The Works of Samuel Johnson, LL.D. Volume 11. Samuel Johnson
founded, and, therefore, to inquire after evidence is somewhat preposterous; it is nothing less than to invite men to give their opinion without a subject, and to answer without a question.
It may be urged, indeed, that there is a universal discontent over the whole nation; that the clamour against the person mentioned in the bill, has been continued for many years; that the influence of the nation is impaired in foreign countries; that our treasury is exhausted; that our liberties have been attacked, our properties invaded, and our morals corrupted; but these are yet only rumours, without proof, and without legal certainty; which may, indeed, with great propriety give occasion to an inquiry, and, perhaps, by that inquiry some facts may be ascertained which may afford sufficient reasons for farther procedure.
But such, my lords, is the form of the bill now before us, that if it should pass into a statute, it would, in my opinion, put a stop to all future inquiry, by making those incapable of giving evidence, who have had most opportunities of knowing those transactions, which have given the chief occasion of suspicion, and from whom, therefore, the most important information must naturally be expected.
The first requisite qualification of a witness, whether we consult natural equity and reason, or the common law of our own country, is disinterestedness; an indifference, with regard to all outward circumstances, about the event of the trial at which his testimony is required. For he that is called as a witness where he is interested, is in reality giving evidence in his own cause.
But this qualification, my lords, the bill now before us manifestly takes away; for every man who shall appear against the person into whose conduct the commons are inquiring, evidently promotes, in the highest degree, his own interest by his evidence, as he may preclude all examination of his own behaviour, and secure the possession of that wealth which he has accumulated by fraud and oppression, or, perhaps, preserve that life which the justice of the nation might take away.
Nothing, my lords, is more obvious, than that this offer of indemnity may produce perjury and false accusation; nothing is more probable, than that he who is conscious of any atrocious villanies, which he cannot certainly secure from discovery, will snatch this opportunity of committing one crime more, to set himself free from the dread of punishment, and blot out his own guilt for ever, by charging lord ORFORD as one of his accomplices.
It may be urged, my lords, that he who shall give false evidence, forfeits the indemnity to which the honest witness is entitled; but let us consider why this should be now, rather than in any former time, accounted a sufficient security against falsehood and perjury. It is at all times criminal, and at all times punishable, to commit perjury; and yet it has been hitherto thought necessary, not only to deter it by subsequent penalties, but to take away all previous temptations; no man's oath will be admitted in his own cause, though offered at the hazard of the punishment inflicted upon perjury. To offer indemnity to invite evidence, and to deter them from false accusations by the forfeiture of it, even though we should allow to the penal clause all the efficacy which can be expected by those who proposed it, is only to set one part of the bill at variance with the other, to erect and demolish at the same time.
But it may be proved, my lords, that the reward will have more influence than the penalty; and that every man who can reason upon the condition in which he is placed by this bill, will be more incited to accuse lord ORFORD, however unjustly, by the prospect of security, than intimidated by the forfeiture incurred by perjury.
For, let us suppose, my lords, a man whose conduct exposes him to punishment, and who knows that he shall not long be able to conceal it; what can be more apparently his interest, than to contrive such an accusation as may complicate his own wickedness with some transactions of the person to whom this bill relates? He may, indeed, be possibly confuted, and lose the benefit offered by the state; but the loss of it will not place him in a condition more dangerous than that which he was in before; he has already deserved all the severity to which perjury will expose him, and by forging a bold and well-connected calumny, he has at least a chance of escaping.
Let us suppose, my lords, that the bill now under our consideration, assigned a pecuniary reward to any man who should appear against this person, with a clause by which he that should accuse him falsely should be dismissed without his pay; would not this appear a method of prosecution contrary to law, and reason, and justice? Would not every man immediately discover, that the witnesses were bribed, and therefore they would deserve no credit? And what is the difference between the advantage now offered and any other consideration, except that scarcely any other reward can be offered so great, and consequently so likely to influence?
It is to be remembered, that the patrons of this bill evidently call for testimony from the abandoned and the profligate, from men whom they suppose necessarily to confess their own crimes in their depositions; and surely wretches like these ought not to be solicited to perjury by the offer of a reward.
How cruel must all impartial spectators of the publick transactions account a prosecution like this? What would be your lordships' judgment, should you read, that in any distant age, or remote country, a man was condemned upon the evidence of persons publickly hired to accuse him, and who, by their own confession, were traitors to their country?
That wickedness, my lords, should be extirpated by severity, and justice rigorously exercised upon publick offenders, is the uncontroverted interest of every country; and therefore it is not to be doubted, that in all ages the reflections of the wisest men have been employed upon the most proper methods of detecting offences; and since the scheme now proposed has never been practised, or never but by the most oppressive tyrants, in the most flagitious times, it is evident, that it has been thought inconsistent with equity, and of a tendency contrary to publick happiness.
I am very far, my lords, from desiring that any breach of national trust should escape detection, or that a publick office should afford security to bribery, extortion, or corruption. I am far from intending to patronise the conduct of the person mentioned in the present bill. Let the commons proceed with the utmost severity, but let them not deviate from justice. If he has forfeited his fortune, his honours, or his life, let them by a legal process be taken from him; but let it always be considered, that he, like every other man, is to be allowed the common methods of self-defence; that he is to stand or fall by the laws of his country, and to retain the privileges of a Briton, till it shall appear that he has forfeited them by his crimes.
To censure guilt, my lords, is undoubtedly necessary, and to inquire into the conduct of men in power, incontestably just; but by the laws both of heaven and earth, the means as well as the end are prescribed, rectum recte, legitimum legitime faciendum; we must not only propose a good end in our conduct, but must attain it by that method which equity directs, and the law prescribes.
How well, my lords, the law has been observed hitherto, on this occasion, I cannot but propose that your lordships should consider. It is well known, that the commons cannot claim a right to administer an oath, and therefore can only examine witnesses by simple interrogatories. That they cannot confer upon a committee the power which they have not themselves, is indubitably certain; and therefore it is evident, that they have exceeded their privileges, and proceeded in their inquiry by methods which the laws of this nation will not support.
That they cannot, my lords, in their own right administer an oath, they apparently confess, by the practice of calling in, on that occasion, a justice of the peace, who, as soon as he has performed his office, is expected to retire. This, my lords, is an evident elusion; for it is always intended, that he who gives an oath, gives it in consequence of his right to take the examination; but in this case the witness takes an oath, coram non judice, before a magistrate that has no power to interrogate him, and is interrogated by those who have no right to require his oath.
Such, my lords, is my opinion of the conduct of the committee of the house of commons, of whom I cannot but conclude that they have assumed a right which the constitution of our government confers only on your lordships, as a house of senate, a court of judicature; and therefore cannot think it prudent to confirm their proceedings by an approbation of this bill.
The commons may indeed imagine that the present state of affairs makes it necessary to proceed by extraordinary methods; they may believe that the nation will not be satisfied without a discovery of those frauds which have been so long practised, and the punishment of