A Sketch of the Life of the late Henry Cooper Part 5

Cross-examination resumed.--What is the office of the Honorary a.s.sistant Secretary?--It is to do every thing at the office.

To superintend the business of the office?--I consider him as the acting manager.

Then the Honorary Secretary has a sinecure?--What does the word honorary mean but a sinecure?

Mr. COOPER.--"May it please your Lords.h.i.+p; gentlemen of the jury; I am exceedingly sorry that some more able counsel has not to address you on this most important and momentous occasion. I should have been unequal to the task, under any circ.u.mstances."

Mr. GURNEY.--"Stop a minute." (The learned counsel for the prosecution here intimated, that he had something to add to his case; but, after a pause, he intimated to Mr. Cooper, that he might proceed.)

Mr. COOPER.--Gentlemen, under any circ.u.mstances, this would be a task, for which, I fear, I am very ill qualified; but under those, in which I stand to address you on this question, I feel my incapacity doubled and trebled. I appear before you without notice, and almost wholly without preparation. I was, indeed, applied to by the defendant, some months ago, and negotiated with (if I may use the phrase) to undertake her defence. But, after this, many days and even weeks pa.s.sed, during which I heard nothing of the case; and I began to suppose that the defendant had determined to employ some other counsel, or trust herself to her own address to the jury against this charge. At the end of a month, however, I was again applied to; and, again, weeks having elapsed, without my hearing any more of this prosecution, I dismissed it entirely, not only from my mind, but from my memory; nor was it, till last night, that, that I was once more informed that I was to be employed as the defendant's counsel; and my brief at last put into my hands. I was then unfortunately engaged in other important business: and the time, I have taken to collect my own thoughts upon this question, and huddle together a few extract's from writers of authority, I have been obliged to borrow from sleep; and have, therefore, in a great measure counteracted myself; for I have lost in strength, what I have gained in information, and appear before you ill able, indeed, to do justice to this cause. But, whilst I make this statement to excuse my own deficiency, I am bound to acquit the defendant of any reproachable negligence of her own interests.

I understand, that the cause of her late application to me, is, that having had, as a mere matter of grace, three weeks' notice of trial from another society, by which she has been prosecuted, she mistook it for her right; and expected the same notice from her present prosecutors. As she had not received any such notice (and indeed she was not in law ent.i.tled to it), she supposed, that either she was not to be brought to trial at these sittings, or that the charge was abandoned; as I wish it had been, and as it ought to have been; for I am convinced, that this prosecution cannot be sustained by either law or reason; and that it must be from the weakness of the counsel alone, that you, gentlemen, can be betrayed to p.r.o.nounce a verdict of Guilty against the defendant.

Gentlemen, it is my duty to clear this case of every possible prejudice that may hang about it in your minds before I enter into the merits of my defence. I do not know how you are affected, but I well know, that with many persons, I should have a host of prejudices to contend against, in the very name alone of Carlile. Many either believe, or affect to believe, that the very sound is an omen and an execration, and that either he cannot be sincere and honest in the opinions which he professes, or if he be, that those opinions are incompatible with the existence or practice of any moral or social virtue. But, whatever his opinions may be, and whatever your sentiments upon them, I have at least a right to ask of you not to allow any prejudice against the relation, against the brother, to warp your judgment on the trial of the defendant: for, what can possibly be more remote from justice, than, instead of judging a person fairly for his own conduct, to condemn him by our opinion of the sentiments and character of another? I hope and trust that you have entertained no such prejudices: but if you have, I feel a.s.sured, that you brought them no further than the threshold of the court:--at that door they fell from you, like the burthen from the pilgrim (in the beautiful allegory) on his reaching the cross; and you stand there with your minds unbia.s.sed, free and pure, to decide between the crown and the defendant in this cause. But it is not only my duty, gentlemen, to clear the defendant, but to extricate the counsel from every unfavourable suspicion, lest it should, possibly, by any confusion of the client with the advocate, operate to the disadvantage of the defendant.

Whatever, therefore, may be thought of the pamphlet which is before you, as a libel, or of the writer or publisher, I most solemnly affirm, that there is no one who more warmly admires the English const.i.tution, as it stands in theory and ought to exist in practice, than myself, nor is there any one who would more willingly shed his blood if it were necessary, or even lose his life in its support. It is needless then to say, that a more irreconcileable enemy would not be found than myself to the man (if any such there be) who could attempt to overturn our mingled and limited forms of government: and subst.i.tute a wild democracy in their place. I think, indeed, that a democratic form of government, however specious in argument, is by no means so capable of raising a state to that eminence of civilization and prosperity, which this country has reached; a condition, for which it is indebted to better times, while the practice concurred with the theory of our government; but which, unless the practice is brought back to the theory, I venture to predict, has not much longer to continue. I, gentlemen, appear here only in the discharge of my duty; and to redeem that pledge to defend the accused, which every man, upon a.s.suming this gown, gives to the public of England. I would, however, have it distinctly understood, that it is only to guard against prejudice to the defendant, and not from any apprehensions for myself, that I trouble you with this explanation. For myself, I am extremely careless, what may be thought of me for having come forward to defend this unfortunate woman. I do not expect to escape obloquy in the present overheated disposition of the country, How can I expect it? when even the present Lord Erskine, whose talents and independence should have rendered his character sacred, as soon as it was known that he was to be counsel for Paine was overwhelmed with abuse, and threatened with the loss of his situation, as attorney general to the Prince, if he did not decline the defence. But he knew his duty and discharged it. And for which will he be most honoured by posterity? By which most enn.o.bled? for having in spite of threats, and all the seductions of self-interest, persevered in his duty? or for having been exalted to the peerage of England and adorned with the national order of Scotch knighthood? But, if even my humble situation, should not exempt me from the attacks of the malicious and furious, I can tell them that their malignity will be disappointed.

Instead of regret and mortification it will be a source of pride and happiness to me. Small as my chance may be of credit for the a.s.sertion, I declare, that I propose to myself no reward so high for my exertions, as the consciousness of having, in spite of all hopes on one side, or fears on the other, honestly discharged my duty.

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 a.s.sert, gentlemen, I am sure his Lords.h.i.+p will nod a.s.sent to me while I a.s.sert 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 p.r.o.nounce it.

The statute, indeed, which declares this the law, has given, or rather left with his Lords.h.i.+p, 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 p.r.o.nounce 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, p.r.o.nounced verdicts of guilty, follow their example, against your full knowledge and internal conscience? To ill.u.s.trate 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 princ.i.p.al 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 antic.i.p.ating, 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, pa.s.s at once to the paper charged as a libel in the indictment, and examine, under what circ.u.mstances 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 Const.i.tutional a.s.sociation? How otherwise is this pamphlet here? Let us turn back to the evidence of the first witness. He was the worthy servant of the a.s.sociation 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 a.s.sociation: 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 Const.i.tutional a.s.sociation. 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 a.s.sociation! 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 G.o.d!

to what a condition are we reduced, when, under the auspices of this blessed a.s.sociation, 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 a.s.sume 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--

Mr. Justice BEST.--These observations being made on one who is not anywise connected with this case, who is not present to answer for himself, and who would not be permitted if he was, what are we to suppose? Can any gentleman at the bar consider this as fair?

Mr. COOPER.--My Lord, I have no design to attack the Marshal either in his absence or presence. I mentioned him but incidentally. What earthly purpose could it answer to this case to attack him? He _was_ the prosecutor in _that_ case, and I rather incautiously, perhaps, mentioned who the prosecutor was, by name; when I ought only to have said the prosecutor. If I have done him any injustice, I beg his pardon as publicly for it, and thus, I give a remedy as wide as the wound. I say then, gentlemen, that the prosecutor in that case, was alternately the object of the keenest indignation, and the most jeering ridicule, and I have a right to be equally as free, as the counsel in that case, with the prosecutors in this: but I shall by no means follow the example. On the contrary, I think, we are deeply indebted to the Const.i.tutional a.s.sociation. Consider how we were circ.u.mstanced when they first arose amongst us. There was the state, with a standing army of only a hundred thousand men, and nothing besides, except the whole civil force of the realm, a revenue of no more than seventy millions; and the feeble a.s.sistance of the established law officers of the crown to prosecute public offenders, when this Const.i.tutional a.s.sociation in the pure spirit of chivalry, steps forward to help the weakness of Government, and succour its distress. Now, whatever men may talk of justice, who can say that disinterestedness has altogether abandoned the earth? Who can say that generosity has forsaken us and flown to heaven? Let it be considered too, that but for their active vigilance Carlile's shop would not have been known. No productions from it had ever been the subject of prosecution, and but for the keen scent of the a.s.sociation, the rank and huge sedition contained in the New Year's Address might have lain in its covert undetected and undisturbed. But to drop this irony and be serious, the law officers of the crown are fully adequate to their duties, and Carlile's shop was as well known to the Attorney General as St. Paul's to you. For years he has not had his eyes off it. I will engage that every publication, that has issued from it, and this very pamphlet among the rest, has pa.s.sed through his hands, and under his review. Yet the law officers of the crown do not appear here to prosecute it as a libel against the state; and I entreat you to mark this, for I have a right to urge it, as a strong negative proof, that they do not so consider it; and how can that require your condemnation which they (with a judgment surely very much superior to that of the Committee of the Const.i.tutional a.s.sociation) have not thought worthy of prosecution or notice? Yes, you are actually called upon by this a.s.sociation to deliver over to punishment the publisher of this paper, whilst the law officers of the crown (who neglect their duty, if they do not prosecute offences against the state) have thought it of a nature not at all requiring their interference What can be so preposterous? So monstrous? And in taking leave of this view of the case, let me once more ask you who have been actually the publishers of this paper? Have you a single iota of evidence, which ought to satisfy your minds, that, but for the insidious conduct of the a.s.sociation, and its spies, this pamphlet would ever have been before you or the public? Is there a shadow of proof that one copy was ever sold, except those bought by the creatures employed by the honorary secretary (who is also the feed attorney in this prosecution) for the sole object of entangling the defendant in this indictment? None, whatever. None. They conspired you see to procure and seduce (the word is neither too broad nor too long for their conduct) the publication for the very purpose of this prosecution.

How then having thus suborned the offence of which they complain, can they dare to stand forward as prosecutors, when they themselves are the criminals, and ought to be the defendants.

Mr. Justice BEST.--You mean. Mr. Cooper, to offer some evidence of that, I suppose.

Mr. COOPER.--None, my lord, but the evidence already before the court and the jury, and the strong and necessary inference from the facts proved by the witnesses for the prosecution themselves.

Mr. GURNEY.--There were many others lying on the counter.

Mr. COOPER.--What of that, does it follow that they must, therefore, have been sold? In the absence of all other proof of any publication, I have a right, I am forced to consider the a.s.sociation as the only publishers.

Mr. Justice BEST.--In the evidence there is nothing like it.

Mr. COOPER.--What, gentlemen, is it a necessary conclusion, that because the pamphlets were lying in the shop, they must have been sold to other persons? The defendant but for their intrusion, for the sole design of prosecution, might have sold no others. She might have changed her intention to sell. The pamphlets might have lain like bad verses untouched on the shop counter, till they were turned over for waste paper, and not a soul have ever known of their contents. The a.s.sociation, therefore, by their insidious and plotted purchase for the sole object of prosecution, have provoked the act of publication, and they, who provoke crimes are the criminals, and ought to be the culprits; and those, who would punish the crimes that they have provoked, are devils, and not men; "the tempters ere the accusers." When I contemplate such conduct--but I will not waste another word, or another moment of your time upon this miserable a.s.sociation. If I had consulted my better judgment, I should have pa.s.sed them in silence; thus much my indignation has wrung from my contempt.

I shall now, gentlemen, proceed to the examination of the libel, or rather that which is charged as a libel itself; and I shall begin with the last part so charged in the indictment, instead (as my learned friend has done) with the first; and let me beg your regard to one remarkable fact, that at the very point of the paper, at which the motives, and design of the writer present themselves to the reader; at that very point this indictment stops. It has not, as you will presently see, the candour to proceed a single syllable farther. I will now read the pa.s.sage, "Reform," it says, "will be obtained when the existing authorities have no longer the power to withhold it, and not before, we shall gain it as early without pet.i.tioning as with it; and I would again put forward my opinion that something more than a pet.i.tioning att.i.tude is necessary." This it has been urged to you, with great emphasis, is an excitement to insurrection; and you are called upon to draw that inference, though the author immediately afterwards disavows, expressly disavows any such intention. But even, if the words stood alone, I deny that you are compelled to such a construction. Gentlemen, will any one venture to say, that I, standing in this place, and in the very exercise of my profession, mean any thing, but what is strictly legal, when I say myself, that supposing reform in Parliament be necessary, something more than mere pet.i.tioning is requisite to obtain it? But in saying this, do I mean any thing violent or illegal? Heaven forbid; No: but I would have societies formed, and meetings held for the purpose of discussing that momentous subject. If reform be necessary, and the desire of a great majority of the country, I would have that desire shown unambiguously to the legislature, by resolutions and declarations at such meetings. Who will deny such societies and meetings to be legal? Yet, such meetings would be more than mere pet.i.tioning, much more: and the author means nothing beyond this; for I say, that in the absence of all other criteria, the only means of judging of a writer's intentions are his words. Look then at the words which immediately follow the a.s.sertion, that "something more than a pet.i.tioning att.i.tude is necessary." If those words had been included in the indictment, this prosecution must have been at an end upon merely reading the charge, and those words, therefore, the a.s.sociation avoided, as cautiously as they would the poison of a viper. They felt, that though the indicted words standing alone might perhaps admit of a doubt for a moment, yet the context completely explained them, and gave an air of perfect innocence to the whole pa.s.sage. But you shall judge for yourselves: I will read the pa.s.sage,--"Something more than a pet.i.tioning att.i.tude is necessary. At this moment I would not say a word about insurrection; but I would strongly recommend union, activity, and co-operation. Be ready and steady to meet any concurrent circ.u.mstance." Now what kind of union, activity, and co-operation does he mean? Is it military a.s.sociation, marches, and attack? No. Hear the writer's own words again:--"The Union Rooms at Manchester and Stockport are admirable models of co-operation, and are more calculated than any thing else to strengthen the body of reformers." For what do the reformers a.s.semble in these rooms? How do they co-operate there? Is it to consult how they shall arm and organize themselves, and seize with a violent hand the reform which they despair of gaining by pet.i.tion? Nothing like it. The writer himself still tells you his meaning. "Here (that is at the Manchester and Stockport rooms) children are educated, and adults instruct each other. Here there is a continual and frequent communication between all the reformers in those towns." This, then, and no other, is the co-operation which the author intended, and proposes. If any man, taking the paper in his hand and reading the whole paragraph, can say that any thing more is meant, to his reason I should cease to appeal. I should sit down in silent despair of making any impression on such an understanding; but you, gentlemen, I ask you, adding the words which I have read to the broken pa.s.sage, which is insidiously separated and included in the indictment, can there be a doubt remaining in any rational and unprejudiced mind, that the union and co-operation called for by this Address from those who desire reform in Parliament, is nothing more than the establishment at other places, of rooms, on the model of those at Stockport and Manchester; where children and adults are instructed, and information disseminated on the subject of Parliamentary Reform. And if this is all that is meant, there is an end of this part of the indictment; for it cannot be libelous to recommend in a writing the people to do that, which it is perfectly legal to do.

With regard to reform itself, I cannot know, whether any of you are advocates for it or opposed to it, nor is it requisite that I should; I do not ask you to think or say with me, and others, that reform in Parliament is necessary, and that nothing but reform can save the country from ruin; all that I ask of you is to allow me and others credit for the conscientiousness of our opinions, and charitably admit, if yours are opposite, that though we may be mistaken in our judgments, we must not of necessity be criminal in our intentions. I leave you and every man to the free exercise of your thoughts, and the free enjoyment of the conclusions to which they lead you. Let this liberality be reciprocal, and concede the same freedom to others which you demand for yourselves. I have always thought that a difference in religious and political matters need not and ought not to create hostility of feeling, and sever those, who would otherwise be friends. I myself enjoy the friends.h.i.+p of several, who entertain very different opinions from mine upon those subjects; and yet that difference has not, and never shall, on my part, at least, disturb our friends.h.i.+p. In all questions in which you cannot have mathematical demonstration, there may be fair, honest, conscientious difference of opinion; and you cannot have geometrical proof in questions of religion, politics, and morals. The very nature of the subjects altogether excludes it. To expect it, as Bishop Sanderson says, would be as absurd as to expect to see with the ear and to hear with the eye. So various are our opinions upon these subjects, that we not only differ from one another upon them, but at different times we find we differ from ourselves; and, as another learned churchman, in more recent times, has said, what could be more unjust than to quarrel with other men for differing in opinion from him, when no two men ever differed more from one another than he at different times differed on the very same subject from himself. Under this state of uncertainty in human judgment, I call upon you, and I am sure I shall not call in vain, to be slow to condemn the opinions of others, because they are different from your own; and, therefore, if any of you should think reform in Parliament needless, or even dangerous, I still call upon you (though the writer of this paper should be a reformer, and even though he is called in reproach a radical reformer) not to condemn the defendant in this case through prejudice against the author's opinions; but solely to enquire (be those opinions ever so just or ever so absurd) whether he is sincere in entertaining them; for, if he be (as I shall show you presently from the highest authority) the law does not consider him criminal. Try him by this test, and this test, and this alone; and then, whatever may be your verdict, you will be free from reproach, and secure to yourselves quiet by day, and sound slumbers by night; for you will have discharged your duty to yourselves, to the defendant, and to the country.

With regard, gentlemen, to the other part of the alleged libel, I must bespeak your patience; for I am afraid that I shall be drawn by my comments upon it into considerable length. (I am afraid, gentlemen, I weary you, and I am sorry for it. If I had had leisure, I would have condensed my observations; but, under the circ.u.mstances I have disclosed to you, I hope you will forgive me for occupying more of your attention than I would otherwise have done. I really have not had time to be short.) To return to the pa.s.sage in the paper, which is first charged as a libel: it denies the existence of any const.i.tution in Great Britain.

Now whether there be anything malicious and criminal in this, depends entirely upon the meaning which the author attaches to the word const.i.tution. I confess it is a word that gives me a very indistinct and uncertain idea; and I believe that if any of you were now suddenly to ask yourselves what you understood by it, you would find you were not very ready to give yourselves an answer; and if you could even satisfactorily answer yourselves, you would find if you were to go further and question your neighbour, that he would give you a very different definition from your own. In itself it means nothing more than simply a standing or placing together; and it really seems to me rather hard and venturous to indict a man for denying the existence of something (whatever it may be) expressed by the most indefinite term in our whole language. But, if we were agreed upon the ideas which should be attached to the word, let us examine whether, allowing for a certain freedom of expression and the earnest eagerness with which a man who is sincere in his doctrines enforces them in his composition, a writer may not, without being exposed to a charge of criminal intention, a.s.sert that there is no const.i.tution in this country. And let us take with us to this examination, that a man is not to be too strictly tied to words, when under the impulse of warm and keen feelings, and when the thoughts flow, as it were, at once from the heart into the pen, he sits down to excite his countrymen to their good, or warn them of their danger. You must not think to bind him down with the shackles of verbal criticism, when he is too intent upon his theme exactly to measure his expressions. Now, that the writer of this paper is sincere in his opinions, whatever the quality of those opinions is, it is difficult not to believe. He published his opinions, though he exposed himself to punishment for them, and he perseveres in them while he is suffering a heavy punishment. You can have no more convincing proof of sincerity than this. But, what if a political writer has, in the warmth of composition, a.s.serted that in England we have no const.i.tution, who can misunderstand him? We cannot suppose he meant that there was a dissolution of all law and government; because we know and feel the contrary. Few would have occasion to ask him what he meant. If, however, he were asked, he should explain by telling you, that the const.i.tution in theory is very much corrupted from the practice; and I and you, and every person must admit, that the practice has strayed wide from the theory; and, forced to admit this, I a.s.sert with a writer, who (whatever was thought of him once, and whilst those who were the objects of his reproach still lived) is now the pride and boast of the country, both for the supreme elegance and the principles of his political writings, that "wherever the practice deviates from the theory so far the practice is vicious and corrupt." Now, saying no more than this, and when it would have been the merest stupidity to understand him literally, how can the writer be convicted of a design to bring the Government into hatred and contempt, because he has expressed his meaning by saying figuratively "there is no Const.i.tution." But he has previously said, that to talk about the British Const.i.tution is, in his opinion, dishonesty. I know he has. I did not mean to pa.s.s it, I will not, gentlemen, shrink from any part of the pa.s.sage, for I feel that it cannot bear with any heavy pressure against me. "To talk of the British Const.i.tution is, in my opinion, a sure proof of dishonesty." Here it will be seen that the only exception that can be taken to this sentence is the mere mode of expression. If a man were to talk to me of the Const.i.tution of England, and, by omitting all notice of its aberrations in practice from its theory, by which he would leave it free to me to suspect, that he would insinuate that the theory and the practice were the same, I should certainly say, that he was exhibiting want of candour.

I might, perhaps, think dishonesty, rather too strong a term for such conduct; but I should not scruple to say, that he was disingenuous, and he _would_ be guilty of a species of dishonesty; for all the disingenuousness is to a degree dishonest; and, since the meaning is the same, why should we quarrel at a mere difference of expression? The author proceeds to say, "If we speak of the Spanish Const.i.tution, we have something tangible; there is a substance and meaning as well as sound."

So that it is clear he was saying, that we had no Const.i.tution in comparison with that just promulged by the Spanish nation. The Spaniards we know have recently gained by their own glorious efforts, that political liberty to which they had been so long strangers; and their Legislature had just published a code of fundamental laws, few in number, but most comprehensive in securing freedom to the people, for whom they are framed. They are (comparatively with the laws of countries, in which the frame of government is old, and complicated) not numerous, but the mind may collect them almost at a glance, and possess itself of them with a single effort of the understanding. In this view of the subject, without doubt, the Const.i.tution of Spain is tangible; and in this sense he is justified in a.s.serting that our own Const.i.tution is not tangible; for is it not notorious that our laws are spread through so many Acts of Parliament of doubtful and difficult construction, and so many books of reports, containing the common law of the land (and in which there are no few conflicting decisions) that the whole life of a man does not suffice to achieve a knowledge of them. So multifarious and infinite and perplexed is our code, that even amongst those whose profession is the law it is not possible to meet with an accomplished lawyer.

The defendant here fainted, and was taken out of court. After the interruption which this circ.u.mstance occasioned had subsided, Mr. COOPER proceeded--

Gentlemen, I lament in common with many others that this evil has attended an extended degree of civilization and trade--that our laws have become too numerous and complicated for the capacity of the mind. That they are so, is not my opinion alone, but that of the Legislature itself.

I believe that a committee of the Houses of Parliament has been sitting and still sits for the object of reducing our laws to some limit in their number and some order as to their design; without which our Const.i.tution, to use the words of the writer, cannot be tangible; a tangible shape, at present it does not possess, for that cannot be tangible which spreads itself over a boundless extent, that eludes, and defies the grasp of the human intellect.

Having disposed of thus much of this paragraph, I come to the words, on which my learned friend, Mr. Gurney, laid such extreme stress in his address to you. "Our very laws, are corrupt and partial both in themselves, and in their administration. In fact corruption _as notorious as the sun at noon-day_ is an avowed part of the system, and is denominated the necessary oil for the wheels of Government. It is a most pernicious oil to the interests of the people." This is strong language I admit, and would perhaps be censurable as imprudent, at least, if the very expressions themselves, which the writer uses, did not guide us directly to the facts to which he alludes, and explain the pa.s.sage. He alludes most manifestly to the celebrated exclamation of a person at the time that he was in the seat of office, the first commoner of the realm, and who instead of being reproached for his words has retired from his office with the honours which he has merited for his services in it. It transpired in the House of Commons, that seats had been trafficked for as articles of sale and purchase for money.

Mr. Justice BEST.--Is that a subject at all relating to the question which is now before the jury?

Mr. COOPER.--My Lord, I am going to use the declaration of the Speaker, as a matter of history, and to show, that the words charged as criminal were an allusion to it; and if so, were not criminally used. I do not wish, nay I would avoid the introduction of any improper or inflammatory topics. I would not attempt to serve my client by such means. When it was exposed, that there had been certain trafficking for seats in the House of Commons, the Speaker used these words (and it is to them, I would show the jury, the writer of the paper alludes), "practices are as notorious as the sun at noon-day at which our ancestors would have started with indignation," and that gentlemen--

Mr. Justice BEST.--Will you allow me to ask you Mr. Cooper, I want to know where you get that from.

Mr. COOPER.--My Lord, from all the reports of the speeches in the newspapers of the day which were never contradicted.

Mr. Justice BEST.--I beg to state, that, whatever pa.s.sed in Parliament, cannot be questioned anywhere else. Whatever the Speaker said in Parliament, he was justified in saying. But I have no means of knowing, nor have you, whether he ever did say so or not.

Mr. COOPER.--I am not questioning anything he said in the House of Commons--

Mr. Justice BEST.--If Mr. Abbot had said it any where else, it would have been a libel on the const.i.tution; if he said it there, we cannot enquire about it; it would be a breach of privilege.

Mr. COOPER.--Your Lords.h.i.+p asked me, how I came to know that he said so.

My Lord, I have seen it in all the recorded speeches of the House of Commons in the published debates in Parliament, and--

Mr. Justice BEST.--I say there are no recorded speeches of the House of Commons to which we can listen or attend.

Mr. COOPER.--Certainly, there are no records of speeches in the House of Commons in the sense in which the proceedings of courts of law are records, nor is there in that sense any recorded speech of Cicero or of Lord Chatham; but, my lord, will your lords.h.i.+p say, that I am not ent.i.tled in my address to the jury to use that which has been reported as part of a speech of Lord Chatham or of Cicero; because there are no records filed, as in the courts of law, of their speeches! I submit that they are matters of history; and that, as such, I am at liberty to use them.

Mr. Justice BEST.--I tell you, Mr. Cooper, what the distinction is. If you publish, that, which may be said to be a speech of Lord Chatham's, and it may be an accurate report of his speech, you may be guilty of publis.h.i.+ng a libel, though the place, in which that speech was delivered gave a liberty to the speech. You know it has been so decided in my Lord Abingdon's case, who published his own speeches.

Mr. COOPER.--That, my Lord, was a libel upon a private individual. I say--

Mr. Justice BEST.--I say you have no knowledge of anything which is said in the Houses of Parliament.

Mr. COOPER.--With great submission I re-urge it as a matter of history, and as such I would use it whether the fact is ten years old or ten thousand, I submit makes no difference.

Mr. Justice BEST.--Mr. Cooper, I have told you my opinion; if you don't choose to submit to it, the best way will be to go on, perhaps.