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that the defendant did not believe it to be illegal, and did not publish it with the seditious purpose charged by the indictment, he is not guilty upon any principle or authority of law, and would have been acquitted even in the Star Chamber; for it was held by that court, in Lambe's case, in the eighth year of King James the First, as reported by Lord Coke, who then presided in it, that every one who should be convicted of a libel must be the writer or contriver, or a malicious publisher, knowing it to be a libel.

This case of Lambe being of too high author

the force of

jury had believed, from the evidence, that the Remarks on Dean's intention was wholly innocent, the second. it would not have warranted them in acquitting, and, therefore, should not have been left to them upon Not Guilty. That argument can never be supported. For if the jury had declared, "We find that the Dean published this pamphlet; whether a libel or not, we do not find: and we find further, that, believing it in his conscience to be meritorious and innocent, he, bona fide, published it with the prefixed advertisement, as a vindication of his character from the reproach of seditious intentions, and not to excite sedition:"ity to be opposed, and too much in Mr. Bower's atit is impossible to say, without ridicule, that on point to be passed over, Mr. Bower tempt to evade such a special verdict the court could have pro- endeavors to avoid its force by giving Lambe's case. nounced a criminal judgment. it a new construction of his own: He says, that not knowing a writing to be a libel, in the sense of that case, means, not knowing the contents of the thing published; as by conveying papers sealed up, or having a sermon and a libel, and delivering one by mistake for the other. In such cases, he says, ignorantia facti excusat, because the mind does not go with the act; sed ignorantia legis non excusat,35 and, therefore, if the party knows the contents of the paper which he publishes, his mind goes with the act of publication, though he does not find out any thing criminal, and he is bound to abide by the legal consequences.

Then why was the consideration of that evidence, by which those facts might have been found, withdrawn from the jury, after they brought in a verdict guilty of publishing ONLY, which, in the King against Woodfall, was simply said not to negative the criminal intention, because the defendant called no witnesses? Why did the learned judge confine his inquiries to the innuendoes, and finding them agreed in, direct the epithet of guilty, without asking the jury if they believed the defendant's evidence to rebut the criminal inference? Some of them positively meant to negative the criminal inference by adding the word only, and all would have done it, if they had thought themselves at liberty to enter upon that evidence. But they were told expressly that they had nothing to do with the consideration of that evidence, which, if believed, would have warranted that verdict. The conclusion is evident; if they had a right to consider it, and their consideration might have produced such a verdict, and if such a verdict would have been an acquittal, it must be a misdirection.

Answer to Mr.

advertisement.

the essence of

This is to make criminality depend upon the consciousness of an act, and not upon Reply: Intenthe knowledge of its quality, which tion constitutes would involve lunatics and children in the crime. all the penalties of criminal law; for whatever they do is attended with consciousness, though their understanding does not reach to the consciousness of offense. The publication of a libel, not believing it to be one after having read it, is a much more favorable case than publishing it 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. 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 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 convicted of publishing any thing, however dangerous; for he would only have to tack an advertisement to it by way of preface, professing the excellence of its principles and the sincerity of its motives, and his defense would be complete." My Lord, I never contended for any such position. If a man of education, like the Dean, were to publish a writing so palpably libelous that no ignorance or misapprehension imputable to such a person could prevent his discovering the mischievous design of the author, no jury would believe such an advertisement to be bona fide, and would, therefore, be bound in conscience to reject it, as if it had no existence. The effect of such evidence must be to convince the jury of the defendant's purity of mind, and must, therefore, depend upon the nature of the writing itself, and all the circumstances attending its publication. If, upon reading the paper, and considering the whole of the evidence, they have reason to think

of that tendency himself, publishes it among his neighbors as an innocent and useful work, he can not be convicted as a criminal publisher. How he is to convince the jury that his purpose was innocent, though the thing published be a libel, must depend upon circumstances--and these circumstances he may, on the authority of all the cases, ancient and modern, lay before the jury in evidence; because, if he can establish the innocence of his mind, he negatives the very gist of the indictment.

"In all crimes," says Lord Hale, in his Pleas of the Crown, "the intention is the principal consideration; it is the mind that makes the taking of another's goods to be felony, or a bare trespass only: it is impossible to prescribe all the

35 This old adage, “Ignorance of a fact may excuse, but not of law," proceeds on the principle that men are bound to know the law of their country, but not every fact that may be connected with their conduct and actions.

circumstances evidencing a felonious intent, or the contrary; but the same must be left to the attentive consideration of judge and jury: wherein the best rule is, in dubiis, rather to incline to acquittal than conviction."

In the same work, he says, "By the statute of Philip and Mary, touching importation of coin counterfeit of foreign money, it must, to make it treason, be with the intent to utter and make payment of the same; and the intent in this case may be tried and found by circumstances of FACT, by words, letters, and a thousand evidences besides the bare doing of the fact."

This principle is illustrated by frequent practice, where the intention is found by the jury as a fact in a special verdict. It occurred, not above a year ago, at East Grinstead, on an indictment for burglary, before Mr. Justice Ashurst, where I was myself counsel for the prisoner. It was clear upon the evidence that he had broken into the house by force, in the night, but I contended that it appeared from proof that he had broken and entered with an intent to rescue his goods, which had been seized that day by the officers of excise; which rescue, though a capital felony by modern statute, was but a trespass, temp. Henry VIII., and consequently not a burglary.

Mr. Justice Ashurst saved this point of law, which the twelve judges afterward determined for the prisoner. But in order to create the point of law, it was necessary that the prisoner's intention should be ascertained as a fact; and, for this purpose, the learned judge directed the jury to tell him with what intention they found that the prisoner broke and entered the house, which they did by answering, "To rescue his goods," which verdict was recorded.

In the same manner, in the case of the King against Pierce, at the Old Bailey, the intention was found by the jury as a fact in the special verdict. The prisoner, having hired a horse and afterward sold him, was indicted for felony; but the judges, doubting whether it was more than a fraud, unless he originally hired him intending to sell him, recommended it to the jury to find a special verdict, comprehending their judgment of his intention, from the evidence. Here the quality of the act depended on the intention, which intention it was held to be the exclusive province of the jury to determine, before the judges could give the act any legal denomination.

from confounding civil and criminal cases.

My Lord, I am ashamed to have cited so many The error arises authorities to establish the first elements of the law; but it has been my fate to find them disputed. The whole mistake arises from confounding criminal with civil cases. If a printer's servant, without his master's consent or privity, inserts a slanderous article against me in his newspaper, I ought not in justice to indict him; and if I do, the jury on such proof should acquit him; but it is no defense against an action, for he is responsible to me civiliter for the damage which I have sustained from the newspaper, which is his property. Is there any thing new in this principle? So far

from it, that every student knows it is as applicable to all other cases. But people are resolved, from some fatality or other, to distort every principle of law into nonsense, when they come to apply it to printing; as if none of the rules and maxims which regulate all the transactions of society had any reference to it.

If a man, rising in his sleep, walks into a china shop, and breaks every thing about him, his being asleep is a complete answer to an indictment for a trespass; but he must answer in an action for every thing he has broken.

If the proprietor of the York coach, though asleep in his bed at that city, has a drunken servant on the box at London, who drives over my leg and breaks it, he is responsible to me in damages for the accident; but I can not indict him as the criminal author of my misfortune. What distinction can be more obvious and simple?

Let us only, then, extend these principles, which were never disputed in other criminal cases, to the crime of publishing a libel; and let us, at the same time, allow to the jury, as our forefathers did before us, the same jurisdiction in that instance which we agree in rejoicing to allow them in all others, and the system of English law will be wise, harmonious, and complete.

My Lord, I have now finished my argument, having answered the several objections Peroration. to my five original propositions, and established them by all the principles and authorities which appear to me to apply, or to be necessary for their support. In this process I have been unavoidably led into a length not more inconvenient to the court than to myself, and have been obliged to question several judgments which had been before questioned and confirmed.

They, however, who may be disposed to censure me for the zeal which has animated me in this cause, will at least, I hope, have the candor to give me credit for the sincerity of my intentions. It is surely not my interest to stir up opposition to the decided authorities of the court in which I practice. With a seat here within the bar, at my time of life, and looking no further than myself. I should have been contented with the law as I found it, and have considered how little might be said with decency, rather than how much; but feeling as I have ever done upon the subject, it was impossible I should act otherwise. It was the first command and counsel to my youth, always to do what my conscience told me to be my duty, and to leave the consequences to God. I shall carry with me the memory, and, I hope, the practice, of this parental lesson to the grave. I have hitherto followed it, and have no reason to complain that the adherence to it has been even a temporal sacrifice: I have found it, on the contrary, the road to prosperity and wealth, and shall point it out as such to my children. It is impossible, in this country, to hurt an honest man; but even if it were possible, I should little deserve that title, if I could, upon any principle, have consented to tamper or temporize with a question which involves, in its de

termination and its consequences, the liberty of the press, and, in that liberty, the very existence of every part of the public freedom.

of libel or no libel was one for the judges alone to decide-thus putting the liberty of the press beyond the reach of a jury, in the hands of the court. The public mind became greatly agitated on the subject. Mr. Erskine's argument was written out and widely circulated; and a way was thus prepared for a declaratory law, affirming the right of the jury "to give their verdict on the whole matter in issue," and order

Notwithstanding this powerful argument, the court, through Lord Mansfield, gave a unanimous decision in favor of Justice Buller's doctrine, and discharged the rule for a new trial.36 But they afterward allowed an arrest of judging that "they shall not be required or directed ment, finding, on examination, that there was nothing illegal in the Dialogue. Mr. Erskine, referring to the subject in his speech on the trial of Paine, said: "I ventured to maintain this very right of a jury over questions of libel before a noble and revered magistrate of the most exaited understanding, and the most uncorrupted integrity. He treated me, not with contempt, indeed, for of that his nature was incapable; but he put me aside with indulgence, as you do a child when it is lisping its prattle out of season." At the present day, however, most lawyers agree in the opinion expressed by Lord Campbell, that the doctrine of Mansfield, though it had obtained in the courts for a century, was a departure from the original principles of the English common law on this subject.

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The decision now made, confirming that in the case of Woodfall, was considered as finally establishing the fatal principle, that the question

by the court to find the defendant or defendants guilty merely on the proof of the publication by such defendant or defendants, of the papers charged to be a libel." Mr. Fox introduced a bill to this effect into the House of Commons, in 1791. When passed there, it was once defeated and again resisted by Thurlow, Kenyon, Bathurst, and all the judges in the House of Lords, but was finally passed, June 1st, 1792, chiefly through the exertions of Lord Camden. "I have said," says the distinguished jurist already mentioned, "and I still think, that this great constitutional triumph is mainly to be ascribed to Lord CAMDEN, who had been fighting in the cause for half a century, and uttered his last words in the House of Lords in its support: but without the invaluable assistance of ERSKINE, as counsel of the Dean of St. Asaph, the Star Chamber might have been re-established in this country."

SPEECH

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 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 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 Mansfield should have made so entire a mistake upon one point embraced in his decision. In maintaining that, from the time of the Revolution of 1688, the doctrine of Justice Buller had been universally received and acknowledged he quoted the following lines from a ballad by Mr. Pulteney concerning Sir Philip Yorke, the Attorney General, to prove that even "the popular party, in those days, had no idea of assuming that the jury had a right to determine upon a question of law."

For Sir Philip well knows
That his innuendoes

Will serve him no longer
In verse or in prose;

For twelve honest men have decided the cause,
Who are judges of fact, though not judges of laws.
Now it happens that the last line was written and
published thus by Pulteney in the Craftsman:

Who are judges alike of the facts and the LAWS! -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 other and higher 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.

Extraordinary

posed in the

defendant.

SPEECH, &c.

GENTLEMEN OF THE JURY,-Mr. Stockdale, who is brought as a criminal before confidence re- you for the publication of this book, speaker by the has, by employing me as his advocate, reposed what must appear to many an extraordinary degree of confidence; since, although he well knows that I am personally connected in friendship with most of those whose conduct and opinions are principally arraigned by its author,' he nevertheless commits to my hands his defense and justification.

bar.

From a trust apparently so delicate and sinThis created by gular, vanity is but too apt to whisthe impartiality of the English per an application to some fancied merit of one's own; but it is proper, for the honor of the English bar, that the world should know that such things happen to all of us daily, and of course; and that the defendant, without any knowledge of me, or any confidence that was personal, was only not afraid to follow up an accidental retainer, from the knowledge he has of the general character of the profession. Happy, indeed, is it for this country that, whatever interested divisions may characterize other places, of which I may have occasion to speak to-day, however the counsels of the highest departments of the state may be occasionally distracted by personal considerations, they never enter these walls to disturb the administration of justice. Whatever may be our public principles, or the private habits of our lives, they never cast even a shade across the path of our What impartial professional duties. If this be the characteristic even of the bar of an

ity, then, may

we not expect

jury?

ble to the case.

General, in concession to my propositions, and
confirmed by the higher authority of the court,
namely, that every information or indictment
must contain such a description of the crime that,
First, the defendant may know what crime it
is which he is called upon to answer.
Secondly, the jury may appear to be warrant-
ed in their conclusion of guilty or not guilty.

And, thirdly, the court may see such a precise and definite transgression upon the record, as to be able to apply the punishment which judicial discretion may dictate, or which positive law may inflict.

It was admitted also to follow as a mere corollary from these propositions, that where an information charges a writing to be composed or published of and concerning the Commons of Great Britain, with an intent to bring that body into scandal and disgrace with the public, the author can not be brought within the scope of such a charge, unless the jury, on examination and comparison of the whole matter written or published, shall be satisfied that the particular passages charged as criminal, when explained by the context, and considered as part of one entire work, were meant and intended by the author to vilify the House of Commons as a BODY, and were written of and concerning them IN PARLIAMENT ASSEMBLED.

These principles being settled, we are now to see what the present information is.

It charges that the defendant-"unlawfully, wickedly, and maliciously devising, con- The crime 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, 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 folstatement of the same principles, and a similar quotation of authorities to support them, I need only remind you of the law applicable to this subject, as it was then admitted by the Attorney Mr. Erskine was not only a great admirer of Mr. Burke, but he was in the constant habit of referring to his productions in terms of the highest admiration.

lowed one another in order in this book. Not those scraps and tails of passages which are patched together upon this record, and pronounced in one breath, as if they existed without intermediate matter in the same page, and without context any where. No! This is not the accusation, even mutilated as it is; for the information charges that, with intention to vilify

the House of Commons, the defendant published the whole book, describing it on the record by its title: "A Review of the Principal Charges against Warren Hastings, Esq., late Governor General of Bengal:" in which, among other things, the matter particularly selected is to be found.2

Question for the jury to decide.

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first give you the publication as it is charged upon the record, and presented by the Attorney General in opening the case for the Crown; and I will then, by reading the interjacent matter, which is studiously kept out of view, convince you of its true interpretation.

The information, beginning with the first page of the book, charges as a libel upon the House of Commons the following sentence: "The House of Commons has now given its final decision with regard to the merits and demerits of Mr. Hastings. The Grand Inquest of England have delivered their charges, and preferred their impeachment; their allegations are referred to proof; and from the appeal to the collective wisdom and justice of the nation in the supreme tribunal of the kingdom, the question comes to be determined whether Mr. Hastings be guilty or

It is but fair, however, to admit that this first sentence, which the most ingenious malice can not torture into a criminal construction, is charged by the information rather as introductory to what is made to follow it than as libelous in itself. For the Attorney General, from this introductory passage in the first page, goes on at a leap to page thirteenth, and reads-almost without a stop, as if it immediately followed the other-this sentence: "What credit can we give to multiplied and accumulated charges, when we find that they originate from misrepresentation and falsehood ?"

Your inquiry, therefore, is not confined to this, whether the defendant published those selected parts of it; and whether, looking at them as they are distorted by the information, they carry, in fair construction, the sense and meaning which the innuendoes put upon them; but whether the author of the entire work-I say the author, since, if he could defend himself, the publisher unquestionably canwhether the author wrote the volume which I hold in my hand, as a free, manly, bond fide disquisition of criminal charges against his fellow-not guilty ?" citizen. Or whether the long, eloquent discussion of them, which fills so many pages, was a mere cloak and cover for the introduction of the supposed scandal imputed to the selected passages; the mind of the writer all along being intent on traducing the House of Commons, and not on fairly answering their charges against Mr. Hastings? This, gentlemen, is the principal matter for your consideration. And therefore, if, after you shall have taken the book itself into the chamber which will be provided for you, and shall have read the whole of it with impartial attention—if, after the performance of this 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 the author wrote them with the wicked, seditious, and corrupt intentions charged by the information you have then my full permission to find the defendant guilty. But if, on the other hand, the general tenor of the composition shall impress you with respect for the author, and point him out to you as a man mistaken, perhaps, himself, but not seeking to deceive others-if every line of the work shall present to you an intelligent, animated mind, glowing with a Christian compassion toward a fellow-man, whom he believed to be innocent, and with a patriot zeal for the liberty of his country, which he considered as wounded through the sides of an oppressed fellow-citizen-if this shall be the im-charged before, but of those in the sequel of this pression on your consciences and understandings, when you are called upon to deliver your verdict then hear from me that you not only work private injustice, but break up the press of England, and surrender her rights and liberties forever, if you convict the defendant.

Charge made

page

passages, and

omitting the in

tervening mat

ter.

occupies thirteen pages, one would imagine that |—instead of investigating the probability or improbability of the guilt imputed to Mr. Hastings

instead of carefully examining the charges of the Commons, and the defense of them which had been delivered before them, or which was preparing for the Lords-the author had immediately, and in a moment after stating the mere fact of the impeachment, decided that the act of the Commons originated from misrepresentation and falsehood.

Gentlemen, in the same manner a vail is cast over all that is written in the next seven pages; for, knowing that the context would help to the true construction, not only of the passages

information, the Attorney General, aware that it would convince every man who read it that there was no intention in the author to calumniate the House of Commons, passes over, by another leap, to page twenty; and in the same manner, without 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 ment of the meaning of this book and thirteenth pages, reads from page twentieth: of the intention of its author, and to "An impeachment of error in judgment with expose the miserable juggle that is regard to the quantum of a fine, and for an inplayed 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 triself, having no bearing upon one another, I will bunal of inquisition rather than a Court of Parliament." 2 The principal parts selected by the Attorney General are specified and commented on by Mr. Erskine in a subsequent part of this speech.

From this passage, by another vault, he leaps over one-and-thirty pages more, to page fifty

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