The Works of Samuel Johnson, LL.D. Volume 10 · Chapter 18House of Lords, Feb. 13, 1740-1. (6)
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Lord HERVEY spoke next, in effect as follows:—My lords, this is surely a day destined by the noble lords who defend the motion, for the support of paradoxical assertions, for the exercise of their penetration, and ostentation of their rhetorick; they have attempted to maintain the certainty of common fame in opposition to daily observation; the existence of a sole minister in contradiction to the strongest evidence; and having by these gradations arrived at the highest degree of controversial temerity, are endeavouring to make it appear that the publick censure of the house of lords is no punishment.
If we take the liberty, my lords, of using known words in a new sense, in a meaning reserved to ourselves only, it will, indeed, be difficult to confute, as it will be impossible to understand us; but if punishment be now to be understood as implying the same idea which has hitherto been conveyed by it, it will not be easy to show that a man thus publickly censured is not severely punished, and, if his crimes are not clearly proved, punished in opposition to law, to reason, and to justice.
It has been hitherto imagined, my lords, that no punishment is heavier than that of infamy; and shame has, by generous minds, been avoided at the hazard of every other misery. That such a censure as is proposed by the motion, must irreparably destroy the reputation of the person against whom it is directed, that it must confirm the reports of his enemies, impair the esteem of his friends, mark him out to all Europe as unworthy of his sovereign's favour, and represent him to latest posterity as an enemy to his country, is indisputably certain.
These, my lords, are the evident consequences of the address moved for by the noble lord; and, if such consequences are not penal, it will be no longer in our power to enforce our laws by sanctions of terrour.
To condemn a man unheard, is an open and flagrant violation of the first law of justice, but it is still a wider deviation from it to punish a man unaccused; no crime has been charged upon this gentleman proportioned to the penalty proposed by the motion, and the charge that has been produced is destitute of proof.
Let us, therefore, my lords, reverence the great laws of reason and justice, let us preserve our high character and prerogative of judges, without descending to the low province of accusers and executioners; let us so far regard our reputation, our liberty, and our posterity, as to reject the motion.
[Several other lords spoke in this debate, which lasted eleven hours; at length the question was put, and, on a division, carried in the negative. Content, 59. Not content, 108.]
After the determination of the foregoing question, the duke of MARLBOROUGH rose up, and spoke as follows:—My lords, though your patience must undoubtedly be wearied by the unusual length of this day's debate, a debate protracted, in my opinion, not by the difficulty of the question, but by the obstinacy of prejudice, the ardour of passion, and the desire of victory; yet, I doubt not but the regard which this assembly has always paid to the safety and happiness of the state, will incline you to support the fatigue of attention a little longer, and to hear with your usual impartiality another motion.
The proposition which I am about to lay down, my lords, is not such as can admit of controversy; it is such a standing principle as was always acknowledged, even by those who have deviated from it. Such a known truth as never was denied, though it appears sometimes to have been forgotten.
But, my lords, as it never can be forgotten, without injury to particular persons, and danger to the state in general, it cannot be too frequently recollected, or too firmly established; it ought not only to be tacitly admitted, but publickly declared, since no man's fortune, liberty, or life, can be safe, where his judges shall think themselves at liberty to act upon any other principle. I therefore move, "That any attempt to inflict any kind of punishment on any person without allowing him an opportunity to make his defence, or without any proof of any crime or misdemeanour committed by him, is contrary to natural justice, the fundamental laws of this realm, and the ancient established usage of the senate, and is a high infringement of the liberties of the subject."
He was seconded by the duke of DEVONSHIRE:—My lords, though the motion made by the noble duke is of such a kind, that no opposition can be expected or feared, yet I rise up to second it, lest it should be imagined that what cannot be rejected is yet unwillingly admitted.
That where this maxim is not allowed and adhered to, rights and liberties are empty sounds, is uncontestably evident; if this principle be forsaken, guilt and innocence are equally secure, all caution is vain, and all testimony useless. Caprice will, in our courts, supply the place of reason, and all evidence must give way to malice, or to favour.
I hope, therefore, my lords, that your regard to justice, to truth, and to your own safety, will influence you to confirm this great and self-evident principle by a standing resolution, that may not only restrain oppression in the present age, but direct the judiciary proceedings of our successors.
Lord LOVEL rose next, and spoke as follows:—My lords, liberty and justice must always support each other, they can never long flourish apart; every temporary expedient that can be contrived to preserve or enlarge liberty by means arbitrary and oppressive, forms a precedent which may, in time, be made use of to violate or destroy it. Liberty is in effect suspended whenever injustice is practised; for what is liberty, my lords, but the power of doing right without fear, without control, and without danger.
But, my lords, if any man may be condemned unheard, if judgment may precede evidence, what safety or what confidence can integrity afford? It is in vain that any man means well, and acts prudently; it is even in vain that he can prove the justice and prudence of his conduct.
By liberty, my lords, can never be meant the privilege of doing wrong without being accountable, because liberty is always spoken of as happiness, or one of the means to happiness, and happiness and virtue cannot be separated. The great use of liberty must, therefore, be to preserve justice from violation; justice, the great publick virtue, by which a kind of equality is diffused over the whole society, by which wealth is restrained from oppression, and inferiority preserved from servitude.
Liberty, general liberty, must imply general justice; for wherever any part of a state can be unjust with impunity, the rest are slaves. That to condemn any man unheard is oppressive and unjust, is beyond controversy demonstrable, and that no such power is claimed by your lordships will, I hope, appear from your resolutions.
Lord GOWER spoke next:—My lords, to the principle laid down by those noble lords, I have no objection, and concur with them in hoping that all our proceedings will contribute to establish it; but why it should be confirmed by a formal resolution, why the house should solemnly declare their assent to a maxim which it would be madness to deny, it is beyond my penetration to discover.
Though the noble lord's position cannot be controverted, yet his motion, if it is designed to imply any censure of the proceedings of this day, may reasonably be rejected, and that some censure is intended we may conjecture, because no other reason can be given why it was not made at some other time.
Lord HALIFAX then rose:—My lords, that a censure is intended, will, I suppose, not be denied, and that such a censure is unjust must doubtless be the opinion of all those who are supposed to have incurred it, and it will, therefore, not be wondered that the motion is opposed by them, as indecent and calumnious: late as it is, my lords, I will not, for my part, suffer such an indignity without opposition, and shall think my conscience and my honour require, that I should not be overborne by perseverance or by numbers, but that I should, if I cannot convince the noble lords by argument, of the impropriety of the motion, record my reasons against it, which may, perhaps, be more candidly received by posterity.
Lord TALBOT spoke to this effect:—My lords, it is not without indignation that I hear a motion so injurious to my own honour, and to that of the noble lords who have concurred with me in the last debate, nor without contempt that I observed the motion confounded with the positions contained in it; the low subtilty of such conduct is no less to be despised than the malice to be abhorred.
Fifty-nine lords are here branded as strangers, or enemies to the first principle of judicial equity, for doing what will entitle them to the general applause of every man in the kingdom that has the full possession of his understanding, or the free use of his senses; of every man that can distinguish truth, or feel oppression.
They have endeavoured to rescue their country from the rapine of pensioners and the tyranny of an army, from perpetual taxes, and useless expenses; they have attempted to expose the errours of arrogant ignorance, and to depress the power of greatness, founded on corruption, and swelling beyond legal restraints.
That for such attempts they are vilified and reproached, is not to be observed without indignation and astonishment; astonishment which nothing could abate but the recollection of the situation of those lords who have united to promote so unjust a censure.
Let us, my lords, consider the circumstances of the three noble lords by whom this motion has been made and supported, let us take a view of their conduct, and consider the visible motives to which it may be ascribed, their places, their dependence—
Lord CHOLMONDELEY spoke next, in substance as follows:—My lords, I rise thus abruptly to preserve that order and decency which is essential to publick councils, and particularly suitable to the dignity of this assembly, which can only become a scene of tumult and confusion by such methods of debate, and lose that respect which it has hitherto preserved, not only by the justice of its determinations, but by the solemn grandeur of its procedure.
The motion, my lords, is allowed to contain nothing but what every man avows in speculation, and observes, or ought to observe, in publick transactions, and yet those that offer and support it are represented as abettors of oppression, and instruments of tyranny.
It is surely wonderful, my lords, that those who are solicitous for the preservation of their own honour, and so diligent to obviate the most remote reflection that may glance upon it, should not remember, that the same delicacy may raise in others the same resentment, when their reputation is openly attacked; and that while they are asserting the right of the minority to an exemption from censure, they shall not allow the greater number at least an equal claim to the same privilege.
Lord TALBOT then resumed:—My lords, whether any thing has escaped from me that deserves such severe animadversions, your lordships must decide. For what I might intend to say, since by the interruption of that noble lord I was hindered from proceeding, I hope I shall not be accountable.
Not that I acknowledge myself to have asserted any thing either contrary to law, or to the privileges of the house, or inconsistent with the character of an independent lord, a character which I shall always endeavour to preserve, and which I will not forfeit for the smiles of a court, the dignity of high employment, or the affluence of a pension.
Nor, my lords, whenever the necessities of my country require that I should speak my sentiments with freedom, will I be awed into silence and submission, but will set any power at defiance that shall dare to restrain me.
I pretend not, my lords, to be always in the right, I claim no other merit than that of meaning well; and when I am convinced, after proper examination, that I am engaged on the side of truth, I will trample on that insolence that shall command me to suppress my sentiments.
When I reflect, my lords, on the distresses of my country, when I observe the security and arrogance of those whom I consider as the authors of the publick miseries, I cannot always contain my resentment; I may, perhaps, sometimes start out into unbecoming transports, and speak in terms not very ceremonious of such abandoned, such detestable— But as this is, perhaps, not the language of the house, I shall endeavour to repress it, and hope that the bounds of decency have never been so far transgressed by me that I should be exposed to the censure of your lordships.
Lord ABINGDON next rose, and said:—My lords, the present motion is undoubtedly just, but by no means necessary, or particularly adapted to the present time. It contains a general principle, uncontested, and established; a principle which this assembly has never denied, and from which I know not that it has ever departed.
As there is, therefore, no particular necessity of confirming it by a new resolution, and as the present time seems less proper than any other, I cannot but declare my opinion, that to resume it at some other time will be more prudent, than to give the lords, who think their conduct censured, any occasion of resentment or discontent.
Lord CARTERET spoke to the following effect:—My lords, the maxim laid down in the present motion, is in itself incontestable, and so far from any inconsistency with the former, that as there was no reason for making, there is, in my opinion, none for opposing it; as it may at any time be made, it may at any time be properly passed. And I hope that our unanimity on this occasion will show that truth, however unseasonably advanced, will, in this house, be always received.
But, lest the noble lords who have opposed the motion, should think their honour engaged in continuing the opposition, I take the liberty, my lords, to move that the previous question may be put.
[Other lords spoke on each side; at last the previous question was put by the president, who demanded, "Is it your lordships' pleasure, that the question be now put? Those lords who are for it, say, Content: those who are against it, say, Not content." There was, accordingly, a cry of both; after which the president declared, "the contents have it;" and some lords replying, "the non-contents have it," his lordship said, "the non-contents must go below the bar:" which is the manner of dividing the house. Those who remained being told in their seats, and those who went out being told at coming in again, there were Content, 81; Not content, 54: so that the resolution moved for, passed without a division.]