LORD ERSKINE. ON THE LIMITATIONS OF FREE SPEECH, DELIVERED IN 1797 ON THE TRIAL OF WILLIAMS FOR THE PUBLICATION OF PAINE'S "AGE OF REASON."

Nearly all of Erskine’s speeches were several hours in length and so logically constructed as not to admit of abridgment or excision. The more elaborate of them, therefore, are not adapted to the purposes of this collection. It happens, however, that one of the briefest of his forensic addresses was the one on which he himself looked with most satisfaction. Of the speech delivered on the prosecution of Williams he is reported to have said: “I would rather that all my other speeches were committed to the flames, or in any manner buried in oblivion, than that a single page of it should be lost.” Erskine’s “Speeches,” Am. ed., vol. i., p. 571.

It is an interesting fact that the same great advocate who gave all his powers to the defence of Paine for publishing the “Rights of Man,” was equally earnest in the prosecution of Williams for the publication of the same author’s “Age of Reason.” But the explanation is easy. In the former work the author criticised, in what Erskine regarded as a legitimate way, the character and methods of the English Government; in the latter he assailed what the advocate regarded as the very foundations of all government and all justice. The difference between the two is pointed out in the following speech with a skill that will give the reader a good example of the orator’s method.

Gentlemen of the Jury:

The charge of blasphemy, which is put upon the record against the publisher of this publication, is not an accusation of the servants of the crown, but comes before you sanctioned by the oaths of a grand jury of the country. It stood for trial upon a former day; but it happening, as it frequently does, without any imputation upon the gentlemen named in the panel, that a sufficient number did not appear to constitute a full special jury, I thought it my duty to withdraw the cause from trial, till I could have the opportunity of addressing myself to you who were originally appointed to try it.

I pursued this course from no jealousy of the common juries appointed by the laws for the ordinary service of the court, since my whole life has been one continued experience of their virtues; but because I thought it of great importance that those who were to decide upon a cause so very momentous to the public, should have the highest possible qualifications for the decision; that they should not only be men capable from their educations of forming an enlightened judgment, but that their situations should be such as to bring them within the full view of their country, to which, in character and in estimation, they were in their own turns to be responsible.

Not having the honor, gentlemen, to be sworn for the king as one of his counsel, it has fallen much oftener to my lot to defend indictments for libels than to assist in the prosecution of them; but I feel no embarrassment from that recollection. I shall not be bound to-day to express a sentiment or to utter an expression inconsistent with those invaluable principles for which I have uniformly contended in the defence of others. Nothing that I have ever said, either professionally or personally, for the liberty of the press, do I mean to-day to contradict or counteract. On the contrary, I desire to preface the very short discourse I have to make to you, with reminding you that it is your most solemn duty to take care that it suffers no injury in your hands. A free and unlicensed press, in the just and legal sense of the expression, has led to all the blessings, both of religion and government, which Great Britain or any part of the world at this moment enjoys, and it is calculated to advance mankind to still higher degrees of civilization and happiness. But this freedom, like every other, must be limited to be enjoyed, and, like every human advantage, may be defeated by its abuse.

Gentlemen, the defendant stands indicted for having published this book, which I have only read from the obligations of professional duty, and which I rose from the reading of with astonishment and disgust. Standing here with all the privileges belonging to the highest counsel for the crown, I shall be entitled to reply to any defence that shall be made for the publication. I shall wait with patience till I hear it.

Indeed, if I were to anticipate the defence which I hear and read of, it would be defaming by anticipation the learned counsel who is to make it; since, if I am to collect it from a formal notice given to the prosecutors in the course of the proceedings, I have to expect that, instead of a defence conducted according to the rules and principles of English law, the foundation of all our laws, and the sanctions of all justice, are to be struck at and insulted. What gives the court its jurisdiction? What but the oath which his lordship, as well as yourselves, has sworn upon the gospel to fulfil? Yet in the King’s Court, where his Majesty is himself also sworn to administer the justice of England—in the King’s Court—who receives his high authority under a solemn oath to maintain the Christian religion, as it is promulgated by God in the Holy Scriptures, I am nevertheless called upon as counsel for the prosecution to “produce a certain book described in the indictment to be the Holy Bible.” No man deserves to be upon the rolls, who has dared as an attorney to put his name to such a notice. It is an insult to the authority and dignity of the court of which he is an officer; since it calls in question the very foundations of its jurisdiction. If this is to be the spirit and temper of the defence; if, as I collect from that array of books which are spread upon the benches behind me, this publication is to be vindicated by an attack of all the truths which the Christian religion promulgates to mankind, let it be remembered that such an argument was neither suggested nor justified by any thing said by me on the part of the prosecution.

In this stage of the proceedings, I shall call for reverence to the Sacred Scriptures, not from their merits, unbounded as they are, but from their authority in a Christian country; not from the obligations of conscience, but from the rules of law. For my own part, gentlemen, I have been ever deeply devoted to the truths of Christianity; and my firm belief in the Holy Gospel is by no means owing to the prejudices of education, though I was religiously educated by the best of parents, but has arisen from the fullest and most continued reflections of my riper years and understanding. It forms at this moment the great consolation of a life, which, as a shadow passeth away; and without it, I should consider my long course of health and prosperity, too long perhaps and too uninterrupted to be good for any man, only as the dust which the wind scatters, and rather as a snare than as a blessing.

Much, however, as I wish to support the authority of Scripture from a reasonable consideration of it, I shall repress that subject for the present. But if the defence, as I have suspected, shall bring them at all into argument or question, I must then fulfil a duty which I owe not only to the court, as counsel for the prosecution, but to the public, and to the world, to state what I feel and know concerning the evidences of that religion, which is denied without being examined, and reviled without being understood. I am well aware that by the communications of a free press, all the errors of mankind, from age to age, have been dissipated and dispelled; and I recollect that the world, under the banners of reformed Christianity, has struggled through persecution to the noble eminence on which it stands at this moment, shedding the blessings of humanity and science upon the nations of the earth.

It may be asked, then, by what means the reformation would have been effected, if the books of the reformers had been suppressed, and the errors of now exploded superstitions had been supported by the terrors of an unreformed state? or how, upon such principles, any reformation, civil or religious, can in future be effected? The solution is easy: let us examine what are the genuine principles of the liberty of the press, as they regard writings upon general subjects, unconnected with the personal reputations of private men, which are wholly foreign to the present inquiry. They are full of simplicity, and are brought as near perfection, by the law of England, as perhaps is attainable by any of the frail institutions of mankind.

Although every community must establish supreme authorities, founded upon fixed principles, and must give high powers to magistrates to administer laws for the preservation of government, and for the security of those who are to be protected by it; yet as infallibility and perfection belong neither to human individuals nor to human establishments, it ought to be the policy of all free nations, as it is most peculiarly the principle of our own, to permit the most unbounded freedom of discussion, even to the detection of errors in the constitution of the very government itself; so as that common decorum is observed, which every state must exact from its subjects and which imposes no restraint upon any intellectual composition, fairly, honestly, and decently addressed to the consciences and understandings of men. Upon this principle I have an unquestionable right, a right which the best subjects have exercised, to examine the principles and structure of the constitution, and by fair, manly reasoning, to question the practice of its administrators. I have a right to consider and to point out errors in the one or in the other; and not merely to reason upon their existence, but to consider the means of their reformation.

By such free, well-intentioned, modest, and dignified communication of sentiments and opinions, all nations have been gradually improved, and milder laws and purer religions have been established. The same principles which vindicate civil controversies, honestly directed, extend their protection to the sharpest contentions on the subject of religious faiths. This rational and legal course of improvement was recognized and ratified by Lord Kenyon as the law of England, in the late trial at Guildhall, where he looked back with gratitude to the labors of the reformers, as the fountains of our religious emancipation, and of the civil blessings that followed in their train. The English constitution, indeed, does not stop short in the toleration of religious opinions, but liberally extends it to practice. It permits every man, even publicly, to worship God according to his own conscience, though in marked dissent from the national establishment, so as he professes the general faith, which is the sanction of all our moral duties, and the only pledge of our submission to the system which constitutes the state.

Is not this freedom of controversy and freedom of worship sufficient for all the purposes of human happiness and improvement? Can it be necessary for either, that the law should hold out indemnity to those who wholly abjure and revile the government of their country, or the religion on which it rests for its foundation? I expect to hear in answer to what I am now saying, much that will offend me. My learned friend, from the difficulties of his situation, which I know from experience how to feel for very sincerely, may be driven to advance propositions which it may be my duty with much freedom to reply to; and the law will sanction that freedom. But will not the ends of justice be completely answered by my exercise of that right, in terms that are decent, and calculated to expose its defects? Or will my argument suffer, or will public justice be impeded, because neither private honor and justice nor public decorum would endure my telling my very learned friend, because I differ from him in opinion, that he is a fool, a liar, and a scoundrel, in the face of the court? This is just the distinction between a book of free legal controversy, and the book which I am arraigning before you. Every man has a right to investigate, with decency, controversial points of the Christian religion; but no man consistently with a law which only exists under its sanctions has a right to deny its very existence, and to pour forth such shocking and insulting invectives as the lowest establishments in the gradation of civil authority ought not to be subjected to, and which soon would be borne down by insolence and disobedience, if they were.

The same principle pervades the whole system of the law, not merely in its abstract theory, but in its daily and most applauded practice. The intercourse between the sexes, which, properly regulated, not only continues, but humanizes and adorns our natures, is the foundation of all the thousand romances, plays, and novels, which are in the hands of everybody. Some of them lead to the confirmation of every virtuous principle; others, though with the same profession, address the imagination in a manner to lead the passions into dangerous excesses; but though the law does not nicely discriminate the various shades which distinguish such works from one another, so as to suffer many to pass, through its liberal spirit, that upon principle ought to be suppressed, would it or does it tolerate, or does any decent man contend that it ought to pass by unpunished, libels of the most shameless obscenity, manifestly pointed to debauch innocence and to blast and poison the morals of the rising generation? This is only another illustration to demonstrate the obvious distinction between the work of an author who fairly exercises the powers of his mind in investigating the religion or government of any country, and him who attacks the rational existence of every religion or government, and brands with absurdity and folly the state which sanctions, and the obedient tools who cherish, the delusion. But this publication appears to me to be as cruel and mischievous in its effects, as it is manifestly illegal in its principles; because it strikes at the best—sometimes, alas!—the only refuge and consolation amidst the distresses and afflictions of the world. The poor and humble, whom it affects to pity, may be stabbed to the heart by it. They have more occasion for firm hopes beyond the grave than the rich and prosperous who have other comforts to render life delightful. I can conceive a distressed but virtuous man, surrounded by his children looking up to him for bread when he has none to give them; sinking under the last day’s labor, and unequal to the next, yet still, supported by confidence in the hour when all tears shall be wiped from the eyes of affliction, bearing the burden laid upon him by a mysterious Providence which he adores, and anticipating with exultation the revealed promises of his Creator, when he shall be greater than the greatest, and happier than the happiest of mankind. What a change in such a mind might be wrought by such a merciless publication? Gentlemen, whether these remarks are the overcharged declamations of an accusing counsel, or the just reflections of a man anxious for the public happiness, which is best secured by the morals of a nation, will be soon settled by an appeal to the passages in the work, that are selected by the indictment for your consideration and judgment. You are at liberty to connect them with every context and sequel, and to bestow upon them the mildest interpretations. [Here Mr. Erskine read and commented upon several of the selected passages, and then proceeded as follows:]

Gentlemen, it would be useless and disgusting to enumerate the other passages within the scope of the indictment. How any man can rationally vindicate the publication of such a book, in a country where the Christian religion is the very foundation of the law of the land, I am totally at a loss to conceive, and have no ideas for the discussion of. How is a tribunal whose whole jurisdiction is founded upon the solemn belief and practice of what is here denied as falsehood, and reprobated as impiety, to deal with such an anomalous defence? Upon what principle is it even offered to the court, whose authority is contemned and mocked at? If the religion proposed to be called in question, is not previously adopted in belief and solemnly acted upon, what authority has the court to pass any judgment at all of acquittal or condemnation? Why am I now or upon any other occasion to submit to his lordship’s authority? Why am I now or at any time to address twelve of my equals, as I am now addressing you, with reverence and submission? Under what sanction are the witnesses to give their evidence, without which there can be no trial? Under what obligations can I call upon you, the jury representing your country, to administer justice? Surely upon no other than that you are sworn to administer it, under the oaths you have taken. The whole judicial fabric, from the king’s sovereign authority to the lowest office of magistracy, has no other foundation. The whole is built, both in form and substance, upon the same oath of every one of its ministers to do justice, as God shall help them hereafter. What God? And what hereafter? That God, undoubtedly, who has commanded kings to rule, and judges to decree justice; who has said to witnesses, not only by the voice of nature but in revealed commandments, “Thou shalt not bear false testimony against thy neighbor”; and who has enforced obedience to them by the revelation of the unutterable blessings which shall attend their observance, and the awful punishments which shall await upon their transgression.

But it seems this is an age of reason, and the time and the person are at last arrived that are to dissipate the errors which have overspread the past generations of ignorance. The believers in Christianity are many, but it belongs to the few that are wise to correct their credulity. Belief is an act of reason, and superior reason may, therefore, dictate to the weak. In running the mind over the long list of sincere and devout Christians, I can not help lamenting that Newton had not lived to this day, to have had his shallowness filled up with this new flood of light. But the subject is too awful for irony, I will speak plainly and directly. Newton was a Christian; Newton, whose mind burst forth from the fetters fastened by nature upon our finite conceptions; Newton, whose science was truth, and the foundations of whose knowledge of it was philosophy; not those visionary and arrogant presumptions which too often usurp its name, but philosophy resting upon the basis of mathematics, which, like figures, can not lie; Newton, who carried the line and rule to the uttermost barriers of creation, and explored the principles by which all created matter exists and is held together. But this extraordinary man, in the mighty reach of his mind, overlooked, perhaps, the errors which a minuter investigation of the created things on this earth might have taught him. What shall then be said of Mr. Boyle, who looked into the organic structure of all matter, even to the inanimate substances which the foot treads upon? Such a man may be supposed to have been equally qualified with Mr. Paine to look up through nature to nature’s God; yet the result of all his contemplations was the most confirmed and devout belief in all which the other holds in contempt, as despicable and drivelling superstition. But this error might, perhaps, arise from a want of due attention to the foundations of human judgment, and the structure of that understanding which God has given us for the investigation of truth. Let that question be answered by Mr. Locke, who to the highest pitch of devotion and adoration was a Christian; Mr. Locke, whose office was to detect the errors of thinking, by going up to the very fountains of thought, and to direct into the proper track of reasoning the devious mind of man, by showing him its whole process, from the first perceptions of sense to the last conclusions of ratiocination; putting a rein upon false opinion, by practical rules for the conduct of human judgment.

But these men, it may be said, were only deep thinkers, and lived in their closets, unaccustomed to the traffic of the world, and to the laws which practically regulate mankind. Gentlemen, in the place where we now sit to administer the justice of this great country, the never-to-be-forgotten Sir Mathew Hale presided; whose faith in Christianity is an exalted commentary upon its truth and reason, and whose life was a glorious example of its fruits; whose justice, drawn, from the pure fountain of the Christian dispensation, will be, in all ages, a subject of the highest reverence and admiration. But it is said by the author, that the Christian fable is but the tale of the more ancient superstitions of the world, and may be easily detected by a proper understanding of the mythologies of the heathens. Did Milton understand those mythologies? Was he less versed than Mr. Paine in the superstitions of the world? No; they were the subject of his immortal song; and, though shut out from all recurrence to them, he poured them forth from the stores of a memory rich with all that man ever knew, and laid them in their order as the illustration of real and exalted faith, the unquestionable source of that fervid genius which has cast a kind of shade upon most of the other works of man:

But it was the light of the body only that was extinguished: “The celestial light shone inward, and enabled him to justify the ways of God to man.” The result of his thinking was, nevertheless, not quite the same as the author’s before us. The mysterious incarnation of our blessed Saviour, which this work blasphemes in words so wholly unfit for the mouth of a Christian, or for the ear of a court of justice, that I dare not, and will not, give them utterance. Milton made the grand conclusion of his “Paradise Lost,” the rest from his finished labors, and the ultimate hope, expectation, and glory of the world.

The immortal poet having thus put into the mouth of the angel the prophecy of man’s redemption, follows it with that solemn and beautiful admonition, addressed in the poem to our great first parent, but intended as an address to his posterity through all generations:

Thus, you find all that is great, or wise, or splendid, or illustrious, amongst created things; all the minds gifted beyond ordinary nature, if not inspired by its universal Author for the advancement and dignity of the world, though divided by distant ages, and by clashing opinions, yet joining as it were in one sublime chorus, to celebrate the truths of Christianity; laying upon its holy altars the never-fading offerings of their immortal wisdom.

Against all this concurring testimony, we find suddenly, from the author of this book, that the Bible teaches nothing but “lies, obscenity, cruelty, and injustice.” Had he ever read our Saviour’s sermon on the mount, in which the great principles of our faith and duty are summed up? Let us all but read and practise it, and lies, obscenity, cruelty, and injustice, and all human wickedness, will be banished from the world!

Gentlemen, there is but one consideration more, which I cannot possibly omit, because I confess it affects me very deeply. The author of this book has written largely on public liberty and government; and this last performance, which I am now prosecuting, has, on that account, been more widely circulated, and principally among those who attached themselves from principle to his former works. This circumstance renders a public attack upon all revealed religion from such a writer infinitely more dangerous. The religious and moral sense of the people of Great Britain is the great anchor which alone can hold the vessel of the state amidst the storms which agitate the world; and if the mass of the people were debauched from the principles of religion, the true basis of that humanity, charity, and benevolence, which have been so long the national characteristic, instead of mixing myself, as I sometimes have done, in political reformations, I would retire to the uttermost corners of the earth, to avoid their agitation; and would bear, not only the imperfections and abuses complained of in our own wise establishment, but even the worst government that ever existed in the world, rather than go to the work of reformation with a multitude set free from all the charities of Christianity, who had no other sense of God’s existence, than was to be collected from Mr. Paine’s observations of nature, which the mass of mankind have no leisure to contemplate, which promises no future rewards to animate the good in the glorious pursuit of human happiness, nor punishments to deter the wicked from destroying it even in its birth. The people of England are a religious people, and, with the blessing of God, so far as it is in my power, I will lend my aid to keep them so.

I have no objections to the most extended and free discussions upon doctrinal points of the Christian religion; and though the law of England does not permit it, I do not dread the reasonings of deists against the existence of Christianity itself, because, as was said by its divine author, if it be of God, it will stand. An intellectual book, however erroneous, addressed to the intellectual world upon so profound and complicated a subject, can never work the mischief which this indictment is calculated to repress. Such works will only incite the minds of men enlightened by study, to a closer investigation of a subject well worthy of their deepest and continued contemplation. The powers of the mind are given for human improvement in the progress of human existence. The changes produced by such reciprocations of lights and intelligencies are certain in their progression, and make their way imperceptibly, by the final and irresistible power of truth. If Christianity be founded in falsehood, let us become deists in this manner, and I am contented. But this book has no such object, and no such capacity; it presents no arguments to the wise and enlightened; on the contrary, it treats the faith and opinions of the wisest with the most shocking contempt, and stirs up men, without the advantages of learning, or sober thinking, to a total disbelief of every thing hitherto held sacred; and consequently to a rejection of all the laws and ordinances of the state, which stand only upon the assumption of their truth.

Gentlemen, I can not conclude without expressing the deepest regret at all attacks upon the Christian religion by authors who profess to promote the civil liberties of the world. For under what other auspices than Christianity have the lost and subverted liberties of mankind in former ages been reasserted? By what zeal, but the warm zeal of devout Christians, have English liberties been redeemed and consecrated? Under what other sanctions, even in our own days, have liberty and happiness been spreading to the uttermost corners of the earth? What work of civilization, what Commonwealth of greatness, has this bald religion of nature ever established? We see, on the contrary, the nations that have no other light than that of nature to direct them, sunk in barbarism, or slaves to arbitrary governments; whilst under the Christian dispensation, the great career of the world has been slowly but clearly advancing, lighter at every step from the encouraging prophecies of the gospel, and leading, I trust, in the end to universal and eternal happiness. Each generation of mankind can see but a few revolving links of this mighty and mysterious chain; but by doing our several duties in our allotted stations, we are sure that we are fulfilling the purposes of our existence. You, I trust, will fulfil yours this day.36

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