Trial Of Thomas Paine
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The trial of
Thomas Paine Thomas Paine (born Thomas Pain; – In the contemporary record as noted by Conway, Paine's birth date is given as January 29, 1736–37. Common practice was to use a dash or a slash to separate the old-style year from the new-style year. In th ...
for
seditious libel Sedition and seditious libel were criminal offences under English common law, and are still criminal offences in Canada. Sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection a ...
was held on 18 December 1792 in response to his publication of the second part of the ''
Rights of Man ''Rights of Man'' (1791), a book by Thomas Paine, including 31 articles, posits that popular political revolution is permissible when a government does not safeguard the natural rights of its people. Using these points as a base it defends the ...
''. The government of William Pitt, worried by the possibility that the
French Revolution The French Revolution ( ) was a period of radical political and societal change in France that began with the Estates General of 1789 and ended with the formation of the French Consulate in November 1799. Many of its ideas are considere ...
might spread to England, had begun suppressing works that espoused radical philosophies. Paine's work, which advocated the right of the people to overthrow their government, was duly targeted, with a writ for his arrest issued on 21 May. Paine fled to France in September since he had been elected a member of the
National Convention The National Convention (french: link=no, Convention nationale) was the parliament of the Kingdom of France for one day and the French First Republic for the rest of its existence during the French Revolution, following the two-year National ...
in
France France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
. He was instead represented ''in absentia'' by Thomas Erskine, a noted lawyer and orator who was severely criticised by government supporters in the months leading up to the trial. At the trial,
Archibald Macdonald Sir Archibald Macdonald, 1st Baronet (13 July 1747 – 18 May 1826) was a Scottish lawyer, judge and politician. Early life He was the posthumous son of Sir Alexander Macdonald, 7th Baronet, and younger brother of the 8th baronet (see Baron Mac ...
, representing the prosecution, argued that Paine's work served only to inflame the populace and distribute radical ideas to those without the experience to understand them in context. Erskine's reply opened with a defence of the freedom of lawyers to represent whichever clients came to them, and it followed with an exposition of his views on the nature of the freedom of the press that argued that the publication of radical tracts served only to improve the government by highlighting its weaknesses and could not be seditious if published in good faith. Despite Erskine's speech later receiving a rapturous response, Paine was found guilty before Macdonald replied. The verdict was seen by the government as legitimising their repression of radicalism, and paved the way for the
1794 Treason Trials The 1794 Treason Trials, arranged by the administration of William Pitt, were intended to cripple the British radical movement of the 1790s. Over thirty radicals were arrested; three were tried for high treason: Thomas Hardy, John Horne Tooke a ...
, in which Erskine played a prominent role.


Background


French Revolution

After involving itself in the
Seven Years' War The Seven Years' War (1756–1763) was a global conflict that involved most of the European Great Powers, and was fought primarily in Europe, the Americas, and Asia-Pacific. Other concurrent conflicts include the French and Indian War (1754β€ ...
and the
American Revolutionary War The American Revolutionary War (April 19, 1775 – September 3, 1783), also known as the Revolutionary War or American War of Independence, was a major war of the American Revolution. Widely considered as the war that secured the independence of t ...
, France found itself financially ruined. Attempts to pass an economic plan to alleviate that in the
Estates-General of 1789 The Estates General of 1789 was a general assembly representing the French estates of the realm: the clergy (First Estate), the nobility (Second Estate), and the commoners (Third Estate). It was the last of the Estates General of the Kingdom o ...
led instead to the Third Estate forming the
National Assembly In politics, a national assembly is either a unicameral legislature, the lower house of a bicameral legislature, or both houses of a bicameral legislature together. In the English language it generally means "an assembly composed of the repre ...
. Succeeded, in turn, by the National Constituent Assembly and the Legislative Assembly, the various legislative bodies succeeded in rendering the monarchy
constitutional A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princip ...
, limited by democratic institutions. Attempts to remove the monarch entirely, although thwarted on 20 June 1792, led to the effective overthrow of
Louis XVI Louis XVI (''Louis-Auguste''; ; 23 August 175421 January 1793) was the last King of France before the fall of the monarchy during the French Revolution. He was referred to as ''Citizen Louis Capet'' during the four months just before he was ...
on
10 August Events Pre-1600 * 654 – Pope Eugene I elected to succeed Martinus I. * 955 – Battle of Lechfeld: Otto I, Holy Roman Emperor defeats the Magyars, ending 50 years of Magyar invasion of the West. * 991 – Battle of Maldon: T ...
. On 21 October, France was formally declared a republic. Britain was initially sympathetic to the revolutionaries of France, but the sympathy dissolved with the
execution of Louis XVI The execution of Louis XVI by guillotine, a major event of the French Revolution, took place publicly on 21 January 1793 at the ''Place de la RΓ©volution'' ("Revolution Square", formerly ''Place Louis XV'', and renamed ''Place de la Concorde'' in ...
and was replaced by hostility and a growing schism within the Whigs. While the
Foxite Foxite was a late 18th-century British political label for Whig followers of Charles James Fox. Fox was the generally acknowledged leader of a faction of the Whigs from 1784 to his death in 1806. The group had developed from successive earlier ...
branch argued for the Revolution as a source of general liberty, the administration of William Pitt became increasingly repressive, fearing the spread of
Jacobinism A Jacobin (; ) was a member of the Jacobin Club, a revolutionary political movement that was the most famous political club during the French Revolution (1789–1799). The club got its name from meeting at the Dominican rue Saint-HonorΓ© M ...
to the United Kingdom and the overthrow of the government. The split was reflected in the behaviour of the people. While some joined societies dedicated to parliamentary reform, others formed mobs under the banner of "Church and King" and attacked the homes of liberals and those who sympathised with the French Revolution, including that of
Joseph Priestley Joseph Priestley (; 24 March 1733 – 6 February 1804) was an English chemist, natural philosopher, separatist theologian, grammarian, multi-subject educator, and liberal political theorist. He published over 150 works, and conducted exp ...
. The
Association for Preserving Liberty and Property against Republicans and Levellers #REDIRECT Association for Preserving Liberty and Property against Republicans and Levellers #REDIRECT Association for Preserving Liberty and Property against Republicans and Levellers {{R from miscapitalisation ...
{{R from miscapitalisation ...
was formed and served as "an organised body of private agents engaged in ferreting out sedition wherever it raised its inky head".


Paine and the ''Rights of Man''

Thomas Paine Thomas Paine (born Thomas Pain; – In the contemporary record as noted by Conway, Paine's birth date is given as January 29, 1736–37. Common practice was to use a dash or a slash to separate the old-style year from the new-style year. In th ...
was a noted writer and political theorist whose work had influenced and helped drive the
American Revolution The American Revolution was an ideological and political revolution that occurred in British America between 1765 and 1791. The Americans in the Thirteen Colonies formed independent states that defeated the British in the American Revolut ...
. Having returned to England, he decided to write a book, ''Rights of Man'', addressing the arguments of
Edmund Burke Edmund Burke (; 12 January NS.html"_;"title="New_Style.html"_;"title="/nowiki>New_Style">NS">New_Style.html"_;"title="/nowiki>New_Style">NS/nowiki>_1729_–_9_July_1797)_was_an_ NS.html"_;"title="New_Style.html"_;"title="/nowiki>New_Style"> ...
, a prominent conservative strongly fearful of the French Revolution. The first part was published in 1791 and attracted no attention from Pitt's administration. The second, published on 16 February 1792, advocated, amongst other things, the right of the people to replace their government if they thought it appropriate. The work was an immediate success, selling a million-and-a-half copies, generated public support for various reform movements. It also brought Paine to the attention of the government and made him a subject to its crackdown. While Paine was visiting an aunt in Kent, Pitt had a writ issued against J.S. Jordan, Paine's publisher, prosecuting him for seditious libel, which carried a maximum sentence of life imprisonment. Paine returned to London and began to campaign for Jordan, finding him a lawyer and agreeing to pay his legal fees. Jordan, however, pleaded guilty and turned his files over to the court. With that additional evidence, a writ was issued for Paine on 21 May, charging him with the same crime. His trial date was set for 8 June, and later rescheduled for 18 December. Paine left England before he could be tried since he had been elected a member of the
National Convention The National Convention (french: link=no, Convention nationale) was the parliament of the Kingdom of France for one day and the French First Republic for the rest of its existence during the French Revolution, following the two-year National ...
in
France France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
, tasked with writing a new constitution. He departed England on 13 September, never to return, but he further infuriated the government remotely by republishing the ''Rights of Man'' and writing ''Letter Addressed to the Addressors of the Late Proclamation'' in which he defended his actions and beliefs against those who had chosen to side with the government. Paine was instead represented ''in absentia'' by Thomas Erskine, a famous lawyer and orator who served as
Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
to the Prince of Wales. As the trial date approached, both Erskine and Paine were targeted by vicious personal attacks. Paine's writ was followed by hundreds of loyal addresses, many of which targeted him, the burning of an effigy in Exeter and the banning of the sale of any of his books in Chester. Pamphlets slandering him were widely published, and both Paine and Erskine had their personal lives dug into.


Trial

The trial was finally held on 18 December 1792 in front of the
Court of King's Bench The King's Bench (), or, during the reign of a female monarch, the Queen's Bench ('), refers to several contemporary and historical courts in some Commonwealth jurisdictions. * Court of King's Bench (England), a historic court court of common ...
.
Lord Kenyon Lloyd Kenyon, 1st Baron Kenyon (5 October 1732 – 4 April 1802), was a British politician and barrister, who served as Attorney General, Master of the Rolls and Lord Chief Justice. Born to a country gentleman, he was initially educated in Ha ...
presided, with Erskine representing the defence, and the government represented by
Archibald Macdonald Sir Archibald Macdonald, 1st Baronet (13 July 1747 – 18 May 1826) was a Scottish lawyer, judge and politician. Early life He was the posthumous son of Sir Alexander Macdonald, 7th Baronet, and younger brother of the 8th baronet (see Baron Mac ...
,
John Scott John Scott may refer to: Academics * John Scott (1639–1695), English clergyman and devotional writer * John Witherspoon Scott (1800–1892), American minister, college president, and father of First Lady Caroline Harrison * John Work Scott (180 ...
and
Spencer Perceval Spencer Perceval (1 November 1762 – 11 May 1812) was a British statesman and barrister who served as Prime Minister of the United Kingdom from October 1809 until his assassination in May 1812. Perceval is the only British prime minister to ...
. Macdonald opened for the prosecution, expressing outrage at the publication of the ''Rights of Man'' and his concern that it would be made available to so many members of the public who were unfamiliar with political philosophy. He also read excerpts from a letter that Paine had written to him after his arrival in Paris, which contained "everything with which to inflame a jury". He then presented various witnesses, starting with Thomas Haynes, to testify that the works had indeed been published, and following with Thomas Chapman, who had printed the first part of the ''Rights of Man''. Chapman testified that he had intended to print the second part until he came upon a passage that "appeared of a dangerous tendency" and that, after an argument with a drunken Paine, he then returned the book. Erskine offered no evidence, admitting that Paine had written both the ''Rights of Man'' and the letter to Macdonald and instead chose to begin speaking. He opened with a statement against those who had pressured him to refuse Paine's case and stated, in a "brilliant exposition of the principles involved", that: He then moved on to addressing the freedom of the press and the limits on it, arguing that freedom of speech was necessary to identify the flaws in the structure of the government and the constitution, even if the author was mistaken about the flaws. As long as a writer intended only to enlighten others, prohibiting their speech would serve only to undermine the government by harming the opportunities to improve it. While Macdonald had argued that the book was problematic because it was circulated amongst all classes of society, Erskine argued that this was not the test of whether the ''Rights of Man'' was seditious. Instead, the test was whether Paine had exclusively dealt with what he believed to be in the best interests of England, its government and its people. While Paine's opinions ran counter to the existing system of government, Erskine argued that "opinion is free and... conduct alone is amenable to the law". For a libel claim to succeed, the
Libel Act 1792 The Libel Act 1792This short title was conferred by the Short Titles Act 1896, section 1 and the first schedule (32 Geo. III c. 60) (also known as Fox's Act) was an Act of the Parliament of Great Britain. At the urging of the Whig politician Cha ...
required the prosecution to show the publication was motivated by malice. Since Paine had intended only to help mankind, and this was a pure motive, he could not be guilty. Despite the speech, the jury found Paine guilty before Macdonald replied to Erskine's argument.


Aftermath

Although it failed to sway the jury, Erskine's speech was given a rapturous response. After he left the court, he was confronted by a mob that cheered him and shouted, "Damn Tom Paine, but Erskine for ever, and the Liberty of the Press; the King, the Constitution, and Erskine for ever". The crowd proceeded to unhitch the horses from his carriage and carry the carriage (with him inside) to his lodgings at
Serjeant's Inn Serjeant's Inn (formerly Serjeants' Inn) was the legal inn of the Serjeants-at-Law in London. Originally there were two separate societies of Serjeants-at-law: the Fleet Street inn dated from 1443 and the Chancery Lane inn dated from 1416. In 17 ...
. Over 30 transcripts or reports of the trial were printed, all of which contained Erskine's speech, and many editions emphasised Erskine's name and the theme of his speech on the title pages, using it to sell copies. Other reactions were less positive;
William Godwin William Godwin (3 March 1756 – 7 April 1836) was an English journalist, political philosopher and novelist. He is considered one of the first exponents of utilitarianism and the first modern proponent of anarchism. Godwin is most famous for ...
wrote a letter to Erskine shortly after the trial arguing that his statement that individuals were free to publish works attacking or criticising the Constitution "had a considerable share in prosecuting the verdict of guilty". Paine himself found Erskine's speech and conduct during the trial disappointing, expecting him to do more to defend the principles in the ''Rights of Man'' than he had. Pitt's administration took the guilty verdict in Paine's trial as a sign that further prosecutions for sedition were possible and so began many. In the 17 months following the trial, 11 publishers of the ''Rights of Man'' were prosecuted, receiving prison sentences of up to four years. They acted as a prelude to the
1794 Treason Trials The 1794 Treason Trials, arranged by the administration of William Pitt, were intended to cripple the British radical movement of the 1790s. Over thirty radicals were arrested; three were tried for high treason: Thomas Hardy, John Horne Tooke a ...
in which a dozen reformers were indicted for allegedly conspiring to bring about a revolution. Erskine played a prominent role in defending many of them, including
Thomas Hardy Thomas Hardy (2 June 1840 – 11 January 1928) was an English novelist and poet. A Victorian realist in the tradition of George Eliot, he was influenced both in his novels and in his poetry by Romanticism, including the poetry of William Word ...
,
John Horne Tooke John Horne Tooke (25 June 1736 – 18 March 1812), known as John Horne until 1782 when he added the surname of his friend William Tooke to his own, was an England, English clergyman, politician, and Philology, philologist. Associated with radica ...
and
John Thelwall John Thelwall (27 July 1764 – 17 February 1834) was a radical British orator, writer, political reformer, journalist, poet, elocutionist and speech therapist.
, all three of whom were acquitted.


References


Bibliography

* * * * * * * * * * * * {{DEFAULTSORT:Paine, Thomas Thomas Paine Trials in the United Kingdom 1792 in case law