Volume III Part 8 (1/2)
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_.”