Liberty’s ‘Terror’
advance their cause. The radical barrister Robert Fergusson, for example, filed three lawsuits against the authorities. 50
One could contend, therefore, that these checks and balances hampered prosecution severely. Arguably, the particularities of the English legal system in the 1790s ensured its integrity, preventing the ‘rule of law’ from becoming weapon ized by an authoritarian, excessively litigious executive. The fact that, according to John Derry, the Lord Chief Justice judged ‘with admirable disinterestedness’, whilst Attorney- General Sir John Scott conducted proceedings in an ‘honest and upright’ manner, seems to confirm this further. 51 Nevertheless, the legal system was by no means incorruptible. Jury packing, whereby particularly anti- radical jurors were selected, was, though uncommon, not unheard-of. In England, Richard Phillips and William Winterbotham appear both to have been convicted by packed juries. With a different legal system, such tactics were employed more conspicuously in Scotland: at the Edinburgh trials of the radical ‘Scottish Martyrs’, the judge Lord Braxfield called for jurors to ‘come . . . and help us to hang ane o’ thae damned scoondrels’. 52 Equally dubious was the not- infrequent use of ‘special juries’. Requested regularly by the Attorney-General, these allowed the authorities to vet and remove up to 12 names from a list of 48 potential jurors, facilitating the exclusion of those sympathetic to the accused. This greatly heightened the chances of conviction: in Leicester, for example, the Town Clerk could state sincerely that in his municipality conviction was all but assured, noting that ‘both Grand and Petit Juries . . . [have] but one opini on among them here’. The ‘rule of law’ was thus not insusceptible to exploitation. The relative infrequency of such misuse is partly attributable to the aforementioned characteristics of the system, though another important factor is often overlooked: the personal restraint of Pitt and much of the political nation.
The elite mind: liberty and law
Were he tyrannically-inclined, Pitt could likely have ensured the stricter enforcement of his legislation. Whether through packing juries or prejudicing judges, there would have been little opposition to further ministerial meddling in the legal system. Within the Commons, the appetite for repression was considerable, with only 45 and 51 MPs voting against the Treasonable Practices Bill and the Seditious Meetings Acts respectively. 53 In the country at large, support for such interference would perhaps have been equally as robust, with influential factions of the aristocracy calling for more draconian measures: the Marquess of Buckingham, a former statesman, called for greater governmental involvement in prosecution when warning that if juries ‘would not do their duty . . . our ancient practice is inadequate to the crisis’. 54 Practical issues, such as the lack of staff at the Home Office and the financial side of proceedings, could likewise have been resolved had Pitt been more desirous of litigation.
Instead, the Prime Minister and his cabinet were far more concerned with balancing the delicate ‘union of liberty with the law’. 55 To Pitt and his ministers, the repressi ve measures were ‘a temporary sacrifice,
50 Ibid., 158. 51 Derry, William Pitt, 100. 52 E.P Thompson, The Making of the English Working Class (1963), 124. 53 Evans, 59. 54 Emsley, ‘An Aspect of Pitt’s “ Terror ”’, 172. 55 Duffy, 148.
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