_ 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.]
[THE END]
Samuel Johnson's Writing: Debate On A Motion For Indemnifying Evidence
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