Mr. Bower on bishops. to heaven to support it. Having admitted that | the jury not only acted like just men the case of the toward the bishops, but as patriot citizens toward their country, and not being able, without the surrender of his whole argument, to allow either their public spirit or their private justice to have been consonant to the laws, he is driven to make them the instruments of divine Providence to bring good out of evil; and holds them up as men inspired by God to perjure themselves in the administration of justice, in order, by-the-by, to defeat the effects of that wretched system of judicature, which he is defending to-day as the Constitution of England! For if the King's judges could have decided the petition to be a libel, the Stuarts might yet have been on the throne. For it is very necessary for all governments that the people should have a good opinion of it; and nothing can be worse to any government than to endeavor to procure animosities as to the management of it; this has always been looked upon as a crime, and no government can be safe without it be punished." Having made these observations, did the Chief Justice tell the jury that whether the publication in question fell within that principle, so as to be a libel on government was a matter of law for the court, with which they had no concern? Quite the contrary: he considered the seditious tendency of the paper as a question for their sole determination, saying to them, "Now you are to consider whether these words I have read to you do not tend to beget an ill opinion of the administration of government; to tell us that those that are employed know nothing of the matter, and those that do know are not employed. Men are not adapted to offices, but offices to men, out of a particular regard to their interest, and not to their fitness for the places. This is the purport of these papers." of authorities. In citing the words of judges in judicature, I have a right to suppose their discourse Comparison to be pertinent and relevant, and that, when they state the defendant's answer to the charge, and make remarks on it, they mean that the jury should exercise a judgment under their direction. This is the practice we must certainly impute to Lord Holt, if we do him the justice to suppose that he meant to convey the sentiments which he expressed. So that, when we come to sum up this case, I do not find myself so far behind the learned gentleman, even in point of express authority; putting all reason, and the analogies of law which unite to support me, wholly out of the question. There is Court of King's Bench against Court of King's Bench; Chief Justice Wright against Chief Justice Lee; and Lord Holt against Lord Raymond. As to living authorities, it would be invidious to class them; but it is a point on which I am satisfied myself, and on which the world will be satisfied likewise, if ever it comes to be a question.33 My Lord, this is an argument of a priest, not of a lawyer; and even if faith, and not law, were to govern the question, I should be as far from subscribing to it as a religious opinion. No man believes more firmly than I do, that God governs the whole universe by the gracious dispensations of his providence, and that all the nations of the earth rise and fall at his command; but, then, this wonderful system is carried on by the natural, though, to us, the often hidden, relation between effects and causes, which wisdom adjusted from the beginning, and which foreknowledge at the same time rendered sufficient, without disturbing either the laws of nature or of civil society. The prosperity and greatness of empires ever depended, and ever must depend, upon the use their inhabitants make of their reason in devising wise laws, and the spirit and virtue with which they watch over their just execution; and it is impious to suppose that men who have made no provision for their own happiness or security in their attention to their government, are to be saved by the interposition of Heaven in turning the hearts of their tyrants to protect them. But if every case in which judges have left Chief Justice the question of libel to juries in opposition to law, is to be considered as a miracle, England may vie with Palestine; and Lord Chief Justice Holt steps next into view as an apostle; for that great judge, in Tutchin's case, left the question of libel to the jury, in the most unambiguous terms. After summing up the evidence of writing and pub-nounced to be such by magistrates the most relishing, he said to them as follows: "You have spectable, if I find it to be in direct violation of now heard the evidence, and you are to consider the very first principles of English judicature. whether Mr. Tutchin be guilty. They say they The great jurisdictions of the country are unalare innocent papers, and no libels; and they say terable except by Parliament, and, until they are nothing is a libel but what reflects upon some changed by that authority, they ought to remain particular person. But this is a very strange sacred: the judges have no power over them. doctrine-to say it is not a libel reflecting on What parliamentary abridgment has been made the government, endeavoring to possess the peo- upon the rights of juries since the trial of the ple, that the government is maladministered by bishops, or since Tutchin's case, when they were corrupt persons, that are employed in such or fully recognized by this court? None. Lord such stations, either in the navy or army. To Raymond and Lord Chief Justice Lee ought, say that corrupt officers are appointed to admin- therefore, to have looked there-to their predeister affairs, is certainly a reflection on the gov-cessors-for the law, instead of setting up a new ernment. If people should not be called to acone for their successors. count for possessing the people with an ill opinion of the government, no government can subsist. Holt in the case of Tutch But even if I should be mistaken in that particular, I can not consent implicitly to receive any doctrine as the law of England, though pro 33 Lord Camden is the one here opposed to Mansfield. But supposing the court should deny the legality of all these propositions, or, admitting their legality, should resist the conclusions I have drawn from them: then I have recourse to my last proposition, in which I am supported even by all those authorities, on which the learned judge relies for the doctrines contained in his charge; to wit: V. "That, in all cases where the mischievous Fifth Propo intention, which is agreed to be the essition. sence of the crime, can not be collected by simple inference from the fact charged, because the defendant goes into evidence to rebut such inference, the intention then becomes a pure unmixed question of fact, for the consideration of the jury." the propo Bition. stands good, till answered by the defendant: it must stand till contradicted or explained; and if not contradicted, explained, or exculpated, becomes tantamount to conclusive, when the defendant calls no witnesses." Mr. Justice Aston said, "Prima facie evidence not answered, is sufficient to ground a verdict upon if the defendant had a sufficient excuse, he might have proved it at the trial: his having neglected it where there was no surprise, is no ground for a new one." Mr. Justice Willes and Mr. Justice Ashurst agreed upon those express principles. These cases declare the law, beyond all controversy, to be, that publication, even of a libel, is no conclusive proof of guilt, but only prima facie evidence of it till answered; and that, if the defendant can show that his intention was not criminal, he completely rebuts the inference arising from the publication; because, though it remains true that he published, yet, according to your Lordship's express words, it is not such a publication of which a defendant ought to be found guilty. Apply Mr. Justice Buller's summing up to this law, and it does not require even a legal apprehension to distinguish the repugnancy. The advertisement was proved to convince the jury of the Dean's motive for publishing; Mr. Jones's testimony went strongly to aid it ;3⁄4 and the evidence to character, though not sufficient I said the authorities of the King against Authorities Woodfall and Almon were with me. In in favor of the first, which is reported in fifth Burrow, your Lordship expressed yourself thus: "Where an act, in itself indifferent, becomes criminal when done with a particular intent, there the intent must be proved and found. But where the act itself is unlawful, as in the case of a libel, the PROOF of justification or excuse lies on the defendant; and in failure thereof, the law implies a criminal intent." Most luminously expressed to convey this sentiment, namely, that when a man publishes a libel, and has nothing to say for himself—no explanation or exculpation-a criminal intention need not be proved. I freely ad-in itself, was admissible to be thrown into the mit that it need not; it is an inference of common sense, not of law. But the publication of a libel does not exclusively show criminal intent, but is only an implication of law, in failure of the desendant's proof. Your Lordship immediately afterward, in the same case, explained this further. "There may be cases where the publication may be justified or excused as lawful or innocent; FOR NO FACT WHICH IS NOT CRIMINAL, though the paper BE A LIBEL, can amount to SUCH a publication of which a defendant ought to be found guilty." But no question of that kind arose at the trial, that is, at the trial of Woodfall. Why? Your Lordship immediately explained why-"Because the defendant called no witnesses;" expressly saying, that the publication of a libel is not in itself a crime, unless the intent be criminal; and that it is not merely in mitigation of punishment, but that such a publication does not warrant a verdict of guilty. scale. But not only no part of this was left to the jury, but the whole of it was expressly removed from their consideration, although, in the cases of Woodfall and Almon, it was as expressly laid down to be within their cognizance, and a complete answer to the charge, if satisfactory, to the minds of the jurors. ments in favor In support of the learned judge's charge, there can be, therefore, but the two Only two arguarguments, which I stated on moving of Justice Bal for the rule. Either that the defend- ler's charge. ant's evidence, namely, the advertisement—Mr. Jones's evidence in confirmation of its being bond fide-and the evidence to character, to strengthen that construction-were not sufficient proof that the Dean believed the publication meritorious, and published it in vindication of his honest intentions; or else that, even admitting it to establish that fact, it did not amount to such an exculpation as to be evidence on Not Guilty, so as to warrant a verdict. I still give the learned judge the choice of the alternative. In the case of the King against Almon, a magazine, containing one of Junius's letters, was sold at Almon's shop: there was proof of that sale at the trial. Mr. Almon called no witnesses, and was found guilty. To found a motion for a new trial, an affidavit was offered from Mr. Almon that he was not privy to the sale, nor knew his name was inserted as a publisher; and that this practice of booksellers being inserted as publishers by their correspondents, without no-ion of it as a point of evidence, and left it there. tice, was common in the trade. Your Lordship said, “Sale of a book in a bookseller's shop, is prima facie evidence of publication by the master, and the publication of a libel is prima facie evidence of criminal intent: it As to the first, namely, whether it showed honest intention in point of fact, that Remarke on was a question for the jury. If the the first. learned judge had thought it was not sufficient evidence to warrant the jury's believing that the Dean's motives were such as he had declared them, I conceive he should have given his opin I can not condescend to go further; it would be 34 For Mr. Jones's testimony, see note 18. | 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. 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 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'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 to 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 a culpable negligence, which is no excuse at all. For a man can not throw papers about the world without reading them, and afterward say he did not know their contents were criminal. But if a man reads a paper, and not believing it to con 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. "But," says Mr. Bower, "if this advertisement prefixed to the publication, by Bower as to the which the Dean professed his innocent intention in publishing it, should have been left to the jury as evidence of that intention, to 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 "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. ing civil and criminal cases. My Lord, I am ashamed to have cited so many The error arises authorities to establish the first elefrom confound- ments 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 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. The decision now made, confirming that in the case of Woodfall, was considered as finally establishing the fatal principle, that the question "I by the court to find the defendant or defendants 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 Will serve him no longer For twelve honest men have decided the cause, Who are judges alike of the facts and the LAWS! -See Erskine's Speeches, vol. i., p. 216, New York. |