_ HOUSE OF LORDS, MAY 20, 1742.
Debate On A Motion For Indemnifying Evidence Relating To The Conduct Of The Earl Of ORFORD.
The following debate having been produced by an occasion very uncommon and important, it is necessary to give an account of such transactions as may contribute to illustrate it.
The prime minister being driven out of the house of commons, by the prevalence of those who, from their opposition to the measures of the court, were termed the country party, it was proposed that a committee should be appointed, "to inquire into the conduct of publick affairs, at home and abroad, during the last twenty years;" but the motion was rejected.
It was afterwards moved, "that a committee should be appointed to inquire into the conduct of Robert, earl of ORFORD, during the last ten years in which he was first commissioner of the treasury, and chancellor and under treasurer of the exchequer," which was carried by 252 to 245.
A committee of one-and-twenty being chosen by ballot, and entering upon the inquiry, called before them Mr. Gibbon, who declared himself agent to J. Botteler, and said, that Botteler, being a candidate for Wendover, and finding that no success was to be expected without five hundred pounds, sent a friend to N. Paxton, with a letter, and that he saw him return with a great number of papers, in which he said were bills for five hundred pounds.
Botteler and his friend being examined, confirmed the testimony of Gibbon; and Botteler added, that he sent to Paxton as an officer of the treasury, acquainted with those who had the disposal of money; that his claim to the favour which he asked arose from a disappointment in a former election; that he never gave for the money any security or acknowledgment, nor considered himself indebted for it to Paxton or any other person.
Paxton being then examined, refused to return any answer to the question of the committee, because the answer might tend to accuse himself. Which reason was alleged by others for a like refusal.
The committee finding their inquiries eluded, by this plea for secrecy, which the laws of Britain allow to be valid, reported to the commons the obstacles that they met with; for the removal of which a bill was brought in like that of indemnity; which, having passed the commons, produced, in the house of lords, a debate, in which the greatest men of each party exerted the utmost force of their reason and eloquence.
The bill being read a second time, and a motion made for its being referred to a committee.
Lord CARTERET spoke to this effect:--My lords, as the question now before us is of the highest importance both to the present age and to posterity, as it may direct the proceedings of the courts of justice, prescribe the course of publick inquiries, and, by consequence, affect the property or life of every lord in this assembly; I hope it will be debated amongst us without the acrimony which arises from the prejudice of party, or the violence which is produced by the desire of victory, and that the controversy will be animated by no other passion than zeal for justice, and love of truth.
For my part, my lords, I have reason to believe, that many professions of my sincerity will not be necessary on this occasion, because I shall not be easily suspected of any partiality in favour of the noble lord to whom this bill immediately relates. It is well known to your lordships how freely I have censured his conduct, and how invariably I have opposed those measures by which the nation has been so far exasperated, that the bill, now under our consideration, has been thought necessary by the commons, to pacify the general discontent, to restore the publick tranquillity, and to recover that confidence in the government, without which no happiness is to be expected, without which the best measures will always be obstructed by the people, and the justest remonstrances disregarded by the court.
But however laudable may be the end proposed by the commons, I cannot, my lords, be so far dazzled by the prospect of obtaining it, as not to examine the means to which we are invited to concur, and inquire with that attention which the honour of sitting in this house has made my duty, whether they are such as have been practised by our ancestors, such as are prescribed by the law, or warranted by prudence.
The caution, my lords, with which our ancestors have always proceeded in inquiries by which life or death, property or reputation, was endangered; the certainty, or at least the high degree of probability, which they required in evidence, to make it a sufficient ground of conviction, is universally known; nor is it necessary to show their opinion by particular examples, because, being no less solicitous for the welfare of their posterity than for their own, they were careful to record their sentiments in laws and statutes, and to prescribe, with the strongest sanctions, to succeeding governments, what they had discovered by their own reflections, or been taught by their predecessors.
They considered, my lords, not only how great was the hardship of being unjustly condemned, but likewise how much a man might suffer by being falsely accused; how much he might be harassed by a prosecution, and how sensibly he might feel the disgrace of a trial. They knew that to be charged with guilt implied some degree of reproach, and that it gave room, at least, for an inference that the known conduct of the person accused was such as made it probable that he was still more wicked than he appeared; they knew that the credulity of some might admit the charge upon evidence that was rejected by the court, and that difference of party, or private quarrels, might provoke others to propagate reports once published, even when in their own opinion they were sufficiently confuted; and that, therefore, an innocent man might languish in infamy by a groundless charge, though he should escape any legal penalty.
It has, therefore, my lords, been immemorially established in this nation, that no man can be apprehended, or called into question for any crime till there shall be proof.
First, that there is a
corpus delicti, a crime really and visibly committed; thus before a process can be issued out for inquiring after a murderer, it must be apparent that a murder has been perpetrated, the dead body must be exposed to a jury, and it must appear to them that he died by violence. It is not sufficient that a man is lost, and that it is probable that he is murdered, because no other reason of his absence can be assigned; he must be found with the marks of force upon him, or some circumstances that may make it credible, that he did not perish by accident, or his own hand.
It is required, secondly, my lords, that he who apprehends any person as guilty of the fact thus apparently committed, must suspect him to be the criminal; for he is not to take an opportunity, afforded him by the commission of an illegal act, to gratify any secret malice, or wanton curiosity; or to drag to a solemn examination, those against whom he cannot support an accusation.
And, my lords, that suspicion may not ravage the reputation of Britons without control; that men may not give way to the mere suggestions of malevolence, and load the characters of those with atrocious wickedness, whom, perhaps, they have no real reason to believe more depraved than the bulk of mankind, and whose failings may have been exaggerated in their eyes by contrariety of opinion, or accidental competition, it is required in the third place, my lords, that whoever apprehends or molests another on suspicion of a crime, shall be able to give the reasons of his suspicion, and to prove them by competent evidence.
These, my lords, are three essentials which the wisdom of our ancestors has made indispensable previous to the arrest or imprisonment of the meanest Briton; it must appear, that there is a crime committed, that the person to be seized is suspected of having committed it, and that the suspicion is founded upon probability. Requisites so reasonable in their own nature, so necessary to the protection of every man's quiet and reputation, and, by consequence, so useful to the security and happiness of society, that, I suppose, they will need no support or vindication. Every man is interested in the continuance of this method of proceeding, because no man is secure from suffering by the interruption or abolition of it.
Such, my lords, is the care and caution which the law directs in the first part of any criminal process, the detainment of the person supposed guilty; nor is the method of trial prescribed with less regard to the security of innocence.
It is an established maxim, that no man can be obliged to accuse himself, or to answer any questions which may have any tendency to discover what the nature of his defence requires to be concealed. His guilt must appear either by a voluntary and unconstrained confession, which the terrours of conscience have sometimes extorted, and the notoriety of the crime has at other times produced, or by the deposition of such witnesses as the jury shall think worthy of belief.
To the credibility of any witness it is always requisite that he be disinterested, that his own cause be not involved in that of the person who stands at the bar, that he has no prospect of advancing his fortune, clearing his reputation, or securing his life. For it is made too plain by daily examples, that interest will prevail over the virtue of most men, and that it is not safe to believe those who are strongly tempted to deceive.
There are cases, my lords, where the interest of the person offering his evidence is so apparent, that he is not even admitted to be heard; and any benefit which may possibly be proposed, is admitted as an objection to evidence, and weakens it in a measure proportionate to the distance of the prospect and the degree of profit.
Such are the rules hitherto followed in criminal proceedings, the violation of which has been always censured as cruelty and oppression, and perhaps always been repented even by those who proposed and defended it, when the commotions of party have subsided, and the heat of opposition and resentment has given way to unprejudiced reflection.
Of these rules, my lords, it is not necessary to produce any defence from the practice of distant nations, because it is sufficient in the present case, that they are established by the constitution of this country, to which every Briton has a right to appeal; for how can any man defend his conduct, if having acted under one law, he is to be tried by another?
Let us, therefore, my lords, apply these rules to the present bill, and inquire what regard appears to have been paid to them by the commons, and how well we shall observe them by concurring in their design.
With respect to the first, by which it is required, that there be a known and manifest crime, it does not appear to have engaged the least attention in the other house; for no fact is specified in the bill, upon which a prosecution can be founded, and, therefore, to inquire after evidence is somewhat preposterous; it is nothing less than to invite men to give their opinion without a subject, and to answer without a question.
It may be urged, indeed, that there is a universal discontent over the whole nation; that the clamour against the person mentioned in the bill, has been continued for many years; that the influence of the nation is impaired in foreign countries; that our treasury is exhausted; that our liberties have been attacked, our properties invaded, and our morals corrupted; but these are yet only rumours, without proof, and without legal certainty; which may, indeed, with great propriety give occasion to an inquiry, and, perhaps, by that inquiry some facts may be ascertained which may afford sufficient reasons for farther procedure.
But such, my lords, is the form of the bill now before us, that if it should pass into a statute, it would, in my opinion, put a stop to all future inquiry, by making those incapable of giving evidence, who have had most opportunities of knowing those transactions, which have given the chief occasion of suspicion, and from whom, therefore, the most important information must naturally be expected.
The first requisite qualification of a witness, whether we consult natural equity and reason, or the common law of our own country, is disinterestedness; an indifference, with regard to all outward circumstances, about the event of the trial at which his testimony is required. For he that is called as a witness where he is interested, is in reality giving evidence in his own cause.
But this qualification, my lords, the bill now before us manifestly takes away; for every man who shall appear against the person into whose conduct the commons are inquiring, evidently promotes, in the highest degree, his own interest by his evidence, as he may preclude all examination of his own behaviour, and secure the possession of that wealth which he has accumulated by fraud and oppression, or, perhaps, preserve that life which the justice of the nation might take away.
Nothing, my lords, is more obvious, than that this offer of indemnity may produce perjury and false accusation; nothing is more probable, than that he who is conscious of any atrocious villanies, which he cannot certainly secure from discovery, will snatch this opportunity of committing one crime more, to set himself free from the dread of punishment, and blot out his own guilt for ever, by charging lord ORFORD as one of his accomplices.
It may be urged, my lords, that he who shall give false evidence, forfeits the indemnity to which the honest witness is entitled; but let us consider why this should be now, rather than in any former time, accounted a sufficient security against falsehood and perjury. It is at all times criminal, and at all times punishable, to commit perjury; and yet it has been hitherto thought necessary, not only to deter it by subsequent penalties, but to take away all previous temptations; no man's oath will be admitted in his own cause, though offered at the hazard of the punishment inflicted upon perjury. To offer indemnity to invite evidence, and to deter them from false accusations by the forfeiture of it, even though we should allow to the penal clause all the efficacy which can be expected by those who proposed it, is only to set one part of the bill at variance with the other, to erect and demolish at the same time.
But it may be proved, my lords, that the reward will have more influence than the penalty; and that every man who can reason upon the condition in which he is placed by this bill, will be more incited to accuse lord ORFORD, however unjustly, by the prospect of security, than intimidated by the forfeiture incurred by perjury.
For, let us suppose, my lords, a man whose conduct exposes him to punishment, and who knows that he shall not long be able to conceal it; what can be more apparently his interest, than to contrive such an accusation as may complicate his own wickedness with some transactions of the person to whom this bill relates? He may, indeed, be possibly confuted, and lose the benefit offered by the state; but the loss of it will not place him in a condition more dangerous than that which he was in before; he has already deserved all the severity to which perjury will expose him, and by forging a bold and well-connected calumny, he has at least a chance of escaping. _