The Writings Of Thomas Paine Volume III Part 8

Having thus shewn the extraordinary manner in which the Government party commenced their attack, I proceed to offer a few observations on the prosecution, and on the mode of trial by Special Jury.

In the first place, I have written a book; and if it cannot be refuted, it cannot be condemned. But I do not consider the prosecution as particularly levelled against me, but against the general right, or the right of every man, of investigating systems and principles of government, and shewing their several excellencies or defects. If the press be free only to flatter Government, as Mr. Burke has done, and to cry up and extol what certain Court sycophants are pleased to call a "glorious Const.i.tution," and not free to examine into its errors or abuses, or whether a Const.i.tution really exist or not, such freedom is no other than that of Spain, Turkey, or Russia; and a Jury in this case, would not be a Jury to try, but an Inquisition to condemn.

I have a.s.serted, and by fair and open argument maintained, the right of every nation at all times to establish such a system and form of government for itself as best accords with its disposition, interest, and happiness; and to change and alter it as it sees occasion. Will any Jury deny to the Nation this right? If they do, they are traitors, and their verdict would be null and void. And if they admit the right, the means must be admitted also; for it would be the highest absurdity to say, that the right existed, but the means did not. The question then is, What are the means by which the possession and exercise of this National Right are to be secured? The answer will be, that of maintaining, inviolably, the right of free investigation; for investigation always serves to detect error, and to bring forth truth.

I have, as an individual, given my opinion upon what I believe to be not only the best, but the true system of Government, which is the representative system, and I have given reasons for that opinion.

First, Because in the representative system, no office of very extraordinary power, or extravagant pay, is attached to any individual; and consequently there is nothing to excite those national contentions and civil wars with which countries under monarchical governments are frequently convulsed, and of which the History of England exhibits such numerous instances.

Secondly, Because the representative is a system of Government always in maturity; whereas monarchical government fluctuates through all the stages, from non-age to dotage.

Thirdly, Because the representative system admits of none but men properly qualified into the Government, or removes them if they prove to be otherwise. Whereas, in the hereditary system, a nation may be enc.u.mbered with a knave or an ideot for a whole life-time, and not be benefited by a successor.

Fourthly, Because there does not exist a right to establish hereditary government, or, in other words, hereditary successors, because hereditary government always means a government yet to come, and the case always is, that those who are to live afterwards have the same right to establish government for themselves, as the people had who lived before them; and, therefore, all laws attempting to establish hereditary government, are founded on a.s.sumption and political fiction.

If these positions be truths, and I challenge any man to prove the contrary; if they tend to instruct and enlighten mankind, and to free them from error, oppression, and political superst.i.tion, which are the objects I have in view in publis.h.i.+ng them, that Jury would commit an act of injustice to their country, and to me, if not an act of perjury, that should call them _false, wicked, and malicious_.

Dragonetti, in his treatise "On Virtues and Rewards," has a paragraph worthy of being recorded in every country in the world--"The science (says he,) of the politician, consists, in, fixing the true point of happiness and freedom. Those men deserve the grat.i.tude of ages who should discover a mode of government that contained the greatest sum of _individual happiness_ with the least _national expence_." But if Juries are to be made use of to prohibit enquiry, to suppress truth, and to stop the progress of knowledge, this boasted palladium of liberty becomes the most successful instrument of tyranny.

Among the arts practised at the Bar, and from the Bench, to impose upon the understanding of a Jury, and to obtain a Verdict where the consciences of men could not otherwise consent, one of the most successful has been that of calling _truth a libel_, and of insinuating that the words "_falsely, wickedly, and maliciously_," though they are made the formidable and high sounding part of the charge, are not matters of consideration with a Jury. For what purpose, then, are they retained, unless it be for that of imposition and wilful defamation?

I cannot conceive a greater violation of order, nor a more abominable insult upon morality, and upon human understanding, than to see a man sitting in the judgment seat, affecting by an antiquated foppery of dress to impress the audience with awe; then causing witnesses and Jury to be sworn to truth and justice, himself having officially sworn the same; then causing to be read a prosecution against a man charging him with having _wickedly and maliciously written and published a certain false, wicked, and seditious book_; and having gone through all this with a shew of solemnity, as if he saw the eye of the Almighty darting through the roof of the building like a ray of light, turn, in an instant, the whole into a farce, and, in order to obtain a verdict that could not otherwise be obtained, tell the Jury that the charge of _falsely, wickedly, and seditiously_, meant nothing; that _truth_ was out of the question; and that whether the person accused spoke truth or falsehood, or intended _virtuously or wickedly_, was the same thing; and finally conclude the wretched inquisitorial scene, by stating some antiquated precedent, equally as abominable as that which is then acting, or giving some opinion of his own, and _falsely calling the one and the other--Law_. It was, most probably, to such a Judge as this, that the most solemn of all reproofs was given--"_The Lord will smite thee, thou whitened wall_."

I now proceed to offer some remarks on what is called a Special Jury. As to what is called a Special Verdict, I shall make no other remark upon it, than that it is in reality _not_ a verdict. It is an attempt on the part of the Jury to delegate, or of the Bench to obtain, the exercise of that right, which is committed to the Jury only.

With respect to the Special Juries, I shall state such matters as I have been able to collect, for I do not find any uniform opinion concerning the mode of appointing them.

In the first place, this mode of trial is but of modern invention, and the origin of it, as I am told, is as follows:

Formerly, when disputes arose between Merchants, and were brought before a Court, the case was that the nature of their commerce, and the method of keeping Merchants' accounts not being sufficiently understood by persons out of their own line, it became necessary to depart from the common mode of appointing Juries, and to select such persons for a Jury whose _practical knowledge_ would enable them to decide upon the case.

From this introduction, Special Juries became more general; but some doubts having arisen as to their legality, an act was pa.s.sed in the 3d of George II. to establish them as legal, and also to extend them to all cases, not only between individuals, but in cases where _the Government itself should be the prosecutor_. This most probably gave rise to the suspicion so generally entertained of packing a Jury; because, by this act, when the Crown, as it is called, is the Prosecutor, the Master of the Crown-office, who holds his office under the Crown, is the person who either wholly nominates, or has great power in nominating the Jury, and therefore it has greatly the appearance of the prosecuting party selecting a Jury.

The process is as follows:

On motion being made in Court, by either the Plaintiff or Defendant, for a Special Jury, the Court grants it or not, at its own discretion.

If it be granted, the Solicitor of the party that applied for the Special Jury, gives notice to the Solicitor of the adverse party, and a day and hour are appointed for them to meet at the office of the Master of the Crown-office. The Master of the Crown-office sends to the Sheriff or his deputy, who attends with the Sheriff's book of Freeholders. From this book, forty-eight names are taken, and a copy thereof given to each of the parties; and, on a future day, notice is again given, and the Solicitors meet a second time, and each strikes out twelve names. The list being thus reduced from forty-eight to twenty-four, the first twelve that appear in Court, and answer to their names, is the Special Jury for that cause. The first operation, that of taking the forty-eight names, is called nominating the Jury; and the reducing them to twenty-four is called striking the Jury.

Having thus stated the general process, I come to particulars, and the first question will be, how are the forty-eight names, out of which the Jury is to be struck, obtained from the Sheriff's book? For herein lies the princ.i.p.al ground of suspicion, with respect to what is understood by packing of Juries.

Either they must be taken by some rule agreed upon between the parties, or by some common rule known and established beforehand, or at the discretion of some person, who in such a case, ought to be perfectly disinterested in the issue, as well officially as otherwise.

In the case of Merchants, and in all cases between individuals, the Master of the office, called the Crown-office, is officially an indifferent person, and as such may be a proper person to act between the parties, and present them with a list of forty-eight names, out of which each party is to strike twelve. But the case a.s.sumes an entire difference of character, when the Government itself is the Prosecutor.

The Master of the Crown-office is then an officer holding his office under the Prosecutor; and it is therefore no wonder that the suspicion of packing Juries should, in such cases, have been so prevalent.

This will apply with additional force, when the prosecution is commenced against the Author or Publisher of such Works as treat of reforms, and of the abolition of superfluous places and offices, &c, because in such cases every person holding an office, subject to that suspicion, becomes interested as a party; and the office, called the Crown-office, may, upon examination, be found to be of this description.

I have heard it a.s.serted, that the Master of the Crown-office is to open the sheriff's book as it were per hazard, and take thereout forty-eight _following_ names, to which the word Merchant or Esquire is affixed.

The former of these are certainly proper, when the case is between Merchants, and it has reference to the origin of the custom, and to nothing else. As to the word Esquire, every man is an Esquire who pleases to call himself Esquire; and the sensible part of mankind are leaving it off. But the matter for enquiry is, whether there be any existing law to direct the mode by which the forty-eight names shall be taken, or whether the mode be merely that of custom which the office has created; or whether the selection of the forty-eight names be wholly at the discretion and choice of the Master of the Crown-office? One or other of the two latter appears to be the case, because the act already mentioned, of the 3d of George II. lays down no rule or mode, nor refers to any preceding law--but says only, that Special Juries shall hereafter be struck, "_in such manner as Special Juries have been and are usually struck_."

This act appears to have been what is generally understood by a "_deep take in_." It was fitted to the spur of the moment in which it was pa.s.sed, 3d of George II. when parties ran high, and it served to throw into the hands of Walpole, who was then Minister, the management of Juries in Crown prosecutions, by making the nomination of the forty-eight persons, from whom the Jury was to be struck, follow the precedent established by custom between individuals, and by this means slipt into practice with less suspicion. Now, the manner of obtaining Special Juries through the medium of an officer of the Government, such, for instance, as a Master of the Crown-office, may be impartial in the case of Merchants or other individuals, but it becomes highly improper and suspicious in cases where the Government itself is one of the parties. And it must, upon the whole, appear a strange inconsistency, that a Government should keep one officer to commence prosecutions, and another officer to nominate the forty-eight persons from whom the Jury is to be struck, both of whom are _officers of the Civil List_, and yet continue to call this by the pompous name of _the glorious "Right of trial by Jury!_"

In the case of the King against Jordan, for publis.h.i.+ng the Rights of Man, the Attorney-General moved for the appointment of a Special Jury, and the Master of the Crown-office nominated the forty-eight persons himself, and took them from such part of the Sheriff's book as he pleased.

The trial did not come on, occasioned by Jordan withdrawing his plea; but if it had, it might have afforded an opportunity of discussing the subject of Special Juries; for though such discussion might have had no effect in the Court of King's Bench, it would, in the present disposition for enquiry, have had a considerable effect upon the Country; and, in all national reforms, this is the proper point to begin at. But a Country right, and it will soon put Government right. Among the improper things acted by the Government in the case of Special Juries, on their own motion, one has been that of treating the Jury with a dinner, and afterwards giving each Juryman two guineas, if a verdict be found for the prosecution, and only one if otherwise; and it has been long observed, that, in London and Westminster, there are persons who appear to make a trade of serving, by being so frequently seen upon Special Juries.

Thus much for Special Juries. As to what is called a _Common Jury_, upon any Government prosecution against the Author or Publisher of RIGHTS OF Man, during the time of the _present Sheriffry_, I have one question to offer, which is, _whether the present Sheriffs of London, having publicly prejudged the case, by the part they have taken in procuring an Address from the county of Middles.e.x, (however diminutive and insignificant the number of Addressers were, being only one hundred and eighteen,) are eligible or proper persons to be intrusted with the power of returning a Jury to try the issue of any such prosecution_.

But the whole matter appears, at least to me, to be worthy of a more extensive consideration than what relates to any Jury, whether Special or Common; for the case is, whether any part of a whole nation, locally selected as a Jury of twelve men always is, be competent to judge and determine for the whole nation, on any matter that relates to systems and principles of Government, and whether it be not applying the inst.i.tution of Juries to purposes for which such inst.i.tutions were not intended? For example,

I have a.s.serted, in the Work Rights of Man, that as every man in the nation pays taxes, so has every man a right to a share in government, and consequently that the people of Manchester, Birmingham, Sheffield, Leeds, Halifax, &c have the same right as those of London. Shall, then, twelve men, picked out between Temple-bar and Whitechapel, because the book happened to be first published there, decide upon the rights of the inhabitants of those towns, or of any other town or village in the nation?

Having thus spoken of Juries, I come next to offer a few observations on the matter contained in the information or prosecution.

The work, Rights of Man, consists of Part the First, and Fart the Second. The First Part the prosecutor has thought it most proper to let alone; and from the Second Fart he has selected a few short paragraphs, making in the whole not quite two pages of the same printing as in the cheap edition. Those paragraphs relate chiefly to certain facts, such as the revolution of 1688, and the coming of George the First, commonly called of the House of Hanover, or the House of Brunswick, or some such House. The arguments, plans and principles contained in the work, the prosecutor has not ventured to attack. They are beyond his reach.

The Act which the prosecutor appears to rest most upon for the support of the prosecution, is the Act int.i.tuled, "An Act, declaring the rights and liberties of the subject, and settling the succession of the crown,"

pa.s.sed in the first year of William and Mary, and more commonly known by the name of the "Bill of Rights."

I have called this bill "_A Bill of wrongs and of insult_." My reasons, and also my proofs, are as follow:

The method and principle which this Bill takes for declaring rights and liberties, are in direct contradiction to rights and liberties; it is an a.s.sumed attempt to take them wholly from posterity--for the declaration in the said Bill is as follows:

"The Lords Spiritual and Temporal, and Commons, do, in _the name of all the people_, most humbly and faithfully _submit themselves, their heirs, and posterity for ever_;" that is, to William and Mary his wife, their heirs and successors. This is a strange way of declaring rights and liberties. But the Parliament who made this declaration in the name, and on the part, of the people, had no authority from them for so doing; and with respect to _posterity for ever_, they had no right or authority whatever in the case. It was a.s.sumption and usurpation. I have reasoned very extensively against the principle of this Bill, in the first part of Rights of Man; the prosecutor has silently admitted that reasoning, and he now commences a prosecution on the authority of the Bill, after admitting the reasoning against it.

It is also to be observed, that the declaration in this Bill, abject and irrational as it is, had no other intentional operation than against the family of the Stuarts, and their abettors. The idea did not then exist, that in the s.p.a.ce of an hundred years, posterity might discover a different and much better system of government, and that every species of hereditary government might fall, as Popes and Monks had fallen before. This, I say, was not then thought of, and therefore the application of the Bill, in the present case, is a new, erroneous, and illegal application, and is the same as creating a new Bill _ex post facto_.

It has ever been the craft of Courtiers, for the purpose of keeping up an expensive and enormous Civil List, and a mummery of useless and antiquated places and offices at the public expence, to be continually hanging England upon some individual or other, called _King_, though the man might not have capacity to be a parish constable. The folly and absurdity of this, is appearing more and more every day; and still those men continue to act as if no alteration in the public opinion had taken place. They hear each other's nonsense, and suppose the whole nation talks the same Gibberish.

Let such men cry up the House of Orange, or the House of Brunswick, if they please. They would cry up any other house if it suited their purpose, and give as good reasons for it. But what is this house, or that house, or any other house to a nation? "_For a nation to be free, it is sufficient that she wills it_." Her freedom depends wholly upon herself, and not on any house, nor on any individual. I ask not in what light this cargo of foreign houses appears to others, but I will say in what light it appears to me--It was like the trees of the forest, saying unto the bramble, come thou and reign over us.

Thus much for both their houses. I now come to speak of two other houses, which are also put into the information, and those are the House of Lords, and the House of Commons. Here, I suppose, the Attorney-General intends to prove me guilty of speaking either truth or falsehood; for, according to the modern interpretation of Libels, it does not signify which, and the only improvement necessary to shew the compleat absurdity of such doctrine, would be, to prosecute a man for uttering a most _false and wicked truth_.

I will quote the part I am going to give, from the Office Copy, with the Attorney General's inuendoes, enclosed in parentheses as they stand in the information, and I hope that civil list officer will caution the Court not to laugh when he reads them, and also to take care not to laugh himself.

The information states, that _Thomas Paine, being a wicked, malicious, seditious, and evil-disposed person, hath, with force and arms, and most wicked cunning, written and published a certain false, scandalous, malicious, and seditious libel; in one part thereof, to the tenor and effect following, that is to say_--

"With respect to the two Houses, of which the English Parliament (_meaning the Parliament of this Kingdom_) is composed, they appear to be effectually influenced into one, and, as a Legislature, to have no temper of its own. The Minister, (_meaning the Minuter employed by the King of this Realm, in the administration of the Government thereof_) whoever he at any time may be, touches it (_meaning the two Houses of Parliament of this Kingdom_) as with an opium wand, and it (_meaning the two Houses of Parliament of this Kingdom_) sleeps obedience."

As I am not malicious enough to disturb their repose, though it be time they should awake, I leave the two Houses and the Attorney General, to the enjoyment of their dreams, and proceed to a new subject.

The Gentlemen, to whom I shall next address myself, are those who have stiled themselves "_Friends of the people_," holding their meeting at the Freemasons' Tavern, London.(1)

One of the princ.i.p.al Members of this Society, is Mr. Grey, who, I believe, is also one of the most independent Members in Parliament.(2) I collect this opinion from what Mr. Burke formerly mentioned to me, rather than from any knowledge of my own. The occasion was as follows:

I was in England at the time the bubble broke forth about Nootka Sound: and the day after the King's Message, as it is called, was sent to Parliament, I wrote a note to Mr. Burke, that upon the condition the French Revolution should not be a subject (for he was then writing the book I have since answered) I would call on him the next day, and mention some matters I was acquainted with, respecting the affair; for it appeared to me extraordinary that any body of men, calling themselves Representatives, should commit themselves so precipitately, or "sleep obedience," as Parliament was then doing, and run a nation into expence, and perhaps a war, without so much as enquiring into the case, or the subject, of both which I had some knowledge.

1 See in the Introduction to this volume Chauvelin's account of this a.s.sociation.--_Editor._