Liberty’s ‘Terror’
primitive, solely agricultural society in which even the poorest Englishman was worse off. Though radical argument was often disingenuously mischaracterize d (Paine, for instance, was a ‘modern’ republican inclined towards commercialism), loyalist claims were never challenged effectively in the public sphere. Consequently, fear- mongering publications, such as William Black’s Reasons for preventing the French (1793) , were instrumental in securing support for the loyalist cause from both the propertied and popular classes. 36 Combined with exemplary trials and pro-government associations, state-sanctioned propaganda was highly effective in mobilizing loyalism against radicalism. The threat posed by Jacobins was combatted both physically and intellectually in the public sphere, inhibiting the development of rebellious designs by either individuals or organizations. Consequently, the need for after-the-fact punishment in the form of prosecution was lessened drastically.
The practicality of prosecution
However, even when there was a potential need, several practical constraints limited the capacity for prosecution. A lack of bureaucratic might, for example, considerably diminished the scale at which repressive legislation could be enforced. Home Office staff, holding the vital responsibility of liaising with and advising magistrates, never exceeded two dozen. 37 The guidance given by central government to local justices was, moreover, often unclear and imprecise. Passing judgement primarily on less severe charges, magistrates had little in the way of instruction, with only three pages on libel in Burn’s Justice of the Peace (1755) to which they could refer. Discussing the distribution of seditious tracts in 1792, the Essex magistrate Thomas Kynaston captured the concerns of many of his colleagues when he wrote that ‘as it is as yet undetermined how far they are to be legally cons idered as treasonable or libellous, we have been fearful of acting’. Confusion and inconsistency surrounding the financing of such cases further intensified this reluctance to act. Seemingly, some had the mistaken impression that the government would finance any prosecution. The Under Secretary of State was compelled in 1798 to notify magistrate Joseph Radcliffe that the government had ‘never thought it right to order a public prosecution for seditious words to be conducted [by] the Crown’, except in cases of ‘apparent danger’. For more menial offences, the onus thus fell on witnesses ‘too poor to bear the expense of prosecution’, or unenthusiastic magistrates like Radcliffe, who in 1803 refused to finance a prosecution for sedition, protesting that ‘the offence is not personal to me’. 38 The inherent nature of the legal system, at least in England, also deterred excessively zealous litigation. With trial by jury, the standard of proof was high and farfetched arguments, such as that of indirect, ‘constructive treason’ in the case of Thomas Hardy, were unconvincing. John Horne Tooke, for example, was acquitted of high treason by jury in just ten minutes. 39 Additional embarrassments, such as the inadequate evidence presented during the ‘Popgun Plot’ trials, 40 reinforced the need for restraint. In 1794, the Treasury Solicitor advised against a prosecution because it was ‘very doubtful whether a jury . . . cou ld be induced to find [the defendant] guilty and acquittal would be very mischievous’. This 36 See Gregory Claeys, ‘The French Revolution Debate and British Political Thought’, History of Political Thought , (Spring 1990), 59-80 37 Evans, 59. 38 Emsley, ‘An Aspect of Pitt’s “ Terror ”’, 160 -3. 39 Hilton, 71. 40 Emsley, ‘An Aspect of Pitt’s “ Terror ”’, 156.
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