Mr. Justice BEST.--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 arguments which 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."
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 the press, 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 ignorant and 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 addressed from 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 political writings, 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 writings were 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 resorted to 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 the
_rigmarole_ into 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 rise against 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."
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 tu _pulsas_, ego _vapulo_ tantum,' and the result of the combat will
be unavoidably the same as he there describes it.
Libertas paupcris haec est.
_Pulsatus_ rogat, et _pugnis_ concisus adorat,
Ut _liceat_ paucis cum dentibus inde _reverti_.
"'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 him when 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.