information, with remarks upon it: but I now will wait till the trial is over, and then I will make some observations. I hope in God, gentlemen, he will not omit one single word that I have said this day. At present I do not think I need trouble you any farther. I can have but one opinion, which is, that the mischievous tendency of this book is that which I have taken the liberty to enlarge upon, and that such will be your verdict. However I have done my duty, in bringing before you an offender of this sort. Be the event what it may, I am satisfied in having placed the public under the shield of your protection.' The court then proceeded to the examination of witnesses, which being closed; Mr. ERSKINE (now Lord ERSKINE) delivered the following speech in defence of Mr. PAINE. "Gentlemen of the Jury, "The attorney-general in that part of his address to you which arose from the communication of the letter written to him from France, did not appear at all to play the actor; when he exhibited, most undoubtedly, signs of great sensibility and emotion, he spoke, I am persuaded, as his feelings dictated. With respect to his situation in receiving that letter, and feeling it as his duty to present it before you, gentlemen, if his embarrassment were that which he expressed, and that which he felt, what do think mine must be ?-And, gentlemen, as I am persuaded my learned friend, for we have known one another from our childhood, does not consider me as bereft of those feelings which belong to the human mind when it is well cultivated, though I do not possess them, I am persuaded, in the degree he has the means to feel them; yet, I trust my friend is not unsusceptible of such sensations. He speaks, as he can only speak, as a subject of a sovereign, whose high situation removes him too far from his subjects to have any other affections than those that grow from his great situation in society. You will re-member, gentlemen, that I stand in the same situation towards another great personage, who is implicated in that which I am ready to admit to you is a gross and scandalous libel, and that that is the most improper part of the letter which has been read, though I stand in a different relation. Besides the duty I owe to that prince to whom I am a servant, I owe to him and feel for him that affection which he demands as a man: but that shall not detach me from the duty which I conceive belongs to my present situation. I stand here, gentlemen, to do that, which if were not done by me, the author of this book, if in your eyes he is criminal for detracting as he has done from the English constitution, he would have ample ground for that detraction, for an impartial trial is one of the fruits we all hope is derived from that constitution under which we live, and from which we derive so many benefits. It would appear, I am persuaded, a blur and a blot upon that constitution, if a man, standing upon his trial, could say he could not be defended. "I confess, gentlemen, I should have been glad if I had had an earlier opportunity of knowing correctly the contents of that letter. I should have been very glad if I could have had a more early opportunity also of knowing, which I do not admit at present, that it was genuine and authentic; because I know not only the impression which such a letter must make upon gentlemen's mindst who are the jury to try the cause, but, as far as nature is able to struggle against any difficulties thrown in, and with my duty to my client, I will exert it in the best manner I am able. I confess I cannot help thinking it would be a great advantage to the public, if the Attorney-General is right in his comments upon the book, that by the law of England the book cannot exist, or be circulated, from the matter contained in it, I cannot help thinking, he thought it for the interest of his country, and the merits of his prosecution, to read the letter: that letter contained what is wholly foreign to the prosecution before you, and my lord could not receive it upon any other principle than this, that it admitted the defendant was the author of it, and to prove quo animo, that book was written by him. Gentlemen, no one fact whatever has been proved by the Attorney-General as coming from the defendant; or are they capable of fastening upon him one act previous to the work before you. No one expression that he meant to produce civil war and discord in England; nothing reproachful either to the character or conduct of the sovereign, or any of the family. And that letter is written months and months after this book, which is the book of his brain, and after he had been, in a manner, driven and expelled his country to a new society, where new ideas may have started up in his mind long subsequent to his work, and which, therefore, do not furnish any fair commentary on the work itself. My friend has stated to you, that rumor has spread it abroad, that this prosecution is carried on by him as a public officer of the crown, without any private approbation of his own; and he thinks it necessary, and I think it right to think, if he does so think, it has his concurrence, and be should hold himself disgraced in this profession, of which he is so honorable a member, and in society, if he had not brought this matter before you. Here he and I stand in a little different situation; he tells you rumor has spread it abroad; I am persuaded it has so as to come to his ears. You will attend to truth or falshood, and I might call upon all around me, except the few that are about the Attorney-General, and who are within the immediate intelligence which he can convey, and ask whether that rumor has spread itself abroad to any large or extended circle? With respect to myself, do I stand in that situation before you? Can you go to any of the places where men resort for pleasure or business, without seeing my name attacked, and character wounded and torn to pieces, for only doing that which, till I die, or while I continue in this profession, I shall always continue to do? That is, without making myself a party in this cause, without undertaking the defence of this or any other man, I will assert the freedom and integrity of the English bar, with which the most valuable part of the English constitution is lost; for, from the moment any English advocate can state, he will, or not stand between the crown and the subject that is put upon his trial, from that moment the liberty of the subject is gone. If a man, high in the profession, presumes to give judgment against the defendant, he assumes the character of judicature; and if he, as a man of some reputation (and my situation entitles me to suppose I have some) refuse to do it, how is any man to be defended? "But gentlemen, I have no complaint to make, either against those printers who have circulated opinions, or the authors of them. I take it a great many of them may be deluded, so as to think they render a service to the public. If there be any description of men, who from malice and injustice, or from personal disregard to me, have mixed in it, I forgive them but I stand here, in my situation at the bar, to defend this book, and the author, in the manner I conceive by the laws of England they may be defended. Gentlemen, I could not help mentioning this, but I should rather, I believe, postpone it for farther consideration. It is now my duty to state to you what the question in this cause is; for if it were the question which rumor has invented and perverted; if it were the question that those who have so thought and spoken of me had conceived, it would be a very speedy determination the question is not, whether the constitution of our fathers, under which we live, and under which I now present myself before you, be or be not preferable to the constitution of America or the constitution of France, or : any other human constitution? In the nature of things that cannot be the question. Gentlemen, I will put this matter in a light in which it appears to me, not merely the strongest for the defendant, but the strongest for us all; for, though I abhor the calumny in the concluding part of that letter which has been read, there are truths in it which imports us all to consider; and, I am convincǝd, every man in a court of judicature ought to divest himself of all prejudices, and meet fairly the case of the parties that are submitted to their consideration. "Gentlemen, it has been asserted loudly and variously, and parliament has been assembled together out of the ordinary mode, upon the presumption that these things were of mischievous tendency. I should suppose I am now addressing some gentlemen infected with the doctrine of this book, and have no love for the constitution of the country, and believe the country would be happier under the form of a republic. I have no difficulty in asserting that, if there were any of that opinion, and I believe I am not addressing myself to such, but if I were addressing myself to any one who had such ideas, I should say, you cannot upon that ground find a verdict for the defendant. You are bound to convict him, provided, in your judgment, he has transgressed those limits the wisdom and policy of the law of England (and it was that principle that made the constitution) have allowed, not merely for the preservation of the law of England, but for the liberty and freedom of the press: therefore, it is impossible that you should have any other species of jurisdiction: you have no authority but by the law of England; you have no right to give a verdict, and his lordship had no right to pass sentence against the defendant, but for that jurisdiction which the same law confers upon him; and therefore the question is not whether that law under which we live. is superior or inferior to any other law, but whether it is upon those principles upon which the constitution gave us |