ON THE LIBERTY OF THE PRESS.
From Gurney's Edition of the said Trial.
EVERY man, not intending to mislead and to confound, but seeking to enlighten others with what his own reason and conscience, however erro∣neously, dictate to him as truth, may address himself to the universal reason of a whole nation, either upon the subject of governments in general, or upon that of our own particular country: he may analyse the principles of its constitution, point out its errors and defects, examine and publish its corruptions, warn his fellow-citizens against their ruinous consequences, and exert his whole faculties, in pointing out the most advantageous changes in establishments, which he considers to be radically defective, or sliding from their object by abuse. All this every subject of this country has a right to do, if he contemplates only what he thinks its happiness, and but seeks to change the public mind by the conviction which flows from reasonings dictated by conscience.
If, indeed, he writes what he does not think; if, contemplating the misery of others, he wickedly con∣demns what his own understanding approves; or, even admitting his real disgust against the govern∣ment, or its corruptions; if he calumniates living ma∣gistrates; or holds out to individuals, that they have a right to run before the public mind in their con∣duct; that they may oppose by contumacy or force what private reason only disapproves; that they may disobey the law, because their judgment condemns it; or resist the public will, because they honestly wish to change it; he is then a criminal upon every principle of rational policy, as well as upon the im∣memorial Page 169precedents of English justice; because such a person seeks to disunite individuals from their duty to the whole, and excites to overt acts of misconduct in a part of the community, instead of endeavouring to change, by the impulse of reason, the universal ascent which, in this and in every country, constitutes the law for all.
Gentlemen, I say, in the name of Thomas Paine, and in his words as author of the Rights of Man, as written in the very volume that is charged with seek∣ing the destruction of property,
These are undoubtedly the rights of man—the rights for which all governments are established—and the only rights Mr. Paine contends for; but which he thinks (no matter whether right or wrong) are better to be secured by a republican constitution than by the forms of the English government. He in∣structs me to admit, that, when government is once constituted, no individuals, without rebellion, can withdraw their obedience from it—that all attempts to excite them to it are highly criminal, for the most obvious reasons of policy and justice—that no∣thing short of the Will of a whole people can change or effect the rule by which a nation is to be governed —and that no private opinion, however honestly ini∣micable to the forms or substance of the law, can justify resistance to its authority, while it remains in force. The author of the Rights of Man not only admits the truth of all this doctrine, but he consents to be convicted, and I also consent for him, unless his Work shall be found studiously and painfully to in∣culcate Page 170culcate these great principles of government, which it is charged to have been written to destroy. Let me not, therefore, be suspected to be contending, that it is lawful to write a book pointing out defects in the English government, and exciting individuals to de∣stroy its sanctions, and to refuse obedience. But, on the other hand, I do contend, that it is lawful to ad∣dress the English nation on these momentous subjects, for had it not been for this unalienable right (thanks be to God and our fathers for establishing it), how should we have had this Constitution which we so loudly boast of? If, in the march of the human mind, no man could have gone before the establishments of the time he lived in, how could our establishment, by reiterated changes, have become what it is? If no man could have awakened the public mind to errors and abuses in our government, how could it have passed on from stage to stage, through reformation and revolution, so as to have arrived from barbarism to such a pitch of happiness and perfection, that the Attorney General considers it as profanation to touch it any further, or to look for any future amendment.
In this manner power has reasoned in every age— Government, in its own estimation, has been at all times a system of perfection; but a free press has ex∣amined and detected its errors, and the people have happily reformed them: this freedom has alone made our government what it is, and alone can preserve it; and therefore, under the banners of that freedom, to∣day I stand up to defend Thomas Paine. But how, alas! shall this task be accomplished? How may I expect from you what human nature has not made man for the performance of? How may I address your reasons, or ask them to pause, amidst the torrent of prejudice which has hurried away the public mind on the subject you are to judge?
Was any Englishman ever so brought as a criminal before an English Court of Justice?—If I were to ask you, Gentlemen of the Jury, what is the choicest Page 171fruit that grows upon the tree of English Liberty, you would answer, SECURITY UNDER THE LAW. If I were to ask the whole people of England, the return they looked for at the hands of Government, for the burdens under which they bend to support it, I should still be answered, SECURITY UNDER THE LAW; or, in other words, an impartial administration of justice. So sacred, therefore, has the Freedom of Trial been ever held in England; so anxiously does justice guard against every possible bias in her path, that if the pub∣lic mind has been locally agitated upon any subject in judgment, the forum is either changed or the trial postponed. The circulation of any paper that brings, or which can be supposed to bring, prejudice, or even well-founded knowledge, within the reach of a Bri∣tish tribunal, on the spur of an occasion, is not only highly criminal, but defeats itself, by leading to put of the trial which its object was to pervert. On this principle, his Lordship will permit me to remind him, that on the trial of the Dean of St. Asaph, for a libel, or rather, when he was brought to trial, the circulation of books by a society favourable to his defence, was held by the noble Lord, as Chief Justice of Chester, to be a reason for not trying the cause; although they contained no matter relative to the Dean, nor to the object of his trial; being only ex∣tracts from ancient authors of high reputation, on the general Rights of Juries to consider the innocence as well as the guilt of the accused; yet still, as the re∣collection of these rights was pressed forward, with a view to effect the proceedings, to guard the principle the proceedings were postponed.
Is the Defendant then to be the only exception to these admirable provisions? Is the English law to judge him, stript of the armour with which its uni∣versal justice encircles all others? Shall we, in the very act of judging him for detracting from the En∣glish government, furnish him with ample matter for just reprobation, instead of detraction? Has not his Page 172cause been prejudged through a thousand channels? Has not the work before you been daily publicly re∣vived, and his person held up to derision and re∣proach? Has not the public mind been excited, by crying down the very phrase and idea of the Rights of Man? Nay, have not associations of gentlemen, I speak it with regret, because I am persuaded, from what I know of some of them, that they, amongst them at least, thought they were serving the public; yet have they not, in utter contempt and ignorance of that Constitution of which they declare themselves to be the guardians, published the grossest attacks upon the Defendant? Have they not, even while the cause has been standing here in the paper for im∣mediate trial, published a direct protest against the very work now before you; advertising in the same paper, though under the general description of se∣ditious papers, a reward on the conviction of any person who should dare to sell the book itself, to which their own publication was an answer?—The Attorney General has spoken of a forced circulation of this Work; but how have these prejudging papers been circulated? We all know how: they have been thrown into our carriages in every street; they have met us at every turnpike; and they lie in the areas of all our houses. To complete the triumph of prejudice, that High Tribunal, of which I have the honour to be a member (my learned friends know what I say to be true), has been drawn into this vor∣tex of slander; and some of its members, for I do not speak of the House itself, have thrown the weight of their stations into the same scale.
By all means I maintain that this cause has been prejudged.
It may be said, that I have made no motion to put off the trial for these causes, and that courts of themselves take no cognizance of what passes else∣where, without facts laid before them. Gentlemen, I know that I should have had equal justice from that Page 173quarter, if I had brought myself within the rule. But when should I have been better in the present aspect of things? And therefore I only remind you of all these hardships, that you may recollect that your judg∣ment is to proceed upon that alone which meets you here, upon the evidence in the cause, and not upon suggestions destructive of every principle of justice.
Having disposed of these foreign prejudices, I hope you will as little regard some arguments that have been offered to you in court. The letter which has been so repeatedly pressed upon you, you ought to dismiss even from your recollection; I have already put it out of the question, as having been written long subsequent to the Book, and as being a libel on the King, which no part of the information charges, and which may hereafter be prosecuted as a distinct offence. I consider that letter besides, and indeed have always beard it treated, as a forgery, contrived to injure the merits of the cause, and to embarrass me person∣ally in its defence. I have a right so to consider it, because it is unsupported by any thing similar at an earlier period. The Defendant's whole deportment, previous to the publication, has been wholly unexcep∣tionable; he properly desired to be given up as the author of the Book, if any enquiry should take place concerning it; and he is not affected in evidence, directly or indirectly, with any illegal or suspicious conduct; not even with having uttered an indiscreet or counting expression, nor with any one matter or thing, inconsistent with the duty of the best subject in England. His opinions indeed were not adverse to our system; but I maintain that OPINION is free, and that CONDUCT alone is amenable to the law.
You are next to judge of the author's mind and intention, by the modes and extent of the circu∣lation of his work. The First Part of the Rights of Man, Mr. Attorney General tells you, he did not prosecute, although it was in circulation through the country for a year and a half together, because it Page 174seems it circulated only amongst what he stiles the judi∣cious part of the public, who possessed in their capa∣cities and experience an antidote to the poison; but that with regard to the Second Part now before you, its circulation had been forced into every corner of society; had been printed and reprinted for cheapness even upon whited brown paper, and had crept into the very nurseries of children, as a wrapper for their sweetmeats.
In answer to this statement, which after all stand only upon Mr Attorney General's own assertion, un∣supported by any kind of proof (no witness having proved the author's personal interference with the sale), I still maintain, that if he had the most anxi∣ously promoted it, the question would remain exactly the same: the question would still be, whether at the time when Paine composed his work, and promoted the most extensive purchase of it, he believed or dis∣believed what he had written, and whether he con∣templated the happiness or the misery of the English nation, to which it is addressed; and which ever of these intentions may be evidenced to your judgments upon reading the Book itself, I confess I am utterly at a loss to comprehend how a writer can be supposed to mean something different from what he has written, by an axiety (common I belive to all authors) that his work should be generally read.
Remember, I am not asking your opinions of the doctrines themselves, you know them already pretty visibly since I began to address you; but I shall ap∣peal not only to you, but to those who, without our leave, will hereafter judge without appeal of all that we are doing to day; whether, upon the matter which I hasten to lay before you, you can refuse in justice to pronounce, that from his education—from the accidents and habits of his life—from the time and occasion of the publication—from the circum∣stances attending it—and from every line and letter of the work itsself, and all his other writings before and even since, his conscience and understanding (no Page 175matter whether erroneously or not) were deeply and solemnly impressed with the matters contained in his Book,—that he addressed it to the reason of the nati∣on at large, and not to the passions of individuals, and that in the issue of its influence, he contemplated only what appeared to him (though it may not to us) to be the interest and happiness of England, and of the whole human race. In drawing the one or the other of these conclusions, the Book stands first in order, and it shall now speak for itself.
Gentlemen, the whole of it is in evidence before you, the particular parts arraigned having only been read by my consent, upon the presumption that on retiring from the court, you would caresully com∣pare them with the context, and all the parts with the whole viewed together. You cannot indeed do justice without it. The most common letter, even in the ordinary course of business, cannot be read in a cause to prove an obligation for twenty shillings with∣out the whole being read, that the writer's meaning may be seen without deception. But in a criminal charge of only four pages and a half, out of a work containing nearly two hundred, you cannot, with even the appearance of common justice, pronounce a judgment without the most deliberate and cautious comparison. I observe, that the noble and learned Judge confirms me in this observation. But if any given part of a work be legally explanatory, of every other part of it, the preface, a fortiori, is the most ma∣terial; because the preface is the author's own key to his writing: it is there that he takes the reader by the hand, and introduces him to his subject: it is there that the spirit and intention of the whole is laid before him by way of prologue. A preface is meant by the author as a clue to ignorant or careless readers: the author says by it, to every man who chooses to begin where he ought—look at my plan—attend to my distinctions—mark the purpose and limitations of the matter I lay before you.