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.
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.