Complete Works of Samuel Johnson, page 265
Thus, my lords, an inquiry appears, upon every supposition, useful and necessary; but I cannot comprehend how it can be prosecuted by any other method, than that of proposing an indemnity to those who shall make discoveries. Every wicked measure, my lords, must involve in guilt all who are engaged in it; and how easily it may be concealed from every other person, may be shown by an example of a crime, which no man will deny to have sometimes existed, and which, in the opinion of most, is not very uncommon in this age.
It will be allowed, at least, that on some occasions, when a favourite begins to totter, when strong objections are raised against the continuance of a standing army, when a convention requires the ratification of the legislature, or some fatal address is proposed to be presented to the crown, a pecuniary reward may sometimes be offered, and though that, indeed, be a supposition more difficult to be admitted, sometimes, however rarely, accepted.
In this case, my lords, none but he that gives, and he that receives the bribe can be conscious of it; at most, we can only suppose an intervening agent to have any knowledge of it; and if even he is admitted to the secret, so as to be able to make a legal discovery, there must be some defect of cunning in the principals. Let us consider from which of these any discovery can be probably expected, or what reason can be alleged, for which either should expose himself to punishment for the sake of ruining his associates.
It is, therefore, my lords, plain, from this instance, that without the confession of some guilty person, no discovery can be made of those crimes which are most detrimental to our happiness, and most dangerous to our liberties. It is apparent that no man will discover his own guilt; while there remains any danger of suffering by his confession, it is certain that such crimes will be committed, if they are not discouraged by the fear of punishment, and it cannot, therefore, be denied that a proclamation of indemnity is necessary to their detection.
This, my lords, is not, as it has been alleged, a method unknown to our constitution, as every man that reads the common papers will easily discover. I doubt if there has been, for many years, a single month in which some reward, as well as indemnity, has not been promised to any man, who, having been engaged in a robbery, would discover his confederates; and surely a method that is daily practised for the security of private property, may be very rationally and justly adopted by the legislature for the preservation of the happiness and the property of the publick.
The punishment of wickedness, my lords, is undoubtedly one of the essential parts of good government, and, in reality, the chief purpose for which society is instituted; for how will that society in which any individual may be plundered, enslaved, and murdered, without redress and without punishment, differ from the state of corrupt nature, in which the strongest must be absolute, and right and power always the same?
That constitution, therefore, which has not provided for the punishment, and previously for the discovery of guilt, is so far in a state of imperfection, and requires to be strengthened by new provisions. This, my lords, is far from being our state, for we have in our hands a method of detecting the most powerful criminals, a method in itself agreeable to reason, recommended by the practice of our predecessors, and now approved, once more, by the sanction of one of the branches of the legislature.
The objections which have, on this occasion, been made against it, are such as no law can escape, and which, therefore, can have no weight; and it is no small confirmation of the expediency of it, that they by whom it has been opposed have not been able to attack it with stronger reasons, from which, if we consider their abilities, we shall be convinced, that nothing has secured it but the power of truth.
It is inquired, by the noble lord, how we shall distinguish true from false evidence; to which it may be very readily answered, that we shall distinguish them by the same means as on any other occasion, by comparing the allegations, and considering how every witness agrees with others and with himself, how far his assertions are in themselves probable, how they are confirmed or weakened by known circumstances, and how far they are invalidated by the contrary evidence.
We shall, my lords, if we add our sanction to this bill, discover when any man’s accusation is prompted by his interest, as we might know whether it was dictated by his malice.
It has been asked also, how any man can ascertain his claim to the indemnity? To which it may be easily replied, that by giving his evidence he acquires a right, till that evidence shall be proved to be false.
The noble lord who spoke some time ago, and whose abilities and qualities are such, that I cannot but esteem and admire him, even when conviction obliges me to oppose him, has proposed a case in which he seems to imagine that a murderer might secure himself from punishment, by connecting his crime with some transaction in which the earl of ORFORD should be interested. This case, my lords, is sufficiently improbable, nor is it easy to mention any method of trial in which some inconvenience may not be produced, in the indefinite complications of circumstances, and unforeseen relations of events. It is known to have happened once, and cannot be known not to have happened often, that a person accused of murder, was tried by a jury of which the real murderer was one. Will not this then be an argument against the great privilege of the natives of this empire, a trial by their equals?
But, my lords, I am of opinion that the murderer would not be indemnified by this bill, since he did not commit the crime by the direction of the person whom he is supposed to accuse; nor would it have any necessary connexion with his conduct, but might be suppressed in the accusation, without any diminution of the force of the evidence. A man will not be suffered to introduce his accusation with an account of all the villanies of his whole life, but will be required to confine his testimony to the affair upon which he is examined.
The committee, my lords, will distinguish between the crimes perpetrated by the direction of the earl of ORFORD, and those of another kind. And should an enormous criminal give such evidence, as the noble lord was pleased to suppose, he may be indemnified for the bribery, but will be hanged for the murder, notwithstanding any thing in this bill to the contrary.
It has been insisted on by the noble lords, who have spoke against the bill, that no crime is proved, and, therefore, there is no foundation for it. But, my lords, I have always thought that the profusion of the publick money was a crime, and there is evidently a very large sum expended, of which no account has been given; and, what more nearly relates to the present question, of which no account has ever been demanded.
On this occasion, my lords, an assertion has been alleged, which no personal regard shall ever prevail upon me to hear without disputing it, since I think it is of the most dangerous tendency, and unsupported by reason or by law. It is alleged, my lords, that the civil list is not to be considered as publick money, and that the nation has, therefore, no claim to inquire how it is distributed; that it is given to support the dignity of the crown, and that only his majesty can ask the reason of any failures in the accounts of it.
I have, on the contrary, my lords, hitherto understood, that all was publick money which was given by the publick. The present condition of the crown is very different from that of our ancient monarchs, who supported their dignity by their own estates. I admit, my lords, that they might at pleasure contract or enlarge their expenses, mortgage or alienate their lands, or bestow presents and pensions without control.
It is, indeed, expressed in the act, that the grants of the civil list are without account, by which I have hitherto understood only that the sum total is exempt from account; not that the ministers have a right to employ the civil list to such purposes as they shall think most conducive to their private views. For if it should be granted, not only that the nation has no right to know how the whole is expended, which is the utmost that can be allowed, or to direct the application of any part of it, which is very disputable, yet it certainly has a claim to direct in what manner it shall not be applied, and to provide that boroughs are not corrupted under pretence of promoting the dignity of the crown.
The corruption of boroughs, my lords, is one of the greatest crimes of which any man under our constitution is capable; it is to corrupt, at once, the fountain and the stream of government, to poison the whole nation at once, and to make the people wicked, that they may infect the house of commons with wicked representatives.
Such, my lords, are the crimes, the suspicion of which incited the commons to a publick inquiry, in which they have been able to proceed so far, as to prove that the publick discontent was not without cause, and that such arts had been practised, as it is absolutely necessary, to the publick security, to detect and punish.
They, therefore, pursued their examination with a degree of ardour proportioned to the importance of the danger in which every man is involved by the violation of the fundamental laws of the constitution; but, they found themselves obstructed by the subtilty of some who confessed only that they were guilty, and determined to be faithful to their accomplices and themselves.
A farther inquiry, my lords, was, by this unforeseen evasion, made impossible; the ultimate and principal agent is sheltered from the law by his guard of mercenaries, wretches who are contented to be infamous, if they can continue to be rich, and value themselves on their adherence to their master, while they are conspiring to ruin their country.
The nation, my lords, in the mean time, justly applies for redress to the power of the legislature, and to its wisdom for methods of procuring it by law. The commons have complied with their importunities, and propose to your lordships the bill before you, a bill for making a publick inquiry possible, and for bringing a minister within reach of the law.
On this occasion, my lords, we are upbraided with our own declarations, that the person mentioned in this bill would quickly find accusers, when he should be divested of his authority. Behold him now, say his advocates, reduced from his envied eminence, and placed on a level with his fellow-subjects! Behold him no longer the distributer of employments, or the disburser of the publick treasure! see him divested of all security, but that of innocence, and yet no accusations are produced!
This, my lords, is a topick so fruitful of panegyrick, and so happily adapted to the imagination of a person long used to celebrate the wisdom and integrity of ministers, that, were not the present question of too great importance to admit of false concessions, I should suffer it to remain without controversy.
But, my lords, this is no time for criminal indulgence; and, therefore, I shall annihilate this short-lived triumph by observing, that to be out of place, is not necessarily to be out of power; a minister may retain his influence, who has resigned his employment; he may still retain the favour of his prince, and possess him with a false opinion, that he can only secure his authority by protecting him; or, what there is equal reason to suspect, his successours may be afraid of concurring in a law which may hereafter be revived against themselves.
It may be urged farther, my lords, that he cannot with great propriety be said to have no power, who sees the legislature crowded with men that are indebted to his favour for their rank and their fortunes.
Such a man may bid defiance to inquiry, with confidence produced by security very different from that of innocence; he may depend upon the secrecy of those whom he has, perhaps, chosen for no other virtue; he may know that common danger will unite them to him, and that they cannot abandon him without exposing themselves to the same censures.
These securities, my lords, the fortifications of the last retreat of wickedness, remain now to be broken, and the nation expects its fate from our determinations, which will either secure the liberties of our posterity from violation, by showing that no degree of power can shelter those who shall invade them, or that our constitution is arrived at this period, and that all struggles for its continuance will be vain.
Let us not, my lords, combine with the publick enemies, let us not give the nation reason to believe that this house is infected with the contagion of venality, that our honour is become an empty name, and that the examples of our ancestors have no other effect upon us than to raise the price of perfidy, and enable us to sell our country at a higher rate.
Let us remember, my lords, that power is supported by opinion, and that the reverence of the publick cannot be preserved but by rigid justice and active beneficence.
For this reason, I am far from granting that we ought to be cautious of charging those with crimes who have the honour of a seat amongst us. In my opinion, my lords, we ought to be watchful against the least suspicion of wickedness in our own body, we ought to eject pollution from our walls, and preserve that power for which some appear so anxious, by keeping our reputation pure and untainted.
It is, therefore, to little purpose objected, that there is no corpus delicti; for even, though it were true, yet while there is a corpus suspicionis, then inquiry ought to be made for our own honour, nor can either law or reason be pleaded against it.
I cannot, therefore, doubt, that your lordships will endeavour to do justice; that you will facilitate the production of oral evidence, lest all written proofs should be destroyed; that you will not despise the united petition of the whole people, of which I dread the consequence; nor reject the only expedient by which their fears may be dissipated, and their happiness secured.
Lord HARDWICKE spoke next, in the following manner: — My lords, after having, with an intention uninterrupted by any foreign considerations, and a mind intent only on the discovery of truth, examined every argument which has been urged on either side, I think it my duty to declare, that I have yet discovered no reason, which, in my opinion, ought to prevail upon us to ratify the bill that is now before us.
The noble lords who have defended it, appear to reason more upon maxims of policy, than rules of law, or principles of justice; and seem to imagine, that if they can prove it to be expedient, it is not necessary to show that it is equitable.
How far, my lords, they have succeeded in that argument which they have most laboured, I think it not necessary to examine, because I have hitherto accounted it an incontestable maxim, that whenever interest and virtue are in competition, virtue is always to be preferred.
The noble lord who spoke first in this debate, has proved the unreasonableness and illegality of the methods proposed in this bill, beyond the possibility of confutation; he has shown that they are inconsistent with the law, and-that the law is founded upon reason: he has proved, that the bill supposes a criminal previous to the crime, summons the man to a trial, and then inquires for what offence.
Nor has he, my lords, confined himself to a detection of the original defect, the uncertainty of any crime committed, but has proceeded to prove, that upon whatever supposition we proceed, the bill is unequitable, and of no other tendency than to multiply grievances, and establish a precedent of oppression.
For this purpose he has shown, that no evidence can be procured by this till, because all those who shall, upon the encouragement proposed in it, offer information, must be considered as hired witnesses, to whom no credit can be given, and who, therefore, ought not to be heard.
His lordship also proved, that we cannot pass this bill without diminishing our right, bestowing new powers upon the commons, confirming some of their claims which are most dubious, nor, by consequence, without violating the constitution.
To all these arguments, arguments drawn from the most important considerations, enforced by the strongest reasoning, and explained with the utmost perspicuity, what has been replied? How have any of his assertions been invalidated, or any of his reasons eluded? How has it been shown that there is any foundation for a criminal charge, that witnesses thus procured ought to be heard, or that our rights would not be made disputable by confirming the proceedings of the commons?
It has been answered by a noble lord, that though there is not corpus delicti, there is corpus suspicionis. What may be the force of this argument, I cannot say, because I am not ashamed to own, that I do not understand the meaning of the words. I very well understand what is meant by corpus delicti, and so does every other lord; it is universally known to mean the body of an offence; but as to the words corpus suspicionis, I do not comprehend what they mean: it is an expression, indeed, which I never before heard, and can signify, in my apprehension, nothing more than the body of a shadow, the substance of something which is itself nothing.
Such, my lords, is the principle of this bill, by the confession of its warmest and ablest advocates; it is a bill for summoning a person to a trial, against whom no crime is alleged, and against whom no witness will appear without a bribe.
For that those who should appear in consequence of this bill to offer their evidence, ought to be considered as bribed, will, surely, need no proof to those who consider, that bribes are not confined to money, and that every man who promotes his own interest by his deposition, is swearing, not for truth and justice, but for himself.
It may be urged, and it is, in my opinion, all that the most fruitful imagination can suggest in favour of this bill, that they are not required to accuse the earl of ORFORD, but to give in their evidence concerning his conduct, whether in his favour, or against him.
But this argument, my lords, however specious it may seem, will vanish of itself, if the bill be diligently considered, which is only to confer indemnity on those, who in the course of their evidence shall discover any of their own crimes; on those whose testimony shall tend to fix some charge of wickedness on the earl of ORFORD; for it cannot easily be imagined how those who appear in his favour, should be under a necessity of revealing any actions that require an indemnity.
