May 2, 2014
Thomas Paine Versus Edmund Burke, Part 2
In 1792, Thomas Paine was tried for seditious libel. In this essay, George H. Smith discusses the prosecution’s case.
Thomas Paine was tried in absentia and convicted of seditious libel on 18 December 1792. (He was in France at the time, having been elected by voters in Calais to serve in the National Assembly.) The indictment, which contained numerous quotations from Part Two of Rights of Man, describes Paine as “a wicked, malicious, seditious, and ill-disposed person” who, “being greatly disaffected to our said sovereign lord the now king, and to the happy constitution and government of this kingdom,” had “most unlawfully, wickedly, seditiously, and maliciously” devised, contrived, and intended “to scandalize, traduce, and vilify the late happy revolution” (i.e., the Glorious Revolution of 1688), which had been “providentially brought about and effected under the wise and prudent conduct of His Highness William, heretofore Prince of Orange, and afterwards King of England, France, and Ireland, and the dominions thereunto belonging….”
The indictment continues with a laundry list of similar charges. For example, Paine allegedly said that “the hereditary regal government of this kingdom was a tyranny”; and also, “by most wicked cunning, and artful insinuations…that the parliament of this kingdom was a wicked, corrupt, useless, and unnecessary establishment; and that the king, and the lords spiritual and temporal, and commons, in parliament assembled, wickedly tyrannized over and oppressed the subjects of this kingdom in general.”
Paine even had the temerity to criticize the English Bill of Rights (“An Act Declaring the Rights and Liberties of the Subject,” 1689), claiming that it was passed, not to secure the liberties of Englishmen, but as “a bargain which the parts of government in England made with each other to divide powers, profits, and privileges.” This passage from Rights of Man, in which Paine clearly had the English government in mind, is one of several cited to prove Paine’s seditious intent:
The fraud, hypocrisy, and imposition of governments [meaning, amongst others, the government of this kingdom] are now beginning to be too well understood to promise any long career. The farce of monarchy and aristocracy in all countries is following that of chivalry, and Mr. Burke is dressing for the funeral.
Thus did Paine exhibit “contempt of our said lord the king and his laws.” Part Two of Rights of Man was “against the peace of our said lord the king, his crown and dignity.”
After the lengthy indictment had been read, the prosecutor, Attorney-General Archibald Macdonald, presented his case. (Trial transcripts differ somewhat. I have drawn from the account in Speeches of Lord Erskine, Chicago, 1871). Macdonald began with an explanation of why Thomas Paine had not been prosecuted for writing Part One of Rights of Man. Although that publication was “extremely reprehensible,” it was not especially dangerous. Why? Because the high price made it generally inaccessible to the common people, so its sales were mainly “confined to the judicious reader” who would be able to refute Paine’s arguments “as he went along.”
Not so for Part Two, which had been printed in cheap editions by the tens of thousands (Paine himself plowed his considerable profits back into such reprints) and distributed among the common people—the “lower” in contrast to the “better informed classes.” According to Macdonald, such people (whom Edmund Burke had described as “a swinish multitude”) were incapable of spotting the flaws in Paine’s arguments. Their “minds cannot be supposed to be conversant with subjects of this sort”; yet, “with an industry incredible,” copies of Part Two were “thrust into the hands of all persons in this country, of subjects of every description.” So wicked was this conspiracy, Macdonald charged, that even candy and other sweets were wrapped in pages from Rights of Man in the hope that innocent children would read that seditious book. Given the conspiracy to “obtrude and force” Paine’s ideas among the common people, who were incapable of understanding and assessing the complex issues involved, something had to be done. And thus did Macdonald “put a charge upon record against its author.”
As Macdonald saw the matter, Paine was preaching anarchy.
I impute then to this book a deliberate design to eradicate from the minds of the people of this country that enthusiastic love which they have hitherto had for [our] constitution, and thereby to do the utmost work of mischief that any human being can do in this society.
Gentlemen, further I impute to it that, in terms, the regal part of the government of this country, bounded and limited as it is, is represented as an oppressive and abominable tyranny.
Thirdly, that the whole legislature of this country is directly an usurpation.
Again, with respect to the laws of this realm, which hitherto have been our boast, indiscriminately and without one single exception, that they are grounded upon this usurped authority, and are therefore in themselves null, or to use [Paine’s] own words—that there is little or no law in this country.
Then, gentlemen, is it to be held out to the community…that there is nothing in this society that is binding upon their conduct, excepting such portion of religion or morality as they may individually and respectively entertain?
Gentlemen, are we then a lawless banditti? Have we neither laws to secure our property, our persons, or our reputations? Is it so that every man’s arms are unbound, and that he may do whatever he pleases in the society? Are we reduced back again to the state of nature?
Before reading passages from Part Two to the jury, Macdonald reiterated his concern that Paine’s errors and fallacies, though easily discernible to educated readers, would be invisible to the ignorant masses. And this was precisely Paine’s intent, according to Macdonald. Paine deliberately used “artifice” to deceive uneducated readers—“an artifice gross to those who can observe it, but dangerous in the extreme to those whose minds perhaps are not sufficiently cultivated and habituated to reading, to enable them to discover it.”
Not long after Thomas Paine moved to France, he sent a letter to Attorney-General Macdonald about his impending trial, requesting that the letter be read to the jury. Macdonald obliged by reading Paine’s letter at the end of his presentation, commenting as he went along and putting the worst possible constructions on Paine’s remarks. Paine’s letter, Macdonald argued, showed “the intention with which the book was written, namely, to vilify the constitution, and to injure this country irretrievably.”
If Paine didn’t do himself any favors with his letter, he didn’t really care. (His attorney, the renowned Thomas Erskine, understood the damaging nature of the letter and vehemently objected to it being read during the trial.) Paine knew that the trial would be a sham and that, with a packed jury, he would be found guilty no matter what. The proximate purpose of the trial, Paine rightly believed, was to prevent him from ever visiting his native country again. Macdonald confirmed this suspicion near the end of his remarks to the jury: “If I succeed in this prosecution, [Paine] shall never return to this country otherwise than in vinculis [i.e., in chains], for I will outlaw him.”
In his letter “To the English Attorney-General, on the Prosecution Against the Second Part of Rights of Man” (11 Nov. 1792), Paine thumbed his nose at Macdonald by declaring himself “perfectly indifferent” to the outcome of the trial, since the verdict “cannot affect me either in person, property, or reputation, otherwise than to increase the latter.” Macdonald might as well “obtain a verdict against the Man in the Moon as against me.” So what, then, was the ultimate purpose of the trial? Paine had no doubt about this matter: the inevitable guilty verdict was meant to intimidate the people of England and so dissuade them from criticizing their government.
My necessary absence from your country affords the opportunity of knowing whether the prosecution was intended against Thomas Paine, or against the right of the people of England to investigate systems and principles of government; for as I cannot now be the object of the prosecution, the going on with the prosecution will show that something else was the object, and that something else can be no other than the people of England, for it is against their rights, and not against me, that a verdict or sentence can operate, if it can operate at all. Be then so candid as to tell the jury (if you choose to continue the process) whom it is you are prosecuting, and on whom it is that the verdict is to fall.
Paine cautioned that the “time is becoming too serious to play with court prosecutions, and sport with national rights.” The winds of freedom were blowing in England as well as in France, and just a year earlier infamous prosecutors in France, who had since become “terrible examples,” felt as secure as Macdonald did now. But Paine’s point, which was to warn Macdonald that he might eventually suffer the wrath of the people for his unjust actions, was misrepresented by Macdonald as a terrorist threat against him personally. He puffed himself up and pronounced his intention to do his duty, regardless of the consequences.
All I can tell Mr. Paine is this, if any of his assassins are here in London, and there is some ground to suppose there may be, or the assassins of those with whom he is connected; if they are here, I tell them, that I do in my conscience think, that for a man to die of doing his duty, is just as good a thing as dying of a raging fever, or under the tortures of the stone. Let him not think, that not to be an incendiary is to be a coward.