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the essence of
jury had believed, from the evidence, that the that the defendant did not believe it to be illegal, Remarks on Dean's intention was wholly innocent, and did not publish it with the seditious purpose the second. it would not have warranted them in charged by the indictment, he is not guilty upon acquitting, and, therefore, should not have been any principle or authority of law, and would have left to them upon Not Guilty. That argument been acquitted even in the Star Chamber; for it can never be supported. For if the jury had de- was beld by that court, in Lambe's case, in the clared, “We find that the Dean published this eighth year of King James the First, as reported pamphlet; whether a libel or not, we do not find : by Lord Coke, who then presided in it, that ev. and we find further, that, believing it in his con- ery one who should be convicted of a libel must science to be meritorious and innocent, he, bona be the writer or contriver, or a malicious publish. fide, published it with the prefixed advertisement, er, knowing it to be a libel. as a vindication of his character from the reproach This case of Lambe being of too high authorof seditious intentions, and not to excite sedition :" ity to be opposed, and too much in Mr. Bower'n ntit is impossible to say, without ridicule, that on point to be passed over, Mr. Bower tempt to evad
the force of such a special verdict the court could have pro endeavors to avoid its sorce by giving Lambe's case. nounced a criminal judgment.
it a new construction of his own : He says, that Then why was the consideration of that evi- not knowing a writing to be a libel, in the sense dence, by which those facts might have been of that case, means, not knowing the contents of found, withdrawn from the jury, after they the thing published ; as by conveying papers brought in a verdict guilty of publishing only, sealed up, or having a sermon and a libel, and which, in the King against Woodfall, was simply delivering one by mistake for the other. In such said not to negative the criminal intention, be cases, he says, ignorantia facti excusat, because cause the defendant called no witnesses ? Why the mind does not go with the act; sed ignoran. did the learned judge confine his inquiries to the tia legis non excusat ;35 and, therefore, if the party innuendoes, and finding them agreed in, direct knows the contents of the paper which he pubthe epithet of guilty, without asking the jury if lishes, his mind goes with the act of publication, they believed the defendant's evidence to rebut though he does not find out any thing criminal, and the criminal inference? Some of them positive- he is bound to abide by the legal consequences. ly meant to negative the criminal inference by This is to make criminality depend upon the adding the word only, and all would have done consciousness of an act, and not upon Reply: Intenit, if they had thought themselves at liberty to the knowledge of its quality, which on constitutes enter upon that evidence. But they were told would involve lunatics and children in the crime. expressly that they had nothing to do with the all the penalties of criminal law; for whatever consideration of that evidence, which, is believed, they do is attended with consciousness, though would have warranted that verdict. The con their understanding does not reach to the conclusion is evident; if they had a right to consider sciousness of offense. The publication of a libel, it, and their consideration might have produced not believing it to be one after having read it, is such a verdict, and if such a verdict would have a much more favorable case than publishing it been an acquittal, it must be a misdirection. unread by mistake; the one, nine times in ten, is “But," says Mr. Bower, “if this advertise a culpable negligence, which is no excuse at all.
1. ment prefixed to the publication, by For a man can not throw papers about the world Bower as to the which the Dean professed his innocent without reading them, and afterward say he did advertisemeat.
intention in publishing it, should have not know their contents were criminal. But if been left to the jury as evidence of that intention, a man reads a paper, and not believing it to conto found an acquittal on, even taking the Dia- tain any thing seditious, having collected nothing logue to be a libel, no man could ever be con- of that tendency bimself, publishes it among his victed of publishing any thing, however danger- neighbors as an innocent and useful work, he can ous; for he would only have to tack an adver- not be convicted as a criminal publisher. How tisement to it by way of preface, prosessing the he is to convince the jury that his purpose was excellence of its principles and the sincerity of innocent, though the thing published be a libel, its motives, and his defense would be complete." must depend upon circumstances and these cirMy Lord, I never contended for any such posi cumstances he may, on the authority of all the tion. If a man of education, like the Dean, were cases, ancient and modern, lay before the jury in to publish a writing so palpably libelous that no evidence ; because, if he can establish the innoignorance or misapprehension imputable to such cence of his mind, he negatives the very gist of a person could prevent his discovering the miss the indictment. chievous design of the author, no jury would be “In all crimes," says Lord Hale, in his Pleas lieve such an advertisement to be bona fide, and of the Crown, “the intention is the principal conwould, therefore, be bound in conscience to reject sideration ; it is the mind that makes the taking it, as if it had no existence. The effect of such of another's goods to be felony, or a bare tresevidence must be to convince the jury of the de- pass only: it is impossible to prescribe all the fendant's purity of mind, and must, therefore, de
| 35 This old adage, “ Ignorance of a fact may expend upon the nature of the writing itself, and cuse, but pot of law," proceeds on the principle that all the circumstances attending its publication. men are bound to know the law of their country, but If, upon reading the paper, and considering the not every fact that may be connected with their whole of the evidence, they have reason to think conduct and actions.
Answer to Mr.
circumstances evidencing a felonious intent, or from it, that every student knows it is as applithe contrary; but the same must be left to the cable to all other cases. But people are resolved, attentive consideration of judge and jury: where- from some fatality or other, to distort every prinin the best rule is, in dubiis, rather to incline to ciple of law into nonsense, when they come to acquittal than conviction."
apply it to printing; as if none of the rules and In the same work, he says, “ By the statute of maxims which regulate all the transactions of Philip and Mary, touching importation of coin society had any reference to it. counterfeit of foreign money, it must, to make it! If a man, rising in his sleep, walks into a treason, be with the intent to utter and make china shop, and breaks every thing about him, payment of the same; and the intent in this case his being asleep is a complete answer to an inmay be tried and found by circumstances of dictment for a trespass; but he must answer in FACT, by words, letters, and a thousand evi- an action for every thing he has broken. dences besides the bare doing of the fact."
If the proprietor of the York coach, though This principle is illustrated by frequent prac. asleep in his bed at that city, has a drunken tice, where the intention is found by the jury as servant on the box at London, who drives over a fact in a special verdict. It occurred, not my leg and breaks it, he is responsible to me in above a year ago, at East Grinstead, on an indict- damages for the accident; but I can not indict ment for burglary, before Mr. Justice Ashurst, him as the criminal author of my missortune. where I was myself counsel for the prisoner. It What distinction can be more obvious and sim. was clear upon the evidence that he had broken ple ? into the house by force, in the night, but I con- Let us only, then, extend these principles, tended that it appeared from proof that he had which were never disputed in other criminal broken and entered with an intent to rescue his cases, to the crime of publishing a libel; and let goods, which had been seized that day by the offi- us, at the same time, allow to the jury, as our cers of excise ; which rescue, though a capital fel- forefathers did before us, the same jurisdiction ony by modern statute, was but a trespass, temp. in that instance which we agree in rejoicing to Henry VIII., and consequently not a burglary. allow them in all others, and the system of En
Mr. Justice Ashurst saved this point of law, glish law will be wise, harmonious, and complete. which the twelve judges afterward determined My Lord, I have now finished my argument, for the prisoner. But in order to create the point having answered the several objections..
Peroration of law, it was necessary that the prisoner's in- to my five original propositions, and es.“ tention should be ascertained as a fact; and, for tablished them by all the principles and authorithis purpose, the learned judge directed the jury ties which appear to me to apply, or to be necto tell him with what intention they found that essary for their support. In this process I bave the prisoner broke and entered the house, which been unavoidably led into a length not more inthey did by answering, “ To rescue his goods,” | convenient to the court than to myself, and have which verdict was recorded.
been obliged to question several judgments which In the same manner, in the case of the King had been before questioned and confirmed. against Pierce, at the Old Bailey, the intention. They, however, who may be disposed to cenwas found by the jury as a fact in the special sure me for the zeal which has animated me in verdict. The prisoner, having hired a horse and this cause, will at least, I hope, have the candor afterward sold him, was indicted for felony ; to give me credit for the sincerity of my intenbut the judges, doubting whether it was more tions. It is surely not my interest to stir up opthan a fraud, unless he originally hired him in- position to the decided authorities of the court in tending to sell him, recommended it to the jury which I practice. With a seat here within the to find a special verdict, comprehending their bar, at my time of life, and looking no further judgment of his intention, from the evidence. , than myself, I should hare been contented with Here the quality of the act depended on the in- the law as I found it, and hare considered hote tention, which intention it was held to be the little might be said with decency, rather than exclusive province of the jury to determine, be- how much; but feeling as I hare erer done upon fore the judges could give the act any legal de- the subject, it was impossible I should act othernomination.
wise. It was the first command and counsel to My Lord, I am ashamed to have cited so many my youth, always to do what my conscience told The error arises authorities to establish the first ele- me to be my duty, and to leave the consequences ingricolandade ments of the law; but it has been to God. I shall carry with me the memory, and, criminal cases. my fate to find them disputed. The I hope, the practice, of this parental lesson to whole mistake arises from confounding criminal the grave. I have hitherto followed it, and have with civil cases. If a printer's servant, without no reason to complain that the adherence to it his master's consent or privity, inserts a slander- has been even a temporal sacrifice: I have found ous article against me in his newspaper, I ought it, on the contrary, the road to prosperity and not in justice to indict him; and if I do, the jury wealth, and shall point it out as such to my chil. on such proof should acquit him ; but it is no dren. It is impossible, in this country, to hurt defense against an action, for he is responsible to an honest man; but even if it were possible, I me civiliter for the damage which I have sustained should little deserve that title, if I could, upon from the newspaper, which is his property. Is any principle, have consented to tamper or temthere any thing new in this principle ? So far porize with a question which involves, in its de
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.38 verdict on the whole matter in issue," and orderBut 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 Paine, 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, Bathtegrity. He treated me, not with contempt, in- urst, and all the judges in the House of Lords, deed, 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: but 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 establishing the fatal principle, that the question country.”
OF MR. ERSKINE IN BEHALF OF JOHN STOCKDALE WHEN TRIED FOR A LIBEL ON THE HOUSE
OF COMMONS, DELIVERED BEFORE THE COURT OF KING'S BENCH, DECEMBER 9, 1789.
INTRODUCTION. MR. STOCKDALE was a London bookseller, who published a pamphlet, written by a Scottish clergyman named 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 basty 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 indulgence 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, to 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 upon one point embraced in his decision. In main
Will serve bim no longer taining that, from the time of the Revolution of
In verse or in prose; 1688, the doctrine of Justice Buller had been uni. For twelve honest men 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
on. Now it happens that the last line was written and cerning Sir Philip Yorke, the Attorney General, to
o published thus by Pulteney in the Craftsman: prove that even “ the popular party, in those days, had no idea of assuming that the jury had a right Who are judges alike of the facts and the laws! to determine upon a question of luw."
1-See Erskine's Speeches, vol. i., p. 216, New York. This is universally considered the finest of Mr. Erskine's speeches," whether we regard the 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 client's case within its principle, who is destitute of the talent required even to comprehend the otber and bigher merits of his original. By these merits it is recommended to lovers of pure diction-of copious and animated description of lively, picturesque, and fanciful illustration of all that constitutes, if we may so speak, the poetry of eloquence."-Edinburgh Review, vol. xvi., p. 109.
poned in the
. SPEECH, &c. GENTLEMEN OF THE JURY,-Mr. Stockdale, General, in concession to my propositions, and
who is brought as a criminal before confirmed by the higher authority of the court, Extraordinary confidence re you for the publication of this book, namely, that every information or indictment speaker 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 crime it 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 warrantconnected 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 preby 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 jq. From a trust apparently so delicate and sin- dicial discretion may dictate, or which positive This created by gular, vanity is but too apt to whis- | law may inflict. Wir impartiality per an application to some fancied. of the English
It was admitted also to follow as a mere cormerit of one's own; but it is proper, ollary from these propositions, that where an infor the honor of the English bar, that the world formation charges a writing to be composed or 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 into without any knowledge of me, or any confidence scandal and disgrace with the public, the author that was personal, was only not afraid to follow can not be brought within the scope of such a up an accidental retainer, from the knowledge charge, unless the jury, on examination and comhe 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 conplaces, 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 vilily 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 to 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,
partial professional duties. If this be the wickedly, and maliciously devising, con- The crite ity, then, may 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 jury?
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 Admittedl prin
yesterday pleased to give to my in- and thought as if the Commons of Great Britain ciples applica disposition, this information was not in Parliament assembled were a most wicked,
se 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 publicgether 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. Not 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 * Mr. Erskine was not only a great admirer of
intermediate matter in the same page, and withMr. Burke, but he was in the constant babit of refer- out 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 inmiration.
formation charges that, with intention to vilify
we not expect
ble to the case.
the House of Commons, the defendant published / first give you the publication 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. found.
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
whether the defendant published those of Commons the following sentence: “The House Question for the jury to selected parts of it; and whether, look- of Commons has now given its final decision with decide.
ende 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. fend himself, the publisher unquestionably can— dom and justice of the nation in the supreme triwhether the author wrote the volume which I bunal of the kingdom, the question comes to be hold in my hand, as a free, manly, bona 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 chargsupposed 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 intronot on fairly answering their charges against ductory passage in the first page, goes on at a 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 into 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 tial attention-if, after the performance of this and falsehood ?" duty, you can return here, and with clear con From these two passages thus standing tosciences 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 imtious, 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 of 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 cred 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, withever, if you convict the defendant.
out drawing his breath, and as if it directly folGentlemen, 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 ibirteenth pages, reads from page twentieth : passages, and of the intention of its author, and to “ An impeachment of error in judgment with omitting their expose the miserable juggle that is regard to the quantum of a fine, and for an inler. played off in the information, by the tention that never was executed and never combination of sentences which, in the work it known to the offending party, characterizes a tri. sell, having no bearing upon one another, I will bunal of inquisition rather than a Court of Par
9 The principal parts selected by the Attorney | liament.” General are specified and commented on by Mr. Er. From this passage, by another vault, he leaps skine in a subsequent part of this speech.
over one-and-thirty pages more, to pago fifty