"My necessary absence from your country affords the opportunity of knowing whether the prosecution was intended against Thomas Paine, or against the Rights of the People of England to investigate systems and principles of government; for as I cannot now be the object of the prosecution, the going on with the prosecution will show that something else was the object, and that something else can be no other than the People of England.... But I have other reasons than those I have mentioned for writing you this letter; and however you chuse to interpret them they proceed from a good heart. The time, Sir, is becoming too serious to play with Court prosecutions, and sport with national rights. The terrible examples that have taken place here upon men who, less than a year ago, thought themselves as secure as any prosecuting Judge, Jury, or Attorney-General can do now in England, ought to have some weight with men in your situation. That the Government of England is as great, if not the greatest perfection of fraud and corruption that ever took place since governments began, is what you cannot be a stranger to; unless the constant habit of seeing it has blinded your sense. But though you may not chuse to see it, the people are seeing it very fast, and the progress is beyond what you may chuse to believe. Is it possible that you or I can believe, or that reason can make any other man believe, that the capacity of such a man as Mr. Guelph, or any of his profligate sons, is necessary to the government of a nation? I speak to you as one man ought to speak to another; and I know also that I speak what other people are beginning to think. That you cannot obtain a verdict (and if you do it will signify nothing) without packing a Jury, and we both know that such tricks are practised, is what I have very good reason to believe.... Do not then, Sir, be the instrument of drawing away twelve men into a situation that may be injurious to them afterwards. I do not speak this from policy, but from benevolence; but if you chuse to go on with the process, I make it my request that you would read this letter in Court, after which the Judge and the Jury may do what they please. As I do not consider myself the object of the prosecution, neither can I be affected by the issue one way or the other, I shall, though a foreigner in your country, subscribe as much money as any other man towards supporting the right of the nation against the prosecution; and it is for this purpose only that I shall do it. As I have not time to copy letters, you will excuse the corrections."
A month after this awful letter was written, Paine no doubt knew its imprudence. It was sprung on the Court by the Attorney-General, and must alone have settled the verdict, had it not been foregone. Erskine, Paine's leading counsel, was Attorney-General for the Prince of Wales—foremost of "Mr. Guelph's profligate sons,"—and he was compelled to treat as a forgery the letter all felt to be genuine. He endeavored to prevent the reading of it, but Lord Kenyon decided that "in prosecutions for high treason, where overt acts are laid, you may prove overt acts not laid to prove those that are laid. If it [the letter] goes to prove him the author of the book, I am bound to admit it." Authorship of the book being admitted, this was only a pretext. The Attorney-General winced a good deal at the allusion to the profligate sons, and asked:
"Is he [Paine] to teach human creatures, whose moments of existence depend upon the permission of a Being, merciful, long-suffering, and of great goodness, that those whose youthful errors, from which even royalty is not exempted, are to be treasured up in a vindictive memory, and are to receive sentence of irremissible sin at His hands?"
It may be incidentally remarked here that the Attorney-General could hardly have failed to retort with charges against the author, had not Paine's reputation remained proof against the libellous "biography" by the government clerk, Chalmers.
The main part of the prosecution was thus uttered by Paine himself. While reading the letter the prosecutor paused to say: "If I succeed in this prosecution he shall never return to this country otherwise than in vinculis, for I will outlaw him."*
* 22 Howell's State Trials 357. Other reports are by Joseph
Gurney and "by an eminent advocate." The brief evidence
consisted mainly of the notes and statements of Paine's
publishers already mentioned in connection with the
publication of the indicted work. The Attorney-General cited
effectively the reply to Paine which he attributed to Vice-
President Adams. Publicola's pamphlet gave great comfort to
Paine's prosecutors. Mr. Long writes to Mr. Miles, agent in
Paris (December 1st), about this "book by the American
Adams, which is admirable, proving that the American
government is not founded upon the absurd doctrine of the
pretended rights of man, and that if it had been it could
not have stood for a week."
Erskine's powerful defence of the constitutional rights of thought and speech in England is historical. He built around Paine an enduring constitutional fortress, compelling Burke and Fox to lend aid from their earlier speeches. The fable with which he closed was long remembered.
"Constraint is the natural parent of resistance, and a pregnant proof that reason is not on the side of those who use it. You must all remember, gentlemen, Lucian's pleasant story: Jupiter and a countryman were walking together, conversing with great freedom and familiarity upon the subject of heaven and earth. The countryman listened with attention and acquiescence, while Jupiter strove only to convince him; but happening to hint a doubt, Jupiter turned hastily around and threatened him with his thunder. 'Ah, ha!' says the countryman, 'now, Jupiter, I know that you are wrong; you are always wrong when you appeal to your thunder.'
"This is the case with me. I can reason with the people of England, but I cannot fight against the thunder of authority."
Mr. Attorney-General arose immediately to reply to Mr. Erskine, when Mr. Campbell (the foreman of the jury) said: "My Lord, I am authorized by the jury here to inform the Attorney-General that a reply is not necessary for them, unless the Attorney-General wishes to make it, or your Lordship." Mr. Attorney-General sat down, and the jury gave in their verdict—Guilty.