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 pa.s.sage, 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 n.o.bleman, 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 n.o.blemen, 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 G.o.d! shall a man be prosecuted and p.r.o.nounced 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 Const.i.tution itself. In such a state of things, to talk of the Const.i.tution, is mockery and insult; and I say there is no Const.i.tution. 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 circ.u.mstances, written?

Having thus concluded my observations on the pa.s.sages 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 pa.s.sages 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 pa.s.sage 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 pa.s.sions; 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 ma.s.s 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 a.s.sist." 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 compa.s.s 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 pa.s.sages; and by reading the context is put beyond the possibility of a doubt. There are many other pa.s.sages 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 debas.e.m.e.nt 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 embarra.s.sment of the French finances, the selfish and insolent luxury of the n.o.bles, 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 n.o.bles 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 a.s.sert themselves; but the causes once in existence, all the writers in the world could not one moment have either r.e.t.a.r.ded 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 p.r.o.nounce 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 inst.i.tuting 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 a.s.sembly 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.

Mr. COOPER.--If your lordship refuses me--

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 a.s.sure 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 a.s.sembly 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, pa.s.sed 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 a.s.sert 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 pa.s.sage 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 advent.i.tious 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 const.i.tutions 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 pa.s.sion for hasty change, I a.s.sert, 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 n.o.ble 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 pa.s.sive 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 pa.s.sive 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 pa.s.sed 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 advertis.e.m.e.nt 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 a.s.sert 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 pa.s.sages 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 G.o.d! 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 pa.s.sive 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 superst.i.tion 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 G.o.d 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 ent.i.tled, "On Dissolution of Government," contends with Barclay, an advocate for divine right and pa.s.sive 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 pa.s.sage, 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 a.s.sault 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 a.s.sailant 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 c.u.m 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 pa.s.sive obedience under which one king claimed, to maintain the legal t.i.tle 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, G.o.d 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 circ.u.mstances 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 a.s.sure you, you cannot be more exhausted in patience than I am in strength.