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APPENDIX. - 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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Among the Rulers of the University of Oxford, Perjury universal and constant, as declared in and by an Explanation, given by themselves, in their own Statutes—its Jesuitical style.
In page 212, in speaking of the rulers of the University of Oxford, mention being made of a document, in and by which the guilt of perjury is in an especial manner declared to attach, upon every person who shall comport himself in the manner therein described;—the same being a manner, in which, to his own knowledge and in the sight of the whole population of that city and its university, every such person does continually comport himself;—an extract is thereupon announced, as intended to be here subjoined, for the purpose of bringing to view the contents of that document, in so far as material to the present purpose. In the original, the following are the terms of it: annexed to it is a translation, in the penning of which, polish being considered as falsification, the most scrupulous fidelity has been observed. Misrepresentation pro tanto would have been the result, if, anywhere, in place of that which is, anything, of which it were supposed that it might better have been, had been substituted.
N.B. Of this document a copy is contained in every edition of that extract from the body of the University Statutes which is put into the hands of every member at his entrance.
Quoniam aliis restrictior et morosior, aliis contra, laxior et discinctior est Conscientia; illi levissimos quosque lapsus suos calumniari nati sunt, et sese non sæpius immorigeros, quam perjuros esse arbitrantur; hi quoseunque legum nexus, jurisjurandi religionem, conscientiæ laqueos, strophis suis eludere satagunt: et ipsi sibi palpum obtrudunt: non abs re fore visum est explicare, quatenus seu quousque jurisjurandi, de Statutis Universitatis observandis præstiti, religione teneri seu obligari singulos censendum sit; in eoque tale temperamentum sequi, ne, vel durius interpretando, illis crucem figere; vel benignius, his fibulam laxare videamur.
Qua in re, hoc imprimis attendendum est; verbis statutorum, in quæ jurejurando quis adigitur, sensum genuinum, ut et obligationi sive vinculo juramenti, modum ac mensuram præstitui seu prescribi a mente et intentione, non præstantis, sed exigentis juramentum; scilicet ipsius legislatoris. Neque enim si quis inter jurandum, verbis, in quæ jurejurando adigitur, sensum affingat alienum ab eo, quem legislatori propositum fuisse, ipsi juranti persuasum, aliasve verisimile est (hoc est, hujusmodi sensum qui desidiæ vel socordiae faveat, quive disciplinæ Academicæ aut morum honestati repugnet) eo ipso εὐοϱϰεῖ[Editor: illegible character] illum, aut statutis vel jurisjurandi religioni satisfacere putandum est; nedum jurisjurandi religione exolutum ut putet se quis, si ad jurandum animum afferat, non obligandi seipsum, sed in nudo verborum cortice sistendi: neque poeticum illud δυσοϱϰιας remedium, seu verius colludium—Lingua juravi, mentem injuratam gero,—homini Christiano satisfacere aut potest, aut debet, eo ipso a perjurii crimine excusatum reputare se ut debeat. Quoniam igitur mensura obligationis, seu vinculi juramenti, ab intentione legislatoris præcipue pendet, operæ pretium utique fuerit, singulos mentem ac intentionem legislatoris perspectam et exploratam habere; qualis scilicet qualiumque statutorum transgressio, juratos ad omnia statuta promiscuè observanda perjurio involvat.
Intenditur igitur perjurio se obligare,
Quoad alia vero delicta; si statutorum pœnarum ve contemptus, et crassa obstinataque negligentia abfuerit, delinquentes, si pœnis per statuta sancitis, aliasve arbitrariis se submiserint, jurisjurandi religionem temerasse minimè censendi sunt. Magistratibus denique, prout major eis debetur reverentia, quàm ut pœnis passim intentatis coerceri ipsos et in ordinem cogi par sit, ita major conscientiæ obligatio incumbit; utpote qui non solum ea quæ sui muneris sunt fideliter administrare; verùm etiam, ut alii omnes suis officiis fungantur, sedulò curare tenentur. Neque tamen eos, ubicunque officiis suis defuerint, perjurio protenus se obligare intenditur. Verùm quoniam ipsorum fidei statutorum custodia et tutela concredita est, si ( quod absit) per negligentiam aut socordiam suam statuta quæcunque inusu ac desuetudine exolescere, et tacite quasi abrogari patiantur, ipsos etiam fidei violatæ ac perjurii teneri decernimus.
Appendix to the Laws,
Forasmuch as in some men Conscience is more strict and morose, in others more lax and loosely girded; the former are born to calumniate every the slightest of their own transgressions, and regard themselves as not more unfrequently unobsequious than perjured; the latter strive by their quibbles to elude all legal ties whatsoever, the religion of an oath, the nets of conscience, and themselves put a cheat upon themselves: it seemed to be not beside the purpose to explain to what length or how far each person ought to be considered as holden or bound by the religion of the oath, taken, touching the observance of the Statutes of the University; and therein to follow such a temperament, that, neither by too hardly interpreting it, we may appear to fasten a cross upon the one; nor by too benignly, to unbutton a button for the other.
Wherein this is in the first place to be attended to; that by the words of those statutes, in which any one is made to take an oath, the genuine sense, as also the mode and measure of and to the obligation or tie of the oath, is applied or prescribed by the mind and intention, not of him by whom the oath is taken, but of him by whom it is exacted; to wit, of the legislator himself. For neither if any one in swearing, affixeth to the words in which he is made to swear, a sense foreign to that of which he the swearer is persuaded, or on other grounds it is probable that it was that which was intended by the legislator (that is to say, such a sense as is favourable to indolence or indifference, or repugnant to academic discipline or moral rectitude,) is it to be thought that he swears rightly, or satisfies the statutes or the religion of an oath; nor yet let any one think himself released from the religious obligation of an oath, if to the act of swearing he brings the intention, not of binding himself, but of stopping at the bare bark of the words: for that poetic remedy, or rather shuffleboard to wrong-swearing—Sworn is my tongue, but unsworn is my mind—neither can nor ought to satisfy a Christian man, in such sort that he ought to repute himself thereby excused from the crime of perjury. Forasmuch, therefore, as the measure of the obligation, or tie of an oath, depends chiefly on the intention of the legislator, it would verily be worth the labour that all persons should have held the mind and intention of the legislator well seen through and explored; to wit, of what sort, and of what sort of statutes, the transgression involves in perjury those who are sworn to the promiscuous observance of all the statutes.
Accordingly, what is understood is—that those men bind themselves in perjury,
But as to other transgressions; if contempt of statutes and punishments, and gross and obstinate negligence, are out of the case, delinquents, if they shall have submitted themselves to the punishments appointed by the statutes, or otherwise to such as are arbitrary, are by no means to be deemed to have violated the religion of an oath. Lastly, on magistrates, according as to them greater reverence is due, than that it should be right that they should be coerced and kept in order by such punishments as are all along threatened; so is a greater obligation of conscience incumbent; to wit, as being they who are bound not only faithfully to administer those things which belong to their functions; but also diligently to take care that all others do perform their respective duties. Nor yet is it understood, that they, as often as they shall have been wanting to their duties, do altogether bind themselves in perjury. But forasmuch as to their fidelity is intrusted the keeping and guardianship of the statutes, if (far be it from them!) they suffer through their own negligence or indifference any statutes whatsoever to be rendered obsolete by non-use or desuetude, and tacitly as it were to be abrogated, them also do we declare to be bound in the bonds of violated faith and perjury.
These “magistratus”—these perjurers in grain—these ipso facto convicted and thus placarded perjurers,—who are they?—The reverend the vice-chancellor—the reverend the heads of houses—the reverend and non-reverend, but for the most part reverend, masters of arts, and other the graduates of higher degrees, being members of the house of congregation and of the house of convocation respectively:—for of these is the legislative body composed. The reverend the vice-chancellor—the reverend the proctors and proproctors, all for the time being—yea, and within the precincts, logical and geographical, of their respective jurisdictions, the reverend the heads of houses, with their respective local subordinates:—for of these is the executive body composed.
Quære as to the noble the chancellor, and the noble the high steward? Upon their respective installations, or whatsoever else be the term,—by them respectively is not some such oath taken?—for are not they too “magistratus?”
On the occasion of the Catholic question, an apprehension, lest, in the breasts of some, or many, or all of the religionists of that persuasion, the ceremony of an oath should not always operate with sufficient power—lest in the person of the Pope, notwithstanding their protestations to the contrary, they should upon occasion seek and find a power, willing, and in their opinion able, to exempt them from the obligation of it;—an apprehension to some such effect was, on the part of many if not all these reverend persons, among the reasons assigned for the wish to see, now and for ever, or thereabouts, still withholden from between a fourth and a fifth part of the population of the two islands, the common rights of subjects. The obligation of an oath to be done away at pleasure by an old priest, in or out of prison, upon the continent! as if in the bosom of every one of these reverend persons, by whom the sincere milk of the word has been sucked from the breast of Holy Mother, there sat not, in the character of a perpetual Pope, with a sponge in his hand, the image of archbishop and university-legislator Laud, constantly sitting and constantly at work, watching each perjury as it peeped out, and passing over it, in the manner that has been seen, the sponge of dispensation, the instant it came to view.
The Manufacture of Perjury persevered in, and the produce repeatedly augmented,—with open eyes, and in spite of remonstrances.
In pages 211 and 212, the determination to persevere in a course of universal and continual perjury, and the habit of enduring the reproach of it without flinching, rather than acknowledge, on the part of this eldest daughter of Holy Mother Church, the possibility of error, are mentioned as among the arcana imperii, inviolably observed in and by that closest of aristocracies—the government of the University of Oxford. If of so undeniable a proposition any further proof be requisite, it may be viewed in abundance in the course pursued by that government in the field of legislation for these last fifty or sixty years. Revision, not unfrequent:—revision of this very title, samples of which have here been brought to view:—Revision, but with what effect? with what view? Never with any such effect or view as that of taking anything from the number of their perjuries; not unfrequently with the effect at least of adding to it.
At the time of matriculation—such is the technical term by which admission into the body of the university is there designated—under the title of Parecbolæ sive Excerpta è Corpore Statutorum Universitatis Oxoniensis, in usum Juventutis Academicæ, an abstract of the University Statutes, containing such of them as it is thought fit that a person who is not a member of the governing body should be acquainted with, is put into his hands. It forms a well-filled 12mo volume: containing in the edition of 1756, 254; in the edition of 1794 (put into my hands within this seven months as the latest edition,) 261 pages.
In Title XV. De moribus conformandis, (being the title from which extracts are here given, as above,) in the edition of 1756 the number of sections is 14; in the edition of 1794, 16.
Whence comes this variance? The case is this: Between the date of the former edition and that of the latter, two statutes—of the number of those which it was thought fit to make known to the individuals whose conduct was to be governed, and whose fate was to be determined by them—two universally promulgated, besides seven or eight secret or partially promulgated statutes, of which presently—had been passed.
In the edition of 1794, between § 5, De ænopoliis, &c., and § 6, De nocturnâ vagatione reprimendâ, is accordingly inserted a section intituled De vehiculis (a section against Phaëtons) which, being § 6, changes the number of that which follows next to it, viz. that De nocturnâ vagatione reprimendâ, and makes it, instead of § 6, as in the above-mentioned earlier edition, § 7.
Lastly, at the end of this same title is moreover inserted an additional section, intituled De reprimendis sumptibus non Academicis, and which accordingly is numbered § 16, as will be seen presently: the day on which it passed is 16th December 1785.
In the manual in question, viz. in the edition of 1794, of neither of these additions is any intimation given; neither by mention made of their respective dates, nor otherwise.
But in this same interval, at various times, nine or ten in the whole, the body of the statutes had been taken in hand for the purpose of amendment; each time in the form of simple addition: in no one instance in the form of simple repeal: and, since the date (1794) of the above-mentioned latest edition, reckoning to the present time (March 1813) it has undergone amendment in four other instances, of which presently.
Of the interpolated section De vehiculis, I have not been able to learn the precise date. In the series of statutes at large the date, of the earliest which my inquiries have succeeded in obtaining, is 26th November 1767; of the latest, 22d June 1808: the series as far as it extends being put into my hands as a perfect one; and in this series, no statute to that effect, or on that subject, is to be found. The time at which it passed must therefore have been sometime between some part of the year 1756 and the 26th November 1767, as above.
Thus often has this same code passed under review.
To what cause, then, is the country indebted for this continually open exhibition?—an enormous and multifarious mass of perpetually violated regulations, together with the oath by which obedience is promised to them, all left standing,—standing together for so many successive ages,—impregnating the whole population of this seat and source of Church-of-England religion, and from thence that of the whole country, with a perpetually inflowing stream of perjury? Is it through inadvertence? No: but because, in regularly reverend and right reverend, not to speak of honourable and noble, eyes, if perjury be a bad sin, innovation is still worse:—innovation, in which is included the removal of evil, in every shape in which it exists at present; innovation, in the exclusion of which is included the perpetuation of abuse, in every shape in which, at the expense of the subject many, profit is derived from it by the ruling few:—an exclusion, in which may be seen a fundamental—and not the less so for being so carefully locked up in the character of a secret—article, in the only “alliance” ever spoken of that was not purely imaginary, “between Church and State.”
Thus far as to the additions made to the subject-matter of these oaths: now as to the additions made to the list of the oaths themselves. While all existing oaths continued to be thus dealt with, fresh batches of the same species of pie-crust have continued to be issued out from the same sacred oven. May 1st, 1800, a new system of examination instituted (examination for degrees:) and the efficiency declared to be rested upon the strength of this perpetually broken reed. “Tit. ix. Sect. ii. De Examinandis Graduum Candidatis: § 1. De Examinatoribus designandis et Juramento onerandis per Seniorem Procuratorem.”
Sometime in the year 1807, as may be inferred from the context (for there appears no date to it,) comes another statute with the same title, repealing, but immediately in part re-enacting, that so lately preceding one: innovating in this mode for the first time, and then no otherwise than upon a recent innovation: the first statute, as far as appears, by which, since the days of Laud, so much as a single atom of the once-consecrated mass was ever done away. By the same reverend hands, the same load is now carefully reimposed on the same reverend shoulders. With what degree of pressure and effect would any man be curious enough to calculate?—the data lie before him as above.
Moreover, though without any such idea stated as that of load or burthen, oaths have all along been sprinkled in on other occasions, and in other places, in and by the series of statutes, 13 or 14 in number, passed in the interval between 1756 and 1813.
Thus much for revisions and enactments. Now as to representations and remonstrances.
In a book published by a reverend divine (Vicesimus Knox,) then late a fellow of one of the colleges in this same seat of piety and perjury—a book of which an edition published so long ago as the year 1789 was the tenth,—a book which accordingly has had a greater currency (and thus under the very eyes of the reverend rulers in question) than perhaps ever fell to the lot of any book in which, in this or any other country, the subject of education has been touched upon—is inserted a letter to the then chancellor, Lord North, proposing a plan of reform, in which the species of perjury here in question forms the subject of the first article.
In holding up to view the universality, the constancy, the notoriety of this sin, together with the perfect consciousness of it in the minds of the reverend persons whose lives were passed in the commission of it, are employed in different parts of this his work, directly or indirectly, no fewer than 54 out of its 727 pages.
In the representations thus made by Mr. Knox, are included others of the same tendency, which at different periods had been made by three other writers: viz. in 1721, by Mr. Amhurst, under the title of Terræ Filius, in an anonymous periodical publication, reprinted in 2 vols. 12mo, in 1726: in 1725, by the Rev. Dr. Newton, Principal of Hart Hall, afterwards Hertford College, Oxford, in a tract intituled University Education, 8vo, pp. 209; and, in a year not specified, by R. Davies, M. D. of Queen’s College, Cambridge, in a letter to the Rev. Dr. Stephen Hales, the natural philosopher.
That remonstrance, though from a consecrated hand, having been productive of no other fruit than that of exposing the reverend persons in question to a sort of censure, which being rather a passport than an obstruction to preferment, is of course to such persons a source rather of satisfaction than of uneasiness, the present attempt by a lay hand cannot, howsoever fruitless, be charged with being needless.
The principle of Infallibility adhered to and acted upon to the last.
In pages from 210 to 212, infallibility is mentioned as being among the attributes bestowed upon herself by the English Holy Mother Church, and accordingly acknowledged, and worshipped, and shared in, by the academic part of her metaphorical progeny. To the eye which, either in the memorials of the puritan Neale, or in those of the orthodox and highly favoured Strype, can endure to look into it, the whole history of the spiritual branch of the reign of Elizabeth is one continued body of evidence, concurring in the demonstration of this truth. Infallibility was the attribute of this church, under the governance of those princes of this church, whose thrones were subordinate to the throne of the virgin queen. These holy men were themselves the church: and the royal mistress of their lives and fortunes—who could have expelled any of them for schism, or burnt any of them for heresy—being herself the church, yea and more than the church—was not only herself infallible, but the cause that infallibility was in them.
Of the assumption of this attribute follows one proof out of a thousand: if, in such a matter, words are less conclusively probative than deeds,—yet, in such a matter, neither are words without their value.
Anno 1584: “Notwithstanding the charge of late given by your Highness,” says Archbishop Whitgift, in a letter to the queen, dated the 24th of March in that year—“notwithstanding the charge of late given by your Highness to the lower House of Parliament, for dealing in the canon of the church; albeit also, according to your Majesty’s good liking, we have sent down order . . . . yet have they passed a bill in that house touching that matter; . . . . they have also passed a bill . . . . contrary to the old canons continually observed among us, and containing matter which tendeth to the slander of this Church, as having hitherto maintained an error.”*
To impute to this assemblage of constantly-corrupted and despot-ridden churchmen—corrupted by hope of preferment, corrupted by dread of arbitrary and perpetually-impending deprivation, with ruin and either banishment or death at the end of it,—to such a set of men, at a time, too, when reason had but just begun to recover the use of her limbs,—the fact of having maintained an error—so much as one single error—this a slander! a slander, when coming from the mouth of parliament! This Church! what church?—The very church which, after having so lately revolted from her ancient mother the Church of Rome, was, at that very time, and in relation to these very points, in a state of separation from perhaps all her sister churches—from all other Protestant churches—and, at this very time, herself in a state of continual, and not as yet completed, change.
In the very facility of making this change, by the same most reverend person is an argument found, for the putting an end for ever to all pretensions so unsuitable to the limited, and continually, so it were quietly, reducible, authority of an English parliament.
“If it pass by parliament,” says he, “it cannot hereafter but in parliament be altered . . . . whereas, if it is but as a canon from us, by your Majesty’s authority, it may be observed or altered at pleasure.”
In this document we have one out of a multitude, in which, taken together, it may be seen how, of this virgin queen and her little black husband (so she was pleased to style this her favourite archbishop,)† it was the acknowledged purpose, as well as practice, to persevere in a state of continual change, secure of being as continually infallible.
In theory, such a horror of change,—and at the same time, in intention as well as in practice, so constant a state of change?—all this self-contradiction, how is it to be reconciled? The change was to go on, till—under the name of Puritans, all those who, in matters of religion, refused to change their belief, as well as practice, at the word of command, as often as issued,—and whose real crime was the preferring a government by parliament to a government without parliament,—were extirpated: after which, unless for some equally good reason, there was to be no change. And such exactly was the result.
As the laws of the Medes and Persians, so the laws called the Thirty-nine Articles (cut down as they were from a greater number) remained unchanged. But above the one code, as above the other, sat a despot, who, with his sub-despots, kept the rule of action—the inforced and efficient rule of action—viz. the will of those same despots—in a state of continual change.
So much for infallibility, and the horror of innovation:—the horror of innovation, which, being interpreted, is—the holy love of abuse, accompanied with the determination, by the blessing of providence, to give every practicable increase to it.
Habitual Perjury of the University Magistracy—further Proof of its Wilfulness.
While this last sheet is at the press, in comes the Oxford University Calendar for 1813, of I know not what series of numbers the first that ever happened to meet my eye; and in it I read (p. 8) the following passage:—
“For the better government of the University, there is also an Hebdomadal Meeting of the Heads of Houses, who meet every Monday, and at other times when convened by the Vice-Chancellor. This meeting consists of the Vice-Chancellor, Heads of Houses, and Proctors, who are empowered to deliberate upon all matters relating to the preservation of the privileges and liberties of the University, and to inquire into, and consult respecting the due observance of statutes and customs.”
In the seven preceding pages may be seen moreover a more detailed explanation of those arrangements in the constitutional branch of the law, whereby the principle of infallibility on the part of the legislature has been so systematically acted upon, and, in pursuance of it, the property of immutability given to the body of the laws, and with it that of incorrigibility to the defects with which they swarm, and the vices which they generate.
TRUTH versus ASHHURST;
WRITTEN IN DECEMBER 1792.
first published in 1823.
A short time before the date of this paper, a charge, delivered the 19th of November 1792, to a Middlesex Grand Jury, by Sir William Ashhurst, then a Puisne Judge of the King’s Bench, was printed by the Constitutional Association of that time, and circulated with no small industry. In digging for other papers, the present one has just been dug up. The MS. copy, from which this is printed, was taken more than thirty years ago, and has not since been read by me. If in season then, let any one judge whether it be less so now; or whether it is likely to be less so, so long as the form of the government is what it is. The comment is here seen; the text was not found with it; the fidelity of the quotations may however be depended upon.
August 27, 1823.
TRUTH VERSUS ASHHURST.
No man is so low as not to be within the law’s protection.
Truth.—Ninety-nine men out of a hundred are thus low. Every man is, who has not from five-and-twenty pounds, to five-and-twenty times five-and-twenty pounds, to sport with, in order to take his chance for justice. I say chance: remembering how great a chance it is that, although his right be as clear as the sun at noon-day, he loses it by a quibble. Five-and-twenty pounds is less than a common action can be carried through for, at the cheapest: and five times five-and-twenty pounds goes but a little way in what they call a court of equity. Five-and-twenty pounds, at the same time, is more than three times what authors reckon a man’s income at in this country, old and young, male and female, rich and poor, taken together:* and this is the game a man has to play again and again, as often as he is involved in a dispute, or receives an injury.
Whence comes this? From extortion, monopoly, useless formalities, law-gibberish, and law-taxes.
How many causes, out of each of which Mr. Justice Somebody has been getting in fees, while this speech of Mr. Justice Ashhurst’s has been printing, more in amount than many a poor family has to live upon for weeks! For so long as you have five pounds in the world, no fee, no justice. O rare judges! While their tongues are denying the mischief, their hands are making it.
How should the law be otherwise than dear, when those who pocket the money have had the setting of the price?—when places, that help to make it so are, as all the world knows, some given, and some sold by them? A list of places of this sort, which Mr. Justice Ashhurst, or those to the right and left of him, sell directly or indirectly, aboveboard or under the rose, with the profits of each, and how they arise, would be no unedifying account: but where is the Parliament that will call for it?
What comes, then, into their own pockets, heavy as the expense falls upon the poor suitor, is nothing in comparison of what they see shared among their brethren of the trade,—their patrons, and bottle-companions, and relations and dependents. Ten thousand a-year the average gains of a first-rate counsellor, and attorney’s in proportion. Three hundred pounds the least fee that is ever taken for going from one circuit to the next. Three or four such fees earned sometimes in a day—country attorneys, town attorneys, and attorneys with purchased places attached to particular courts—conveyancers, special pleaders, equity-draughtsmen, opening counsel, and silk-gowns-men,—all separate, and not unfrequently all to fee in the same cause. When Mr. Justice was a counsellor, he would never take less than a guinea for doing anything, nor less than half a one for doing nothing. He durst not if he would: among lawyers, moderation would be infamy.
Why is it that, in a court called a court of equity, they keep a man his whole life in hot water, while they are stripping him of his fortune? Take one cause out of a thousand. Ten appointments have I known made for so many distinct days before a sort of judge they call a master, before one of them has been kept. Three is the common course; and as soon as everybody is there, the hour is at an end, and away they go again. Why? Because for every appointment the master has his fee.
Some of these law places are too good to be left to the gift even of judges: of these, which bring in thousands upon thousands a-year, the plunder goes to dukes and earls and viscounts, whose only trouble is to receive† it.
As if law were not yet dear enough—as if there were not men enough trodden down “so low as not to be within its protection,” session after session, the king is made to load the proceedings with taxes, denying justice to all who have not withal to pay them: all this in the teeth of Magna Charta. “We will deny justice”—says King John—“we will sell justice to no man.”—This was the wicked King John. How does the good King George? He denies it to ninety-nine men out of a hundred, and sells it to the hundredth.
The lies and nonsense the law is stuffed with, form so thick a mist, that a plain man, nay, even a man of sense and learning, who is not in the trade, can see neither through nor into it: and though they were to give him leave to plead his own or his friend’s cause (which they won’t do in nine cases out of ten) he would not be able to open his mouth for want of having bestowed the “twenty years lucubrations,”* which they owned were necessary to enable a man to see to the bottom of it, and that, when there was not a twentieth part in it of what there is at present.
When an action, for example, is brought against a man, how do you think they contrive to give him notice to defend himself? Sometimes he is told that he is in jail: sometimes that he is lurking up and down the country, in company with a vagabond of the name of Doe; though all the while he is sitting quietly by his own fireside: and this my Lord Chief Justice sets his hands to. At other times, they write to a man who lives in Cumberland or Cornwall, and tell him that if he does not appear in Westminster Hall on a certain day he forfeits an hundred pounds. When he comes, so far from having anything to say to him, they won’t hear him; for all they want him for, is to grease their fingers.
That’s law: and now you shall see equity. Have you a question to ask the defendant? (for no court of law will so much as let you ask him whether his hand-writing be his own) you must begin by telling him how the matter stands, though your very reason for asking him is your not knowing. How fares it with truth all this while? Commanded or forbidden, according as a man is plaintiff or defendant. If you are a defendant, and tell lies, you are punished for it; if you are plaintiff, and will not tell lies, you lose your cause.† They won’t so much as send a question to be tried by a jury, till they have made you say you have laid a wager about it, though wagers they tell you are illegal. This is a finer sort of law they call equity—a distinction as unheard-of out of England, as it is useless here to every purpose but that of delaying justice, and plundering those who sue for it.
Have you an estate to sell? Sometimes you must acknowledge it to belong to somebody else; sometimes see it taken from you by the judges, who give it to somebody else, with an order upon the crier of the court to give you such another: though, had it been given to your heirs for ever, you might have sold it without all this trouble. Is this specimen to your mind, my countrymen? The law is the same all over. Enemies to truth, because truth is so to them, they do what in them lies, to banish her from the lips and from the hearts of the whole people.
Not an atom of this rubbish will they ever suffer to be cleared away. How can you expect they should? It serves them as a fence to keep out interlopers.
The law of this country only lays such restraints on the actions of individuals as are necessary for the safety and good order of the community at large.
Truth.—I sow corn: partridges eat it, and if I attempt to defend it against the partridges, I am fined or sent to jail:‡ all this, for fear a great man, who is above sowing corn, should be in want of partridges.
The trade I was born to is overstocked: hands are wanting in another. If I offer to work at that other, I may be sent to jail for it. Why? Because I have not been working at it as an apprentice for seven years. What’s the consequence? That, as there is no work for me in my original trade, I must either come upon the parish or starve.
There is no employment for me in my own parish: there is abundance in the next. Yet if I offer to go there, I am driven away. Why? Because I might become unable to work one of these days, and so I must not work while I am able. I am thrown upon one parish now, for fear I should fall upon another, forty or fifty years hence. At this rate, how is work ever to get done? If a man is not poor, he won’t work: and if he is poor, the laws won’t let him. How then is it that so much is done as is done? As pockets are picked—by stealth, and because the law is so wicked that it is only here and there that a man can be found wicked enough to think of executing it.
Pray, Mr. Justice, how is the community you speak of the better for any of these restraints? and where is the necessity of them? and how is safety strengthened or good order benefited by them?
But these are three out of this thousand: not one of them exists in France.
Lawyers are very busy just now in prosecuting men for libels: these prosecutions I suppose are among the wholesome restraints Mr. Justice thinks so necessary for us. What neither Mr. Justice Ashhurst, nor Mr. Justice Anybody-else, has ever done, or ever will do, is to teach us how we are to know what is, from what is not, a libel. One thing they are all agreed in—at least all among them who have had any hand in making this part of the law—that if what they call a libel is all true, and can be proved to be so, instead of being the less, it is the more libellous. The heavier, too, the charge, of course the worse the libel: so that the more wickedly a judge or minister behaves, the surer he is of not hearing of it. This we get by leaving it to judges to make law, and of all things the law of libels. Protection for the thief: punishment for him who looks over the hedge.—Oh, my dear countrymen, I fear this paper is a sad libel, there is so much truth in it.
I know of a young couple who had £28,000 between them, and who could not get married till they had given up £2700 of it: the lawyer’s bill for the writings came to that money. You, Mr. Justice Ashhurst, who know so well what is orderly and what disorderly, tell us which is most disorderly—truth, industry, or marriage?
Happily for us, we are not bound by any laws but such as are ordained by the virtual consent of the whole kingdom.
Truth.—Virtual, Mr. Justice?—what does that mean? real or imaginary? By none, do you mean, but such as are ordained by the real consent of the whole kingdom? The whole kingdom knows the contrary. Is the consent, then, an imaginary one only? A fine thing indeed to boast of! “Happily for you,” said Muley Ishmael once to the people of Morocco, “happily for you, you are bound by no laws but what have your virtual consent: for they are all made by your virtual representative, and I am he.”
Look at this law, my friends, and you will soon see what share the consent of the whole kingdom has in the making of it. Half of it is called statute law, and is made by parliament: and how small a part of the whole kingdom has anything to do with choosing parliament, you all know. The other half is called common law, and is made—how do you think? By Mr. Justice Ashhurst and Co. without king, parliament, or people. A rare piece of work, is not it? You have seen a sample of it. I say, by the judges, and them only; by twelve of them, or by four of them, or by one of them, just as it happens: and you shall presently see how. This same law they vow and swear, one and all, from Coke to Blackstone, is the perfection of reason: the reason of which you are at no great loss to see. Their cant is, that they only declare it, they don’t make it. Not they? Who then? Not Parliament, for then it would be not common law, but statute.
Happily for us, we are not bound by any laws but such as every man has the means of knowing.
In other words:—
Every man has the means of knowing all the laws he is bound by.
Truth.—Scarce any man has the means of knowing a twentieth part of the laws he is bound by. Both sorts of law are kept most happily and carefully from the knowledge of the people: statute law by its shape and bulk; common law by its very essence. It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do—they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it. What way, then, has any man of coming at this dog-law? Only by watching their proceedings: by observing in what cases they have hanged a man, in what cases they have sent him to jail, in what cases they have seized his goods, and so forth. These proceedings they won’t publish themselves, and if anybody else publishes them, it is what they call a contempt of court, and a man may be sent to jail for it.*
If, then, you can be in the four Westminster Hall courts, and the twelve circuit courts, and a hundred other such places at once—if you can hear everything and forget nothing—if the whole kingdom can squeeze itself into a place contrived on purpose that it may hold none but lawyers—if it can live in those places for ever, and has always lived in them,—the “whole kingdom” may have that knowledge which Mr. Justice says it has of the law; and then it will have no further difficulty, than to guess what inference the judge or judges will make from all this knowledge in each case.
Counsellors, who have nothing better to do, watch these cases as well as they can, and set them down in their note-books, to make a trade of them; and so, if you want to know whether a bargain you want to make, for example, will stand good, you must go with a handful of guineas in your hand, and give half of them to an attorney, for him to give t’other half to a counsellor; and, when he has told you all is right, out comes a counsellor of the other side with a case of his own taking which his brother knew nothing of, which shows you were in the wrong box, and so you lose your money. Some of them, to drive a penny, run the risk of being sent to jail, and publish their note-books which they call reports. But this is as it happens, and a judge hears a case out of one of these report-books, or says it is good for nothing, and forbids it to be spoken of, as he pleases.
How should plain men know what is law, when judges cannot tell what it is themselves? More than a hundred years ago, Lord Chief-Justice Hale had the honesty to confess he could not so much as tell what theft was; which, however, did not prevent his hanging men for theft.* There was then no statute law to tell us what is, or what is not, theft; no more is there to this day: and so it is with murder and libel, and a thousand other things; particularly the things that are of the most importance.
“Miserable,” says that great Lord Coke, “miserable is the slavery of that people among whom the law is either unsettled or unknown.” Which, then, do you think is the sort of law, which the whole host of lawyers, from Coke himself down to Blackstone, have been trumpeting in preference? That very sort of bastard law I have been describing to you, which they themselves call the unwritten law, which is no more made than it is written—which has not so much as a shape to appear in—not so much as a word which anybody can say belongs to it—which is everywhere and no where—which come from nobody, and is addressed to nobody—and which, so long as it is what it is, can never, by any possibility, be either known or settled.
How should lawyers be otherwise than fond of this brat of their own begetting? or how should they bear to part with it? It carries in its hand a rule of wax, which they twist about as they please—a hook to lead the people by the nose, and a pair of sheers to fleece them with.
The French have had enough of this dog-law; they are turning it as fast as they can into statute law, that everybody may have a rule to go by: nor do they ever make a law without doing all they can think of to let every creature among them know of it. The French have done many abominable things, but is this one of them?
Have you a mind, my countrymen, to see two faces under one hood? Hear two juries charged—a grand jury, and a petty:—“Gentlemen of the Grand Jury! You and everybody may know what the law is if you please: you are bound by none that you have not the means of knowing.”—“Gentlemen of the Petty Jury! The fact is all you ever have to do with: it is our business to say what the law is; for say what you will, it is impossible that you should know anything about the matter.” This was the language of Mr. Justice and his brethren, till parliament, t’other day, in spite of their teeth, taught them a better lesson.—God bless the parliament!—No dog-law!—Parliament for ever!
Mind this teacher of “peace” and subordination: according to him, if there are any laws which are made otherwise than “with the consent of the whole kingdom,” or, that “every man has not the means of knowing, we are not bound” by them. And this he calls a happiness for us.† God ever keep us from such happiness! Bad as the law is, and badly as it is made, it is the tie that holds society together. Were it ten times as bad, if possible, it would still be better than none: obey it we must, or everything we hold dear would be at end.
Obey it we must: but, to obey it, must we not know it? And shall they whose business it is to make and obey it, be suffered to keep it from us any longer?
Now I will tell you, my dear countrymen, what Mr. Justice knows better things than to tell you; how it is, that what he would make you believe about every man being his own lawyer might be made true. If what there is good of common law were turned into statute: if what is common in both to every class of persons were put into one great book (it need not be a very great one,) and what is particular to this and that class of persons were made into so many little books, so that every man should have what belongs to him apart, without being loaded with what does not belong to him. If the general law-book were read through in churches, and put into boys’ hands, and made into exercises when they are at school; and if every boy, when he came of age, were to produce a copy of it written with his own hand before he were allowed a vote or any other privilege; and if this general law-book contained a complete list of the particular ones, and measures were taken for putting them, and each of them, into each man’s hand, as soon as the occasion happened which gave him a concern in it.
But then the matter of these law-books must be made up into sentences of moderate length, such as men use in common conversation, and such as the laws are written in in France, with no more words than necessary: not like the present statutes, in which I have seen a single sentence take up thirteen such pages as would fill a reasonable volume, and not finished after all: and which are stuffed with repetitions and words that are of no use, that the lawyers who draw them may be the better paid for them. Just like their deeds, such as you may see in any attorney’s office, each filling from one to a hundred skins of parchment, long enough to reach the breadth or the length of Westminster Hall; all which stuff you must carry in your mind at once, if you would make head or tail of it, for it makes altogether but one sentence; so well do they understand the art of poisoning language in order to fleece their clients. All which deeds might be drawn, not only more intelligibly, but surer, in short sentences, and in a twentieth part of the room. A complete set of them might be adapted to all occasions to which there are any adapted of those at present in use, and would have been drawn years ago, had there been any hope of seeing them made use of.
Now, God bless our good King George, preserve and purify the Parliament, keep us from French republicans and levellers, save what is worth saving, mend what wants mending, and deliver us out of the clutches of the harpies of the law!
A Card to John Reeves, Esq. Barrister at law, Chief-Justice of Upper Canada, Chairman of the Society calling itself “The Society for preserving Liberty and Property against Republicans and Levellers,” held at the Crown and Anchor Tavern, in the Strand.
Mr. Reeves says, he knows the English law, and that he knows the spirit of it. He has written the history of it in four volumes: he ought to know it; he ought to know whether what is here said of it is true: he knows this charge of Mr. Justice Ashhurst; he says, it “breathes the spirit of the English law.” He ought to know this charge, and what spirit it breathes: he adopts it, he trumpets it, he circulates it. He says, it is suited to curb the licentious spirit of the times, and so well suited, that it must be read with heartfelt satisfaction by every true Englishman. What is thought suited to produce an effect, does not always produce it: in one instance, at least, this charge, instead of curbing, has had the effect of provoking a spirit, which it would be nothing wonderful if Mr. Reeves were to deem licentious. Whether the spirit thus provoked has less in it of the spirit of a true Englishman, of a friend to subordination, as well as good government—to strict, as well as rational obedience, than the spirit of those who wrote, or those who answer for, and trumpet forth, this charge, the reader may determine. Mr. Reeves will see this comment on it; he will see whether there is any thing in this comment that he can controvert: if he can, and will, he who wrote it is ready to defend it, and if Mr. Reeves makes that a condition, to set his name to the defence.
Mr. Reeves is, amongst other things, a judge, and receives money for administering justice to Canada. Instead of that, he stays at home, makes parties, and circulates papers that deny and protect the abuses of the law. How is this? Is it that justice is useless to Canada, or that Mr. Reeves is useless to justice?
London, December 17, 1792.
NOTE AT THE CONCLUSION.
It is not altogether without compunction, that this conclusion is suffered to stand: so striking is the contrast, which, according to all accounts, the intrepidity and gentleness, manifested by this gentleman in the execution of a justly odious office, has since been seen forming, with the atrocity displayed in the creation and preservation of it. Next to the non-creation, or abolition, of the alien office, would have been the keeping the powers of it in the hands of Mr. Reeves.—August 27, 1823.
THE KING against EDMONDS AND OTHERS:
BRIEF REMARKS, tending to show THE UNTENABILITY OF THIS INDICTMENT.
first published in 1820.
To the Jurymen of Warwickshire (perhaps also to those of Cheshire,) and such other persons whom it may concern.
Queen’s-Square Place, Westminster,
From the public prints, I understand, that antecedently to the late trial of Sir Francis Burdett at Leicester, the jurymen, or some of them, had received an anonymous letter having reference to that trial, and that that letter had been spoken of as a threatening one. This paper is not anonymous, and there are no threats in it.
That which, to the purposes of substantial justice, is of real and undeniable importance is—that those persons, from whom the decision comes, should have had before them whatsoever information may be of a nature to secure the justice and propriety of that decision. Those things, which are of no importance to those same purposes, are—the hands from which the information comes, and the forms which accompany the delivery of it.
If, in the mode of delivery, there were anything of partiality or surprise—if, of alleged facts, communication were made, without their having been subjected to the requisite tests, employed as securities for trustworthiness, thus far the mode of delivery might be censurable, whatsoever credence, if any, were eventually given to the alleged facts.
In the delivery of the following paper, care has been taken that no such partiality or surprise shall have place. Copies will be delivered, not only to all persons who shall have been regarded as likely to be among the jurymen, for the trial of this cause, but to attorneys and counsel on both sides, and even to the judge. As to alleged matter of fact, capable of operating in the way of evidence, no such thing will the paper be found to contain in it: with the exception of what relates to the state of libel law in the United States, and that only in the way of illustration: the rest is all of it matter of mere argument, grounded on the state of English law as applied to no other than notorious facts.
Whatever, if any, may be the guilt of this address, the defendants in this cause are completely innocent of it. Not through any of their hands will it pass to any others. With no one of them has any communication on the subject ever been made by me. By no one of them is it any more expected, than by any other person who will receive it.
BRIEF REMARKS, &c.
A prosecution, more palpably groundless than this upon the very face of it may be seen to be, surely was never instituted.
In no part of it, is any specific and determinate criminal act so much as charged.
This is the main thing to be shown: and, for the purpose of the individual prosecution in question, this would be abundantly sufficient.
But, worded as it is, even if there were ever so many specific and determinate criminal acts, not only alleged but proved, still, without an incontestable violation of the juryman’s oath, no verdict of guilty could be pronounced upon it. Of the proof that will be seen of this proposition, the use looks much further; even the proof would be found perhaps to apply to every indictment that, for centuries past, has ever been preferred: the use will be seen to apply to every one that will be preferred, unless kept clear from the foul spots which will here be brought to view.
I. To begin with those grounds of acquittal which apply more particularly to this individual indictment. Not but that those of them, which are of most extensive importance, would be found to have a not less proper and pointed application to another, which is said to be set down for trial on the same circuit; namely, that of the King against Sir Charles Wolseley, Baronet, and Joseph Harrison set down to be tried at Chester assizes, commencing on the 4th of April in the same year 1820.
1. First, then, as to those grounds of acquittal, which apply, in a particular manner, to this one individual prosecution, as characterized by the bill of indictment on which the above defendants are about to be tried.
In this indictment, I observe no fewer than nine distinct counts. All that is material, I observe to be comprehended in the first of them.
The enormous quantity of surplusage, of which the matter of the others is composed—surplusage, consisting of repetitions and distinctions without differences, may serve to indicate the character of the prosecution; but, unless in the way above alluded to, and which will be hereinafter particularized, adds nothing to the demand for acquittal; and, with this remark, may accordingly be dismissed.
In the indictment, in the King against Wolseley as above, there are but two counts. In the general character of the offence, it differs not from this. With equal propriety might the matter of the seven counts with which this is loaded have been stuffed into that: and, if the second count in it may be set down to the account of surplusage, still the quantity of vexation and expense thereby manufactured in that instance, will not be more than one-eighth of the quantity manufactured in this.
If, throughout the whole field of thought and action, there be any such things as innoxious and irreproachable acts, surely those which are here charged as criminal, will, upon the very face of the charge, be seen to be of that number.
To begin with the act which forms the characteristic article in the cluster of imputed crimes.
It consists in the appointment of an agent, who, under the denomination of Legislatorial Attorney, shall, it is intended, claim—claim by letter to the Speaker—admission into the House of Commons, in the character of Member for the town of Birmingham.
Well—and, in this, what is there that is criminal? On receipt of this letter, the Speaker either gives the admission demanded, or he does not.
If yes, here at any rate is no crime; unless the Speaker is an accomplice in it.
If no, what is the consequence? The legislatorial attorney takes his departure, and there the business ends.
Was it to force his way in, that he was to be sent?—to force himself in, or to be forced in by others? This is not so much as insinuated.
What claim, at the hands of law or government, was ever made, that might not, with as fair a colour of justice, have been charged upon a man as a crime?
As to the thing claimed—
Claim of a seat in the House, as preferred by petition in any the most ordinary mode?
Claim of a pew in a church?
Claim of a seat in a government or other public office?
Claim of an apartment in a private house?
As to the mode of claiming it—
In the case of the seat, motion for quo warranto information to try the right of certain descriptions of electors, or action at law, aiming, more or less directly, at that same object.
In the other cases, action of ejectment, action of trespass, or other action or suit of the most ordinary complexion, as the case may be.
So much as to the end in view, and the last in the list of the means, by which the accomplishment of that end is alleged to have been aimed at.
Equally clear it will be that, upon the face of the charge, there was nothing at all criminal in any of the anterior means employed in relation to that same end.
Here, however, if nothing criminal is charged, something of a criminal complexion seems to be insinuated. A large number is assigned as the number of the persons, who, on the occasion in question, for the purpose in question, were assembled:—A large number; and, from the mere magnitude of the number, the criminality of intention is required to be inferred. That number is twenty thousand or more.
Twenty thousand? Well, and if twice twenty thousand, what then? Not as yet was that law in existence under which the number of persons standing in the presence of each other, without any evil act, or perceptible evil intention, has been made to constitute an offence.
Twenty thousand? Well—and suppose it had been two hundred thousand. Of the multitudinousness of it, what would have been the effect? No mischief, in any assignable shape, having ensued, the greater the multitude, the clearer and stronger the proof of the innoxiousness of everything that was intended to be done? Why? Because, the greater the multitude prepared to co-operate in a scheme of mischief, the greater the facility for the accomplishment of it. These were the means: no power of resistance anywhere. These were the irresistible means of mischief, and no mischief done or attempted: towards any such attempt, not any the least preparation made. Instead of proof of mischievous intention, here surely is as complete proof of the absence of all mischievous intention as it is possible to conceive.
Well, but something more is charged as having been intended, and something more is charged as having actually been done.
The other things charged as intended—as being the things, for the doing of which the meeting was brought about, and took place, are—the procuring the adoption of the assembly for certain written discourses, alleged copies of which are accordingly set forth.
The things charged as done are—the giving the desired adoption to those same written discourses, and the delivery of certain spoken speeches, having, for their object, the obtaining of that adoption.
As to the written or printed discourses,—of the accuracy of the alleged copies, the defendants surely, supposing them even to have just ground, could scarcely, as it should seem, find any motive for starting a doubt. In any one of them, if there be anything criminal, then of every newspaper that has been published for the last half century (to go no further,) the publication has been a crime. On this supposition, unless it be in the way of undiscriminating praise, nothing that in that time has been published on the subject of the constitution, or any part of it, can have been published without a crime.
Remain, the speeches alleged to have been spoken,—spoken, without having, on the part of the speakers, been committed to writing: and of which, accordingly, no alleged copies are set forth.
These, of course—for what could be easier than to say so?—were “seditious, malicious, inflammatory,”—in a word, everything that was bad.
Well: this is what is said of them. But the alleged speeches themselves, of which all this is said, what were they? Oh, this is what the defendants were not to be permitted to know. They might have questioned the evidence: they might have opposed it by counter evidence: they might have questioned the inferences: they might have opposed them by arguments. Accordingly, of these the tenor is not so much as professed to be given, nothing but what is called the “substance.”
As to this alleged substance, it so happens that I have not as yet obtained information what it was. But what matters it?
For words alleged to have been spoken to the prejudice of an individual, no action can be maintained, unless the very words are set forth: no action, of which the worst result to the defendant is mere pecuniary loss. In the present case, to pecuniary loss to any amount may be added imprisonment to any amount.
As to these discourses, written and spoken together, suppose, for argument sake, there had been anything criminal in them, if justice, as well as vengeance had been the object, they would (would they not?) have been made the only matter of the indictment. To add to them those other acts and designs, which are so plainly clear of all criminality, what better object can it have had than that of causing lawful actions to be confounded with unlawful ones, confounded in the minds of the jury, confounded in the sentence of the judge?
Well then—in no one of all the acts here charged—in no one of them, supposing them all proved—is anything either criminal, or so much as in any way improper, to be found. On what, then, can have rested any hopes that may have been entertained of seeing the accusation followed by conviction? On nothing but certain other imputations of supposed intention: imputations, in regard to which let it be judged whether they can have had their origin in any other source than the passions by which the prosecution was produced.
Now then, as to these ulterior alleged original intentions, what are they?
Intentions, yea, and conspiracy, to produce certain undesirable effects, of a general description, at indefinitely distant periods. As to the conspiracy, this will be considered by and by.
As to the undesirable effects, they are—
1. Discontent and disaffection in the minds of the liege subjects, and so forth.
Hatred and contempt of the government and constitution of this realm as by law established.
As to the contempt, let it suffice to observe, that, from persons in the one situation, towards persons in the other, the existence of any such sentiment not being possible in any instance, could not be possible in that instance: hatred in any quantity: yes: but towards any man, on whose will he sees his fate dependent, no man, who was in his senses, ever entertained any such sentiment as contempt. Contempt on account of this or that particular feature in the other’s character, yes: but this is nothing to the purpose. By no such particular contempt, so long as fear remains, can contempt, to any practical purpose, be constituted.
Ferdinand the embroiderer was contemned. Yes: but Ferdinand the torturer, was he the less feared?
Remain, discontent, disaffection, and hatred. But these, what are they but shades of one and the same sentiment (call it what you will) emotion, passion, affection, or state of mind?
On a charge of this sort, suppose a verdict of guilty to be pronounced, and an uniform series of such verdicts, for such a cause, assured,—consider what would be the consequence. What is called the liberty of the press would thenceforward be not merely useless, but much worse than useless. Supposing misrule to have place, newspapers, instead of being a check upon it, would be exclusively an instrument of it, and a support to it. Liberty of exposing it? No: liberty of justifying it and praising it? Oh yes: full liberty, and gain too, into the bargain. Such, if the system here pursued be constantly acted upon—such, it will be seen, will be the liberty of the press.
At this time, behold already the system of libel law brought out in all its perfection. First came this and the other indictments: then, as if in acknowledgment of their insufficiency and untenability, came the statutes in which the same principle is adopted, is applied to practice, and is made to receive the sanction of the legislature: the legislature—including that House, by which its own acknowledged corruptions are thus defended against all possibility of remedy.
The principle is—that, in so far as the conduct of the men in power, whoever they are, is in question, or the state into which, by their conduct, the rule of action, in all its several parts, has been brought,—no discussion shall have place, either in spoken speech, or in writing—neither evidence, nor argument, shall be employed—on any other than one side, and that side theirs: in a word, it may be styled the principle of despotism, as applied to political discourse.
Talk of liberty indeed! So far as depends upon the definition of a libel, whether made under that sort of law which is made by parliament, or that sort of law, which, on pretence of being declared, is made by judges,—the liberty of praise always excepted, see and judge whether, in speaking of the conduct of government, or of “the members of government,” there be any more liberty in England (not to speak of Scotland) than in Morocco.
Look first to the sort of law the judges make. Look to the great manufactory of the political branch of penal law—the King’s Bench.
To go no further back than the middle of the late reign,—for this will be quite sufficient—
Look to the year 1792. See what Lord Kenyon says:* “I think this paper” (in the Morning Chronicle) “was published with a wicked, malicious intent, to vilify the government, and to make the people discontented with the constitution under which they live. That is the matter charged in the information: that it was done with a view to vilify the constitution, the laws, and the government of this country, and to infuse into the minds of his Majesty’s subjects a belief that they were oppressed; and, on this ground, I consider it as a gross and seditious libel.”
Look onwards now to 1804. See what Lord Ellenborough says:† “If in so doing, (‘exhibiting the folly or imbecility of the members of the government,’) individual feelings are violated, there the line of interdiction begins, and the offence becomes the subject of penal visitation.”—“If individual feelings are violated,”—i. e. in plain English, if, on the part of any one of the persons so situated, any uneasiness is in this way produced,—as often as any written discourse, productive of this effect, is published, every person instrumental in the publication is to be punished for it. Now, if there be any sort of proof by which, more than by any other, a man’s having experienced uneasiness, from the cause in question, is effectually demonstrated and put out of doubt, it is surely the fact of his having imposed upon himself the expense, and trouble, and odium, of prosecuting for it. Admit but this, the consequence is as satisfactory as it is simple. It is—that, in every case of libel “on the members of the government,” the very act of prosecution is conclusive evidence of the guiltiness of the party prosecuted, and a verdict of guilty ought to follow, of course.
Look back for a moment at Lord Kenyon, Speak but a word in any such “view as that of infusing into the minds of his Majesty’s subjects any such belief as that they are oppressed,”—the writing in which you say this is “a gross libel,” and your punishment,—or, as the piety of Lord Ellenborough phrases it, your “visitation,” is, of course, proportionable. Now suppose, for argument sake, that, in any one instance, it has happened to these fortunate subjects, or any one of them, to have actually been oppressed: is he to presume to take any such liberty as that of saying so? No: not if Lord Kenyon, or Lord Ellenborough, or (one may almost venture to say) Lord Anybody else in that place, with their penal visitations, can stop his mouth.
A constitution—a government—a set of laws, under which, if all men were oppressed to the uttermost, no man could, without being punishable, dare to say that any men are oppressed—punishable in a way which, to nine-tenths, or nineteen-twentieths, would be utter ruin,—such, in this country, are the constitution, the government, the whole fabric of the laws, according to the view so repeatedly and uniformly taken and given of them in the King’s Bench.
The more closely the nature and consequences of this doctrine are looked into, the more clear will be our conception of the influence it can not but have on the character of the constitution, on the goodness of the government, on the condition of the people. The more grinding the oppression exercised, and the more flagitious the conduct of those who exercise it, the more flagitious must, according to this doctrine, be the crime, and the more excruciating the intended punishment, of those who presume to bring to view all or any of these things as they are: the more corrupt and tyrannical the state of the government—of the law—constitutional branch and other branches taken together—the more flagitious and unpardonable must be the crime of representing it to be what it is.
How should this be otherwise? In so far as he has any regard for the public interest, his own share in it included—the more highly detrimental to that interest any measure of government, any arrangement of law, any misconduct on the part of the “members of the government,” or any one of these, is,—the more intense the displeasure which, by the view of the imperfection in question, will have been kindled in the mind of that man. But, the more highly detrimental it is in his own conception, the more pernicious, in so far as depends upon him and his report of it, will it be, in the conception of all such other persons, to whom the conception he has formed in relation to it shall have come to be known. To use the words of the indictment, the more intense “the discontent, the disaffection, the hatred,” produced by the oppression, in the breast of any man who speaks of it, the more anxious and industrious will he naturally be to communicate the like affections to others, and the greater the number of those to whom, in so far as he succeeds, he will have communicated it. But the more intense and extensive the displeasure thus seen to be excited, as towards them, the greater, of course, the injury done to the beings in question—to the beings of both sorts spoken of: to the ideal beings above mentioned; and to the real beings, those “members of government,” whose “individual feelings,” be their conduct what it may, are thus to be kept from “violation” at any price: as to the constitution, with its et ceteras, the more tyrannical and corrupt it is, the more justly and severely “visitable” will be the crime of him who has dared to speak of it as being what it is: as to the oppressor whom it has bred, and who in his turn upholds it, the more flagitious the oppression he exercises has been, the more flagitious and severely visitable is the oppressed individual, who has dared to speak of him as being what he is.
Not to speak of any other indictment—to profess to give effect to the principles acted upon by this indictment, and by the statutes by which it has been followed—to profess this, and, at the same time, to profess to allow to go unpunished any writer whatsoever, who presumes, in any way, to question the propriety either of any part of the rule of action—real or imaginary—statute law or common law—or of the conduct of any one of the “members of the government,” is surely a contradiction in terms. Say what you will, if it be to any such effect, what you say either has no tendency at all, or it has that same forbidden and punishable tendency: in saying it, either you have no view at all, or you have that same forbidden and punishable view.
Discontent, disaffection, hatred—the objects—the affections indicated by these words,—who does not see, that these are but so many degrees in the scale of disapprobation or displeasure? But, in the words disapprobation and displeasure, we have the names of an affection or emotion, the degrees of which rise, one above another, in a scale, the lowest point of which is at apathy, and the highest at madness; and of no one of these degrees is it possible for words to convey any such description as can enable a man to distinguish the place it occupies on the scale. On this occasion, or on that other occasion—in a word, on any occasion—what is the degree a man may be allowed to feel? what is the degree a man may be allowed to endeavour to communicate? By the same object by which one degree of disapprobation is produced in the breast of one man, another degree will be produced in the breast of another: in the same breast it will at one moment be at one degree, at another moment at another.
Will men allow of no written expression of disapprobation or displeasure whatsoever? then, without self-contradiction in terms, they cannot allow of complaint. Not to speak of remonstrances, away go all petitions for redress. Here would be an improvement! How commodiously, by this means, would the business of government be simplified! Yes; could it but be accomplished: but, as yet, that may be too much to look for. Will they then allow of any such expression? Let them then make known what the degrees are which they will allow, and what those are which they will not allow. Let them make known what, on each occasion, are the degrees which they will allow to be felt, what the degrees which they will allow to be expressed, what the degrees which they will allow to be endeavoured to be “excited” and “stirred up.” Of these several degrees, let them give such descriptions as shall render it possible, at least, for a man to know what degree he may, on each occasion, give expression to, without being “visited,” and what he may not give expression to, without being “visited.” Let them, in a word, construct, and, along with the statutes at large, expose to sale, an appropriate pathological thermometer: an instrument, by which shall be indicated the degrees of mental caloric allowed to have place, as being favourable to the health of the body politic, as, in an ordinary thermometer, in a line with the word temperate, the degree of physical caloric regarded as most favourable to the health of the body natural is indicated. This done, then, and not before, will be the time for “visiting,” with justice and with effect, discourses tending to the production of the undesirable sentiments, affections, and states of things indicated by the words discontent, disaffection, hatred, and whatsoever other similar ones may be in store. This not done, they not only leave exposed to undue punishment, the restless men who stand exposed to the temptation of thus offending, but, what is so much worse, they leave their own high pleasure continually unfulfilled, and their own “individual” and precious “feelings” as continually violated.
Oh, but (says somebody) when Lord Kenyon spoke of the published intent of “vilifying the government,” and so forth, and thereby of producing “discontent,” as a thing not to be endured, what his learned lordship meant was—not the presenting facts to view—facts, whatever were their tendency—but comments—comments pouring down, in scurrilous and offensive terms, reproach upon the persons, ideal or real, and thus “violating thefeelings” of the real ones. So it was with Lord Kenyon: and therefore so it was with Lord Ellenborough; for these two were one.
Alas, sir! comments were indeed in their lordships’ view, but facts were not the less so: facts were what they had in view the suppression of, and that with still greater anxiety than any comments, how reproachful soever, that could be made on any such facts. On prosecution for a libel, whether by indictment or information, if the libel be a political one, if the persons struck at are “members of the government,” is not the truth of the imputation, according to all manufacturers of King’s-Bench law, no justification, nor so much as extenuation?—according to some of them, even an aggravation of the crime?
Now then, if we come to “individual feelings,” and the things that violate them, by what is it that they are likely to be most sensibly violated? Is it by mere words of empty reproach—words, by which nothing else is proved, but the anger which the utterer feels, or would be thought to feel, as towards the object against which they are uttered; and from which any bad effect that is produced upon reputation is no less apt to attach upon the reputation of the party reviling, than upon that of the party reviled? Is it by such empty sounds, or is it by words by which determinate facts are brought to light—misdeeds by which, in proportion to their enormity, the reputation of the misdoer is soiled and depressed?
Which would give you most uneasiness (answer me, whoever you are,) to be called a thief, or to be proved to be one?
Now then, if I were a juror, under any such indictment, would I, for anything that a man had been proved to have said, either in speech or in writing, against any of those exalted personages, ideal or real, on any such ground as that of an alleged tendency to produce discontent, disaffection, or hatred,—would I join in a verdict of guilty? Not I indeed.
With pride—with selfish terror—with malignity—on benches or in Houses—suppose the “members of the government”—suppose them mad—would it be for me to infect myself with their madness, and concur in giving effect to it? Ah no: rather would I do what depended upon me towards staying the plague, instead of spreading it. Hatred, is it not a contagious passion?—from the harbourer and proclaimer, is it not apt to pass to the object of the hate?
Nay, but (says somebody) you have been too hasty: when you saw what Lord Chief Justice Lord Kenyon said, you should have seen what Mr. Attorney-General said:* “The right of every man to represent what he may conceive to be an abuse or grievance in the government of the country can never be questioned.”
Alas, sir! this may satisfy you, whoever you are, but it cannot satisfy me.
In the first place, it is only an attorney-general that says this. But an attorney-general may say what he pleases, and nothing comes of it. He may say what he pleases, nobody is bound by it; not even he himself. In this or any other way, he may be as liberal as he pleases, and all without expense.
But, in bringing to view this essence of liberality, one drop there is which you have omitted. This drop is a parenthesis: and, by this parenthesis, the effect of the including clause is reduced to—let anybody say what. “If his intention in so doing be honest,” says the qualifying clause—“if his intention in so doing be honest, and the statement made upon fair and open grounds.”
Thus far Mr. Attorney-General. Unfortunately, his (the defendant’s) intention never is honest: the special pleader or other draughtsman takes care it never shall be; he makes it “seditious, malicious,” and everything that is bad; and this is matter of form: these are words of course; and, though they were never true, would of course be taken to be true.
Then as to the fair and open grounds? What are the grounds open to him? Not any matters of fact. To produce anything of this sort, would be to attempt to prove the truth of the libel: which (as hath been seen) is never to be endured.
Oh, but what is this you would have us do? Would you have us destroy the government? Would you leave the government of the country without protection? Its reputation, upon which its power is so perfectly dependent,—would you leave that most valuable of its treasures without protection? Would you leave it in the power of every miscreant to destroy it? In such a state of helplessness, is it in the nature of things that government should anywhere subsist?
Subsist? Oh yes, everywhere; and be all the better for it. Look to the United States. There you see government: do you not? Well: there you see government, and no libel law is there: the existence of the supposed deficiency you shall see: and where libel law is the article, you will see how much better deficiency is than supply.
In answer to a letter of inquiry written by me not long since—the exact time is not material—here follows all that relates to this subject, of a letter written by a person whose competence to give the most authentic, and in every respect trustworthy, information on this subject, is not to be exceeded:—
“Prior to what was commonly called the sedition act, there never was any such thing known under the federal government of the United States (in some of the individual states they have sometimes, I believe, taken place) as a criminal prosecution for a political libel. The sedition act was passed by congress, in July 1798. It expired by its own limitation in March 1801. There were a few prosecutions under it, whilst it was in force. It was, as you have intimated, an unpopular law. The party that passed it went out of power, by a vote of the nation, in March 1801. There has been no prosecution for a political libel, under the authority of the government of the United States, since that period. No law known to the United States would authorize such a prosecution. During the last war, the measures of the government were assailed, by the party in opposition, with the most unbounded and furious licence. No prosecution for libel ever followed. The government trusted to public opinion, and to the spontaneous counteracting publications, from among the people themselves, for the refutation of libels. The general opinion was, that the public arm grew stronger, in the end, by this course.
“I send you a volume of the laws of the United States, containing the sedition act in question. It will be found at page 97, ch. 91. You will observe a departure from the common law, in that it allowed a defendant to avail himself of the truth of the charges contained in the publication.”
Thus much for my authority: whose name I cannot at this instant take upon me to make public.
This same sedition act, pity it is that the necessary limits of the present paper forbid the insertion of it: another occasion may be more favourable. It will then be seen how complete the proof it gives of the needlessness, and thence of the uncompensated mischievousness, not only of our libel law,—imported as it was from the Star-chamber, by a single judge of King James or King Charles’s making, the Lord Coke,—but of every one of the six new laws made by his Most Excellent Majesty that now is, with the advice of his ever faithful Lords and Commons: made, for the defence of everything that is rich and powerful, supported by the whole body of the constituted authorities, and an army of 100,000 men, against the attacks of perhaps as many unarmed men, supported by their wives and children.
Think not that—because if the reputation of an individual were left without protection at the hands of the judges, it would be a defect in the laws,—it would be a like defect, if the reputation of the government—the ideal being, or that of the members of government, the real beings—were left in the same unprotected state.
The individual would, in such a case, be exposed to injustice:—the government, the member of government, in this same case, is not exposed to any injustice. He is not, even under the government of the United States, with its frugal means: much less would he be under the government of this country, with its unbounded means.
Against attacks on reputation, of the whole number of individuals it is but a small proportion that have any tolerably adequate means of defending themselves: money, in no small quantity, is requisite for such defence. In this shape, as well as every other, the means which government has, are absolutely without limit.
An individual—be it ever so completely unjust, it is a chance whether the attack upon his reputation finds him adequately prepared for his defence. Government—the members of government, as such—are, or might be, and ought to be, in a state of constant preparation for defence against every attack to which they stand exposed.
Whatsoever inconvenience, in consequence of any attack made upon his reputation, it happens to an individual to sustain, he remains without compensation for, unless it be at the expense of the defamer. The member of government—no inconvenience, from any such cause, can he sustain, that he is not amply compensated for, and beforehand: he is paid for it, in most instances, in money as well as in power: he is paid for it in all instances in power.
To the individual it may happen, to have no other individual for support in any shape: the member of the government has every other for his support in every shape.
We come now to the word conspire. This word, it will be seen, has been thrown in as a make-weight. Separately or jointly, its two accompaniments—combine and confederate—would not have sufficed. To combine and to confederate is no more than, in the language of the chancery branch of lawyer’s trash, each defendant does with every other, if the draughtsman, by whom it is penned, by authority of the Lord Chancellor, who calls this equity, is to be believed. As to that which they (the present defendants) combined and confederated to do—whether any the slightest shade of guiltiness, legal or moral, be to be found in it, has already been seen. But some other word was to be introduced at any rate: some word, by which, in this case as in any other, a colour of guilt might be laid on a ground of innocence. The word conspire was looked out and added for the purpose. Yet, even with the aid of this word, how is the case of the prosecution mended? In the language of poetry (to whom can it be unknown?) all manner of delightful persons, as well as things, are continually conspiring to produce the most delightful effects: in the language of poetry? yes, and of ornamental, nay even of ordinary, prose. Thus far, then, no great progress is made by the addition. But to conspire (the verb) has, for one of its kindred (its conjugates, as the logician’s phrase is) conspiracy, the substantive: conspiracy, yes: and conspirator to boot. But the sort of combinations, to which the word conspiracy has been wont to be applied, have very commonly been mischievous ones—extensively as well as intensely mischievous ones: conspirators (the actors in these combinations) mischievous, and therefore so far, not only actually, but justly, odious men.
As to the word conspiracy, into the body of the indictment itself, the learning of the learned scribe has not suggested, or at any rate has not produced, the insertion of it. But, in a criminal calendar—at any rate in a court newspaper, or in a placard—it was capable of being made—in fact, it has been made—to serve. At this moment, “Trial of Hunt and others for a conspiracy,” is to be seen in placards. And the men of Cato Street—their name, is it not everywhere the Conspirators?
Now, of all this abuse of words, what was the object? The same as in the instance of those other words of reproach, which have already been brought to view:—the words “malicious, seditious, and ill-disposed;” by exciting and inflaming the passions—the angry passions—in the breasts of jurymen, to lead astray their judgment, and cause them to say, and fancy they see, guiltiness, where nothing is really to be seen but the purest innocence.
In this endeavour, such as it was, no wonder if it was among the expectations of the lawyers for the prosecution, to find themselves seconded and supported by judges.
In the manufacturing of that spurious article, which they have, to so unbounded an extent, succeeded in palming upon the people under the name of law—even common law—among the instruments, which the Westminster-Hall judges, with the law-book-makers, their confederates, have, for so many ages, been employing—have been an assortment of words and phrases, to which, after taking them out of the body of the language, native or foreign, they have, on each occasion, though on every occasion without explanation or warning, attached whatsoever meaning presented itself as being best suited to the professional and official purpose. Great would be the instruction—not small one day perhaps the use—would any intelligent and benevolent hand bring together and lay before the public, with apt comments, the complete assortment of them. Meantime, in addition to the present word conspiracy, take for a sample the word libel; to which may be added contra bonos mores, blasphemy and malice. The more extensive and indeterminate the import attached to the word in the state in which they found it, the better it was found to be for that same purpose: for, the more indeterminate its import, the less the risk they ran of seeing, on the part of juries, discernment and firmness sufficient to detect and frustrate any such misapplication as the purpose required should be made of it.
Now, in regard to the word conspiracy.
From a slight sketch of the history of the law on this subject, no small instruction may be derived. Along with the perfect groundlessness of the accusation, in this, not to speak of so many other indictments preferred in pursuance of the same system, may be seen, as a corollary, a specimen of the manner in which the business of legislation has, at all times, and to so vast an extent, been carried on, and the formalities of parliamentary procedure thus far saved, by a few nominees of the crown, acting in the character of judges.
In its original physical sense, to conspire (a word of Latin origin) meant to breathe together. In the original psychological sense, it meant to co-operate, more particularly in the way of discourse, towards any purpose whatsoever, good, bad, or indifferent: these were its original senses.
But from, or along with, the verb to conspire, came the substantive, conspiracy: and, from the earliest times, though the sense of the verb still continues to be unrestricted by any limitation on either side, the substantive, for anything that appears, has never been employed in any other than that narrower sense which is termed a bad sense: in this bad sense it means co-operating, more particularly in the way of discourse, to a supposed mischievous, or on any other account forbidden, or disapproved of, purpose.
For the designation of a particular act, or mode of conduct, for the purpose of its being dealt with as a crime—the earliest use made of this word may be seen plainly enough in the law books. The species of act is that which may be termed juridical vexation: the applying to the purpose of injustice, those powers, which, in profession at least, are never given with any other intent than that they should be employed in the furtherance of justice.
Now mind the misapplication, the confusion, and the unbounded power exercised under favour of it. In regard to any act that has been dealt with as criminal, the species of the act is one thing; the number of the persons co-operating in the performance of it, is another and widely different thing. Manifestly, not to any one species of act exclusively, but to every species of act whatsoever, is the circumstance of number, in this way, applicable. From this circumstance, to deduce a denomination applied exclusively to the designation of one particular sort of act, accompanied with an intimation of its having been, or being about to be, dealt with as an offence, was surely a course as ill adapted as can well be conceived, to the ends of language. What can be more inconsistent with clear conception—what can be more amply productive of confusion—than the manufacturing a name for a particular species of offence, out of a circumstance equally apt to have place in every species of offence?
Be this as it may, the species of offence which has been mentioned, namely, juridical vexation, is the species of offence to the designation of which the word conspiracy was applied in the first instance. This was as early as the reign of Edward the First.
Of this mode of working vexation and injury—of this, or something scarcely distinguishable from it—cognizance, in the way of penal prohibition, may be seen taken by statute law, as long ago as the reign of that same monarch: year of his reign 33; year of our Lord 1304.* Thus it is, that of the vast fabric which, under the name of conspiracy, may be seen reared by judges, the first stone, though no more than the first stone, was laid by the legislature.
Of a prosecution for this cause at common law, an example occurs as early as the reign of Henry VII.†
From that time, down to the early part of the present reign, thinly scattered in a space of nearer to five than four centuries, reckoning from the time of the above statute, are to be seen, at the rate of not so many as one to a century, instances of the application made of this word to the creation of new crimes; of crimes having nothing in common, either with the one first created, or with each other, except this same accidental and so completely uncharacteristic circumstance.
It was by Lord Mansfield that the example was set of giving to this word such an extension as should render it applicable to the purpose of affording a ground for the inflicting of punishment, on the score of any act, the contemplation of which should have produced, in the mind of the judge, a desire to cause punishment to fall upon the heads of the persons concerned in it.
When exercised by a man’s sole authority, without any other man either to say nay to the whole, or to narrow the extent of it by limitations and exceptions,—legislation is at once a quick and pleasant work. First to move to bring in a bill; then, if leave be given, to bring it in, and then defend it, not only against rejection, but against amendment,—defend it in person, in one House, and by proxy, if procurable, in another,—is a tedious process. Of the inconvenience of the latter mode, no judge, especially if to a seat on Bench, he adds a seat in House, fails of being sufficiently sensible; no man was ever more acutely and efficiently sensible than Lord Mansfield. Occasion happening to present itself, he passed in this common-law form, a dictum having the force and virtue of an act of parliament, creating an entire new species of conspiracy, consisting in the act of selling unwholesome provisions: meaning, doubtless, as and for wholesome ones. But, to the only sort of wrong-doing act, the punishment of which had, under the denomination of conspiracy, had the warrant of the legislature, it bore no more resemblance (as anybody may see) than the most dissimilar act that could be named.
Following the example of his illustrious predecessor, it was but as it were the other day, that Lord Ellenborough, in the course of his reign, passed another act of common law, erecting the offence of endeavouring to raise or lower the price of government annuities by means of false reports, into another species of conspiracy.
What is plainly useful and perfectly proper, is—that the doing injury to the health of individuals, known or unknown, by means of unwholesome provisions, if sold as wholesome, should be made punishable. What is no less so, is—that the obtaining, or seeking to obtain, a profit, by causing the price current of property in the shape of government annuities, or in any other shape, to rise or fall, by means of false reports spread for the purpose, should be made punishable. It is one means of obtaining, or seeking to obtain, money by false pretences: a species of fraud, the proper name of which is not unknown, having long been employed in statute law.
But, so long as the people have the effectual filling of a seat in parliament, though it were but a single seat, it is very far from useful or proper, that by a nominally independent, but in reality ever-aspiring and ever-dependent creature of the crown, who, by his obsequiousness to high-seated will, on a small scale at the bar, has been exalted and engaged to practise obsequiousness to that same will on a vast scale on a bench—that by any man so situated, the conjunct power of King, Lords, and Commons, should be exercised, is very far from being either useful or proper, even though it were to the best of all imaginable purposes; for, it is by applying it thus to good purposes, that, in those situations, men acquire that power, which, as surely it has been made their interest, it has been their practice, to apply to the very worst of purposes.
Thus plainly untenable, on every ground of law as well as reason, is the attempt made, in the present instance, to fix upon the defendants the charge of conspiracy, in the character of a legally punishable crime. Not equally so would be an indictment, if preferred against the several persons concerned in the institution and prosecution of the present indictment.
Setting aside the very few innovations above mentioned, and those so many palpable aberrations, there would remain,—for the original and sole common-law offence, acknowledged as such, in a series of cases covering a space of several centuries,—the offence of juridical vexation; and that common-law offence having, as hath been seen, its warrant in statute law—there would remain, I say, this offence, coupled with the circumstance, that persons more than one have been concerned in the infliction of it. In addition to the vexation, or though it were but the intention to produce it, to invest the offence in the most unexceptionable manner, with the appellation of a conspiracy, requires nothing more than this—namely, that the prosecution was groundless; or at the utmost nothing more than, on the part of the offenders, the consciousness of its being groundless: for, upon the face of the book, nothing more than the mere groundlessness appears to have been uniformly required; not even the consciousness.
In the present instance, who, on this supposition, would be the conspirators? To know exactly what the course is, which, in this respect, the business has taken, has not fallen within my competence. But, for the title conferred by this word, the following persons present themselves as candidates:—1. The learned counsel employed as counsel for the crown on the trial; 2. The solicitor of the treasury, or any other person employed as attorney in the prosecution; 3. The special pleader, or other learned penman by whom the indictment was drawn up; 4. His Majesty’s attorney-general, and his Majesty’s solicitor-general, if it is by or with the advice of those great functionaries that the prosecution has been instituted and carried on; 5. The lords commissioners of his Majesty’s treasury, if it was by their order that the prosecution was instituted; 6. The members of that select body of his Majesty’s privy council, which is distinguished by the name of the cabinet council, if it was with them that the business originated, or if it be through them that it has passed.
But this indictment is but one out of a number of indictments, all of them results of so many sets of acts, performed in execution of the same general design: treating, on the footing of a punishable offence, every endeavour which, by persons acting elsewhere than in parliament, shall have been made, towards the obtaining of any change in the representation of the people in parliament: construing every such endeavour into a crime, and thus, in case of any imperfection in the mode of that representation, rendering that imperfection for ever remediless: in case of any system of oppression or depredation, or other national grievance, growing as a necessary effect out of such imperfections, rendering all redress of any such grievance for ever hopeless.
Oh, but our oaths! our oaths! Perish liberty! perish the country! We must not, we will not, violate our oaths!
Well then, my fellow-countrymen, if such be your determination, on no account to violate your oaths, I desire nothing better. This leads me to the circumstances, which, if in the present charge there were matter ever so plainly criminal—and ever so much of it, and all of it proved—would, in this case (not to speak of other cases) suffice to render it impossible for a jury, consistently with their oaths, to concur in a verdict of guilty.
Of whatsoever there will be to say in proof of this position, the ground is constituted by this uncontrovertible assumption:—namely, that it is not consistent with their oaths, for a jury to declare their belief of anything which, in their eyes, has not been sufficiently proved by the evidence that has been before them: still less their belief in the truth of any position, of the falsity of which they have no doubt: and therefore, if so it be, that, whenever, to constitute an offence as described in the indictment, the concurrence of every one of a number of circumstances therein stated is required—then, and in that case, if, of the whole number of these circumstances, there be any one which either had manifestly no existence, or (what comes to the same thing) has not been proved to have been in existence, no defendant can, consistently with the juryman’s oath, be pronounced guilty, with relation to that same offence. The circumstance thus left unproved—be it ever so plainly irrelevant, or even ever so ridiculous, its being so makes not, in this respect, any difference. The accusation on which the jury have to pronounce, is that which it is, and not anything which it might have been, and is not.
On another occasion I may perhaps give more latitude as well as more particularity to this discussion. On the present occasion, what is said on this subject, must of necessity be as compressed as possible.
On the present occasion—to prove, on the ground now stated, the impossibility of a verdict of guilty, without a violation of the juryman’s oath—all that remains is—to point out, in each of the nine counts in question,—among the circumstances, of all which, in the description of the alleged crime the existence is alleged,—one or more, of which it will be plain, either that they had no existence, or that they have not been proved.
Among all these counts, should there be any one that shall be found altogether clear of these, as well as all other, unproved allegations,—then, if the verdict be taken upon that one count, the other eight, I am ready to acknowledge, may every one of them be stuffed with the like excrementitious matter in any quantity, yet from that quantity no valid objection to a verdict of guilty can be made.
The copy, or rather extract, which I have succeeded in obtaining, does not furnish me with the means of speaking, with that entire assurance which is afforded by actual inspection of the whole tenor, in relation to any of the nine besides the first. But, in several of these instances, the unbroken thread of the legal custom in this respect, affords an assurance altogether sufficient for the purpose.
At any rate, when a list of these unproved allegations has been seen, as it here will be seen, as contained in the first count, no person, whom it may concern, can find any difficulty in applying the same list to the several other counts.
Here then follows, as taken from the first count, a list, or at any rate what will be found an abundantly sufficient sample, of these unproved allegations, any one of which will have the effect of rendering a verdict of guilty a violation of oath on the part of every juryman who has been concerned in it:—
1. “Being malicious, seditious, and ill-disposed persons.” Whether to the persons by whom,—without either proof, or design to offer proof,—dispositions, and if dispositions, habits, and if habits, acts, thus designated, are imputed to others,—whether to these persons the imputations would not apply, with more justice than to those to whom they are thus applied, let any honest man—let any sincere lover of truth, justice, sincerity—declare.
2. “Maliciously devising, and intending to raise and excite discontent,” and so forth.
3. “With force and arms.” . . . .
4. “In contempt of our said Lord, the King.” . . . .
5. “Against the peace of our said Lord the King” . . . .
Of these allegations, the two last will, it is expected, be found to have been inserted in each one of the eight other counts: if so, then are they, each of them, sufficiently infected with unproved matter, in such sort as to give to the verdict of guilty, if pronounced in relation to that one of them, the illegal and immoral quality so often mentioned.
This eventual violation of oath being supposed, let those say whom it may concern—let any juryman say to himself, let the learned judge say to them all for himself—whether, should it, even from the very commencement of the institution of jury-trial, be seen to have been the practice of jurymen thus to defile themselves—should it have been the unvaried practice of the judge thus to connive at their defiling themselves, or even to recommend it to them so to defile themselves—whether, even in this case, any member of the present, or any future jury, that sees this, will, in any such habit of defilement, howsoever inveterate, find any sufficient warrant for so defiling himself.
Yes, for argument sake, if, of his so defiling himself, any preponderant advantage to the community, in respect of judicature and substantial justice, would be the result. But, if in any shape any such advantage were to be found to result, it would lie on the defender of the defilement, be he who he may, to bring it to view. Now this is what has never yet been so much as attempted to be done; and it seems to me that I risk little, in venturing to assure the reader, that it never will be attempted to be done. On that side, if anything be advanced, it will be in the strain of vague generality, and in the form of one or other of those fallacies, of which I have been at the pains of forming a catalogue, which I hope will erelong be published in English, as, in the greater part of it, it has for some time been in French.*
In a certain number of instances, let but the jurymen of this country shew the determination to refuse thus to defile themselves,—not any the smallest difficulty will attend the giving to all instruments of accusation (not to speak of other legal instruments) that shape, which will render it, not only perfectly easy to juries, to declare guilt to have had place, wherever in their opinion it has had place,—to render it perfectly easy (I say) for them so to do, without any such defilement,—but shall even render it much more easy, than it either has been made already by that same defilement, or would or could be made by the like defilement, if swollen to a pitch, ever so much more enormous than it has ever yet been seen to be.
THE KING AGAINST SIR CHARLES WOLSELEY, BARONET,
BRIEF REMARKS, tending to show THE UNTENABILITY OF THIS INDICTMENT.
BENCHER OF LINCOLN’S INN.
To the Jurymen of Warwickshire, and such other persons whom it may concern.
Queen’s-Square Place, Westminster
For the purpose of the cause, intituled, the King against Edmonds and others, of which it is expected that, before this can reach you, it will have been tried at Warwick, copies were sent of the paper which immediately follows [precedes] the present address. Not only in principle, but in so large a proportion of the details, the two cases are in so many points coincident, that, for the present purpose, to draw up a paper, distinct in all its parts from that other, would have been labour without adequate use.
On this present occasion, I proceed, therefore, on the supposition that, by what persons soever any remark of mine, on the subject of the indictment in the case of the King against Wolseley, may be regarded as presenting any claim to their notice, the following [preceding] remarks, which had, for their more immediate object, the Warwick case above mentioned, will, in the first place, have been perused. This being supposed to be done, all that will remain will be to subjoin such remarks as apply exclusively to those words and phrases, which have no place but in the Chester indictment, by a copy of which they will be preceded.
THE KING v. WOLSELEY & HARRISON.
“Cheshire.—The jurors of our Lord the King upon their oath present, that Sir C. Wolseley, late of Stockport, in the “city” [county] of Chester, Bart., and J. Harrison, late of the same place, schoolmaster, being persons of a turbulent  and seditious  disposition, and wickedly and maliciously  devising, and intending to excite tumult  and insurrection , both in this realm, on the 28th day of June, in the 59th year of the reign of George III. of the United Kingdoms of Great Britain and Ireland, King, at Stockport aforesaid, in the said county, together with divers other persons to the jurors aforesaid unknown, to the number of 500 and upwards, with force and arms , unlawfully did assemble and gather together to disturb the public peace , and being so assembled together, did, by seditious speeches and discourses , and by other unlawful and dishonest means, then and there endeavour to “invite” [incite] and stir up the people of this realm to hatred and contempt of the government and constitution thereof, as by law established, in contempt of our said Lord the King and his laws, to the evil example of all others in the like case offending, and against the peace of our said Lord the King, his crown and dignity.
“And the jurors aforesaid, upon their oath aforesaid, do further present, that the said C. W. and J. H., together with divers other persons to the jurors aforesaid unknown, on the same day and year aforesaid, at Stockport aforesaid, in the said county, with force of arms unlawfully did conspire , combine, confederate, and agree together to disturb the public peace of this kingdom, and to incite and stir up the people to hatred and contempt of the government and constitution thereof, as by law established, in contempt of our said Lord the King and his laws, to the evil example of all others in the like case offending, and against the peace of our said Lord the King, his crown and dignity.
“Lloyd, Prosecutor. John Hobnis.
“Thomas Robinson, High Constable.
“A true copy of an indictment, preferred and found against Sir C. W. Bart., and Joseph Harrison, schoolmaster, at the quarter-sessions holden for the county of Chester, at Knutsford, on Tuesday, the 13th day of July 1819.
“Henry Notts, Clerk of the Peace.”
REMARKS ON THE ABOVE INDICTMENT.
Taking, for their subject, divers words and phrases in the above indictment, these Remarks have, for their principal object, the shewing that, on either of the two counts in that indictment, concurrence in a verdict of guilty would be a violation of the juryman’s oath.
1. “Being persons of a turbulent . . . . disposition.”] That the pronouncing anything on the disposition of the persons in question, whatsoever were the disposition so ascribed, would, as to so much, be the pronouncing a verdict without evidence, has been shown in the Remarks in the Warwick case (p. 250.)
On the present occasion, to the ungrounded assertion respecting disposition in general, is added, in the first place, the assertion, by which the quality of “turbulence” is ascribed to the disposition of the persons thus accused. Here then the jury are called upon to pronounce, that the disposition of the persons accused is, in the instance of each of them, a turbulent one. But to do so will be to pronounce them in that respect guilty, and that without evidence. By the word turbulence, no distinctly conceivable act is indicated. On the present occasion, if there be anything, of which any distinct indication is afforded by this word, it is the sort of temper, and the state of mind, which, on the part of the persons concerned in the prosecution, has place, or is pretended to have place. To whomsoever applied, it is a word of vague vituperation, and nothing more.
2. “And seditious disposition.”] Of the word disposition, enough has just been seen. Seditious disposition is a disposition to commit acts of sedition. By the phrase acts of sedition, what are the sorts of acts that are, or those that ought to be, understood to be designated?
Presently we shall see this same adjective or epithet, seditious, employed to designate certain “speeches and discourses.” But the first thing to be considered is the act at large. Sedition? an act of sedition? what sort of an act is it? For, of the phrase—the act of speaking a seditious speech, and of the phrase—the act of publishing a seditious written discourse, the import will depend on that which is attached to the phrase—an act of sedition taken at large. Be this as it may, the idea attached to the word sedition being no less obscure and indeterminate, than it is practically important, the consideration of it is here deferred, to the occasion on which it will be seen presenting itself anew, in company with the words speech and discourse.
3. “Wickedly and maliciously.”] Two other words these, which, as here employed, amount to nothing better than another sample of vague and ungrounded vituperation. To these again the remark may therefore be applied, namely, that the imputations conveyed by them not being susceptible of proof, the consequence is, that, supposing a verdict of guilty applied to the count of which they form a part, here would be another violation of the juryman’s oath.
Here, too, would recur the question—if, on the ground of the ungroundedly abusive language, any person ought to suffer,—on whom, with most propriety, would the suffering be made to fall?—on the persons who are the objects of it, or on the persons who concur in the utterance of it?
But, “The King” (says the current maxim) “can do no wrong.” No, say the crown-law-yers, “nor the crown-lawyers neither:” if not in words, at any rate to every practical effect, such is the addition made to it: what would be wrong and criminal, if done by any other person, is, wherever they do it, right and legal: right, though it be for no other reason, than that it is by them that it is done.
4. “Devising and intending to excite tumult.”] Tumult, forsooth! Behold here another word without any determinate meaning. What is the criminal intention imputed here? Answer—the intention of exciting tumult. Now what is tumult? This is surely among the things which every man ought to be informed of, and informed of in time, before he is punished for any such cause as the “exciting” it, or the endeavouring or “intending” to excite it. If, for the purpose of forming a ground for punishment, there be any word—any name of an act—that requires to have the import of it fixed by an authoritative definition, surely this one is of the number. But any such definition, where is it to be found? Absolutely nowhere. The law knows not of any such word: neither statute law (the only real sort of law,) nor the sort of sham law, commonly called common law: in no statute, in no law report, or authoritative law treatise, is any such definition to be found.
No, (says somebody,) nor need there be: for tumult is a word belonging to the common stock of the language. Well: and, when employed as an article of that common stock, what then is the import attached to it? Nothing can be more indeterminate. On the slightest scrutiny, this indeterminateness will appear unquestionable: and, to warrant the application of a word to a legal purpose, it suffices not that the word be familiar: the idea attached to it should moreover be determinate.
If there be any idea constantly associated with it, it is this—namely, the idea of a something generally unpleasant and undesirable: that something being a noise, in the making of which, a number of persons greater than one are instrumental.
Noise—in the composition of the idea attached to the word tumult—noise, then, one might venture to state as an essential and indispensable ingredient.
Motion—violent motion—of other bodies besides air—motion on the part of a number of persons:—and what number? Would this be another ingredient?
But suppose both ingredients to have had place,—both the ingredients thus designated—would they both together suffice to constitute a punishable offence? No intimation, to any such effect, having as yet been given by any authority, would the ideas thus associated suffice to constitute, for the purpose of punishment, the complex idea of an offence?
In addition to the above ingredients, injury to man’s person—injury to any subject-matter of man’s property—immoveable or moveable—injury of either of these descriptions, and in either case injury in any shape, might suffice (it is supposed)—might suffice to constitute such an offence—so that the effect thus given to it were but sufficiently known. But in regard to injury to person, still comes the question—would a single person suffice? or shall any and what greater number be requisite? In this case, shall tumult be regarded as distinguished—(and by what circumstance or circumstances distinguished?)—from common assault?
Whatsoever be their subject-matter and their shapes, the injuries commonly regarded as included in the import of the word tumult can scarcely be regarded as of a very serious complexion. That which in this indictment, is brought to view in the character of a punishable crime, is, in the most illustrious periodical publication that ever appeared in any country, considered as to such a degree beneficial, not to say necessary, to good government, that the author of the article in question, the avowed adversary of radical reform, scruples not to employ his endeavours to the avowed purpose of preventing the exclusion of it. “Were the causes of tumult destroyed,” says the Edinburgh Review, No. 61, p. 198, “elections would no longer be nurseries of political zeal, and instruments for rousing national spirit. The friends of liberty ought rather to view the turbulence of the people with indulgence and pardon, powerfully tending to exercise and invigorate their public spirit. It is not to be extinguished, but to be rendered safe by countervailing institutions.” Not that, in regard to the utility of tumult in any sense of the word, I can bring my own conceptions to anything like a comcidence with the ingenious reviewers.
In addition to the word tumult, may be seen included in this same justification the word turbulence—another of the words in which the science of the drawer of the indictment has beheld the matter of a punishable crime.
5. Intending to excite . . . . insurrection.] Much more serious is the charge now; but still indeterminate,—on the current, and but too well justified supposition, that by the jury, under the direction of the judge, assertion, not only unproved but ungrounded, will, in this as well as so many other instances, be in a way to be regarded as proved,—most conveniently indeterminate.
Insurrection, then? What, on this occasion, for the purpose of their verdict, are the jury—what, for the purpose of their defence, are the defendants—to understand to be meant by it.
“Insurrection” is rising up. Rising up? for what purpose? If against any person or persons, against whom? At any rate, in what consists the crime? In the act of rising up, there is not any crime; in the act of rising up against this or that person, there is not necessarily any crime: for example, not when it is but in self-defence against unlawful aggression. Rising up against the government? against the government, for any such purpose as putting down the government? Nothing of all this is said: nothing of all this is charged.
And how happens it that nothing of this is charged? The government—was it, on this occasion, out of the penman’s thoughts? No such thing; for presently, when hatred and contempt are the affections, the excitement of which is alleged to have been intended, government is expressly stated as being the object of them. Why then is it that, when the horrible word insurrection is thus brought forward, it is thus hung up over the heads of the defendants—hung up, as it were, in the air, and without any determinate meaning attached to it? Why, unless because somebody was conscious, that neither in that nor in any other criminal sense of the word was insurrection intended; nor, therefore, was any intention of producing any such criminal effect capable of being proved. In the insertion of this word, what then was the purpose in view? Once more, only, by influencing the passions, to mislead the judgment of the jury, and cause them to concur in a verdict of guilty, against two men in whose instance no guilt had place. See what is said a little lower down on the subject of seditious speeches.
Now then, no such intention, as that of rising up against government, for the purpose of putting down the government, or for any other and minor purpose—no such intention (suppose) is proved; at the same time, this being numbered among the other words of course—the assertion contained in it being numbered among the assertions, which, though not less plainly false than scandalous, it is customary, because it has been customary, for the jury on their oaths, under the eye of the judge acting under his oaths, to declare to be true—suppose it accordingly, in and by the verdict, declared to be true. What is the consequence? That, when the defendants come up for judgment, the judge fancies, or pretends to feel himself in his speech, and in his sentence, not only authorized, but compelled to consider the defendants as insurgents—as everything but traitors. Not exactly as traitors: neither the word traitorously, nor any of its kin, being in the verdict: but nevertheless as next kin to traitors. For now comes in to his aid the sense in which the word with its kindred are so continually employed in the body of the law—employed, not only in all histories, but in all newspapers. The citizens of the United States, ere they became acknowledged citizens—were they not insurgents, and insurgent traitors? So likewise the men in Spanish America? In Spain and everywhere else on the continent, insurgent traitors; in England, insurgents everywhere, and, in the court newspapers, insurgent traitors.
6. With force and arms.] Nothing can here be plainer than the existence of an allegation, that, in the course of the acts done in prosecution of the criminal intentions alleged and for the purpose of giving effect to those same intentions, force and arms—not only force but arms—were employed. Well then, if on that same occasion, neither force nor arms are proved to have been employed,—or even, though force were proved to have been employed, if no arms are proved to have been employed, no verdict in and by which they are declared to have been employed can be concurred in without a violation of the juryman’s oath. So likewise, though arms were proved to have been borne, if no force is proved to have been employed.
Now as to arms, what, in the sense that belongs to the subject, arms are—is pretty well understood by everybody. Arms are either offensive or defensive: and, in either case, to help to constitute the alleged guilt, they must not merely be such arms as are customarily carried for the purpose of being eventually employed against assault by beasts, but such arms as by their construction appear designed to be employed against men.
7. To disturb the public peace] “unlawfully” and “to disturb the public peace:” it was to this intent that they “did assemble and gather together,” says this part of the charge.
Disturb the public peace? Once more, if not by injury, or endeavour to do injury, to person or property, by persons acting together for this same purpose, in considerable numbers, the public peace was endeavoured or intended to be disturbed, by what other means—in what other mode, could it have been endeavoured or intended to be disturbed; or in this case, to the words, disturb the public peace, what other determinate and intelligible import is left? If, then, neither injury, nor endeavour nor intention to do injury, in either of those modes, is proved, here there is another ungrounded assertion by the adoption of which the juryman’s oath would be violated. But, even suppose injury in both modes proved, still would a verdict of not guilty be warranted, though it were upon this single ground. Why? Even because, for want of those same determinate expressions, or what is equivalent to them, the defendants have been deprived of that precise information, which was necessary to furnish them, in case of innocence, with the sufficient means of defence against this part of the charge. Disturbance of the public peace is not plain language, but rhetoric—rhetoric, which, for the purposes of deception and injustice, has been, as it was originally inserted, so is it still kept, in the body of the language employed by lawyers.
Eminently useful has indeed the word peace been, to those who, in that course of perpetual encroachment, which limited power, in whatever hands, is destined to pursue, are waging their never-ceasing war against liberty.
Though, in its original import, this word was far from being so determinate as those which the subject required, and, as above, might have found,—it was still farther from including one important point which in these later times has been forced into it.
In its original and proper signification, it belonged to international law only, not to internal law. Peace is the absence of war; and, if it be applicable to injury between members of the same state, it could only be on the supposition of a civil war, such as that between two pretenders to the monarchy, or that between a monarch and his aristocratical subordinates: of that sort of civil war from which, in those feudal times, in which most of our institutions took their rise, the country was seldom free, except when relieved from it by a war of depredation, in which all parties joined, for the sake of the plunder hoped to be obtained from France.*
Injury to person, to properties, to reputation, to condition in life,—to one or other of the four shapes expressed by these denominations, may all injury, considered in so far as individuals are the objects of it, be seen to be reducible. That which, as between monarch and monarch, would be signified by the words breach of the peace—that, and nothing else, would be signified by that same phrase, when applied to injury as from individual to individual in the same state, or from subjects to rulers in the same state: that is to say, injury to person or property, when accompanied with physical force,—or with the appearance of it, in any such shape as should produce fear of ulterior injury, in one or both of the shapes thus signified.
In either of these cases, a measure obviously conducive, and in some circumstances even necessary, to prevention of ulterior injury, is the bodily arrestation of the evil-doer, and, for a time, more or less considerable, the subjecting him to ulterior bodily restraint. Were it not for a power to this effect somewhere, no one could say, to what extent injury, in the two shapes here in question, might not swell itself.
As between monarch and monarch, so between individual and individual, it is only by injury to the persons or properties of men, not by mere injury to their reputation or condition in life, that except of late, and in prosecution of the above-mentioned implacable internal war of the ruling few against the subject many, that peace has ever been considered as being broken or disturbed.
With or without commission from the king of Great Britain, suppose a Spanish captured by a British ship, and men in the ship killed or wounded: here is disturbance of the peace, here is breach of the peace. Thus stands the matter, so far as regards injury to person and injury to property. Now as to injury to reputation. At this time, scarcely does that day pass, in which the reputation of the Spanish monarch does not receive its figurative wounds by the instrumentality of the public prints; yet by none of those figurative wounds is peace between Spain and England either broken or disturbed.
Still, in the import of the word peace, there was nevertheless something of a loose and figurative cast, which, by the enemies of the liberty of the press, was regarded as affording a colour applicable to their purpose.
Already, to every written and published discourse, which it was their wish to suppress or punish for, they had succeeded in affixing the character of a criminal and punishable libel; and, on the part of the people, they had found either a stock of prejudice, or a degree of blindness and negligence, sufficient to produce submission to the injury. But, to punish a man for an alleged libel, and thereupon to suppress it, after it had been proved or pretended to have been proved such, was one thing: under the notice of his having published a libel, to punish a man for the publication of a written discourse, and to suppress the discourse, before it had been proved, or so much as pretended to have been proved, a libel, was another and a very different thing. This, however, they have been seen to do; and, in the word peace, with the cloud in which it still continues so unhappily involved, they found a pretext, such as by them was deemed, and as yet has been found, a sufficient one.
Still, however, the phrases, disturbance of the peace—breach of the peace, were not of themselves regarded as sufficient: the idea of tendency was still requisite; to the phrase, “a breach of the peace,” the words, tending to, were added, and thus the thing was done.
Tend to a breach of the peace? In what manner, by what means, is it, that a libel, of the sort here in question—a libel, tending to incite and point against the person or persons in question sentiments of displeasure, tends to a breach of the peace? Upon these or any other persons, such, it is true, may be the effect of injury in this shape, just as it may be the effect of injury in any other shape. For, there is no injury by which a man, weak in mind and strong in body, may not be engaged to make retribution for it, by means of injury, in some shape or other, of the sort of those by which peace, in the original, determinate, and proper import of the word, is broken or disturbed.
But, let this be law, every act, by which any man may be made angry, is a breach of the peace: and thus, between acts which are breaches of the peace, and acts, injurious or not, that are not breaches of the peace, all difference is expunged.
Thus, then, so it is, that, let the law be but uniformly carried into effect, all liberty of discussion on the subject of those affairs which are the common concerns of all men, is rooted out—all by so sweet and soft an instrument as the word peace, issuing from the lips of the reverend, and scarcely the less pious for the not having as yet been supernaturally consecrated, ministers of peace.
A man defiles your wife before your face. This, if it be with the consent of the person so defiled—this, though is suffices to acquit you of murder, in case of your avenging the injury by the death of the injurer upon the spot, has not yet been discovered, either to be a breach of the peace, or to have any tendency to produce to any such effect as that in question—to any such effect as that of arrestation on the spot, and at the time, any such thing as a breach of the peace. The reason is plain: here is no libel published. Not but that it is among those injuries, which “by intendment of law”—meaning always English law—are never committed without “force and arms.” But, in this case, the force and the arms being but the product of mendacity and nonsense under the garb of science, neither breach of the peace, nor so much as tendency to any breach of the peace, is among the imputed accompaniments of it.
Thus it is, that, with words at command, the nominally independent, but really dependent, creatures of the crown, continue to have, as they always have had, but for here and there an act of perversity on the part of juries, at equally absolute command, the life of man, as well as everything from which life derives its value: and, so it be by a man with justice in his mouth, and a certain quantity of fur and false hair flowing over his shoulders, how they are dealt with has, to the good people of this country, been, at all times, a matter of little less than complete indifference.
8. By seditious speeches and discourses.] Now, then, as to sedition. In this clause, by which the jury are called upon to pronounce the defendants guilty of an alleged crime thus denominated, ought to be considered as of course included, the supposition that to every one in their situation it had been rendered possible to know and understand—to know and understand in time—what the sort of acts are, to which the appellation is applied, and from which, if committed, the penal consequences attached to it will be made to fall upon the actors.
But, in this instance, as in so many others, no such possibility, it will be seen, has place.
In this instance, as in every other, what the possessors of power have in view and at heart, is—under the name of punishment, to cause suffering to fall upon any such persons, to whom it shall have happened to have offered opposition in any shape to their will—determined, as it is, by the conception entertained by them of their own interest.
Now, by the word sedition, what is it then that is expressed? Opposition, in some shape or other, to that will: this, and little more, if anything: at any rate, nothing, the shape of which can be said to approach in any degree to a determinate shape.
Look for the meaning of it in statute law: look for it in common law: look for it as long as you will in both, you will look in vain.
As to the word sedition, in statute law it may unquestionably be found in places more than one. But, in each place, for the import that will be attached to it, reliance is placed on the import, whatsoever it may be, which by each reader shall happen to be attached to it. Unfortunately, various as well as numerous are the imports which, with almost equal pretension to propriety, may present themselves as attached to it; imports correspondent to which are so many species of mischievous acts, differing widely from one another in quality and quantity of mischievousness. A sample may, perhaps, be brought to view before these pages are at an end.
Now, of the immense and undigested mass of statute law, in what portion will any exposition—any attempt to give an explanation and fixation—of the import of this important word be found? In the instance of this, as well as almost every other denomination of offence, nowhere. In the manufacturing of this species of law, no man ever scruples to assume, and to any extent, those things to be universally known and understood by everybody, the possibility of knowing and understanding which has not been allowed to anybody. To the manufacturers, the very idea of definition is an object of a not altogether ill-grounded horror—of real horror—and therefore, to escape from the indignation due to such neglect of duty, of affected contempt:—absurd, pedantic, wild, visionary, and impracticable—such are the epithets kept in store to be poured down upon the head of every presumptuous innovator, whose audacity shall dare to propose the extending, to this most important of all sciences, that instrument of elucidation, which is never regarded as being misapplied, when applied to the most trivial, be they what they may, of the several other branches of art and science.
Lastly, as to common, alias judge-made law. Not that the definitions, which occur here and there, in the books called books of common law, are, any of them, possessed of any binding force, or authority: to each such exposition, whether repeated as having been given by a judge speaking as such, or exhibited by an unofficial and uncommissioned treatise-maker, each succeeding judge, on each occasion, bestows such regard, and no other, as it happens to him to find his convenience in bestowing: for nothing can he ever see, that, if so determined, can have any such effect as that of restraining him from the freest exercise of such his pleasure. Still, however, in such expositions, definitions, exemplifications, and illustrations, as are to be found in law-books, a man who is rich enough to possess a law library of adequate magnitude, and at the same time has leisure enough to make this use of it, may, in most cases, find some guide to reflection—some help to conjecture.
Accordingly, in books of common law, words may here and there be found, which have been taken for the subject of declared definition. Examples are—the words, high treason, riot, rout, and unlawful assembly: not to speak of others which have no immediate bearing upon the present subject.
But, in the number of them, the word sedition is not to be found. On the present occasion, besides indexes to statute books, Hawkins, the latest of the authors of crown law-books, who can with any confidence be cited as authority, has on this occasion been recurred to, and in vain.
Such is the case with regard to the word sedition: such is moreover the case with the still more appalling word insurrection.
Between sedition and high treason—between a crime punishable with nothing beyond fine and imprisonment, and a crime subjecting men to an excruciating death, with et-ceteras, punishing with elaborate reflection the unnumbered innocent along with the guilty one—where is the difference? Nobody has ever told us: nobody has ever attempted to tell us: nobody is there who is able to tell us. For one and the same individual act or series of acts, for which a man is prosecuted [Editor: illegible word] for high treason, if the cognizance of it is thought fit to be trusted to a jury, and of the evidence of two witnesses, or a body of other evidence construed to be equivalent to it, can be found,—for the same offence, he has been made prosecutable, and accordingly prosecuted, as for sedition, and, by a single justice of peace, convictable and convicted on the testimony of a single witness (36 G. III. c. 7.)
But between these, as compared with one another, and as compared with such other offences as strike against the authority of the government, is it possible to draw any clear lines of distinction? Oh yes; abundantly possible. Actuality, it is hoped, may be received as tolerably satisfactory evidence of possibility: and this evidence would here be produced, were it not that space and time press, and that, on the present occasion, any such sample might, by those whom it concerns, be regarded as uncalled for and irrelevant.
Look at that statute. Every act, in the nature of which any real mischievousness is included, is expressly declared to be high treason;—every act, which is allowed to be punished with the less atrocious punishment, as above, is the act of criticising, in terms displeasing to the members of government, anything that, at any time, has ever been done by government. And, forasmuch as, in the preamble, in company with the words high treason, the word sedition is inserted, what is said about “hatred and contempt,” as above, i. e. about unacceptable criticism, may, by any one that chooses be taken as a definition of it. To convict a man even of high treason on as good ground, would not require a construction more intensely strained, than some of those by which, in addition to the treasons created by parliament, new ones have been created by judges.
Mr. Hunt, and his associates—on a late occasion, were not endeavours used to send the knife of the hangman into their bowels? Yes,—and for what offence? For one of those offences which are between high treason and nothing: the one or the other, according as audacity or timidity are the accompaniments of despotism.
OFFICIAL APTITUDE MAXIMIZED; EXPENSE MINIMIZED:
first published in [Editor: illegible word]
[* ]Strype’s Life of Whitgift, p. 198, in Neale, § 457.
[† ]Cotton’s Life of Hooker, prefixed to his Ecclesiastical Polity, p. 23.
[* ]Davenant, quoted in Smith’s “Wealth of Nations.”
[† ]In France, no fees to judges, no selling of law-places. Is it not this, for one thing, makes lawyers so eager to support Ministers in their schemes for cutting the throats of the French?—the French, who, whatever mischief they have done to one another, have done none to us, but love and respect us.
[* ]Blackstone’s Commentaries, Introduction.
[† ]The rule is, that every interrogatory must have a charge to support it, in which a man is obliged to assert, at random, whatever he wants to know.
[‡ ]May now—1823—be transported.—Editor of original edition.
[* ]Burrows’ Reports, Preface.
[* ]Hale’s Pleas of the Crown: title Larceny.
[† ]“Happily for us, we are not bound by any laws but such as are ordained by the virtual consent of the whole kingdom, and which every man has the means of knowing.”—Ashhurst.
[* ]King against Perry and Lambert, 9th December 1792. Erskine’s Speeches, II. 371.
[† ]Holt’s Libel Law, 2d Edition, page 115, from E. T. K. B. 1804; and 7 East. Rep., The King v. Johnson.
[* ]1 Russel, p. 323.
[* ]Vide 33 Ed. I. St. 2.—Ed.
[† ]Year-Book, 20 H. 7, 11. b. in Comyns’s Digest, title Pleader, 2 K. Pleader in Conspiracy.
[* ]See the Book of Fallacies, as reprinted in the present collection.
[* ]Reprinted here from the Morning Chronicle of 19th July 1819. The figures are here inserted for the purpose of reference to the Remarks.
[* ]Through the French paix, peace comes from the Latin pax. Pax has for its grammatical kindred, pactum, a treaty or agreement. Among the most ancient, and therefore the wisest, of those ancients, whose sentiments and conduct, by the phrase, wise ancients, we are so frequently called upon to take for the model of our own, war for the purpose of extermination, with no other softening than was prescribed by the profit of enslavement, was the natural situation of those same wise nations, with reference to all other nations: which other nations, in consideration of their deficiency in the article of wisdom, were lumped together under the general denomination of barbarians. At the same time, in case of a special agreement, or treaty of peace, entered into for that purpose, any nation in particular might stand exempted from that fate to which, but for such special exception, it was doomed. Accordingly, among the Greeks, by two correspondent and single-worded denominations, expressive of the absence and presence of this circumstance of exception, barbarians were distinguished into those, between which respectively and the wise nation, peace, meaning by peace treaty, had place, and those with whom no such peace had place; and among the Romans, though it appears not that the two appropriate terms had received translation into their language, the sentiments in question were very efficiently and frequently conformed to in practice.