Chapter IV: Part 4

It may be urged, my lords, that he who shall give false evidence, forfeits the indemnity to which the honest witness is entitled; but let us consider why this should be now, rather than in any former time, accounted a sufficient security against falsehood and perjury. It is at all times criminal, and at all times punishable, to commit perjury; and yet it has been hitherto thought necessary, not only to deter it by subsequent penalties, but to take away all previous temptations; no man's oath will be admitted in his own cause, though offered at the hazard of the punishment inflicted upon perjury. To offer indemnity to invite evidence, and to deter them from false accusations by the forfeiture of it, even though we should allow to the penal clause all the efficacy which can be expected by those who proposed it, is only to set one part of the bill at variance with the other, to erect and demolish at the same time.

But it may be proved, my lords, that the reward will have more influence than the penalty; and that every man who can reason upon the condition in which he is placed by this bill, will be more incited to accuse lord ORFORD, however unjustly, by the prospect of security, than intimidated by the forfeiture incurred by perjury.

For, let us suppose, my lords, a man whose conduct exposes him to punishment, and who knows that he shall not long be able to conceal it; what can be more apparently his interest, than to contrive such an accusation as may complicate his own wickedness with some transactions of the person to whom this bill relates? He may, indeed, be possibly confuted, and lose the benefit offered by the state; but the loss of it will not place him in a condition more dangerous than that which he was in before; he has already deserved all the severity to which perjury will expose him, and by forging a bold and well-connected calumny, he has at least a chance of escaping.

Let us suppose, my lords, that the bill now under our consideration, assigned a pecuniary reward to any man who should appear against this person, with a clause by which he that should accuse him falsely should be dismissed without his pay; would not this appear a method of prosecution contrary to law, and reason, and justice? Would not every man immediately discover, that the witnesses were bribed, and therefore they would deserve no credit? And what is the difference between the advantage now offered and any other consideration, except that scarcely any other reward can be offered so great, and consequently so likely to influence?

It is to be remembered, that the patrons of this bill evidently call for testimony from the abandoned and the profligate, from men whom they suppose necessarily to confess their own crimes in their depositions; and surely wretches like these ought not to be solicited to perjury by the offer of a reward.

How cruel must all impartial spectators of the publick transactions account a prosecution like this? What would be your lordships' judgment, should you read, that in any distant age, or remote country, a man was condemned upon the evidence of persons publickly hired to accuse him, and who, by their own confession, were traitors to their country?

That wickedness, my lords, should be extirpated by severity, and justice rigorously exercised upon publick offenders, is the uncontroverted interest of every country; and therefore it is not to be doubted, that in all ages the reflections of the wisest men have been employed upon the most proper methods of detecting offences; and since the scheme now proposed has never been practised, or never but by the most oppressive tyrants, in the most flagitious times, it is evident, that it has been thought inconsistent with equity, and of a tendency contrary to publick happiness.

I am very far, my lords, from desiring that any breach of national trust should escape detection, or that a publick office should afford security to bribery, extortion, or corruption. I am far from intending to patronise the conduct of the person mentioned in the present bill. Let the commons proceed with the utmost severity, but let them not deviate from justice. If he has forfeited his fortune, his honours, or his life, let them by a legal process be taken from him; but let it always be considered, that he, like every other man, is to be allowed the common methods of self-defence; that he is to stand or fall by the laws of his country, and to retain the privileges of a Briton, till it shall appear that he has forfeited them by his crimes.

To censure guilt, my lords, is undoubtedly necessary, and to inquire into the conduct of men in power, incontestably just; but by the laws both of heaven and earth, the means as well as the end are prescribed, _rectum recte, legitimum legitime faciendum_; we must not only propose a good end in our conduct, but must attain it by that method which equity directs, and the law prescribes.

How well, my lords, the law has been observed hitherto, on this occasion, I cannot but propose that your lordships should consider. It is well known, that the commons cannot claim a right to administer an oath, and therefore can only examine witnesses by simple interrogatories. That they cannot confer upon a committee the power which they have not themselves, is indubitably certain; and therefore it is evident, that they have exceeded their privileges, and proceeded in their inquiry by methods which the laws of this nation will not support.

That they cannot, my lords, in their own right administer an oath, they apparently confess, by the practice of calling in, on that occasion, a justice of the peace, who, as soon as he has performed his office, is expected to retire. This, my lords, is an evident elusion; for it is always intended, that he who gives an oath, gives it in consequence of his right to take the examination; but in this case the witness takes an oath, _coram non judice_, before a magistrate that has no power to interrogate him, and is interrogated by those who have no right to require his oath.

Such, my lords, is my opinion of the conduct of the committee of the house of commons, of whom I cannot but conclude that they have assumed a right which the constitution of our government confers only on your lordships, as a house of senate, a court of judicature; and therefore cannot think it prudent to confirm their proceedings by an approbation of this bill.

The commons may indeed imagine that the present state of affairs makes it necessary to proceed by extraordinary methods; they may believe that the nation will not be satisfied without a discovery of those frauds which have been so long practised, and the punishment of those men by whom they have so long thought themselves betrayed and oppressed; but let us consider, that clamour is not evidence, and that we ought not either to recede from justice, or from our own rights, to satisfy the expectations of the people.

To remonstrate against this invasion of our privileges, my lords, might be at this juncture improper; the dispute might, in this time of commotion and vicissitude, distract the attention of those to whom the publick affairs are committed, retard the business of the nation, and give our enemies those advantages which they can never hope from their own courage, or policy, or strength. It may, therefore, be prudent on this occasion, only not to admit the right which they have assumed, to satisfy ourselves with retaining our privileges, without requiring any farther confirmation of them, and only defeat the invasion of them by rejecting the bill, which is, indeed, of such a kind, as cannot be confirmed without hazarding not only our own rights, but those of every Briton.

For here is a species of testimony invited, which is hitherto unknown to our law, and from which it may be difficult to tell who can be secure; the witnesses are required to disclose all matters relating to the conduct of _lord ORFORD, according to the best of their knowledge, remembrance, or belief!_ A form of deposition, my lords, of great latitude; a man's belief may be influenced by the report of others who may deceive him, by his observation of circumstances, either remote in themselves, or imperfectly discovered, or by his own reasonings, which must be just or fallacious according to his abilities; but which must yet have the same effect upon his belief, which they will influence, not in proportion to their real strength, but to the confidence placed in them by himself.

There is only one case, my lords, in which, by the common course of proceedings, any regard is had to mere belief; and this evidence is only accepted on that occasion, because no other can possibly be obtained. When any claim is to be determined by written evidences, of which, in order to prove their validity, it is necessary to inquire by whom they were drawn or signed; those who are acquainted with the writing of a dead person, are admitted to deliver, upon oath, their _belief_ that the writing ascribed to him, was or was not his; but such secondary witnesses are never called, when the person can be produced whose hand is to be proved.

There is yet another reason for which it is improper to admit such evidence as this bill has a tendency to promote. It is well known, that in all the courts of common law, the person accused is in some degree secured from the danger of being overborne by false accusations, by the penalty which may be inflicted upon witnesses discovered to be perjured; but in the method of examination now proposed, a method unknown to the constitution, no such security can be obtained, for there is no provision made by the laws for the punishment of a man who shall give false evidence before a committee of the house of commons.

It may likewise be observed, that this bill wants one of the most essential properties of a law, perspicuity and determinate meaning; here is an indemnity promised to those who shall discover _all_ that they _know, remember, or believe_. A very extensive demand, and which may, therefore, be liable to more fallacies and evasions than can be immediately enumerated or detected. For how can any one prove that he has a claim to the indemnity? He may, indeed, make some discoveries, but whether he does not conceal something, who can determine? May not such reserves be suspected, when his answers shall not satisfy the expectations of his interrogators? And may not that suspicion deprive him of the benefit of the act? May not a man, from want of memory, or presence of mind, omit something at his examination which he may appear afterwards to have known? And since no human being has the power of distinguishing exactly between faults and frailties, may not the defect of his memory be charged on him as a criminal suppression of a known fact? And may not he be left to suffer the consequences of his own confession? Will not the bill give an apparent opportunity for partiality? And will not life and death, liberty and imprisonment, be placed in the hands of a committee of the commons? May they not be easily satisfied with informations of one man, and incessantly press another to farther discoveries? May they not call some men, notoriously criminal, to examination, only to secure them from punishment, and set them out of the reach of justice; and extort from others such answers as may best promote their views, by declaring themselves unsatisfied with the extent of their testimony? And will not this be an extortion of evidence equivalent to the methods practised in the most despotick governments, and the most barbarous nations?

It has always been the praise of this house to pay an equal regard to justice and to mercy, and to follow, without partiality, the direction of reason, and the light of truth; and how consistently with this character, which it ought to be our highest ambition to maintain, we can ratify the present bill, your lordships are this day to consider. It is to be inquired, whether to suppose a man guilty, only because some guilt is suspected, be agreeable to justice; and whether it be rational before there is any proof of a crime, to point out the criminal.

We are to consider, my lords, whether it is not unjust to hear, against any man, an evidence who is hired to accuse him, and hired with a reward which he cannot receive without confessing himself a man unworthy of belief. It is to be inquired, whether the evidence of a man who declares only what he _believes_, ought to be admitted, when the nature of the crimes allows stronger proof; and whether any man ought to be examined where he cannot be punished if he be found perjured.

A natural and just regard to our own rights, on the preservation of which the continuance of the constitution must depend, ought to, alarm us at the appearance of any attempt to invade them; and the necessity of known forms of justice, ought to incite us to the prevention of any innovation in the methods of prosecuting offenders.

For my own part, my lords, I cannot approve either the principles or form of the bill. I think it necessary to proceed by known precedents, when there is no immediate danger that requires extraordinary measures, of which I am far from being convinced that they are necessary on the present occasion. I think that the certainty of a crime ought to precede the prosecution of a criminal, and I see that there is, in the present case, no crime attempted to be proved. The commons have, in my opinion, already exceeded their privileges, and I would not willingly confirm their new claims. For these reasons, my lords, I openly declare, that I cannot agree to the bill's being read a second time.

Lord TALBOT spoke next, to this effect:--My lords, so high is my veneration for this great assembly, that it is never without the utmost efforts of resolution that I can prevail upon myself to give my sentiments upon any question that is the subject of debate, however strong may be my conviction, or however ardent my zeal.

But in a very particular degree do I distrust my own abilities, when I find my opinion contrary to that of the noble lord who has now spoken; and it is no common perplexity to be reduced to the difficult choice of either suppressing my thoughts, or exposing them to so disadvantageous a contrast.

Yet, since such is my present state, that I cannot avoid a declaration of my thoughts on this question, without being condemned in my own breast as a deserter of my country, nor utter them without the danger of becoming contemptible in the eyes of your lordships; I will, however, follow my conscience, rather than my interest; and though I should lose any part of my little reputation, I shall find an ample recompense from the consciousness that I lost it in the discharge of my duty, on an occasion which requires from every good man the hazard of his life.

The arguments of the noble lord have had upon me an effect which they never, perhaps, produced on any part of his audience before; they have confirmed me in the contrary opinion to that which he has endeavoured to maintain. It has been remarked, that in some encounters, not to be put to flight is to obtain the victory; and, in a controversy with the noble lord, not to be convinced by him, is to receive a sufficient proof that the cause in which he is engaged is not to be defended by wit, eloquence, or learning.

On the present question, my lords, as on all others, he has produced all that can be urged, either from the knowledge of past ages, or experience of the present; all that the scholar or the statesman can supply has been accumulated, one argument has been added to another, and all the powers of a great capacity have been employed, only to show that right and wrong cannot be confounded, and that fallacy can never strike with the force of truth.

When I survey the arguments of the noble lord, disrobed of those ornaments which his imagination has so liberally bestowed upon them, I am surprised at the momentary effect which they had upon my mind, and which they could not have produced had they been clothed in the language of any other person.

For when I recollect, singly, the particular positions upon which his opinion seems to be founded, I do not find them by any means uncontrovertible; some of them seem at best uncertain, and some evidently mistaken.

That there is no apparent crime committed, and that, therefore, no legal inquiry can be made after the criminal, I cannot hear without astonishment. Is our commerce ruined, are our troops destroyed, are the morals of the people vitiated, is the senate crowded with dependants, are our fleets disarmed, our allies betrayed, and our enemies supported without a crime? Was there no certainty of any crime committed, when it was moved to petition his majesty to dismiss this person from his councils for ever.

It has been observed, my lords, that nothing but a sight of the dead body can warrant a pursuit after the murderer; but this is a concession sufficient for the present purpose; for if, upon the sight of a murdered person, the murderer may lawfully be inquired after, and those who are reasonably suspected detained and examined; with equal reason, my lords, may the survey of a ruined nation, a nation oppressed with burdensome taxes, devoured by the caterpillars of a standing army, sunk into contempt in every foreign court, and repining at the daily decay of its commerce, and the daily multiplication of its oppressors, incite us to an inquiry after the author of its miseries.

It is asserted, that no man ought to be called into question for any crime, who is not suspected of having committed it. This, my lords, is a rule not only reasonable in itself, but so naturally observed, that I believe it was never yet broken; and am certain, no man will be charged with the violation of it, for accusing this person as an enemy to his country.

But he that declares his suspicion, may be called upon to discover upon what facts it is founded; nor will this part of the law produce any difficulty in the present case; for as every man in the nation suspects this person of the most enormous crimes, every man can produce sufficient arguments to justify his opinion.

On all other occasions, my lords, publick fame is allowed some weight: that any man is universally accounted wicked, will add strength to the testimony brought against him for any particular offence; and it is at least a sufficient reason for calling any man to examination, that a crime is committed, and he is generally reported to be the author of it.

That this is the state of the person into whose conduct the commons are now inquiring; that he is censured by every man in the kingdom, whose sentiments are not repressed by visible influence; that he has no friends but those who have sold their integrity for the plunder of the publick; and that all who are not enemies to their country, have, for many years, incessantly struggled to drag him down from the pinnacle of power, and expose him to that punishment which he has so long deserved, and so long defied, is evident beyond contradiction.

Let it not, therefore, be urged, my lords, that there is no certainty of a crime which is proved to the conviction of every honest mind; let it not be said that it is unreasonable to suspect this man, whom the voice of the people, a voice always to be reverenced, has so long condemned.

The method of procuring evidence against him by an act of indemnity has been represented by the noble lord as not agreeable to justice or to law: in the knowledge of the law I am far from imagining myself able to contend with him; but I think it may not be improper to observe, that a person of the highest eminence in that profession, whose long study and great abilities give his decisions an uncommon claim to authority and veneration, and who was always considered in this house with the highest regard, appears to have entertained a very different opinion.

It was declared by him, without the least restriction, that all means were lawful which tended to the discovery of truth; and, therefore, the publick may justly expect that extraordinary methods should be used upon occasions of uncommon importance.

Nor does this expedient appear to me very remote from the daily practice of promising pardon to thieves, on condition that they will make discoveries by which their confederates may be brought to justice.

If we examine only the equity of this procedure, without regard to the examples of former times, it appears to me easily defensible; for what can be more rational than to break a confederacy of wretches combined for the destruction of the happiness of mankind, by dividing their interest, and making use, for the publick good, of that regard for their own safety, which has swallowed up every other principle of action?

It is admitted that wickedness ought to be punished, and it is universally known that punishment must be preceded by detection; any method, therefore, that promotes the discovery of crimes may be considered as advantageous to the publick.

As there is no wickedness of which the pernicious consequences are more extensive, there is none which ought more diligently to be prevented, or more severely punished, than that of those men who have dared to abuse the power which their country has put into their hands; but how they can be convicted by any other means than those which are now proposed, I confess myself unable to discover; for by a very small degree of artifice, a man invested with power may make every witness a partner of his guilt, and no man will be able to accuse him, without betraying himself. In the present case it is evident, that the person of whose actions the bill now before us is designed to produce a more perfect discovery, has been combined with others in illegal measures, in measures which their own security obliges them to conceal, and which, therefore, the interest of the publick demands to be divulged.

That Paxton has distributed large sums for purposes which he dares not discover, we are informed by the reports of the secret committee; and I suppose every body suspects that they were distributed as rewards for services which the nation thinks not very meritorious, and I believe no man will ask what reason can be alleged for such suspicions.

But since it may be possibly suggested that Paxton expended these sums contrary to his master's direction, or without his knowledge, it may be demanded, whether such an assertion would not be an apparent proof of a very criminal degree of negligence in a man intrusted with the care of the publick treasure?

Thus, my lords, it appears in my opinion evident, that either he has concurred in measures which his servile agent, the mercenary tool of wickedness, is afraid to confess, or that he has stood by, negligent of his trust, and suffered the treasure of the nation to be squandered by the meanest wretches without account.

That the latter part of the accusation is undoubtedly just, the report of the commons cannot but convince us. It appears that for near eight years, Paxton was so high in confidence, that no account was demanded from him; he bestowed pensions at pleasure; he was surrounded, like his master, by his idolaters; and after the fatigue of cringing in one place, had an opportunity of purchasing the taxes of the nation, the gratification of tyranny in another.

I presume, my lords, that no man dares assert such a flagrant neglect of so important an office, to be not criminal in a very high degree; to steal in private houses that which is received in trust, is felony by the statutes of our country; and surely the wealth of the publick ought not to be less secured than that of individuals, nor ought he that connives at robbery to be treated with more lenity than the robber.

Therefore, my lords, as I cannot but approve of the bill, I move that it may be read a second time; and I hope the reasons which I have offered, when joined with others, which I expect to hear from lords of a greater experience, knowledge, and capacity, will induce your lordships to be of the same opinion.

Lord HERVEY spoke next, to this effect:--My lords, as the bill now before us is of a new kind, upon an occasion no less new, I have endeavoured to bestow upon it a proportionate degree of attention, and have considered it in all the lights in which I could place it; I have, in my imagination, connected with it all the circumstances with which it is accompanied, and all the consequences that it may produce either to the present age, or to futurity; but the longer I reflect upon it, the more firmly am I determined to oppose it; nor has deliberation any other effect, than to crowd my thoughts with new arguments against it, and to heighten dislike to detestation.

It must, my lords, immediately occur to every man, at the first mention of the method of proceeding now proposed, that it is such as nothing but extreme necessity can vindicate; that the noble person against whom it is contrived, must be a monster burdensome to the world; that his crimes must be at once publick and enormous, and that he has been already condemned by all maxims of justice, though he has had the subtilty to escape by some unforeseen defect in the forms of law. It might be imagined, my lords, that there were the most evident marks of guilt in the conduct of the man thus censured, that he fled from the justice of his country, that he had openly suborned witnesses in his favour, or had, by some artifice certainly known, obstructed the evidence that was to have been brought against him. It might at least be reasonably conceived, that his crimes were of such a kind as might in their own nature easily be concealed, and that, therefore, some extraordinary measures were necessary for the discovery of wickedness which lay out of the reach of common inquiry.

But, my lords, none of these circumstances can be now alleged; for there is no certainty of any crime committed, nor any appearance of consciousness or fear in the person accused, who sets his enemies at defiance in full security, and declines no legal trial of his past actions; of which it ought to be observed, that they have, by the nature of his employments, been so publick, that they may easily be examined without recourse to a new law to facilitate discoveries.

The bill, therefore, is, my lords, at least unnecessary, and an innovation not necessary ought always to be rejected, because no man can foresee all the consequences of new measures, or can know what evils they may create, or what subsequent changes they may introduce. The alteration of one part of a system naturally requires the alteration of another.

But, my lords, that there is no necessity for this law now proposed, is not the strongest argument that may be brought against it, for there is in reality a necessity that it should be rejected. Justice and humanity are necessarily to be supported, without which no society can subsist, nor the life or property of any man be enjoyed with security: and neither justice nor humanity can truly be said to reside, where a law like this has met with approbation.

My lords, to prosecute any man by such methods, is to overbear him by the violence of power, to take from him all the securities of innocence, and divest him of all the means of self-defence. It is to hire against him those whose testimonies ought not to be admitted, if they were voluntarily produced, and of which, surely, nothing will be farther necessary to annihilate the validity, than to observe that they are the depositions of men who are villains by their own confession, and of whom the nation sees, that they may save their lives by a bold accusation, whether true or false.

That the bill will, indeed, be effectual to the purposes designed, that it will crowd the courts of justice with evidence, and open scenes of wickedness never discovered before, I can readily believe; for I cannot imagine that any man who has exposed his life by any flagrant crime, will miss so fair an opportunity of saving it by another. I shall expect, my lords, that villains of all denominations, who are now skulking in private retreats, who are eluding the officers of justice, or flying before the publick pursuit of the country, will secure themselves by this easy expedient; and that housebreakers, highwaymen, and pickpockets, will come up in crowds to the bar, charge the earl of ORFORD as their accomplice, and plead this bill as a security against all inquiry.

That this supposition, however wild and exaggerated it may seem, may not be thought altogether chimerical; that it may appear with how little consideration this bill has been drawn, and how easily it may be perverted to the patronage of wickedness, I will lay before your lordships such a plea as may probably be produced by it.

A man whom the consciousness of murder has for some time kept in continual terrours, may clear himself for ever, by alleging, that he was commissioned by the earl of ORFORD to engage, with any certain sum, the vote or interest of the murdered person; that he took the opportunity of a solitary place to offer him the bribe, and prevail upon him to comply with his proposals; but that finding him obstinate and perverse, filled with prejudices against a wise and just administration, and inclined to obstruct the measures of the government, he for some time expostulated with him; and being provoked by his contumelious representations of the state of affairs, he could no longer restrain the ardour of his loyalty, but thought it proper to remove from the world a man so much inclined to spread sedition among the people; and that, therefore, finding the place convenient, he suddenly rushed upon him and cut his throat.

Thus, my lords, might the murderer represent his case, perhaps, without any possibility of a legal confutation; thus might the most atrocious villanies escape censure, by the assistance of impudence and cunning.

A bill like this, my lords, is nothing less than a proscription; the head of a citizen is apparently set to sale, and evidence is hired, by which the innocent and the guilty may be destroyed with equal facility.

It is apparent, my lords, that they by whom this bill is proposed, act upon the supposition that the noble person mentioned in it, is guilty of all those crimes of which he is suspected; a supposition, my lords, which it is unjust to make, and to which neither reason, nor the laws of our country, will give countenance or support.

I, my lords, will much more equitably suppose him innocent; I will suppose that he has, throughout all the years of his administration, steadily prosecuted the best ends, by the best means; that if he has sometimes been mistaken or disappointed, it has been neither by his negligence nor ignorance, but by false intelligence, or accidents not to be foreseen; and that he has never either sacrificed his country to private interest, or procured, by any illegal methods, the assistance and support of the legislature; and I will ask your lordships, whether, if this character be just, the bill ought to be passed, and doubt not but every man's conscience will inform him, that it ought to be rejected with the utmost indignation.

The reason, my lords, for which it ought to be rejected, is evidently this, that it may bring innocence into danger. But, my lords, every man before his trial is to be supposed innocent, and, therefore, no man ought to be exposed to the hazards of a trial, by which virtue and wickedness are reduced to a level. A bill like this ought to be marked out as the utmost effort of malice, as a species of cruelty never known before, and as a method of prosecution which this house has censured.

I did not, indeed, expect from those who have so long clamoured with incessant vehemence against the measures of the ministry, such an open confession of their own weakness. Nothing, my lords, was so frequently urged, or so warmly exaggerated, as the impossibility of procuring evidence against a man in power; nothing was more confidently asserted, than that his guilt would be easily proved when his authority was at an end; and that even his own agents would readily detect him, when they were no longer dependant upon his favour.

The time, my lords, so long expected, and so ardently desired, is at length come; this noble person whom they have so long pursued with declamations, invectives, and general reproaches, has at length resigned those offices which set him above punishment or trial; he is now without any other security than that by which every other man is sheltered from oppression, the publick protection of the laws of his country; but he is yet found impregnable, he is yet able to set his enemies at defiance; and they have, therefore, now, with great sagacity, contrived a method by which he may be divested of the common privileges of a social being, and may be hunted like a wild beast, without defence, and without pity.

Where, my lords, can it be expected that malice like this will find an end? Is it not reasonable to imagine that if they should be gratified in this demand, and should find even this expedient baffled by the abilities which they have so often encountered without success, they would proceed to measures yet more atrocious, and punish him without evidence, whom they call to a trial without a crime.

It has been observed by the noble lord who spoke last, that there are crimes mentioned in the report of the secret committee of the house of commons, or that at least such facts are asserted in it, that an accusation may, by easy deductions, be formed from them. The report of that committee, my lords, with whatever veneration it may be mentioned, by those whose purposes it happens to favour, or of whatever importance it may be in the other house, is here nothing but a pamphlet, not to be regarded as an evidence, or quoted as a writing of authority. It is only an account of facts of which we know not how they were collected, and which every one may admit or reject at his own choice, till they are ascertained by proper evidence at our own bar, and which, therefore, ought not to influence our opinion in the present debate.

Nor is the bill, my lords, only founded upon principles inconsistent with the constitution of this nation, apparently tending to the introduction of a new species of oppression, but is in itself such as cannot be ratified without injury to the honour of this great assembly.

In examining the bill, my lords, I think it not necessary to dwell upon the more minute and trivial defects of the orthography and expression, though they are such as might justly give occasion for suspecting that they by whom it was written, were no less strangers to our language than to our constitution. There are errours or falsehoods which it more nearly concerns us to detect, and to which we cannot give any sanction, without an evident diminution of our own authority.

It declares, my lords, that there is now an inquiry depending before the senate, an assertion evidently false, for the inquiry is only before the commons. Whether this was inserted by mistake or design, whether it was intended to insinuate that the whole senatorial power was comprised in the house of commons, or to persuade the nation that your lordships concurred with them in this inquiry, it is not possible to determine; but since it is false in either sense, it ought not to receive our confirmation.

If we should pass the bill in its present state, we should not only declare our approbation of the measures hitherto pursued by the commons, by which it has been already proved, by the noble and learned lord who spoke first against the bill, that they have not only violated the law, but invaded the privileges of this house. We should not only establish for ever in a committee of the house of commons, the power of examining upon oath, by an elusive and equivocatory expedient, but we should in effect vote away our own existence, give up at once all authority in the government, and grant them an unlimited power, by acknowledging them the senate, an acknowledgment which might, in a very short time, be quoted against us, and from which it would not be easy for us to extricate ourselves.

It has, indeed, been remarked, that there is a large sum of money disbursed without account, and the publick is represented as apparently injured, either by fraud or negligence; but it is not remembered that none but his majesty has a right to inquire into the distribution of the revenue appropriated to the support of his family and dignity, and the payment of his servants, and which, therefore, cannot, in any degree, be called publick money, or fall under the cognizance of those whom it concerns to inspect the national accounts. Either the civil list must be exempt from inquiries, or his majesty must be reduced to a state below that of the meanest of his subjects; he can enjoy neither freedom nor property, and must be debarred for ever from those blessings which he is incessantly labouring to secure to others.

There is, likewise, another consideration, which my regard for the honour of this assembly suggested to me, and of which I doubt not but that all your lordships will allow the importance. The noble person who is pointed out in this bill as a publick criminal, and whom all the villains of the kingdom are invited to accuse, is invested with the same honours as ourselves, and has a son who has for many years possessed a seat amongst us; let us not, therefore, concur with the commons to load our own house with infamy, and to propagate reproach, which will at last fix upon ourselves.

Innumerable are the objections, my lords, which might yet be urged, and urged without any possibility of reply; but as I have already been heard with so much patience, I think what has been already mentioned sufficient to determine the question: and as I doubt not but the other defects and absurdities will be observed, if it be necessary, by some other lords, I shall presume only to add, that as the bill appears to me contrary to the laws of this nation, to the common justice of society, and to the general reason of mankind, as it must naturally establish a precedent of oppression, and confirm a species of authority in the other house which was either never claimed before, or always denied; as I think the most notorious and publick criminal ought not to be deprived of that method of defence which the established customs of our country allow him, and believe the person mentioned in this bill to deserve rather applauses and rewards, than censures and punishments, I think myself obliged to oppose it, and hope to find your lordships unanimous in the same opinion.

Then the duke of ARGYLE answered, in substance as follows:--My lords, whatever may be the fate of this question, I have little hope that it will be unanimously decided, because I have reason to fear that some lords have conceived prejudices against the bill, which hinder them from discovering either its reasonableness or its necessity; and am convinced that others who approve the bill, can support their opinion by arguments from which, as they cannot be confuted, they never will recede.

Those arguments which have influenced my opinion, I will lay before your lordships, and doubt not of showing that I am very far from giving way to personal malice, or the prejudices of opposition; and that I regard only the voice of reason, and the call of the nation.

Calmness and impartiality, my lords, have been, with great propriety, recommended to us by the noble lord who spoke first in this debate; and I hope he will discover by the moderation with which I shall deliver my sentiments on this occasion, how much I reverence his precepts, and how willingly I yield to his authority.

I am at least certain, that I have hitherto listened to the arguments that have been offered on either side with an attention void of prejudice; I have repressed no motions of conviction, nor abstracted my mind from any difficulty, to avoid the labour of solving it: I have been solicitous to survey every position in its whole extent, and trace it to its remotest consequences; I have assisted the arguments against the bill by favourable suppositions, and imaginary circumstances, and have endeavoured to divest my own opinion of some appendant and accidental advantages, that I might view it in a state less likely to attract regard; and yet I cannot find any reason by which I could justify myself to my country or my conscience, if I should concur in rejecting this bill, or should not endeavour to promote it. I am not unacquainted, my lords, with the difficulties that obstruct the knowledge of our own hearts, and cannot deny that inclination may be sometimes mistaken for conviction; and men even wise and honest, may imagine themselves to believe what, in reality, they only wish: but this, my lords, can only happen for want of attention, or on sudden emergencies, when it is necessary to determine with little consideration, while the passions have not yet time to subside, and reason is yet struggling with the emotions of desire.

In other circumstances, my lords, I am convinced that no man imposes on himself without conniving at the fraud, without consciousness that he admits an opinion which he has not well examined, and without consulting indolence rather than reason; and, therefore, my lords, I can with confidence affirm, that I now declare my real opinion, and that if I err, I err only for want of abilities to discover the truth; and hope it will appear to your lordships, that I have been misled at least by specious arguments, and deceived by fallacious appearances, which it is no reproach not to have been able to detect.

It will, my lords, be granted, I suppose, without hesitation, that the law is consistent with itself; that it never at the same time commands and prohibits the same action; that it cannot be at once violated and observed. From thence it will inevitably follow, that where the circumstances of any transaction are such, that the principles of that law by which it is cognizable are opposite to each other, some expedients may be found by which these circumstances may be altered. Otherwise a subtle or powerful delinquent will always find shelter in ambiguities, and the law will remain inactive, like a balance loaded equally on each side.

On the present occasion, my lords, I pronounce with the utmost confidence, as a maxim of indubitable certainty, _that the publick has a claim to every man's evidence_, and that no man can plead exemption from this duty to his country. But those whom false gratitude, or contracted notions of their own interest, or fear of being entangled in the snares of examination, prompt to disappoint the justice of the publick, urge with equal vehemence, and, indeed, with equal truth, that _no man is obliged to accuse himself_, and that the constitution of Britain allows no man's evidence to be extorted from him to his own destruction.

Thus, my lords, two of the first principles of the British law, though maxims equally important, equally certain, and equally to be preserved from the least appearance of violation, are contradictory to each other, and neither can be obeyed, because neither can be infringed.

How then, my lords, is this contradiction to be reconciled, and the necessity avoided of breaking the law on one side or the other, but by the method now proposed, of setting those whose evidence is required, free from the danger which they may incur by giving it.

The end of the law is the redress of wrong, the protection of right, and the preservation of happiness; and the law is so far imperfect as it fails to produce the end for which it is instituted; and where any imperfection is discovered, it is the province of the legislature to supply it.

By the experience, my lords, of one generation after another, by the continued application of successive ages, was our law brought to its present accuracy. As new combinations of circumstances, or unforeseen artifices of evasion, discovered to our ancestors the insufficiency of former provisions, new expedients were invented; and as wickedness improved its subtilty, the law multiplied its powers and extended its vigilance.

If I should, therefore, allow, what has been urged, that there is no precedent of a bill like this, what can be inferred from it, but that wickedness has found a shelter that was never discovered before, and which must be forced by a new method of attack? And what then are we required to do more than has been always done by our ancestors, on a thousand occasions of far less importance?

I know not, my lords, whether it be possible to imagine an emergence that can more evidently require the interposition of the legislative power, than this which is now proposed to your consideration. The nation has been betrayed in peace, and disgraced in war; the constitution has been openly invaded, the votes of the commons set publickly to sale, the treasures of the publick have been squandered to purchase security to those by whom it was oppressed, the people are exasperated to madness, the commons have begun the inquiry that has been for more than twenty years demanded and eluded, and justice is on a sudden insuperably retarded by the deficiency of the law.

Surely, my lords, this is an occasion that may justify the exertion of unusual powers, and yet nothing either new or unusual is required; for the bill now proposed may be supported both by precedents of occasional laws, and parallel statutes of lasting obligation.

When frauds have been committed by the agents of trading companies, bills of indemnity to those by whom any discoveries should be made, have been proposed and passed without any of those dreadful consequences which some noble lords have foreseen in this. I have never heard that any man was so stupid as to mistake such a bill for a general act of grace, or that the confession of any crimes was procured by it, except of those which it was intended to detect; I have never been informed, that any murderer was blessed with the acuteness of the noble lord, or thought of flying to such an act as to a common shelter for villany. Such suppositions, my lords, can be intended only to prolong a controversy and weary an opponent; nor can such trifling exaggerations contribute to any other end, than of discovering the fertility of imagination, and the exuberance of eloquence.

For my part, my lords, I think passion and negligence equally culpable in a debate like this; and cannot forbear to recommend seriousness and attention, with the same zeal with which moderation and impartiality have already been inculcated. He that entirely disregards the question in debate, who thinks it too trivial for a serious discussion, and speaks upon it with the same superficial gaiety with which he would relate the change of a fashion, or the incidents of a ball, is not very likely, either to discover or propagate the truth; and is less to be pardoned, than he who is betrayed by passion into absurdities, as it is less criminal to injure our country by zeal than by contempt.

That bills, without any essential difference from that which is now before us, have been passed in favour of private companies, is indisputably certain; it is certain that they never produced any other effect, than such as were expected from them by those who promoted them. It is evident, that the welfare of the nation is more worthy of our regard than any separate company; that the whole, of more importance than a part; and therefore, the same measures may be now used with far greater justice, and with equal probability of success.

The necessity of the law now proposed, my lords, cannot more plainly appear, than by reflecting on the absurdity of the pleas made use of for refusing it, which, considered in the whole, contain only this assertion, that the security of one man is to be preferred to justice, to truth, to publick felicity; that a precedent is rather to be established, which will for ever shelter every future minister from the laws of our country; and that all our miseries are rather to be borne in silence, or lamented in impotence, than the man, whom the whole nation agrees to accuse as the author of them, should be exposed to the hazard of a trial, even before those whom every tie of interest and long-continued affection has united to him.

It is, indeed, objected, that by passing this bill, we shall transfer the authority of trying him to the other house; that we shall give up our privileges for ever, erect a new court of judicature, and overturn the constitution.

I have long observed, my lords, how vain it is to argue against those whose resolutions are determined by extrinsick motives, and have been long acquainted with the art of disguising obstinacy, by an appearance of reasons that have no weight, even in the opinion of him by whom they are offered, and of raising clouds of objections, which, by the first reply, will certainly be dissipated, but which, at least, fill the mouth for a time, and preserve the disputant from the reproach of adhering to an opinion, in vindication of which he had nothing to say.

Of this kind is the objection which I am now to remove, though I remove it only to make way for another, for those can never be silenced who can satisfy themselves with arguments like this; however, those that offer it expect it should be answered, and if it should be passed over in the debate, will boast of its irrefragability, and imagine that they have gained the victory by the superiority of their abilities, rather than of their numbers.

That we shall, by passing this bill, give the commons a power which they want at present, is unquestionably evident; but we shall only retrieve that which they were never known to want before, the power of producing evidence; evidence which we, my lords, must hear, and of whose testimonies we shall reserve the judgment to ourselves. The commons will only act as prosecutors, a character in which they were never conceived to encroach upon our right. The man whose conduct is the subject of inquiry, must stand his trial at our bar; nor has the bill any other tendency, than to enable the commons to bring him to it.

What can be alleged against this design I know not; because I can discover no objections which do not imply guilt, and guilt we are not yet at liberty to suppose. I am so far from pressing this bill from any motives of personal malevolence, that I am only doing, in the case of the minister, what I should ardently desire to be done in my own, and what no man would wish to obstruct, who was supported by a consciousness of integrity, and stimulated by that honest sense of reputation which I have always found the concomitant of innocence.

I hope I shall be readily believed by your lordships, when I assert, once more, that I should not only forbear all opposition to a bill intended to produce a scrutiny into my conduct, but that I should promote it with all my interest, and solicit all my friends to expedite and support it; for there was once a time, my lords, in which my behaviour was brought to the test, a time when no expedient was forgotten by which I might be oppressed, nor any method untried to procure accusations against me.