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