I now come to remark on the remaining part of the quotation I have made from Mr. Burke.
“If,” says he, “such writings shall be thought to deserve any other refutation than that of criminal justice.”
Pardoning the pun, it must be criminal justice indeed that should condemn a work as a substitute for not being able to refute it. The greatest condemnation that could be passed upon it would be a refutation. But in proceeding by the method Mr. Burke alludes to, the condemnation would, in the final event, pass upon the criminality of the process and not upon the work, and in this case, I had rather be the author, than be either the judge or the jury that should condemn it.
But to come at once to the point. I have differed from some professional gentlemen on the subject of prosecutions, and I since find they are falling into my opinion, which I will here state as fully, but as concisely as I can.
I will first put a case with respect to any law, and then compare it with a government, or with what in England is, or has been, called a constitution.
It would be an act of despotism, or what in England is called arbitrary power, to make a law to prohibit investigating the principles, good or bad, on which such a law, or any other is founded.
If a law be bad it is one thing to oppose the practice of it, but it is quite a different thing to expose its errors, to reason on its defects, and to show cause why it should be repealed, or why another ought to be substituted in its place. I have always held it an opinion (making it also my practice) that it is better to obey a bad law, making use at the same time of every argument to show its errors and procure its repeal, than forcibly to violate it; because the precedent of breaking a bad law might weaken the force, and lead to a discretionary violation, of those which are good.
The case is the same with respect to principles and forms of government, or to what are called constitutions and the parts of which they are, composed.
It is for the good of nations and not for the emolument or aggrandisement of particular individuals, that government ought to be established, and that mankind are at the expense of supporting it. The defects of every government and constitution both as to principle and form, must, on a parity of reasoning, be as open to discussion as the defects of a law, and it is a duty which every man owes to society to point them out. When those defects, and the means of remedying them, are generally seen by a nation, that nation will reform its government or its constitution in the one case, as the government repealed or reformed the law in the other. The operation of government is restricted to the making and the administering of laws; but it is to a nation that the right of forming or reforming, generating or regenerating constitutions and governments belong; and consequently those subjects, as subjects of investigation, are always before a country as a matter of right, and cannot, without invading the general rights of that country, be made subjects for prosecution. On this ground I will meet Mr. Burke whenever he please. It is better that the whole argument should come out than to seek to stifle it. It was himself that opened the controversy, and he ought not to desert it.
I do not believe that monarchy and aristocracy will continue seven years longer in any of the enlightened countries in Europe. If better reasons can be shown for them than against them, they will stand; if the contrary, they will not. Mankind are not now to be told they shall not think, or they shall not read; and publications that go no farther than to investigate principles of government, to invite men to reason and to reflect, and to show the errors and excellences of different systems, have a right to appear. If they do not excite attention, they are not worth the trouble of a prosecution; and if they do, the prosecution will amount to nothing, since it cannot amount to a prohibition of reading. This would be a sentence on the public, instead of the author, and would also be the most effectual mode of making or hastening revolutions.
On all cases that apply universally to a nation, with respect to systems of government, a jury of twelve men is not competent to decide. Where there are no witnesses to be examined, no facts to be proved, and where the whole matter is before the whole public, and the merits or demerits of it resting on their opinion; and where there is nothing to be known in a court, but what everybody knows out of it, every twelve men is equally as good a jury as the other, and would most probably reverse each other’s verdict; or, from the variety of their opinions, not be able to form one. It is one case, whether a nation approve a work, or a plan; but it is quite another
