Chapter V: Part 5

Sir, I have done. I have told you my opinion. I think you ought to have given a civil, clear, and explicit answer to the overture which was fairly and handsomely made you. If you were desirous that the negotiation should have included all your allies, as the means of bringing about a general peace, you should have told Bonaparte so. But I believe you were afraid of his agreeing to the proposal. You took that method before. Ay, but you say the people were anxious for peace in 1797. I say they are friends to peace now; and I am confident that you will one day acknowledge it. Believe me, they are friends to peace; although by the laws which you have made, restraining the expression of the sense of the people, public opinion can not now be heard as loudly and unequivocally as heretofore. But I will not go into the internal state of this country. It is too afflicting to the heart to see the strides which have been made by means of, and under the miserable pretext of, this war, against liberty of every kind, both of power of speech and of writing, and to observe in another kingdom the rapid approaches to that military despotism which we affect to make an argument against peace. I know, sir, that public opinion, if it could be collected, would be for peace, as much now as in 1797; and that it is only by public opinion, and not by a sense of their duty, or by the inclination of their minds, that ministers will be brought, if ever, to give us peace.

I conclude, sir, with repeating what I said before: I ask for no gentleman’s vote who would have reprobated the compliance of ministers with the proposition of the French Government. I ask for no gentleman’s support to-night who would have voted against ministers, if they had come down and proposed to enter into a negotiation with the French. But I have a right to ask, and in honor, in consistency, in conscience, I have a right to expect, the vote of every honorable gentleman who would have voted with ministers in an address to his Majesty, diametrically opposite to the motion of this night.

This speech of Fox is said to have made a deep impression on the
House; but it appears scarcely to have weakened the opposition to
Napoleon’s measures as set forth in the speech of Pitt. The address
approving of the Government’s course was carried by the overwhelming
majority of 265 to 64. It was the reasoning of Pitt and the vote
which followed the debate that determined the general line of English
policy till Napoleon was landed at St. Helena. The speech of Fox,
though not successful in defeating the governmental policy, was the
ablest presentation ever made of the Opposition view.

SIR JAMES MACKINTOSH.

Born on the 24th of October, 1765, James Mackintosh was fifteen years younger than Erskine, and thirty-five younger than Burke. He early showed a remarkable fondness for reading, and when he was ten years of age was regarded in the locality of his birth near Inverness, in Scotland, as “a prodigy of learning.” His favorite amusement at this period of his life appears to have been to gather his school-fellows about him and entertain them by delivering speeches in imitation of Fox and North, on the American war,—then the great question of the day. At fifteen, he entered King’s College, Aberdeen, where he soon established a friendship with Robert Hall, which continued through life. Their tastes were similar, and they devoted themselves with great earnestness to the study of the classics, and to the more abstruse forms of philosophical reasoning. They were in the habit of studying together and discussing the works of Berkeley, Butler, and Edwards, as well as those of Plato and Herodotus. This exercise, kept up during a large part of their collegiate course, appears to have exerted a great influence on the formation of their minds and tastes. Mackintosh afterward declared that he learned more from those discussions “than from all the books he ever read”; and Hall testified to the great ability of his companion, by saying that “he had an intellect more like that of Bacon than any other person of modern times.”

After spending four years at Edinburgh in the study of medicine, Mackintosh repaired to London with a view to the practice of his profession. His heart seems, however, not to have been very fully enlisted in the work, and he was soon driven to the public press as a means of support. His first great work, published in 1791, commanded immediate attention, not only for its elegant and expressive as well as keen and trenchant style, but also for the enthusiastic daring with which a young man of twenty-six grappled with the most powerful and accomplished writer of the day. The volume was nothing less than a “Defence of the French Revolution against the Accusations of the Right Honorable Edmund Burke.” In point of style the work is certainly not equal to that of his great antagonist; and no more than four years later, Mackintosh himself was so frank as to say to some Frenchmen who complimented him: “Ah, gentlemen, since that time you have entirely refuted me.” But, in spite of its obvious faults, its great qualities as a piece of literary workmanship made a prodigious impression. Fox quoted it with enthusiastic approbation in the House of Commons; and Canning, who ridiculed the Revolution, is said to have told a friend that he read the book “with as much admiration as he had ever felt.” Three editions were immediately called for; and it may be doubted whether even to the present day it is not the most successful as well as the most powerful argument that has ever been made in opposition to the more celebrated treatise.

The publication of this masterly review showed plainly enough that another great writer had appeared. The reception the work received encouraged Mackintosh in the gratification of his tastes; and, finding himself irresistibly inclining to questions of political philosophy, he now abandoned the profession he had already entered, and turned his attention to the study of law. In 1795 he was admitted to the bar. Four years later he produced the second great literary impression of his life in the publication of the “Introduction to a Course of Lectures on the Law of Nature and of Nations.” The remarkable impression made by this single lecture was expressed by Campbell, when he said: “Even supposing that essay had been recovered only imperfect and mutilated—if but a score of consecutive sentences could be shown, they would bear a testimony to his genius as decided as the bust of Theseus bears to Grecian art among the Elgin marbles.”

Mackintosh’s lectures, in the spring of 1799, at Lincoln’s Inn Hall, were attended by an auditory such as had never before met in England on a similar occasion. “Lawyers, members of Parliament, men of letters, and gentlemen from the country crowded the seats; and the Lord Chancellor, who, from a pressure of public business, was unable to attend, received a full report of each lecture in writing, and was loud in their praise.” The introductory lecture, the only one that was written out and preserved, is as remarkable for its eloquence as for the depth of its learning and the vigor and discrimination of its thought.

Mackintosh now devoted himself to the practice of his profession with every prospect of the most flattering success. Regarding himself as more perfectly fitted for a position upon the bench than at the bar, he aspired to a judicial appointment at Trinidad or in India. The appointment was under contemplation, when he was engaged to defend M. Jean Peltier, a Frenchman who resided in London and published a newspaper opposed to the rising fortunes of Bonaparte. There is an English statute against “libel on a friendly government”; and Bonaparte, who was now for the moment at peace with England, demanded that the statute should be enforced. Action was brought against Peltier, and when the case came on for trial Mackintosh delivered the speech selected from his works for this volume. He labored under the disadvantage of having the law clearly against him; but he regarded the equities of the case as entirely on the side of Peltier, and therefore he devoted his remarkable powers to the discussion of the general principles involved in the case. It was a plea in behalf of freedom of the English press—its privilege and its duty to comment on and to criticise the crimes even of the proudest tyrants. The jury, under the law, was obliged to convict; but seldom before an English court has a speech made a greater impression. Of this fact we have the most conclusive evidence in the testimony of the greatest of English advocates. Erskine was present during its delivery, and before going to bed he sent to Mackintosh the following remarkable note:

“DEAR SIR:—I can not shake off from my nerves the effect of
your powerful and most wonderful speech, which so completely
disqualifies you for Trinidad or India. I could not help saying
to myself, as you were speaking: ‘_O terram illam beatam quæ
hunc virum acciperit, hanc ingratam si ejicerit, miseram si
amiserit._’ I perfectly approve the verdict, but the manner in
which you opposed it I shall always consider as one of the most
splendid monuments of genius, literature, and eloquence.

“Yours ever, T. ERSKINE.”

And Robert Hall, scarcely inferior to Erskine as a judge of what is worthy of praise in human speech, wrote to his old friend concerning it: “I speak my sincere sentiments when I say, it is the most extraordinary assemblage of whatever is most refined in address, profound in political and moral speculation, and masterly eloquence, which it has ever been my lot to read in the English language.”

A few months after the defence of Peltier, Mackintosh received the honor of knighthood and was appointed Recorder at Bombay. This position took him to India, where he passed the next eight years, devoting his time to the duties of the bench and the pursuits of literature. On his return in 1812 to England he entered the House of Commons, and for four years was a firm supporter of the Whigs. In 1818 he accepted the Professorship of Law and General Politics in the newly established Haileybury College, a position which he filled with great distinction until 1827.

During all this period he did not relax his interest in the active affairs of government, nor in the questions that agitated the House of Commons. His speeches in the House, of which he continued to be a member, were remarkable for their wisdom; though perhaps not for their persuasive power. He will be remembered, not so much for his parliamentary services, as for his unrivalled plea in behalf of free speech, and for the many essays on philosophical and political subjects with which he enriched the literature of our language. Until his death in 1832, he was one of the most highly esteemed writers of the “Encyclopedia Britannica” and of the _Edinburgh Review_.

SIR JAMES MACKINTOSH.

IN BEHALF OF FREE SPEECH, ON THE TRIAL OF JEAN PELTIER, ACCUSED OF LIBELLING NAPOLEON BONAPARTE; COURT OF KING’S BENCH, FEBRUARY 21, 1803.

GENTLEMEN OF THE JURY:

The time is now come for me to address you in behalf of the unfortunate gentleman who is the defendant on this record.

I must begin with observing, that though I know myself too well to ascribe to any thing but to the kindness and good nature of my learned friend, the Attorney-General, the unmerited praises which he has been pleased to bestow on me, yet, I will venture to say, he has done me no more than justice in supposing that in this place, and on this occasion, where I exercise the functions of an inferior minister of justice, an inferior minister, indeed, but a minister of justice still, I am incapable of lending myself to the passions of any client, and that I will not make the proceedings of this court subservient to any political purpose. Whatever is respected by the laws and government of my country shall, in this place, be respected by me. In considering matters that deeply interest the quiet, the safety, and the liberty of all mankind, it is impossible for me not to feel warmly and strongly; but I shall make an effort to control my feelings however painful that effort may be, and where I can not speak out but at the risk of offending either sincerity or prudence, I shall labor to contain myself and be silent.

I can not but feel, gentlemen, how much I stand in need of your favorable attention and indulgence. The charge which I have to defend is surrounded with the most invidious topics of discussion; but they are not of my seeking. The case and the topics which are inseparable from it are brought here by the prosecutor. Here I find them, and here it is my duty to deal with them, as the interests of Mr. Peltier seem to me to require. He, by his choice and confidence, has cast on me a very arduous duty, which I could not decline, and which I can still less betray. He has a right to expect from me a faithful, a zealous, and a fearless defence; and this his just expectation, according to the measure of my humble abilities, shall be fulfilled. I have said a fearless defence. Perhaps that word was unnecessary in the place where I now stand. Intrepidity in the discharge of professional duty is so common a quality at the English bar, that it has, thank God, long ceased to be a matter of boast or praise. If it had been otherwise, gentlemen, if the bar could have been silenced or overawed by power, I may presume to say that an English jury would not this day have been met to administer justice. Perhaps I need scarce say that my defence _shall_ be fearless, in a place where fear never entered any heart but that of a criminal. But you will pardon me for having said so much when you consider who the real parties before you are.

I. Gentlemen, the real prosecutor is the master of the greatest empire the civilized world ever saw. The defendant is a defenceless, proscribed exile. He is a French Royalist, who fled from his country in the autumn of 1792, at the period of that memorable and awful emigration, when all the proprietors and magistrates of the greatest civilized country in Europe were driven from their homes by the daggers of assassins; when our shores were covered, as with the wreck of a great tempest, with old men, and women, and children, and ministers of religion, who fled from the ferocity of their countrymen as before an army of invading barbarians.

The greatest part of these unfortunate exiles, of those, I mean, who have been spared by the sword, who have survived the effect of pestilential climates or broken hearts, have been since permitted to revisit their country. Though despoiled of their all, they have eagerly embraced even the sad privilege of being suffered to die in their native land.

Even this miserable indulgence was to be purchased by compliances, by declarations of allegiance to the new government, which some of these suffering Royalists deemed incompatible with their consciences, with their dearest attachments, and their most sacred duties. Among these last is Mr. Peltier. I do not presume to blame those who submitted, and I trust you will not judge harshly of those who refused. You will not think unfavorably of a man who stands before you as the voluntary victim of his loyalty and honor. If a revolution (which God avert) were to drive us into exile, and to cast us on a foreign shore, we should expect, at least, to be pardoned by generous men, for stubborn loyalty and unseasonable fidelity to the laws and government of our fathers.

This unfortunate gentleman had devoted a great part of his life to literature. It was the amusement and ornament of his better days. Since his own ruin and the desolation of his country, he has been compelled to employ it as a means of support. For the last ten years he has been engaged in a variety of publications of considerable importance; but since the peace he has desisted from serious political discussion, and confined himself to the obscure journal which is now before you; the least calculated, surely, of any publication that ever issued from the press, to rouse the alarms of the most jealous government; which will not be read in England, because it is not written in our language; which cannot be read in France, because its entry into that country is prohibited by a power whose mandates are not very supinely enforced, nor often evaded with impunity; which can have no other object than that of amusing the companions of the author’s principles and misfortunes, by pleasantries and sarcasms on their victorious enemies. There is, indeed, gentlemen, one remarkable circumstance in this unfortunate publication; it is the only, or almost the only, journal which still dares to espouse the cause of that royal and illustrious family which but fourteen years ago was flattered by every press and guarded by every tribunal in Europe. Even the court in which we are met affords an example of the vicissitudes of their fortune. My learned friend has reminded you that the last prosecution tried in this place, at the instance of a French Government, was for a libel on that magnanimous princess, who has since been butchered in sight of her palace.

I do not make these observations with any purpose of questioning the general principles which have been laid down by my learned friend. I must admit his right to bring before you those who libel any government recognized by his Majesty, and at peace with the British empire. I admit that, whether such a government be of yesterday, or a thousand years old; whether it be a crude and bloody usurpation, or the most ancient, just, and paternal authority upon earth, we are _here_ equally bound, by his Majesty’s recognition, to protect it against libellous attacks. I admit that if, during our usurpation, Lord Clarendon had published his history at Paris, or the Marquess of Montrose his verses on the murder of his sovereign, or Mr. Cowley his “Discourse on Cromwell’s Government,” and if the English ambassador had complained, the President De Molí, or any other of the great magistrates who then adorned the Parliament of Paris, however reluctantly, painfully, and indignantly, might have been compelled to have condemned these illustrious men to the punishment of libellers. I say this only for the sake of bespeaking a favorable attention from your generosity and compassion to what will be feebly urged in behalf of my unfortunate client, who has sacrificed his fortune, his hopes, his connections, his country, to his conscience; who seems marked out for destruction in this his last asylum.

That he still enjoys the security of this asylum, that he has not been sacrificed to the resentment of his powerful enemies, is perhaps owing to the firmness of the King’s government. If that be the fact, gentlemen; if his Majesty’s ministers have resisted applications to expel this unfortunate gentleman from England, I should publicly thank them for their firmness, if it were not unseemly and improper to suppose that they could have acted otherwise—to thank an English Government for not violating the most sacred duties of hospitality; for not bringing indelible disgrace on their country.

But be that as it may, gentlemen, he now comes before you, perfectly satisfied that an English jury is the most refreshing prospect that the eye of accused innocence ever met in a human tribunal; and he feels with me the most fervent gratitude to the Protector of empires that, surrounded as we are with the ruins of principalities and powers, we still continue to meet together, after the manner of our fathers, to administer justice in this, her ancient sanctuary.

II. There is another point of view in which this case seems to me to merit your most serious attention. I consider it as the first of a long series of conflicts between the greatest power in the world and the only free press remaining in Europe. No man living is more thoroughly convinced than I am that my learned friend, Mr. Attorney-General, will never degrade his excellent character; that he will never disgrace his high magistracy by mean compliances, by an immoderate and unconscientious exercise of power; yet I am convinced, by circumstances which I shall now abstain from discussing, that I am to consider this as the first of a long series of conflicts between the greatest power in the world and the only free press now remaining in Europe. Gentlemen, this distinction of the English press is new; it is a proud and melancholy distinction. Before the great earthquake of the French Revolution had swallowed up all the asylums of free discussion on the continent, we enjoyed that privilege, indeed, more fully than others; but we did not enjoy it exclusively. In great monarchies, the press has always been considered as too formidable an engine to be intrusted to unlicensed individuals. But in other continental countries, either by the laws of the state, or by long habits of liberality and toleration in magistrates, a liberty of discussion has been enjoyed, perhaps sufficient for most useful purposes. It existed, in fact, where it was not protected by law; and the wise and generous connivance of governments was daily more and more secured by the growing civilization of their subjects. In Holland, in Switzerland, in the imperial towns of Germany, the press was either legally or practically free. Holland and Switzerland are no more; and since the commencement of this prosecution, fifty imperial towns have been erased from the list of independent states by one dash of the pen. Three or four still preserve a precarious and trembling existence. I will not say by what compliances they must purchase its continuance. I will not insult the feebleness of states, whose unmerited fall I do most bitterly deplore.

These governments were in many respects one of the most interesting parts of the ancient system of Europe. Unfortunately for the repose of mankind, great states are compelled, by regard to their own safety, to consider the military spirit and martial habits of their people as one of the main objects of their policy. Frequent hostilities seem almost the necessary condition of their greatness; and, without being great, they cannot long remain safe. Smaller states exempted from this cruel necessity—a hard condition of greatness, a bitter satire on human nature—devoted themselves to the arts of peace, to the cultivation of literature, and the improvement of reason. They became places of refuge for free and fearless discussion; they were the impartial spectators and judges of the various contests of ambition which from time to time disturbed the quiet of the world. They thus became peculiarly qualified to be the organs of that public opinion which converted Europe into a great republic, with laws which mitigated, though they could not extinguish, ambition; and with moral tribunals to which even the most despotic sovereigns were amenable. If wars of aggrandizement were undertaken, their authors were arraigned in the face of Europe. If acts of internal tyranny were perpetrated, they resounded from a thousand presses throughout all civilized countries. Princes, on whose will there were no legal checks, thus found a moral restraint which the most powerful of them could not brave with absolute impunity. They acted before a vast audience, to whose applause or condemnation they could not be utterly indifferent. The very constitution of human nature, the unalterable laws of the mind of man, against which all rebellion is fruitless, subjected the proudest tyrants to this control. No elevation of power, no depravity however consummate, no innocence however spotless, can render man wholly independent of the praise or blame of his fellow-men.

These governments were, in other respects, one of the most beautiful and interesting parts of our ancient system. The perfect security of such inconsiderable and feeble states, their undisturbed tranquillity amid the wars and conquests that surrounded them, attested, beyond any other part of the European system, the moderation, the justice, the civilization to which Christian Europe had reached in modern times. Their weakness was protected only by the habitual reverence for justice, which, during a long series of ages, had grown up in Christendom. This was the only fortification which defended them against those mighty monarchs to whom they offered so easy a prey. And till the French Revolution, this was sufficient. Consider, for instance, the situation of the Republic of Geneva. Think of her defenceless position, in the very jaws of France; but think also of her undisturbed security, of her profound quiet, of the brilliant success with which she applied to industry and literature, while Louis XIV. was pouring his myriads into Italy before her gates. Call to mind, if ages crowded into years have not effaced them from your memory, that happy period, when we scarcely dreamed more of the subjugation of the feeblest republic of Europe than of the conquest of her mightiest empire; and tell me if you can imagine a spectacle more beautiful to the moral eye, or a more striking proof of progress in the noblest principles of true civilization.

These feeble states—these monuments of the justice of Europe—the asylum of peace, of industry, and of literature—the organs of public reason—the refuge of oppressed innocence and persecuted truth, have perished with those ancient principles which were their sole guardians and protectors. They have been swallowed up by that fearful convulsion which has shaken the uttermost corners of the earth. They are destroyed and gone forever.

One asylum of free discussion is still inviolate. There is still one spot in Europe where man can freely exercise his reason on the most important concerns of society, where he can boldly publish his judgment on the acts of the proudest and most powerful tyrants. The press of England is still free. It is guarded by the free constitution of our forefathers. It is guarded by the hearts and arms of Englishmen, and I trust I may venture to say that if it be to fall, it will fall only under the ruins of the British empire.

It is an awful consideration, gentlemen. Every other monument of European liberty has perished. That ancient fabric which has been gradually reared by the wisdom and virtue of our fathers still stands. It stands, thanks be to God! solid and entire; but it stands alone, and it stands amid ruins.

In these extraordinary circumstances, I repeat that I must consider this as the first of a long series of conflicts between the greatest power in the world and the only free press remaining in Europe. And I trust that you will consider yourselves as the advanced guard of liberty, as having this day to fight the first battle of free discussion against the most formidable enemy that it ever encountered. You will therefore excuse me, if, on so important an occasion, I remind you, at more length than is usual, of those general principles of law and policy on this subject which have been handed down to us by our ancestors.

III. Those who slowly built up the fabric of our laws never attempted any thing so absurd as to define, by any precise rule, the obscure and shifting boundaries which divide libel from history or discussion. It is a subject which, from its nature, admits neither rules nor definitions. The same words may be perfectly innocent in one case, and most mischievous and libellous in another. A change of circumstances, often apparently slight, is sufficient to make the whole difference. These changes, which may be as numerous as the variety of human intentions and conditions, can never be foreseen nor comprehended under any legal definitions, and the framers of our law have never attempted to subject them to such definitions. They left such ridiculous attempts to those who call themselves philosophers, but who have, in fact, proved themselves most grossly and stupidly ignorant of that philosophy which is conversant with human affairs.

The principles of the law of England on the subject of political libel are few and simple, and they are necessarily so broad, that, without a habitually mild administration of justice, they might encroach materially on the liberty of political discussion. Every publication which is intended to vilify either our own government or the government of any foreign state in amity with this kingdom, is, by the law of England, a libel.

To protect political discussion from the danger to which it would be exposed by these wide principles, if they were severely and literally enforced, our ancestors trusted to various securities—some growing out of the law and constitution, and others arising from the character of those public officers whom the constitution had formed, and to whom its administration is committed. They trusted, in the first place, to the moderation of the legal officers of the crown, educated in the maxims and imbued with the spirit of a free government; controlled by the superintending power of Parliament, and peculiarly watched in all political prosecutions by the reasonable and wholesome jealousy of their fellow-subjects. And I am bound to admit that, since the glorious era of the Revolution [1688], making due allowance for the frailties, the faults, and the occasional vices of men, they have, upon the whole, not been disappointed. I know that in the hands of my learned friend that trust will never be abused. But, above all, they confided in the moderation and good sense of juries, popular in their origin, popular in their feelings, popular in their very prejudices, taken from the mass of the people, and immediately returning to that mass again. By these checks and temperaments they hoped that they should sufficiently repress malignant libels, without endangering that freedom of inquiry which is the first security of a free state. They knew that the offence of a political libel is of a very peculiar nature, and differing in the most important particulars from all other crimes. In all other cases, the most severe execution of law can only spread terror among the guilty; but in political libels it inspires even the innocent with fear. This striking peculiarity arises from the same circumstances which make it impossible to define the limits of libel and innocent discussion; which make it impossible for a man of the purest and most honorable mind to be always perfectly certain whether he be within the territory of fair argument and honest narrative, or whether he may not have unwittingly over stepped the faint and varying line which bounds them. But, gentlemen, I will go further. This is the only offence where severe and frequent punishments not only intimidate the innocent, but deter men from the most meritorious acts, and from rendering the most important services to their country. They indispose and disqualify men for the discharge of the most sacred duties which they owe to mankind. To inform the public on the conduct of those who administer public affairs requires courage and conscious security. It is always an invidious and obnoxious office; but it is often the most necessary of all public duties. If it is not done boldly, it can not be done effectually, and it is not from writers trembling under the uplifted scourge that we are to hope for it.

There are other matters, gentlemen, to which I am desirous of particularly calling your attention. These are the circumstances in the condition of this country which have induced our ancestors, at all times, to handle with more than ordinary tenderness that branch of the liberty of discussion which is applied to the conduct of foreign states. The relation of this kingdom to the commonwealth of Europe is so peculiar, that no history, I think, furnishes a parallel to it. From the moment in which we abandoned all projects of continental aggrandizement, we could have no interest respecting the state of the continent but the interests of national safety and of commercial prosperity. The paramount interest of every state—that which comprehends every other—is _security_. And the security of Great Britain requires nothing on the continent but the uniform observance of justice. It requires nothing but the inviolability of ancient boundaries and the sacredness of ancient possessions, which, on these subjects, is but another form of words for justice. A nation which is herself shut out from the possibility of continental aggrandizement can have no interest but that of preventing such aggrandizement in others. We can have no interest of safety but the preventing of those encroachments which, by their immediate effects, or by their example, may be dangerous to ourselves. We can have no interest of ambition respecting the continent. So that neither our real nor even our apparent interests can ever be at variance with justice.

As to commercial prosperity, it is, indeed, a secondary, but it is still a very important, branch of our national interests, and it requires nothing on the continent of Europe but the _maintenance of peace_, as far as the paramount interest of security will allow.[29]

Whatever ignorant or prejudiced men may affirm, no war was ever gainful to a commercial nation. Losses may be less in some, and incidental profits may arise in others. But no such profits ever formed an adequate compensation for the waste of capital and industry which all wars must produce. Next to peace, our commercial greatness depends chiefly on the affluence and prosperity of our neighbors. A commercial nation has, indeed, the same interest in the wealth of her neighbors that a tradesman has in the wealth of his customers. The prosperity of England has been chiefly owing to the general progress of civilized nations in the arts and improvements of social life. Not an acre of land has been brought into cultivation in the wilds of Siberia or on the shores of the Mississippi which has not widened the market for English industry. It is nourished by the progressive prosperity of the world, and it amply repays all that it has received. It can only be employed in spreading civilization and enjoyment over the earth; and by the unchangeable laws of nature, in spite of the impotent tricks of government, it is now partly applied to revive the industry of those very nations who are the loudest in their senseless clamors against its pretended mischiefs. If the blind and barbarous project of destroying English prosperity could be accomplished, it could have no other effect than that of completely beggaring the very countries who now stupidly ascribe their own poverty to our wealth.

Under these circumstances, gentlemen, it became the obvious policy of the kingdom, a policy in unison with the maxims of a free government, to consider with great indulgence even the boldest animadversions of our political writers on the ambitious projects of foreign states.

Bold, and sometimes indiscreet as these animadversions might be, they had, at least, the effect of warning the people of their danger, and of rousing the national indignation against those encroachments which England has almost always been compelled in the end to resist by arms. Seldom, indeed, has she been allowed to wait till a provident regard to her own safety should compel her to take up arms in defence of others. For as it was said by a great orator of antiquity that no man ever was the enemy of the republic who had not first declared war against him, so I may say, with truth, that no man ever meditated the subjugation of Europe who did not consider the destruction or the corruption of England as the first condition of his success.[30] If you examine history, you will find that no such project was ever formed in which it was not deemed a necessary preliminary, either to detach England from the common cause or to destroy her. It seems as if all the conspirators against the independence of nations might have sufficiently taught other states that England is their natural guardian and protector; that she alone has no interest but their preservation; that her safety is interwoven with their own. When vast projects of aggrandizement are manifested, when schemes of criminal ambition are carried into effect, the day of battle is fast approaching for England. Her free government can not engage in dangerous wars without the hearty and affectionate support of her people. A state thus situated can not without the utmost peril silence those public discussions which are to point the popular indignation against those who must soon be enemies. In domestic dissensions, it may sometimes be the supposed interest of government to overawe the press. But it never can be even their apparent interest when the danger is purely foreign. A king of England who, in such circumstances, should conspire against the free press of this country, would undermine the foundations of his own throne; he would silence the trumpet which is to call his people round his standard.

Our ancestors never thought it their policy to avert the resentment of foreign tyrants by enjoining English writers to contain and repress their just abhorrence of the criminal enterprises of ambition. This great and gallant nation, which has fought in the front of every battle against the oppressors of Europe, has sometimes inspired fear, but, thank God, she has never felt it. We know that they are our real, and must soon become our declared foes.[31] We know that there can be no cordial amity between the natural enemies and the independence of nations. We have never adopted the cowardly and short-sighted policy of silencing our press, of breaking the spirit and palsying the hearts of our people for the sake of a hollow and precarious truce. We have never been base enough to purchase a short respite from hostilities by sacrificing the first means of defence; the means of rousing the public spirit of the people, and directing it against the enemies of their country and of Europe.

Gentlemen, the public spirit of a people, by which I mean the whole body of those affections which unites men’s hearts to the commonwealth, is in various countries composed of various elements, and depends on a great variety of causes. In this country, I may venture to say that it mainly depends on the vigor of the popular parts and principles of our government, and that the spirit of liberty is one of its most important elements. Perhaps it may depend less on those advantages of a free government which are most highly estimated by calm reason, than upon those parts of it which delight the imagination and flatter the just and natural pride of mankind. Among these we are certainly not to forget the political rights which are not uniformly withheld from the lowest classes, and the continual appeal made to them in public discussion, upon the greatest interests of the state. These are undoubtedly among the circumstances which endear to Englishmen their government and their country, and animate their zeal for that glorious institution which confers on the meanest of them a sort of distinction and nobility unknown to the most illustrious slaves who tremble at the frown of a tyrant. Whoever were unwarily and rashly to abolish or narrow these privileges, which it must be owned are liable to great abuse, and to very specious objections, might perhaps discover too late that he had been dismantling his country. Of whatever elements public spirit is composed, it is always and everywhere the chief defensive principle of a state. It is perfectly distinct from courage. Perhaps no nation, certainly no European nation, ever perished from an inferiority of courage. And undoubtedly no considerable nation was ever subdued in which the public affections were sound and vigorous. It is public spirit which binds together the dispersed courage of individuals and fastens it to the commonwealth. It is, therefore, as I have said, the chief defensive principle of every country. Of all the stimulants which arouse it into action, the most powerful among us is certainly the press; and it can not be restrained or weakened without imminent danger that the national spirit may languish, and that the people may act with less zeal and affection for their country in the hour of its danger.

These principles, gentlemen, are not new—they are genuine old English principles. And though in our days they have been disgraced and abused by ruffians and fanatics, they are in themselves as just and sound as they are liberal; and they are the only principles on which a free state can be safely governed. These principles I have adopted since I first learned the use of reason, and I think I shall abandon them only with life.

IV. On these principles I am now to call your attention to the libel with which this unfortunate gentleman is charged. I heartily rejoice that I concur with the greatest part of what has been said by my learned friend, Mr. Attorney-General, who has done honor even to his character by the generous and liberal principles which he has laid down. He has told you that he does not mean to attack _historical narrative_. He has told you that he does not mean to attack _political discussion_. He has told you, also, that he does not consider every intemperate word into which a writer, fairly engaged in narration or reasoning, might be betrayed, as a fit subject for prosecution. The essence of the crime of libel consists in the malignant mind which the publication proves, and from which it flows. A jury must be convinced, before they find a man guilty of libel, that his intention was to libel, not to state facts which he believed to be true, or reasonings which he thought just. My learned friend has told you that the liberty of history includes the right of publishing those observations which occur to intelligent men when they consider the affairs of the world; and I think he will not deny that it includes also the right of expressing those sentiments which all good men feel on the contemplation of extraordinary examples of depravity or excellence.

One more privilege of the historian, which the Attorney-General has not named, but to which his principles extend, it is now my duty to claim on behalf of my client; I mean the right of _republishing_, _historically_, those documents, whatever their original malignity may be, which display the character and unfold the intentions of governments, or factions, or individuals. I think my learned friend will not deny that a historical compiler may innocently republish in England the most insolent and outrageous declaration of war ever published against his Majesty by a foreign government. The intention of the original author was to vilify and degrade his Majesty’s government; but the intention of the compiler is only to gratify curiosity, or, perhaps, to rouse just indignation against the calumniator whose production he republishes. His intention is not libellous—his republication is therefore not a libel. Suppose this to be the case with Mr. Peltier. Suppose him to have republished libels with a merely historical intention. In that case it can not be pretended that he is more a libeller than my learned friend, Mr. Abbott [junior counsel for the crown, afterward Lord Tenterden], who read these supposed libels to you when he opened the pleadings. Mr. Abbott republished them to you, that you might know and judge of them—Mr. Peltier, on the supposition I have made, also republished them, that the public might know and judge of them.

You already know that the general plan of Mr. Peltier’s publication was to give a picture of the cabals and intrigues, of the hopes and projects, of French factions. It is undoubtedly a natural and necessary part of this plan to republish all the serious and ludicrous pieces which these factions circulate against each other. The ode ascribed to Chenier or Ginguené I do really believe to have been written at Paris, to have been circulated there, to have been there attributed to some one of these writers, to have been sent to England as their work, and as such to have been republished by Mr. Peltier. But I am not sure that I have evidence to convince you of the truth of this. Suppose that I have not; will my learned friend say that my client must necessarily be convicted? I, on the contrary, contend that it is for my learned friend to show that it is not an historical republication. Such it professes to be, and that profession it is for him to disprove. The profession may indeed be “a mask”; but it is for my friend to pluck off the mask, and expose the libeller, before he calls upon you for a verdict of guilty.

If the general lawfulness of such republications be denied, then I must ask Mr. Attorney-General to account for the long impunity which English newspapers have enjoyed. I must request him to tell you why they have been suffered to republish all the atrocious official and unofficial libels which have been published against his Majesty for the last ten years, by the Brissots, the Marats, the Dantons, the Robespierres, the Barrères, the Talliens, the Reubells, the Merlins, the Barrases, and all that long line of bloody tyrants who oppressed their own country and insulted every other which they had not the power to rob. What must be the answer? That the English publishers were either innocent, if their motive was to gratify curiosity, or praiseworthy, if their intention was to rouse indignation against the calumniators of their country. If any other answer be made, I must remind my friend of a most sacred part of his duty—the duty of protecting the honest fame of those who are absent in the service of their country. Within these few days we have seen, in every newspaper in England, a publication, called the Report of Colonel Sebastiani, in which a gallant British officer [General Stuart] is charged with writing letters to procure assassination. The publishers of that infamous report are not, and will not be prosecuted, because their intention is not to libel General Stuart. On any other principle, why have all our newspapers been suffered to circulate that most atrocious of all libels against the king and people of England, which purports to be translated from the _Moniteur_ of the ninth of August, 1802—a libel against a prince who has passed through a factious and stormy reign of forty-three years, without a single imputation on his personal character; against a people who have passed through the severest trials of national virtue with unimpaired glory—who alone in the world can boast of mutinies without murder, of triumphant mobs without massacre, of bloodless revolutions, and of civil wars unstained by a single assassination. That most impudent and malignant libel which charges such a king of such a people, not only with having hired assassins, but with being so shameless, so lost to all sense of character, as to have bestowed on these assassins, if their murderous projects had succeeded, the highest badges of public honor, the rewards reserved for statesmen and heroes—the order of the Garter—the order which was founded by the heroes of Cressy and Poitiers—the garter which was worn by Henry the Great and by Gustavus Adolphus, which might now be worn by the hero who, on the shores of Syria [Sir Sydney Smith]—the ancient theatre of English chivalry—has revived the renown of English valor and of English humanity—that unsullied garter which a detestable libeller dares to say is to be paid as the price of murder.

If I had now to defend an English publisher for the republication of that abominable libel, what must I have said in his defence? I must have told you that it was originally published by the French Government in their official gazette; that it was republished by the English editor to gratify the natural curiosity, perhaps to rouse the just resentment, of his English readers. I should have contended, and, I trust, with success, that his republication of a libel was not libellous; that it was lawful, that it was laudable. All that would be important, at least all that would be essential, in such a defence, I now state to you on behalf of Mr. Peltier; and if an English newspaper may safely republish the libels of the French Government against his Majesty, I shall leave you to judge whether Mr. Peltier, in similar circumstances, may not with equal safety republish the libels of Chenier against the First Consul. On the one hand you have the assurances of Mr. Peltier in the context that this ode is merely a republication—you have also the general plan of his work, with which such a republication is perfectly consistent. On the other hand, you have only the suspicions of Mr. Attorney-General that this ode is an original production of the defendant.

But supposing that you should think it his production, and that you should also think it a libel, even in that event, which I cannot anticipate, I am not left without a defence. The question will still be open, “Is it a libel on Bonaparte, or is it a libel on Chenier or Ginguené?” This is not an information for a libel on Chenier; and if you should think that this ode was produced by Mr. Peltier, and ascribed by him to Chenier, for the sake of covering that writer with the odium of Jacobinism, the defendant is entitled to your verdict of not guilty. Or if you should believe that it is ascribed to Jacobinical writers for the sake of _satirizing_ a French Jacobinical faction, you must also, in that case, acquit him. Butler puts seditious and immoral language into the mouth of rebels and fanatics; but “Hudibras” is not for that reason a libel on morality or government. Swift, in the most exquisite piece of irony in the world (his argument against the abolition of Christianity), uses the language of those shallow, atheistical coxcombs whom his satire was intended to scourge. The scheme of his irony required some levity and even some profaneness of language. But nobody was ever so dull as to doubt whether Swift meant to satirize atheism or religion. In the same manner Mr. Peltier, when he wrote a satire on French Jacobinism was compelled to ascribe to Jacobins a Jacobinical hatred of government. He was obliged, by dramatic propriety, to put into their mouths those anarchical maxims which are complained of in his ode. But it will be said, these incitements to insurrection are here directed against the authority of Bonaparte. This proves nothing, because they must have been so directed, if the ode were a satire on Jacobinism. French Jacobins must inveigh against Bonaparte, because he exercises the powers of government. The satirist who attacks them must transcribe their sentiments and adopt their language.

I do not mean to say, gentlemen, that Mr. Peltier feels any affection or professes any allegiance to Bonaparte. If I were to say so, he would disown me. He would disdain to purchase an acquittal by the profession of sentiments which he disclaims and abhors. Not to love Bonaparte is no crime. The question is not whether Mr. Peltier loves or hates the First Consul, but whether he has put revolutionary language into the mouth of Jacobins with a view to paint their incorrigible turbulence, and to exhibit the fruits of Jacobinical revolutions to the detestation of mankind.

Now, gentlemen, we can not give a probable answer to this question without previously examining two or three questions, on which the answer to the first must very much depend. Is there a faction in France which breathes the spirit, and is likely to employ the language, of this ode? Does it perfectly accord with their character and views? Is it utterly irreconcilable with the feelings, opinions, and wishes of Mr. Peltier? If these questions can be answered in the affirmative, then I think you must agree with me that Mr. Peltier does not in this ode speak his own sentiments, that he does not here vent his own resentment against Bonaparte; but that he personates a Jacobin, and adopts his language for the sake of satirizing his principles.

These questions, gentlemen, lead me to those political discussions which, generally speaking, are in a court of justice odious and disgusting. Here, however, they are necessary, and I shall consider them only as far as the necessities of this cause require.

Gentlemen, the French Revolution—I must pause after I have uttered words which present such an overwhelming idea. But I have not now to engage in an enterprise so far beyond my force as that of examining and judging that tremendous Revolution. I have only to consider the character of the factions which it must have left behind it.

The French Revolution began with great and fatal errors. These errors produced atrocious crimes. A mild and feeble monarchy was succeeded by bloody anarchy, which very shortly gave birth to military despotism. France, in a few years, described the whole circle of human society.[32]