Mr. JusticeBest.—You mean. Mr. Cooper, to offer some evidence of that, I suppose.
Mr.Cooper.—None, my lord, but the evidence already before the court and the jury, and the strong and necessary inference from the facts proved by the witnesses for the prosecution themselves.
Mr.Gurney.—There were many others lying on the counter.
Mr.Cooper.—What of that, does it follow that they must, therefore, have been sold? In the absence of all other proof of any publication, I have a right, I am forced to consider the Association as the only publishers.
Mr. JusticeBest.—In the evidence there is nothing like it.
Mr.Cooper.—What, gentlemen, is it a necessary conclusion, that because the pamphlets were lying in the shop, they must have been sold to other persons? The defendant but for their intrusion, for the sole design ofprosecution, might have sold no others. She might have changed her intention to sell. The pamphlets might have lain like bad verses untouched on the shop counter, till they were turned over for waste paper, and not a soul have ever known of their contents. The Association, therefore, by their insidious and plotted purchase for the sole object of prosecution, have provoked the act of publication, and they, who provoke crimes are the criminals, and ought to be the culprits; and those, who would punish the crimes that they have provoked, are devils, and not men; “the tempters ere the accusers.” When I contemplate such conduct—but I will not waste another word, or another moment of your time upon this miserable Association. If I had consulted my better judgment, I should have passed them in silence; thus much my indignation has wrung from my contempt.
I shall now, gentlemen, proceed to the examination of the libel, or rather that which is charged as a libel itself; and I shall begin with the last part so charged in the indictment, instead (as my learned friend has done) with the first; and let me beg your regard to one remarkable fact, that at the very point of the paper, at which the motives, and design of the writer present themselves to the reader; at that very point this indictment stops. It has not, as you will presently see, the candour to proceed a single syllable farther. I will now read the passage, “Reform,” it says, “will be obtained when the existing authorities have no longer the power to withhold it, and not before, we shall gain it as early without petitioning as with it; and I would again put forward my opinion that something more than a petitioning attitude is necessary.” This it has been urged to you, with great emphasis, is an excitement to insurrection; and you are called upon todraw that inference, though the author immediately afterwards disavows, expressly disavows any such intention. But even, if the words stood alone, I deny that you are compelled to such a construction. Gentlemen, will any one venture to say, that I, standing in this place, and in the very exercise of my profession, mean any thing, but what is strictly legal, when I say myself, that supposing reform in Parliament be necessary, something more than mere petitioning is requisite to obtain it? But in saying this, do I mean any thing violent or illegal? Heaven forbid; No: but I would have societies formed, and meetings held for the purpose of discussing that momentous subject. If reform be necessary, and the desire of a great majority of the country, I would have that desire shown unambiguously to the legislature, by resolutions and declarations at such meetings. Who will deny such societies and meetings to be legal? Yet, such meetings would be more than mere petitioning, much more: and the author means nothing beyond this; for I say, that in the absence of all other criteria, the only means of judging of a writer’s intentions are his words. Look then at the words which immediately follow the assertion, that “something more than a petitioning attitude is necessary.” If those words had been included in the indictment, this prosecution must have been at an end upon merely reading the charge, and those words, therefore, the Association avoided, as cautiously as they would the poison of a viper. They felt, that though the indicted words standing alone might perhaps admit of a doubt for a moment, yet the context completely explained them, and gave an air of perfect innocence to the whole passage. But you shall judge for yourselves: I will read the passage,—“Something more than apetitioning attitude is necessary. At this moment I would not say a word about insurrection; but I would strongly recommend union, activity, and co-operation. Be ready and steady to meet any concurrent circumstance.” Now what kind of union, activity, and co-operation does he mean? Is it military association, marches, and attack? No. Hear the writer’s own words again:—“The Union Rooms at Manchester and Stockport are admirable models of co-operation, and are more calculated than any thing else to strengthen the body of reformers.” For what do the reformers assemble in these rooms? How do they co-operate there? Is it to consult how they shall arm and organize themselves, and seize with a violent hand the reform which they despair of gaining by petition? Nothing like it. The writer himself still tells you his meaning. “Here (that is at the Manchester and Stockport rooms) children are educated, and adults instruct each other. Here there is a continual and frequent communication between all the reformers in those towns.” This, then, and no other, is the co-operation which the author intended, and proposes. If any man, taking the paper in his hand and reading the whole paragraph, can say that any thing more is meant, to his reason I should cease to appeal. I should sit down in silent despair of making any impression on such an understanding; but you, gentlemen, I ask you, adding the words which I have read to the broken passage, which is insidiously separated and included in the indictment, can there be a doubt remaining in any rational and unprejudiced mind, that the union and co-operation called for by this Address from those who desire reform in Parliament, is nothing more than the establishment at other places, of rooms, on the model of those at Stockport and Manchester;where children and adults are instructed, and information disseminated on the subject of Parliamentary Reform. And if this is all that is meant, there is an end of this part of the indictment; for it cannot be libelous to recommend in a writing the people to do that, which it is perfectly legal to do.
With regard to reform itself, I cannot know, whether any of you are advocates for it or opposed to it, nor is it requisite that I should; I do not ask you to think or say with me, and others, that reform in Parliament is necessary, and that nothing but reform can save the country from ruin; all that I ask of you is to allow me and others credit for the conscientiousness of our opinions, and charitably admit, if yours are opposite, that though we may be mistaken in our judgments, we must not of necessity be criminal in our intentions. I leave you and every man to the free exercise of your thoughts, and the free enjoyment of the conclusions to which they lead you. Let this liberality be reciprocal, and concede the same freedom to others which you demand for yourselves. I have always thought that a difference in religious and political matters need not and ought not to create hostility of feeling, and sever those, who would otherwise be friends. I myself enjoy the friendship of several, who entertain very different opinions from mine upon those subjects; and yet that difference has not, and never shall, on my part, at least, disturb our friendship. In all questions in which you cannot have mathematical demonstration, there may be fair, honest, conscientious difference of opinion; and you cannot have geometrical proof in questions of religion, politics, and morals. The very nature of the subjects altogether excludes it. To expect it, as Bishop Sanderson says, would be as absurd as to expect to see with the earand to hear with the eye. So various are our opinions upon these subjects, that we not only differ from one another upon them, but at different times we find we differ from ourselves; and, as another learned churchman, in more recent times, has said, what could be more unjust than to quarrel with other men for differing in opinion from him, when no two men ever differed more from one another than he at different times differed on the very same subject from himself. Under this state of uncertainty in human judgment, I call upon you, and I am sure I shall not call in vain, to be slow to condemn the opinions of others, because they are different from your own; and, therefore, if any of you should think reform in Parliament needless, or even dangerous, I still call upon you (though the writer of this paper should be a reformer, and even though he is called in reproach a radical reformer) not to condemn the defendant in this case through prejudice against the author’s opinions; but solely to enquire (be those opinions ever so just or ever so absurd) whether he is sincere in entertaining them; for, if he be (as I shall show you presently from the highest authority) the law does not consider him criminal. Try him by this test, and this test, and this alone; and then, whatever may be your verdict, you will be free from reproach, and secure to yourselves quiet by day, and sound slumbers by night; for you will have discharged your duty to yourselves, to the defendant, and to the country.
With regard, gentlemen, to the other part of the alleged libel, I must bespeak your patience; for I am afraid that I shall be drawn by my comments upon it into considerable length. (I am afraid, gentlemen, I weary you, and I am sorry for it. If I had had leisure, I would have condensed my observations; but, under the circumstances I havedisclosed to you, I hope you will forgive me for occupying more of your attention than I would otherwise have done. I really have not had time to be short.) To return to the passage in the paper, which is first charged as a libel: it denies the existence of any constitution in Great Britain. Now whether there be anything malicious and criminal in this, depends entirely upon the meaning which the author attaches to the word constitution. I confess it is a word that gives me a very indistinct and uncertain idea; and I believe that if any of you were now suddenly to ask yourselves what you understood by it, you would find you were not very ready to give yourselves an answer; and if you could even satisfactorily answer yourselves, you would find if you were to go further and question your neighbour, that he would give you a very different definition from your own. In itself it means nothing more than simply a standing or placing together; and it really seems to me rather hard and venturous to indict a man for denying the existence of something (whatever it may be) expressed by the most indefinite term in our whole language. But, if we were agreed upon the ideas which should be attached to the word, let us examine whether, allowing for a certain freedom of expression and the earnest eagerness with which a man who is sincere in his doctrines enforces them in his composition, a writer may not, without being exposed to a charge of criminal intention, assert that there is no constitution in this country. And let us take with us to this examination, that a man is not to be too strictly tied to words, when under the impulse of warm and keen feelings, and when the thoughts flow, as it were, at once from the heart into the pen, he sits down to excite his countrymen to their good, or warn them of their danger. You must not think to bind him down with the shacklesof verbal criticism, when he is too intent upon his theme exactly to measure his expressions. Now, that the writer of this paper is sincere in his opinions, whatever the quality of those opinions is, it is difficult not to believe. He published his opinions, though he exposed himself to punishment for them, and he perseveres in them while he is suffering a heavy punishment. You can have no more convincing proof of sincerity than this. But, what if a political writer has, in the warmth of composition, asserted that in England we have no constitution, who can misunderstand him? We cannot suppose he meant that there was a dissolution of all law and government; because we know and feel the contrary. Few would have occasion to ask him what he meant. If, however, he were asked, he should explain by telling you, that the constitution in theory is very much corrupted from the practice; and I and you, and every person must admit, that the practice has strayed wide from the theory; and, forced to admit this, I assert with a writer, who (whatever was thought of him once, and whilst those who were the objects of his reproach still lived) is now the pride and boast of the country, both for the supreme elegance and the principles of his political writings, that “wherever the practice deviates from the theory so far the practice is vicious and corrupt.” Now, saying no more than this, and when it would have been the merest stupidity to understand him literally, how can the writer be convicted of a design to bring the Government into hatred and contempt, because he has expressed his meaning by saying figuratively “there is no Constitution.” But he has previously said, that to talk about the British Constitution is, in his opinion, dishonesty. I know he has. I did not mean to pass it, I will not, gentlemen, shrink from any part ofthe passage, for I feel that it cannot bear with any heavy pressure against me. “To talk of the British Constitution is, in my opinion, a sure proof of dishonesty.” Here it will be seen that the only exception that can be taken to this sentence is the mere mode of expression. If a man were to talk to me of the Constitution of England, and, by omitting all notice of its aberrations in practice from its theory, by which he would leave it free to me to suspect, that he would insinuate that the theory and the practice were the same, I should certainly say, that he was exhibiting want of candour. I might, perhaps, think dishonesty, rather too strong a term for such conduct; but I should not scruple to say, that he was disingenuous, and hewouldbe guilty of a species of dishonesty; for all the disingenuousness is to a degree dishonest; and, since the meaning is the same, why should we quarrel at a mere difference of expression? The author proceeds to say, “If we speak of the Spanish Constitution, we have something tangible; there is a substance and meaning as well as sound.” So that it is clear he was saying, that we had no Constitution in comparison with that just promulged by the Spanish nation. The Spaniards we know have recently gained by their own glorious efforts, that political liberty to which they had been so long strangers; and their Legislature had just published a code of fundamental laws, few in number, but most comprehensive in securing freedom to the people, for whom they are framed. They are (comparatively with the laws of countries, in which the frame of government is old, and complicated) not numerous, but the mind may collect them almost at a glance, and possess itself of them with a single effort of the understanding. In this view of the subject, without doubt, the Constitution of Spain is tangible; and in this sense he isjustified in asserting that our own Constitution is not tangible; for is it not notorious that our laws are spread through so many Acts of Parliament of doubtful and difficult construction, and so many books of reports, containing the common law of the land (and in which there are no few conflicting decisions) that the whole life of a man does not suffice to achieve a knowledge of them. So multifarious and infinite and perplexed is our code, that even amongst those whose profession is the law it is not possible to meet with an accomplished lawyer.
The defendant here fainted, and was taken out of court. After the interruption which this circumstance occasioned had subsided, Mr.Cooperproceeded—
Gentlemen, I lament in common with many others that this evil has attended an extended degree of civilization and trade—that our laws have become too numerous and complicated for the capacity of the mind. That they are so, is not my opinion alone, but that of the Legislature itself. I believe that a committee of the Houses of Parliament has been sitting and still sits for the object of reducing our laws to some limit in their number and some order as to their design; without which our Constitution, to use the words of the writer, cannot be tangible; a tangible shape, at present it does not possess, for that cannot be tangible which spreads itself over a boundless extent, that eludes, and defies the grasp of the human intellect.
Having disposed of thus much of this paragraph, I come to the words, on which my learned friend, Mr. Gurney, laid such extreme stress in his address to you. “Our very laws, are corrupt and partial both in themselves, and in their administration. In fact corruptionas notorious as the sun at noon-dayis an avowed part of the system, and is denominated the necessary oil for the wheels of Government.It is a most pernicious oil to the interests of the people.” This is strong language I admit, and would perhaps be censurable as imprudent, at least, if the very expressions themselves, which the writer uses, did not guide us directly to the facts to which he alludes, and explain the passage. He alludes most manifestly to the celebrated exclamation of a person at the time that he was in the seat of office, the first commoner of the realm, and who instead of being reproached for his words has retired from his office with the honours which he has merited for his services in it. It transpired in the House of Commons, that seats had been trafficked for as articles of sale and purchase for money.
Mr. JusticeBest.—Is that a subject at all relating to the question which is now before the jury?
Mr.Cooper.—My Lord, I am going to use the declaration of the Speaker, as a matter of history, and to show, that the words charged as criminal were an allusion to it; and if so, were not criminally used. I do not wish, nay I would avoid the introduction of any improper or inflammatory topics. I would not attempt to serve my client by such means. When it was exposed, that there had been certain trafficking for seats in the House of Commons, the Speaker used these words (and it is to them, I would show the jury, the writer of the paper alludes), “practices are as notorious as the sun at noon-day at which our ancestors would have started with indignation,” and that gentlemen—
Mr. JusticeBest.—Will you allow me to ask you Mr. Cooper, I want to know where you get that from.
Mr.Cooper.—My Lord, from all the reports of the speeches in the newspapers of the day which were never contradicted.
Mr. JusticeBest.—I beg to state, that, whatever passed in Parliament, cannot be questioned anywhere else. Whateverthe Speaker said in Parliament, he was justified in saying. But I have no means of knowing, nor have you, whether he ever did say so or not.
Mr.Cooper.—I am not questioning anything he said in the House of Commons—
Mr. JusticeBest.—If Mr. Abbot had said it any where else, it would have been a libel on the constitution; if he said it there, we cannot enquire about it; it would be a breach of privilege.
Mr.Cooper.—Your Lordship asked me, how I came to know that he said so. My Lord, I have seen it in all the recorded speeches of the House of Commons in the published debates in Parliament, and—
Mr. JusticeBest.—I say there are no recorded speeches of the House of Commons to which we can listen or attend.
Mr.Cooper.—Certainly, there are no records of speeches in the House of Commons in the sense in which the proceedings of courts of law are records, nor is there in that sense any recorded speech of Cicero or of Lord Chatham; but, my lord, will your lordship say, that I am not entitled in my address to the jury to use that which has been reported as part of a speech of Lord Chatham or of Cicero; because there are no records filed, as in the courts of law, of their speeches! I submit that they are matters of history; and that, as such, I am at liberty to use them.
Mr. JusticeBest.—I tell you, Mr. Cooper, what the distinction is. If you publish, that, which may be said to be a speech of Lord Chatham’s, and it may be an accurate report of his speech, you may be guilty of publishing a libel, though the place, in which that speech was delivered gave a liberty to the speech. You know it has been so decided in my Lord Abingdon’s case, who published his own speeches.
Mr.Cooper.—That, my Lord, was a libel upon a private individual. I say—
Mr. JusticeBest.—I say you have no knowledge of anything which is said in the Houses of Parliament.
Mr.Cooper.—With great submission I re-urge it as a matter of history, and as such I would use it whether the fact is ten years old or ten thousand, I submit makes no difference.
Mr. JusticeBest.—Mr. Cooper, I have told you my opinion; if you don’t choose to submit to it, the best way will be to go on, perhaps.
Mr.Cooper.—With the utmost deference to your Lordship—
Mr. JusticeBest.—The Court of King’s Bench has decided this very point, within the last two terms, against what you are contending for. If your own opinion be the better one, proceed.
Mr.Cooper.—Gentlemen, I was going to say, when the Speaker of the House of Commons exclaimed (I will not repeat particularly upon what occasion) that our ancestors would have started with indignation at practices which were “as notorious as the sun at noon-day,” can you have any doubt in your mind that the writer of this pamphlet alluded to that exclamation? Why look at the passage, see, he uses the same words. “Corruption is as notorious as the sun at noon-day” is his very expression. He is citing the Speaker’s own words, and cannot but be supposed to be speaking of the very same facts. It was proposed, on that occasion, to impeach a nobleman, whom I will not name and need not, for those practices. This however was resisted by almost all, and even by some who were friendly to Parliamentary reform, and politically adverse to the noblemen, to whom I allude,not, indeed, upon any pretext of his innocence of the practices, charged against him; but on the sole ground that those practices were so general and notorious that they would condemn themselves in sentencing him; and among so many guilty, it would be unjust to single him alone for punishment. Yes; although they were practices, at which our ancestors would have started with indignation, they were the practices of numbers, and the practices were as notorious as the sun at noon-day; and, therefore, the proposition of impeachment was rejected, and rightly; for as it has been said by the first speaker of all antiquity, we cannot call men to a strict account for their actions, while we are infirm in our own conduct. If this is the state of one branch of our Legislature, and if it is avowed, and by those who would conceal it, if concealment were possible (but it would be as easy to conceal the sun). Good God! shall a man be prosecuted and pronounced guilty, and consigned to punishment for affirming that our laws are corrupt; that there is corruption in the system, and that corruption is an avowed part of that system? when in so affirming he only echoes the exclamation of the Speaker himself, that “practices, at which our ancestors would have started with indignation, were as notorious as the sun at noon-day?” Why, if as the Speaker declared, such practices exist, and affect the most important branch of the Legislature, I myself say, that there is corruption in the very vitals of the Constitution itself. In such a state of things, to talk of the Constitution, is mockery and insult; and I say there is no Constitution. What, then, has the writer of this pamphlet said more than has been avowed by the highest authority, and everybody knows? And now, can you lay your hands on your hearts, and by your verdict ofGuilty send the defendant to linger in a jail for having published what the author has, under such circumstances, written?
Having thus concluded my observations on the passages selected from this paper for prosecution, I will, for I have a right to read it all if I please, direct your attention to another part of it. Let us examine whether other passages will not convince us, that (though he should be mistaken in some of his opinions) the whole was written with a single and honest intention. I myself never read a paper, which, on the whole, appeared to be written with more candour. There is an openness that does not even spare the writer himself. Indeed, with regard to his opinions, peculiar and mistaken as he may be, he seems himself, sincerely to believe in them. He is now suffering for those opinions, and suffering with a firmness, which to those who think him wrong, is stubbornness; and, thus, he affords another proof of the extreme impolicy of attempting to impose silence by prosecutions, and extort from the mind the abjuration of opinions by external and physical force. It never succeeds; but, on the contrary, works the very opposite effect to that which is its object. As the author from whom I have just now cited says, with extreme force and equal beauty, “a kind of maternal feeling is excited in the mind that makes us love the cause for which we suffer.” It is not for the mere point of expression that it has been said, the blood of the martyrs is the seed of the church. It is not theological doctrine alone, that thrives and nourishes under persecution. The principle of the aphorism applies equally to all opinions upon all subjects. There is widely spread through our nature an inclination to suspect that there is a secret value in that from which others attempt to drive us by force;and from this, joined to other powerful motives, the persecution of men for their tenets, whatever they may be, only draws their attachment closer, and rivets their affections to them. Every effort to make them abandon the obnoxious doctrine renders them more steadfast to it. The loppings, which are designed to destroy, serve but as prunings, from which it shoots with increased vigour, and strikes its root still deeper. Has it not always been seen, that persecution has bred in men that stubborn resolution, which present death has not been able to shake; and, what is more, an eagerness to disseminate amongst others those principles for which they have themselves been prosecuted and pursued. I therefore, from my very soul, deprecate every species of persecution on account of religious and political opinions, not only from its illiberality, but bad policy; and I am full of hope, that you will by your verdict to day show, that you have an equal aversion to it.
To recur, gentlemen, to the pamphlet; I submit to you that there is a general air of sincerity in the language of the writer throughout the composition, which obliges us to believe, that, however mistaken you may think him in his opinions, he is honest in his intentions. He says in another part of the address “Every government must derive its support from the body of the people; and it follows, as a matter of course, that the people must have a power to withhold their supplies.” Which is very true: for, where there is a shadow of political liberty, a revenue can only be raised by taxes to which the people have consented: it being allowed that where there is taxation without representation tyranny begins. Now, if the writer really believes that there are corrupt practices in the Government, who can blame him, for proposing (byabstinence from those articles which are taxed and yield a revenue so large that it supports a system of misgovernment) to compel our rulers, by a diminution of their means of undue influence to a regard to economy and a just administration? I know, indeed, that this doctrine is considered offensive; nor am I prepared to say with confidence that under the wide construction which has been given to the law against conspiracy, persons who were to combine to force such a change by abstaining from all exciseable articles might not be indicted for it as a conspiracy. It may, for aught that I know, be even indictable to unite and desist from using tea, tobacco and snuff to coerce the government into reform by a reduction of the revenue raised from those articles; but you are not sitting there to try an indictment for a conspiracy; and, therefore, though this passage may not be pleasing, I read it, without hesitation, because it leads to others, which I think demand your consideration and attention. “We must deny ourselves, he proceeds to say, those little luxuries in which we have long indulged. Why not? Who gains, and who loses by this denial? We do not rob ourselves, we only check our passions; and, in doing this, we strengthen both our bodies and our purses. I would appeal to those, who, for the last year, have had the courage and the virtue to abstain from the use of malt and spirituous liquors, foreign tea and coffee, tobacco, snuff, &c., whether they do not feel satisfaction from the change of habit; and whether they are not better in health and pocket, without the use of these things.” This, gentlemen, is a sermon on temperance, and I wish it were generally followed. I apprehend that this is not only innocent, but highly meritorious. For my own part I shall maintain the opinion (though ten thousand Mandevilles should write, and imagine they have provedprivate vices public benefits) that it is infinitely more important and beneficial that the mass of the people should be temperate and healthy, though poor, than that an immense revenue should be collected from their addiction to sensual pleasures and vicious luxuries. I say vicious, because all moral writers concur in calling those sensualities vices, as free indulgence in them leads to a state of total dissipation of mind under which scarcely any profligacy seems a crime. The writer continues: “There are a variety of other things which are heavily excised, the use of which might be prudently dropped; and which are not essential either to the health or comfort of mankind. Speaking for myself, I can say, I do not recommend more than I practise; and that my food for the last year has consisted chiefly of milk and bread and raw native fruits. I have been fatter and stronger than in any former year of my life; and I feel as if I had obtained a new system by the change.My natural disposition is luxurious, and under a better system of government, or when this rational warfare was not called for, I should at all times live up to my income.” And here, gentlemen, I beg you to mark, that so unreserved, so much in earnest is the writer in his object, that he does not attempt even to conceal his own faults, and weakness. I ask, whether you have ever found men, who were acting and writing with duplicity and sinister intentions, reproach or expose themselves? But the writer of this paper practises no reserve; he conceals nothing, though the disclosure should be against himself, but
Pours out all himself as plain,As dowright Shippen, or as old Montaigne.
Pours out all himself as plain,As dowright Shippen, or as old Montaigne.
He concludes this exhortation to temperance with thissentence, “Shrink not then you male and female reformers from this virtuous mode of warfare; for to conquer our injurious habits and our enemy at the same time is a double conquest, to obtain which both man and woman and child can very properly assist.” I read this conclusion of the paragraph, gentlemen, and I beg your attention to it, because it makes it manifest that the change which the writer proposes to compass is a change by a moral operation through legal and peaceful means; and that he never dreamed of inculcating, as it is insinuated, any appeal to violence and arms.
I have now, gentlemen, concluded all the particular observations which I had to address you upon this paper; and having shown you that by the least liberal construction, no criminality of intention can be imputed to the author, how can I doubt of your acquittal? For it is your duty to construe the author’s words so as to give them an innocent meaning if they will bear it, and not come to a conclusion of guilt from them unless you shall be convinced that they will not possibly admit of any other than a criminal sense. That he had no criminal design, is apparent enough, even from the indicted passages; and by reading the context is put beyond the possibility of a doubt. There are many other passages as well as that, which I have read, which tend equally to the inference of the sincerity with which the whole paper was written, but which I will not consume your time in reading, as you will have the whole before you when you deliberate on your verdict, and they must themselves strike your attention.
Now, gentlemen, I cannot tell, how you feel, but I have no opinion more deeply impressed on my mind than that the prosecution of such political papers as this before you, as state libels, is perfectly unnecessary; and, so farfrom doing good, is, if any mischief can be produced by such writings, mischievous. Prosecution excites the public regard, and a curiosity that will not rest till it is gratified, towards that which, under silent neglect, would hardly gain attention; if indeed, it did not drop quite dead-born from the press. But I deny wholly that any political writings, whatever their nature, have done or ever could do any harm to political society. Let those who advocate the contrary opinion show you a single instance of a state injured or destroyed by inflammatory political writings. The republic of Athens was not thrown down by libels: no—she perished for want of that widely diffused excitement to courage, and patriotism, and virtue, which a press perfectly free and unshackled can alone spread throughout a whole people. She was not ruined by anarchy into which she was thrown by seditious writings, but because, sunk in luxury and enervated by refinement, it was impossible to rouse the Athenians to the energy and ardour of facing and withstanding the enemy in the field. Rome too—as little was her gigantic power levelled with the dust by libels, but perished from the corruptions of the tyrannical government of the Emperors, which drained the nation of all its ancient virtue, and bred the slavery which produces an utter debasement of the mind (and which never could have been, if a free publication of political opinion had been suffered), and thus she fell an easy conquest and prey to the barbarians and Goths. Both these renowned states fell, because their governments and the people wanted the goad of a free press to excite them to that public spirit and virtue, without which no country is capable of political independence and liberty. How our ears have been dinned with the French revolution, and how often have we been gravely told, that it was caused by the writings of Voltaire, Rousseau, andHelvetius. Ridiculous! I have read the history of those times and have read it very differently. I am forced to understand that the inextricable and utter embarrassment of the French finances, the selfish and insolent luxury of the nobles, the desperate wretchedness of the lower orders of the people, and the profligate licentiousness of the Court, were the causes and the only causes of that great event. If the finances of that country had been in order, the nobles moderate, the poor unoppressed, and any public spirit in the Government, Voltaire, and Helvetius, and Rousseau, might have racked their brains for thought, and written themselves blind, before they would have raised a single arm, or even excited a single voice to exclaim for change. A perfect freedom of the press would, indeed, have prevented the causes which roused the people to assert themselves; but the causes once in existence, all the writers in the world could not one moment have either retarded the revolution or accelerated it. It is not the representations of a political writer that can alter the nature of things. Whose ingenuity, and wit, and eloquence, will persuade me that I am cold when I am warm; that I am hungry when I am full; a slave when I am free; and miserable, when I feel myself happy? While such is my state, what writings would drive me into insurrection? And if the contrary is my condition, what stimulus could I want to free myself from it? What persuasions could possibly even delay my utmost efforts for a change? It is not by the prosecution of political libels that the stability of a government and domestic peace is ever secured. No; let the Government pursue its only end, the public good, and let every man, or at least a large majority, have more or less an interest in the preservation of the State, and then all the writers in the country, from the highest downto the obscurest corners of Grub-Street, may wear their fingers to the roots of the nails with their pens, before they will work the slightest discontent in the public or change in the government. Nothing, gentlemen, is more common with writers and speakers, than to discourse of states by figures drawn from the government of a ship; and I will tell you what I once heard from a friend of mine who has served his country in our navy, and which at the time most forcibly struck my mind. “When I was stationed in the Mediterranean (he said, speaking of the occurrences of his professional experience) we made captures of the vessels of all countries except the Greeks, but we never captured them; for they were always vigilant, active, and brave. We never surprised them; if we chased them, they escaped us; and if we attempted to cut them from the shelter to which we had driven them, we were repulsed.” What created this difference? By the rules of navigation amongst the Greek islands, every man, from the captain down to the lowest cabin-boy, has, more or less, a share in the vessel. They watched, therefore,—they laboured and fought for their own interest and property. Let those who sit at the helm and govern us imitate this policy. Let them extend the elective franchise; let them restore us to a condition in which industry and skill may find employment and be secure in their gain. Give men an interest and ownership in the state, and it shall never be upset by libels; not a seditious or mutinous voice shall be heard; and what foreign enemy shall dare to lift a hand against us? But keep the people excluded from their share in the representation, and pressed down by taxation, and millions of prosecutions against libels will not save the country from sinking in ruin.
Let me now, gentlemen, call your attention back to theargument I used almost at setting out in my address to you, by which I attempted to maintain that you are not bound, whatever you may judge the intention of the writer to have been, to pronounce a publication a libel by your verdict, if you should be of opinion that such a publication cannot be mischievous, and that prosecution of it is unnecessary. If it can do no harm, it is no nuisance at common law to have written a paper, whatever its nature may be, and if it could be no nuisance, you are bound in duty to acquit the defendant, who is only the publisher. The doctrine for which I am contending with regard to this paper, has been acted upon by the government of one free country, with regard to all political writings, whatever their intention or nature. The Legislature of the State of Virginia has actuallylegislated againstsuch prosecutions, and declared them totally unnecessary.
Mr. JusticeBest.—That is not the law of this country.
Mr.Cooper.—I only use it my Lord as part of my speech in argument.
Mr. JusticeBest.—I will tell you what I am bound to tell the jury. I shall tell them that we have nothing to do here with what may be expedient, we are not legislating here—the question is whether this is a proper prosecution?
Mr.Cooper.—I feel that it is exceedingly important to use as matter of argument, and as a part of my speech. If your Lordship stops me I know that it will be my duty to submit.
Mr. JusticeBest.—All this is only drawing them away from the question they are to consider. With the propriety of instituting the prosecution they have nothing to do; the only questions they have to determine, are—Is that paper a libel, and has the defendant published it? An Act of the Assembly of Virginia has no validity in this country.
Mr.Cooper.—My Lord, I do not cite it as a statute of this realm to which we are bound to pay legal attention—
Mr. JusticeBest.—We are bound to pay no attention to it.
Mr.Cooper.—My Lord, I only use it to show that other men have been of the opinion which I have expressed to your Lordship and the jury. If your Lordship insists on my not addressing myself to the jury upon it, I know too well the deference that is due from me to the Bench to persevere in attempting it.
Mr. JusticeBest.—No, I don’t insist upon it. But, Mr. Cooper, can you deceive yourself so much as to think this has anything to do with the question? I shall tell the jury to pay no attention to it.
Mr.Cooper.—Your Lordship will make any observations your condescension may lead you to make, as well on this as on any other part of the defence. I believe the course which I wish to take was taken on a similar occasion by a man who united the soundest and correctest judgment with the brightest imagination—I mean Lord Erskine—he—
Mr. JusticeBest.—I knew him for thirty odd years at the bar, and I never in all my life knew him address himself to points such as these—that is all I can say. I know what is due to the liberty of the bar, and I shall cherish a love for its freedom to the latest hour of my life.
Mr.Cooper.—If your lordship refuses me—
Mr. JusticeBest.—No, I don’t refuse you.
Mr.Cooper.—I think it necessary to my case. The preamble is—(gentlemen, I am sorry to detain you, but I have a most important duty to discharge. If in addressing you, I am taking a course which I ought not, I assure you it is an error of judgment and not of design. I declare most sincerely, that I am addressing to you argumentswhich I should attend to if they were addressed to myself in such a case. His Lordship will have a right to make what observations he pleases, and of course I offer this and every other argument to you liable to the honour he may confer upon me of condescending to notice anything I have said or may say. You, gentlemen, will, I know, regard my observations or arguments solely as you think them forcible or weak; if they are the former you will attend to them, if the latter reject them. And with this observation I shall now proceed to read to you the preamble to the Act of the Legislative Assembly of Virginia.)
“It is time enough for the rightful purposes of Civil Government, for its officers to interfere when principles break out into overt acts against peace and good order, and that truth is great and will prevail if left to herself, and that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless, by human interposition disarmed of her natural weapons, free argument and debate: errors ceasing to be dangerous, when it is permitted freely to contradict them.”
“It is time enough for the rightful purposes of Civil Government, for its officers to interfere when principles break out into overt acts against peace and good order, and that truth is great and will prevail if left to herself, and that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless, by human interposition disarmed of her natural weapons, free argument and debate: errors ceasing to be dangerous, when it is permitted freely to contradict them.”
Thus, you see, by an Act of the Legislature of that country, passed by those who had all the knowledge of history before their eyes, and ample experience in their own times, I am fully supported in the position that prosecutions of this kind are not only useless but hurtful. By free argument and debate errors cease to be dangerous, if they are not exploded; but attempts to stifle even errors by power and punishment, provoke a stubborn adherence to them, and awake an eager spirit of propagation. If erroneous positions are published, meet them by argument, and refutation must ensue. If falsehood uses the press to promulge her doctrines, let truth oppose her with the same weapon. Let the press answer thepress, and what is there to fear? Shall I be told that the propensity of human nature is so base and evil that it will listen to falsehood and turn a deaf ear to truth? To assert so is not only scandalous to human nature, but impious towards the Creator. We are placed here imperfect indeed, and erring; but still with preponderance of virtue over vice. The Deity has sent us from his hands with qualities fitting us for civil society: it is our natural state; and we know that civil society is sapped by vice and supported by virtue: if, therefore, our disposition to good did not redound over the evil a state of society could not be maintained. It would indeed be an impiety little short of blasphemy to the great Being who has created us, to say, that mankind at large are eagerly inclined to what is vicious, but turn with aversion from what is moral and good. Yet this, whatever they may avow, must be the opinion of those who say that good doctrine from the press cannot be left with safety to oppose bad.
Now, gentlemen, not only am I not without the corroboration of this enactment of the Legislature of Virginia for my humble opinions, but the Act of Virginia is itself not without the very highest human sanction, as I shall show you by a passage which I am about to cite from the work of a man, with whom, in my mind, the writings of all other men are but as the ill-timed uninformed prattlings of children—a man from whom to differ in opinion is but another phrase to be wrong. Need I, after this, name him? for was there ever more than one man who could be identified with such a description? I mean Locke, the great champion of civil freedom. In this work on government he says—
“Perhaps it will be said, that the people being ignorantand always discontented, to lay the foundations of government in the unsteady opinion and uncertain humour of the people, is to expose it to certain ruin, and no government will be able long to subsist if the people may set up a new legislature whenever they take offence at the old. To this I answer, quite the contrary, people are not so easy got out of their old forms as some are apt to suggest; they are hardly to be prevailed with to amend the acknowledged faults in the frame they have been accustomed to, and if there be any original defects or adventitious ones introduced by time or corruption, it is not an easy thing to be changed, even where all the world sees there is an opportunity for it. This slowness and aversion in the people to quit their old constitutions has in the many revolutions which have been seen in this kingdom still kept us to, or, after some intervals of fruitless attempts, still brought us back again to our old legislature of King, Lords and Commons.”
“Perhaps it will be said, that the people being ignorantand always discontented, to lay the foundations of government in the unsteady opinion and uncertain humour of the people, is to expose it to certain ruin, and no government will be able long to subsist if the people may set up a new legislature whenever they take offence at the old. To this I answer, quite the contrary, people are not so easy got out of their old forms as some are apt to suggest; they are hardly to be prevailed with to amend the acknowledged faults in the frame they have been accustomed to, and if there be any original defects or adventitious ones introduced by time or corruption, it is not an easy thing to be changed, even where all the world sees there is an opportunity for it. This slowness and aversion in the people to quit their old constitutions has in the many revolutions which have been seen in this kingdom still kept us to, or, after some intervals of fruitless attempts, still brought us back again to our old legislature of King, Lords and Commons.”
Such is the opinion of this greatest of men, formed on the most consummate wisdom, enriched by observation, during times which afforded no small degree of experience. Upon his authority, then, that men are not to be excited to sudden discontent, and passion for hasty change, I assert, that there is no danger to be apprehended from the freest political discussions; and consequently no need of their condemnation by a jury’s verdict of Guilty.
Milton, too, the greatest of poets, and hardly less a politician, was of the same sentiment as to the firmness of the people, and thought it might safely be left to them to read what they pleased, and to their reason and discretion, what to object and what to adopt, without any other interference. It is his Areopagitica, in which he contends for unlicensed printing—an oration addressedfrom his closet to the Parliament of England, and which has been cited by Lord Mansfield himself, on the bench. His words are—“Nor is it to the common people less than a reproach; for if we be so jealous of them that we cannot trust them with an English pamphlet, what do we but censure them for a giddy, vicious and ungrounded people? That this is care or love of them we cannot pretend.”
Such are the sentiments of Milton, in that noble effort of united argument and eloquence, which I should not fear to hold up against the most splendid orations of antiquity.
Having thus, I submit, made good my position, that political papers, whatever their description, can produce no mischief, and that there is no need to prosecute them; I will now show you, that not only can publications, containing false opinions, do no mischief, but that they actually produce benefit, and that therefore not they, but the prosecutions, which would check, and stifle them are injurious. Is it meant to be contended that error is stronger than truth; folly more powerful than reason, and irreligion than religion? No man, in his senses, will maintain such propositions. On the contrary, error has always been dispersed before reason, and infidelity by religion. The appearance of error and falsehood has always roused Truth to rise to the work of refutation. Even the sublime truths of religion have never been so completely demonstrated, and conviction and faith have never been so firmly fixed in the minds of men as by those books of controversy which have been drawn forth by attacks upon Christianity; and which, but for the publications denying the authenticity of the religion, would never have been in existence; but, invaluable as they are, the world must have wanted them. As to politicalwritings, is it not notorious, that the very best expositions of the nature of civil society and government, are solely to be ascribed to the conflicts of reason with the false and loathsome doctrines of passive obedience and divine indefeasible right, which found their way into the world by the freedom of publication? Even that great work, the treatise of Locke on Government, itself, which is justly regarded as the political Bible (I mean no irreverence) of Englishmen, would never have seen the light, but that it was written to refute the base and detestable tenets of Barclay and Filmer. Their political treatises were false and slavish, and even illegal; for they were the same for which Dr. Sacheverel was afterwards impeached by the Parliament; and which he would not have been if it had not been an offence to maintain and publish such opinions. Yet were not their falsehoods and errors useful and beneficial? Did they not provoke Locke to rise in all the majesty and strength of truth and cast down Filmer and his doctrines into the lowest abyss of contempt, never again to emerge? See, now, if the government of those days had prosecuted Barclay and Filmer, and suppressed their books by power instead of leaving them to be demolished by reasoning, what would have been the consequence? The mighty mind of Locke would not have been called into action, and the total refutation and utter explosion of Filmer would not have been effected. By criminal prosecutions the odious positions would only have been suppressed for a time, not as they now are, extinguished for ever; and the base and degrading doctrines of passive obedience and divine right, which are the stigma of the times in which they prevailed, might have been the disgrace and reproach of ours.
But supposing that prosecutions for political writingswere in any respect politic, useful, or wise, will they prevent their publication? No more than your strong and violent revenue laws have been able to suppress the rise of illicit stills in Ireland and Scotland. Even if by dint of the terror of prosecutions the press in this city could be reduced to such awe and subjection, that everything that issued from it was as flat and unmeaning as the most arbitrary government could desire, its inhabitants would still gratify their thirst for political discussion and information. They would compose and print as they distil, in the depth of deserts and the solitude of mountains, and under the cover of darkness drop the pamphlets into the houses, or scatter them in the streets, and the obstacles to circulation will serve only to inflame the desire for possession. This would be the result of a determination to suppress everything in the shape of political discussion that did not please the humour of a set of men in authority, while by far the greater part if not all those publications which inspire so much apprehension, would if passed in silence either never be noticed, or read their hour and forgotten. It is these public trials that give them importance and notoriety. They would not draw an eye but for the glare thrown on them by these luminous prosecutions. These indictments (though I would not willingly be ludicrous on so serious an occasion) force into my mind the course once adopted with regard to houses of ill-fame, by the Society for the Suppression of Vice. They paid men who were fixed before the doors of such houses with huge paper lanterns, on which there was painted in large illuminated letters, “This is a house of bad fame.” But, instead of causing a desertion of the houses, they operated as an advertisement and an allurement, and increased the numbers who resortedto them. Those who had before frequented them did not discontinue their visits, and those who were ignorant of such places and seeking them, on seeing the emblazonment by the doors, cried out—that is just what we wanted, and turned in. The society at last discovered their mistake. They found that they were encouraging what they wished to abolish, and discontinued the plan. My learned friend, who is counsel for the society, can confirm me when I assert that they do not now carry it into practice. Precisely the operation that these lanterns had with regard to houses of ill-fame, have these trials upon obnoxious writings. They are illuminated by the rays which are shed on them by these proceedings. They attract every eye, and are read in the light (as it were) of the notoriety which is thus thrown upon them by these prosecutions.
Gentlemen, it just occurs to my recollection, that I have omitted in its proper place something which I ought to have mentioned, and urged to you, and I beg your indulgence to supply the omission. You will remember that in one of the passages charged as libelous, the words “I will not, now, say a word about insurrection” are to be found, and my learned friend, Mr. Gurney, suggested to you that it was an excitement, at some future period, to insurrection. I, gentlemen, repeat that these words are not only no excitement to insurrection, but an express disavowal of it. If you infer that he means insurrection at any future time, you must also suppose that the insurrection he contemplates is conditional, and in speculation of conduct in the government that may justify it. Is there any extrinsic evidence to show that he means something beyond the words? None—and the words themselves are a literal disclaimer of any intention of insurrection. And it is by the words then that you will judge of his design,and not take it from the vague and partial declamation of the counsel for the prosecution, whose opinions ought no more than my own, to have any weight with you, except as they are supported by reason. If you can find any such meaning as an intention to excite insurrection in the words, so much the worse for the defendant; but, if you cannot, and I am sure you cannot, then you will not hesitate to adjudge the words innocent. What! may not I, or any man, say there is no occasion for insurrection at this moment, but there may be at a future time? Good God! are there no possible situations in which resistance to a government will be justifiable? There have been such situations, and may again. Surely there may be. Why, even the most vehement strugglers for indefeasible right and passive obedience have been forced (after involving themselves in the most foolish inconsistencies, and after the most ludicrous shuffling in attempting to deny it) to admit, that there may be such a conjuncture. They have tried to qualify the admission indeed—admitted, and then retracted—then admitted again, and then denied in the term, what they admitted in the phrase, till, as you shall see, nothing ever equalled the absurdity, and ridiculousness of therigmaroleinto which they fell, in their unwillingness to confess, what they were unable to deny. Yes, gentlemen, there are situations in which insurrection against a government is not only legal, but a duty and a virtue. The period of our glorious revolution was such a situation. When the bigot, James, attempted to force an odious superstition on the people for their religion, and to violate the fundamental laws of the realm, Englishmen owed it to themselves, they owed it to millions of their fellow-creatures, not only in this country, but all over the world; they owed it to God who had made them man to riseagainst such a government; and cast ruin on the tyrant for the oppression and slavery which he meditated for them. Locke, in the work from which I have already cited to you, in the chapter entitled, “On Dissolution of Government,” contends with Barclay, an advocate for divine right and passive obedience, and refutes him on this very question, and proves that subjects may use force against tyranny in governments. He cites Barclay who wrote in Latin, but I read to you from the translation.
“Wherefore if the king shall be guilty of immense and intolerable cruelty not only against individuals but against the body of the state, that it is the whole people, or any large part of the people, in such a case indeed it is competent to the people to resist and defend themselves from injury, but only to defend themselves, not to attack the prince, and only to repair the injury they have received; not to depart, on account of the injury received from the reverence which they owe him. When the tyranny is intolerable (for we ought always to submit to a tyranny in a moderate degree) the subject may resist with reverence.”
“Wherefore if the king shall be guilty of immense and intolerable cruelty not only against individuals but against the body of the state, that it is the whole people, or any large part of the people, in such a case indeed it is competent to the people to resist and defend themselves from injury, but only to defend themselves, not to attack the prince, and only to repair the injury they have received; not to depart, on account of the injury received from the reverence which they owe him. When the tyranny is intolerable (for we ought always to submit to a tyranny in a moderate degree) the subject may resist with reverence.”
In commenting on this passage, Mr. Locke, mixes with his reasonings the ridicule it deserves:—“‘He (that is Barclay) says, it must be with reverence.’ How to resist force without striking again, or how to strike with reverence, will need some skill to make intelligible. He that shall oppose an assault only with a shield to receive the blow, or in any more respectful posture without a sword in his hand, to abate the confidence and force of the assailant will quickly be at the end of his resistance, and will find such a defence serve only to draw on him the worse usage: this is as ridiculous a way of resisting, as Juvenal thought of fighting, ‘Ubi tupulsas, egovapulotantum,’ and the result of the combat will be unavoidably the same as he there describes it.
Libertas paupcris hæc est.Pulsatusrogat, etpugnisconcisus adorat,Utliceatpaucis cum dentibus indereverti.
Libertas paupcris hæc est.Pulsatusrogat, etpugnisconcisus adorat,Utliceatpaucis cum dentibus indereverti.
“‘This is the liberty of the slave: when beaten and bruised with blows, he requests and implores as a favour to be allowed to depart with some few of his teeth.’ This will always be the event of such an imaginary resistance, when men may not strike again. He, therefore, who may resist must be allowed to strike. And then let our author, or anybody else, join a knock on the head, or a cut on the face, with as much reverence and respect as he thinks fit. He that can reconcile blows and reverence may, for aught I know, deserve for his pains, a civil respectful cudgeling whenever he can meet with it.”
So much, gentlemen, for the doctrine of non-resistance. Therefore the author of this paper in stating that there may be times when insurrection may be called for, has done no more than a hundred other writers, and among them Locke, have done before him.
Locke proceeding still with the discussion of the question, whether oppressive governments may be opposed by the people, and, having concluded in the affirmative, says, “But here the question may be made, who shall be judge whether the prince or legislature act contrary to their trust. This, perhaps, ill affected and factious men may spread among the people, when the prince only makes use of his just prerogative. To this, I reply, the people shall be judge; for who shall be judge whether the trustee or deputy acts with and according to the trust that is reposed in him, but he who deputes him, and must, by having deputed him, have still a power to discard himwhen he fails in his trust. If this be reasonable in particular cases of private men, why should it be otherwise in that of the greatest moment when the welfare of millions is concerned, and also when the evil if not prevented is greater, and the redress very dear, difficult, and dangerous.”
Locke, therefore, most unambiguously concludes that insurrection may be justified and necessary. A greater and more important truth does not exist, and we owe its promulgation with such freedom and boldness to that most extraordinary and felicitous conjuncture at the revolution which called upon us to support a king against a king, and obliged us to explode (as has been done most completely) the divine right and passive obedience under which one king claimed, to maintain the legal title of the other.
Locke goes on further to say—
“This question, who shall be supreme judge? cannot mean that there is no judge at all. For where there is no judicature on earth to decide controversies among men, God in heaven is judge. But every man is to judge for himself, as in all other cases, so in this, whether another hath put himself in a state of war with him, and whether, as Jeptha did, he should appeal to the Supreme Judge.”
I beg that I may not be misinterpreted, I hope it will not be said I mean to insinuate that any circumstances at present exist to justify insurrection. I protest against any such inference. Nothing can be further from my thoughts, and I regret that such an extravagant mode of construing men’s words should be in fashion, as to render such a caution on my part needful. All I say is, that the writer of this paper spoke of insurrection conditionally, and prospectively only, and, in doing so, has done no more than Locke, in other terms had done before him.
Gentlemen, I have but a very few more arguments to address to you, and I am glad of it, for I assure you, you cannot be more exhausted in patience than I am in strength.
I now, gentlemen, ask you even admitting that thestyleand manner, in which the opinions of the writer of this address are expressed, should verge upon intemperance and impropriety, would you venture, merely upon the ground of such a defect in style, to say the defendant is guilty; when the very same opinions in substance, expressed in a different style, would be innocent and legal, and unquestionable? Gentlemen, I have heard it asserted, with a surprise that I cannot express, that if persons will write in a moderate, delicate, temperate, and refined style they may discuss questions which become exceptionable and forbidden if they are handled in a coarse and illiberal style. Now I should have thought, that the very reverse of this would have been the case; for by a refined and guarded style you may insinuate and persuade—by vulgar coarseness and intemperance you disgust and nauseate. To say that a political paper of the very same sentiments, and principles would be innocent, written in a calm and delicate style which would be criminal, written in an abrupt, vehement and passionate manner, is to remove guilt from the thought and conception and substance of a writing, and impute it to the medium only of the thought, the mere expression. So that upon such a rule and principle of decision, if I were to heap violent and gross abuse even on Abershaw, or any other highwayman, who was deservedly hanged a hundred years ago, I might actually be indicted for a libel. Such a course, gentlemen, would be to degrade your judgments from a decision upon the thought, andopinions (which, are alone important) of an author to a criticism and condemnation of his words, and would be waging war with the vocabulary and the dictionary, a degradation, to which I trust, your reason will never submit. A difference of style in political writings is much too refined and subtle to found a distinction upon between innocence and crime. Difference of style is so minute, and is a subject of such nice discrimination, that it would not only be difficult, but almost impossible, and most unsafe for any jury to attempt by it to draw a line between guilt and innocence; besides, what would be the effect upon the press? If I were told, when I sat down to write upon any topic, that I must treat it in a given style, and no other, or risk prosecution, I should be confounded, and throw down my pen without writing at all. At least I should either not write at all, or write in such a manner that I might as well not have written at all, for I should most certainly never be read. Good God! to leave a man the alternative of a particular style, or an indictment for a libel, when he sat down to compose, would be like placing a torpedo on his hand; for you cannot, as was most forcibly, and beautifully said by Lord Erskine, “expect men to communicate their free thoughts to one another under the terror of a lash hanging over their heads;” and again, on another occasion, “under such circumstances, no man could sit down to write a pamphlet, without an attorney at one elbow, and a counsel at the other.” Gentlemen, if you, sitting coolly and dispassionately to give a deliberate judgment upon the manner and style of an author’s composition would find it difficult to form a certain judgment, how great, how insuperable, must be the difficulty of the writer himself. How is he when he sits down intent on his subject and when vehement andardent (as he must be, if he is in earnest, and that he may persuade others of that, which he feels himself) and his ideas are thronging and pressing upon him for expression—how is he to be select and cautious and measured in his words? Would you not by subjecting the freedom of political discussion to such a restriction run the hazard of destroying it altogether? Upon this question of the difficulty of distinguishing between propriety and impropriety in the style of writings I can not abstain from reading to you a passage from a speech of Lord Chesterfield, which was quoted by Lord Erskine, when he was at the bar, upon a trial for libel. On that occasion, indeed, Lord Kenyon told him, that he believed it flowed from the pen of Dr. Johnson, andthatLord Erskine took as a valuable concession; for from the frame of mind and bias of that learned man on political subjects, he was certainly not a friend to popular liberty, while Lord Chesterfield, I believe, acted without deviation upon Whig principles, and was a constant advocate for the freedom of the press. From Dr. Johnson, however, it was most important, as it had the effect of an unwilling admission, and if Lord Kenyon was correct in attributing the speech to Dr. Johnson, its excellence is to be inferred from the fact, that Lord Chesterfield never discountenanced the opinion that he was its author. The passage is this:—
“One of the greatest blessings we enjoy, one of the greatest blessings a people, my Lords, can enjoy, is liberty; but every good in this life has its alloy of evil; licentiousness is the alloy of liberty; it is an ebullition, an excrescence—it is a speck upon the eye of the political body: but which I can never touch but with a gentle, with a trembling hand, lest I destroy the body, lest I injure the eye upon which it is apt to appear.“There is such a connection between licentiousness and liberty, that it is not easy to correct the one, without dangerously wounding the other: it is extremely hard to distinguish the true limit between them: like a changeable silk, we can easily see there are two different colours, but we cannot easily discover where the one ends, or where the other begins.”
“One of the greatest blessings we enjoy, one of the greatest blessings a people, my Lords, can enjoy, is liberty; but every good in this life has its alloy of evil; licentiousness is the alloy of liberty; it is an ebullition, an excrescence—it is a speck upon the eye of the political body: but which I can never touch but with a gentle, with a trembling hand, lest I destroy the body, lest I injure the eye upon which it is apt to appear.
“There is such a connection between licentiousness and liberty, that it is not easy to correct the one, without dangerously wounding the other: it is extremely hard to distinguish the true limit between them: like a changeable silk, we can easily see there are two different colours, but we cannot easily discover where the one ends, or where the other begins.”
Mr.Gurney.—You should state, in fairness and candour, that that was an argument against licensing.
Mr.Cooper.—I know it was. The argument contends for the difficulty, next to impossibility, of distinguishing where that which is allowable ends, and that which is licentious begins. A licenser could not tell where to allow, and where to object, yet a licenser, gentlemen, would have had just the same means of judging that you possess; and if he could not tell with distinctness and certainty what to let pass and what to stop, how, with no greater power, and means of judgment, can you? With what justice, then, can it be objected to me, that I have shown any want of candour in not stating the precise question on which the argument was delivered, when in the principle there is not a shadow of difference? My application of the passage is therefore perfectly just.
Gentlemen, I have only one more quotation to trouble you with before I conclude. That is the opinion of Lord Loughborough, afterwards Chancellor of England. I do not know in what case, or on what occasion it was delivered, but I believe in a judgment on a case of libel. “Every man (says that judge) may publish at his discretion, his opinions concerning forms and systems of government.If they be weak and absurd,they will be laughed at and forgotten;and,if they bebonâ fide,they cannot be criminal,however erroneous.”
This is the opinion of a great judge upon political publications, sitting under the authority of the king himself to administer the laws; and to apply this authority to the paper before you, what reason on earth have you to suppose, that the writer from the beginning to the end was not bonâ fide in his opinions; and then, however erroneous they may be, I say, under the sanction of Lord Loughborough himself, they are not criminal.
Having, gentlemen, submitted these observations to you, I declare most unfeignedly that I have uttered them with the most conscientious belief, that they are founded in reason, justice, and truth. I have not advanced a proposition nor uttered a sentiment as an advocate, which I am not prepared to avow and maintain as a man. If I am wrong in my judgment, you will correct me. You will, however, consider my reasonings, and the passages which I have cited to you in support of them, and judge if I have not maintained the propositions, which I have submitted to you.
No argument can be drawn from any of the observations, which I have addressed to you for impunity to libelers and defamers of private character. No, they are justly called assassins; for they who destroy that without which life is worthless are as guilty as those who destroy life itself, and let them feel the heaviest vengeance of the law. Private persons may be attacked and have no power to defend themselves. They may not only be unable themselves to answer published calumnies against their character; but also unable to employ those who can. But such can never be the case with those who administer the affairs of the nation. All the wealth and power of the country is in their hands. They may hire a thousand writers to support their measures, and vindicate their characters, and theywill not want volunteers; they can command the press; and, for their protection, it is sufficient, that the press should be opposed to the press. Private individuals cannot command the press; and, therefore, let slanderers of private character suffer the utmost punishment that the law can inflict.