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termination and its consequences, the liberty of of libel or no libel was one for the judges alone the press, and, in that liberty, the very existence to decide-thus putting the liberty of the press of every part of the public freedom.
beyond the reach of a jury, in the hands of the court. The public mind became greatly agita.
ted on the subject. Mr. Erskine's argument Notwithstanding this powerful argument, the was written out and widely circulated, and a court, through Lord Mansfield, gave a unani- way was thus prepared for a declaratory law, mous decision in favor of Justice Buller's doc- affirming the right of the jury - to give their trine, and discharged the rule for a new trial.36 verdict on the whole matter in issue," and order. But they afterward allowed an arrest of judging that "they shall not be required or directed ment, finding, on examination, that there was by the court to find the defendant or defendants nothing illegal in the Dialogue. Mr. Erskine, guilty merely on the proof of the publication by referring to the subject in his speech on the trial such defendant or defendants, of the papers of Painc, said: “I ventured to maintain this very charged to be a libel.” Mr. Fox introduced a right of a jury over questions of libel before a bill to this effect into the House of Commons, in noble and revered magistrate of the most exait- 1791. When passed there, it was once defeated ed understanding, and the most uncorrupted in and again resisted by Thurlow, Kenyon, Bath tegrity. He treated me, not with contempt, in- urst, and all the judges in the House of Lords, ueed, for of that his nature was incapable ; but but was finally passed, June 1st, 1792, chiefly he put me aside with indulgence, as you do a through the exertions of Lord Camden. “I child when it is lisping its prattle out of season.” have said,” says the distinguished jurist already At the present day, however, most lawyers agree mentioned, “and I still think, that this great conin the opinion expressed by Lord Campbell, that stitutional triumph is mainly to be ascribed to the doctrine of Mansfield, though it had obtained Lord CAMDEN, who had been fighting in the in the courts for a century, was a departure from cause for half a century, and uttered his last the original principles of the English common words in the House of Lords in its support : bu! law on this subject.
without the invaluable assistance of Erskine, The decision now made, confirming that in as counsel of the Dean of St. Asaph, the Star the case of Woodfall, was considered as finally Chamber might have been re-established in this "stablishing 'he fatal principle, that the question country.”
!!F MR. ERSKINE IN BEHALF OF JOHN STOCKDALE WHEN TRIED FOR A LIBEL ON THE HOUSY
OF COMMONS, DELIVERED BEFORE THE COURT OF KING'S BENCH, DECEMBER 9, 1789.
INTRODUCTION. MR. STOCKDALE was a London bookseller, wbo published a pamphlet, written by a Scottish clergyman damed Logan, while the trial of Warren Hastings was going on, reflecting severely on the House of Commons for their proceedings therein. Mr. Fox, one of the managers of the impeachment, brought this publication before the House, as impugning the motives of those who had proposed the trial, and moved that the Attorney General be directed to prosecute the author and publisher of the pamphlet for a libel on the Commons. The fact of publication was admitted, and the case, therefore, turned on the true nature of the crime alleged.
In this speech Mr. Erskine has stated, with admirable precision and force, the great principles involved in the law of libel: namely, that every composition of this kind is to be taken as a whole, and not judged of by detached passages; that if its general spirit and intention are good, it is not to be punished for hasty or rash expressions thrown off in the heat of discussion, and which might even amount to libels when considered by themselves; that the interests of society demand great freedom in canvassing the measures of government; and that if a publication is decent in its language and peaceable in its import, much in dalgence ought to be shown toward its author, when his real design is to discuss the subject, and not to bring contempt on the government-though in doing so he may be led, by the strength of his feelings, ta transcend the bounds of candor and propriety.
36 It is curious that so accurate a man as Lord
For Sir Philip well knows Mansfield should have made so entire a mistake
That his innuendoes apon one point embraced in bis decision. In main.
Will serve him no longer taining that, from the time of the Revolution of
In verse or in prose; 1688, the doctrine of Justice Buller bad been uni. For twelve honest mer have decided the cause, versally received and acknowledged he quoted the Who are judges of fact, though not judges of laws. following lines from a ballad by Mr. Pulteney con.
con: Now it happens that the last line was written and cerning Sir Pbilip Yorke, the Attorney General, to
published thus by Pulteney in the Craftsman: prove that even the popular party, in those days, had ro idea of assuming that the jury had a right Who are judges alike of the facts and the laws! • determine upon a question of luw."
I--See Erskine's Speeches, vol. i., p. 916. New York.
This is universally cousiaered the finest of Mr. Erskine's speeches,“ whether we regened when wonderful skill with which the argument is conducted the soundness of the principles laid down, and their happy application to the case-the exquisite fancy with which they are embellished and illustrated-or the powerful and touching language in which they are conveyed. It is justly regarded by all English law yers as a consummate specimen of the art of addressing a jury-as a standard, a sort of precedent for treating cases of libel, by keeping which in his eye a man may hope to succeed in special pleading his ciient's case within its principle, who is destitute of the talent required even to comprehend the other and higher merits of his original. By these merits it is recommended to lovers of pure diction—f copious and animated description-of lively, picturesque, and fanciful illustration of all that constitutes, if we may sa speak, the poetry of eloquence."-Edinburgh Review, vol. xvi., p. 109.
SPEECH, &c. GENTLEMEN OF THE JURY,-Mr. Stockdale, General, in concession to my propositions, au
r who is brought as a criminal before confirmed by the higher authority of the cour, confider.ce re you for the publication of this book, namely, that every information or indictmest posed in the peaker by the has, by employing me as his advocate, must contain such a description of the crime that,
reposed what must appear to many First, the defendant may know what crimo i an extraordinary degree of.confidence; since, is which he is called upon to answer. although he well knows that I am personally Secondly, the jury may appear to be warran connected in friendship with most of those whose ed in their conclusion of guilty or not guilty. conduct and opinions are principally arraigned And, thirdly, the court may see such a pre by its author,' he nevertheless commits to my cise and definite transgression upon the record hands his defense and justification.
| as to be able to apply the punishment which ju From a trust apparently so delicate and sin- dicial discretion may dictate, or which positiv. This created by gular, vanity is but too apt to whis-law may inflict. of the lishe per an application to some fancied It was admitted also to follow as a mere con
merit of one's own; but it is proper, ollary from these propositions, that where an in for the honor of the English bar, that the world formation charges a writing to be composed of should know that such things happen to all of us published of and concerning the Commons of Great daily, and of course ; and that the defendant, Britain, with an intent to bring that body inte without any knowledge of me, or any confidence scandal and disgrace with the public, the antha that was personal, was only not afraid to follow can not be brought within the scope of such a np an accidental retainer, from the knowledge charge, unless the jury, on examination and com he has of the general character of the profession. parison of the whole matter written or published Happy, indeed, is it for this country that, what shall be satisfied that the particular passages ever interested divisions may characterize other charged as criminal, when explained by the con places, of which I may have occasion to speak text, and considered as part of one entire work, to-day, however the counsels of the highest de- were meant and intended by the author to vilify partments of the state may be occasionally dis the House of Commons as a BODY, and were tracted by personal considerations, they never written of and concerning them in PARLIAMENT enter these walls to disturb the administration ASSEMBLED. of justice. Whatever may be our public prin. These principles being settled, we are now :) ciples, or the private habits of our lives, they see what the present information is. never cast even a shade across the path of our It charges that the defendant—" unlawfully, What impartial professional duties. If this be the wickedly, and maliciously devising, con- The crime ity, then, mas characteristic even of the bar of an triving, and intending to asperse, scan-charged. of the court and English court of justice, what sacred dalize, and vilify the Commons of Great Britain
impartiality may not every man ex in Parliament assembled; and most wickedly pect from its jurors and its bench?
and audaciously to represent their proceedings As, from the indulgence which the court was as corrupt and unjust, and to make it believed
yesterday pleased to give to my in- and thought as if the Commons of Great Britain Admitted prin ciples applica disposition, this information was not in Parliament assembled were a most wicked. ble to the case.
a proceeded on when you were attend- tyrannical, base, and corrupt set of persons, and ing to try it, it is probable you were not alto- to bring them into disgrace with the public gether inattentive to what passed at the trial of the defendant published — What ? Not those the other indictment, prosecuted also by the latter ends of sentences which the Attorney GenHouse of Commons. Without, therefore, a re eral has read from his brief, as if they had fol. statement of the same principles, and a similar lowed one another in order in this book. Kot quotation of authorities to support them, I need those scraps and tails of passages which are only remind you of the law applicable to this patched together upon this record, and prosubject, as it was then admitted by the Attorney nounced in one breath, as if they existed without
i Mr. Erskine was not only a great admirer of intermediate matter in the same page, and withMr. Burke, but he was in the constant habit of refer. oat context any where. No! This is not the ring to his productions in terms of the highest ad. accusation, even mutilated as it is; for the i. miration.
formation charges that, with intention to vilisi
we not expect
the House of Comms, the defendant published first give you the paplication as it is charged the whole book, describing it on the record by upon the record, and presented by the Attorney its title: "A Review of the Principal Charges General in opening the case for the Crown; and against Warren Hastings, Esq., late Governor I will then, by reading the interjacent matter General of Bengal :" in which, among other which is studiously kept out of view, convince things, the matter particularly selected is to be you of its true interpretation. fonnd
The information, beginning with the first page Your inquiry, therefore, is not confined to this, of the book, charges as a libel upon the House
w whether the defendant published those of Commons the following sentence: “The House Question for le jury to selected parts of it; and whether, look of Commons has now given its final decision witn
ing at them as they are distorted by regard to the merits and demerits of Mr. Hast. the information, they carry, in fair construction, ings. The Grand Inquest of England have dethe sense and meaning which the innuendoes put livered their charges, and preferred their imupon them; but whether the author of the entire peachment; their allegations are referred to work-I say the author, since, if he could de- proof; and from the appeal to the collective wis. send himself, the publisher unquestionably can— dom and justice of the nation in the supreme tri. whether the author wrote the volume which Ibunal of the kingdom, the question comes to be hold in my hand, as a free, manly, bond fide dis- determined whether Mr. Hastings be guilty or quisition of criminal charges against his fellow- not guilty ?" citizen. Or whether the long, eloquent discus. It is but fair, however, to admit that this first sion of them, which fills so many pages, was a sentence, which the most ingenious malice can mere cloak and cover for the introduction of the not torture into a criminal construction, is charg. supposed scandal imputed to the selected passa- ed by the information rather as introductory to ges; the mind of the writer all along being in- what is made to follow it than as libelous in ittent on traducing the House of Commons, and self. For the Attorney General, from this intro. not on fairly answering their charges against ductory passage in the first page, goes on at & Mr. Hastings? This, gentlemen, is the princi- | leap to page thirteenth, and reads--almost with pal matter for your consideration. And there out a stop, as if it immediately followed the othfore, if, after you shall have taken the book itself er--this sentence: “What credit can we give nto the chamber which will be provided for you, to multiplied and accumulated charges, when we and shall have read the whole of it with impar- | find that they originate from misrepresentation cial attention-il, after the performance of this and falsehood ?" duty, you can return here, and with clear con- From these two passages thus standing tvsciences pronounce upon your oaths that the im- gether, without the intervenient matter which pression made upon you by these pages is, that occupies thirteen pages, one would imagine that the author wrote them with the wicked, sedi -instead of investigating the probability or ini. tious, and corrupt intentions charged by the in- probability of the guilt imputed to Mr. Hastings formation you have then my full permission to -instead of carefully examining the charges oi find the defendant guilty. But if, on the other the Commons, and the defense of them which hand, the general tenor of the composition shall I had been delivered before them, or which was impress you with respect for the author, and preparing for the Lords—the author had immepoint him out to you as a man mistaken, perhaps, diately, and in a moment after stating the mere himself, but not seeking to deceive others—if fact of the impeachment, decided that the act of every line of the work shall present to you an the Commons originated from misrepresentation intelligent, animated mind, glowing with a Chris- and falsehood. tian compassion toward a fellow-man, whom he Gentlemen, in the same manner a vail is cast believed to be innocent, and with a patriot zeal over all that is written in the next seven pages; for the liberty of his country, which he consid- for, knowing that the context would help to the ered as wounded through the sides of an op- true construction, not only of the passages pressed fellow-citizen—if this shall be the im- charged before, but of those in the sequel of this pression on your consciences and understandings, information, the Attorney General, aware that it when you are called upon to deliver your ver- would convince every man who read it that there dict—then hear from me that you not only work was no intention in the author to calumniate the private injustice, but break up the press of En- House of Commons, passes over, by another leap, gland, and surrender her rights and liberties for to page twenty; and in the same manner, with ever, if you convict the defendant.
out drawing his breath, and as if it directly fol. Gentlemen, to enable you to form a true judg. lowed the two former sentences in the first and Charge made ment of the meaning of this book and thirteenth pages, reads from page twentieth : passages, and of the intention of its author, and to “An impeachment of error in judgment with continue their expose the miserable juggle that is regard to the quartim of a fine, and for an in.
played off in the information, by the tention that neve: was executed and never combination of sentences which, in the work it- | known to the offending party, characterizes a tria sell, having no bearing upon one another, I will bunal of inquisition rather than a Court of Par.
: The principal parts selected by the Attorney | liament." General are specified and commented on by Mr Er. From this passage, by another vault, he leape skine in a sabsequent part of this speech.
over one-and-thirty pages more, to pago fifty
one, where he reads the following sentence, 1 The Commons of Great Britain, in Parliament which he mainly relies on, and upon which I assembled, had accused Mr. Hastings, shall by-and-by trouble you with some observa. | as Governor General of Bengal, of high and coalucte
the Horse tions : “ Thirteen of them passed in the House crimes and misdemeanors; and their impearh og du of Commons, not only without investigation, but jurisdiction, for that bigh porpose of a without being read; and the votes were given national justice, was unquestionably competent without inquiry, argument, or conviction. A But it is proper you should know the nature of majority had determined to impeach ; opposite this inquisitorial capacity. The Commons, in vot. parties met each other, and 'jostled in the dark, ing an impeachment, may be compared to a grand to perplex the political drama, and bring the jury finding a bill of indictment for the Crown hero to a tragic catastrophe.?"
Neither the one nor the other can be supposed From thence, deriving new vigor from every to proceed but upon the matter which is brought exertion, he makes his last grand stride over before them ; neither of them can find guilt withforty-four pages more, almost to the end of the out accusation, nor the truth of accusation withbook, charging a sentence in the ninety-fifth out evidence. When, therefore, we speak of the page.
" accuser," or "accusers," of a person indicted So that out of a volunie of one hundred and ten for any crime, although the grand jury are the Any book miglit pages, the defendant is only charged accusers in form, by giving effect to the accusaconvicteder. with a few scattered fragments of tion, yet, in common parlance, we do not consider
sentences, picked out of three or four. them as the responsible authors of the prosecuOut of a work consisting of about two thousand tion. If I were to write of a most wicked iofive hundred and thirty lines, of manly, spirited dictment, found against an innocent man, which eloquence, only forty or fifty lines are culled was preparing for trial, nobody who read it would from different parts of it, and artfully put togeth- conceive I meant to stigmatize the grand jury er, so as to rear up a libel, out of a false context, that found the bill; but it would be inquired imby a supposed connection of sentences with one mediately, who was the prosecutor, and who were another, which are not only entirely independ the witnesses on the back of it? In the same ent, but which, when compared with their ante- manner, I mean to contend, that if this book is cedents, bear a totally different construction. In read with only common attention, the whole this manner, the greatest works upon govern- scope of it will be discovered to be this : That, ment, the most excellent books of science, the in the opinion of the author, Mr. Hastings had sacred Scriptures themselves, might be distort- been accused of maladministration in India. from ed into libels, by forsaking the general context, the heat and spleen of political divisions in Par and hanging a meaning upon selected parts. liament, and not from any zeal for national bono Thus, as in the text put by Algernon Sidney, or justice; that the impeachment did not origin“The fool hath said in his heart, there is no ate from government, but from a faction banded God," the Attorney General, on the principle of against it, which, by misrepresentation and riothe present proceeding against this pamphlet, lence, had listened it on an upwilling House of might indict the publisher of the Bible for blas- | Commons; that, prepossessed with this sentiinent phemously denying the existence of heaven, in (which, however unfounded, makes no part of the printing, " There is no God," for these words present business, since the publisher is not called alone, without the context, would be selected by before you for defaming individual members of the information, and the Bible, like this book, the Commons, but for a contempt of the Commons would be underscored to meet it. Nor could the as a bady), the author pursues the charges, ardefendant, in such a case, have any possible de- ticle by article ; enters into a warm and animated fense, unless the jury were permitted to see, by vindication of Mr. Hastings, by regular answers the book itself, that the verse, instead of denying to each of them; and that, as far as the mind and the existence of the Divinity, only imputed that soul of a man can be visible, I might almost sar imagination to a fool.
embodied in his writings, his intention throughGentlemen, having now gone through the At-out the whole volume appears to have been to Preliminary
torney General's reading, the book shall charge with injustice the private accusers of Mr. considera' presently come forward and speak for Hastings, and not the House of Commons as a Lions before taking up itself. But before I can venture to lay body; which undoubtedly rather reluctantly gave
book. it before you, it is proper to call your way to, than heartily adopted the impeachment. attention to how matters stood at the time of its This will be found to be the palpable scope of publication : without which the author's meaning the book; and no man who can read English, and intention can not possibly be understood.3 and who, at the same time, will have the candor
and common sense to take up his impressions ? One of the most admirable things in this defense from what is written in it, instead of bringing his was the introduction of this preliminary matter. Before comparing the book with the charges, Mr. Er description of the trial, and of the talent arrayed skine bere brings forward the character sustained against his client in Westminster Hall. by the Commons, and the error they committed in 4 This distinction between the individual opro allowing the charges against Hastings to be pub- nents of Mr. Hastings and the House to which they lisbed to the world. He thus shows the necessity | belonged, was one of the turning points of the case of some defense on the part of the accused. He and was used by Mr. Erskine with great effec wher next awakens sympathy in his favor by a powerful he name to comment on the pamphlet.
own along with him to the reading of it, can pos. | dure the publication of their records. A frog. sibly understand it otherwise.
ecutor of an indictment would be attached for But it may be said, that admitting this to be such a publication ; and, upon the same principle, 2.) The House the scope and design of the author, a defendant would be punished for anticipating provoked this what right had he to canvass the the justice of his country, by the publicatior of ng the charges merits of an accusation upon the rec- his defense, the public being no party to it, until ones to be pub- ords of the Commons, more espe- the tribunal appointed for its determination be
cially while it was in the course of open for its decision. legal procedure? This, I confess, might have Gentlemen, you have a right to take judicial been a serious question, but the Commons, as notice of these matters, without the these prosecestor's of this information, seem to have proof of them by witnesses. For though not in
evidence, are waived or forfeited their right to ask it. Before jurors may not only, without evi- properly befort
the jury. they sent the Attorney General into this place, dence, found their verdicts on facts to punish the publication of answers to their that are notorious, but upon what they know pri. charges, they should have recollected that their vately themselves, after revealing it upon oath to own want of circumspection in the maintenance one another. Therefore, you are always to reof their privileges, and in the protection of per- member that this book was written when the sons accused before them, had given to the pub- charges against Mr. Hastings, to which it is an lic the charges themselves, which should have answer, were, to the knowledge of the Common. been confined to their own journals. The course (for we can not presume our watchmen to have and practice of Parliament might warrant the been asleep), publicly hawked about in every printing of them for the use of their own mem- pamphlet, magazine, and newspaper in the kingbers; but there the publication should have stop- dom. You well know with what a curious apped, and all further progress been resisted by petite these charges were devoured by the whole authority. If they were resolved to consider public, interesting as they were, not only from answers to their charges as a contempt of their their importance, but from the merit of their privileges, and to punish the publication of them composition; certainly not so intended by the by such severe prosecutions, it would have well honorable and excellent composer to oppress the become them to have begun first with those accused, but because the commonest subjects printers who, by publishing the charges them- swell into eloquence under the touch of his sub. selves throughout the whole kingdom, or rather | lime genius. Thus, by the remissness of the throughout the whole civilized world, were an- Commons, who are now the prosecutors of this ticipating the passions and judgments of the pub- information, a subject of England, who was not lic against a subject of England upon his trial, even charged with contumacious resistance to so as to make the publication of answers to them authority, much less a proclaimed outlaw, and not merely a privilege, but a debt and duty to therefore fully entitled to every protection which huinanity and justice. The Commons of Great the customs and statutes of the kingdom hold out Britain claimed and exercised the privileges of for the protection of British liberty, saw himself questioning the innocence of Mr. Hastings by pierced with the arrows of thousands and ten their impeachment: but as, however questioned, thousands of libels. it was still to be presumed and protected, until Gentlemen, before I venture to lay the book guilt was established by a judgment, he whom before you, it must be yet further remembered they had accused had an equal claim upon their (for the fact is equally notorious) that under these justice, to guard him from prejudice and mis- | inauspicious circumstances the trial of Mr. Hast. representation until the hour of trial.
ings at the bar of the Lords had actually com Had the Commons, therefore, by the exercise menced long before its publication. Sach a pro of their high, necessary, and legal priv- There the most august and striking spectacle pro con ileges, kept the public aloof from all was daily exhibited which the world (3.) Jescription decial usage canvass of their proceedings, by an ever witnessed. A vast stage of jus- of the trial. early punishment of printers, who, without re- tice was erected, awful from its high authority, serve or secrecy, had sent out the charges into the splendid from its illustrious dignity, venerable world from a thousand presses in every form of from the learning and wisdom of its judges, cappublication, they would have then stood upon tivating and affecting from the mighty concourse ground to-day from whence no argument of pol- of all ranks and conditions which daily flocked icy or justice could have removed them ; because into it, as into a theater of pleasure. There, when nothing can be more incompatible with either the whole public mind was at once awed and than appeals to the many upon subjects of judi- softened to the impression of every human aflec. cature, which, by commca consent, a few are ap- tion, there appeared, day after day, one after an. pointed to determine, and which must be determ- other, men of the most powerful and exalted tal ined by facts ana principles, which the multitude ents, eclipsing by their accusing eloquence the have neither leisure nor knowledge to investigate. most boasted harangues of antiquity; rousing the But then, let it be remembered that it is for those pride of national resentment by the boldest in. who have the authority to accuse and punish, to vectives against broken faith and violated treaties, set the example of, and to enforce this reserve, and shaking the bosom with alternate pity and which is so necessary for the ends of justice. horror by the most glowing pictures of insulter Courts of law, therefore, in England, never on- | nature and humanity : ever animate, and ener