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CHAPTER VII.: CHIEF PURPOSE, CRUSHING THE LIBERTY OF THE PRESS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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CHIEF PURPOSE, CRUSHING THE LIBERTY OF THE PRESS.
Liberty of the Press—has it any and what Existence?
We come now to the grand and paramount use of the packing system—the crushing the liberty of the press—destroying whatever remains of it undestroyed.
To prevent indistinct or erroneous conception, a few words of explanation may here, once for all, be of use.
King de jure and king de facto, is a distinction familiar to every eye, that has ever glanced over English history. The same distinction must be applied to the liberty of the press, by whosoever would be saved from falling into error and heterodoxy on this scabrous ground: Liberty of the press by law? No. That sort of liberty excepted, which consists in the non-existence of a safety-shop, in the shape of a licenser’s office, no such thing either has, or ever has had, any existence. So, embodied in the person of Lord Mansfield, the soul of the custos morum certified to some of us in 1770.* So, embodied in the person of Lord Ellenborough, the same guardina spirit of good order confirmed to us in 1804.†
Liberty of the press de facto? Yes: viz. that which, being contrary to law, proscribed by law, has all along maintained a sort of rickety, and still maintains a momentary half-existence, in the teeth of consistency as well as law, by means of breach of the law in low situations, and non-execution of the law in high ones.
Hence it was, that in the place of any such words as destruction or destroying—which otherwise would have been so much more obvious—it was necessary to look out for some other of a less determinate import, such as crushing, as above. For of any such word as destroying, the effect would have been to bring in with it, and keep attached to it, the idea of existence: than which, as above, a more dangerous heresy could not, by any Englishman, Protestant or Catholic, be entertained.
But, forasmuch as, in neglected bodies, vermin of all sorts will be apt to crawl into existence, hence comes the necessity which persons in “high situations” are under, of keeping in their hands the means of crushing—as often as in any such shape and stature as to render itself troublesome, it happens to it to show itself—the liberty—but, forget not for a moment, the de facto liberty—of the press.
In the first place, while pen and ink remain still at command, I shall endeavour to bring to view a sketch—an extremely slight and temporary one—(for that is all that can here be given)—a sketch, or rather as before a sample—of the interest which not only Judge and Co. as above, but moreover the high connexions of the firm, have, in keeping the liberty of the press in the sort of abortive embryo state in which it has so effectually been preserved; viz. by the hands by which, had convenience prescribed, and possibility permitted, it would have long ago been no less effectually destroyed. I shall then, but rather in the way of recapitulation and reference, than in any other, add the little that can be necessary to show the assistance that may always be depended upon from the zeal of the master packer’s office, and the discipline of the guinea corps on the occasion of so necessary a service.
In the catalogue of abuses, judges have their peculiar articles, other high-seated persons have theirs. But, towering above all the rest, one abuse there is, in the profit of which Judge and Co. find their partners, in the very highest and most impregnable situations: in the one House, in the other House, in the Cabinet, in the Closet: yea, even among those whom “the king delighteth most to honour.” I speak of that congeries of abuses, the component elements of which are law sine-cures.
So far as judges alone are concerned, it has been slightly touched upon already: but in consideration of the prodigious increase of strength given to the alliance bipartite between judges and wrongdoers, by the accession of court favourites, and the triple alliance thus formed for carrying on with irresistible force the predatory war against the common enemies, viz. liberty and justice, a few ulterior elucidations, respecting the nature and cementing principle of the alliance, may have their use.
Improbity in Judges, and their high allies—its Hostility to the Press.
Some years ago,* on the examination of a question of finance, I found occasion to inquire in what way, by the taking out of the pockets of the people a given sum of money, the greatest possible quantity of mischief was produced. The result was—by assessing it, in the form of a tax, on the several operations and instruments, the performance and exhibition of which were rendered necessary to a man to enable him, whether in the shape of plaintiff or in that of defendant, to take his chance for justice.
Affliction heaped upon affliction, in the case of him who has wherewithal to comply with the exaction—denial of all relief, exposure, or rather subjection, to all imaginable wrongs, in the case of him who has not wherewithal to satisfy the exaction—such are the shapes, in one or other of which, or both, the mischief manifests itself; and in the latter case, being the case of virtual outlawry, a vast majority of the subjects of the British empire,—say nine-tenths, say, more likely, nineteen-twentieths, subject to limitations and exceptions too particular, and, upon the whole, of too little extent to admit of notice in this place,—would be found. (See Scotch Reform, Letter I. and elsewhere.)
The quantity of money, taken from a man on this account, being, in the mathematical sense, given, i. e. determined—what the appellation employed on that occasion may happen to be—for example, a tax or a fee—as well as what the pocket may happen to be, in which it finds its resting-place after it has gone out of his own—whether that of the public, for example, or that of a judge, or other man of law—is to him, and in respect of the quantity of suffering, of which, in his instance, the defalcation is productive—a matter of indifference. Yet so it happens, that though the quantity of money so raised being given, a tax on law proceedings is by far the worst of all possible taxes, yet, by the money raised on law proceedings under the name of fees, mischief, to an incomparably greater amount has been produced, than by money raised on the same occasion under the name of taxes.
The reason is altogether simple. By the man of finance, at whose instance the money is exacted in the name of a tax, the occasions on which it is exacted are not created, but taken as they are found. But of the man of law, especially in the station of judge, by whose power, and, in some shape or other, for whose benefit, the money is exacted in the name of a fee, it has been in the power to create the occasions on which it is exacted, which accordingly he has done. And in this difference, the immense load of misery, so regularly manufactured by judges, their connexions and dependents, has found its cause. The amount of this mischief has in some sort found its expression, in the difference between the amount of factitious delay, vexation, and expense, habitually created in the technical mode of procedure, styled on this account the fee-gathering, as contradistinguished from that natural mode, which, without a total dissolution of the bonds of society, could not have been by its overbearing antagonist utterly expelled. (See Scotch Reform, Letter I. throughout.)
Of these fees, by the concourse, as usual, of sinister design and accident, masses of emolument, of different bulks, from that of a bare subsistence, to ten, twenty, or even thirty thousand pounds a-year and upwards, exacted by so many different persons, have been composed; and here comes the community of sinister interest, by which the judges of all the high judicatories without exception—and in particular the Chief Justice of the King’s Bench—the master-manufacturer of libel law—and in effect the absolute master of the press—have been linked together: linked with each other, and with some of the most influential members of those supreme assemblies. from which alone remedy to abuse, in this or any other shape, can come.
Where, of the masses of emolument thus formed, the bulk has been to a certain degree moderate (being received in all cases in the name of reward for service,) the reward has been suffered to remain in the pocket of him by whom the service has been performed.
Where it has happened to the mass to swell to such a bulk as to attract the notice of irresistible rapacity in a higher sphere, it has been fastened upon as a prey: and, a comparatively small pittance, though by the experiment proved to constitute an adequate compensation for the burthen of the service, being left to the low-seated individual by whom the service was performed, the remainder has been seized by the high-seated personage, by whom in that shape no service whatever has been rendered, even in pretence; and to whom, in many instances, it has never been necessary, that he should have rendered to the public any the smallest service whatsoever, in that or any other shape.
Of these enormous masses of misery-making emolument, outstripping by far in magnitude, if not in mischievousness, whatever has been produced by the judicial system of any other the most outrageously misgoverned country, some have been seized by judges, and above all by the Chief Justice of the King’s Bench—others having been left in the hands of the crown, have fallen a prey to the vultures that hover about a court. And here we see a natural bond of the closest union between Court and Bench.
At present (it may be said)—whatsoever may have been the case formerly—at present no such sinister interest is created by any of these masses of emolument. For, at present—the maxim having been established, that no mass of emolument in possession, and obtained without breach of law, shall be taken from any man without an equivalent—no man has any interest in the retention of them—neither a judge nor any one else.
To this observation the colour of reason is not wanting, but the substance is. Allowances which, under the spur of reform, have thus been given by the legislature under the name of equivalents, have scarce ever been complete.
Of the masses of emolument in question, viz. those attached to sine-cure or overpaid judicial offices, it is the nature to go on increasing, as population and wealth increase, from year to year; and this, even in the way of natural increase, and setting aside whatsoever factitious increase may be contrived to be given to them by the combined ingenuity of the partnership. But by any allowances that should be given in lieu of them, under the name of equivalents, no such increase would be experienced: they would be fixed sums in the nature of pensions.
Of those ever increasing masses of emolument, not only the possessors but the expectants, know of course much better than to submit to any commutation, so long as, by any means not punishable, it appears possible to avoid it.
Pillaging the future as well as the present, the Gavestons and Spensers of successive ages—nor let the present be forgotten—contrived to obtain in expectancy those masses of ill-collected and ill-bestowed wealth, life after life. Passion and policy have here acted in alliance. Passion seized on the booty: policy rendered it the more secure. The more enormous the prey, the greater and more burthensome would be the compensation necessary to be given for it under the name of an equivalent. So long as the burthen falls on men whose afflictions are productive of no disturbance to the ease of the man of finance, it tells for nothing. [See Protest against Law Taxes.] So long as the burthen continues to be imposed by a tax which, though beyond comparison more mischievous than any other, was not of his imposition, the man of finance had no personal concern in the matter, and how enormous soever may be the mass of misery produced, it formed no object of his care. But to provide the compensation, if that came to be provided, was so much hard labour to him: while of those he has to deal with and to cajole, the great crowd is composed of such as care not what mischief is produced by a tax, or anything else they are used to, but cry out of course against everything of that sort, as of any other sort, when it is new.
The law moreover is a sort of black lottery, a lottery of all prizes indeed without blanks, but the prizes so many negative quantities; instead of so much profit, so much loss; and the same confidence in fortune which secures to a man’s imagination the acquisition of prizes in the state lottery so called, secures to it the avoidance of them in the lottery of the law.
And thus it is that by every continuance given to this species of depredation a fresh obstacle to the abolition of it is opposed.
“You call this economy, do you? Know then, that, by this economy of yours, the mass of public burthen, so far from being diminished, will be increased,” cries the iron-hearted sophist, in whose balance the heaviest load of misery, in which he and his confederates expect not to bear a share, weighs but as a feather.
Turn now to the despot of the press, and consider what in this state of things the plan of policy is which in his situation a man may be expected to pursue. His first object would of course be the affording the most effectual protection to abuse in those instances in which the benefit of it is in the whole, or in part, reaped by himself and his own immediate connexions.
But to protect that same abuse with its benefit against limitation, and even reduction, under the name of compensation, might require support and alliance elsewhere. To protect with effect the abuses, the benefit of which accrued immediately to himself, it would therefore be necessary for him to extend his protection without distinction to all established abuses from which any other man so situated as to be capable of giving him the needful support, derived or could conceive himself to derive in any shape a benefit: in a word, to act in the character of protector-general of all established abuses.
The liberty of the press being their common and irreconcilable enemy, the liberty of the press became the necessary object of their common and interminable war: existing, it was to be destroyed: not existing, it was, so long as possible, to be prevented from coming into existence.
And here we see the knight’s service looked to at the hands of the guinea corps and its squires.
Of the energy and effect, with which this conspiracy among governors against good government has been carried on, diverse exemplifications will present themselves as we advance.
Incapacity in Judges, and their high allies—its Hostility to the Press.
By this copartnership in the profits of misrule, the bond of union, formed as above, between judges and the other leading members of government, is a constant one. But besides this, there is another which, how frequently soever exemplified, may, in comparison of the former, be termed an occasional one: I speak of that in which incapacity—congenial and mutually sympathizing incapacity—is the cementing principle.
Suppose a judge—no matter in what particular respect—incapable of discharging the duties of his office: discharging them ill: or—what constitutes the most palpaple of all exemplifications of incapacity—not at all. If on the part of the suitors to whom such his incapacity has been a source of injury—or, on the part of other persons, prompted by sympathy for their sufferings, or by the pure love of justice, facts indicative of this incapacity, or complaints grounded on those facts, were made public, the consequence might be—an obligation on his part to withdraw from the situation, his continuance in which had rendered him an instrument of such extensive injury.
To any such unfit judge, a free press would naturally be an object no less odious and formidable than a prison to an ordinary delinquent, whose situation had not elevated him above the reach of justice.*
But by the same cause, incapacity, by which a free press is thus rendered an object of hatred and terror to a functionary seated in the situation of judge, it would of course be rendered an object of the like emotions to a functionary in any other situation: to a functionary, to whose apprehension any the least danger were to present itself of his seeing such his deficiency exposed to view.
Men who, to all practical purposes, are seated above the law (and the existence of an indefinite multitude of men self-seated in the situation, is a fact unhappily but too incontestible,) men so circumstanced as they—have nothing to fear from any other quarter—so, as far as they have anything at all to fear from any quarter,—have everything to fear from the liberty of the press.
Accordingly where, on an occasion already spoken of, the recent grand attack was made upon that branch of English liberties, and for the more effectual accomplishment of those purposes (if of any purposes at all) the modern case de famosis libellis was displayed to view, and the fundamental principles of libel law developed, and adapted to existing circumstances—among the propositions laid down upon that occasion was—that in speaking (viz. in print) of any man “placed in a high situation,” to say anything “meaning to infer that” he “is ill-placed” in (such) “his high situation” is “a libel:” and this, even although his unfitness for that high situation be of no worse sort, than that which is not incompatible with his being “fit for the ordinary walks of life.*
If there be any way in which it is possible for the hand of power to afford protection and encouragement to mis-rule—to mis-rule in all its branches—it is surely this: viz. the threatening with the vengeance of the law all such as shall do anything towards holding it up to public view: and towards this end, whether anything, which it is possible to do by the exercise of judicial power, has been left undone, let this doctrine, together with the sentences with which in other prosecutions it has been followed up, declare.
But the persons, at whose instance and for whose protection these sacrifices were made—these sacrifices of public welfare to private convenience—were a junto of “great characters”—some learned, some unlearned—“placed” (but whether well or ill let him pronounce to whom liberty and imprisonment are matters of indifference) “placed,” at any rate, somehow or other, “in high situations:” and, in the instance of some of these great characters, how urgent the demand was for this sort of sacrifice, will, at the peril of imprisonment, appear in another place.
[* ]“The liberty of the press consists in no more than this—a liberty to print now without a licence, what formerly could be printed only with one.” Per Lord Mansfield, in K. v. Woodfall, as quoted in a note in the trial, K. v. Almon, 2d June 1770, p. 62.
[† ]“Gentlemen, the law of England is a law of liberty, and consistently with this liberty, we have not an imprimatur: there is no such preliminary licence necessary.” Lord Ellenborough in K. v. Cobbett, as reported in Cobbett’s Register for June 4, 1804.
[* ]Anno 1796, in the pamphlet entitled Protest against Law tax
[* ]One shape, and perhaps the only shape, in which, in the station of judge, the existence of incapacity can be seen standing out of the reach of doubt, is indecision. For, if habitual, it may in this shape stand expressed and demonstrated in figures. Thus, suppose, in a given single-seated situation, three judges occupying that situation successively for the same length of time. The first leaves no arrear: the second leaves an arrear: the third clears off the arrear that had been left by the second, and himself leaves none. Suppose now, on the part of the second, the degree of indecision such, that the number of litigated cases decided upon by him was not a tenth, not an eighth, not a sixth, or suppose it were as much as a fourth, or even as a third, of the number despatched by his predecessor in the same length of time. In such a case, not only must the unfitness of such a judge for the situation be clear to everybody else to whom these propositions are known, but it is impossible that it should be matter of doubt to the incapable judge himself. But the judge being thus necessarily and fully conscious of his incapacity to discharge the duties of the office, the result in point of mischievousness and wrongful profit is—besides the infinite and inappreciable mass of misery produced on the part of suitors—peculation to the amount of the undue profit extracted from the office, the duties of which were thus left unperformed.
[* ]The King v. Cobbett. Cobbett’s Register, 2d June 1894, p. 853. Charge given to the jury by Lord Ellenborough, Lord Chief Justice.