_ to the inquiry is designed to be extended,
with what other _inquiries_ it is to be complicated, and where the chain
of interrogatories is to have an end.
When an evidence appears before the committee, how can he be certain
that the questions asked are _relative to the inquiry?_ How can he be
certain that they are such as he may procure an indemnity by resolving?
Or whether they are not unconnected with the principal question, and
therefore insidious and dangerous? And to what power must he appeal, if
he should be prosecuted afterwards upon his own confession, on pretence
that it was not _relative to the inquiry?_
Expressions like these, my lords, if they are not the effects of
malicious hurry, and negligent animosity, must be intended to vest the
committee with absolute authority, with the award of life and death, by
leaving to them the liberty to explain the statute at their own
pleasure, to contract or enlarge the relation to the controversy, to
inquire without bounds, and judge without control.
Thus, my lords, I have laid before you my opinion of this bill without
any partial regard, without exaggerating the ill consequences that may
be feared from it, or endeavouring to elude any reasoning by which it
has been defended. I have endeavoured to pursue the arguments of the
noble lord who spoke first, and to show that it is founded upon false
notions of criminal justice, that it proposes irrational and illegal
methods of trial, that it will produce consequences fatal to our
constitution, and establish a precedent of oppression.
I have endeavoured, in examining the arguments by which the bill has
been defended, to show that the rights of the publick are ascertained,
and that the power of the majority is to be limited by moral
considerations; and to prove, in discussing its particular parts, that
it is inaccurate, indeterminate, and unintelligible.
What effects my inquiry may have had upon your lordships, yourselves
only can tell; for my part, the necessity of dwelling so long upon the
question, has added new strength to my conviction; and so clearly do I
now see the danger and injustice of a law like this, that though I do
not imagine myself indued with any peculiar degree of heroism, I
believe, that if I were condemned to a choice so disagreeable, I should
more willingly suffer by such a bill passed in my own case, than consent
to pass it in that of another.
The duke of ARGYLE replied to the following effect:--My lords, I am not
yet able to discover that the bill now before us is either illegal or
absurd, that its interpretation is doubtful, or its probable
consequences dangerous.
The indisputable maxim, that _the publick has a right to every man's
evidence,_ has been explained away with much labour, and with more art
than a good cause can often require. We have been told of publick
contracts, of the rights of society with regard to individuals, and the
privileges of individuals with respect to society; we have had one term
opposed to another, only to amuse our attention; and law, reason, and
sophistry have been mingled, till common sense was lost in the
confusion.
But, my lords, it is easy to disentangle all this perplexity of ideas,
and to set truth free from the shackles of sophistry, by observing that
it is, in all civilized nations of the world, one of the first
principles of the constitution, that the publick has a right, always
reserved, of having recourse to extraordinary methods of proceeding,
when the happiness of the community appears not sufficiently secured by
the known laws.
Laws may, by those who have made the study and explanation of them the
employment of their lives, be esteemed as the great standard of right;
they may be habitually reverenced, and considered as sacred in their own
nature, without regard to the end which they are designed to produce.
But others, my lords, whose minds operate without any impediment from
education, will easily discover, that laws are to be regarded only for
their use; that the power which made them only for the publick advantage
ought to alter or annul them, when they are no longer serviceable, or
when they obstruct those effects which they were intended to promote.
I will, therefore, my lords, still assert, that _the publick has a right
to every man's evidence;_ and that to reject any bill which can have no
other consequence than that of enabling the nation to assert its claim,
to reconcile one principle of law with another, and to deprive villany
of an evasion which may always be used, is to deny justice to an
oppressed people, and to concur in the ruin of our country.
And farther, my lords, I confidently affirm it has not been proved, that
this bill can endanger any but the guilty; nor has it been shown that it
is drawn up for any other purpose than that which the noble lord
mentioned, of hindering _an inquiry from being impossible;_ it may,
therefore, justly be required from those who affect, on this occasion,
so much tenderness for liberty, so many suspicions of remote designs,
and so much zeal for our constitution, to demonstrate, that either an
inquiry may be carried on by other means, or that an inquiry is itself
superfluous or improper.
Though none of those who have spoken against the bill have been willing
to expose themselves to universal indignation, by declaring that they
would gladly obstruct the progress of the inquiry; that they designed to
throw a mist over the publick affairs, and to conceal from the people
the causes of their misery; and though I have no right to charge those
who differ from me in opinion, with intentions, which, as they do not
avow them, cannot be proved; this, however, I will not fear to affirm,
that those who are for rejecting this method of inquiry, would consult
their honour by proposing some other equally efficacious; lest it should
be thought; by such as have not any opportunities of knowing their
superiority to temptations, that they are influenced by some motives
which they are not willing to own, and that they are, in secret, enemies
to the inquiry, though, in publick, they only condemn the method of
pursuing it.
The duke of NEWCASTLE next rose, and spoke to this effect:--My lords,
the arguments which have been produced in defence of the bill before us,
however those who offer them may be influenced by them, have made,
hitherto, very little impression upon me; my opinion of the impropriety
and illegality of this new method of prosecution, still continues the
same; nor can it be expected that I should alter it, till those reasons
have been answered which have been offered by the noble lord who spoke
first in the debate.
The advocates for the bill seem, indeed, conscious of the insufficiency
of their arguments, and have, therefore, added motives of another kind;
they have informed us, that our power subsists upon our reputation, and
that our reputation can only be preserved by concurring in the measures
recommended by the commons; they have insinuated to us, that he who
obstructs this bill, will be thought desirous to obstruct the inquiry,
to conspire the ruin of his country, and to act in confederacy with
publick robbers.
But, my lords, whether the nation is really exasperated to such a degree
as is represented, whether it is the general opinion of mankind that the
publick affairs have been unfaithfully administered, and whether this
bill has been dictated by a desire of publick justice, or of private
revenge, I have not thought it necessary to inquire; having long learned
to act in consequence of my own conviction, not of the opinions of
others, at least, not of those who determine upon questions which they
cannot understand, and judge without having ever obtained an opportunity
of examining.
Such, my lords, must be the opinions of the people upon questions of
policy, opinions not formed by reflection, but adopted from those whom
they sometimes, with very little reason, imagine nearer spectators of
the government than themselves, and in whom they place an implicit
confidence, on account of some casual act of popularity.
I shall not, therefore, think the demands of the people a rule of
conduct, nor shall ever fear to incur their resentment in the
prosecution of their interest. I shall never flatter their passions to
obtain their favour, or gratify their revenge for fear of their
contempt. The inconstancy, my lords, of publick applause, all of us have
observed, and many of us have experienced; and we know that it is very
far from being always the reward of merit. We know that the brightest
character may be easily darkened by calumny; that those who are
labouring for the welfare of the publick, may be easily represented as
traitors and oppressors; and that the people may quickly be persuaded to
join in the accusation.
That the people, however deceived, have a right to accuse whomsoever
they suspect, and that their accusation ought to be heard, I do not
deny; but surely, my lords, the opinion of the people is not such a
proof of guilt as will justify a method of prosecution never known
before, or give us a right to throw down the barriers of liberty, and
punish by power those whom we cannot convict by law.
Let any of your lordships suppose himself by some accident exposed to
the temporary malice of the populace, let him imagine his enemies
inflaming them to a demand of a prosecution, and then proposing that he
should be deprived of the common methods of defence, and that evidence
should be hired against him, lest the publick should be disappointed,
and he will quickly discover the unreasonableness of this bill.
I suppose no man will deny, that methods of prosecution introduced on
one occasion, may be practised on another; and that in the natural
rotations of power, the same means may be used for very different ends.
Nothing is more probable, my lords, if a bill of this kind should be
ever passed, in compliance with the clamours of the people, to punish
ministers, and to awe the court, than that it may in time, if a wicked
minister should arise, be made a precedent for measures by which the
court may intimidate the champions of the people; by which those may be
pursued to destruction, who have been guilty of no other crime than that
of serving their country in a manner which those who are ignorant of the
circumstances of affairs, happen to disapprove.
The measures now proposed, my lords, are, therefore, to be rejected,
because it is evident that they will establish a precedent, by which
virtue may at any time be oppressed, but which can be very seldom
necessary for the detection of wickedness; since there is no probability
that it will often happen, that a man really guilty of enormous crimes
can secure himself from discovery, or connect others with him in such a
manner, that they cannot impeach him without betraying themselves.
But, my lords, whenever virtue is to be persecuted, whenever false
accusations are to be promoted, this method is incontestably useful; for
no reward can so efficaciously prevail upon men who languish in daily
fear of publick justice, as a grant of impunity.
It may be urged, my lords, I own, that all inquiries into futurity are
idle speculations; that the expedient proposed is proper on the present
occasion, and that no methods of justice are to be allowed, if the
possibility of applying them to bad purposes, is a sufficient reason for
rejecting them.
But to this, my lords, it may be answered with equal reason, that every
process of law is likewise, in some degree, defective; that the
complications of circumstances are variable without end, and, therefore,
cannot be comprised in any certain rule; and that we must have no
established method of justice, if we cannot be content with such as may
possibly be sometimes eluded.
And, my lords, it may be observed farther, that scarcely any practice
can be conceived, however generally unreasonable and unjust, which may
not be sometimes equitable and proper; and that if we are to lay aside
all regard to futurity, and act merely with regard to the present
exigence, it may be often proper to violate every part of our
constitution. This house may sometimes have rejected bills beneficial to
the nation; and if this reasoning be allowed, it might have been wise
and just in the commons and the emperour to have suspended our authority
by force, to have voted us useless on that occasion, and have passed the
law without our concurrence.
With regard to the establishment of criminal prosecutions, as well as to
our civil rights, we are, my lords, to consider what is, upon the whole,
most for the advantage of the publick; we are not to admit practices
which may be sometimes useful, but may be often pernicious, and which
suppose men better or wiser than they are. We do not grant absolute
power to a wise and moderate prince, because his successours may inherit
his power without his virtues; we are not to trust or allow new methods
of prosecution upon an occasion on which they may seem useful, because
they may be employed to purposes very different from those for which
they were introduced.
Thus, my lords, I have shown the impropriety of the bill now before us,
upon the most favourable supposition that can possibly be made; a
supposition of the guilt of the noble person against whom it is
contrived. And surely, my lords, what cannot even in that case be
approved, must, if we suppose him innocent, be detested.
That he is really innocent, my lords, that he is only blackened by
calumny, and pursued by resentment, cannot be more strongly proved than
by the necessity to which his enemies are reduced, of using expedients
never heard of in this nation before, to procure accusations against
him; expedients which they cannot show to have been at any time
necessary for the punishment of a man really wicked, and which, by
bringing guilt and innocence into the same danger, leave us at liberty
to imagine, that he is clear from the crimes imputed to him, even in the
opinion of those who pursue him with the fiercest resentment, and the
loudest clamours.
It may well be imagined, my lords, that those whom he has so long
defeated by his abilities, see themselves now baffled by his innocence;
and that they only now persecute his character, to hide the true reason
for which they formerly attacked his power.
I hope, my lords, I shall be easily forgiven for observing, that this is
a testimony of uncorrupted greatness, more illustrious than any former
minister has ever obtained; for when was it known, my lords, that after
a continuance of power for twenty years, any man, when his conduct
became the subject of publick examination, was without accusers?
I cannot, for my part, but congratulate the noble person upon his
triumph over malice; malice assisted by subtilty and experience, by
wealth and power, which is at length obliged to confess its impotence,
to call upon us to assist it with new laws, to enable it to offer a
reward for evidence against him, and throw down the boundaries of
natural justice, that he may be harassed, censured, and oppressed, upon
whom it cannot be proved that he ever deviated from the law, or employed
his power for any other end than the promotion of the publick happiness.
Had the officers of the crown, my lords, when his influence was
represented so great, and his dominion so absolute, projected any such
measures for his defence; had they proposed to silence his opponents by
calling them to a trial, and offered a stated price for accusations
against them, how loudly would they have been charged with the most
flagrant violation of the laws, and the most open disregard of the
rights of nature; with how much vehemence would it have been urged, that
they were intoxicated with their success, and that in the full security
of power they thought themselves entitled to neglect the great
distinctions of right and wrong, and determined to employ the law for
the completion of those purposes, in which justice would give them no
assistance.
I doubt not that your lordships will easily perceive, that this censure
is equally just in either case; that you will not allow any man to be
prosecuted by methods which he ought not to have used in his own case;
that you will not expose any man to hardships, from which every other
member of the community is exempt; that you will not suffer any man to
be tried by hired evidence; and that you will not condemn him whom the
law acquits.
Lord BATHURST spoke next, in substance as follows:--My lords, the
question under our consideration has been so long and so accurately
debated, that little can be added to the arguments on either side; and
therefore, though I think it necessary on so important an occasion, to
make a solemn declaration of my opinion, I shall endeavour to support
it, not so much by any arguments of my own, as by a recapitulation and
comparison of those which have been already heard by your lordships.
It has not been denied, that the punishment of crimes is absolutely
necessary to the publick security; and as it is evident, that crimes
cannot be punished unless they are detected, it must be allowed, that
the discovery of wicked measures ought to be, in a very great degree,
the care of those who are intrusted with the government of the nation;
nor can they better discharge their trust, than by defeating the
artifices of intrigue, and blocking up the retreats of guilt.
This, likewise, my lords, is admitted with such restrictions as seem
intended to preclude any advantage that might be drawn from the
appearance of a concession; for it is urged, that guilt is not to be
detected by any methods which are not just, and that no methods are just
which are not usual.
The first position, my lords, I have no intention to controvert; as it
is not to violate justice, but to preserve it from violation, that this
bill has been projected or defended. But, my lords, it is to be
observed, that they who so warmly recommend the strictest adherence to
justice, seem not fully to understand the duty which they urge. To do
justice, my lords, is to act with impartiality, to banish from the mind
all regard to personal motives, and to consider every question in its
whole extent, without suffering the attention to be restrained to
particular circumstances, or the judgment to be obstructed by partial
affection.
This rule, my lords, seems not to have been very carefully observed, by
the most vehement advocates for justice in the case before us; for they
appear not to be solicitous that any should receive justice, but the
person mentioned in the bill; they do not remember, that the publick has
cried out for justice more than twenty years; for justice, which has not
yet been obtained, and which can be obtained only by the method now
proposed.
It is necessary, my lords, for those who are so watchful against the
breach of justice, to prove that any means can be unjust which have no
other tendency than the detection of wickedness, of wickedness too
artful or too powerful to be punished by the common rules of law.
The introduction of new methods of prosecution, is the natural
consequence of new schemes of villany, or new arts of evasion; nor is it
necessary that precedents should be produced, when the wisdom of the
legislature concurs in acknowledging the necessity of extraordinary
measures. Though our constitution is in the highest degree excellent, I
never yet heard that it was perfect, and whatever is not perfect may be
improved. Our laws, however wise, are yet the contrivance of human
policy; and why should we despair of adding somewhat to that which we
inherit from our ancestors? Why should we imagine, that they anticipated
every contingency, and left nothing for succeeding ages?
I think, my lords, with the highest regard both of our laws, and those
by whom they were enacted, but I look with no less veneration on this
illustrious assembly; I believe your lordships equal to your progenitors
in abilities; and therefore, since you cannot but outgo them in
experience, am confident that you may make improvements in the fabrick
which they have erected; that you may adorn it with new beauties, or
strengthen it with new supports.
It cannot, at least, be denied, that your lordships have all the power
of your ancestors; and since every law was once new, it is certain they
were far from imagining that there was always a necessity of inquiring
after precedents. If the argument drawn from the want of precedents be
now of any force, let it be proved that its force was less in any former
reign; and let it be considered how our government could have attained
its present excellence, had this house, instead of applying to every
grievance its proper remedy, been amused with turning over journals, and
looking upon every new emergence for precedents, of which it is certain
that there must have been a time in which they were not to be found.
In all regulations established by the legislature, it is sufficient that
they do not produce confusion by being inconsistent with former laws,
that they unite easily with our constitution, and do not tend to the
embarrassment of the machine of government. This consideration, my
lords, has been in a very remarkable manner regarded by those who drew
up the bill before us; a bill of which the noble duke has proved, that
it will be so far from perplexing our judicial proceedings, that it will
reconcile the law to itself, and free us from the necessity of obeying
one precept by the neglect of another.
The arguments of the noble duke are such as, in my opinion, cannot be
answered, or heard impartially without conviction. The maxims quoted by
him are each of them incontestably true; they are, on this occasion,
incompatible; and this is the only method by which they can be
reconciled.
Nor has he only shown the propriety of the bill by irrefragable reasons,
but has proved, likewise, that it is consistent, not only with the
constitution of our government, but with the practice of our ancestors;
he has shown, that it may be supported not only by reason, but by bills
of the same kind, enacted on occasions of far less importance.
He has proved, my lords, all that the most scrupulous inquirer can wish;
he has made it evident, that the bill would be proper, though it were
unprecedented; he has produced many precedents in support of it, and has
thereby evinced, that the only present question is, whether it is just?
To the precedents alleged by him, it has been objected, that they differ
in some particulars. But when, my lords, did any two actions, however
common, agree in every circumstance? Relations may be complicated
without end, and every new complication produces new appearances, which,
however, are always to be disregarded, while the constituent principles
remain unvaried.
If we consider the difficulties in which the opponents of the bill have
involved themselves, it will not be easy to think well of a cause, which
gives birth to such wild assertions, and extravagant opinions. They have
first, by requiring precedents, determined, that our constitution must
be henceforward for ever at a stand; and then, by declaring that no
precedents are of any weight, in which every circumstance is not
parallel to the case in debate, have debarred us from the repetition of
any occasional law; they have declared, almost in plain terms,
themselves useless, and destroyed that authority at once, which they
seem so much afraid of communicating to the commons.
But, by none of their arts of subtle distinction, my lords, have they
been able to evade the argument which arises from the conformity of this
bill to the common practice of our courts; an argument, which has
produced no other answer than loud declamations; against the indecency
of comparing with pickpockets and highwaymen, a noble person, a minister
of acknowledged merit, long graced with the favour of his sovereign, and
long invested with the highest trust.
I, my lords, am very far from pleasing myself with licentious or
indecent language; I am far from envying any man that exaltation which
he obtains either by good or by bad actions; and have no inclination of
levelling the person, whose conduct I desire to see examined, with the
profligate or infamous. Yet I cannot forbear to observe, that high rank
is an aggravation of villany; that to have enjoyed the favour of his
sovereign, is no defence of him that has abused it; and that high trust
is an honour only to that man, who, when he lays down his office, dares
stand an inquiry.
Had there been no precedent in our judicial proceedings, my lords, which
bore any resemblance to this bill, there would not from thence have
arisen any just objection. Common proceedings are established for common
occasions; and it seems to have been the principle of our ancestors,
that it is better to give ten guilty persons an opportunity of escaping
justice, than to punish one innocent person by an unjust sentence. A
principle which, perhaps, might not be erroneous in common cases, in
which only one individual was injured by another, or when the trial was,
by the law, committed to a common jury, who might easily be misled.
They might likewise imagine, my lords, that a criminal, encouraged by a
fortunate escape to a repetition of his guilt, would undoubtedly some
time fall into the hands of the law, though not extended on purpose to
seize him; and, therefore, they constituted their proceedings in such a
manner, that innocence might at least not be entrapped, though guilt
should sometimes gain a reprieve.
But in the present case, my lords, every circumstance requires a
different conduct. By the crimes which this bill is intended to detect,
not single persons, or private families, but whole nations, and all
orders of men have long been injured and oppressed; and oppressed with
such success, that the criminal has no temptation to renew his
practices; nor is there any danger of an erroneous sentence, because the
trial will be heard by this house, by persons whose integrity sets them
above corruption, and whose wisdom will not be deceived by false
appearances.
This consideration, my lords, affords an unanswerable reply to those who
represent the bill as ill-concerted, because the evidence to be procured
by it, is the testimony of men, partners, by their own confession, in
the crimes which they reveal.
Every court, my lords, examines the credibility of a witness; and the
known corruption of these men may be properly pleaded at the trial,
where your lordships will balance every circumstance with your known
impartiality, and examine how far every assertion is invalidated by the
character of the witness, and how far it is confirmed by a corroboratory
concurrence of known events, or supported by other testimonies not
liable to the same exception.
Thus, my lords, it may be observed how quickly the clouds are dispersed
with which interest or perverseness have endeavoured to obscure the
truth, and how easily the strongest objections which the greatest
abilities could raise against this bill are confuted, or how apparently,
when they are closely examined, they confute themselves.
One of the objections that requires no answer is that which has been
raised with regard to the extent of the indemnity offered in the bill,
which, in the opinion of those that opposed it, ought to be restrained
to particular persons. But that it is chiefly, if not solely, intended
to be applied to those who have refused to answer the questions of the
committee, I believe every lord in this house is fully convinced; it
was, however, necessary to draw it up in general terms, lest other
artifices might have been employed, and lest, by pointing out particular
persons, opportunity might have been given to deprive the publick of
their evidence, by prevailing upon them to withdraw.
The bill was justly styled, by a noble lord, a bill to prevent _an
inquiry from being impossible_. The difficulty of inquiries for the
publick is well known; and the difficulty arises chiefly from the
inability of the people to reward their advocates, or their evidence.
The state of the court, my lords, is very different; the crown can not
only pardon, but advance those that have, on any occasion, promoted its
interest; and I hope it will not be too much power to be for once
granted to the people, if they are empowered to throw a simple
indemnification into the balance, and try whether with the slight
addition of truth, and reason, and justice, it will be able to weigh
down titles, and wealth, and power.
It has been urged, that there is danger lest this bill should become a
precedent. I hope, my lords, the same occasion will not often happen;
and whenever it shall hereafter occur, the precedent of passing the bill
will be much less dangerous than that of rejecting it.
I hope it is not necessary to say more on this occasion; yet I cannot
forbear to remind some lords of the fatal consequences which at critical
conjunctures they have often dreaded, or appeared to dread, from a
disagreement of this house with the commons. At this time, in which the
nation is engaged in war, when the whole continent is one general scene
of discord and confusion; when the wisest counsels, the firmest
unanimity, and the most vigorous measures are apparently necessary, it
might not be improper to reflect, how unseasonably we shall irritate the
commons by rejecting this bill, and how justly we shall exasperate the
people, by showing them that their complaints and remonstrances are of
no weight; that they must expect the redress of their grievances from
some other power; and that we prefer the impunity of one man to the
happiness and safety of the publick.
Lord ISLAY spoke next to the following purpose:--My lords, as there has
in this debate been very frequent mention of extraordinary cases, of new
modes of wickedness, which require new forms of procedure, and new arts
of eluding justice, which make new methods of prosecution necessary, I
cannot forbear to lay before your lordships my sentiments on this
question; sentiments not so much formed by reflection as impressed by
experience, and which I owe not to any superiour degree of penetration
into future events, but to subsequent discoveries of my own errours.
I have observed, my lords, that in every collision of parties, that
occasion on which their passions are inflamed, is always termed an
extraordinary conjuncture, an important crisis of affairs, either
because men affect to talk in strong terms of the business in which they
are engaged, for the sake of aggrandizing themselves in their own
opinion and that of the world, or because the present object appears
greatest to their sight by intercepting others, and that is imagined by
them to be really most important in itself, by which their own pleasure
is most affected.
On these extraordinary occasions, my lords, the victorious have always
endeavoured to secure their conquest, and to gratify their passions by
new laws, by laws, even in the opinion of those by whom they are
promoted, only justifiable by the present exigence. And no sooner has a
new rotation of affairs given the superiority to another party, than
another law, equally unreasonable and equally new, is found equally
necessary for a contrary purpose. Thus is our constitution violated by
both, under the pretence of securing it from the attack of each other,
and lasting evils have been admitted for the sake of averting a
temporary danger.
I have been too long acquainted with mankind to charge any party with
insincerity in their conduct, or to accuse them of affecting to
represent their disputes as more momentous than they appeared to their
own eyes. I know, my lords, how highly every man learns to value that
which he has long contended for, and how easily every man prevails upon
himself to believe the security of the publick complicated with his own.
I have no other intention in these remarks, than to show how men are
betrayed into a concurrence in measures, of which, when the ardour of
opposition has subsided, and the imaginary danger is past, they have
very seldom failed to repent.
I do not remember, my lords, any deviation from the established order of
our constitution, which has not afterwards produced remorse in those
that advised it. I have known many endeavour to obviate the evils that
might be produced by the precedents which they have contributed to
establish, by publick declarations of their repentance, and
acknowledgments of their errour; and, for my part, I take this
opportunity of declaring, that though I have more than once promoted
extraordinary bills, I do not recollect one which I would not now
oppose, nor one of which experience has not shown me, that the danger is
greater than the benefit.
I have learned, at length, my lords, that our constitution has been so
formed by the wisdom of our ancestors, that it is able to protect itself
by its own powers, without any assistance from temporary expedients,
which, like some kinds of medicines in the human body, may give it the
appearance of uncommon vigour, but which, in secret, prey upon its
noblest parts, and hurry it to a sudden decay.
But none of all the measures into which I have seen parties precipitated
by acrimony and impetuosity, have I known parallel to the bill which is
now defended in this house; a bill which I hope we shall have reason to
term the wildest effort of misguided zeal, and the most absurd project
that the enthusiasm of faction ever produced.
The particular clauses of this bill have been already examined with
great acuteness and penetration, and have all been shown to be absurd or
useless. I shall, therefore, only add this observation, that the
indemnification, however liberally offered, will be wholly, at the
disposal of those who shall receive the examinations, by whom, when such
discoveries are not made as they may happen to expect, the witnesses may
be charged with reserve and insincerity, and be prosecuted for those
crimes which could never have been known but by their own confession.
It is not impossible, but that if the bait of indemnification shall be
found insufficient to produce testimonies against the noble person, a
bill of pains and penalties may be attempted, to terrify those who are
too wise to be ensnared by specious promises; for what may not be
expected from those who have already sent their fellow-subjects to
prison, only for refusing to accuse themselves?
Nor can I discover, my lords, how the most abandoned villains will be
hindered from procuring indemnity by perjury, or what shall exclude a
conspirator against the life and government of his majesty from pardon,
if he swears, that in a plot for setting the pretender on the throne, he
was assisted by the counsels of the earl of ORFORD.
It has, indeed, been in some degree granted, that the bill requires some
amendment, by proposing that the necessary alterations may be made to
such parts of it as shall appear defective to the committee, which
would, indeed, be highly expedient, if only some particular clauses were
exceptionable; but, my lords, the intention of the bill is cruel and
oppressive; the measures by which that intention is promoted are
contrary to law, and without precedent; and the original principle is
false, as it supposes a criminal previous to the crime.
It is urged as the most pressing argument by the advocates for the bill,
that it ought to be passed to gratify the people. I know not, my lords,
upon what principles those who plead so earnestly for rigid justice, can
endeavour to influence our decisions by any other motives; or why they
think it more equitable to sacrifice any man to the resentment of the
people, than to the malice of any single person; nor can conceive why it
should be thought less criminal to sell our voices for popularity than
for preferment.
As this is, therefore, my lords, a bill contrary to all former laws, and
inconsistent with itself; as it only tends to produce a bad end by bad
means, and violates the constitution not to relieve, but to oppress; as
the parts, singly considered, are defective, and the whole grounded upon
a false principle; it neither requires any longer debate, nor deserves
any farther consideration; it is rather to be detested than criticised,
and to be rejected without any superfluous attempt for its amendment.
[The aforementioned lords were all who spoke in this debate. The
question being then put, Whether the bill should be committed? It passed
in the negative.
Content 47, Proxies 10.--57.
Not content 92, Proxies 17.--109.
But a protest was entered on this occasion, signed by twenty-eight
lords; the former part of it was drawn from the speech of the duke of
ARGYLE, and the latter part of it from that of lord CARTERET.]