The Works of Samuel Johnson, LL.D. Volume 11

But, in reality, nothing is more irrational than to suppose this a safer time than any other for such general discoveries; for why should it be imagined, that our engagements are not still depending, and our treaties yet in force? And what can be more dishonourable or imprudent, than to destroy at once the whole scheme of foreign policy, to dissolve our alliances, and destroy the effects of such long and such expensive negotiations, without first examining whether they will be beneficial or detrimental to us?

Nor is it only with respect to foreign affairs that secrecy is necessary; there are, undoubtedly, many domestick transactions which it is not proper to communicate to the whole nation. There is still a faction among us, which openly desires the subversion of our present establishment; a faction, indeed, not powerful, and which grows, I hope, every day weaker, but which is favoured, or at least imagines itself favoured, by those who have so long distinguished themselves by opposing the measures of the government. Against these men, whose hopes are revived by every commotion, who studiously heighten every subject of discontent, and add their outcries to every clamour, it is not doubted but measures are formed, by which their designs are discovered, and their measures broken; nor can it be supposed, that this is done without the assistance of some who are received with confidence amongst them, and who probably pass for the most zealous of their party.

Many other domestick occasions of expense might be mentioned; of expense which operates in private, and produces benefits which are only not acknowledged, because they are not known, but which could no longer be applied to the same useful purposes, if the channels through which it passes were laid open. I cannot, therefore, forbear to offer my opinion, that this motion, by which all the secrets of our government will be discovered, will tend to the confusion of the present system of Europe, to the absolute ruin of our interest in foreign courts, and to the embarrassment of our domestick affairs. I cannot, therefore, conceive how any advantages can be expected by the most eager persecutors of the late ministry, which can, even in their opinion, deserve to be purchased at so dear a rate.

Mr. PITT then spoke to the following purpose:—Sir, I know not by what fatality the adversaries of the motion are impelled to assist their adversaries, and contribute to their own overthrow, by suggesting, whenever they attempt to oppose it, new arguments against themselves.

It has been long observed, that when men are drawing near to destruction, they are apparently deprived of their understanding, and contribute by their own folly to those calamities with which they are threatened, but which might, by a different conduct, be sometimes delayed. This has surely now happened to the veteran advocates for an absolute and unaccountable ministry, who have discovered on this occasion, by the weakness of their resistance, that their abilities are declining; and I cannot but hope, that the omen will be fulfilled, and that their infatuation will be quickly followed by their ruin.

To touch in this debate on our domestick affairs, to mention the distribution of the publick money, and to discover their fears, lest the ways in which it has been disbursed, should by this inquiry be discovered; to recall to the minds of their opponents the immense sums which have been annually demanded, and of which no account has been yet given, is surely the lowest degree of weakness and imprudence.

I am so far from being convinced that any danger can arise from this inquiry, that I believe the nation can only be injured by a long neglect of such examinations; and that a minister is easily formidable, when he has exempted himself by a kind of prescription from exposing his accounts, and has long had an opportunity of employing the publick money in multiplying his dependants, enriching his hirelings, enslaving boroughs, and corrupting senates.

That those have been, in reality, the purposes for which the taxes of many years have been squandered, is sufficiently apparent without an inquiry. We have wasted sums with which the French, in pursuance of their new scheme of increasing their influence, would have been able to purchase the submission of half the nations of the earth, and with which the monarchs of Europe might have been held dependant on a nod; these they have wasted only to sink our country into disgrace, to heighten the spirit of impotent enemies, to destroy our commerce, and distress our colonies. We have patiently suffered, during a peace of twenty years, those taxes to be extorted from us, by which a war might have been supported against the most powerful nation, and have seen them ingulfed in the boundless expenses of the government, without being able to discover any other effect from them than the establishment of ministerial tyranny.

There has, indeed, been among the followers of the court a regular subordination, and exact obedience; nor has any man been found hardy enough to reject the dictates of the grand vizier. Every man who has received his pay, has with great cheerfulness complied with his commands; and every man who has held any post or office under the crown, has evidently considered himself as enlisted by the minister.

But the visible influence of places, however destructive to the constitution, is not the chief motive of an inquiry; an inquiry implies something secret, and is intended to discover the private methods of extending dependence, and propagating corruption; the methods by which the people have been influenced to choose those men for representatives whose principles they detest, and whose conduct they condemn; and by which those whom their country has chosen for the guardians of its liberties, have been induced to support, in this house, measures, which in every other place they have made no scruple to censure.

When we shall examine the distribution of the publick treasure, when we shall inquire by what conduct we have been debarred from the honours of war, and at the same time deprived of the blessings of peace, to what causes it is to be imputed, that our debts have continued during the long-continued tranquillity of Europe, nearly in the state to which they were raised by fighting, at our own expense, the general quarrel of mankind; and why the sinking fund, a kind of inviolable deposit appropriated to the payment of our creditors, and the mitigation of our taxes, has been from year to year diverted to very different uses; we shall find that our treasure has been exhausted, not to humble foreign enemies, or obviate domestick insurrections; not to support our allies, or suppress our factions; but for ends which no man, who feels the love of his country yet unextinguished, can name without horrour, the purchase of alliances, and the hire of votes, the corruption of the people, and the exaltation of France.

Such are the discoveries which I am not afraid to declare that I expect from the inquiry, and therefore, I cannot but think it necessary. If those to whom the administration of affairs has been for twenty years committed, have betrayed their trust, if they have invaded the publick rights with the publick treasure, and made use of the dignities which their country has conferred upon them, only to enslave it, who will not confess, that they ought to be delivered up to speedy justice? That they ought to be set as landmarks to posterity, to warn those who shall hereafter launch out on the ocean of affluence and power, not to be too confident of a prosperous gale, but to remember, that there are rocks on which whoever rushes must inevitably perish? If they are innocent, and far be it from me to declare them guilty without examination, whom will this inquiry injure? Or what effects will it produce, but that which every man appears to desire, the reestablishment of the publick tranquillity, a firm confidence in the justice and wisdom of the government, and a general reconciliation of the people to the ministers.

Colonel MORDAUNT spoke then, in substance as follows:—Sir, notwithstanding the zeal with which the honourable gentleman has urged the necessity of this inquiry, a zeal of which, I think, it may at least be said, that it is too vehement and acrimonious to be the mere result of publick spirit, unmixed with interest or resentment; he has yet been so far unsuccessful in his reasoning, that he has not produced in me any conviction, or weakened any of the impressions which the arguments of those whom he opposes had made upon me.

He has contented himself with recapitulating some of the benefits which may be hoped for from the inquiry; he has represented in the strongest terms, the supposed misconduct of the ministry; he has aggravated all the appearances of wickedness or negligence, and then has inferred the usefulness of a general inquiry for the punishment of past offences, and the prevention of the like practices in future times.

That he has discovered great qualifications for invective, and that his declamation was well calculated to inflame those who have already determined their opinion, and who are, therefore, only restrained from such measures as are now recommended by natural caution and sedateness, I do not deny; but, surely he does not expect to gain proselytes by assertions without proof, or to produce any alteration of sentiments, without attempting to answer the arguments which have been offered against his opinion.

It has been urged with great appearance of reason, that an inquiry, such as is now proposed, with whatever prospects of vengeance, of justice, or of advantage, it may flatter us at a distance, will be in reality detrimental to the publick; because it will discover all the secrets of our government, lay all our negotiations open to the world, will show what powers we most fear, or most trust, and furnish our enemies with means of defeating all our schemes, and counteracting all our measures.

This appears to me, sir, the chief argument against the motion, an argument of which the force cannot but be discovered by those whose interest it is to confute it, and of which, therefore, by appearing to neglect it, they seem to confess that it is unanswerable; and therefore, since I cannot find the motion justified otherwise than by loud declarations of its propriety, and violent invectives against the ministry, I hope that I shall escape at least the censure of the calm and impartial, though I venture to declare, that I cannot approve it; and with regard to the clamorous and the turbulent, I have long learned to despise their menaces, because I have hitherto found them only the boasts of impotence.

Mr. CORNWALL made answer to the following purport:—Sir, if to obtain the important approbation of the gentleman that spoke last, it be necessary only to answer the argument on which he has insisted, and nothing be necessary to produce an inquiry but his approbation, I shall not despair that this debate may be concluded according to the wishes of the nation, that secret wickedness may be detected, and that our posterity may be secured from any invasion of their liberty, by examples of the vengeance of an injured people.

[The house divided.—The yeas went forth.—For the question, 242; against it, 244: so that it passed in the negative, by a majority of two.]

HOUSE OF LORDS, MAY 20, 1742

Debate On A Motion For Indemnifying Evidence Relating To The Conduct Of The Earl Of ORFORD

The following debate having been produced by an occasion very uncommon and important, it is necessary to give an account of such transactions as may contribute to illustrate it.

The prime minister being driven out of the house of commons, by the prevalence of those who, from their opposition to the measures of the court, were termed the country party, it was proposed that a committee should be appointed, "to inquire into the conduct of publick affairs, at home and abroad, during the last twenty years;" but the motion was rejected.

It was afterwards moved, "that a committee should be appointed to inquire into the conduct of Robert, earl of ORFORD, during the last ten years in which he was first commissioner of the treasury, and chancellor and under treasurer of the exchequer," which was carried by 252 to 245.

A committee of one-and-twenty being chosen by ballot, and entering upon the inquiry, called before them Mr. Gibbon, who declared himself agent to J. Botteler, and said, that Botteler, being a candidate for Wendover, and finding that no success was to be expected without five hundred pounds, sent a friend to N. Paxton, with a letter, and that he saw him return with a great number of papers, in which he said were bills for five hundred pounds.

Botteler and his friend being examined, confirmed the testimony of Gibbon; and Botteler added, that he sent to Paxton as an officer of the treasury, acquainted with those who had the disposal of money; that his claim to the favour which he asked arose from a disappointment in a former election; that he never gave for the money any security or acknowledgment, nor considered himself indebted for it to Paxton or any other person.

Paxton being then examined, refused to return any answer to the question of the committee, because the answer might tend to accuse himself. Which reason was alleged by others for a like refusal.

The committee finding their inquiries eluded, by this plea for secrecy, which the laws of Britain allow to be valid, reported to the commons the obstacles that they met with; for the removal of which a bill was brought in like that of indemnity; which, having passed the commons, produced, in the house of lords, a debate, in which the greatest men of each party exerted the utmost force of their reason and eloquence.

The bill being read a second time, and a motion made for its being referred to a committee.

Lord CARTERET spoke to this effect:—My lords, as the question now before us is of the highest importance both to the present age and to posterity, as it may direct the proceedings of the courts of justice, prescribe the course of publick inquiries, and, by consequence, affect the property or life of every lord in this assembly; I hope it will be debated amongst us without the acrimony which arises from the prejudice of party, or the violence which is produced by the desire of victory, and that the controversy will be animated by no other passion than zeal for justice, and love of truth.

For my part, my lords, I have reason to believe, that many professions of my sincerity will not be necessary on this occasion, because I shall not be easily suspected of any partiality in favour of the noble lord to whom this bill immediately relates. It is well known to your lordships how freely I have censured his conduct, and how invariably I have opposed those measures by which the nation has been so far exasperated, that the bill, now under our consideration, has been thought necessary by the commons, to pacify the general discontent, to restore the publick tranquillity, and to recover that confidence in the government, without which no happiness is to be expected, without which the best measures will always be obstructed by the people, and the justest remonstrances disregarded by the court.

But however laudable may be the end proposed by the commons, I cannot, my lords, be so far dazzled by the prospect of obtaining it, as not to examine the means to which we are invited to concur, and inquire with that attention which the honour of sitting in this house has made my duty, whether they are such as have been practised by our ancestors, such as are prescribed by the law, or warranted by prudence.

The caution, my lords, with which our ancestors have always proceeded in inquiries by which life or death, property or reputation, was endangered; the certainty, or at least the high degree of probability, which they required in evidence, to make it a sufficient ground of conviction, is universally known; nor is it necessary to show their opinion by particular examples, because, being no less solicitous for the welfare of their posterity than for their own, they were careful to record their sentiments in laws and statutes, and to prescribe, with the strongest sanctions, to succeeding governments, what they had discovered by their own reflections, or been taught by their predecessors.

They considered, my lords, not only how great was the hardship of being unjustly condemned, but likewise how much a man might suffer by being falsely accused; how much he might be harassed by a prosecution, and how sensibly he might feel the disgrace of a trial. They knew that to be charged with guilt implied some degree of reproach, and that it gave room, at least, for an inference that the known conduct of the person accused was such as made it probable that he was still more wicked than he appeared; they knew that the credulity of some might admit the charge upon evidence that was rejected by the court, and that difference of party, or private quarrels, might provoke others to propagate reports once published, even when in their own opinion they were sufficiently confuted; and that, therefore, an innocent man might languish in infamy by a groundless charge, though he should escape any legal penalty.

It has, therefore, my lords, been immemorially established in this nation, that no man can be apprehended, or called into question for any crime till there shall be proof.

First, that there is a corpus delicti, a crime really and visibly committed; thus before a process can be issued out for inquiring after a murderer, it must be apparent that a murder has been perpetrated, the dead body must be exposed to a jury, and it must appear to them that he died by violence. It is not sufficient that a man is lost, and that it is probable that he is murdered, because no other reason of his absence can be assigned; he must be found with the marks of force upon him, or some circumstances that may make it credible, that he did not perish by accident, or his own hand.

It is required, secondly, my lords, that he who apprehends any person as guilty of the fact thus apparently committed, must suspect him to be the criminal; for he is not to take an opportunity, afforded him by the commission of an illegal act, to gratify any secret malice, or wanton curiosity; or to drag to a solemn examination, those against whom he cannot support an accusation.

And, my lords, that suspicion may not ravage the reputation of Britons without control; that men may not give way to the mere suggestions of malevolence, and load the characters of those with atrocious wickedness, whom, perhaps, they have no real reason to believe more depraved than the bulk of mankind, and whose failings may have been exaggerated in their eyes by contrariety of opinion, or accidental competition, it is required in the third place, my lords, that whoever apprehends or molests another on suspicion of a crime, shall be able to give the reasons of his suspicion, and to prove them by competent evidence.

These, my lords, are three essentials which the wisdom of our ancestors has made indispensable previous to the arrest or imprisonment of the meanest Briton; it must appear, that there is a crime committed, that the person to be seized is suspected of having committed it, and that the suspicion is founded upon probability. Requisites so reasonable in their own nature, so necessary to the protection of every man's quiet and reputation, and, by consequence, so useful to the security and happiness of society, that, I suppose, they will need no support or vindication. Every man is interested in the continuance of this method of proceeding, because no man is secure from suffering by the interruption or abolition of it.

Such, my lords, is the care and caution which the law directs in the first part of any criminal process, the detainment of the person supposed guilty; nor is the method of trial prescribed with less regard to the security of innocence.

It is an established maxim, that no man can be obliged to accuse himself, or to answer any questions which may have any tendency to discover what the nature of his defence requires to be concealed. His guilt must appear either by a voluntary and unconstrained confession, which the terrours of conscience have sometimes extorted, and the notoriety of the crime has at other times produced, or by the deposition of such witnesses as the jury shall think worthy of belief.

To the credibility of any witness it is always requisite that he be disinterested, that his own cause be not involved in that of the person who stands at the bar, that he has no prospect of advancing his fortune, clearing his reputation, or securing his life. For it is made too plain by daily examples, that interest will prevail over the virtue of most men, and that it is not safe to believe those who are strongly tempted to deceive.

There are cases, my lords, where the interest of the person offering his evidence is so apparent, that he is not even admitted to be heard; and any benefit which may possibly be proposed, is admitted as an objection to evidence, and weakens it in a measure proportionate to the distance of the prospect and the degree of profit.

Such are the rules hitherto followed in criminal proceedings, the violation of which has been always censured as cruelty and oppression, and perhaps always been repented even by those who proposed and defended it, when the commotions of party have subsided, and the heat of opposition and resentment has given way to unprejudiced reflection.

Of these rules, my lords, it is not necessary to produce any defence from the practice of distant nations, because it is sufficient in the present case, that they are established by the constitution of this country, to which every Briton has a right to appeal; for how can any man defend his conduct, if having acted under one law, he is to be tried by another?

Let us, therefore, my lords, apply these rules to the present bill, and inquire what regard appears to have been paid to them by the commons, and how well we shall observe them by concurring in their design.

With respect to the first, by which it is required, that there be a known and manifest crime, it does not appear to have engaged the least attention in the other house; for no fact is specified in the bill, upon which a prosecution can be founded, and, therefore, to inquire after evidence is somewhat preposterous; it is nothing less than to invite men to give their opinion without a subject, and to answer without a question.

It may be urged, indeed, that there is a universal discontent over the whole nation; that the clamour against the person mentioned in the bill, has been continued for many years; that the influence of the nation is impaired in foreign countries; that our treasury is exhausted; that our liberties have been attacked, our properties invaded, and our morals corrupted; but these are yet only rumours, without proof, and without legal certainty; which may, indeed, with great propriety give occasion to an inquiry, and, perhaps, by that inquiry some facts may be ascertained which may afford sufficient reasons for farther procedure.

But such, my lords, is the form of the bill now before us, that if it should pass into a statute, it would, in my opinion, put a stop to all future inquiry, by making those incapable of giving evidence, who have had most opportunities of knowing those transactions, which have given the chief occasion of suspicion, and from whom, therefore, the most important information must naturally be expected.

The first requisite qualification of a witness, whether we consult natural equity and reason, or the common law of our own country, is disinterestedness; an indifference, with regard to all outward circumstances, about the event of the trial at which his testimony is required. For he that is called as a witness where he is interested, is in reality giving evidence in his own cause.