The Online Library of Liberty

A project of Liberty Fund, Inc.

• Scotch Reform; Considered With Reference to the Plan Proposed In the Late Parliament, For the Regulation of the Courts and the Administration of Justice In Scotland: With Illustrations From English Non-reform: In the Course of Which, Divers Imperfectio
• Advertisement.
• Letters to Lord Grenville, On the Proposed Reform In the Administration of Civil Justice In Scotland.
• Letter I.
• Letter II.: Proposed Division of the Court of Session.
• Letter III.: Proposed System of Pleading.
• Letter IV.: Proposed Trial By Jury.
• Letter V.: On the Bill Called Lord Eldon’s.
• Summary View of the Plan of a Judicatory, Under the Name of the Court of Lords’ Delegates, Proposed For the Exercise of Those Judicial Functions, the Adequate Discharge of Which By the Whole House Has, For These Six Or Seven Years, Been Rendered Confe
• The Elements of the Art of Packing, As Applied to Special Juries, Particularly In Cases of Libel Law.
• Advertisement to the First Edition.
• Part I.
• Chapter I.: Occasion of This Work.
• Chapter II.: Juries—their Use As a Check to Judges.
• Chapter III.: The Check How Done Away By Influence.
• Chapter IV.: Special Juries, a Special Engine of Corruption.
• Chapter V.: Jury Unanimity Increases the Corruption.
• Chapter VI.: Purposes to Which Influence On Juries May Be Made Subservient.
• Chapter VII.: Chief Purpose, Crushing the Liberty of the Press.
• Chapter VIII.: The Exchequer Packing Office Suffices.
• Chapter IX.: Instruments For Crushing the Liberty of the Press.
• Chapter X.: Want of Adequate Obsequiousness Morally Impossible.
• Chapter XI.: Such Juries Worse Than None.
• Part II.: State of the Packing System, Anno 1808.
• Chapter I.: Introduction—two Reforming Shrievalties.
• Chapter II.: The Sheriff to the Lord Chief Baron—notices.
• Chapter III.: Lord Chief Baron to Sheriff Sir Richard Phillips—avowries and Defences.
• Chapter IV.: Observations On the Lord Chief Baron’s Defences.
• Chapter V.: Special Jury Corruption—devices By Which It Was Protected.
• Chapter VI.: Learned Advice From the Temple.
• Chapter VII.: Advice From Lincoln’s-inn.
• Chapter VIII.: Maxims Concerning Reform, Deduced From the Above Letter.
• Chapter IX.: Transactions At the Remembrancer’s.
• Part III.: State of the Packing System, Anno 1809.
• Chapter I.: Commons’ Debate, 24 Th April 1809. Packing and Cutting.
• Chapter II.: Double-fee Abuse, Plain and Embroidered.
• Part IV.—: Remedies Proposed. *
• Chapter I.: Humble Proposal For Restoring the Constitution In Regard to Juries.
• Chapter II.: State of Jury Package In Scotland.
• Chapter III.: Humble Proposal For Restoring the Authority of Parliament.
• “swear Not At All:” Containing an Exposure of the Needlessness and Mischievousness, As Well As Anti-christianity of the Ceremony of an Oath: a View of the Parliamentary Recognition of Its Needlessness, Implied In the Practice of Both Houses; a
• Advertisement.
• Editor’s Note
• Swear Not At All. Mat. V. 34.
• Section 1.: Oath. Incongruity of the Assumption, On Which Its Supposed Beneficial Efficiency Is Grounded.
• Section 2.: Mischievousness of This Instrument Considered In a General Point of View.
• Section 3.: Its Inefficiency In the Character of a Security Against Deceptious Incorrectness and Incompleteness In Evidence.
• Section 4.: Recognition of Its Inutility By Lords and Commons.
• Section 5.: Mischiefs —1. Contributing to the Mendacity-licence Granted By Judges.
• Section 6.: Mischief 2— Weakening In Various Ways the Efficiency of the Laws.
• Section 7.: Mischief 3— Bewildering and Enslaving the Consciences of Jurymen.
• Section 8.: Mischief 4— Giving Aid and Force to the Enterprises of Malefactors.
• Section 9.: Mischief 5— Furnishing Pretence For Misrule By Abuse of Prerogative.
• Section 10.: Misrule, How to Perpetuate—coronation Oaths Amended.
• Section 11.: Mischief 6— Corrupting the National Morals and Understanding—oxford University Oaths.
• Section 12.: Mischief 6 Continued. —ii. Cambridge Oaths.
• Section 13.: Practice of Receiving Judicial Oaths, Its Repugnancy to the Precepts of Jesus.
• Section 14.: Succedanea—true Securities Substitutible to This False One.
• Section 15.: Cause and Origin of the Practice In Regard to Oaths.
• Appendix.
• Truth Versus Ashhurst; Or, Law As It Is, Contrasted With What It Is Said to Be.
• The King Against Edmonds and Others: Set Down For Trial, At Warwick, On the 29 Th of March 1820.
• The King Against Sir Charles Wolseley, Baronet, and Joseph Harrison, Schoolmaster, Set Down For Trial, At Chester, On the 4 Th of April 1820.
• Official Aptitude Maximized; Expense Minimized: As Shown In the Several Papers Comprised In This Volume.
• Paper I.—
• Paper II.—: Introductory View, &c.
• Paper III.—: Extract From the Proposed Constitutional Code; Entitled, Official Aptitude Maximized—expense Minimized. By Jeremy Bentham, Esq. Bencher of Lincoln’s Inn.
• Paper IV.—: Supplement to the Above Extract.
• Paper V.—: Defence of Economy Against the Right Honourable Edmund Burke.
• Paper VI.—: Defence of Economy Against the Right Honourable George Rose.
• Paper VII.: Observations On Mr. Secretary Peel’s House of Commons Speech, 21 St March 1825, Introducing His Police Magistrates’ Salary Raising Bill, ( Date of Order For Printing, 24 Th March 1825.)
• Paper VIII.: Indications Respecting Lord Eldon, Including History of the Pending Judges’-salary-raising Measure.
• Paper IX.—: On the Militia.
• Paper X.: On Public Account Keeping.
• Paper XI.: Constitutional Code—table of Contents As Shown By Titles of Chapter and Sections.
• Commentary On Mr. Humphreys’ Real Property Code, By Jeremy Bentham. From the Westminster Review, No. XII., For October 1826.
• *∗* the Following Note Was Prefixed to the Article By the Editor of the Westminster Review: —
• Commentary On Humphreys’ Real Property Code.
• I.: Deed of Sale.
• II.: Deed of Mortgage. 1
• III.: Marriage Settlement Deed.
• Outline of a Plan of a General Register of Real Property: Contained In a Communication to the Commissioners Appointed Under Letters Patent, of Date the 6 Th June 1828, to Inquire Into the Law of England Respecting Real Property, and First Printed I
• Justice and Codification Petitions: Being Forms Proposed For Signature By All Persons Whose Desire It Is to See Justice No Longer Sold, Delayed, Or Denied: and to Obtain a Possibility of That Knowledge of the Law, In Proportion to the Want of Which T
• Justice and Codification Petitions.
• Advertisement.
• Preliminary Explanations Necessary to Be First Read.
• Petition For Justice.
• Abridged Petition For Justice.
• More Abridged Petition For Justice.
• Supplement, Which May Be Added Or Not to Any One of the Three Or Any Other Proposed Petition.
• Petition For Codification.
• Lord Brougham Displayed: Including I. Boa Constrictor, Alias Helluo Curiarum; II. Observations On the Bankruptcy Court Bill, Now Ripened Into an Act; III. Extracts From Proposed Constitutional Code.

THE KING AGAINST SIR CHARLES WOLSELEY, BARONET,

AND JOSEPH HARRISON, SCHOOLMASTER, SET DOWN FOR TRIAL, AT CHESTER, ON THE 4^th OF APRIL 1820.

BRIEF REMARKS, tending to show THE UNTENABILITY OF THIS INDICTMENT.

BY JEREMY BENTHAM, ESQ.

BENCHER OF LINCOLN’S INN.

To the Jurymen of Warwickshire, and such other persons whom it may concern.

Queen’s-Square Place, Westminster
March 29, 1820.

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.

“MISDEMEANOR.

‘COPY OF THE BILL OF INDICTMENT AGAINST SIR CHARLES WOLSELEY AND MR 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 [1] and seditious [2] disposition, and wickedly and maliciously [3] devising, and intending to excite tumult [4] and insurrection [5], 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 [6], unlawfully did assemble and gather together to disturb the public peace [7], and being so assembled together, did, by seditious speeches and discourses [8], 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 [9], 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.

[* ]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.