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.

Whether the present case in every circumstance will stand exactly parallel to mine, I am very far from presuming to determine. I had served my country with industry, fidelity, and success, and had received the illustrious testimony of my conduct, the publick thanks of this house. I was conscious of no crime, nor had gratified, in my services, any other passion than my zeal for the publick. I saw myself ignominiously discarded, and attacked by every method of calumny and reproach. Nor was the malice of my enemies satisfied with destroying my reputation without impairing my fortune: for this purpose a prosecution was projected, a wretch was found out who engaged to accuse me, and received his pardon for no other purpose; nor did I make any opposition to it in this house, though I knew the intent with which it was procured, and was informed that part of my estate was allotted him to harden his heart, and strengthen his assertions.

This, my lords, is surely a precedent which I have a right to quote, and which will vindicate me to your lordships from the imputation of partiality and malignity; since it is apparent, that I do only in the case of another, what I willingly submitted to, when an inquiry was making into my conduct.

But, my lords, this is far from being the only precedent which may be pleaded in favour of this bill; a bill which, in reality, concurs with the general and regular practice of the established law, as will appear to every one that compares it with the eighth section of the act for preventing bribery; in which it is established as a perpetual law, that he who, having taken a bribe, shall, within twelve months, inform against him that gave it, shall be received as an evidence, and be indemnified from all the consequences of his discovery.

To these arguments of reason and precedent, I will add one of a more prevalent kind, drawn from motives of interest, which surely would direct our ministers to favour the inquiry, and promote every expedient that might produce a complete discussion of the publick affairs; since they would show, that they are not afraid of the most rigorous scrutiny, and are above any fears that the precedent which they are now establishing may revolve upon themselves.

To elude the ratification of this bill, it was at first urged that there was no proof of any crime; and when it was shown, that there was an apparent misapplication of the publick money, it became necessary to determine upon a more hardy assertion, and to silence malicious reasoners, by showing them how little their arguments would be regarded. It then was denied, with a spirit worthy of the cause in which it was exerted, that the civil list was publick money.

Disputants like these, my lords, are not born to be confuted; it would be to little purpose that any man should ask, whether the money allotted for the civil list was not granted by the publick, and whether publick grants did not produce publick money; it would be without any effect, that the uses for which that grant is made should be enumerated, and the misapplication of it openly proved; a distinction, or at least a negative, would be always at hand, and obstinacy and interest would turn argument aside.

Upon what principles, my lords, we can now call out for a proof of crimes, and proceed in the debate as if no just reason of suspicion had appeared, I am not able to conjecture; here is, in my opinion, if not demonstrative proof, yet the strongest presumption of one of the greatest crimes of which any man can be guilty, the propagation of wickedness, of the most atrocious breach of trust which can be charged upon a British minister, a deliberate traffick for the liberties of his country.

Of these enormous villanies, however difficult it may now seem to disengage him from them, I hope we shall see reason to acquit him at the bar of this house, at which, if he be innocent, he ought to be desirous of appearing; nor do his friends consult his honour, by endeavouring to withhold him from it; if they, indeed, believe him guilty, they may then easily justify their conduct to him, but the world will, perhaps, require a more publick vindication.

These, my lords, are the arguments which have influenced me hitherto to approve the bill now before us, and which will continue their prevalence, till I shall hear them confuted; and, surely, if they are not altogether unanswerable, they are surely of so much importance, that the bill for which they have been produced, must be allowed to deserve, at least, a deliberate examination, and may very justly be referred to a committee, in which ambiguities may be removed, and inadvertencies corrected.

Lord CHOLMONDELEY spoke next, to the following purpose:—My lords, this bill is, in my opinion, so far from deserving approbation, that I am in doubt whether I should retard the determination of the house, by laying before you the reasons which influence me in this debate; nor, indeed, could I prevail upon myself to enter into a formal discussion of a question, on which I should have imagined that all mankind would have been of one opinion, did not my reverence of the abilities of those noble lords who have spoken in defence of the bill, incline me, even against the conviction of my own reason, to suspect that arguments may be offered in its favour, which I have not yet been able to discover; and that those which have been produced, however inconclusive they have seemed, will operate more powerfully when they are more fully displayed, and better understood.

For this reason I shall lay before your lordships the objections which arose in my mind when the bill was first laid before us, and which have rather been strengthened than invalidated by the subsequent debate.

It appears, my lords, evident to me, that every man has a right to be tried by the known laws of his country; that no man can be justly punished by a law made after the commission of a fact, because he then suffers by a law, against which he never transgressed; nor is any man to be prosecuted by methods invented only to facilitate his condemnation, because he ought to be acquitted, however guilty he may be supposed, whom the established rules of justice cannot convict. The law, my lords, is the measure of political, as conscience of moral right; and he that breaks no law, may indeed be criminal, but is not punishable. The law likewise prescribes the method of prosecuting guilt; and as we, by omitting any crime in our laws, disable ourselves from punishing it, however publick or flagrant, so by regulating the process in our courts of justice, we give security to that guilt, which by that process cannot be detected.

The truth of this assertion, my lords, however paradoxical it may perhaps appear, will become evident, if we suppose a man brought to the bar whose guilt was unquestionable, though it could not be legally proved, because all those were dead who might have appeared against him. It is certain that his good fortune would give him no claim to pardon, and yet he could not be convicted, unless we suppose him weak enough to accuse himself. In this case, my lords, it is not impossible, that some might be prompted by their zeal to propose, that the foreign methods of justice might be introduced, and the rack employed to extort, from his own mouth, a confession of those crimes of which every one believed him guilty.

With what horrour, my lords, such a proposal would be heard, how loudly it would be censured, and how universally rejected, I need not say; but must observe, that, in my opinion, the detestation would arise principally from a sense of the injustice of exposing any man to peculiar hardships, and distinguishing him to his disadvantage from the rest of the community.

It will, my lords, not be easy to prove, that it is less agreeable to justice to oblige a man to accuse himself, than to make use of extraordinary methods of procuring evidence against him; because the barriers of security which the law has fixed are equally broken in either case, and the accused is exposed to dangers, from which he had reason to believe himself sheltered by the constitution of his country.

This argument, my lords, I have mentioned, without endeavouring to evince the innocence of the person whom this bill immediately regards; because the intent of it is to show, that no man is to be deprived of the common benefits of the constitution, and that the guilty have a right to all the advantages which the law allows them. For guilt is never to be supposed till it is proved, and it is therefore never to be proved by new methods, merely because it is supposed.

That the method of procuring evidence now proposed, is new, my lords, I think it no temerity to conclude; because the noble lords who have endeavoured to defend it, have produced no instance of a parallel practice, and their knowledge and acuteness is such, that they can only have failed to discover them, because they are indeed nowhere to be found.

In the case of bribery, my lords, the person accused has the privilege, if he be innocent, of prosecuting his accuser for perjury, and is therefore in less danger of being harassed by a false indictment. But, my lords, this is not the only difference between the two cases; for he that discovers a bribe received by himself, has no motives of interest to prompt his evidence; he is only secured from suffering by his own discovery, and might have been equally safe by silence and secrecy; since the law supposes the crime out of the reach of detection, otherwise than by the confession of the criminal.

But far different, my lords, are the circumstances of those who are now invited to throng the courts of justice, and stun us with depositions and discoveries. They are men supposed criminal by the indemnity which is offered them; and by the nature of their crimes it is made at least probable, that they are in daily hazard of discovery and punishment; from which they are summoned to set themselves free for ever, by accusing a man of whom it has not been yet proved that he can legally be called to a trial.

Thus, my lords, in the law which the noble duke has mentioned as a precedent for this bill, the accuser is only placed in a kind of equilibrium, equally secure from punishment, by silence or by information, in hope that the love of truth and justice will turn the balance; in the bill now before us the witness is in continual danger by withholding his evidence, and is restored to perfect safety by becoming an accuser, and from making discoveries, whether true or false, has every thing to hope and nothing to fear.

The necessity of punishing wickedness has been urged with great strength; it has been unanswerably shown, by the advocates for this bill, that vindictive justice is of the highest importance to the happiness of the publick, and that those who may be injured with impunity, are, in reality, denied the benefits of society, and can be said to live in the state of uncivilized nature, in which the strong must prey upon the weak.

This, my lords, has been urged with all the appearance of conviction and sincerity, and yet has been urged by those who are providing a shelter for the most enormous villanies, and enabling men who have violated every precept of law and virtue, to bid defiance to justice, and to sit at ease in the enjoyment of their acquisitions.

And what, my lords, is the condition, upon which wickedness is to be set free from terrour, upon which national justice is to be disarmed, and the betrayers of publick counsels, or the plunderers of publick treasure, qualified for new trusts, and set on a level with untainted fidelity? A condition, my lords, which wretches like these will very readily accept, the easy terms of information and of perjury. They are required only to give evidence against a man marked out for destruction, and the guilt of partaking in his crimes is to be effaced by the merit of concurring in his ruin.

It has, indeed, been a method of detection, frequently employed against housebreakers and highwaymen, to proclaim a pardon for him that shall convict his accomplices; but surely, my lords, this practice will not, in the present question, be mentioned as a precedent. Surely it will not be thought equitable to level with felons, and with thieves, a person distinguished by his rank, his employments, his abilities, and his services; a person, whose loyalty to his sovereign has never been called in question, and whose fidelity to his country has at least never been disproved.

These are measures, my lords, which I hope your lordships will never concur to promote; measures not supported either by law or justice, or enforced by any exigence of affairs, but dictated by persecution, malice, and revenge; measures by which the guilty and the innocent may be destroyed with equal facility, and which must, therefore, tend to encourage wickedness as they destroy the security of virtue.

Lord CARTERET then rose, and spoke to the following effect:—My lords, I have so long honoured the abilities, and so often concurred with the opinion of the noble lord who began the debate, that I cannot, without unusual concern, rise up now to speak in opposition to him; nor could any other principle support me under the apparent disadvantage of a contest so unequal, but the consciousness of upright intentions, and the concurrence of the whole nation.

I cannot but consider myself, on this occasion, my lords, as the advocate of the people of Britain, who, after continued oppressions, losses, and indignities, after having been plundered and ridiculed, harassed and insulted for complaining, have at length flattered themselves that they should have an opportunity of appealing to our bar for justice, and of securing themselves from future injuries, by the punishment of those that had so long triumphed in their guilt, proclaimed their defiance of justice, and declared that the laws were made only for their security.

The expectations of the people have been frustrated by the unexpected obstinacy of the agents of wickedness, by a plea that was never made use of for the same purpose before, against which the known laws of the nation have provided no remedy, and which your lordships are, therefore, now called upon to overthrow.

That the nation calls loudly for an inquiry, that the misapplication of the publick treasure is universally suspected, and that the person mentioned in the bill is believed to be the chief author of that misapplication; that at least those who have squandered it, have acted by his authority, and been admitted to trust by his recommendation, and that he is, therefore, accountable to the publick for their conduct, I shall suppose, cannot be denied.

The nation, my lords, has a right to be gratified in their demands of an inquiry, whatever be the foundation of their suspicions; since it is manifest that it can produce no other effects than those of giving new lustre to innocence, and quieting the clamours of the people, if it should be found that the government has been administered with honesty and ability; and it is not less evident that, if the general opinion is well grounded, if our interest has been betrayed, and that money employed only to corrupt the nation which was raised for the defence of it, the severest punishment ought to be inflicted, that all future ministers may be deterred from the same crimes by exemplary vengeance.

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.

Thus, my lords, it appears that the bill can produce no other effect than that of multiplying accusations, since it offers rewards only to those who are supposed to have been engaged in unjustifiable practices; and to procure witnesses by this method, is equally unjust as to propose a publick prize to be obtained by swearing against any of your lordships.

If witnesses are to be purchased, we ought, at least, to offer an equal price on each side, that though they may be induced by the reward to offer their depositions, they may not be tempted to accuse rather than to justify.

Should any private man, my lords, offer a reward to any that would give evidence against another, without specifying the crime of which he is accused, doubtless he would be considered by the laws of this nation, as a violator of the rights of society, an open slanderer, and a disturber of mankind; and would immediately, by an indictment or information, be obliged to make satisfaction to the community which he had offended, or to the person whom he had injured.

It has, my lords, I own, been asserted by the noble duke, that the publick has a right to every man's evidence, a maxim which in its proper sense cannot be denied. For it is undoubtedly true, that the publick has a right to all the assistance of every individual; but it is, my lords, upon such terms as have been established for the general advantage of all; on such terms as the majority of each society has prescribed. But, my lords, the majority of a society, which is the true definition of the publick, are equally obliged with the smaller number, or with individuals, to the observation of justice, and cannot, therefore, prescribe to different individuals different conditions. They cannot decree that treatment to be just with regard to one which they allow to be cruel with respect to another. The claims of the publick are founded, first upon right, which is invariable; and next upon the law, which, though mutable in its own nature, is, however, to be so far fixed, as that every man may know his own condition, his own property, and his own privileges, or it ceases in effect to be law, it ceases to be the rule of government, or the measure of conduct.

In the present case, my lords, the publick has not a right to hire evidence, because the publick has hitherto subsisted upon this condition, among others, that no man shall swear in his own cause. The publick has not a right to require from any man that he should betray himself, because every man may plead that he is exempted from that demand by the publick faith.

Thus, my lords, the right of the publick is only that right which the publick has established by law, and confirmed by continual claims; nor is the claim of the publick from individuals to be extended beyond its known bounds, except in times of general distress, where a few must necessarily suffer for the preservation of the rest.

This necessity is, indeed, now urged; but surely it ought to be shown, that the present circumstances of affairs differ from those of any former age, before it can with any propriety he asserted, that measures are now necessary, which no other distresses, however urgent, or provocations, however flagrant, have hitherto produced. It ought to be proved, that wickedness had discovered some new shelter from justice, before new engines are invented to force it from its retreat, and new powers applied to drag it out to punishment.

The nation has subsisted, my lords, so many centuries; has often recovered from the lingering disease of inward corruption, and repelled the shocks of outward violence; it has often been endangered by corrupt counsels, and wicked machinations, and surmounted them by the force of its established laws, without the assistance of temporary expedients; at least without expedients like this, which neither law nor justice can support, and which would in itself be a more atrocious grievance than those, if they were real, which it is intended to punish, and might produce far greater evils than those which are imputed to him, against whom it is projected.

It has, indeed, my lords, been mentioned by a noble lord, in much softer language, as a method only of making an inquiry possible. The possibility of an inquiry, my lords, is a very remote and inoffensive idea; but names will not change the nature of the things to which they are applied. The bill is, in my opinion, calculated to make a defence impossible, to deprive innocence of its guard, and to let loose oppression and perjury upon the world. It is a bill to dazzle the wicked with a prospect of security, and to incite them to purchase an indemnity for one crime, by the perpetration of another. It is a bill to confound the notions of right and wrong, to violate the essence of our constitution, and to leave us without any certain security for our properties, or rule for our actions.

Nor are the particular parts less defective than the general foundation; for it is full of ambiguous promises, vague ideas, and indeterminate expressions, of which some have been already particularized by the noble lords that have spoken on this occasion, whose observations I shall not repeat, nor endeavour to improve; but cannot forbear proposing to the advocates for the bill one sentence, that it may be explained by them, and that at least we may not pass what we do not understand.

In the inquiry into the conduct of the earl of ORFORD, every man, as we have already seen, is invited to bring his evidence, and to procure an indemnity, by answering such questions as shall be asked, touching or concerning the said inquiry, or relative thereto. What is to be understood by this last sentence, I would willingly be informed; I would hear how far the relation to the inquiry is designed to be extended, with what other inquiries it is to be complicated, and where the chain of interrogatories is to have an end.

When an evidence appears before the committee, how can he be certain that the questions asked are relative to the inquiry? How can he be certain that they are such as he may procure an indemnity by resolving? Or whether they are not unconnected with the principal question, and therefore insidious and dangerous? And to what power must he appeal, if he should be prosecuted afterwards upon his own confession, on pretence that it was not relative to the inquiry?

Expressions like these, my lords, if they are not the effects of malicious hurry, and negligent animosity, must be intended to vest the committee with absolute authority, with the award of life and death, by leaving to them the liberty to explain the statute at their own pleasure, to contract or enlarge the relation to the controversy, to inquire without bounds, and judge without control.

Thus, my lords, I have laid before you my opinion of this bill without any partial regard, without exaggerating the ill consequences that may be feared from it, or endeavouring to elude any reasoning by which it has been defended. I have endeavoured to pursue the arguments of the noble lord who spoke first, and to show that it is founded upon false notions of criminal justice, that it proposes irrational and illegal methods of trial, that it will produce consequences fatal to our constitution, and establish a precedent of oppression.

I have endeavoured, in examining the arguments by which the bill has been defended, to show that the rights of the publick are ascertained, and that the power of the majority is to be limited by moral considerations; and to prove, in discussing its particular parts, that it is inaccurate, indeterminate, and unintelligible.

What effects my inquiry may have had upon your lordships, yourselves only can tell; for my part, the necessity of dwelling so long upon the question, has added new strength to my conviction; and so clearly do I now see the danger and injustice of a law like this, that though I do not imagine myself indued with any peculiar degree of heroism, I believe, that if I were condemned to a choice so disagreeable, I should more willingly suffer by such a bill passed in my own case, than consent to pass it in that of another.

The duke of ARGYLE replied to the following effect:—My lords, I am not yet able to discover that the bill now before us is either illegal or absurd, that its interpretation is doubtful, or its probable consequences dangerous.

The indisputable maxim, that the publick has a right to every man's evidence, has been explained away with much labour, and with more art than a good cause can often require. We have been told of publick contracts, of the rights of society with regard to individuals, and the privileges of individuals with respect to society; we have had one term opposed to another, only to amuse our attention; and law, reason, and sophistry have been mingled, till common sense was lost in the confusion.

But, my lords, it is easy to disentangle all this perplexity of ideas, and to set truth free from the shackles of sophistry, by observing that it is, in all civilized nations of the world, one of the first principles of the constitution, that the publick has a right, always reserved, of having recourse to extraordinary methods of proceeding, when the happiness of the community appears not sufficiently secured by the known laws.

Laws may, by those who have made the study and explanation of them the employment of their lives, be esteemed as the great standard of right; they may be habitually reverenced, and considered as sacred in their own nature, without regard to the end which they are designed to produce.

But others, my lords, whose minds operate without any impediment from education, will easily discover, that laws are to be regarded only for their use; that the power which made them only for the publick advantage ought to alter or annul them, when they are no longer serviceable, or when they obstruct those effects which they were intended to promote.

I will, therefore, my lords, still assert, that the publick has a right to every man's evidence; and that to reject any bill which can have no other consequence than that of enabling the nation to assert its claim, to reconcile one principle of law with another, and to deprive villany of an evasion which may always be used, is to deny justice to an oppressed people, and to concur in the ruin of our country.

And farther, my lords, I confidently affirm it has not been proved, that this bill can endanger any but the guilty; nor has it been shown that it is drawn up for any other purpose than that which the noble lord mentioned, of hindering an inquiry from being impossible; it may, therefore, justly be required from those who affect, on this occasion, so much tenderness for liberty, so many suspicions of remote designs, and so much zeal for our constitution, to demonstrate, that either an inquiry may be carried on by other means, or that an inquiry is itself superfluous or improper.

Though none of those who have spoken against the bill have been willing to expose themselves to universal indignation, by declaring that they would gladly obstruct the progress of the inquiry; that they designed to throw a mist over the publick affairs, and to conceal from the people the causes of their misery; and though I have no right to charge those who differ from me in opinion, with intentions, which, as they do not avow them, cannot be proved; this, however, I will not fear to affirm, that those who are for rejecting this method of inquiry, would consult their honour by proposing some other equally efficacious; lest it should be thought; by such as have not any opportunities of knowing their superiority to temptations, that they are influenced by some motives which they are not willing to own, and that they are, in secret, enemies to the inquiry, though, in publick, they only condemn the method of pursuing it.

The duke of NEWCASTLE next rose, and spoke to this effect:—My lords, the arguments which have been produced in defence of the bill before us, however those who offer them may be influenced by them, have made, hitherto, very little impression upon me; my opinion of the impropriety and illegality of this new method of prosecution, still continues the same; nor can it be expected that I should alter it, till those reasons have been answered which have been offered by the noble lord who spoke first in the debate.

The advocates for the bill seem, indeed, conscious of the insufficiency of their arguments, and have, therefore, added motives of another kind; they have informed us, that our power subsists upon our reputation, and that our reputation can only be preserved by concurring in the measures recommended by the commons; they have insinuated to us, that he who obstructs this bill, will be thought desirous to obstruct the inquiry, to conspire the ruin of his country, and to act in confederacy with publick robbers.

But, my lords, whether the nation is really exasperated to such a degree as is represented, whether it is the general opinion of mankind that the publick affairs have been unfaithfully administered, and whether this bill has been dictated by a desire of publick justice, or of private revenge, I have not thought it necessary to inquire; having long learned to act in consequence of my own conviction, not of the opinions of others, at least, not of those who determine upon questions which they cannot understand, and judge without having ever obtained an opportunity of examining.

Such, my lords, must be the opinions of the people upon questions of policy, opinions not formed by reflection, but adopted from those whom they sometimes, with very little reason, imagine nearer spectators of the government than themselves, and in whom they place an implicit confidence, on account of some casual act of popularity.

I shall not, therefore, think the demands of the people a rule of conduct, nor shall ever fear to incur their resentment in the prosecution of their interest. I shall never flatter their passions to obtain their favour, or gratify their revenge for fear of their contempt. The inconstancy, my lords, of publick applause, all of us have observed, and many of us have experienced; and we know that it is very far from being always the reward of merit. We know that the brightest character may be easily darkened by calumny; that those who are labouring for the welfare of the publick, may be easily represented as traitors and oppressors; and that the people may quickly be persuaded to join in the accusation.

That the people, however deceived, have a right to accuse whomsoever they suspect, and that their accusation ought to be heard, I do not deny; but surely, my lords, the opinion of the people is not such a proof of guilt as will justify a method of prosecution never known before, or give us a right to throw down the barriers of liberty, and punish by power those whom we cannot convict by law.

Let any of your lordships suppose himself by some accident exposed to the temporary malice of the populace, let him imagine his enemies inflaming them to a demand of a prosecution, and then proposing that he should be deprived of the common methods of defence, and that evidence should be hired against him, lest the publick should be disappointed, and he will quickly discover the unreasonableness of this bill.

I suppose no man will deny, that methods of prosecution introduced on one occasion, may be practised on another; and that in the natural rotations of power, the same means may be used for very different ends. Nothing is more probable, my lords, if a bill of this kind should be ever passed, in compliance with the clamours of the people, to punish ministers, and to awe the court, than that it may in time, if a wicked minister should arise, be made a precedent for measures by which the court may intimidate the champions of the people; by which those may be pursued to destruction, who have been guilty of no other crime than that of serving their country in a manner which those who are ignorant of the circumstances of affairs, happen to disapprove.

The measures now proposed, my lords, are, therefore, to be rejected, because it is evident that they will establish a precedent, by which virtue may at any time be oppressed, but which can be very seldom necessary for the detection of wickedness; since there is no probability that it will often happen, that a man really guilty of enormous crimes can secure himself from discovery, or connect others with him in such a manner, that they cannot impeach him without betraying themselves.

But, my lords, whenever virtue is to be persecuted, whenever false accusations are to be promoted, this method is incontestably useful; for no reward can so efficaciously prevail upon men who languish in daily fear of publick justice, as a grant of impunity.

It may be urged, my lords, I own, that all inquiries into futurity are idle speculations; that the expedient proposed is proper on the present occasion, and that no methods of justice are to be allowed, if the possibility of applying them to bad purposes, is a sufficient reason for rejecting them.

But to this, my lords, it may be answered with equal reason, that every process of law is likewise, in some degree, defective; that the complications of circumstances are variable without end, and, therefore, cannot be comprised in any certain rule; and that we must have no established method of justice, if we cannot be content with such as may possibly be sometimes eluded.

And, my lords, it may be observed farther, that scarcely any practice can be conceived, however generally unreasonable and unjust, which may not be sometimes equitable and proper; and that if we are to lay aside all regard to futurity, and act merely with regard to the present exigence, it may be often proper to violate every part of our constitution. This house may sometimes have rejected bills beneficial to the nation; and if this reasoning be allowed, it might have been wise and just in the commons and the emperour to have suspended our authority by force, to have voted us useless on that occasion, and have passed the law without our concurrence.

With regard to the establishment of criminal prosecutions, as well as to our civil rights, we are, my lords, to consider what is, upon the whole, most for the advantage of the publick; we are not to admit practices which may be sometimes useful, but may be often pernicious, and which suppose men better or wiser than they are. We do not grant absolute power to a wise and moderate prince, because his successours may inherit his power without his virtues; we are not to trust or allow new methods of prosecution upon an occasion on which they may seem useful, because they may be employed to purposes very different from those for which they were introduced.

Thus, my lords, I have shown the impropriety of the bill now before us, upon the most favourable supposition that can possibly be made; a supposition of the guilt of the noble person against whom it is contrived. And surely, my lords, what cannot even in that case be approved, must, if we suppose him innocent, be detested.

That he is really innocent, my lords, that he is only blackened by calumny, and pursued by resentment, cannot be more strongly proved than by the necessity to which his enemies are reduced, of using expedients never heard of in this nation before, to procure accusations against him; expedients which they cannot show to have been at any time necessary for the punishment of a man really wicked, and which, by bringing guilt and innocence into the same danger, leave us at liberty to imagine, that he is clear from the crimes imputed to him, even in the opinion of those who pursue him with the fiercest resentment, and the loudest clamours.

It may well be imagined, my lords, that those whom he has so long defeated by his abilities, see themselves now baffled by his innocence; and that they only now persecute his character, to hide the true reason for which they formerly attacked his power.

I hope, my lords, I shall be easily forgiven for observing, that this is a testimony of uncorrupted greatness, more illustrious than any former minister has ever obtained; for when was it known, my lords, that after a continuance of power for twenty years, any man, when his conduct became the subject of publick examination, was without accusers?

I cannot, for my part, but congratulate the noble person upon his triumph over malice; malice assisted by subtilty and experience, by wealth and power, which is at length obliged to confess its impotence, to call upon us to assist it with new laws, to enable it to offer a reward for evidence against him, and throw down the boundaries of natural justice, that he may be harassed, censured, and oppressed, upon whom it cannot be proved that he ever deviated from the law, or employed his power for any other end than the promotion of the publick happiness.

Had the officers of the crown, my lords, when his influence was represented so great, and his dominion so absolute, projected any such measures for his defence; had they proposed to silence his opponents by calling them to a trial, and offered a stated price for accusations against them, how loudly would they have been charged with the most flagrant violation of the laws, and the most open disregard of the rights of nature; with how much vehemence would it have been urged, that they were intoxicated with their success, and that in the full security of power they thought themselves entitled to neglect the great distinctions of right and wrong, and determined to employ the law for the completion of those purposes, in which justice would give them no assistance.

I doubt not that your lordships will easily perceive, that this censure is equally just in either case; that you will not allow any man to be prosecuted by methods which he ought not to have used in his own case; that you will not expose any man to hardships, from which every other member of the community is exempt; that you will not suffer any man to be tried by hired evidence; and that you will not condemn him whom the law acquits.

Lord BATHURST spoke next, in substance as follows:—My lords, the question under our consideration has been so long and so accurately debated, that little can be added to the arguments on either side; and therefore, though I think it necessary on so important an occasion, to make a solemn declaration of my opinion, I shall endeavour to support it, not so much by any arguments of my own, as by a recapitulation and comparison of those which have been already heard by your lordships.

It has not been denied, that the punishment of crimes is absolutely necessary to the publick security; and as it is evident, that crimes cannot be punished unless they are detected, it must be allowed, that the discovery of wicked measures ought to be, in a very great degree, the care of those who are intrusted with the government of the nation; nor can they better discharge their trust, than by defeating the artifices of intrigue, and blocking up the retreats of guilt.

This, likewise, my lords, is admitted with such restrictions as seem intended to preclude any advantage that might be drawn from the appearance of a concession; for it is urged, that guilt is not to be detected by any methods which are not just, and that no methods are just which are not usual.

The first position, my lords, I have no intention to controvert; as it is not to violate justice, but to preserve it from violation, that this bill has been projected or defended. But, my lords, it is to be observed, that they who so warmly recommend the strictest adherence to justice, seem not fully to understand the duty which they urge. To do justice, my lords, is to act with impartiality, to banish from the mind all regard to personal motives, and to consider every question in its whole extent, without suffering the attention to be restrained to particular circumstances, or the judgment to be obstructed by partial affection.

This rule, my lords, seems not to have been very carefully observed, by the most vehement advocates for justice in the case before us; for they appear not to be solicitous that any should receive justice, but the person mentioned in the bill; they do not remember, that the publick has cried out for justice more than twenty years; for justice, which has not yet been obtained, and which can be obtained only by the method now proposed.

It is necessary, my lords, for those who are so watchful against the breach of justice, to prove that any means can be unjust which have no other tendency than the detection of wickedness, of wickedness too artful or too powerful to be punished by the common rules of law.

The introduction of new methods of prosecution, is the natural consequence of new schemes of villany, or new arts of evasion; nor is it necessary that precedents should be produced, when the wisdom of the legislature concurs in acknowledging the necessity of extraordinary measures. Though our constitution is in the highest degree excellent, I never yet heard that it was perfect, and whatever is not perfect may be improved. Our laws, however wise, are yet the contrivance of human policy; and why should we despair of adding somewhat to that which we inherit from our ancestors? Why should we imagine, that they anticipated every contingency, and left nothing for succeeding ages?

I think, my lords, with the highest regard both of our laws, and those by whom they were enacted, but I look with no less veneration on this illustrious assembly; I believe your lordships equal to your progenitors in abilities; and therefore, since you cannot but outgo them in experience, am confident that you may make improvements in the fabrick which they have erected; that you may adorn it with new beauties, or strengthen it with new supports.

It cannot, at least, be denied, that your lordships have all the power of your ancestors; and since every law was once new, it is certain they were far from imagining that there was always a necessity of inquiring after precedents. If the argument drawn from the want of precedents be now of any force, let it be proved that its force was less in any former reign; and let it be considered how our government could have attained its present excellence, had this house, instead of applying to every grievance its proper remedy, been amused with turning over journals, and looking upon every new emergence for precedents, of which it is certain that there must have been a time in which they were not to be found.

In all regulations established by the legislature, it is sufficient that they do not produce confusion by being inconsistent with former laws, that they unite easily with our constitution, and do not tend to the embarrassment of the machine of government. This consideration, my lords, has been in a very remarkable manner regarded by those who drew up the bill before us; a bill of which the noble duke has proved, that it will be so far from perplexing our judicial proceedings, that it will reconcile the law to itself, and free us from the necessity of obeying one precept by the neglect of another.

The arguments of the noble duke are such as, in my opinion, cannot be answered, or heard impartially without conviction. The maxims quoted by him are each of them incontestably true; they are, on this occasion, incompatible; and this is the only method by which they can be reconciled.

Nor has he only shown the propriety of the bill by irrefragable reasons, but has proved, likewise, that it is consistent, not only with the constitution of our government, but with the practice of our ancestors; he has shown, that it may be supported not only by reason, but by bills of the same kind, enacted on occasions of far less importance.

He has proved, my lords, all that the most scrupulous inquirer can wish; he has made it evident, that the bill would be proper, though it were unprecedented; he has produced many precedents in support of it, and has thereby evinced, that the only present question is, whether it is just? To the precedents alleged by him, it has been objected, that they differ in some particulars. But when, my lords, did any two actions, however common, agree in every circumstance? Relations may be complicated without end, and every new complication produces new appearances, which, however, are always to be disregarded, while the constituent principles remain unvaried.

If we consider the difficulties in which the opponents of the bill have involved themselves, it will not be easy to think well of a cause, which gives birth to such wild assertions, and extravagant opinions. They have first, by requiring precedents, determined, that our constitution must be henceforward for ever at a stand; and then, by declaring that no precedents are of any weight, in which every circumstance is not parallel to the case in debate, have debarred us from the repetition of any occasional law; they have declared, almost in plain terms, themselves useless, and destroyed that authority at once, which they seem so much afraid of communicating to the commons.

But, by none of their arts of subtle distinction, my lords, have they been able to evade the argument which arises from the conformity of this bill to the common practice of our courts; an argument, which has produced no other answer than loud declamations; against the indecency of comparing with pickpockets and highwaymen, a noble person, a minister of acknowledged merit, long graced with the favour of his sovereign, and long invested with the highest trust.

I, my lords, am very far from pleasing myself with licentious or indecent language; I am far from envying any man that exaltation which he obtains either by good or by bad actions; and have no inclination of levelling the person, whose conduct I desire to see examined, with the profligate or infamous. Yet I cannot forbear to observe, that high rank is an aggravation of villany; that to have enjoyed the favour of his sovereign, is no defence of him that has abused it; and that high trust is an honour only to that man, who, when he lays down his office, dares stand an inquiry.

Had there been no precedent in our judicial proceedings, my lords, which bore any resemblance to this bill, there would not from thence have arisen any just objection. Common proceedings are established for common occasions; and it seems to have been the principle of our ancestors, that it is better to give ten guilty persons an opportunity of escaping justice, than to punish one innocent person by an unjust sentence. A principle which, perhaps, might not be erroneous in common cases, in which only one individual was injured by another, or when the trial was, by the law, committed to a common jury, who might easily be misled.

They might likewise imagine, my lords, that a criminal, encouraged by a fortunate escape to a repetition of his guilt, would undoubtedly some time fall into the hands of the law, though not extended on purpose to seize him; and, therefore, they constituted their proceedings in such a manner, that innocence might at least not be entrapped, though guilt should sometimes gain a reprieve.

But in the present case, my lords, every circumstance requires a different conduct. By the crimes which this bill is intended to detect, not single persons, or private families, but whole nations, and all orders of men have long been injured and oppressed; and oppressed with such success, that the criminal has no temptation to renew his practices; nor is there any danger of an erroneous sentence, because the trial will be heard by this house, by persons whose integrity sets them above corruption, and whose wisdom will not be deceived by false appearances.

This consideration, my lords, affords an unanswerable reply to those who represent the bill as ill-concerted, because the evidence to be procured by it, is the testimony of men, partners, by their own confession, in the crimes which they reveal.

Every court, my lords, examines the credibility of a witness; and the known corruption of these men may be properly pleaded at the trial, where your lordships will balance every circumstance with your known impartiality, and examine how far every assertion is invalidated by the character of the witness, and how far it is confirmed by a corroboratory concurrence of known events, or supported by other testimonies not liable to the same exception.

Thus, my lords, it may be observed how quickly the clouds are dispersed with which interest or perverseness have endeavoured to obscure the truth, and how easily the strongest objections which the greatest abilities could raise against this bill are confuted, or how apparently, when they are closely examined, they confute themselves.

One of the objections that requires no answer is that which has been raised with regard to the extent of the indemnity offered in the bill, which, in the opinion of those that opposed it, ought to be restrained to particular persons. But that it is chiefly, if not solely, intended to be applied to those who have refused to answer the questions of the committee, I believe every lord in this house is fully convinced; it was, however, necessary to draw it up in general terms, lest other artifices might have been employed, and lest, by pointing out particular persons, opportunity might have been given to deprive the publick of their evidence, by prevailing upon them to withdraw.

The bill was justly styled, by a noble lord, a bill to prevent an inquiry from being impossible. The difficulty of inquiries for the publick is well known; and the difficulty arises chiefly from the inability of the people to reward their advocates, or their evidence. The state of the court, my lords, is very different; the crown can not only pardon, but advance those that have, on any occasion, promoted its interest; and I hope it will not be too much power to be for once granted to the people, if they are empowered to throw a simple indemnification into the balance, and try whether with the slight addition of truth, and reason, and justice, it will be able to weigh down titles, and wealth, and power.

It has been urged, that there is danger lest this bill should become a precedent. I hope, my lords, the same occasion will not often happen; and whenever it shall hereafter occur, the precedent of passing the bill will be much less dangerous than that of rejecting it.

I hope it is not necessary to say more on this occasion; yet I cannot forbear to remind some lords of the fatal consequences which at critical conjunctures they have often dreaded, or appeared to dread, from a disagreement of this house with the commons. At this time, in which the nation is engaged in war, when the whole continent is one general scene of discord and confusion; when the wisest counsels, the firmest unanimity, and the most vigorous measures are apparently necessary, it might not be improper to reflect, how unseasonably we shall irritate the commons by rejecting this bill, and how justly we shall exasperate the people, by showing them that their complaints and remonstrances are of no weight; that they must expect the redress of their grievances from some other power; and that we prefer the impunity of one man to the happiness and safety of the publick.

Lord ISLAY spoke next to the following purpose:—My lords, as there has in this debate been very frequent mention of extraordinary cases, of new modes of wickedness, which require new forms of procedure, and new arts of eluding justice, which make new methods of prosecution necessary, I cannot forbear to lay before your lordships my sentiments on this question; sentiments not so much formed by reflection as impressed by experience, and which I owe not to any superiour degree of penetration into future events, but to subsequent discoveries of my own errours.

I have observed, my lords, that in every collision of parties, that occasion on which their passions are inflamed, is always termed an extraordinary conjuncture, an important crisis of affairs, either because men affect to talk in strong terms of the business in which they are engaged, for the sake of aggrandizing themselves in their own opinion and that of the world, or because the present object appears greatest to their sight by intercepting others, and that is imagined by them to be really most important in itself, by which their own pleasure is most affected.

On these extraordinary occasions, my lords, the victorious have always endeavoured to secure their conquest, and to gratify their passions by new laws, by laws, even in the opinion of those by whom they are promoted, only justifiable by the present exigence. And no sooner has a new rotation of affairs given the superiority to another party, than another law, equally unreasonable and equally new, is found equally necessary for a contrary purpose. Thus is our constitution violated by both, under the pretence of securing it from the attack of each other, and lasting evils have been admitted for the sake of averting a temporary danger.

I have been too long acquainted with mankind to charge any party with insincerity in their conduct, or to accuse them of affecting to represent their disputes as more momentous than they appeared to their own eyes. I know, my lords, how highly every man learns to value that which he has long contended for, and how easily every man prevails upon himself to believe the security of the publick complicated with his own. I have no other intention in these remarks, than to show how men are betrayed into a concurrence in measures, of which, when the ardour of opposition has subsided, and the imaginary danger is past, they have very seldom failed to repent.

I do not remember, my lords, any deviation from the established order of our constitution, which has not afterwards produced remorse in those that advised it. I have known many endeavour to obviate the evils that might be produced by the precedents which they have contributed to establish, by publick declarations of their repentance, and acknowledgments of their errour; and, for my part, I take this opportunity of declaring, that though I have more than once promoted extraordinary bills, I do not recollect one which I would not now oppose, nor one of which experience has not shown me, that the danger is greater than the benefit.

I have learned, at length, my lords, that our constitution has been so formed by the wisdom of our ancestors, that it is able to protect itself by its own powers, without any assistance from temporary expedients, which, like some kinds of medicines in the human body, may give it the appearance of uncommon vigour, but which, in secret, prey upon its noblest parts, and hurry it to a sudden decay.

But none of all the measures into which I have seen parties precipitated by acrimony and impetuosity, have I known parallel to the bill which is now defended in this house; a bill which I hope we shall have reason to term the wildest effort of misguided zeal, and the most absurd project that the enthusiasm of faction ever produced.

The particular clauses of this bill have been already examined with great acuteness and penetration, and have all been shown to be absurd or useless. I shall, therefore, only add this observation, that the indemnification, however liberally offered, will be wholly, at the disposal of those who shall receive the examinations, by whom, when such discoveries are not made as they may happen to expect, the witnesses may be charged with reserve and insincerity, and be prosecuted for those crimes which could never have been known but by their own confession.