Part 11

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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