Front Page Titles (by Subject) THE KING against EDMONDS AND OTHERS: SET DOWN FOR TRIAL, AT WARWICK, ON THE 29 th OF MARCH 1820. - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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THE KING against EDMONDS AND OTHERS: SET DOWN FOR TRIAL, AT WARWICK, ON THE 29 th OF MARCH 1820. - 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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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.
[* ]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.