Chapter 11

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.