which leave its faculties their natural and unclouded operations; for I solemnly declare to you, that if he had been indicted as a libeller of our holy religion, only for publishing that the world was made by its Almighty author, my astonishment could not have been greater than it is at this moment, to see this little book which I hold in my hand, presented by a grand jury of English subjects, as a libel upon the government of England. Every sentence contained in it, if the interpretation of words is to be settled, not according to fancy, but by the common rules of language, is to be found in the brightest pages of English literature, and in the most sacred volumes of English laws if any one sentence from the begin, ning to the end of it be seditious or libellous, the Bill of Rights (to use the language of the advertisement prefixed to it) was a seditious libel; the revolution was a wicked rebellion; the existing government is a traitorous conspiracy against the hereditary monarchy of England, and our gracious sovereign whose title, I am persuaded, we are all of us prepared to defend with our blood, is a usurper of the crowns of these kingdoms. : All these absurd, preposterous, and treasonable conclusions, follow necessarily and unavoidably if this dialogue be a libel. I shall imitate the example of my learned friend, who has pledged his personal veracity in support of his sentiments, and assert upon my honour, that what I have declared is my unaltered and I believe, unalterable opinion, formed upon the most mature deliberation; and I choose to place this declaration in the very front of my address to you, that you may not, in the course of it, mistake the energies of truth and freedom for the zeal of professional duty. This declaration of my own sentiments, even if my friend had not set me the example by giving you his, I should have thought my duty in this cause; for although in ordinary cases, where the private right of the party accused is alone in discussion, and no general consequences can follow from the decision, the advocate and the private man ought, in sound discre. tion, to be kept asunder; yet there are occasions, when such separation would be treachery and meanness. In a case where the dearest rights of society are involved in the resistance of a prosecution, where the party accused is, as in this instance, but a mere name; where the whole community is wounded through his sides, and where the conviction of the private individual is the subversion or surrender of publick privileges, the advocate has a more extensive charge. The duty of the patriot citizen then mixes itself with his obligation to his client, and he disgraces himself, dishonours his profession, and betrays his country, if he does not step forth in his genuine character, and vindicate the rights of all his fellow citizens, which are attacked through the medium of the man he is defending. Gentlemen, I do not mean to shrink from that responsibility upon this occasion; I desire to be considered the fellow criminal of the defendant, if by your verdict he shall be found one, by publishing in advised speaking (which is substantially equal in guilt to the publication of which he is accused before you) my hearty approbation of every sentiment contained in this little book; promising here in the face of the world, to publish them upon every suitable occasion, amongst that part of the community within the reach of my precept, influence, and example. If there be any more prosecutors of this denomination abroad among us, they know how to take advantage of these declarations. Gentlemen, when I reflect upon the danger which has often attended the liberty of the press in former times, from the arbitrary proceedings of abject, unprincipled, and dependent judges, raised to their situations without abilities or worth, in proportion to their servility to power, I cannot help congratulating both the publick and my client, that you are to try this indictment with the assistance of the learned Judge before you; much too instructed in the laws of this land to mislead you by mistake, and I hope too conscientious and independent to misinstruct you by design. The days indeed are now, thank God, long past, when, upon trials of this sort, judges and jurymen were constantly pulling in different directions; the court endeavouring to annihilate altogether the province of the jury, and the jury in return listening with disgust, jealousy and alienation, to the directions of the court. Now they are tried, and I hope ever will be tried, with that harmony which is the beauty of our legal constitution; the jury preserving their independence in judging of that malus animus, which is the essence of every crime; but listening to the opinion of the judge upon the evidence, and upon the law with that respect and attention which dignity, learning, and honest intention in a magistrate, must and ought always to carry along with it. Having received my earliest information in my profession from the learned judge himself,* and having daily occasion to observe his able administration of justice, you may believe that I anticipate nothing from the bench unfavourable to my client; and I have experienced his regard in too many instances, not to be sure of every indulgence that is personal to myself. These considerations enable me with more freedom to make my address to you upon the merits of this prosecution, in the issue of which our own general rights, as members of a free state, are not less involved than the private rights of the individual I am defending. Gentlemen, my reverend friend stands before you under circumstances new and extraordinary, and I might add harsh and cruel! For he is not tried in the forum where he lives, according to the wise and just provisions of our ancient laws; he is not tried by the vicinage, who, from their knowledge of general character and conduct, were held by our wise and hu * Mr, Erskine was for some time one of the judge's pu pils, as a special pleader, before he was raised to the bench. mane ancestors to be the fittest, or rather the only judges of that malus animus which is the essence of every crime; he is deprived of that privilege by the arts of the prosecutor, and is called before you, who live in another part of the country, and who, except by vague reputation, are utter strangers to him. But the prosecution itself, abandoned by the publick, and left in the hands of an obscure individual, is not less extraordinary than unjust, only that it palpably refutes the truth of the accusation. For if this little book be a libel at all, it is a libel upon the state and constitution of the nation, and not upon any person under the protection of its laws: it attacks the character of no man in this or any other country; and therefore no man is individually or personally injured or offended by it. If it contain matter dangerous or offensive, the state alone can be endangered or offended. And are we then reduced to that miserable condition in this country, that, if discontent and sedition be publickly excited amongst the people, the charge of suppressing it devolves upon Mr. Jones? My learned friend, if he would have you believe that this dialogue is seditious and dangerous, must be driven to acknowledge, that government has grossly neglected its trust. For if, as he says, it has an evident tendency in critical times to stir up alarming commotions, and to procure a reform in the representation of the people by violence and force of arms; and if, as he likewise says, a publick prosecution is a proceeding calculated to prevent these probable consequences; what excuse is he prepared to make for that government, which, when, according to the evidence of his own witness, an application was made by it for that express purpose, positively and on deliberation refused to prosecute? What will he say of one learned gentleman,* who dead is lamented, and for another, who * Mr. Wallace then Attorney General. Mr. Lee, late Attorney, then Solicitor General living is honoured by the whole profession; both of whom on the first appearance of this dialogue, were charged with the duty of prosecuting all offenders against the state; yet who not only read it day after day in pamphlets and newspapers, without stirring against the publishers, but who, on receiving it from the lords of the treasury by official reference, opposed a prosecution at the national expense? What will he say of the successours of these gentlemen, who hold their offices at this hour, and who have ratified the opinions of their predecessors by their own conduct? And what, lastly, will he say in vindication of majesty itself, to my knowledge not unacquainted with the subject; yet from whence no orders issued to the inferiour servants of the state? So that after Mr. Fitzmaurice, representing this dialogue as big with ruin to the publick, has been laughed at by the king's ministers at the treasury; by the king himself, of whom he had an audience, and by those appointed by his wisdom to conduct all prosecutions by the publick; yet you are still called upon to believe that it is a libel dangerous and destructive; and that while the state, neglected by those who are charged with its preservation, is tottering to its centre, the falling constitution of this ancient nation is happily supported by Mr. Jones, who, like another Atlas, bears it upon his shoulders. Mr. Jones then, who sits before you, is the only man in England who accuses the defendant; he alone takes upon himself the important office of dictating to his majesty, of reprobating the proceedings of his ministers, and of superceding his attorney and solicitor general; and shall I insult your understandings by supposing that this accusation proceeds either from patriotism and publick spirit in himself, or in that other gentleman whose deputy he appears to be upon this occasion! Whether such a supposition would not indeed be an insult, his conduct as a publick prosecutor will best illustrate. |