He became an ensign of the Royals and married not long after. He was sent with his corps to the Mediterranean, and stationed either with his regiment or a detachment of his regiment, at Minorca; there, under the influence of an ardent feeling of religion, which he owed to the anxious inculcations of his mother, from whom he received the rudiments of education, he is said in the absence of the chaplain, to have composed more than one sermon, and to have delivered them to the assembled officers and privates of his regiment. It never occurred to me to ask him whether there was truth in this report; but he has frequently talked to me of anecdotes which were circulated of him, some of which he confirmed while he contradicted others, and never spoke of this as unfounded; from my knowledge of his character it is highly probable, and I believe it is true. About three years ago he was at Tunbridge Wells with Mr. Coutts, and while there, pointed out to a friend of mine a building, and said, "There, when it was a public room, I preached a sermon of my own composition to the company;" this was for a wager. He returned to England in 17— with his regiment, the father of three children. The anxiety of his mother, whose affections and care for her family rendered her most estimable, and have endeared her memory to her descendants, was excited by Thomas, who had nothing but his pay for the support of his wife and his children, likely soon to become more numerous. Her prudence suggested to her another profession for him by the gains of which he might avoid the destitution which she saw hanging over his head. With this design, she sent for Mr. Adam, the barrister (now the Commissioner of the Scotch jury courts), that she might receive the assistance of his experience and advice. On his arrival she said, "My son Tom has been thoughtless enough to marry a woman without fortune, and she has brought him a family which he cannot support himself, nor I for him,—what is to be done? And I have been thinking that he must sell his commission, go to the bar, and be Lord Chancellor." It is interesting to reflect, that while this excellent woman was endeavouring to conceal the bitterness of an affectionate mother's anguish for her son's imprudence, she was unconsciously pronouncing a prophecy. Nor will it be less to see how trifling an event would have prevented its accomplishment; Mr. Adam told her that there were a great many steps from the entrance of the profession and the very high rank which she purposed, many of which he should be happy to congratulate her son on attaining. The conference proceeded, the obstacles to success at the bar were weighed against the certainty of domestic calamities if he remained in his present profession, and they parted, both of opinion, that in the direction of the bar, Thomas Erskine was most likely to leave behind his present embarrassment and reach prosperity. It remained, however, to procure the consent of her son; that was not easy: he had no predilection for the bar, and was attached to the army, and his regiment, to the officers of which his sprightly and amiable manners had endeared him, and in which he was soliciting promotion and expecting it. At last, however, his conditional consent was drawn from him. He agreed to let his mother dispose of him as she wished, if he should be unsuccessful in his application for the vacant captaincy in the Royals. This was far from satisfying his mother, but he was peremptory, and she could not induce him to more positive terms; thus, if Erskine could have gained the rank of captain in the Royals, the destination of which was, then, an American colony, by which he might have gained the privilege of being scalped by the savages, or perishing in the swamps or forests of North America, the country would never have known that splendid eloquence, which is its boast and its pride; Tooke, Thelwall, Hardy, and the rest of those unfortunate men who were held so long under the terror of death, would probably have been hanged, and the country oppressed by a gloomy precedent of constructive treason, under which no man who has raised himself in opposition to a corrupt and sinister government could have been safe; one is inclined to shudder, like a man whom a shot has missed only by the breadth of a hair, in contemplating how near so much danger was incurred, and so much benefit lost. But it is not on the magnitude, but continuity of the chain, that great results depend; on examining the past, we shall find that as small a link struck out at one point or other of succession, would have disappointed the most important events of history. Happily for Erskine and his country, his claims from the merit of his services were eluded, and though he was more urgent in his applications, since the alternative was to be the bar, he was refused promotion. There was a singular coincidence in the fortune of the late Lord Chatham and Erskine: the former was sent into parliament and driven into violent opposition to Sir Robert Walpole, because that minister had deprived him of a company of horse, and dismissed him the service, an act of which the minister had reason to repent. He was like the emblem of envy with the recoiled dart in his own bosom; except Charles I., who stopped Hampden and Cromwell from embarking upon the Thames to follow liberty into the wilderness of America, no man had ever so much reason to curse himself for his own acts. In the same manner a slight of Erskine's claims to promotion sent him to display an eloquence that had never yet been heard at the English bar. His fame as an advocate, drew the notice of the Whig party on him; he was enlisted in their ranks and added an importance to the opposition, which not unfrequently increased the embarrassment of the minister. While he was held in suspense by those who had the disposal of commissions, he was quartered at Maidstone, and entering the court during the assizes there, was placed in his military uniform upon the bench, beside the great Lord Mansfield, to whom he was distantly related, and who at intervals of business, conversed with him on the proposed change of arms for the gown. This was another of the accidents which, by minds of a certain frame would be regarded as an omen. After relating this anecdote, he added, "Only four years from that time, I was at the place in the lead of that very circuit." All his hopes of promotion at an end, the commission so unequal to the demands for subsistance upon it, was disposed of, and he was at once entered a student of the Law Society of Lincoln's Inn, and a Commoner at —- College, Cambridge

* * * * *

A few days before he was called to the bar, a friend came and invited him to accompany him to dine at the villa of a wine merchant, a few miles from London. The allurements were a good dinner, and wine not to be procured but by a dealer, who could cull his own stock from thousands of pipes, and they were not to be resisted by a young man fond of pleasure, to whom such luxuries must come gratuitously, if they come at all. Economy, which was important to Erskine, was not quite beneath the regard of his friend, and after many proposals of several modes of conveyance, which were all rejected, either for their expense, or their humbleness, they agreed to walk; I have heard playful exertions of the mind or body attributed to what was denominated an excessive flow of animal spirits, a phrase that sounds significantly in the ear, but gives no information to the understanding. Those who use it, mean, I suppose, to express that when the body has received more nutriment than is necessary to promote its growth, or maintain it the redundancy is thrown off in almost involuntary exertions of the limbs or of mind. If this physiology be just, Erskine had an extraordinary surplus of supply,—that regular discharge like the back water of a mill, and it found vent in various gambols and effusions of humour on the way to the wine merchant's. While Erskine, buoyed by high health and ardent hope, scarcely felt the ground that he trod, the sight of a ditch by the side of the road, tempted him to exercise his agility. The impulse, and obedience to the impulse, were the same. He made the attempt, but the ditch was too wide for his spring, and he leaped a little short of the opposite bank. His dress above was splashed with foul water, and his legs booted in mud. Nothing was to be done on his part but to return, and his companion with a kindness that does him honour, would have returned with him, but this, Erskine was too generous to allow; and while his friend continued his journey to the wine merchant's house and sumptuous dinner, Erskine solitary and in pain (for he had severely sprained his leg) returned to town; on reaching his lodgings Mrs. Erskine proposed a change of dress, and urged him yet to go to dinner at the wine merchant's. He objected his lameness from the sprain, which she answered by proposing a coach and the expense, which he hinted, was not to be weighed against the benefit he might derive from the friends which his manners and spirits were likely to make him in the mixed and numerous company he would meet there. This was a consideration so important to a young man on the verge of the bar, that Erskine's disinclination was overcome by these reasonings of his wife. A coach was procured, and he again set out, but he did not arrive till dinner was half over, and found himself placed by this accident by the side of Captain Bailey, of Greenwich Hospital. With the modesty which is always united with true genius, Lord Erskine always spoke of this event as the greatest instance of good fortune which ever befel him. But for this, he said to me, "I might have waited years for an opportunity to show that I had any talent for the bar; and when it occurred I should not have pleaded with such effect, depressed and mortified as I might have been by long expectation, and its attendant evils, instead of seizing it with all the energy and confidence of youth elated with hope." I record this to show how little he was actuated by arrogance or presumption; I by no means assent to his opinion, on the contrary, I think he would have waited a very short time for occasion to exert his prominent talents. He slipt from high ground into the profession. His rank would have drawn notice upon him, and he had friends full of eagerness, and not altogether without power. No more is the partiality which, it is said, was manifestly shown him by Lord Mansfield, to be deemed a main cause of his success. On the contrary I am so little inclined to attribute such an effect to it, that I believe even the hostility of the bench could not have kept Erskine from rising. His mind was not of the ordinary mould,—he was excited by obstacles. Such was his temperament, that the damp slight of discouragement which would have quenched common spirits, by the ardour of his mind would have been converted into fuel, and have increased the splendour with which he burst forth at once at the English bar. How was the delay of opportunity, or the frown of the judge to suppress the eloquence whose first essay excelled, both in matter and delivery, the latest efforts of the most experienced speakers in our courts? when he rose Dunning, Bearcroft, Wallace and others, were in the height of their reputation as speakers in Westminster Hall. They were even eloquent, according to the judgment of the day gazed at as the luminaries of the profession; but, brilliant as they were, they were combust in the splendour of Erskine, on his first appearance as an orator. This considered, it is in vain to pretend, that, but for favourable conjunctions which have happened to him and not to others, the prosperous and devious career on which he immediately entered, could have been prevented or even long delayed.—[Alas, no more!]

BRIDGE STREET BANDITTI, v. THE PRESS.

REPORT OF THE TRIAL OF MARY-ANNE CARLILE, FOR PUBLISHING A NEW YEAR'S ADDRESS TO THE REFORMERS OF GREAT BRITAIN; WRITTEN BY RICHARD CARLILE; AT THE INSTANCE OF THE CONSTITUTIONAL ASSOCIATION: BEFORE MR. JUSTICE BEST, AND A SPECIAL JURY, AT THE Court of King's Bench, Guildhall, London, July 24, 1821.

WITH THE NOBLE AND EFFECTUAL SPEECH OF MR. COOPER, IN DEFENCE, AT LARGE.

LONDON: PRINTED AND PUBLISHED BY R. CARLILE, 55, FLEET STREET. 1821.



DEDICATION.

TO HENRY COOPER, ESQ., BARRISTER AT LAW;

For the noble stand and more noble attitude which he took on this trial—for the very eloquent, very bold, and very honest style of his defence—and, above all, for the manly resistance which he made to, and the contempt which he showed for, the menacing frowns of those persons who conducted, advocated, and supported this prosecution: and to those HONEST JURYMEN who resisted their fellows in the attempt to throw the defendant into the hands of her enemies, and the enemies of their country; and who, by their honesty and independence, have given a death blow to those corrupt, wicked, and malignant would-be-censors of the Press, calling themselves a Constitutional Association; this report of the proceedings is gratefully dedicated by, and the sincere and heartfelt thanks is hereby offered to them, of

MARY-ANNE and RICHARD CARLILE.



REPORT, &c., &c.

This was an indictment at the prosecution of "The Constitutional Association," and their first attempt to obtain a verdict. The defendant pleaded Not Guilty.

The following are the names of the Jurors:—

SPECIAL.

John Stracey, of Smithfield Bars, Merchant, Philip Jacob, of the Crescent, Cripplegate, ditto, James Byrne, of Dyer's Court, ditto, Charles Wright, of the Old Jury, ditto, (foreman) Henry Houghton, of King's Arms Yard, ditto, John Webb, of Coleman-street, ditto.

TALESMEN.

Joseph Blackburn, Russia Mat Dealer, John Davis, Painter, John Williams, Cheesemonger, Bryan Mills, Packer, Michael Williams, Agent, Frederick Bennet, Smith.

Mr. Justice BEST, at the request of the defendant, enquired if either of the Jurors was a member of the Constitutional Association. The answer was in the negative.

Mr. TINDALL opened the pleadings.

Mr. GURNEY appeared to conduct the prosecution, and Mr. COOPER was for the defendant.

Mr. GURNEY.—May it please your lordship; gentlemen of the Jury; my friend, Mr. Tindall, has told you the nature of this action, and it is now my duty to lay this case before you. The indictment has been found by a grand jury, upon the prosecution of the Constitutional Association; and it charges the defendant, Mary Ann Carlile, with publishing a libel upon the government and the constitution of this country; and, gentlemen, after a not very limited experience in these cases, I will say, that a more criminal and atrocious libel never met my observation. It purports to be written by Richard Carlile; it is dated from Dorchester Gaol, and it has been published by the defendant, the sister of that man who is now suffering imprisonment for his own criminal conduct. It is entitled, "A New Year's Address to the Reformers of Great Britain;" and, among other objectionable passages not charged as libelous, it contains the following; "As far as the barrack system will admit"—

Mr. Justice BEST.—I do not think that you are entitled to read that passage, Mr. Gurney.

Mr. COOPER.—I think not, my lord; I was just rising to interrupt Mr. Gurney.

Mr. GURNEY.—I have no objection, my lord, to abstain from reading the passage to which I was about to call your attention. I shall read the passage which is charged as libelous, and if the learned counsel for the defendant can find throughout a single passage to qualify its malignity, do you, gentleman, give the defendant the benefit of it. The passage is this:—"To talk about the British Constitution, is, in my opinion, a sure proof of dishonesty; Britain has no constitution. If we speak of the Spanish constitution, we have something tangible; there is a substance and meaning as well as sound. In Britain there is nothing constituted but corruption in the system of government; our very laws are corrupt and partial, both in themselves and in their administration; in fact, corruption as notorious as the sun at noon-day, is an avowed part of our system, and is denominated the necessary oil for the wheels of the government; it is a most pernicious oil to the interests of the people." And in another passage the following words were contained:—"Reform will be obtained when the existing authorities have no longer the power to withhold it, and not before. We shall gain it as early without petitioning as with it, and I would again put forward my opinion, that something more than a petitioning attitude is necessary. At this moment I would not say a word about insurrection, but I would strongly recommend union, activity, and co-operation. Be ready and steady to meet any concurrent circumstances." Now, gentleman, these are the passages charged as libelous, and I defy even the ingenuity of my learned friend to show that they are not most odious libels. What! are the people of this free and independent country to be told that they have no constitution? It is an assertion, the malignity of which is only equalled by its falsehood. We have a free and glorious constitution. It has descended to us from our brave and free ancestors, and I trust that we, too, shall have virtue and magnanimity enough to transmit it unimpaired to our posterity. We have laws, too, equal in their administration. We have a constitution where no lowness of birth—no meanness of origin—operate as an obstacle to preferment; in which the chief situations are open to competition, and for which the only qualifications are integrity and information. Our laws are here stigmatized as partial and corrupt. If they were not impartial, this man would never have dared to vilify them. The very accusation proves that the charge is false; for if it were true, this libeler must have suddenly suffered for this assertion. It is because that they are administered in a spirit of mercy unknown to the laws of any other country—it is because they are administered in tenderness, that this man has had the power to promulgate his vile and odious falsehood. He thought it meet and right, and most becoming too, to tell the world that this was not the precise time for insurrection. He plainly indicates, that he has no objection to it; but he would not say a word about it at present, the time was not come; but he tells his fellow reformers to be "ready and steady to meet any concurrent circumstances." Gentlemen, it would be an idle and impertinent waste of time to make any further observations upon the pernicious tendency of this libel. But what is the defence which is to be set up by my learned friend? Are we to be told that the prosecution of this libel is an invasion of the liberty of the press? I will not yield to my learned friend, nor to any man in existence, in a just regard for the freedom of the press. But who, I would ask, is invading its liberty? He who brings to justice the offenders, or he who under the sacred form of liberty promulgates such language as I have just read to you? I do not think that on this subject you can entertain a doubt. I feel the most perfect confidence in committing this case to your good sense. If you believe that the defendant is guilty of publishing this libel with the intention charged, you will pronounce your verdict of guilty. If, on the other hand, you think that the passages which I have read to you contain nothing libelous, or that the defendant is not the publisher, I shall sincerely rejoice in your conscientious acquittal.

James Rignall deposed, that he had purchased the pamphlet in question of the defendant, at her shop in Fleet Street, on Friday evening, the 9th of March. There were several other copies lying about on the counter.

Cross-examined by Mr. COOPER.—Who are you?—I am an agent to the Society for the Suppression of Vice.

But you are also employed by these constitutional people, as they call themselves?—Only in this one instance.

Were you employed to purchase the pamphlet in question?—I purchased that and others.

You were employed by the Constitutional Society to purchase them?—Yes, I was.

Who sent you?—Mr. Murray.

The Attorney?—Yes.

And he directed you to purchase this pamphlet, eh?—He did not particularize any.

Did he state his object in the purchase?—No.

What wages are you to have?—I have no wages.

Then you perform this agreeable duty gratuitously?—No, I do not say that.

Then how are you paid?—I made a charge for my time.

Perhaps you belong to the society?—No, indeed I do not (with vehemence).

Well, I do not wonder that you should be anxious to separate yourself from the society (a laugh amongst the auditory).

Mr. GURNEY.—I desire that no such remarks may be made.

Mr. COOPER.—What have you had for this particular job?—I have made a charge for several other little things I did (a laugh).

Mr. GURNEY (to the spectators),—I shall certainly move his Lordship to take notice of some particular persons that I see misconducting themselves.

Cross-examination resumed.—What other jobs did you for the association?—I did several jobs; that I will not deny.

How much have you had for these little jobs?—I declare upon my oath, I cannot state particularly how much I had for these little jobs. I made a charge. I don't recollect exactly what my charge was.

Come, come, the round sum?—I can tell you pretty nearly the round sum, if that will satisfy you. I think it was above seven pounds and under seven guineas. I was sent on other business beside this.

I wish to know what that other business was?—Is it necessary to answer that question?

I think it necessary.—Then I will take the sense of the Court upon it. I have no objection to answer that or any other question, if my Lord thinks I ought.

Mr. Justice BEST (smiling).—It tends to nothing; but it is as well to answer it.

Then I purchased come other different things for the association, but it was not in consequence of any general or particular orders I received: I went to purchase these publications which I myself thought libels; I cannot state exactly now what they were.

Then you did that, I suppose, without any hope of reward?—I don't state without any hope of reward; I expected to be paid for my time.

Oh, then, it was not altogether out of virtue and patriotic feeling?—Those were two of my motives, most certainly, but not the only ones (general laughing).

Has this been the usual way of getting your living?—It has for a year and a half past; I have had no other feasible occupation during that time.

I suppose you received a considerable sum in the course of this honourable employment?—I have told you the sum total was about 7 pounds.

Mr. Justice BEST.—Do you think that material, Mr. Cooper?

Mr. COOPER.—I do think it material, to show the sort of agents that this honourable society employs. (To witness.) And what did you do before you suppressed vice and libels?—I got my living honourably as an officer in his Majesty's customs.

And are you still an honourable officer, &c.?—No; I have lost my situation.

Retired upon a pension?—No.

How old are you?—Fifty-four.

No pension, eh?—None.

Re-examined by Mr. GURNEY.—I have been in the employment of the Society for the Suppression of Vice for a year and a half; I have been paid by them for my services. In this instance, and in several others, I have made some purchases for the Constitutional Association.

Horatio Orton was then called. A general murmur ran through the Court, which was crowded to excess; and all persons most deferentially gave the witness way.

Examined by Mr. GURNEY.—I was a witness before the Grand Jury. On the 10th of March I purchased another copy of the pamphlet in question from Mary Anne Carlile; I had it from her own hand.

Cross-examined by Mr. COOPER.—How came you to purchase this on the 10th of March?—I was directed by Mr. Murray, the solicitor, to purchase it.

This is the gentleman? (pointing to Mr. Murray, in court)—Yes.

He is the Honorary Secretary to the Association, and the disinterested attorney for this prosecution?—Yes, I was sent by him for the express purpose of purchasing this pamphlet; I should not have gone if I had not been directed by him.

What is your situation in the society?—My situation to the Association is as clerk.

Clerk to Mr. Murray?—No; I am not in Mr. Murray's office.

In the Society's office, separate from the attorney's office?—Yes.

In what situation were you before?—I used to assist my brother in his correspondence with country newspapers.

Not for the town papers?—No, for himself; he takes the reports of the House of Lords' proceedings, and transmits them to the editors of the country papers; I used to assist him in the copying, and he paid me for my trouble.

What is your salary in your present honourable situation?—It is not fixed.

It depends upon your exertions?—Yes.

Then you work at present by the piece?—No, I do not; the committee have not yet come to a determination about my salary; I have not made any demand for salary; I have not proposed any sum; I mean to swear that; not any sum has been proposed to me; I don't say that I would work for the Society gratuitously; if I want five or ten pounds I know where to go for it; not of the Association; I can have it of my brother; I expect to receive something of the Association.

In your modesty, what may be the extent of your expectations?

Mr. GURNEY submitted that this was not a proper mode of cross-examination.

Mr. COOPER.—I think it is, and I shall persist in it until I am told by my Lord that it is irregular.

Mr. Justice BEST.—I don't think any part of the cross-examination is approaching to anything like regularity.

Mr. COOPER.—If your Lordship says I am not to be allowed the same latitude which is allowed to counsel on other occasions, I shall not persevere.

Mr. Justice BEST.—I have no objection to your taking your own course, but I think this course of examination ought to have been stopped long ago. I think every fair and reasonable indulgence ought to be allowed to counsel in such a case, but if this was a mere civil case I should have stopped you long ago.

Mr. COOPER.—Then I shall proceed in my own way, with your Lordship's permission. (To witness.) Is this the first job you have been employed in?—I don't recollect any other of this kind.

Are you sure you have been employed upon no other job of this kind?—I cannot bring to my recollection whether I have not been employed on any other. I may have been, but I am not aware of any.

Do you know a man named King?—Yes, perfectly.

Do you recollect doing a job in which he was concerned?—I don't recollect doing a job of this kind against King. I might if I saw the paper before me with my mark upon it. There are so many of them that I cannot recollect any in particular.

Have you not made an affidavit in the job against King?—Yes; but that is since this. I cannot recollect whether I have done any other jobs. I have been in the employment of the Association about six months. I commenced on the 8th of January. Since the 10th of March, I don't recollect how many jobs I have been engaged in; they are so numerous I can't recollect. The orders which Mr. Murray gave me, were to go and purchase the Reformers' Address at the defendant's shop. I had not any general directions to buy at this or that shop—not from Mr. Murray. I had from other persons, general directions to make purchase of works; one of those persons was Mr. Sharpe.

He is the Honorary Assistant Secretary?—Yes.

(All the preceding questions excited considerable sensations amongst the audience, and produced a chorus of humourous tittering).

Mr. Justice BEST.—The effect of these questions, Mr. Cooper, you must feel. You cannot wish, I am sure, to excite the sort of response which comes from below the bar. You must see that it is done on purpose. You cannot wish, I am sure, to produce that effect.

Mr. COOPER.—My Lord, I am the last man in the world to do any thing inconsistent with the gravity and decorum of a Court of Justice. I disclaim any such intention; and I must disdain the insinuation of Mr. Gurney, that I have taken up this cause for the purpose of adding to the public odium in which the honourable Association is held.

Mr. GURNEY said his learned friend, Mr. Cooper, was mistaken; he had never insinuated anything of the kind.

Mr. Justice BEST.—I am sure no gentlemen at the bar would wish to produce the effect which all the questions put by you have had below the bar.

Mr. COOPER said he could not control the feelings of the auditory. He was only anxious to do his duty to the best of his humble ability, and nothing should deter him from discharging that duty freely and undauntedly.

Cross-examination resumed.—What is the office of the Honorary Assistant Secretary?—It is to do every thing at the office.

To superintend the business of the office?—I consider him as the acting manager.

Then the Honorary Secretary has a sinecure?—What does the word honorary mean but a sinecure?

Mr. COOPER.—"May it please your Lordship; gentlemen of the jury; I am exceedingly sorry that some more able counsel has not to address you on this most important and momentous occasion. I should have been unequal to the task, under any circumstances."

Mr. GURNEY.—"Stop a minute." (The learned counsel for the prosecution here intimated, that he had something to add to his case; but, after a pause, he intimated to Mr. Cooper, that he might proceed.)

Mr. COOPER.—Gentlemen, under any circumstances, this would be a task, for which, I fear, I am very ill qualified; but under those, in which I stand to address you on this question, I feel my incapacity doubled and trebled. I appear before you without notice, and almost wholly without preparation. I was, indeed, applied to by the defendant, some months ago, and negotiated with (if I may use the phrase) to undertake her defence. But, after this, many days and even weeks passed, during which I heard nothing of the case; and I began to suppose that the defendant had determined to employ some other counsel, or trust herself to her own address to the jury against this charge. At the end of a month, however, I was again applied to; and, again, weeks having elapsed, without my hearing any more of this prosecution, I dismissed it entirely, not only from my mind, but from my memory; nor was it, till last night, that, that I was once more informed that I was to be employed as the defendant's counsel; and my brief at last put into my hands. I was then unfortunately engaged in other important business: and the time, I have taken to collect my own thoughts upon this question, and huddle together a few extract's from writers of authority, I have been obliged to borrow from sleep; and have, therefore, in a great measure counteracted myself; for I have lost in strength, what I have gained in information, and appear before you ill able, indeed, to do justice to this cause. But, whilst I make this statement to excuse my own deficiency, I am bound to acquit the defendant of any reproachable negligence of her own interests. I understand, that the cause of her late application to me, is, that having had, as a mere matter of grace, three weeks' notice of trial from another society, by which she has been prosecuted, she mistook it for her right; and expected the same notice from her present prosecutors. As she had not received any such notice (and indeed she was not in law entitled to it), she supposed, that either she was not to be brought to trial at these sittings, or that the charge was abandoned; as I wish it had been, and as it ought to have been; for I am convinced, that this prosecution cannot be sustained by either law or reason; and that it must be from the weakness of the counsel alone, that you, gentlemen, can be betrayed to pronounce a verdict of Guilty against the defendant.

Gentlemen, it is my duty to clear this case of every possible prejudice that may hang about it in your minds before I enter into the merits of my defence. I do not know how you are affected, but I well know, that with many persons, I should have a host of prejudices to contend against, in the very name alone of Carlile. Many either believe, or affect to believe, that the very sound is an omen and an execration, and that either he cannot be sincere and honest in the opinions which he professes, or if he be, that those opinions are incompatible with the existence or practice of any moral or social virtue. But, whatever his opinions may be, and whatever your sentiments upon them, I have at least a right to ask of you not to allow any prejudice against the relation, against the brother, to warp your judgment on the trial of the defendant: for, what can possibly be more remote from justice, than, instead of judging a person fairly for his own conduct, to condemn him by our opinion of the sentiments and character of another? I hope and trust that you have entertained no such prejudices: but if you have, I feel assured, that you brought them no further than the threshold of the court:—at that door they fell from you, like the burthen from the pilgrim (in the beautiful allegory) on his reaching the cross; and you stand there with your minds unbiassed, free and pure, to decide between the crown and the defendant in this cause. But it is not only my duty, gentlemen, to clear the defendant, but to extricate the counsel from every unfavourable suspicion, lest it should, possibly, by any confusion of the client with the advocate, operate to the disadvantage of the defendant.

Whatever, therefore, may be thought of the pamphlet which is before you, as a libel, or of the writer or publisher, I most solemnly affirm, that there is no one who more warmly admires the English constitution, as it stands in theory and ought to exist in practice, than myself, nor is there any one who would more willingly shed his blood if it were necessary, or even lose his life in its support. It is needless then to say, that a more irreconcileable enemy would not be found than myself to the man (if any such there be) who could attempt to overturn our mingled and limited forms of government: and substitute a wild democracy in their place. I think, indeed, that a democratic form of government, however specious in argument, is by no means so capable of raising a state to that eminence of civilization and prosperity, which this country has reached; a condition, for which it is indebted to better times, while the practice concurred with the theory of our government; but which, unless the practice is brought back to the theory, I venture to predict, has not much longer to continue. I, gentlemen, appear here only in the discharge of my duty; and to redeem that pledge to defend the accused, which every man, upon assuming this gown, gives to the public of England. I would, however, have it distinctly understood, that it is only to guard against prejudice to the defendant, and not from any apprehensions for myself, that I trouble you with this explanation. For myself, I am extremely careless, what may be thought of me for having come forward to defend this unfortunate woman. I do not expect to escape obloquy in the present overheated disposition of the country, How can I expect it? when even the present Lord Erskine, whose talents and independence should have rendered his character sacred, as soon as it was known that he was to be counsel for Paine was overwhelmed with abuse, and threatened with the loss of his situation, as attorney general to the Prince, if he did not decline the defence. But he knew his duty and discharged it. And for which will he be most honoured by posterity? By which most ennobled? for having in spite of threats, and all the seductions of self-interest, persevered in his duty? or for having been exalted to the peerage of England and adorned with the national order of Scotch knighthood? But, if even my humble situation, should not exempt me from the attacks of the malicious and furious, I can tell them that their malignity will be disappointed. Instead of regret and mortification it will be a source of pride and happiness to me. Small as my chance may be of credit for the assertion, I declare, that I propose to myself no reward so high for my exertions, as the consciousness of having, in spite of all hopes on one side, or fears on the other, honestly discharged my duty.

If ever in my course in the profession, I should find myself wounded either in fortune or reputation, instead of regretting and deploring it, I will rejoice and exult at it, and, at those hours, when in full confidence of his companions, it is neither indecent nor unsafe in a man to speak of his own actions, I will boast of it, I will shew it, as an honourable scar.

Gentlemen, with these preliminary observations, I will proceed to introduce my case to you. My learned friend, Mr. Gurney, has opened this prosecution with all that pomp of eloquence, and solemnity of declamation, which he possesses in so ample a manner, and which make him so accomplished an advocate. But what has he done? All, indeed, that he or any one else could have done: yet, nothing more than repeat those arguments, which are trite, and worn like a turnpike, and have been topics for counsel after counsel, through a thousand of these prosecutions; while he has left all the great subjects of consideration that present themselves to the mind on these questions, wholly untouched. He has declared, indeed, but without showing you why, that the words, charged in the indictment are an atrocious libel; in which, as it appears to me, he has been rather premature, for a libel they are not, and cannot be, unless your verdict should so declare them. I assert, gentlemen, I am sure his Lordship will nod assent to me while I assert it, that you are the only judges of the law of libel in this case; and this paper, for which the defendant stands before you, is either a libel or not a libel, as you may in your consciences think it, and on your oaths pronounce it.

The statute, indeed, which declares this the law, has given, or rather left with his Lordship, the right of stating his opinion on that question to you; but I am sure he will not think that I exceed my duty, as an advocate, when I say, that though it is your duty to receive his opinion with respect, and give it the most attentive consideration, yet it still leaves you free to your own judgments, and if after weighing his opinion, you find yours unaltered, you have not only a right, but it is your duty to reject his opinion and to act on your own.

Gentlemen, I submit that it is within your province to take into consideration the nature and operation of those writings, which are called in prosecutions of this kind libels. You are sitting there to try this charge as an offence by the common law of the land. The defendant is accused of having committed an act in the nature of a nuisance; and you are to judge whether that act could operate as a nuisance or not. You are not bound, because pamphlets have been prosecuted as libels time out of mind, or even because they have been declared libels by the verdicts of preceding juries to tread in no other path than their steps; and to find similar, or even the same matter, libels, if you should not think them criminal or dangerous. If you should be convinced by argument, not only that the pamphlet before you is not a libel, but that almost all those political writings, which it has been the habit of certain people, taking up the cry from their leaders, to call libels, are not merely not dangerous but beneficial to political society; is it possible to conceive, that you can be induced to pronounce a verdict of guilty against the defendant! How can you come to such a conclusion; as that there should be punishment where there has been no mischief, and where there could have been none, and if there not only has been no mischief, but could have been none,—nay, if even there must have been benefit, how can you lay your hands on your hearts, and say there has been crime? Suppose a man was indicted for a nuisance in doing that for which a number of persons had in succession been indicted and convicted, would that oblige a jury to find a verdict against a person at this day indicted for the same act, if he should prove to them by evidence, which their minds could not resist, that what had been complained of as hurtful to public health and morals was noxious to neither, but salutary to both? Would you, in such a case, though a thousand preceding juries had, in their ignorance, pronounced verdicts of guilty, follow their example, against your full knowledge and internal conscience? To illustrate by a familiar instance, when hops were first introduced into this country they were very generally believed to be pernicious. Several persons were I believe prosecuted and convicted for using them; yet now they are known not only to be not pernicious, but nutritious; they form a principal ingredient in the daily beverage of our tables, and are even employed largely in medicine. Let us now imagine a man prosecuted for the use of hops or any other drugs upon the ground that they injured health, and that upon his trial he should fill the box with men of science as witnesses, and shew you to moral demonstration, that so far from being injurious, they were highly salutary, would you, because other juries had convicted in a state of ignorance, imitate their blindness, and convict the defendant? Certainly not. Then to apply this to writings, prosecuted as libels, though there may have been hundreds, and thousands, nay tens of thousands of convictions upon them, yet, if you should be convinced, that what are usually called libels (and this among them) cannot be injurious, but so far from it, that they are innocent and even salutary to the state, in which they are published, would you hand over the publisher to punishment by a verdict of guilty? But I am anticipating, I fear, my defence, and introducing too early observations, which will better be urged in a subsequent part of my address to you. I will, therefore, pass at once to the paper charged as a libel in the indictment, and examine, under what circumstances it has come before you. And in the first place, as to the publication, without which (whatever the nature of the writing may be, there can be no crime) who are morally the publishers of this pamphlet? Have you any evidence, whatever, that any one of these pamphlets was in circulation, or ever would have been circulated, but for the impertinent, obtrusive, sordid, and base part of the ministers of the Constitutional Association? How otherwise is this pamphlet here? Let us turn back to the evidence of the first witness. He was the worthy servant of the Association in this and a few other recent instances, but for the most part, within a year and a half, the servant of the Society for the Suppression of Vice: a Society very different, indeed, from that with which we have had to deal to-day;—not that I have any affection even for that association: I would neither praise nor even be suspected of approving it, but I will not be so unjust and scandalous as to compare it with the Constitutional Association. Before this witness was employed by that society, he was a Custom-house officer. Are you, I asked him, now a Custom-house officer? No. How comes that? I lost my place. How old are you? Fifty-four. Have you any pension? No. Now, gentlemen, I beg to observe, that it is not the habit of the Custom- house to turn away officers, who have grown grey in their service, without a pension; unless they have richly deserved to be so discarded and abandoned. Such, gentlemen, are the instruments employed as spies by the acting members of this Association! This fellow is sent out with instructions from the honorary secretary, Mr. Murray, who is the attorney for the prosecution, to purchase, not this pamphlet alone, but any political pamphlet, which in his judgment might be libelous. Good God! to what a condition are we reduced, when, under the auspices of this blessed Association, discarded tide-waiters, and broken gaugers, are made judges of what is libelous, and leagued with an attorney, are to determine what may, and what may not, without the terror of a prosecution, issue from a free press. Such was the course pursued: and can you conscientiously say, that, but for this hiring of a spy to make a purchase of this pamphlet for the sole purpose of founding this prosecution upon that very instance of sale, the public would ever have heard of it? Gentlemen, it is a great happiness, and much security arises from it, that every person who stands forward as a prosecutor exposes his own conduct, as it is connected with the prosecution, to scrutiny and animadversion. I have a right to assume that freedom which is the privilege of the bar. I remember that in the case of the King and the Dean of St. Asaph, in which the present Marshal of the King's Bench Prison, without any apparent connection with the subject of the prosecution, was the prosecutor, the counsel for the defendant exercised this right, and the Marshal was successively the object of his ridicule and indignation.

Mr. Justice BEST.—Mr. Cooper do you think it acting fairly to make this sort of attack on a gentleman who is not present? Is this the practice of the bar?

Mr. COOPER.—My Lord, I make no attack on the Marshal. I only state that—

Mr. Justice BEST.—These observations being made on one who is not anywise connected with this case, who is not present to answer for himself, and who would not be permitted if he was, what are we to suppose? Can any gentleman at the bar consider this as fair?

Mr. COOPER.—My Lord, I have no design to attack the Marshal either in his absence or presence. I mentioned him but incidentally. What earthly purpose could it answer to this case to attack him? He was the prosecutor in that case, and I rather incautiously, perhaps, mentioned who the prosecutor was, by name; when I ought only to have said the prosecutor. If I have done him any injustice, I beg his pardon as publicly for it, and thus, I give a remedy as wide as the wound. I say then, gentlemen, that the prosecutor in that case, was alternately the object of the keenest indignation, and the most jeering ridicule, and I have a right to be equally as free, as the counsel in that case, with the prosecutors in this: but I shall by no means follow the example. On the contrary, I think, we are deeply indebted to the Constitutional Association. Consider how we were circumstanced when they first arose amongst us. There was the state, with a standing army of only a hundred thousand men, and nothing besides, except the whole civil force of the realm, a revenue of no more than seventy millions; and the feeble assistance of the established law officers of the crown to prosecute public offenders, when this Constitutional Association in the pure spirit of chivalry, steps forward to help the weakness of Government, and succour its distress. Now, whatever men may talk of justice, who can say that disinterestedness has altogether abandoned the earth? Who can say that generosity has forsaken us and flown to heaven? Let it be considered too, that but for their active vigilance Carlile's shop would not have been known. No productions from it had ever been the subject of prosecution, and but for the keen scent of the Association, the rank and huge sedition contained in the New Year's Address might have lain in its covert undetected and undisturbed. But to drop this irony and be serious, the law officers of the crown are fully adequate to their duties, and Carlile's shop was as well known to the Attorney General as St. Paul's to you. For years he has not had his eyes off it. I will engage that every publication, that has issued from it, and this very pamphlet among the rest, has passed through his hands, and under his review. Yet the law officers of the crown do not appear here to prosecute it as a libel against the state; and I entreat you to mark this, for I have a right to urge it, as a strong negative proof, that they do not so consider it; and how can that require your condemnation which they (with a judgment surely very much superior to that of the Committee of the Constitutional Association) have not thought worthy of prosecution or notice? Yes, you are actually called upon by this Association to deliver over to punishment the publisher of this paper, whilst the law officers of the crown (who neglect their duty, if they do not prosecute offences against the state) have thought it of a nature not at all requiring their interference What can be so preposterous? So monstrous? And in taking leave of this view of the case, let me once more ask you who have been actually the publishers of this paper? Have you a single iota of evidence, which ought to satisfy your minds, that, but for the insidious conduct of the Association, and its spies, this pamphlet would ever have been before you or the public? Is there a shadow of proof that one copy was ever sold, except those bought by the creatures employed by the honorary secretary (who is also the feed attorney in this prosecution) for the sole object of entangling the defendant in this indictment? None, whatever. None. They conspired you see to procure and seduce (the word is neither too broad nor too long for their conduct) the publication for the very purpose of this prosecution. How then having thus suborned the offence of which they complain, can they dare to stand forward as prosecutors, when they themselves are the criminals, and ought to be the defendants.

Mr. Justice BEST.—You mean. Mr. Cooper, to offer some evidence of that, I suppose.

Mr. COOPER.—None, my lord, but the evidence already before the court and the jury, and the strong and necessary inference from the facts proved by the witnesses for the prosecution themselves.

Mr. GURNEY.—There were many others lying on the counter.

Mr. COOPER.—What of that, does it follow that they must, therefore, have been sold? In the absence of all other proof of any publication, I have a right, I am forced to consider the Association as the only publishers.

Mr. Justice BEST.—In the evidence there is nothing like it.

Mr. COOPER.—What, gentlemen, is it a necessary conclusion, that because the pamphlets were lying in the shop, they must have been sold to other persons? The defendant but for their intrusion, for the sole design of prosecution, might have sold no others. She might have changed her intention to sell. The pamphlets might have lain like bad verses untouched on the shop counter, till they were turned over for waste paper, and not a soul have ever known of their contents. The Association, therefore, by their insidious and plotted purchase for the sole object of prosecution, have provoked the act of publication, and they, who provoke crimes are the criminals, and ought to be the culprits; and those, who would punish the crimes that they have provoked, are devils, and not men; "the tempters ere the accusers." When I contemplate such conduct—but I will not waste another word, or another moment of your time upon this miserable Association. If I had consulted my better judgment, I should have passed them in silence; thus much my indignation has wrung from my contempt.

I shall now, gentlemen, proceed to the examination of the libel, or rather that which is charged as a libel itself; and I shall begin with the last part so charged in the indictment, instead (as my learned friend has done) with the first; and let me beg your regard to one remarkable fact, that at the very point of the paper, at which the motives, and design of the writer present themselves to the reader; at that very point this indictment stops. It has not, as you will presently see, the candour to proceed a single syllable farther. I will now read the passage, "Reform," it says, "will be obtained when the existing authorities have no longer the power to withhold it, and not before, we shall gain it as early without petitioning as with it; and I would again put forward my opinion that something more than a petitioning attitude is necessary." This it has been urged to you, with great emphasis, is an excitement to insurrection; and you are called upon to draw that inference, though the author immediately afterwards disavows, expressly disavows any such intention. But even, if the words stood alone, I deny that you are compelled to such a construction. Gentlemen, will any one venture to say, that I, standing in this place, and in the very exercise of my profession, mean any thing, but what is strictly legal, when I say myself, that supposing reform in Parliament be necessary, something more than mere petitioning is requisite to obtain it? But in saying this, do I mean any thing violent or illegal? Heaven forbid; No: but I would have societies formed, and meetings held for the purpose of discussing that momentous subject. If reform be necessary, and the desire of a great majority of the country, I would have that desire shown unambiguously to the legislature, by resolutions and declarations at such meetings. Who will deny such societies and meetings to be legal? Yet, such meetings would be more than mere petitioning, much more: and the author means nothing beyond this; for I say, that in the absence of all other criteria, the only means of judging of a writer's intentions are his words. Look then at the words which immediately follow the assertion, that "something more than a petitioning attitude is necessary." If those words had been included in the indictment, this prosecution must have been at an end upon merely reading the charge, and those words, therefore, the Association avoided, as cautiously as they would the poison of a viper. They felt, that though the indicted words standing alone might perhaps admit of a doubt for a moment, yet the context completely explained them, and gave an air of perfect innocence to the whole passage. But you shall judge for yourselves: I will read the passage,—"Something more than a petitioning attitude is necessary. At this moment I would not say a word about insurrection; but I would strongly recommend union, activity, and co-operation. Be ready and steady to meet any concurrent circumstance." Now what kind of union, activity, and co-operation does he mean? Is it military association, marches, and attack? No. Hear the writer's own words again:—"The Union Rooms at Manchester and Stockport are admirable models of co-operation, and are more calculated than any thing else to strengthen the body of reformers." For what do the reformers assemble in these rooms? How do they co-operate there? Is it to consult how they shall arm and organize themselves, and seize with a violent hand the reform which they despair of gaining by petition? Nothing like it. The writer himself still tells you his meaning. "Here (that is at the Manchester and Stockport rooms) children are educated, and adults instruct each other. Here there is a continual and frequent communication between all the reformers in those towns." This, then, and no other, is the co-operation which the author intended, and proposes. If any man, taking the paper in his hand and reading the whole paragraph, can say that any thing more is meant, to his reason I should cease to appeal. I should sit down in silent despair of making any impression on such an understanding; but you, gentlemen, I ask you, adding the words which I have read to the broken passage, which is insidiously separated and included in the indictment, can there be a doubt remaining in any rational and unprejudiced mind, that the union and co-operation called for by this Address from those who desire reform in Parliament, is nothing more than the establishment at other places, of rooms, on the model of those at Stockport and Manchester; where children and adults are instructed, and information disseminated on the subject of Parliamentary Reform. And if this is all that is meant, there is an end of this part of the indictment; for it cannot be libelous to recommend in a writing the people to do that, which it is perfectly legal to do.

With regard to reform itself, I cannot know, whether any of you are advocates for it or opposed to it, nor is it requisite that I should; I do not ask you to think or say with me, and others, that reform in Parliament is necessary, and that nothing but reform can save the country from ruin; all that I ask of you is to allow me and others credit for the conscientiousness of our opinions, and charitably admit, if yours are opposite, that though we may be mistaken in our judgments, we must not of necessity be criminal in our intentions. I leave you and every man to the free exercise of your thoughts, and the free enjoyment of the conclusions to which they lead you. Let this liberality be reciprocal, and concede the same freedom to others which you demand for yourselves. I have always thought that a difference in religious and political matters need not and ought not to create hostility of feeling, and sever those, who would otherwise be friends. I myself enjoy the friendship of several, who entertain very different opinions from mine upon those subjects; and yet that difference has not, and never shall, on my part, at least, disturb our friendship. In all questions in which you cannot have mathematical demonstration, there may be fair, honest, conscientious difference of opinion; and you cannot have geometrical proof in questions of religion, politics, and morals. The very nature of the subjects altogether excludes it. To expect it, as Bishop Sanderson says, would be as absurd as to expect to see with the ear and to hear with the eye. So various are our opinions upon these subjects, that we not only differ from one another upon them, but at different times we find we differ from ourselves; and, as another learned churchman, in more recent times, has said, what could be more unjust than to quarrel with other men for differing in opinion from him, when no two men ever differed more from one another than he at different times differed on the very same subject from himself. Under this state of uncertainty in human judgment, I call upon you, and I am sure I shall not call in vain, to be slow to condemn the opinions of others, because they are different from your own; and, therefore, if any of you should think reform in Parliament needless, or even dangerous, I still call upon you (though the writer of this paper should be a reformer, and even though he is called in reproach a radical reformer) not to condemn the defendant in this case through prejudice against the author's opinions; but solely to enquire (be those opinions ever so just or ever so absurd) whether he is sincere in entertaining them; for, if he be (as I shall show you presently from the highest authority) the law does not consider him criminal. Try him by this test, and this test, and this alone; and then, whatever may be your verdict, you will be free from reproach, and secure to yourselves quiet by day, and sound slumbers by night; for you will have discharged your duty to yourselves, to the defendant, and to the country.

With regard, gentlemen, to the other part of the alleged libel, I must bespeak your patience; for I am afraid that I shall be drawn by my comments upon it into considerable length. (I am afraid, gentlemen, I weary you, and I am sorry for it. If I had had leisure, I would have condensed my observations; but, under the circumstances I have disclosed to you, I hope you will forgive me for occupying more of your attention than I would otherwise have done. I really have not had time to be short.) To return to the passage in the paper, which is first charged as a libel: it denies the existence of any constitution in Great Britain. Now whether there be anything malicious and criminal in this, depends entirely upon the meaning which the author attaches to the word constitution. I confess it is a word that gives me a very indistinct and uncertain idea; and I believe that if any of you were now suddenly to ask yourselves what you understood by it, you would find you were not very ready to give yourselves an answer; and if you could even satisfactorily answer yourselves, you would find if you were to go further and question your neighbour, that he would give you a very different definition from your own. In itself it means nothing more than simply a standing or placing together; and it really seems to me rather hard and venturous to indict a man for denying the existence of something (whatever it may be) expressed by the most indefinite term in our whole language. But, if we were agreed upon the ideas which should be attached to the word, let us examine whether, allowing for a certain freedom of expression and the earnest eagerness with which a man who is sincere in his doctrines enforces them in his composition, a writer may not, without being exposed to a charge of criminal intention, assert that there is no constitution in this country. And let us take with us to this examination, that a man is not to be too strictly tied to words, when under the impulse of warm and keen feelings, and when the thoughts flow, as it were, at once from the heart into the pen, he sits down to excite his countrymen to their good, or warn them of their danger. You must not think to bind him down with the shackles of verbal criticism, when he is too intent upon his theme exactly to measure his expressions. Now, that the writer of this paper is sincere in his opinions, whatever the quality of those opinions is, it is difficult not to believe. He published his opinions, though he exposed himself to punishment for them, and he perseveres in them while he is suffering a heavy punishment. You can have no more convincing proof of sincerity than this. But, what if a political writer has, in the warmth of composition, asserted that in England we have no constitution, who can misunderstand him? We cannot suppose he meant that there was a dissolution of all law and government; because we know and feel the contrary. Few would have occasion to ask him what he meant. If, however, he were asked, he should explain by telling you, that the constitution in theory is very much corrupted from the practice; and I and you, and every person must admit, that the practice has strayed wide from the theory; and, forced to admit this, I assert with a writer, who (whatever was thought of him once, and whilst those who were the objects of his reproach still lived) is now the pride and boast of the country, both for the supreme elegance and the principles of his political writings, that "wherever the practice deviates from the theory so far the practice is vicious and corrupt." Now, saying no more than this, and when it would have been the merest stupidity to understand him literally, how can the writer be convicted of a design to bring the Government into hatred and contempt, because he has expressed his meaning by saying figuratively "there is no Constitution." But he has previously said, that to talk about the British Constitution is, in his opinion, dishonesty. I know he has. I did not mean to pass it, I will not, gentlemen, shrink from any part of the passage, for I feel that it cannot bear with any heavy pressure against me. "To talk of the British Constitution is, in my opinion, a sure proof of dishonesty." Here it will be seen that the only exception that can be taken to this sentence is the mere mode of expression. If a man were to talk to me of the Constitution of England, and, by omitting all notice of its aberrations in practice from its theory, by which he would leave it free to me to suspect, that he would insinuate that the theory and the practice were the same, I should certainly say, that he was exhibiting want of candour. I might, perhaps, think dishonesty, rather too strong a term for such conduct; but I should not scruple to say, that he was disingenuous, and he would be guilty of a species of dishonesty; for all the disingenuousness is to a degree dishonest; and, since the meaning is the same, why should we quarrel at a mere difference of expression? The author proceeds to say, "If we speak of the Spanish Constitution, we have something tangible; there is a substance and meaning as well as sound." So that it is clear he was saying, that we had no Constitution in comparison with that just promulged by the Spanish nation. The Spaniards we know have recently gained by their own glorious efforts, that political liberty to which they had been so long strangers; and their Legislature had just published a code of fundamental laws, few in number, but most comprehensive in securing freedom to the people, for whom they are framed. They are (comparatively with the laws of countries, in which the frame of government is old, and complicated) not numerous, but the mind may collect them almost at a glance, and possess itself of them with a single effort of the understanding. In this view of the subject, without doubt, the Constitution of Spain is tangible; and in this sense he is justified in asserting that our own Constitution is not tangible; for is it not notorious that our laws are spread through so many Acts of Parliament of doubtful and difficult construction, and so many books of reports, containing the common law of the land (and in which there are no few conflicting decisions) that the whole life of a man does not suffice to achieve a knowledge of them. So multifarious and infinite and perplexed is our code, that even amongst those whose profession is the law it is not possible to meet with an accomplished lawyer.

The defendant here fainted, and was taken out of court. After the interruption which this circumstance occasioned had subsided, Mr. COOPER proceeded—

Gentlemen, I lament in common with many others that this evil has attended an extended degree of civilization and trade—that our laws have become too numerous and complicated for the capacity of the mind. That they are so, is not my opinion alone, but that of the Legislature itself. I believe that a committee of the Houses of Parliament has been sitting and still sits for the object of reducing our laws to some limit in their number and some order as to their design; without which our Constitution, to use the words of the writer, cannot be tangible; a tangible shape, at present it does not possess, for that cannot be tangible which spreads itself over a boundless extent, that eludes, and defies the grasp of the human intellect.

Having disposed of thus much of this paragraph, I come to the words, on which my learned friend, Mr. Gurney, laid such extreme stress in his address to you. "Our very laws, are corrupt and partial both in themselves, and in their administration. In fact corruption as notorious as the sun at noon-day is an avowed part of the system, and is denominated the necessary oil for the wheels of Government. It is a most pernicious oil to the interests of the people." This is strong language I admit, and would perhaps be censurable as imprudent, at least, if the very expressions themselves, which the writer uses, did not guide us directly to the facts to which he alludes, and explain the passage. He alludes most manifestly to the celebrated exclamation of a person at the time that he was in the seat of office, the first commoner of the realm, and who instead of being reproached for his words has retired from his office with the honours which he has merited for his services in it. It transpired in the House of Commons, that seats had been trafficked for as articles of sale and purchase for money.

Mr. Justice BEST.—Is that a subject at all relating to the question which is now before the jury?

Mr. COOPER.—My Lord, I am going to use the declaration of the Speaker, as a matter of history, and to show, that the words charged as criminal were an allusion to it; and if so, were not criminally used. I do not wish, nay I would avoid the introduction of any improper or inflammatory topics. I would not attempt to serve my client by such means. When it was exposed, that there had been certain trafficking for seats in the House of Commons, the Speaker used these words (and it is to them, I would show the jury, the writer of the paper alludes), "practices are as notorious as the sun at noon-day at which our ancestors would have started with indignation," and that gentlemen—

Mr. Justice BEST.—Will you allow me to ask you Mr. Cooper, I want to know where you get that from.

Mr. COOPER.—My Lord, from all the reports of the speeches in the newspapers of the day which were never contradicted.

Mr. Justice BEST.—I beg to state, that, whatever passed in Parliament, cannot be questioned anywhere else. Whatever the Speaker said in Parliament, he was justified in saying. But I have no means of knowing, nor have you, whether he ever did say so or not.

Mr. COOPER.—I am not questioning anything he said in the House of Commons—

Mr. Justice BEST.—If Mr. Abbot had said it any where else, it would have been a libel on the constitution; if he said it there, we cannot enquire about it; it would be a breach of privilege.

Mr. COOPER.—Your Lordship asked me, how I came to know that he said so. My Lord, I have seen it in all the recorded speeches of the House of Commons in the published debates in Parliament, and—

Mr. Justice BEST.—I say there are no recorded speeches of the House of Commons to which we can listen or attend.

Mr. COOPER.—Certainly, there are no records of speeches in the House of Commons in the sense in which the proceedings of courts of law are records, nor is there in that sense any recorded speech of Cicero or of Lord Chatham; but, my lord, will your lordship say, that I am not entitled in my address to the jury to use that which has been reported as part of a speech of Lord Chatham or of Cicero; because there are no records filed, as in the courts of law, of their speeches! I submit that they are matters of history; and that, as such, I am at liberty to use them.

Mr. Justice BEST.—I tell you, Mr. Cooper, what the distinction is. If you publish, that, which may be said to be a speech of Lord Chatham's, and it may be an accurate report of his speech, you may be guilty of publishing a libel, though the place, in which that speech was delivered gave a liberty to the speech. You know it has been so decided in my Lord Abingdon's case, who published his own speeches.

Mr. COOPER.—That, my Lord, was a libel upon a private individual. I say—

Mr. Justice BEST.—I say you have no knowledge of anything which is said in the Houses of Parliament.

Mr. COOPER.—With great submission I re-urge it as a matter of history, and as such I would use it whether the fact is ten years old or ten thousand, I submit makes no difference.

Mr. Justice BEST.—Mr. Cooper, I have told you my opinion; if you don't choose to submit to it, the best way will be to go on, perhaps.

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

Mr. Justice BEST.—The Court of King's Bench has decided this very point, within the last two terms, against what you are contending for. If your own opinion be the better one, proceed.

Mr. COOPER.—Gentlemen, I was going to say, when the Speaker of the House of Commons exclaimed (I will not repeat particularly upon what occasion) that our ancestors would have started with indignation at practices which were "as notorious as the sun at noon-day," can you have any doubt in your mind that the writer of this pamphlet alluded to that exclamation? Why look at the passage, see, he uses the same words. "Corruption is as notorious as the sun at noon-day" is his very expression. He is citing the Speaker's own words, and cannot but be supposed to be speaking of the very same facts. It was proposed, on that occasion, to impeach a nobleman, whom I will not name and need not, for those practices. This however was resisted by almost all, and even by some who were friendly to Parliamentary reform, and politically adverse to the noblemen, to whom I allude, not, indeed, upon any pretext of his innocence of the practices, charged against him; but on the sole ground that those practices were so general and notorious that they would condemn themselves in sentencing him; and among so many guilty, it would be unjust to single him alone for punishment. Yes; although they were practices, at which our ancestors would have started with indignation, they were the practices of numbers, and the practices were as notorious as the sun at noon-day; and, therefore, the proposition of impeachment was rejected, and rightly; for as it has been said by the first speaker of all antiquity, we cannot call men to a strict account for their actions, while we are infirm in our own conduct. If this is the state of one branch of our Legislature, and if it is avowed, and by those who would conceal it, if concealment were possible (but it would be as easy to conceal the sun). Good God! shall a man be prosecuted and pronounced guilty, and consigned to punishment for affirming that our laws are corrupt; that there is corruption in the system, and that corruption is an avowed part of that system? when in so affirming he only echoes the exclamation of the Speaker himself, that "practices, at which our ancestors would have started with indignation, were as notorious as the sun at noon-day?" Why, if as the Speaker declared, such practices exist, and affect the most important branch of the Legislature, I myself say, that there is corruption in the very vitals of the Constitution itself. In such a state of things, to talk of the Constitution, is mockery and insult; and I say there is no Constitution. What, then, has the writer of this pamphlet said more than has been avowed by the highest authority, and everybody knows? And now, can you lay your hands on your hearts, and by your verdict of Guilty send the defendant to linger in a jail for having published what the author has, under such circumstances, written?

Having thus concluded my observations on the passages selected from this paper for prosecution, I will, for I have a right to read it all if I please, direct your attention to another part of it. Let us examine whether other passages will not convince us, that (though he should be mistaken in some of his opinions) the whole was written with a single and honest intention. I myself never read a paper, which, on the whole, appeared to be written with more candour. There is an openness that does not even spare the writer himself. Indeed, with regard to his opinions, peculiar and mistaken as he may be, he seems himself, sincerely to believe in them. He is now suffering for those opinions, and suffering with a firmness, which to those who think him wrong, is stubbornness; and, thus, he affords another proof of the extreme impolicy of attempting to impose silence by prosecutions, and extort from the mind the abjuration of opinions by external and physical force. It never succeeds; but, on the contrary, works the very opposite effect to that which is its object. As the author from whom I have just now cited says, with extreme force and equal beauty, "a kind of maternal feeling is excited in the mind that makes us love the cause for which we suffer." It is not for the mere point of expression that it has been said, the blood of the martyrs is the seed of the church. It is not theological doctrine alone, that thrives and nourishes under persecution. The principle of the aphorism applies equally to all opinions upon all subjects. There is widely spread through our nature an inclination to suspect that there is a secret value in that from which others attempt to drive us by force; and from this, joined to other powerful motives, the persecution of men for their tenets, whatever they may be, only draws their attachment closer, and rivets their affections to them. Every effort to make them abandon the obnoxious doctrine renders them more steadfast to it. The loppings, which are designed to destroy, serve but as prunings, from which it shoots with increased vigour, and strikes its root still deeper. Has it not always been seen, that persecution has bred in men that stubborn resolution, which present death has not been able to shake; and, what is more, an eagerness to disseminate amongst others those principles for which they have themselves been prosecuted and pursued. I therefore, from my very soul, deprecate every species of persecution on account of religious and political opinions, not only from its illiberality, but bad policy; and I am full of hope, that you will by your verdict to day show, that you have an equal aversion to it.

To recur, gentlemen, to the pamphlet; I submit to you that there is a general air of sincerity in the language of the writer throughout the composition, which obliges us to believe, that, however mistaken you may think him in his opinions, he is honest in his intentions. He says in another part of the address "Every government must derive its support from the body of the people; and it follows, as a matter of course, that the people must have a power to withhold their supplies." Which is very true: for, where there is a shadow of political liberty, a revenue can only be raised by taxes to which the people have consented: it being allowed that where there is taxation without representation tyranny begins. Now, if the writer really believes that there are corrupt practices in the Government, who can blame him, for proposing (by abstinence from those articles which are taxed and yield a revenue so large that it supports a system of misgovernment) to compel our rulers, by a diminution of their means of undue influence to a regard to economy and a just administration? I know, indeed, that this doctrine is considered offensive; nor am I prepared to say with confidence that under the wide construction which has been given to the law against conspiracy, persons who were to combine to force such a change by abstaining from all exciseable articles might not be indicted for it as a conspiracy. It may, for aught that I know, be even indictable to unite and desist from using tea, tobacco and snuff to coerce the government into reform by a reduction of the revenue raised from those articles; but you are not sitting there to try an indictment for a conspiracy; and, therefore, though this passage may not be pleasing, I read it, without hesitation, because it leads to others, which I think demand your consideration and attention. "We must deny ourselves, he proceeds to say, those little luxuries in which we have long indulged. Why not? Who gains, and who loses by this denial? We do not rob ourselves, we only check our passions; and, in doing this, we strengthen both our bodies and our purses. I would appeal to those, who, for the last year, have had the courage and the virtue to abstain from the use of malt and spirituous liquors, foreign tea and coffee, tobacco, snuff, &c., whether they do not feel satisfaction from the change of habit; and whether they are not better in health and pocket, without the use of these things." This, gentlemen, is a sermon on temperance, and I wish it were generally followed. I apprehend that this is not only innocent, but highly meritorious. For my own part I shall maintain the opinion (though ten thousand Mandevilles should write, and imagine they have proved private vices public benefits) that it is infinitely more important and beneficial that the mass of the people should be temperate and healthy, though poor, than that an immense revenue should be collected from their addiction to sensual pleasures and vicious luxuries. I say vicious, because all moral writers concur in calling those sensualities vices, as free indulgence in them leads to a state of total dissipation of mind under which scarcely any profligacy seems a crime. The writer continues: "There are a variety of other things which are heavily excised, the use of which might be prudently dropped; and which are not essential either to the health or comfort of mankind. Speaking for myself, I can say, I do not recommend more than I practise; and that my food for the last year has consisted chiefly of milk and bread and raw native fruits. I have been fatter and stronger than in any former year of my life; and I feel as if I had obtained a new system by the change. My natural disposition is luxurious, and under a better system of government, or when this rational warfare was not called for, I should at all times live up to my income." And here, gentlemen, I beg you to mark, that so unreserved, so much in earnest is the writer in his object, that he does not attempt even to conceal his own faults, and weakness. I ask, whether you have ever found men, who were acting and writing with duplicity and sinister intentions, reproach or expose themselves? But the writer of this paper practises no reserve; he conceals nothing, though the disclosure should be against himself, but

Pours out all himself as plain, As dowright Shippen, or as old Montaigne.

He concludes this exhortation to temperance with this sentence, "Shrink not then you male and female reformers from this virtuous mode of warfare; for to conquer our injurious habits and our enemy at the same time is a double conquest, to obtain which both man and woman and child can very properly assist." I read this conclusion of the paragraph, gentlemen, and I beg your attention to it, because it makes it manifest that the change which the writer proposes to compass is a change by a moral operation through legal and peaceful means; and that he never dreamed of inculcating, as it is insinuated, any appeal to violence and arms.

I have now, gentlemen, concluded all the particular observations which I had to address you upon this paper; and having shown you that by the least liberal construction, no criminality of intention can be imputed to the author, how can I doubt of your acquittal? For it is your duty to construe the author's words so as to give them an innocent meaning if they will bear it, and not come to a conclusion of guilt from them unless you shall be convinced that they will not possibly admit of any other than a criminal sense. That he had no criminal design, is apparent enough, even from the indicted passages; and by reading the context is put beyond the possibility of a doubt. There are many other passages as well as that, which I have read, which tend equally to the inference of the sincerity with which the whole paper was written, but which I will not consume your time in reading, as you will have the whole before you when you deliberate on your verdict, and they must themselves strike your attention.

Now, gentlemen, I cannot tell, how you feel, but I have no opinion more deeply impressed on my mind than that the prosecution of such political papers as this before you, as state libels, is perfectly unnecessary; and, so far from doing good, is, if any mischief can be produced by such writings, mischievous. Prosecution excites the public regard, and a curiosity that will not rest till it is gratified, towards that which, under silent neglect, would hardly gain attention; if indeed, it did not drop quite dead-born from the press. But I deny wholly that any political writings, whatever their nature, have done or ever could do any harm to political society. Let those who advocate the contrary opinion show you a single instance of a state injured or destroyed by inflammatory political writings. The republic of Athens was not thrown down by libels: no—she perished for want of that widely diffused excitement to courage, and patriotism, and virtue, which a press perfectly free and unshackled can alone spread throughout a whole people. She was not ruined by anarchy into which she was thrown by seditious writings, but because, sunk in luxury and enervated by refinement, it was impossible to rouse the Athenians to the energy and ardour of facing and withstanding the enemy in the field. Rome too—as little was her gigantic power levelled with the dust by libels, but perished from the corruptions of the tyrannical government of the Emperors, which drained the nation of all its ancient virtue, and bred the slavery which produces an utter debasement of the mind (and which never could have been, if a free publication of political opinion had been suffered), and thus she fell an easy conquest and prey to the barbarians and Goths. Both these renowned states fell, because their governments and the people wanted the goad of a free press to excite them to that public spirit and virtue, without which no country is capable of political independence and liberty. How our ears have been dinned with the French revolution, and how often have we been gravely told, that it was caused by the writings of Voltaire, Rousseau, and Helvetius. Ridiculous! I have read the history of those times and have read it very differently. I am forced to understand that the inextricable and utter embarrassment of the French finances, the selfish and insolent luxury of the nobles, the desperate wretchedness of the lower orders of the people, and the profligate licentiousness of the Court, were the causes and the only causes of that great event. If the finances of that country had been in order, the nobles moderate, the poor unoppressed, and any public spirit in the Government, Voltaire, and Helvetius, and Rousseau, might have racked their brains for thought, and written themselves blind, before they would have raised a single arm, or even excited a single voice to exclaim for change. A perfect freedom of the press would, indeed, have prevented the causes which roused the people to assert themselves; but the causes once in existence, all the writers in the world could not one moment have either retarded the revolution or accelerated it. It is not the representations of a political writer that can alter the nature of things. Whose ingenuity, and wit, and eloquence, will persuade me that I am cold when I am warm; that I am hungry when I am full; a slave when I am free; and miserable, when I feel myself happy? While such is my state, what writings would drive me into insurrection? And if the contrary is my condition, what stimulus could I want to free myself from it? What persuasions could possibly even delay my utmost efforts for a change? It is not by the prosecution of political libels that the stability of a government and domestic peace is ever secured. No; let the Government pursue its only end, the public good, and let every man, or at least a large majority, have more or less an interest in the preservation of the State, and then all the writers in the country, from the highest down to the obscurest corners of Grub-Street, may wear their fingers to the roots of the nails with their pens, before they will work the slightest discontent in the public or change in the government. Nothing, gentlemen, is more common with writers and speakers, than to discourse of states by figures drawn from the government of a ship; and I will tell you what I once heard from a friend of mine who has served his country in our navy, and which at the time most forcibly struck my mind. "When I was stationed in the Mediterranean (he said, speaking of the occurrences of his professional experience) we made captures of the vessels of all countries except the Greeks, but we never captured them; for they were always vigilant, active, and brave. We never surprised them; if we chased them, they escaped us; and if we attempted to cut them from the shelter to which we had driven them, we were repulsed." What created this difference? By the rules of navigation amongst the Greek islands, every man, from the captain down to the lowest cabin-boy, has, more or less, a share in the vessel. They watched, therefore,—they laboured and fought for their own interest and property. Let those who sit at the helm and govern us imitate this policy. Let them extend the elective franchise; let them restore us to a condition in which industry and skill may find employment and be secure in their gain. Give men an interest and ownership in the state, and it shall never be upset by libels; not a seditious or mutinous voice shall be heard; and what foreign enemy shall dare to lift a hand against us? But keep the people excluded from their share in the representation, and pressed down by taxation, and millions of prosecutions against libels will not save the country from sinking in ruin.

Let me now, gentlemen, call your attention back to the argument I used almost at setting out in my address to you, by which I attempted to maintain that you are not bound, whatever you may judge the intention of the writer to have been, to pronounce a publication a libel by your verdict, if you should be of opinion that such a publication cannot be mischievous, and that prosecution of it is unnecessary. If it can do no harm, it is no nuisance at common law to have written a paper, whatever its nature may be, and if it could be no nuisance, you are bound in duty to acquit the defendant, who is only the publisher. The doctrine for which I am contending with regard to this paper, has been acted upon by the government of one free country, with regard to all political writings, whatever their intention or nature. The Legislature of the State of Virginia has actually legislated against such prosecutions, and declared them totally unnecessary.

Mr. Justice BEST.—That is not the law of this country.

Mr. COOPER.—I only use it my Lord as part of my speech in argument.

Mr. Justice BEST.—I will tell you what I am bound to tell the jury. I shall tell them that we have nothing to do here with what may be expedient, we are not legislating here—the question is whether this is a proper prosecution?

Mr. COOPER.—I feel that it is exceedingly important to use as matter of argument, and as a part of my speech. If your Lordship stops me I know that it will be my duty to submit.

Mr. Justice BEST.—All this is only drawing them away from the question they are to consider. With the propriety of instituting the prosecution they have nothing to do; the only questions they have to determine, are—Is that paper a libel, and has the defendant published it? An Act of the Assembly of Virginia has no validity in this country.

Mr. COOPER.—My Lord, I do not cite it as a statute of this realm to which we are bound to pay legal attention—

Mr. Justice BEST.—We are bound to pay no attention to it.

Mr. COOPER.—My Lord, I only use it to show that other men have been of the opinion which I have expressed to your Lordship and the jury. If your Lordship insists on my not addressing myself to the jury upon it, I know too well the deference that is due from me to the Bench to persevere in attempting it.

Mr. Justice BEST.—No, I don't insist upon it. But, Mr. Cooper, can you deceive yourself so much as to think this has anything to do with the question? I shall tell the jury to pay no attention to it.

Mr. COOPER.—Your Lordship will make any observations your condescension may lead you to make, as well on this as on any other part of the defence. I believe the course which I wish to take was taken on a similar occasion by a man who united the soundest and correctest judgment with the brightest imagination—I mean Lord Erskine—he—

Mr. Justice BEST.—I knew him for thirty odd years at the bar, and I never in all my life knew him address himself to points such as these—that is all I can say. I know what is due to the liberty of the bar, and I shall cherish a love for its freedom to the latest hour of my life.

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 assure you it is an error of judgment and not of design. I declare most sincerely, that I am addressing to you arguments which I should attend to if they were addressed to myself in such a case. His Lordship will have a right to make what observations he pleases, and of course I offer this and every other argument to you liable to the honour he may confer upon me of condescending to notice anything I have said or may say. You, gentlemen, will, I know, regard my observations or arguments solely as you think them forcible or weak; if they are the former you will attend to them, if the latter reject them. And with this observation I shall now proceed to read to you the preamble to the Act of the Legislative Assembly of Virginia.)

"It is time enough for the rightful purposes of Civil Government, for its officers to interfere when principles break out into overt acts against peace and good order, and that truth is great and will prevail if left to herself, and that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless, by human interposition disarmed of her natural weapons, free argument and debate: errors ceasing to be dangerous, when it is permitted freely to contradict them."