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CHAPTER IX.: INSTRUMENTS FOR 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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INSTRUMENTS FOR CRUSHING THE LIBERTY OF THE PRESS.
Doctrines and Rules.
A view of libel law as it is, confronted with a view of what it ought to be, is destined for a separate publication: slight, indeed, and consequently imperfect and inadequate, is the only view that can be given of it here. But, without something under this head, of the most fatal of all the effects of the packing system—of that, in comparison of which all others put together are as nothing—not any even the slightest conception could have been conveyed.
Even the slight sample or two, which have incidentally presented themselves, may have been sufficient to induce a suspicion, and that not a light one—that the treatment which, under the notion of law, has been given—and at this moment is ready to be given—to the press, is, if persevered in with any tolerable degree of steadiness, incompatible with every political—not to say moral—use of it.
A fundamental sophism, from which every other rule, doctrine, or maxim, draws its mischief, is one that, from having never been announced in words, is not the less, but the more, mischievous. It consists in confounding on this ground demand for punishment with demand for disapprobation: or, what comes exactly to the same thing, assuming, that the one being established, the other follows of course. “Is this proper? Is this decent? Is this endurable?” Ask the orator. Reinforcing at every step the intensity of the disapprobation which the appeal thus made to the passions is calculated to call forth: at the same time, in whatever degree, if in any, that hostile sentiment be actually called forth, verdict of guilty is the verdict, the necessity of which is thus constantly assumed, and which by the delusive force of the assumption is but too constantly produced.
Reducing this notion to a determinate proposition, with a correspondent practical rule, let us add to it a few others, expressive as far as they go, of the actual state of libel law: stating, under the head of each, the documents from which it has been deduced. Taken together, they will suffice, it is apprehended, to establish—and with a degree of evidence sufficient, at least, to the present purpose—that, under libel law as it is, prosecution and conviction are the same thing: and that, when a political libel is the offence, the form of jury trial is but a melancholy farce.
1. A written and published discourse is a libel, and every person who contributes to the communication of it, punishable in respect of it, if there be to be found in it any passage or passages, the tendency of which is, in any degree, to expose government, i. e. any member or members of the governing body—considered in that character—to “disesteem.” Rule—Punish whatever tends to bring a man in power into “disesteem.”
2. — or, in relation to any person in any high situation, affording any inference, representing him as ill-placed in it, and questioning his fitness for it. Rule—Punish whatever imputes unfitness to any man in office.
3. — or which has had, or has tended to have, any such effect as that of “prejudicing,” “hurting,” “injuring,” or “violating,” the feelings of any individual:” more especially if his “situation” be a “high” one. Rule—Punish whatever hurts anybody’s “feelings.”
4. In any written and published discourse, whatsoever passage constitutes just cause for dislike, constitutes just and sufficient cause for punishment. Rule—Punish whatever you dislike.
As to the grounds of these doctrines and these rules—viz. the grounds relied on as constituting the warrant for regarding the doctrines as having by competent authority been delivered, and the rules as being by like authority about to be pursued, they are taken from the report, as published in Cobbett’s Weekly Political Register, for the 2d of June 1808, of the trial in the cause entitled “The King against Cobbett:” being an information filed ex officio by the Hon. Spencer Perceval, his Majesty’s attorney-general, against the defendant, “for publishing, in the Weekly Political Register, of the 5th of November, and the 10th of December 1803, certain libels upon the Earl of Hardwicke, Lord Lieutenant of Ireland; Mr. Justice Osborne, one of the judges of the court of King’s Bench in Ireland; and Mr. Marsden, under secretary of state for Ireland: on which information the defendant was tried in the Court of King’s Bench, at Westminster, on Thursday the 24th of May 1804, before the Lord Chief-Justice, Lord Ellenborough, and a special jury.”
The words of the several passages quoted are copied from that Report.
N. B. This libel is the same, on account of which Mr. Justice Johnson, Judge of the court of Common Pleas in Ireland, was afterwards, to wit, on the 23d of November 1805, convicted in the character of the author, on a trial at bar, in the Court of King’s Bench in England.
1. Rule concerning Disesteem.
Proof of the Rule.—Ch. Justice, p. 854.—“It is no new doctrine, that if a publication be calculated to alienate the affections of the people, by bringing the government into disesteem, whether the expedient be ridicule or obloquy, the person so conducting himself is exposed to the inflictions of the law. It is a crime. It has ever been considered as a crime: whether it be wrapped up in one form or another. The case of the King v. Tutchin, decided in the time of Lord Chief-Justice Holt, has removed all ambiguity from this question.”
Thus far the Lord Chief-Justice. While these pages are writing, persons out of number are amusing themselves with rendering what. I hope, appears to themselves, at least, good service to the country, by complaining of abuses, which to them appear as if existing in the government of it: and, to some at least of these persons, these abuses appear to have swelled to such a magnitude, as that nothing short of an alteration in the mode of representation in parliament, can operate as a sufficient remedy. Have or have not such proceedings, and such publications, a tendency not only to “bring the government into disesteem,” but “to alienate the affections of the people” from something or other—forexample, from a parliament composed as at present? If yes, and if, to any person so occupied, it should happen to cast an eye upon this page, I would beseech him to ask of himself whether a cell in Dorchester or Gloucester jail be or be not a fit abode for him—to consider whether he be in a state of fit preparation for a visit of some years length to either of those theatres of lawful reform—and in what manner accommodation may in the most convenient manner be provided, in those or some other boarding-houses of the same class, for himself and the quantity of company whom he ought to have there.
Another hint to reformers:—Among the situations at the disposal of this noble and learned teacher of the arts of decency and candour—situations, the profit of which helps to constitute that part of his Lordship’s remuneration which is composed of patronage, is one, which, in 1797, produced from £1200 to £1300 a-year,* part of the profit of which consists in the letting of lodgings, for which it is part of his lordship’s occupation to provide lodgers. Amidst the demands, which the execution of the law thus delineated would, if executed with anything like impartiality, be productive of, for accommodations in this and other such schools of reformation, would not forecast suggest the endeavouring to secure some of the most convenient of these lodgings by a suitable retaining fee?
2. Rule concerning Feelings.
Proofs.—Ch. Justice, p. 854.—1. . . . “By the law of England there is no impunity to any person publishing anything that is injurious to the feelings and happiness of an individual.”. . . .
2. Ib. “If a man publish a paper, he is exposed to the penal consequences, as he is in every other act if it be illegal; and it is illegal, if it tends to the prejudice of any individual.”
3. Ib. . . . . “The question for your consideration is, whether this paper is such as would be injurious to the individuals, and whether,” &c.
4. P. 858. “It has been observed, that it is the right of the British subject to exhibit the folly or imbecility of the members of the government. But, gentlemen, we must confine ourselves within limits. If in so doing, individual feelings are violated, there the line of interdiction begins, and the offence becomes the subject of penal visitation.”
5. Ib. “If you are of opinion that the publications are hurtful to the individuals or to the government, you will find the defendant guilty.”
On putting together these passages, all out of the same speech—out of the same charge, and that not a very long one—it seems evident enough, that if they mean anything, they mean this—viz. that it is a crime for any man to write anything which it happens to any other man not to like: or more shortly, that if a man publishes what he writes, under Lord Ellenborough at least, it is a crime to write. For, what published book was ever written—and, being written, read—in which somebody or other has not found something or other that he did not like:—in plain language, that he did not like; or, in the language of avenging sentimentality, that was not “injurious,” “prejudicial,” “hurtful,” or “violational?”—add, for further enrichment of the language, vulnerary to him or to his feelings?
And how am I to know whether what I am writing, and meaning to publish, will, or will not, meet with any man to whose “feelings” it will be “injurious,” and so forth? Why, by his prosecuting me or not prosecuting me. And if he prosecute me, what will be the consequence? Why, that I have committed a crime, and must be convicted of course: for if his taking upon himself the expense and vexation of carrying on a criminal prosecution be not a proof that his feelings have been injured, prejudiced, hurt, or violated, nothing else can be. Therefore, as already observed, admit but this doctrine to be good law—(and, coming from the source from which it comes, how can it be otherwise?)—prosecution for a libel is in every case itself evidence that the paper prosecuted for is a libel, and that evidence is conclusive.
The criterion—it must be confessed—the criterion thus afforded, is an extremely simple one. No man can fail—or, at least, no man can long fail—to know, whether he is, or is not, under prosecution. If, then, for anything that I have written, I am not yet prosecuted, what I have written is not as yet a libel: if, for anything in that way, I am already under prosecution, then it is a libel. Such being the criterion, to the noble and learned inventor, nothing—it may well be presumed—can be more satisfactory. But to us without doors, who are as yet out of jail, and who, if we did but know how, had rather continue at large than be locked up in one, is there any and what course left open, for learning, at any earlier point of time, whether this or that article, which it would be satisfactory to us to see made public, will or will not be productive of an effect which to us would be so serious a one.
A high-sheriff, for example, or other chairman, of a county or other meeting, in which a set of resolutions are voted, imputing either “folly or imbecility,” or corruption, to any of those right honourable persons to whom those qualities, or some of them, have of late, in one or other meeting of that sort, been now and then imputed—any such presiding character, though not a “great character,” wishing to give to these resolutions a certain degree of publicity, and at the same time not wishing to pass his time in a prison, though it were for no more than three, or even for no more than two years—what is he to do?
For knowing what, on a given occasion, a man’s feelings will be—or rather, and to come somewhat closer to the point, what on that occasion he will declare his feelings to be—I know of one course, and but one, which is—to put the question to himself. On this principle, to save circumlocutory description, I will venture to submit to the consideration of such gentlemen as it may concern, the form of a Note, which, short and simple as it is, may, it is humbly hoped, be found to be not the less well adapted to the purpose:—
presents his respectful compliments to Lord Castlereagh, and begs the favour of being informed, whether the “exhibition” of his lordship’s folly, or his lordship’s imbecility, or his lordship’s corruption, should it take place, would be “prejudicial,” “hurtful,” “injurious,” or “violational” to his lordship, or to his lordship’s feelings.” The like to the right honourable Spencer Perceval, &c. &c. &c.
To any such chairman, who, though not “a great character,” will, at any rate, be a distinguished one, should it happen to be apprized of the qualification which, from certain exemplifications (whereof presently* ) that have been given of the magnanimity of the said Mr. Perceval, may by implication be understood as being allowed to be, in a certain sense, and under certain restrictions, capable of exempting a man from the lot to which a liberty of this nature would otherwise so justly doom him—should it happen to him, accordingly, to be capable of making the proper responses to the catechism formed by that no less religious than high-born and high-seated gentleman—and in particular to his grand Latin question, Quo patre natus—wrapping himself up in Mr. Perceval’s virtue as if it were his own; what may also happen to him is—to turn aside with disdain from this humble but well-meant endeavour to save him from what it may happen to him not to like. But whatsoever may happen to be the security, real or imagined, of a person so distinguished, the resource may not be altogether beneath the attention of those who, like myself, belong to the undistinguished herd: I mean the printers who propose to print, the booksellers who propose to sell, any such resolutions, as well as the readers, to whom in reading of them it might happen not to take sufficient care to keep their tenor and purport to themselves.
3. Rule concerning Unfitness in high Situations.
Ch. Justice, p. 857.—After having, on the occasion of a sentence, mentioned above, undertaken, as above, to enumerate the “libels” contained in that one sentence, coming to that which in this list happens to occupy the second place—“He admits,” says his Lordship, speaking of the libeller—“he admits this noble person” (Lord Hardwicke) “to be celebrated for understanding the modern method of fatting a sheep, as well as any man in Cambridgeshire.”—“Now, gentlemen,” continues the Lord Chief-Justice, “what does this mean? Does it not clearly mean to infer, that Lord Hardwicke is ill-placed in his high situation, and that he is only fit for the common walks of life.”
Thus far the Lord Chief-Justice.—Among the persons just spoken of as being suspected—and surely not altogether without apparent cause—of endeavours used to bring the government into disesteem, I have observed some, by whom declarations have been made, expressive of an opinion—and that, too, pronounced still more “clearly” than in the way of “inference”—concerning Lord Viscount Castlereagh, and the now right honourable Spencer Perceval—the same right honourable person whom we then observed officiating, we have seen how, in the character of his Majesty’s attorney-general—as being respectively somewhat “ill-placed” in one of their “high situations.” After passing eighteen months in prison for one of the two libels thus uttered, and made public, the libellers, of whom I am speaking, are they prepared to pass another eighteen months, in the same place and condition, for the other of these same libels?
Being a man that writes, or even though he be but a man that thinks—whosoever prefers liberty to imprisonment, safety to destruction, “let him think of these things.”
“To doubt the fitness of him whom the sovereign hath chosen, borders near on sacrilege.”
Such is the rule laid down by some learned law-lord, Chief-Justice of the Emperor’s Bench, in the time of the Emperor Justinian—“Sacrilegii eniminstar est dubitare an is dignus sit quem elegerit imperator.” C. ff. 9, 29, 3.
Of the constellation of “great characters” in “high situations,” by whom the rule thus copied, and those others that match so well with it, have been called for and laid down, let any one who dares, and who (to use the words of the Lord Chief-Baron) “thinks it worth while,” say—that they, or any of them, are “ill-placed” in, or “unfit” for, those their respective situations.
Thus much, however, may be a question—though alas! it is but a speculative and barren one—whether, for their own feelings at least, they are not, more particularly some of them, rather unfortunately placed in point of time. In England, in these our days, at this early part of the nineteenth century, their “feelings” are forced to content themselves with comparatively scanty gratifications: gratifications, such as may be afforded, for example, by the spectacle of a judge driven off the bench, and a few years’—as yet no more than a few years’—imprisonment bestowed upon a few paltry booksellers.
And without seeking to send them, or any of them, so far back as to those imperial times from which this rule of theirs was with so much fidelity transcribed, or even of those of our own first Defender of the Faith, who even without the benefit of the act called, in the newspapers, sometimes the cutting act, sometimes the Ellenborough act, enjoyed in the course of his life the deaths of no fewer than 70,000 of his subjects in the character of criminals—had the noble and learned godfather of that law been as free to choose the time as he is the place of his circuits, would not the western circuit, anno 1685, have been a choice more congenial to “feelings” such as his, than any circuit can now be in these degenerate days, ubi pro duritie temporum, as the learned anatomist so feelingly laments, vivos homines dissecari non licet: when, in plain English, such is the hardness, such the ferment of and in the times, that men cannot be found to be cut up alive for the amusement of learned eyes: so that noble lords and honourable gentlemen, who have a taste for torture (understand for witnessing it, not for feeling it,) are reduced to content themselves with such inferior, yet never-to-be-parted-with gratifications, as the agonies of bulls, dogs, cats, and horses can afford.
4. Rule concerning Dislike.
Follows a list of qualities, which, on the supposition of their being to be found in a discourse of any kind, have been stated as being of a nature to excite, in the breast of any person by whom it is heard or read, a sentiment of disapprobation or dislike: the existence of which sentiment has, by the chief-justice of the King’s Bench, or by the attorney-general, with the concurrence of the said chief-justice, been stated as constituting a sufficient warrant for pronouncing such discourse (it being consigned to writing) libellous, and for punishing with any number of years imprisonment, besides other punishments, every person who, in any way, has contributed to the communication of it:—
1. Want of fairness. 2. Want of liberality. 3. Flippancy. 4. Deviation from decency. 5. Unbecomingness. 6. Impropriety. 7. Slanderousness. 8. Ill-nature. 9. Want of candour. 10. Tendency to ridicule. 11. Contradictoriness—viz. with reference to matter of opinion advanced by another person.
Follow now the correspondent passages serving as grounds of this doctrine—proofs of the existence of the corresponding rule:—
It cannot with reason, and therefore, it is presumed, it will not be expected, that, on the occasion of every one of these qualities, either the chief-justice, or, under his allowance, the attorney-general, shall, in precise logical form, be seen exhibiting, and re-exhibiting to the jury, an argument in any such words as these—viz. this quality exists in the discourse in question—the quality, and, in respect of it, the discourse, will be regarded by you with disapprobation or dislike—therefore, in consideration of such disapprobation or dislike, even although the discourse should be found to contain no other passage in it, having the effect of exciting, in your breast, the like sentiment, you will regard yourselves as bound to join, in pronouncing against the defendant, the verdict guilty.
That such, throughout, was their intention, may surely be regarded as placed sufficiently out of doubt by the following considerations:
The purpose, and sole purpose, for which, on that occasion, the defendant was brought before the jury, was—that it might be ascertained, whether, in respect of the discourse in question, he was, in the character of a libeller, guilty, and as such punishable. In any other view than that of contributing to this effect, had anything been, either by the chief-justice or the attorney-general, said of the discourse in question, it would have been irrelevant: and not merely irrelevant, but insidious and injurious; having, for its object and tendency, the causing a man to be convicted, as if it were criminal, on account of a portion of discourse which, in their own opinions, was not criminal. Not but that, on several of these occasions, the passage taken for the subject of animadversion is, in express terms, pronounced, by one or other of these official persons, “a libel” or “libellous:”—and since, in this respect, no line of distinction is drawn between any one of the passages so animadverted upon, and any other, it will surely not be regarded by anybody as a question open to dispute, whether, among all these several qualities, and all these several corresponding passages, there were any one, in respect of which it was not part of the design and endeavour, of the official persons in question, to cause the passage to be by the jury reputed libellous, and the defendant dealt with accordingly in respect of it.
The qualities, successively ascribed to the various parts of the printed discourse, and, in respect of which, it is supposed to be the design and endeavour of the spoken speech, to cause the discourses to be considered as libellous, are hereinafter designated and introduced by the words quality or qualities.
The passages respectively adduced to serve as proofs, that, on the occasion of each such respective quality, such was the design and endeavour, are designated and introduced by the words proof or proofs.
I. Qualities.—1. Want of fairness. 2. Want of liberality.
Proof.—Attorney-general, p. 827. “Now, Gentlemen, is there anything in all this that can be called a fair and liberal description of a public character . . . . . ?”
II. Qualities.—3. Flippancy. 4. Deviation from decency.
Proof.—Attorney-general, p. 827. “Gentlemen, I have already adverted to the indecency and flippancy of many expressions made use of in this libel. If this libeller had been hurried away with the temptation of saying a flippant thing, I should not have thought it a subject of criminal prosecution. But, in the case before you, it is criminal, as indicating the spirit with which it was written, and as being descriptive of the mind of the man at the time he was making them. I would not, however, be understood to say, that even in the warmth of discussion upon public men and public measures, decency of language ought not to be preserved, and that any deviation therefrom is not punishable. . . . .” [Here the doctrine in question is directly avowed: by the attorney-general avowed, and by the chief-justice never contradicted: viz. that for every written discourse to which a deviation from decency can with propriety be imputed, a publisher is punishable.]
III. Qualities.—5. Unbecomingness: and again Flippancy.
Proof.—Attorney-general, p. 820. “Surely no one who has the least liberality of feeling, could think it becoming to taunt such a gentleman as Mr. Addington.” [Taunt him, viz. by naming him by his father’s title.] P. 828, “I again say, that for any publication calling Mr. Addington, Doctor Addington, or any flippancy of that nature, standing by itself, I should think it beneath the dignity of that right honourable gentleman to make it the subject of a prosecution.” N. B.—Beneath his dignity only, not above his power. Learn we hence, that if at this moment there exists out of a jail any such person as a newspaper editor, or a political writer, on any other than one side, it is owing to the joint magnanimity of “such a gentleman” as Mr. Perceval, and “such a gentleman” as Mr. Addington.
IV. Qualities.—6. Impropriety (as intimated by the word ought.) 7. Slanderousness. 8. Ill-nature.
Proof.—Attorney-general, p. 829. After speaking of divers passages in which Lord Hardwicke had been spoken of as being “a good father, a kind husband, fond of literature, and agricultural pursuits—” “Qualities like these” (continues he) “ought to have made the libeller pause, before he ventured to attack such a chahracter.” . . . . . . “Gentlemen, you must shut your eyes—if you do not see that these amiable qualities are attributed to Lord Hardwicke, with a slanderous, with an ill-natured meaning.”
V. Qualities.—9. Want of candour.
Proof.—Attorney-general, p. 830. “Will any man believe that there is any degree of candour in saying, that all that has been done by the British government for Ireland, is to send them a sheep-feeder from Cambridgeshire, and a strong-built chancery-pleader from Lincoln’s-Inn, when I tell you that . . . . Ireland . . . . is defended,” &c. &c.
Learn we hence, that whatever “degree of candour” there may happen to be in any given discourse, it is in the power of the honourable Spencer Perceval—(but whether in his character of Spencer Perceval, or in his character of attorney-general, that we are left to learn as we can)—at any rate in the power of somebody—and the safest conclusion seems to be, in the power of any and every man that is in power—to divest the discourse of such its candour, and thereby subject the author and publisher of it to punishment: and this by so easy a process as “telling” the jury anything that shall have the effect of a contradiction to this or that part of the discourse.
On this head, not a particle of Mr. Attorney-general’s law, howsoever objected to (as we shall see) by the defendant’s counsel,* is dissented from by the Chief-justice: on the contrary, from what immediately follows, let any man judge, whether, by implication at least—by necessary implication—it has not the whole of it, been confirmed.
VI. Qualities.—10. Tendency to ridicule.
Proof.—Chief-Justice, p. 849. Upon the above and other passages, the observation of the defendant’s counsel (Mr. Adam) had been, p. 842, that “if the doctrine so laid down were admitted . . . . the freedom of discussion, relative to public men and public measures, would depend—not upon a point of right, but upon the taste of the attorney-general:” and that “the controul which the attorney-general is” [thus] “desirous of putting upon it [the liberty of the press] would go to extinguish it for ever,” p. 842.
“Ridicule,” he had afterwards contended, p. 849, “is a weapon which may be fairly and honourably employed, especially when it is in the true spirit of English humour, and for an object purely of a public nature.” After speaking of the nick-name of Carlo Khan, formerly given to Charles Fox, and the print of a colossus, comprehending all Scotland within the stride of its patronage—when, after adducing these examples, he goes on to say, “Lord Hardwicke is again represented as devoted to agricultural pursuits.” . . . . he finds himself thus interrupted by the Lord Chief-Justice—
“Do you maintain that a person has a right to ridicule his neighbour?”—Mr. Adam.—This is an information for a public libel, and not for private ridicule. Lord Ellenborough.—“I suppose you have some authority. I do not wish to restrain your arguments, but it is a doctrine which never was, and never can be, maintained.”
VII. Qualities.—11. Contradictoriness; viz. when manifested, in terms of a certain degree of strength, towards some proposition or propositions, that have been advanced by some one else. [N. B.—In the instance in question, it was a mere matter of opinion, relative to the state of the nation: not any specific matter of fact.]
Proof.—Chief-Justice, p. 856. Afterwards, in his charge, speaking of one of the sentences in the paper, his Lordship says, p. 856, “Now the libels in this sentence are these”—thereupon, coming to one of them, he proceeds, and exclaims, “Is it to be endured, that it should be said of any person, but more especially of a person sitting in the capacity of a judge, that he had poured a broadside upon the truth of the fact?”—N. B. Sitting in the capacity of a judge. Yes: so the judge in question, Mr. Justice Osborne, was: but how? not hearing a cause, but haranguing upon politics.
The disapprobation excited by this expression, in the bosom of our Lord Chief-Justice, was, it seems, of such a strength as to be past endurance. A similar, if not exactly equal, sentiment is what he assures himself of finding prevalent, in the bosoms of the jurors (the guinea-men,) to whom he is addressing himself: and on this sentiment it is that he relies as sufficient of itself to entitle him to expect, at their hands, a verdict of “guilty,” enabling him to subject the victim to any number of years’ close imprisonment in a scene of solitude.
The word “fiction” will of itself suffice to satisfy any person, who can endure to look into Blackstone’s Appendix, with the corresponding chapters, in this view, that in the universal scramble for fees, of which the jurisdiction of the Westminster-hall courts in its present state is the result, the war was carried on in no other manner, and by no other arms, than by broadsides, which then were, and still continue to be, “poured upon the truth of facts.” If, then, anything like consistency were to be expected among persons in such “high situations,” so far exalted above all need of consistency, and all fear of shame, long ago would every man, who has ever vended, or in any other way contributed to the dissemination of the contents of Blackstone’s Commentaries, have been prosecuted by the Hon. Spencer Perceval, and convicted, as of course, by one of Lord Ellenborough’s juries.
Signing a notorious falsehood—is this pouring a broadside upon fact? If so, is there a term, in which broadsides are not poured upon facts by hundreds, not to say thousands—poured by the very hand of this very judge, (with fees for the same) or to his profit, and under his orders?
By the smoke of these broadsides, have not the paths of judicial procedure been converted into—what they were meant to be converted into—a jungle, penetrable to the eyes of tigers, impenetrable to the eyes of suitors, who, such of them as do not perish in it, are dragged through it?
Before he was what he is—this noble and learned Lord Chief-Justice—was he not an advocate? Does not the occupation of an advocate consist in pouring broadsides upon the truth of facts—of whatsoever facts are set up for him as a mark by the attorney, who brings him his brief with this or that number of guineas marked on the back of it?
Was not he a special pleader? Knows he not what a sham plea is?
The distinction between the cases in which falsehood is either allowed of or compelled, and those in which it is made punishable, had it ever—has it to this day—any better object, than the enabling well-paid marksmen to pour broadsides upon the truth of facts? (Scotch Reform, Letter I. Device 10. Mendacity-licence.)
What is endurable—yes, and endured, and with as much complacency as if vice were virtue, and falsehood necessary to justice, is—that by these guardians of public morals, broadsides should be poured without ceasing—poured upon the truth of facts:—what is not endurable, is—that they should be told of it.
Decency and candour! What important words! How necessary is correctness to the conceptions which it may happen to a man to have annexed to them! What is there that does not depend upon it? Open one report more, which shall be quoted presently, and you may see the whole fabric of English liberty hanging upon the import of these two sounds. Note well the fineness of the hair: observe well the thinness—the mathematical thinness, or rather phantasmagorical tenuity of the partitions, which at this hour divide liberty from thraldom. Observe how pleasantly the hair, if not sufficiently cut through already, may be cut through at any time; nobody, but those employed in cutting it, knowing or caring anything about the matter.
(Campbell’s Nisi Prius Reports, Easter Term, 48 Geo. III. 1808, p. 359, Rex v. White, and another, London sittings after Easter Term, 48 Geo. III. Before Mr. Justice Grose.)
Information (ex officio) “by the Attorney-general against the proprietor and printer of a Sunday Newspaper, called The Independent Whig, for a libel upon Mr. Justice Le Blanc, and the jury before whom the captain of a merchant ship had been tried for murder at the Old-Bailey . . . . .
Grose J. said it certainly was lawful, withdecencyandcandour,to discuss the propriety of the verdict of a jury, or the decision of a judge; and if the defendants should be thought to have done no more in this instance, they would be entitled to an acquittal: but on the contrary, they had transgressed the law, and ought to be convicted, if the extracts from the newspaper set out in the information contained no reasoning or discussion, but only declamation and invective, and were written not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into hatred and contempt the administration of justice in the country.”
“The defendants were found guilty on this and a similar information, and sentenced to three years’ imprisonment.” Thus far the reporter. The similar information was for a similar libel on Lord Ellenborough, the Lord Chief-Justice.
You, to whose imagination any such imprudent fancy should at any time present itself as that of taking for the subject of free “discussion,” under favour of any such licence, as above, the “decisions,” or the conduct of an English “judge,” would you know whether the expressions that have presented themselves to your pen are consistent with the rules of “decency and candour?” Go to the house of penitence at Dorchester or Gloucester—repent there for three years, or any such increased number of years, as for the allaying of the increasing ferment shall have been deemed necessary* —repent, and when your course of penitence has there been run through, perhaps even at the commencement of it, when beyond hope of mercy, it has by your sentence been announced to you—then it is that you will be informed, and know all that it is intended you shall know. And what is that? Not by what means those rules may, in all cases, be observed, but by what means, in one instance, they have been violated.
Behold then, in the King’s Bench, the royal school of decency: a school, the discipline of which has however this to distinguish it from ordinary schools—for example, from the other royal school within view of it—viz. that whereas, in Dr. Carey’s school, instruction comes first, and then, in case of transgression, if the transgression be wilful and perverse, perhaps correction afterwards,—stripes, say half a dozen: in Lord Ellenborough’s school, correction, or, peradventure, under the name of correction, destruction, comes first; and it is from this correction or this destruction, that, for the first time, and without the possibility of learning it from any other source, or at any earlier period, the scholar derives the satisfaction of learning how he ought to have behaved himself.
Terror issuing from the Darkness of the Doctrines.
If, by competent and acknowledged legislative authority, and in and by any determinate assemblage of determinate words, such as are the words of every act of parliament, maxims, even such as those that we have been seeing, were consigned to writing and established—established though it were in these very words—the very words that we have just seen—the condition of Englishmen would be a condition of security, in comparison of what it is at present.
But by no such authority, in no such determinate form of words, has this part of the rule of action as yet been, or will any part of it ever be, established and fixed, that Judge and Co. are able to prevent from being thus fixed.†
Under such law—(the abuse here made of the term law must be tolerated, for it is inevitable)—under such law, security may be talked of, and even fancied, but, for any man who either publishes a newspaper (not to speak of pamphlets,) or contributes to the communication of its contents, security itself cannot, with truth, be said to have existence. Thus much for actual danger.
Now as to alarm—terror—the inseparable consequence of opinion of danger, on this as on every part of the field of law, in which the legislator—dupe or accomplice of Judge and Co.—has refused to act, fear makes law, as among the heathen it made Gods.‡
The Lord Chief-Justice of the King’s Bench—would he think this “decent? becoming? proper?”—would he “endure” it? Might not his “feelings” be “hurt,” wounded, “violated,” “prejudiced,” or “injured” by it? Mr. Attorney-general—Mr. Chancellor of the Exchequer—the First Lord of the Treasury—any of the “great characters”—their high situated connexions—any one of these exalted persons, to whose ear a rumour concerning any part of the contents, or of the supposed design, of this or that passage in my projected pamphlet, should happen to have found its way, may it not happen to them, or any of them (Mr. Attorney-general excepted) to intimate as much to Mr. Attorney-general; in which case prosecution may, and, if prosecution, conviction and perdition will, to a certainty, be my doom. To publish, or not to publish? To write, or not to write? Of this sort will be the question, which, under the darkness visible at which we have been taking a glance, any man, into whose mind any such speculative, theoretical, and jacobinical conception should have entered, as that of attempting to bring to light any abuse, the theatre of which is to be found in any part of the system of judicial procedure, will of course be tormenting himself. The answer will be determined—partly by the incidents which chance has presented to his notice, partly by the strength or weakness of his nerves.
In this state of law, bribery excepted, among those which concern the administration of justice, exists there that enormity which a judge—I mean an English judge, one of the legislating twelve—by committing, or even by confessing, would expose himself to any the slightest danger—I do not say of punishment—the supposition would be too extravagant—but so much as of any expression—any the faintest expression of regret—such as majorities know so well how to frame—that it had not been otherwise? Confessing, would he obtain credence?
Not long ago comes out a newspaper, announcing a series of letters, to be addressed to the Lord Chief-Justice of the King’s Bench:—letters, which were to have presented to his lordship’s notice abuses upon abuses, the scene of which was to have been laid in his lordship’s court, or in which, at any rate, practitioners in that court were to have been represented as actors. In the character of an introduction, the first of the announced letters crawls out:—no other follows it.—Whence this sudden death? That which history refuses to disclose, must be supplied by another hand. Between the first letter and the day which should have brought forth the second, in the hour which should have been that of repose, the pillow of the publisher receives a shake, the united curtains separate, and behold! at the bed’s feet a grisly spectre—wrapt up in clouds of artificial hair, ill concealing the streams of gore which are seen issuing from wounded feelings. In its uplifted hands is displayed a terrific scroll, exhibiting a plan and elevation of each of the two lately consecrated abodes of sequestered penitence, with Mene tekel and Utrum horum in flaming capitals, garnished with fragments of sentences about contempt of government, high situation, et cætera, and so forth, scrawled upon the walls.
After such warnings—and where is the literary pillow that is not visited by them?—suppose for argument’s sake—and it is only for argument’s sake—suppose Lord Ellenborough to have done any of those things which Lord Macclesfield, or even any of those things which, alas! Lord Bacon did before him—suppose him to have squeezed clerks as Lord Macclesfield did masters:—suppose him, like Lord Macclesfield, to have sold places under himself which it belonged to him to check—or (supposing it moreover unlawful)—suppose him, instead of selling them to a disadvantage, to have listened to the suggestions of a more improved economy, and pocketed the whole profit in the lump.
Suppose—but what end would there be to such suppositions?
In such a state of things, among those elected guardians of justice, if any such there be—to whom economy, so displayed, and on such a theatre, would appear a fitter object of reform than imitation or confirmation, is there any one that would hear of it?—is there any one that, in print at least, would tell of it? Not unless a situation in Gloucester or Dorchester jail—and that a safe and permanent one—safe as safe-custody could make it—permanent as a lease for years could make it—had become the object of his choice.
This, then, is among the effects—and is it not among the uses—not to say the objects—of libel law?
The purity of the Bench an article—a fortieth article—in the creed of Englishmen:—orthodoxy, on this ground, even where unpaid, universal. Yes: but behold the cause of it.
Such being the bar opposed to beneficial discovery by universal terror, suppose it broken through at all, by whom will it have been broken through? By the candid, the correct, the moderate? Possibly;—should haply these virtues be found at any time in company with almost unexampled fortitude. But how much more likely by the uncandid, the incorrect, the violent? Vices like these, when exemplified in the supposed libel, have they, or have they not, any such effect as that of enhancing the mischief, if any, which is liable to be produced by it? The answer is not altogether clear: but, at any rate, it is on the supposition of the affirmative, that the proportions, generally given to the intensity of invective, seem to be grounded.
But it is truth, not violence, that has been the real object of terror and hostility, to the creators and preservers of English libel law: and thus it is, that while, under the spur of indignation and desperation, violence and exaggeration burst forth, truth—gentle and simple truth—remains at the bottom of her well, without daring to peep out.
[* ]Finance Committee of 1798. Report, 27, p. 164-5.
[* ]See Ch. XI. § 2.
[* ]See Chap. X.
[* ]See above, Chap. VIII. p. 99—Speech of Mr. Justice Grose, in The King against Beaumont.
[† ]When, on any part of the field of law, the security of the subject is at its lowest, then it is that the delight with which it is contemplated by learned eyes is at its highest pitch.
[‡ ]Primus in orbe Deos fecit timor.