If ever in my course in the profession, I should find myself wounded either in fortune or reputation, instead of regretting and deploring it, I will rejoice and exult at it, and, at those hours, when in full confidence of his companions, it is neither indecent nor unsafe in a man to speak of his own actions, I will boast of it, I will shew it, as an honourable scar.
Gentlemen, with these preliminary observations, I will proceed to introduce my case to you. My learned friend, Mr. Gurney, has opened this prosecution with all that pomp of eloquence, and solemnity of declamation, which he possesses in so ample a manner, and which make him so accomplished an advocate. But what has he done? All, indeed, that he or any one else could have done: yet, nothing more than repeat those arguments, which are trite, and worn like a turnpike, and have been topics for counsel after counsel, through a thousand of these prosecutions; while he has left all the great subjects of consideration that present themselves to the mind on these questions, wholly untouched. He has declared, indeed, but without showing you why, that the words, charged in the indictment are an atrocious libel; in which, as it appears to me, he has been rather premature, for a libel they are not, and cannot be, unless your verdict should so declare them. I assert, gentlemen, I am sure his Lordship will nod assent to me while I assert it, that you are the only
judges of the law of libel in this case; and this paper, for which the defendant stands before you, is either a libel or not a libel, as you may in your consciences think it, and on your oaths pronounce it.
The statute, indeed, which declares this the law, has given, or rather left with his Lordship, the right of stating his opinion on that question to you; but I am sure he will not think that I exceed my duty, as an advocate, when I say, that though it is your duty to receive his opinion with respect, and give it the most attentive consideration, yet it still leaves you free to your own judgments, and if after weighing his opinion, you find yours unaltered, you have not only a right, but it is your duty to reject his opinion and to act on your own.
Gentlemen, I submit that it is within your province to take into consideration the nature and operation of those writings, which are called in prosecutions of this kind libels. You are sitting there to try this charge as an offence by the common law of the land. The defendant is accused of having committed an act in the nature of a nuisance; and you are to judge whether that act could operate as a nuisance or not. You are not bound, because pamphlets have been prosecuted as libels time out of mind, or even because they have been declared libels by the verdicts of preceding juries to tread in no other path than their steps; and to find similar, or even the same matter, libels, if you should not think them criminal or dangerous. If you should be convinced by argument, not only that the pamphlet before you is not a libel, but that almost all those political writings, which it has been the habit of certain people, taking up the cry from their leaders, to call libels, are not merely not dangerous but beneficial to political society; is it possible to conceive, that you can
be induced to pronounce a verdict of guilty against the defendant! How can you come to such a conclusion; as that there should be punishment where there has been no mischief, and where there could have been none, and if there not only has been no mischief, but could have been none,—nay, if even there must have been benefit, how can you lay your hands on your hearts, and say there has been crime? Suppose a man was indicted for a nuisance in doing that for which a number of persons had in succession been indicted and convicted, would that oblige a jury to find a verdict against a person at this day indicted for the same act, if he should prove to them by evidence, which their minds could not resist, that what had been complained of as hurtful to public health and morals was noxious to neither, but salutary to both? Would you, in such a case, though a thousand preceding juries had, in their ignorance, pronounced verdicts of guilty, follow their example, against your full knowledge and internal conscience? To illustrate by a familiar instance, when hops were first introduced into this country they were very generally believed to be pernicious. Several persons were I believe prosecuted and convicted for using them; yet now they are known not only to be not pernicious, but nutritious; they form a principal ingredient in the daily beverage of our tables, and are even employed largely in medicine. Let us now imagine a man prosecuted for the use of hops or any other drugs upon the ground that they injured health, and that upon his trial he should fill the box with men of science as witnesses, and shew you to moral demonstration, that so far from being injurious, they were highly salutary, would you, because other juries had convicted in a state of ignorance, imitate their blindness, and convict the defendant? Certainly not. Then to apply
this to writings, prosecuted as libels, though there may have been hundreds, and thousands, nay tens of thousands of convictions upon them, yet, if you should be convinced, that what are usually called libels (and this among them) cannot be injurious, but so far from it, that they are innocent and even salutary to the state, in which they are published, would you hand over the publisher to punishment by a verdict of guilty? But I am anticipating, I fear, my defence, and introducing too early observations, which will better be urged in a subsequent part of my address to you. I will, therefore, pass at once to the paper charged as a libel in the indictment, and examine, under what circumstances it has come before you. And in the first place, as to the publication, without which (whatever the nature of the writing may be, there can be no crime) who are morally the publishers of this pamphlet? Have you any evidence, whatever, that any one of these pamphlets was in circulation, or ever would have been circulated, but for the impertinent, obtrusive, sordid, and base part of the ministers of the Constitutional Association? How otherwise is this pamphlet here? Let us turn back to the evidence of the first witness. He was the worthy servant of the Association in this and a few other recent instances, but for the most part, within a year and a half, the servant of the Society for the Suppression of Vice: a Society very different, indeed, from that with which we have had to deal to-day;—not that I have any affection even for that association: I would neither praise nor even be suspected of approving it, but I will not be so unjust and scandalous as to compare it with the Constitutional Association. Before this witness was employed by that society, he was a Custom-house officer. Are you, I asked him, now a Custom-house officer? No. How comes that? I lost
my place. How old are you? Fifty-four. Have you any pension? No. Now, gentlemen, I beg to observe, that it is not the habit of the Custom-house to turn away officers, who have grown grey in their service, without a pension; unless they have richly deserved to be so discarded and abandoned. Such, gentlemen, are the instruments employed as spies by the acting members of this Association! This fellow is sent out with instructions from the honorary secretary, Mr. Murray, who is the attorney for the prosecution, to purchase, not this pamphlet alone, but any political pamphlet, which in his judgment might be libelous. Good God! to what a condition are we reduced, when, under the auspices of this blessed Association, discarded tide-waiters, and broken gaugers, are made judges of what is libelous, and leagued with an attorney, are to determine what may, and what may not, without the terror of a prosecution, issue from a free press. Such was the course pursued: and can you conscientiously say, that, but for this hiring of a spy to make a purchase of this pamphlet for the sole purpose of founding this prosecution upon that very instance of sale, the public would ever have heard of it? Gentlemen, it is a great happiness, and much security arises from it, that every person who stands forward as a prosecutor exposes his own conduct, as it is connected with the prosecution, to scrutiny and animadversion. I have a right to assume that freedom which is the privilege of the bar. I remember that in the case of the King and the Dean of St. Asaph, in which the present Marshal of the King’s Bench Prison, without any apparent connection with the subject of the prosecution, was the prosecutor, the counsel for the defendant exercised this right, and the Marshal was successively the object of his ridicule and indignation.
Mr. Justice Best.—Mr. Cooper do you think it acting fairly to make this sort of attack on a gentleman who is not present? Is this the practice of the bar?
Mr. Cooper.—My Lord, I make no attack on the Marshal. I only state that—