intentions are to be deemed malicious, and himself liable to punishment. It is no answer to say, let men in publishing strictly adhere to the truth. It is a sufficient reply to this, that it is not in conformity with the common law concerning libels of this class, which makes due allowance for human fallibility. If man were of a different nature, and possessed of unerring judgment and sagacity, no objection could be made to this rule. They then would know what truth was. They would not be compelled to inquire with Pilate, when the Saviour of mankind was arraigned before him for preaching false doctrines, what is truth? They would know, and if they erred, they would sin against light and knowledge. They would intend to libel, and their intention would render them guilty. But to make it their duty to speak, and to punish them for speaking what they believe to be true, is punishing them for their fallibility, and not for their guilt. It is visiting upon man what, if it be wrong, is the error of his Maker. A principle like this is the essence of tyranny. It loses sight of the eternal distinction between right and wrong, and would be monstrous in any government.

In this government, it is fraught with the most pernicious consequences. The chief subjects of political discussion in a representative form of government, must be the conduct and principles of those who administer it, or in other words, the conduct and principles of the dominant party. So long as these are examined in a fair spirit of inquiry, with the view of imparting information to the public, and with honest intentions, the limits of discussion cannot be extended too far. In other countries, public opinion most generally acts as a check upon the government, whose official interest is somewhat at variance with the wishes of the people. It therefore is naturally arrayed on the side of those, who are prosecuted for political offences, and is a sure ally in their defence against the power of the government. As in England, it is the judge between the accuser and the accused. But in this country, it is the source and origin of political power. It stands in the double character of party and judge; and unless it can be addressed with freedom and boldness on the conduct of public officers, no abuses on the

part of those in power can be redressed. The avenue to the public mind will be closed; for who will accuse a party of doing wrong, when the members of that party are to decide as jurors, simply upon the truth of the accusation, without reference to the motives and belief of the accuser? No reform, even in the worst state of public affairs, can be effected, when such a doctrine prevails in a court of law. But with a press protected in the legitimate scope of its functions, by an appeal to the integrity and uprightness of purpose characterizing its publications, a majority however overwhelming can be kept in check, and within constitutional bounds. An appeal to such motives, when they are recognised by the law as forming a good defence, will obtain a hearing even in the excitement and heat of political conflicts.

On the other hand, those who administer the government are protected from unbounded abuse and calumny, by requiring qualities entirely incompatible with intentional falsehood.

But if the law infers malice when the charge is untrue; if error is to be the criterion of guilt, and a jury is required to decide upon the truth of political publications, and not upon the motives of their authors, and in so deciding, perhaps to condemn the course of those whom they have elevated to power, the rights of the minority will be placed at the mercy of the ruling party of the day. The sacred walls of the temple of justice will resound with the clamour of faction, and the accused will be acquitted or condemned, not in conformity with the principles of equity and law, but according to the excited passions and erring judgment of a fallible and prejudiced jury. The only security which the minority now have, or can have, against the abuses of power, will be destroyed. The dominant party take possession both of the government and of the jury box, and exercise their authority without the fear of censure or control. The press in effect is silenced; and under the semblance of freedom, the worst kind of despotism is introduced, the despotism of faction, which sacrifices the rights of the minority according to the forms of the constitution, and silences all remark, and suppresses all investigation according to the forms of law.

I am shocked to think, that a doctrine pregnant with such consequences should be advanced in a court of justice in this country; and that it should now be a question in the court of last resort, whether we should go back to the principles of the Tudors and Stuarts-to arbitrary maxims invented to suppress political discussion; or adhere to maxims which are in accordance with the just and mild spirit of the common law, when not warped to subserve the designs of government. Upon these maxims depend the freedom of political discussion. It cannot exist where they are frowned upon; and in the melancholy history of the progress of truth upon earth, you may see their violation, whenever a martyr for truth's sake was to be offered upon the shrine of human error and passion. When the Saviour of mankind came upon earth to promulgate the doctrines of charity and peace, his intentions were not questioned by the priests and rabble that called for his crucifixion; but they demanded his life because his doctrines were not true. For ages, his disciples were dragged to the stake as schismatics and heretics, or rather as victims to sustain the heathen superstitions, which they were destined finally to overthrow.

When this Church, established by their blood, became in after times corrupted through the inventions of man, seeking to gratify his avarice and lust of power by the aid of religion, did those who endeavoured to restore the primitive faith meet with a kinder hearing or a milder fate? No! Other victims were demanded, and the councils of Constance and the fires of Smithfield afford ample evidence of our weakness and fallibility, when error and truth appear as antagonists before human tribunals. Nor is it in religion alone, that error has wielded the tyrant's rod, while truth has suffered the martyr's fate. Even in the physical sciences she has usurped the censor's chair, and condemned the humble disciples of truth to imprisonment and death.

Need I name Galileo, imprisoned in the dungeons of the inquisition for declaring that the sun was in the centre of the solar system. That eternal truth was then deemed heresy, and the Italian philosopher suffered, not for his criminal intentions,

but for his promulgation of error? The history of politics is full of the violations of this principle, and of the injustice perpetrated by error in the ascendant, upon the advocates of a better and freer system of government; but in all these instances, it is consoling to find that the "good old cause" has constantly advanced in the opinions of mankind. Hampden, when contending for the exemption of Englishmen from arbitrary taxation, was condemned by the subservient judges who then sat in the exchequer chamber; but in a few years the judgment was reversed by the commons of England. Algernon Sidney expiated his offence, for denying the divine rights of the Stuarts, upon the scaffold; but the expulsion of that illfated family from their country, and the reversal of his attainder, followed close upon his condemnation. The decision of the King's Bench against the freedom of the press, in the case of Woodfall, was subsequently overturned by the declaratory act of Mr. Fox, passed with the almost unanimous consent of the British Parliament. Such has been, in past ages, the fate of all who ventured to question the conduct of those invested with power, to suffer in their own persons for the success of the cause; and such will always be their fate, until courts shall learn to inquire concerning the intentions of the accused, instead of setting themselves up as arbitrators between truth and falsehood;-until in trials for political libels, as in trials for all other offences, the intention shall be a question of fact, for the decision of the jury;-until good faith, integrity of purpose, and honest intentions, shall serve as a protecting shield for all who are compelled to pass through the furnace of political per

secution.

I know that these doctrines are unpalateable to those who, for the time, are invested with power. They teach them to question themselves; to doubt of their infallibility; to examine their darling prejudices; to relinquish long established opinions; to review, and even to condemn their own conduct. They require them to listen, and sometimes to yield, to the remonstrances of a minority, which they are but too much inclined to oppress.

Yet with these maxims, has the principle of free political discussion, that guardian genius of the rights of mankind, made her way through the world, in spite of the tyranny of governments and the prejudice of the governed; against the teachings of the schools, the denunciations of the pulpits, the influence of the aristocracy, and the power of the crown. In spite of the rack, the axe, and the bayonet, she has established her dominion in the old, and extended her sway over the new world. The gloom of the cloister disappeared in her light; the scholastic and feudal systems, the offspring of error and ignorance, fled from her glance; the bastile and the inquisition crumbled before her march; the colonial fetters of rising empires were shaken off at her command, until she who within two centuries endured imprisonment in the dungeon with Galileo, and bowed her head on the scaffold with Sidney, assumed the arbitrament of the claims of nations, and sat in judgment on the fate of monarchs. I trust in God that this triumphant career is not destined to meet with a check in this country, which owes so much of its prosperity and happiness to the prevalence of this principle; and that this court, possessing a representation of the learning of the legal profession, happily combined and tempered, through the electoral principle, with the spirit of the age, will not lay its parricidal hands upon a principle, to which it is indebted for its very existence.