« PreviousContinue »
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 bis 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.
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, confidence to 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 juFrom 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. of toe 'Englishper an application to some fancied It was admitted also to follow as a mere cor
merit 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 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 conplaccs, 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 vlify 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, What impartial professional duties. If this be the wickedly, and maliciously devising, con- The crine
characteristic even of the bar of an triving, and intending to asperse, scanof 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 beliered
yesterday pleased to give to my in- and thought as if the Commons of Great Britain
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 publicgether inattentive to what passed at the trial of the defendant published — Whal? 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 habit 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
ity, then, may we not expect
Qnestion for the jury to decide.
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.2
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 selected parts of it; and whether, look- of Commons has now given its final decision with
ing at them as they are distorted by regard to the merits and demerits of Mr. Hastthe information, they carry, in fair construction, ings. The Grand Inquest of England have de. the 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 wisfend himself, the publisher unquestionably can— dom and justice of the nation in the supreme triwhether the author wrote the volume which Ibunal 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 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 bad imme. point 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, withever, if you convict the defendant.
out drawing his breath, and as if it direcily fulGentlemen, 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 : ou: bi selecting of the intention of its author, and to “ An impeachment of error in judgment with cervening mat* expose the miserable juggle that is regard to the quantum of a fine, and for an in
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 trisell, having no bearing upon one another, I will bunal of inquisition rather than a Court of ParThe priocipal parts selected by the Attorney
, and omitting the in
liament." General are specified and commented on by Mr. Er- From this passage, by another vault, he leaps skine in a subsequent rt of this speech.
over one-and-thirty pages more, to pago fifty
in this way be convicted of er. ror.
one, where he reads the following sentence, The Commons of Great Britain, in Parliamen: which he mainly relies on, and upon which I assembled, had accused Mr. Hastings (1) Character shall by-and-by trouble you with some observa- as Governor General of Bengal, of high and conduct of tions : “Thirteen of them passed in the House crimes and misdemeanors; and their impeaching Mt. of Commons, not only without investigation, but jurisdiction, for that high porpose of 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 votparties 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 volume of one hundred and ten for any crime, although the grand jury are the Any book right pages, the defendant is only charged accusers in form, by giving effect to the accusa
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 infive 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 in. by 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 Parand hanging a meaning upon selected parts. liament, and not from any zeal for national honor 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 viothe present proceeding against this pamphlet, lence, had fastened it on an unwilling House of might indict the publisher of the Bible for blas- Commons; that, prepossessed with this sentiment 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 body), 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 say 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. considerare presently come forward and speak for Hastings, and not the House of Commons as a
itself. But before I can venture to lay body; which undoubtedly rather reluctantly gave
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 bis 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 here brings forward the character sustained against his client in Westminster Hall. by the Commons, and the error they committed in * This distinction between the individual oppoallowing the charges against Hastings to be pub- nents of Mr. Hastings and the House to wbich they lished 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 effect when next awakens sympathy in his favor by a powerful he came to comment on the pamphlet.
taking up the book.
(2.) The House
own along with him to the reading of it, can pos- dure the publication of their records. A prossibly 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,
the scope and design of the author, a defendant would be punished for anticipating provoked tois what right had he to canvass the the justice of his country, by the publication of ing the charges merits of an accusation upon the rec. his defense, the public being no party to it, until to be put 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 prosecutors of this information, seem to have proof of them by witnesses. For though noe in waived or forfeited their right to ask it. Before jurors may not only, without evi- properly before they sent the Attorney General into this place, dence, found their verdicts on facts the jury. to punish the publication of answers to their that are notorious, but upon what they know pricharges, 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 Commons 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 subselves 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 humanity 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. Hastrepresentation until the hour of trial.
ings at the bar of the Lords had actually comHad the Commons, therefore, by the exercise menced long before its publication.
of their high, necessary, and legal priv- There the most august and striking spectacle erary to allju ileges, kept the public aloof from all was daily exhibited which the world
canvass of their proceedings, by an ever witnessed. A vast stage of jus- of the trial. carly 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 affeccature, which, by common consent, a few are ap- tion, there appeared, day after day, one after anpointed to determine, and which must be determ- other, men of the most powerful and exalted talined by facts and 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 inwho 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 insulted Courts of law, therefore, in England, never en- nature and humanity; ever animated and ener
Such a procedure con
(3.) Description cide in vier of
getic, from the love of fame, which is the inhe- / when the charges against Mr. Hastings were, by rent passion of genius; firm and indefatigable, the implied consent of the Commons, Question for from a strong prepossession of the justice of their in every hand, and on every table- the pars to de
when, by their managers, the light- these facts. Gentlemen, when the author sat down to write ning of eloquence was incessantly consuming the book now before you, all this terrible, un him, and flashing in the eyes of the public—when ceasing, exhaustless artillery of warm zeal, every man was with perfect impunity saying, and matchless vigor of understanding, consuming writing, and publishing, just what he pleased of and devouring eloquence, united with the high- the supposed plunderer and devastator of nations est dignity, was daily, and without prospect of-would it have been criminal in Mr. Hastings conclusion, pouring forth upon one private unpro- himself to have reminded the public that he was tected man, who was bound to hear it, in the face a native of this free land, entitled to the common of the whole people of England, with reverential protection of her justice, and that he had a desubmission and silence. I do not complain of this, fense, in his turn, to offer to them, the outlines of as I did of the publication of the charges, be- which he implored them, in the mean time, to recause it is what the law allowed and sanctioned ceive as an antidote to the unlimited and unpun. in the course of a public trial. But when it is re- ished poison in circulation against him? This membered that we are not angels, but weak, fal- is, without color or exaggeration, the true queslible men, and that even the noble judges of that tion you are to decide. For I assert, without high tribunal are clotbed beneath their ermines the hazard of contradiction, that if Mr. Hastings with the common infirmities of man's nature, it himself could have stood justified or excused in will bring us all to a proper temper for consider- your eyes for publishing this volume in his own ing the book itself, which will in a few moments defense, the author, if he wrote it bona fide to debe laid before you. But first, let me once more send him, must stand equally excused and justiremind you, that it was under all these circum- fied; and if the author be justified, the publisher stances, and amid the blaze of passion and prej- can not be criminal, unless you have evidence that udice, which the scene I have been endeavoring it was published by him, with a different spirit faintly to describe to you might be supposed likely and intention from those in which it was written. to produce, that the author, whose name I will The question, therefore, is correctly what I just now give to you, sat down to compose the book now stated it to be : Could Mr. Hastings have which is prosecuted to-day as a libel.
been condemned to infamy for writing this book? The history of it is very short and natural. Gentlemen, I tremble with indignation, to be
The Rev. Mr. Logan, minister of the Gospel driven to put such a question in EnOrigin of the at Leith, in Scotland, a clergyman of the gland. Shall it be endured, that a sub- the detetre. pamphlet
purest morals, and, as you will see by- ject of this country (instead of being arraigned and-by, of very superior talents, well acquainted and tried for some single act in her ordinary with the human character, and knowing the dif- courts, where the accusation, as soon, at least, as ficulty of bringing back public opinion after it is it is made public, is followed within a few hours settled on any subject, took a warm, unbought, by the decision) may be impeached by the Com. unsolicited interest in the situation of Mr. Hast- mons for the transactions of twenty years—that ings, and determined, if possible, to arrest and the accusation shall spread as wide as the region suspend the public judgment concerning him. of letters—that the accused shall stand, day after He felt for the situation of a fellow-citizen ex- day, and year after year, as a spectacle before the posed to a trial which, whether right or wrong, public, which shall be kept in a perpetual state is undoubtedly a severe one-a trial certainly not of inflammation against him; yet that he shall confined to a few criminal acts like those we are not, without the severest penalties, be permitted accustomed to, but comprehending the transac- to submit any thing to the judgment of mankind tions of a whole life, and the complicated policies in his defense ? If this be law (which it is for of numerous and distant nations—a trial which you to-day to decide), such a man has no TRIAL! had neither visible limits to its duration, bounds That great hall, built by our fathers for English to its expense, nor circumscribed compass for the justice, is no longer a court, but an altar; and grasp of memory or understanding-a trial which an Englishman, instead of being judged in it by had, therefore, broke loose from the common form GOD and his country, IS A VICTIM AND A SACof decision, and had become the universal topic rifice 16 of discussion in the world, superseding not only You will carefully remeinber that I am not every other grave pursuit, but every fashionable dissipation
6 In the next paragraph Mr. Erskine shows that Gentlemen, the question you have, therefore, peculiar caution which he always maintained in his to try upon all this matter is extremely simple. boldest flights. He instantly comes back to the It is neither more nor less than this : At a time rights of the House, and the propriety with which
the managers bad conducted. He thus took care to 5 The trial began 13th February, 1788, and was impress his hearers, in his most impassioned passa. protracted until 17th April, 1795 (occupying one ges, with the feeling that all he said was in the exhundred and forty-eight days). when Mr. Hastings ercise of the severest judgment—that he was never was acquitted by a large majority on every separate borne away by mere emotion in his most fervent aparticle charged against them. The costs of the de. peals. This gave great weight to his more glowing sense amounted to £76,080.