Part 10

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

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

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

SIR JAMES MACKINTOSH.

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

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

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

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

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

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

“Yours ever, T. ERSKINE.”

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

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

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

SIR JAMES MACKINTOSH.

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

GENTLEMEN OF THE JURY:

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

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

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

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

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

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

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

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

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

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

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

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