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known throughout that no part of the publication, as charged in the indictment, was criminal; but had insisted upon maintaining the great public rights which he had so gloriously defended. He now pointed out the innocence of the publication in point of law: the court were unanimously of opinion that the indictment was defective; and the dean was at length discharged from his prosecution.
The trial of Stockdale, in 1789,' afforded Mr. Erskine another opportunity of asserting the liberty of stockdale's the press, in the most eloquent speech ever de- trial, 1789. livered in a British Court of Justice. Stockdale was prosecuted by the attorney-general, at the instance of the House of Commons, for publishing a defence of Warren Hastings, written by the Rev. Mr. Logan. This pamphlet was charged in the information as a scandalous and seditious libel, intending to vilify the House of Commons as corrupt and unjust in its impeachment of Warren Hastings. After urging special grounds of defence, Mr. Erskine contended, with consummate skill and force of argument, that the defendant was not to be judged by isolated passages, selected and put together in the information, but by the entire context of the publication, and its general character and objects. If these were fair and proper, the defendant must be acquitted. That question be put to the jury as one which “ cannot, in common sense, be anything resembling a question of law, but is a pure question of fact.” Lord Kenyon, who tried the cause, did not controvert this doctrine, and the jury fairly comparing the whole pamphlet with the information, returned a verdict of not guilty. Thus Mr. Erskine succeeded in establishing the important doctrine that full and free discussion was lawful, — that a man was not to be punished for a few unguarded expressions, but was entitled
i St. Tr., xxi. 847-1046; Erskine's Speeches, i. 386; Lord Campbell's Chief Justices, i. 540.
2 Parl. Hist., xxvii. 1, 7.
to a fair construction of his general purpose and animus in writing, of which the jury were to judge. This was the last trial for libel which occurred before Mr. Fox's libel bill. Mr. Erskine had done all that eloquence, courage, and forensic skill could do for the liberty of the press and the rights of juries. It now only remained for the legislature to accomplish
what had been too long postponed. In May, Libel Bill, May 20th,
1791, Mr. Fox made noble amends for his flip1791.
pant speech upon the libel laws, twenty years before. Admitting that his views had then been mistaken, he now exposed the dangerous anomaly of the law, in a speech of great argumentative power and learning. Mr. Erskine's defence of the Dean of St. Asaph he pronounced to be “so eloquent, so luminous, and so convincing, that it wanted but in opposition to it, not a man, but a giant.” If the doctrine of the courts was right in cases of libel, it would be right in cases of treason. He might himself be tried for writing a paper charged to be an overt act of treason. In the fact of publication the jury would find a verdict of guilty; and if no motion were made in arrest of judgment, the court would say, “ let him be hanged and quartered.” A man would thus lose his life without the judgment of his peers. He was worthily seconded' by Mr. Erskine, whose name will ever be associated with that important measure. His arguments need not be recapitulated. But one statement, illustrative of the law, must not be omitted. After showing that the judges had usurped the unquestionable privilege of the jury to decide upon the guilt or innocence of the accused, he stated, “ that if, upon a motion in arrest of judgment, the innocence of the defendant's intention was argued before the court, the answer would be and was given uniformly, that the verdict of guilty had concluded the criminality of the intention, though
1 The motion was one of form, “ that the Grand Committee for Courts of Justice do sit on Tuesday next."
the consideration of that question had been, by the judge's authority, wholly withdrawn from the jury at the trial.”
The opinion of the Commons had now undergone so complete a change upon this question, that Mr. Fox's views found scarcely any opponents. The attorney-general supported him, and suggested that a bill should be at once brought in for declaring the law, to which Mr. Fox readily assented. Mr. Pitt thought it necessary "to regulate the practice of the courts in the trial of libels, and render it conformable to the spirit of the constitution.” The bill was brought in without a dissentient voice, and passed rapidly through the House of Commons."
In the Lords, however, its further progress was opposed by Lord Thurlow, on account of its importance, and the late period of the session. Lord Camden supported it, as a declaration of what he had ever maintained to be the true principles of the law in England. The bill was put off for a month, without a division; but two protests were entered against its postponement.
In the following session Mr. Fox's bill was again unanimously passed by the Commons. In the Lords it Libel Bil, met with renewed opposition from Lord Thurlow,
March 20th, at whose instance the second reading was post- 1792. poned, until the opinions of the judges could be obtained upon certain questions.: Seven questions were Opinion of submitted to the judges, and on the 11th of May, April 27th. their answers were returned. Had anything been May 11th. wanting to prove the danger of those principles of law which it was now sought to condemn, it would have been supplied from the unanimous answers of the judges. These principles, it seemed, were not confined to libel: but the criminality or innocence of any act was “the result of the judgment which the law pronounces upon that act, and must, therefore, be, in all cases and under all circumstances,
1 Parl. Hist., xxix. 551-602. 8 lbid., 1036. 3 Ibid., 726–742.
4 Ibid., 1293.
matter of law, and not matter of fact.” They even main. tained, — as Mr. Fox had argued, — that the criminality or innocence of letters or papers set forth as overt acts of treason was matter of law, and not of fact; yet shrinking from so alarming a conclusion, they added that they had offered no opinion “which will have the effect of taking matter of law out of the general issue, or out of a general verdict."1 Lord Camden combated the doctrines of the judges, and repeated his own matured and reiterated opinion of the law. The bill was now speedily passed; with a protest, signed by Lord Thurlow and five other lords, predicting “ the confusion and destruction of the law of England.” ?
And thus, to the immortal honor of Mr. Fox, Mr. Results of the Erskine, Lord Camden, and the legislature, was
passed the famous Libel Bill of 1792, in opposition to all the judges and chief legal authorities of the time. Being in the form of a declaratory law, it was in effect a reversal of the decisions of the judges by the High Court of Parliament. Its success was undoubted for all the purposes for which it was designed. While it maintained the rights of juries, and secured to the subject a fair trial by his peers, it introduced no uncertainty in the law, nor dangerous indulgence to criminals. On the contrary, it was acknowledged that government was better protected from unjust attacks, when juries were no longer sensitive to privileges withheld, and jealous of the bench which was usurping them.
1 Parl. Hist., xxix. 1361.
2 Ibid., 1404, 1534-15:38; Ann. Reg., 1792, p. 353; Chron. 69; Lord Campbell's Lives of the Chancellors, v. 346. "It was followed by a similar law passed by the Parliament of Ireland.
8 32 Geo. III. c. 60. Lord Macaulay says: “ Fox and Pitt are fairly entitled to divide the high honor of having added to our statute book the inestimable law which places the liberty of the press under the protection of juries." This is cited and accepted by Lord Stanhope in his Life of Pitt, ii. 148: but why such prominence to Pitt, and exclusion of Erskine ?
4 Lord Erskine's Speeches, i. 382, n.;'Lord Campbell's' Lives of the Chancellors, v. 350.
Since the beginning of this reign, the press had made great advances in freedom, influence, and con- General progsideration. The right to criticise public affairs, Tise offre to question the acts of the government, and the press. the proceedings of the legislature, had been established. Ministers had been taught, by the constant failure of prosecutions,' to trust to public opinion for the vindication of their measures, rather than to the terrors of the law for the silencing of libellers. Wilkes and Junius had at once stimu. lated the activity of the press, and the popular interest in public affairs. Reporters and printers having overcome the resistance of Parliament to the publication of debates, the press was brought into closer relations with the state. Its functions were elevated, and its responsibilities increased. Statesmen now had audience of the people. They could justify their own acts to the world. The falsehoods and misrepresentations of the press were exposed. Rulers and their critics were brought face to face, before the tribunal of public opinion. The sphere of the press was widely extended. Not writers only, but the first minds of the age, — men ablest in council and debate, - were daily contributing to the instruction of their country men. Newspapers promptly met the new requirements of their position. Several were established during this period, whose high reputation and influence bave survived to our own time ; 8 and by fulness and rapidity of intelligence, frequency of publication, and literary ability, prored themselves worthy of their bonorable mission to instruct the people.
Nor is it unworthy of remark that art had come to the aid of letters in political controversy. Since the days Caricatures.
1 On the 27th Nov., 1770, the Attorney-General De Grey " declared solemnly that he had bardly been able to bring a single offender to justice." - Parl. Hist., xvi. 1138. 2 Supra, Vol. I. 390-106.
8 Viz., The Morning Chronicle, 1769 (extinct in 1862); The Morning Post, 1772; the Morning Herald, 1780: The Times, founded in 1788. holds an undisputed position as the first newspaper in the world. – Hunt's Fourth Estate, ii. 99-189.