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TO JAMES MAC INTOSH, ESQ. SIR, Jn resuming the subject of your defence of Mr. Peltier, I think it not unnecessary to re-state the motives, by which I am actuated in this discussion. Nothing is more common than to impute animadversions, such as I have entered on with respect to your speech, to some private and sinister motive; but, it is next to an impossibility, that I should be so actuated in the present instance. You have never had any dispute or concern with me; I never saw you above three times in my life; the sentiments I have heard you utter, as to public matters, were such as I could not dislike, and your revolutionary or other writings I have never read. My mind was, with regard to you, a sheet of blank paper, and happy should I have been to fill it up with commendations. Nor, if I have taken a different course, is my conduct to be ascribed to a desire to censure you, but to remove censure, accumulated and unmerited censure, from the conduct and the character of your client, who, as I before observed, incurs, from the unquali fied praises of your defence, a new condemnation. This is, this must be, evident to every man, that, if your defence was the best that ever was made, Mr. Peltier's must have been a most desperate cause. Had not the news-papers joined in concert to extol your speech, had that speech not been publicly represented as the highest exertion of human talent, I might, nevertheless, have perceived its defects, and I certainly should have lamented its total inefficacy; but I should not have thought myself called upon for any observations upon it; I should have left my readers to form their own judgment, and should have contented myself with silent regret. The commendations, the systematic, the unbounded applause, bestowed on the speech, totally altered the case. From the moment it became a subject of praise, through the channel of the press, it became a legitimate subject of discussion; and, when it was considered that such praise must operate to the prejudice of Mr. Peltier, that discussion became, in my opinion, an imperious duty with every one who thought as I did, and who had similar means in his VOL. III.

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hands. Such, Sir, are the motives which have induced me to take up the pen, and these motives will, I am persuaded, meet with the approbation of every sensible and honourable man.

2. The second point of view, in which I am about to consider your defence, is, as it relates to the precedents on which the prosecution was founded.-The doctrine of a libel, Sir, I take to be this: that any thing spoken or written, or even any ludicrous drawings or pictures, that tend to the ridicule or debasement of a person, and to the bringing of him into disrepute, may irritate such an one to commit a breach of the peace; and, that the truth of the matter, so spoken or written, does not diminish the guilt of the libel, because, true or falsie, it equally tends to a breach of the Kng's peace. But, when this law of libels (which, by the by, appears to have grown out of the

blessed art of printing") was promulga ted, it never entered into the minds of our ancestors, that this rule, however politic and expedient amongst the subjects of the same country, should extend to men and things out of the jurisdiction and allegiance of the laws and sovereign of this realm. Buonaparté did not owe local allegiance here, and consequently was without the pale of the law of England, every maxim of which is built upon the ground of perfect equality.. and reciprocity; that is to say, every one that can sue or prosecute another, is liable to be sued or prosecuted by that other, for a similar damage or offence. But, Buonaparté cannot be prosecuted for a libel against Mr. Peltier: he may libel him, his Official Gazette has libelled him, the libels have been published in this realm, and the law cannot reach the offender, nor is it reasonable that it should, because one of the parties not being here, and not having the faculty of coming here, his libels cannot pos sibly tend to a breach of the peace. No. thing, therefore, is so clear, nothing so manifestly just, that, for no libel, or pretende f libel, against Buonaparté, published in this realm, ought Mr. Peltier, or any other person, to be considered as liable to punishment by the English law. In opposition, M

however, to these wise and just maxims, two | precedents were cited: one the decision with respect to Lord George Gordon's attack on the late unfortunate and lamented Queen of France; and the other, the censure on the conduct and character of the late Emperor of Russia by Mr. Vint, the then editor of the Courier. I do not pretend to say, that these precedents were not fairly put forward; but, it appears to me, that you should have observed, that they were precedents of a very modern date, and of a very dangerous tendency. It was certainly worthy of remark, that, during the long and glorious annals of our country, during tavelve centuries of jurisprudence, no similar case could be found till within twenty years! Precedents, though of some weight, are frequently to be admitted with great distrust, especially if they be recent, and more particularly if they be contrary to the spirit of the law; and, if they be found to form an innovation upon long and established maxims and practice, they are, and ought to be, almost always set aside. Their novelty does, indeed, in some instances, arise out of the necessary novelty of the case. A precedent, A precedent, for instance, touching the forgery of Bank notes cannot be expected to be more ancient than the invention of that sort of currency, because the offence could not possibly have a previous existence. But, a similar apology could not have been set up, in the present case the matter for libels, the means of libelling, and the law of libels, had all existed for upwards of twelve hundred years, in this country; and, therefore, the recent, the very recent date, of the precedents cited by the Attorney General, was a strong presumption against them; and, if it had been clearly and forcibly stated, must have had great weight in the minds of the jury. The danger, too, of implicitly admitting these precedents might have been dwelt on with singular propriety. The jury should, in my opinion, have been cautioned against giving encouragement to foreign powers to interfere in our domestic conduct. It should have been stated to them, that, if we should, unhappily, ever be governed by ministers, ready to sacrifice us to a foreign power, and, for their own interest's sake, to render us subject to that power; if ever this nation should be so situated, it should have been stated, that, to favour the nefarious views of such ministers, it was not in the mind of man to conceive any means so efficacious as the unqualified adoption of the precedents on which the prosecution of Mr. Peltier was founded: for, in such a state, menaced with such danger, the salvation of the country must entirely and absolutely de

pend upon an opposition on the part of the people; and, as that opposition must arise, in the first instance, from the suggestions of individuals, crying against the machinations of the power by whom their liberties and independence were threatened, the silencing of those individuals by the arm of law must of necessity lead to the intended subjugation. There are, indeed, different degrees in censure, as well as in most other things; but, having once generally acknowledged the broad unlimited precedent, having once dipped into the poison, there is no knowing were the effects will end. Ce n'est que le premier pas qui coûte.-But, supposing these precedents to have been founded in wisdom and in justice, as relating to the Queen of France and the Emperor of Russia, still, it remained to be shown, that they were in point with respect to Buonaparté and to the case of your client. And, here it was not only justifiable, but even necessary for you to show, the wide difference between the two former and the Corsican chief. The precedent of the Queen of France could not apply, because she was neither the sovereign nor the chief magistrate of a foreign country, and that of the Empe ror of Russia could not apply because be was not in what Buonaparté is. The virtual distinction might be nice, but still there was a distinction, and the precedents were not, therefore, in point. You had further to contend, and on the best possible ground, that there was a very great difference indeed, between the cases cited, and that of your client, if considered with regard to the provocation. It has been said, that you had to try only the dry question of guilty or not guilty, and that, therefore, you had nothing to do with any part of the character or conduct of Buonaparté. This is new doctrine, doctrine never before heard of in an English court of justice. What is it that constitutes the libel? Falsehood and malice. The former has been of late years set aside; but malice is still an essential quality. No matter how libellous the thing may be in itself, it must, to make it criminal, be malicious; and, as the jury were the judges of the law as well as of the fact, it was your business to convince them, that your client stood, with respect to Buonaparté, in a predicament widely different from that in which the libellers of the Queen of France and the Emperor of Russia stood with respect to those personages. It was a dry question of guilty

or not guilty." Very true, this was the ultimate question, but to come at a decision of it, there was a previous question: to wit: whether the writing was malicious, and published with a mischievous intention. It the

act of publishing, and the libellousness of the words (in themselves considered), had been all that was necessary to constitute the crime, then, indeed, the question would have been as dry as you please; but an inquiry into the motive would not have been so very dry. This enquiry would have led you, it must have led you, into an examination of the character and conduct of Buonaparté; for, that which may be extremely malicious when spoken of one man, may be not at all malicious when spoken of another man. If, for instance, I bestow the name of tyger on a man, who is well known to beat his wife, to dash his children on the floor, to half-starve and lacerate his apprentices, and if I am indicted for this as a libel, I am not allowed to urge the truth in justification, I cannot urge the truth, because a man cannot be a tyger; but, though what I have said, or written, be evidently false, would a jury say that it was malicious to call such a man a tyger? No; but, they would justly regard as malicious the very same term when applied to a quiet neighbour, an affectionate husband, a tender father, and a kind benevolent master. In speaking, or writing, of a wretch, notoriously guilty of all the most shocking and horrid crimes, my expressions, however harsh, my wishes, how. ever hostile, my execrations, however bitter, ought not to be imputed to malice, to badness of design, to deliberate mischief, but to that natural, that involuntary, that virtuous hatred, which God, for the best purposes, has planted in the human breast; but, if I give way to the very same expressions, wishes, and execrations, against a man guilty of no such crimes, I am justly chargeable with that species of malice, which constitutes the principal and always an essential ingredient of criminal bel. For this reason, this sound and obvious reason, it is. that the general character and conduct of the party libelled have always been held to be fair and relevant topics in a defence against the charges of an information or indictment.-There was another light, too, in which the application of the precedents ought to have been considered. The libellers of the Queen of France and the Emperor of Russia had suffered no injury at the hands of the parties libelled, either in their own persons or character, or the persons or character of their relations, or those of their lawful -overeigns. Were these, then, precedents in point? Do not the injuries of Mr. Peltier, do not the wounds inflicted on him, his relations, his friends, and his native sovereign, do not these deep and mortal wounds sufficiently account for his expressions, without having recourse to the impu

tation of malice? Shall the martyr, writhing at the stake, be accused of malice, because he execrates the hand that feeds the inexorable flames? Resentment, open, undisgui ed resentment, is not malice; and, I repeat again and again, Sir, that if there be no malice, there is no libel. On this point, therefore, it appears to me, that you should have entered into a clear and detailed exposition of the divers injuries and acts of persecution, which your client, his relations, and his lawful sovereign, had experienced at the hands of the person, on whose behalf the prosecution was instituted. But, instead of this, you chose, for reasons best known to yourself, to represent the insulting and cruel offer of an amnesty, which was tendered to Mr. Peltier as well as others, as an act of indulgence; and, for having rejected this offer, which, amongst other degrading conditions, required of him to abjure his sovereign; for having had the firmness to reject an offer like this, for having given this proof of his loyalty, you do not venture even to commend him! This part of your speech is too curious not to be quoted. "I do not mean "to undervalue this indulgence; on the con

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trary, I am disposed to rate it bigb; but my "client and a few others, conceiving theni "selves bound, from a feeling of loyalty, "which I neither make the subject of com"mendation or of blame, to refuse to profit by this permission. I do not, as I said, "make this refusal a matter of praise or of censure; I only hope, that you will not judge too severely of my client for what be "conceives to be a just and honourable de"votion to the allegiance, under which he "was born." Now, Sir, was this a specimen of that" intrepidity," which you were pleased to represent as the characteristic of the English bar? Was this the sort of language to hold in the Court of King's Bench; in a royal court of justice; in a court where his Majesty is ever supposed to preside in person? Was this the place, and was this the occasion, Sir, to make an apology for the loyalty of your client? Or was it not the place and the time to appland Mr. Peltier, and to draw a comparison between his conduct and that of his prosecutor, who was fed and educated by the bounty of the King of France? Was it not the very place and the very time, above all others, to remind your audience, that the liberties of Englishinen were once destroyed by an hypocritical, perfidious, and sanguinary usurper? It was, and you did remind them of it; you did speak of Cromwell; but you took care to prefix the epithets "guilty and infamous," not to the name of that atrocious rebel, but. to that of the lawful prince, by whose happy

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RESTORATION the rebellion was terminated! What, Sir; give me leave to ask, what could induce you, in a defence of a French royalist against Buonaparté ; what could possibly induce you to seize such an occasion to vilify an ancestor of your own sovereign, and to choose from the long and illustrious liss, precisely that prince, who was once in the situation, in which the sovereign of your client now is? Would it not, if you had spoken at all of King Charles II. have been more natural to remind the jury of the unfeigned and unbounded joy, which the people felt and expressed at his return to the throne? To remind them, that the day of his restoration has ever since been kept as a festival in the church, as day of public exultation, and of thanksgiving to Almighty God for having, by the means of this gracious prince, delivered our country from a low-bred, gloomy, jealous, black-hearted usurper, who, while he styled it a republic, exercised over it the most cruel and inexorable despotism? And might you not, Sir, in applying this to the case of your client, have justly observed, that those Englishmen, who, during the exile of King Charies, faithfully adhered, like Mr. Peltier, to the cause of their native sovereign, have ever been regarded as patterns of political excellence; and that, while their names are remembered with veneration and gratitude, those of the base wretches, who bowed at the feet of the usurper, are either lost in oblivion or preserved only to their infamy? Here too, you might have returned, as I now do, more immediately to the merits of your case, and might have put it to the consciences of the jury, whether they could have regarded, as proceeding from malice, any of the attacks made on Cromwell, through the channel of the press, by the injured and oppressed, the robbed and persecuted cavaliers?" It was a dry question "of guilty or not guilty!" So it is on every such issue; but, as I observed before, there are many previous questions to be answered before we come at this dry question, and all these are full of matter. The general character, the previous conduct, the relative situation, of the parties, their crimes or their virtues, are all to be considered; they form the materials of the defence, because it is from them and from them alone, that a right judgment can be formed of the motives of the accused, and it is not the act alone, but the act in conjunction with the motive, which constitutes the crime. The charge in the information was, "That JEAN PELTIER, being a malicious and ill-disposed "person, and unlawfully and maliciously devising and intending, &c. &c." Who shall

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say, then, that it was "a dry question of "guilty or not guilty?" Who shall say, that the general character and conduct of the parties had nothing to do with this question? Who shall say, that it was not necessary to show, that, the character and conduct of Buonaparté were sufficient to call forth the indignant expressions and sentiments of Mr. Peltier without the aid of malice or ill-disposition? Who shall say, that it would not have been strictly regular and relevent for you to endeavour to convince the jury, that the words and the wishes of Mr. Peltier bore not the mark of "maliciously devising and intending," but were, on the contrary, the spontaneous ebulitions, the natural offspring, of virtuous indignation and abhorrence, called involuntarily forth by the character and the deeds of the prosecutor? Who, Sir, would have dared, who would have had the impudence and the baseness, to censure you for thus removing the charge of malice, and, thereby, destroying the very essence of the crime imputed to your client?

3. Having considered your defence as relative to the topics and arguments, which, in my opinion, naturally presented themselves as the means of repelling the force of the precedents on which, and on which alone, the prosecution was brought into court, I propose next to consider it (in rather an inverted order, perhaps) as relative to the principle which gave rise to those precedents.-The novelty of the precedents has been already pointed out; but, it is urged, that, if the precedents themselves are novel, the principle out of which they arose, is as ancient as the law of libels. This principle is, that all words and pictures, which are spoken or published with a malicious intention, and which expose a person to hatred, contempt, or ridicule, are criminal, not because they do so expose him, but because, by producing in his mind irritation and a desire of revenge, they have an evident tendency to cause a breach of the peace; and this principle, though so obviously intended to be confined to persons and things within the realm, and within the pale of its law, has, in the precedents cited in this case, been extended to persons and things out of the pale of that law it has, at the end of a long succession of ages, been discovered to be of a nature so pliable and plastic, as to be capable of assuming any form, and of being stretched to any extent. That which was devised for the sole purpose of preserving the King's peace, that is to say, for insuring the personal safety of his subjects against the violent assaults of each other, has now been applied