SIR JAMES MACKINTOSH. 1765-1832. 362. FROM HIS SPEECH IN DEFENCE OF PELTIER For a Libel ON THE FIRST CONSUL OF FRANCE - BONAPARTE. Gentlemen, there is one point of view in which this case seems to merit your most serious attention. The real prosecutor is the master of the greatest empire the civilized world ever saw; the defendant is a defenceless, proscribed exile. I consider this case, therefore, as the first of a long series of conflicts between the greatest power in the world and the ONLY FREE PRESS remaining in Europc. Gentlemen, this distinction of the English press is new - it is a proud and a 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 Holland, in Switzerland, in the imperial towns of Germany, the press was either legally or practically free. But all these 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 in violate. 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 in ruins! Believing, then, as I do, that we are on the eve of a great struggle that this is only the first battle between reason and power that you have now in your hands, committed to your trust, the only remains of free discussion in Europe, now confined to this kingdom; addressing you, therefore, as the guardians of the most important interests of mankind; convinced that the unfettered exercise of reason depends more on your present verdict than on any other that was ever delivered by a jury, — I trust I may rely with confidence on the issue, — 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. -- THOMAS LORD ERSKINE. 1750-1823. FROM HIS SPEECH ON THE TRIAL OF STockdale. 363. PRINCIPLES of the Law of Libel. Gentlemen, the question you have therefore to try upon all this matter is extremely simple. It is neither more nor less than this: At a time when the charges against Mr. Hastings were, by the implied consent of the Commons, in every hand and on every table; when, by their managers, the lightning of eloquence was incessantly consuming him, and flashing in the eyes of the public; when every man was, with perfect impunity, saying, and writing, and publishing just what he pleased of the supposed plunderer and devastator of nations, would it have been criminal in Mr. Hastings himself to remind the public that he was a native of this free land, entitled to the common protection of her justice, and that he had a defence in his turn to offer to them, the outlines of which he implored them in the mean time to receive, as an antidote to the unlimited and unpunished poison in circulation against him? This is, without color or exaggeration, the true question you are to decide. Because I assert, without the hazard of contradiction, that if Mr. Hastings himself could have stood justified or excused in your eyes for publishing this volume in his own defence, the author, if he wrote it bona fide to defend him, must stand equally excused and justified; and if the author be justified, the publisher cannot be criminal, unless you had evidence that it was published by him with a different spirit and intention from those in which it was written. The question, therefore, is correctly what I just now stated it to be- Could Mr. Hastings have been condemned to infamy for writing this book? Gentlemen, I tremble with indignation to be driven to put such a question in England. Shall it be endured, that a subject of this country may be impeached by the Commons for the transactions of twenty years; that the accusation shall spread as wide as the region of letters; that the accused shall stand, day after day and year after year, as a spectacle before the public, which shall be kept in a perpetual state of inflammation against him; yet that he shall not, without the severest penalties, be permitted to submit anything to the judgment of mankind in his defence? If this be law (which it is for you to-day to decide), such a man has no trial. That great hall, built by our fathers for English justice, is no longer a court, but an altar; and an Englishman, instead of being judged in it by God and his country, is a victim and a sacrifice. One word more, gentlemen, and I have done. Every human tribunal ought to take care to administer justice, as we look hereafter to have justice administered to ourselves. Upon the principle on which the attorney-general prays sentence upon my client, God have mercy upon us! Instead of standing before him in judgment with the hopes and consolations of Christians, we must call upon the mountains to cover us; for which of us can present, for omniscient examination, a pure, unspotted, and faultless course? But I humbly expect that the benevolent Author of our being will judge us as I have been pointing out for your example. Holding up the great volume of our lives in his hands, and regarding the general scope of them, if he discovers benevolence, charity, and good-will to man beating in the heart, where he alone can look; if he finds that our conduct, though often forced out of the path by our infirmities, has been in general well directed, his all-searching eye will assuredly never pursue us into those little corners of our lives, much less will his justice select them for punishment, without the general context of our existence, by which faults may be sometimes found to have grown out of virtues, and very many of our heaviest offences to have been grafted by human imperfection upon the best and kindest of our affections. No, gentlemen, believe me, this is not the course of divine justice, or there is no truth in the gospel of Heaven. If the general tenor of a man's conduct be such as I have represented it, he may walk through the shadow of death, with all his faults about him, with as much cheerfulness as in the common paths of life, because he knows that, instead of a stern accuser to expose before the Author of his nature those frail passages, which, like the scored matter in the book before you, checkers the volume of the brightest and best spent life, his mercy will obscure them from the eye of his purity, and our repentance blot them out forever. 364. FROM HIS SPEECH ON THE TRIAL OF THOMAS HARDY. Gentlemen, my whole argument then amounts to no more than this, that before the crime of compassing THE KING'S DEATH can be found by you, the jury, whose province it is to judge of its existence, it must be believed by you to have existed in point of fact. Before you can adjudge A FACT, you must believe it, not suspect it, or imagine it, or fancy it, — BUT BELIEVE IT; and it is impossible to impress the human mind with such a reasonable and certain belief, as is necessary to be impressed, before a Christian man can adjudge his neighbor to the smallest penalty, much less to the pains of death, without having such evidence as a reasonable mind will accept of, as the infallible test of truth. And what is that evidence? Neither more nor less than that which the constitution has established in the courts for the general administration of justice; namely, that the evidence convinces the jury, beyond all reasonable doubt, that the criminal intention, constituting the crime, existed in the mind of the man upon trial, and was the main-spring of his conduct. The rules of evidence, as they are settled by law, and adopted in its general administration, are not to be overruled or tampered with. They are founded in the charities of religion, in the philosophy of nature, in the truths of history, and in the experience of common life; and whoever ventures rashly to depart from them, let him remember that it will be meted to him in the same measure, and that both God and man will judge him accordingly. These are arguments addressed to your reasons and consciences, not to be shaken in upright minds by any precedent, for no precedents can sanctify injustice; if they could, every human right would long ago have been extinct upon the earth. If the State Trials in bad times are to be searched for precedents, what murders may you not commit; what law of humanity may you not trample upon; what rule of justice may you not violate; and what maxim of wise policy may you not abrogate and confound? If precedents in bad times are to be implicitly followed, why should we have heard any evidence at all? You might have convicted without any evidence, for many have been so convicted, and in this manner murdered, even by acts of Parliament. * * ** * In times when the whole habitable earth is in a state of change and fluctuation, when deserts are starting up into civilized empires around you, and when men, no longer slaves to the prejudices of particular countries, much less to the abuses of particular governments, enlist themselves, like the citizens of an enlightened world, into whatever communities their civil liberties may be best protected, it never can be for the advantage of this country to prove, that the strict, unextended letter of her laws, is no security to its inhabitants. On the contrary, when so dangerous a lure is everywhere holding out to emigration, it will be found to be the wisest policy of Great Britain to set up her happy constitution, the strict letter of her guardian laws, and the proud condition of equal freedom, which her highest and her lowest subjects ought equally to enjoy ; — it will be her wisest policy to set up these first of human blessings against those charms of change and novelty which the varying condition of the world is hourly displaying, and which may deeply affect the population and prosperity of our country. In times when the subordination to authority is said to be everywhere but too little felt, it will be found to be the wisest policy of Great Britain to instil into the governed an almost superstitious reverence for the strict security of the laws; which, from their equality of principle, beget no jealousies or discontent; which, from their equal administration, can seldom work injustice; and which, from the reverence growing out of their mildness and antiquity, acquire a stability in the habits and affections of men, far beyond the force of civil obligation; whereas severe penalties and arbitrary constructions of laws intended for security, lay the foundations of alienation from every human government, and have been the cause of all the calamities that have come, and are coming, upon the earth. 365. FROM HIS SPEECH ON PARLIAMENTARY Reform. Dreading, therefore, the danger of total, and seeing the difficulties as well as the unprofitableness of partial alteration, I object to this first step towards a change in the constitution of the House of Commons. There are wild theories abroad. I am not disposed to impute an ill motive to any man who entertains them. I will believe such a man to be as sincere in his conviction of the possibility of realizing his notions of change without risking the tranquillity of the country, as I am sincere in my belief of their impracticability, and of the tremendous danger of attempting to carry them into effect; but for the sake of the world as well as for our own safety, let us be cautious and firm. Other nations, excited by the example of the liberty which this country has long possessed, have attempted to copy our constitution; and some of them have shot beyond it in the fierceness of their pursuit. I grudge not to other nations that share of liberty which they may acquire in the name of God let them enjoy it! But let us warn them that they lose not the object of their desire by the very eagerness with which they attempt to grasp it. Inheritors and conservators of rational freedom, let us, while others are seeking it in restlessness and trouble, be a steady and shining light to guide their course, not a wandering meteor to bewilder and mislead them. Let it not be thought that this is an unfriendly or disheartening counsel to those who are either struggling under the pressure of harsh government, or exulting in the novelty of sudden emancipation. It is addressed much rather to those who, though cradled and educated amidst the sober blessings of the British constitution, pant for other schemes of liberty than those which that constitution sanctions other than are compatible with a just equality of civil rights, or with the necessary restraints of social obligation; of some of whom it may be said, in the language which Dryden puts into the mouth of one of the most extravagant of his heroes, that, 66 They would be free as nature first made man, When wild in woods the noble savage ran." Noble and swelling sentiments! - but such as cannot be reduced into practice. Grand ideas! - but which must be qualified and adjusted by a compromise between the aspirings of individuals and a due concern for the general tranquillity; must be subdued and chastened by reason and experience, before they can be directed to any useful end! A search after abstract perfection in government may produce, in generous minds, an enterprise and enthusiasm to be recorded by the historian, and to be celebrated by the poet: but such perfection is not an object of reasonable pursuit, because it is not one of possible attainment: and never yet did a passionate struggle after an abso |