Mr. COOPER.--With the utmost deference to your Lordship--

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.

A sketch of the life of the late Henry Cooper, barrister-at-Law, of the Norfolk circuit; as also, of his father · 第 22 / 24 题