6. SPEECH 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, by Lord Erskine.1

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.

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 lawyers 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

1 From Select British Eloquence, by Chauncey A. Goodrich, D.D. (Harper and Brothers, 1874); by the kind permission of the publishers.

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). Goodrich.

GENTLEMEN OF THE JURY:

Mr. Stockdale, who is brought as a criminal before you for the publication of this book, 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.

From a trust apparently so delicate and singular, vanity is but too apt to whisper 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 professional duties. If this be the characteristic even of the bar of an English court of justice, what sacred impartiality may not every man expect from its jurors and its bench?

As, from the indulgence which the court was yesterday pleased to give to my indisposition, this information was not proceeded on when you were attending to try it, it is probable you were not altogether inattentive to what passed at the trial of the other indictment, prosecuted also by the House of Commons. Without, therefore, a restatement 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-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 warranted 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 cannot 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, contriving, and intending to asperse, scandalize, and vilify the Commons of Great Britain in Parliament assembled; and most wickedly and audaciously to represent their proceedings as corrupt and unjust, and to make it believed and thought as if the Commons of Great Britain in Parliament assembled were a most wicked, tyrannical, base, and corrupt set of persons, and to bring them into disgrace with the public" - the defendant published What? Not those latter ends of sentences which the Attorney-General has read from his brief, as if they had followed 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 anywhere. 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.

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, bona-fide disquisition of criminal charges against his fellow-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 consciences pronounce upon your oaths that the impression 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 impression 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.

Gentlemen, to enable you to form a true judgment of the meaning of this book and of the intention of its author, and to expose the miserable juggle that is played off in the information, by the combination of sentences which, in the work itself, have no bearing upon one another, I will first give you the publication as it is charged upon the record, and presented by the Attorney-General in opening the