Let me now, gentlemen, call your attention back to the
argument I used almost at setting out in my address to you, by which I attempted to maintain that you are not bound, whatever you may judge the intention of the writer to have been, to pronounce a publication a libel by your verdict, if you should be of opinion that such a publication cannot be mischievous, and that prosecution of it is unnecessary. If it can do no harm, it is no nuisance at common law to have written a paper, whatever its nature may be, and if it could be no nuisance, you are bound in duty to acquit the defendant, who is only the publisher. The doctrine for which I am contending with regard to this paper, has been acted upon by the government of one free country, with regard to all political writings, whatever their intention or nature. The Legislature of the State of Virginia has actually legislated against such prosecutions, and declared them totally unnecessary.
Mr. Justice Best.—That is not the law of this country.
Mr. Cooper.—I only use it my Lord as part of my speech in argument.
Mr. Justice Best.—I will tell you what I am bound to tell the jury. I shall tell them that we have nothing to do here with what may be expedient, we are not legislating here—the question is whether this is a proper prosecution?
Mr. Cooper.—I feel that it is exceedingly important to use as matter of argument, and as a part of my speech. If your Lordship stops me I know that it will be my duty to submit.
Mr. Justice Best.—All this is only drawing them away from the question they are to consider. With the propriety of instituting the prosecution they have nothing to do; the only questions they have to determine, are—Is that paper a libel, and has the defendant published it? An Act of the Assembly of Virginia has no validity in this country.
Mr. Cooper.—My Lord, I do not cite it as a statute of this realm to which we are bound to pay legal attention—
Mr. Justice Best.—We are bound to pay no attention to it.
Mr. Cooper.—My Lord, I only use it to show that other men have been of the opinion which I have expressed to your Lordship and the jury. If your Lordship insists on my not addressing myself to the jury upon it, I know too well the deference that is due from me to the Bench to persevere in attempting it.