Mr. Justice BEST.--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 of Guilty 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 (by
abstinence 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 proved private
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.
He concludes this exhortation to temperance with this sentence, "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 far from 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, and Helvetius. 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 down to 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 the argument 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 actually _legislated against_ such prosecutions,
and declared them totally unnecessary.
Mr. Justice BEST.--That is not the law of this country.
Mr. COOPER.--I only use it my Lord as part of my speech in argument.
Mr. Justice BEST.--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. Justice BEST.--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. Justice BEST.--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. Justice BEST.--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. Justice BEST.--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.