The Age of George III
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[ix] The encouragement given to a multitude of spurious, mangled publications of the Letters of Junius, persuades me, that a complete edition, corrected and improved by the author, will be favourably received. The printer will readily acquit me of any view to my own profit. I undertake this troublesome task merely to serve a man who has deserved well of me, and of the public; and who, on my account, has been exposed to an expensive, tyrannical prosecution. For these reasons, I give to Mr. Henry Sampson Woodfall, and to him alone, my right, interest, and property, in these letters, as fully and completely, to all intents and purposes, as an author can possibly convey his property in his own works to another.
This edition contains all the letters of Junius, Philo Junius, and of Sir William Draper and Mr. Horne to Junius, with their respective dates, and according to the order in which they appeared in the Public Advertiser. The auxiliary part of Philo Junius was indispensibly necessary to defend or explain particular passages in Junius, in answer to plausible objections; but the subordinate character is never guilty of the indecorum of praising his principal. The fraud was innocent, and I always intended to explain it. The notes will be found not only useful but necessary. References to facts not generally known, or allusions to the current report or opinion of the day, are, in a little time, unintelligible. Yet the reader will not find himself overloaded with explanations. I was not born to be a commentator, even upon my own works.
[x] It remains to say a few words upon the liberty of the press. The daring spirit by which these letters are supposed to be distinguished, seems to require that something serious should be said in their defence. I am no lawyer by profession, nor do I pretend to be more deeply read than every English gentleman should be, in the laws of his country. If, therefore, the principles I maintain are truly constitutional, I shall not think myself answered, though I should be convicted of a mistake in terms, or of misapplying the language of the law. I speak to the plain understanding of the people, and appeal to their honest, liberal construction of me.
Good men, to whom alone I address myself, appear to me to consult their piety as little as their judgment and experience, when they admit the great and essential advantages accruing to society from the freedom of the press, yet indulge themselves in peevish or passionate exclamations against the abuses of it. Betraying an unreasonable expectation of benefits, pure and entire from any human institution, they, in effect, arraign the goodness of Providence, and confess that they are dissatisfied with the common lot of humanity. In the present instance, they really create to their own minds, or greatly exaggerate the evil they complain of. The laws of England provide as effectually as any human laws can do for the protection of the subject, in his reputation, as well as in his person and property. If the characters of private men are insulted or injured, a double remedy is open to them by action and indictment. If, through indolence, false shame, or indifference, they will not appeal to the laws of their country, they fail in their duty to society, and are unjust to themselves. If, from an unwarrantable distrust of the integrity of juries, they would wish to obtain justice by any mode, of proceeding more summary [xi] than a trial by their peers, I do not scruple to affirm, that they are, in effect, greater enemies to themselves than to the libeller they prosecute.
With regard to strictures upon the characters of men in office, and the measures of government, the case is a little different. A considerable latitude must be allowed in the discussion of public affairs, or the liberty of the press will be of no benefit to society. As the indulgence of private malice and personal slander should be checked and resisted by every legal means, so a constant examination into the characters and conduct of ministers and magistrates, should be equally promoted and encouraged. They who conceive that our newspapers are no restraint upon bad men, or impediment to the execution of bad measure23 April, 2017d servility and prostitution, to which the undue influence of the crown has reduced the other branches of the legislature, our ministers and magistrates have, in reality, little punishment to fear, and few difficulties to contend with, beyond the censure of the press, and the spirit of resistance which it excites among the people. — While this censorial power is maintained, to speak in the words of a most ingenious foreigner, both minister and magistrate are compelled, in almost every instance, to choose between his duty and his reputation. A dilemma of this kind perpetually before him, will not, indeed, work miracles on his heart, but it will assuredly operate, in some degree, upon his conduct. At all events, these are not times to admit of any relaxation in the little discipline we have left.
But it is alleged, that the licentiousness of the press is carried beyond all bounds of decency and truth; that our excellent ministers are continually exposed to the public hatred or derision ; that in prosecutions for libels on [xii] government, juries are partial to the popular side; and that, in the most flagrant cases, a verdict cannot be obtained for the King. If the premises were admitted, I should deny the conclusion. It is not true that the temper of the times has in general an undue influence over the conduct of juries. On the contrary, many signal instances may be produced of verdicts returned for the King, when the inclinations of the people led strongly to an undistinguished opposition to government. Witness the cases of Mr. Wilkes and Mr. Almon. In the late prosecutions of the printers of my address to a great personage, the juries were never fairly dealt with. Lord chief justice Mansfield, conscious that the paper in question contained no treasonable or libellous matter, and that the severest parts of it, however painful to the King, or offensive to his servants, were strictly true, would fain have restricted the jury to the finding of special facts, which, as to guilty or not guilty, went merely indifferent. This particular motive, combined with his general purpose to contract the power of juries, will account for the charge he delivered in Woodfall's trial. He told the jury, in so many words, that they had nothing to determine, except the fact of printing and publishing, and whether or no the blanks or innuendoes were properly filled up in the information; but that, whether the defendant had committed a crime or not, was no matter of consideration to twelve men, who yet, upon their oaths, were to pronounce their peer guilty or not guilty. When we hear such nonsense delivered from the bench, and find it supported by a laboured train of sophistry, which a plain understanding is unable to follow, and which an unlearned jury, however it may shock their reason, cannot be supposed qualified to refute, call it be wondered that they should return a verdict, perplexed, absurd, or imperfect? Lord Mansfield has not [xiii] yet explained to the world, why he accepted of a verdict which the court afterwards set aside as illegal; and which, as it took no notice of the innuendoes, did not even correspond with his own charge. If he had known his duty, he should have sent the jury back. I speak advisedly, and am well assured that no lawyer of character, in Westminster hall, will contradict me. To show the falsehood of Lord Mansfield's doctrine, it is not necessary to enter into the merits of the paper which produced the trial. — If every line of it were treason, his charge to the jury would still be false, absurd, illegal, and unconstitutional. If I stated the merits of my letter to the King, I should imitate Lord Mansfield, and* travel out of the record.
* The following quotation from a speech delivered by Lord Chatham, on the 11th of December, 1770, is taken with exactness. The reader will find it curious in itself, and very fit to be inserted here. " My lords, the verdict, given in Woodfall's trial was, 'guilty of printing and publishing only;' upon which two motions were made in court: one, in arrest of judgment, by the defendant's counsel, grounded upon the ambiguity of the verdict; the other, by the counsel for the crown, for a rule upon the defendant, to show cause why the verdict should not be entered up according to the legal import of the words. On both motions a rule was granted; and soon after the matter was argued before the court of king's bench. The noble judge, when he delivered the opinion of the court upon the verdict, went regularly through the whole of the proceedings at nisi prius, as well the evidence that had been given, as his own charge to the jury. — This proceeding would have been very proper, had a motion been made on either side for a new trial; because either a verdict given contrary to evidence, or an improper charge by the judge at nisi prius, is held to he a sufficient ground for granting a new trial. But when a motion is made in arrest of judgment, or for establishing the verdict, by entering it up according to the legal import of the words, it must be on the ground of something appearing on the face of the record ; and the court in considering [xiv] whether the verdict shall be established or not, are so confined to the record, that they cannot take notice of any thing that does not appear on the face of it; in the legal phrase, they cannot travel out of the record. The noble judge did travel out of the record: and I affirm, that his discourse was irregular, extrajudicial, and unprecedented. His apparent motive for doing what he knew to be wrong, was that he might have an opportunity of telling the public extrajudicially, that the other three judges concurred in the doctrine laid down in his charge."
[xiv] When law and reason speak plainly, we do not want authority to direct our understandings. Yet, for the honour of the profession, I am content to oppose one lawyer to another, especially when it happens that the King's attorney-general has virtually disclaimed the doctrine by which the chief justice meant to insure success to the prosecution. The opinion of the plaintiff's counsel, however it may be otherwise insignificant, is weighty in the scale of the defendant. My lord chief justice De Grey, who filed the information ex officio, is directly with me. If he had concurred in Lord Mansfield's doctrine, the trial must have been a very short one. The facts were either admitted by Woodfall's counsel, or easily proved to the satisfaction of the jury. But Mr. De Grey, far from thinking he should acquit himself of his duty, by barely proving the facts, entered largely, and, I confess, not without ability, into the demerits of the paper, which he called a seditious libel. He dwelt but lightly upon those points, which, according to Lord Mansfield, were the only matter of consideration to the jury. The criminal intent, the libellous matter, the pernicious tendency of the paper itself, were the topics on which he principally insisted, and of which, for more than an hour, he tortured his faculties to convince the jury. If he agreed in opinion with Lord Mansfield, his discourse was impertinent, ridiculous, and [xv] unreasonable. But, understanding the law as I do, what he said was at least consistent, and to the purpose.
If any honest man should still be inclined to leave the construction of libels to the court, I would entreat him to consider what a dreadful complication of hardships he imposes upon his fellow-subjects. In the first place, the prosecution commences by information of an officer of the crown, not by the regular constitutional mode of indictment before a grand jury. As the fact is usually admitted, or, in general, can easily be proved, the office of the petty jury is nugatory. The court then judges of the nature and extent of the offence, and determines, ad arbitrium, the quantum of the punishment, from a small fine to a heavy one, to repeated whipping, to pillory, and unlimited imprisonment. Cutting off ears and noses might still be inflicted by a resolute judge: but I will be candid enough to suppose, that penalties, so apparently shocking to humanity, would not be hazarded in these times. In all other criminal prosecutions, the jury decides upon the fact and the crime in one word, and the court pronounces a certain sentence, which is the sentence of the law, not of the judge. If Lord Mansfield's doctrine be received, the jury must either find a verdict of acquittal, contrary to evidence, which, I can conceive, might be done by very conscientious men, rather than trust a fellow-creature to Lord Mansfield's mercy, or they must leave to the court two offices, never but in this instance united, of finding guilty, and awarding punishment.
"But," says this honest lord chief justice, "if the paper be not criminal, the defendant, though found guilty by his peers, is in no danger, for he may move the court in arrest of judgment." True, my good Lord; but who is to determine upon the motion? Is not the court still to decide, whether judgment shall be entered up or not? and [xvi] is not the defendant this way as effectually deprived of judgment by his peers, as if he were tried in a court of civil law, or in the chambers of the inquisition? It is you, my Lord, who then try the crime, not the jury. As to the probable effect of the motion in arrest of judgment, I shall only observe, that no reasonable man would be so eager to possess himself of the invidious power of inflicting punishment, if he were not predetermined to make use of it.
Again, we are told that judge and jury have a distinct office; that the jury is to find the fact, and the judge to deliver the law. De jure respondent judices, de facto jurati. The dictum is true, though not in the sense given to it by Lord Mansfield. The jury are undoubtedly to determine the fact; that is, whether the defendant did, or did not, commit the crime charged against him. The judge pronounces the sentence annexed by law to that fact so found; and if, in the course of the trial, any question of law arises, both the counsel and the jury must, of necessity, appeal to the judge, and leave it to his decision. An exception, or plea in bar, may be allowed by the court; but, when issue is joined, and the jury have received their charge, it is not possible in the nature of things, for them to separate the law from the fact, unless they think proper to return a special verdict.
It has also been alleged, that, although a common jury are sufficient to determine a plain matter of fact, they are not qualified to comprehend the meaning, or to judge of the tendency of a seditious libel. In answer to this objection (which, if well founded, would prove nothing as to the strict right of returning a general verdict) I might safely deny the truth of the assertion. Englishmen of that rank from which juries are usually taken, are not so illiterate as, to serve a particular purpose, they are now [xvii] represented. Or, admitting the fact, let a special jury be summoned in all cases of difficulty and importance, and the objection is removed. But the truth is, that, if a paper, supposed to be a libel upon government, be so obscurely worded, that twelve common men cannot possibly see the seditious meaning and tendency of it, it is in effect no libel. It cannot inflame the minds of the people, nor alienate their affections from government; for they no more understand what it means, than if it were published in a language unknown to them.
Upon the whole matter, it appears, to my understanding, clear, beyond a doubt, that if, in any future prosecution for a seditious libel, the jury should bring in a verdict of acquittal, not warranted by the evidence, it will be owing to the false and absurd doctrines laid down by Lord Mansfield. Disgusted at the odious artifices made use of by the judge to mislead and perplex them, guarded against his sophistry, and convinced of the falsehood of his assertions, they may, perhaps, determine to thwart his detestable purpose, and defeat him at any rate. To him, at least, they will do substantial justice. Whereas, if the whole charge laid in the information be fairly and honestly submitted to the jury, there is no reason whatsoever to presume that twelve men, upon their oaths, will not decide impartially between the King and the defendant. The numerous instances, in our state trials, of verdicts recovered for the King, sufficiently refute the false and scandalous imputations thrown out by the abettors of Lord Mansfield, upon the integrity of juries. But, even admitting the supposition, that, in times of universal discontent, arising from the notorious mal-administration of public affairs, a seditious writer should escape punishment, it makes nothing against my general argument. If juries are fallible, to what other tribunal shall we appeal? [xviii] If juries cannot safely be trusted, shall we unite the offices of judge and jury, so wisely divided by the constitution, and trust implicitly to Lord Mansfield? Are the judges of the court of king's bench more likely to be unbiassed and impartial than twelve yeomen, burgesses, or gentlemen, taken indifferently from the county at large? Or, in short, shall there be no decision, until we have instituted a tribunal from which no possible abuse or inconvenience whatsoever call arise? If I am not grossly mistaken, these questions carry a decisive answer along with them.
Having cleared the freedom of the press from a restraint equally unnecessary and illegal, I return to the use which has been made of it in the present publication.
National reflections, I confess, are not justified in theory, nor upon any general principles. To know how well they are deserved, and how justly they have been applied, we must have the evidence of facts before us. We must be conversant with the Scots in private life, and observe their principles of acting to us, and to each other; the characteristic prudence, the selfish nationality, the indefatigable smile, the persevering assiduity, the everlasting profession of a discreet and moderate resentment. If the instance were not too important for an experiment, it might not be amiss to confide a little in their integrity. Without any abstract reasoning upon causes and effects, we shall soon be convinced, by experience, that the Scots transplanted from their own country, are always a distinct and separate body from the people who receive them. In other settlements, they only love themselves: in England, they cordially love themselves, and as cordially hate their neighbours. For the remainder of their good qualities I must appeal to the reader's observation, unless he will accept of my Lord Barrington's authority in [xvix] a letter to the late Lord Melcombe, published by Mr. Lee: he expresses himself with a truth and accuracy not very common in his Lordship's lucubrations. "And Cockburn, like most of his countrymen, is as abject to those above him, as he is insolent to those below him." I am far from meaning to impeach the articles of the union. If the true spirit of those articles were religiously adhered to, we should not see such a multitude of Scotch commoners in the lower-house, as representatives of English boroughs, while not a single Scotch borough is ever represented by an Englishman. We should not see English peerages given to Scotch ladies, or to the elder sorts of Scotch peers, and the number of sixteen doubled and trebled by a scandalous evasion of the act of union. If it should ever be thought adviseable to dissolve an act, the violation or observance of which is invariably directed by the advantage and interest of the Scots, I shall say very sincerely with Sir Edward Coke,* "When poor England stood alone, and had not the access of another kingdom, and yet had more and as potent enemies as it now path, yet the King of England prevailed."
*Parliamentary History, vol. vii. p. 460.
Some opinion may now be expected from me, upon a point of equal delicacy to the writer, and hazard to the printer. When the character of the chief magistrate is in question, more must be understood than may be safely expressed. If it be really a part of our constitution, and not a mere dictum of the law, that the king can do no wrong, it is not the only instance, in the wisest of human institutions, where theory is at variance with practice. — That the sovereign of this country is not amenable to any form of trial known to the laws, is unquestionable. But exemption from punishment is a singular privilege annexed to the royal character, and no way excludes the [xx] possibility of deserving it. How long, and to what extent, a King of England may be protected by the forms when he violates the spirit, of the constitution, deserves to be considered. A mistake in this matter proved fatal to Charles and his son. For my own part, far from thinking that the King can do no wrong, far from suffering myself to be deterred or imposed upon by the language of forms, in opposition to the substantial evidence of truth, if it were my misfortune to live under the inauspicious reign of a prince, whose whole life was employed in one base, contemptible struggle with the free spirit of his people, or in the detestable endeavour to corrupt their moral principles, I would not scruple to declare to him, "Sir, you alone are the author of the greatest wrong to your subjects and to yourself. Instead of reigning in the hearts of your people, instead of commanding their lives and fortunes through the medium of their affections, has not the strength of the crown, whether influence or prerogative, been uniformly exerted, for eleven years together, to support a narrow pitiful system of government, which defeats itself, and answers no one purpose of real power, profit or personal satisfaction to you? With the greatest unappropriated revenue of any prince in Europe, have we not seen you reduced to such vile and sordid distresses, as would have conducted any other man to a prison? With a great military, and the greatest naval power in the known world, have not foreign nations repeatedly insulted you with impunity? Is it not notorious, that the vast revenues, extorted from the labour and industry of your subjects, and given you to do honour to yourself and to the nation, are dissipated in corrupting their representatives? Are you a prince of the house of Hanover, and do you exclude all the leading whig families from your councils? Do you profess to govern [xxi] according to law, and is it consistent with that profession, to impart your confidence and affection to those men only who, though now, perhaps, detached from the desperate cause of the pretender, are marked in this country by an hereditary attachment to high and arbitrary principles of government? Are you so infatuated as to take the sense of your people from the representation of ministers, or from the shouts of a mob, notoriously hired to surround your coach, or stationed at a theatre? And if you are in reality, that public man, that King, that magistrate, which these questions suppose you to be, is it any answer to your people, to say, that, among your domestics, you are good-humoured; that to one lady, you are faithful; that to your children, you are indulgent? Sir, the man who addresses you in these terms, is your best friend. He would willingly hazard his life in defence of your title to the crown; and, if power be your object, will still show you how possible it is for a King of England, by the noblest means, to be the most absolute prince in Europe. You have no enemies, Sir, but those who persuade you to aim at power without right, and who think it flattery to tell you, that the character of king dissolves the natural relation between guilt and punishment."
I cannot conceive that there is a heart so callous, or an understanding so depraved, as to attend to a discourse of this nature, and not to feel the force of it. But where is the man among those who have access to the closet, resolute and honest enough to deliver it? The liberty of the press is our only resource. It will command an audience, when every honest man in the kingdom is excluded. This glorious privilege may be a security to the King, as well as a resource to his people. Had there been no star-chamber, there would have been no rebellion against Charles the First. The constant censure and [xxii] admonition of the press would have corrected his conduct, prevented a civil war, and saved him from an ignominious death. I am no friend to the doctrine of precedents, exclusive of right; though lawyers often tell us, that whatever has been once done, may lawfully be done again. I shall conclude this preface with a quotation, applicable to the subject, from a foreign writer,* whose Essay on the English. Constitution I beg leave to recommend to the public, as a performance deep, solid, and ingenious.†
" In short, whoever considers what it is that constitutes the moving principle of what we call great affairs, and the invincible sensibility of man to the opinion of his fellow-creatures, will not hesitate to affirm, that if it were possible for the liberty of the press to exist in a despotic government, and, what is not less difficult, for it to exist without changing the constitution, this liberty of the press would alone form a counterpoise to the power of the prince. If, for example, in an empire of the east, a sanctuary could be found, which, rendered respectable by the ancient religion of the people, might insure safety to those who should bring thither their observations of any kind and that, from thence, printed papers should issue, which, under a certain seal, might be equally respected; and which, in their daily appearance, should examine and freely discuss the conduct of the cadis, the bashaws, the vizir, the divan, and the sultan himself; that would introduce immediately some degree of liberty."
*Monsieur de Lolme.
† This Essay on the English Constitution, by De Lolme, thus strongly recommended by Junius, is given in the present collection of Constitutional Classics, immediately after Blackstone's Commentaries.
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