Locke proceeding still with the discussion of the question, whether oppressive governments may be opposed by the people, and, having concluded in the affirmative, says, “But here the question may be made, who shall be judge whether the prince or legislature act contrary to their trust. This, perhaps, ill affected and factious men may spread among the people, when the prince only makes use of his just prerogative. To this, I reply, the people shall be judge; for who shall be judge whether the trustee or deputy acts with and according to the trust that is reposed in him, but he who deputes him, and must, by having deputed him, have still a power to discard him
when he fails in his trust. If this be reasonable in particular cases of private men, why should it be otherwise in that of the greatest moment when the welfare of millions is concerned, and also when the evil if not prevented is greater, and the redress very dear, difficult, and dangerous.”
Locke, therefore, most unambiguously concludes that insurrection may be justified and necessary. A greater and more important truth does not exist, and we owe its promulgation with such freedom and boldness to that most extraordinary and felicitous conjuncture at the revolution which called upon us to support a king against a king, and obliged us to explode (as has been done most completely) the divine right and passive obedience under which one king claimed, to maintain the legal title of the other.
Locke goes on further to say—
“This question, who shall be supreme judge? cannot mean that there is no judge at all. For where there is no judicature on earth to decide controversies among men, God in heaven is judge. But every man is to judge for himself, as in all other cases, so in this, whether another hath put himself in a state of war with him, and whether, as Jeptha did, he should appeal to the Supreme Judge.”
I beg that I may not be misinterpreted, I hope it will not be said I mean to insinuate that any circumstances at present exist to justify insurrection. I protest against any such inference. Nothing can be further from my thoughts, and I regret that such an extravagant mode of construing men’s words should be in fashion, as to render such a caution on my part needful. All I say is, that the writer of this paper spoke of insurrection conditionally, and prospectively only, and, in doing so, has done no more than Locke, in other terms had done before him.
Gentlemen, I have but a very few more arguments to address to you, and I am glad of it, for I assure you, you cannot be more exhausted in patience than I am in strength.
I now, gentlemen, ask you even admitting that the style and manner, in which the opinions of the writer of this address are expressed, should verge upon intemperance and impropriety, would you venture, merely upon the ground of such a defect in style, to say the defendant is guilty; when the very same opinions in substance, expressed in a different style, would be innocent and legal, and unquestionable? Gentlemen, I have heard it asserted, with a surprise that I cannot express, that if persons will write in a moderate, delicate, temperate, and refined style they may discuss questions which become exceptionable and forbidden if they are handled in a coarse and illiberal style. Now I should have thought, that the very reverse of this would have been the case; for by a refined and guarded style you may insinuate and persuade—by vulgar coarseness and intemperance you disgust and nauseate. To say that a political paper of the very same sentiments, and principles would be innocent, written in a calm and delicate style which would be criminal, written in an abrupt, vehement and passionate manner, is to remove guilt from the thought and conception and substance of a writing, and impute it to the medium only of the thought, the mere expression. So that upon such a rule and principle of decision, if I were to heap violent and gross abuse even on Abershaw, or any other highwayman, who was deservedly hanged a hundred years ago, I might actually be indicted for a libel. Such a course, gentlemen, would be to degrade your judgments from a decision upon the thought, and
opinions (which, are alone important) of an author to a criticism and condemnation of his words, and would be waging war with the vocabulary and the dictionary, a degradation, to which I trust, your reason will never submit. A difference of style in political writings is much too refined and subtle to found a distinction upon between innocence and crime. Difference of style is so minute, and is a subject of such nice discrimination, that it would not only be difficult, but almost impossible, and most unsafe for any jury to attempt by it to draw a line between guilt and innocence; besides, what would be the effect upon the press? If I were told, when I sat down to write upon any topic, that I must treat it in a given style, and no other, or risk prosecution, I should be confounded, and throw down my pen without writing at all. At least I should either not write at all, or write in such a manner that I might as well not have written at all, for I should most certainly never be read. Good God! to leave a man the alternative of a particular style, or an indictment for a libel, when he sat down to compose, would be like placing a torpedo on his hand; for you cannot, as was most forcibly, and beautifully said by Lord Erskine, “expect men to communicate their free thoughts to one another under the terror of a lash hanging over their heads;” and again, on another occasion, “under such circumstances, no man could sit down to write a pamphlet, without an attorney at one elbow, and a counsel at the other.” Gentlemen, if you, sitting coolly and dispassionately to give a deliberate judgment upon the manner and style of an author’s composition would find it difficult to form a certain judgment, how great, how insuperable, must be the difficulty of the writer himself. How is he when he sits down intent on his subject and when vehement and
ardent (as he must be, if he is in earnest, and that he may persuade others of that, which he feels himself) and his ideas are thronging and pressing upon him for expression—how is he to be select and cautious and measured in his words? Would you not by subjecting the freedom of political discussion to such a restriction run the hazard of destroying it altogether? Upon this question of the difficulty of distinguishing between propriety and impropriety in the style of writings I can not abstain from reading to you a passage from a speech of Lord Chesterfield, which was quoted by Lord Erskine, when he was at the bar, upon a trial for libel. On that occasion, indeed, Lord Kenyon told him, that he believed it flowed from the pen of Dr. Johnson, and that Lord Erskine took as a valuable concession; for from the frame of mind and bias of that learned man on political subjects, he was certainly not a friend to popular liberty, while Lord Chesterfield, I believe, acted without deviation upon Whig principles, and was a constant advocate for the freedom of the press. From Dr. Johnson, however, it was most important, as it had the effect of an unwilling admission, and if Lord Kenyon was correct in attributing the speech to Dr. Johnson, its excellence is to be inferred from the fact, that Lord Chesterfield never discountenanced the opinion that he was its author. The passage is this:—