James Fitzjames Stephen.

A history of the criminal law of England online

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to return a general verdict of not guilty in a case of libel,
when the court told them that they had no moral right to do
so, that the question of libel or not was for the court, and
that the publication under consideration was libellous.

Lord Mansfield continues his history thus: "When I was
" Attorney General " (^ firom 1754 to 1756) " I prosecuted some
" libels : one I remember, from the condition and circumstances
" of the defendant. He was found guilty. He was a common-
" councilman of the city of London ; and I remember another

» IB State Trials, 1203.

' Pratt, afterwards Lord Camden, was one of them.

' Lord Campbell says of him, " Highly honourable and respectable, ho was
** the dullest of the dull during the whole course of his life." — Lives of the
Chief Justices, u. 214.

* A remarkable case had occurred in New York. See the caseof Zenger, 17
State Trials, 675, a.d. 1785. The speech of Zenger's counsel, Hamilton, was
singularly able, bold, and powerful, though full of doubtful, not to say bad,
law, which is brought out in some very able letters published at the end of the
case. I may obeerre that the author of those letters would have found it
difficult to defend himself on his own principles if he had been tried for a
libel on Hamilton.

' Campbell, Lives of Chief Justices, ii. 881. Lord Mansfield was Solicitor
General for twelve years.

Y 2


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Ch. XXIV. " circumstance : it was the first conviction in the city of London
" that had been had for twenty-seven years. It was the case
" of R. V. Nutt, and there he was convicted under the very same
" direction before Lord Chief Justice Ryder. In the year 1756
" I came into the oflSce I now hold. Upon the first prosecution
" for a Kbel which stood in my paper, I think (but I am not
" sure), but I think it was ihe case of R. v. Shebbeare, I made
'' up my mind as to the direction I ought to give. I have
'* uniformly given the same direction in aJl, almost in the same
" form of words. No counsel ever complained of it to the
" court Upon every defendant being brought up for judg-
" ment, I have always stated the direction I gave, and the
" court has always assented to it."

The most remarkable of the decisions referred to by Lord
Mansfield in this striking passage were given in the cases of
the prosecutions of the publishers of Junius's celebrated letter
to the king in 1770. They were the cases of ^ Almon, Miller,
and Woodfall. Almon was convicted, Miller was acquitted,
and in Woodfall's case the jury returned a verdict of "guilty
" of publishing only." Upon this last verdict a new trial
was granted, but the proceedings were dropped. In Almon's
case the great contest was as to the defendant's responsibility
for the publication. The paper was proved to have been sold
by his servant in his shop, but it did not appear that Almon
himself knew of or authorised the sale. Lord Mansfield's
direction upon this was that such a sale ^"was sufficient
" evidence to convict the master of the house or shop, though
" there was no privity or concurrence in him, unless he proves
" the •contrary or that there was some trick or collusion."

In the case of Miller there was no question as to publication,
for the letter had been republished in the paper (the Evening
Pod) published by him, but the coimsel respectively attacked
and defended the letter itself, Lord Thurlow describing it as

1 20 State Trials, 808, 870, and 895.

• Ih, 888.

* This expression is obyionsly wrong, as it implies that the publisher on^ht
to proye his privity or concurrence in the publication in order to relieve hun-
sell from responsibility for it. The meaning is plain from other passages, and
is that the CHue in the shop in the ordinary course of business throws on the
shopkeeper the burden of proving that tlie sale was without his privity or


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seditious and malignant, and Serjeant Glynn defending it as a Ch. XXIV.

piece of manly, wholesome, and dutiful advice to the king.

1 Lord Mansfield with great elaboration stated to the jury the

doctrine that they had to determine nothing except the question

of publishing and that of the innuendoes. He admitted that

they had a legal power to give a general verdict of not guilty,

but denied their moral right to do so unless they doubted the

publication or the truth of the innuendoes. In this case the

jury acquitted the defendant generally. In Woodfall's case

the direction was similar. The result I have already stated.

Though Lord Mansfield's direction in these cases was not
questioned by a motion for a new trial, it *was vehemently
attacked in both Houses of Parliament. In particular. Lord
Chatham and Lord Camden censured him vehemently in the
House of Lords. Lord Camden finally proposed questions
to him which he refused to answer. Lord Mansfield had, by
way of reply to the criticisms, made on his judgment, left with
the clerk of the House of Lords a " Copy of the imanimous
" opinion of the Court of King's Bench in the case of The
" King against WoodfalL"

The questions which Lord Camden asked upon it were
these : —

1. Does the opinion mean to declare that, upon the general
issue of not guilty in the case of a seditious libel, the jury
have no right by law to examine the innocence or criminality
of the paper if they think fit, and to form their verdict upon
such examination ?

2. Does the opinion mean to declare in the case above
mentioned, where the jury have delivered in their verdict
guilty, their verdict has foimd the fact only and not the law 7

3. Is it to be understood by this opinion that, if the jury
come to the bar and say that they find the printing and
publishing but that the paper is no libel, the jury are to be
taken to have found the defendant guilty generally, and the
verdict must be so entered up ?

4. Whether the opinion means to say that, if the judge,
after giving his opinion of the innocence or criminality of

^ 20 State Trials, 898, 894.

* Campbell's Chirf Justices, ii. 480-490. See especially 488, 489.


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Ch. XXIV. the paper, should leave the consideration of that matter,
together with the printing and publishing, to the jury, such
a direction would be contrary to law ?

Upon this Lord Mansfield observed that this mode of
questioning took him by surprise, that it was unfair, that he
would not answer interrogatories. Lord Camden replied, " I
" am willing that the noble and learned lord on the woolsack
** should have whatever time he deems requisite to prepare him-
** self, but let him name a day when his answers may be given
" in, and I shall then be ready to meet him." Lord Mansfield
said he was not bound to answer, and would not answer, the
questions so astutely framed and irregularly administered, but
. he pledged himself the matter should be discussed. He
refused, however, to fix a day for the discussion, and the
matter was carried no further. After telling this story. Lord
Campbell adds, "There is no denying that Lord Mansfield
" did on this occasion show a great want of moral courage." I
think he showed an equal want of presence of mind. His
answer surely ought to have been that it would be wholly in-
consistent with his duty as Lord Chief Justice to discuss in a
Parliamentary debate the merits of a judgment given in the
Court of King's Bench ; that the proper way of calling in
question the propriety of the law so laid down was by
proceedings in error in a case admitting of such proceedings ;
and that if the House of Lords wished for advice firom him
as a judge they ought to propose their questions solemnly to
the whole body of judges. To engage a judge in a Parlia-
mentaiy discussion of abstract legal questions is to place an
almost insuperable diflSculty in the way of his deciding them
fedrly and with an unbiased mind if they should be argued
before him judicially.

Seven years afterwards, in 1777, ^ Home Tooke was tried
for libel in charging the troops employed against the Americans
with murder. The libel was described as seditious, and as
being " of and concerning his Majest/s government and the
** employment of his troops." The trial is remarkable mainly
for the extraordinary impudence and random hare-brained
cleverness of the defendant. In a legal point of view it is
1 20 StoJte Trials, 66L


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interesting as showing how, under certain circumstances, the Ch. XXIV.
law as to libel, as understood before the libel Act, allowed
a defendant to give what might be easily mistaken for
evidence in proof of the innocence of his intentions, which
would involve the consequence that the jury were to judge
not only of the facts of publication and the truth of the
innuendoes, but of the character of the publication as being
libellous or not.

One defence upon which Home insisted was that his state-
ments were true, and in support of them he called Oould, an
officer who had been engaged in the action at Lexington, and
who gave an account of it. ^ The evidence was admitted by
Lord Mansfield, on grounds which he explained both upon
a motion for arrest of judgment and at the trial itself. On
the motion in arrest of judgment, he said : " It is most certain
** that at the trial the information was considered to be '' [for]
" words spoke of and concerning the king's government, and
" his employment of his troops, that is the employment of the
"troops by government. Upon that groimd the defendant
*' called a witness — Mr. Qould. The Attorney General rose to
" object to him, but it was very clear that he was a proper
** witness, and he " [the Attorney General] " acquiesced im-
" mediately, because it was extremely material to show what
" the subject matter was to which the libel related ; if it was
" the employment of the troops under proper authority that
" came within the charge in the information. Had it been
" a lawless fray (* which I believe I said at the trial), it would
" not ; though the saying so might have been a libel of" [on]
" the individuals, yet it would not have been this libel ; it
" would not have been this Ubel of the king's troops employed
" by him. Now at first and at present it seems to me that ' of
** ' and concerning the king's government and the employment
" * of his troops' jrins it down. But I doubt a little upon it
" There is some weight in the objection whether in the form
" of drawing there should not have been innuendoes." ^ It was
afterwards held that this mode of statement was unnecessary.

» 20 StaU Trials, p. 778.

« He did so. See 20 SUUc Trials, 760.

» ih. in.


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328 R. i?. STOCKDALE.

Ch. XXIV. This decision certainly operated under particular circumstances
to open a much larger field to the defence than was commonly
conceded in cases of libel, and I think it explains the celebrated
case of R. v. Stockdale, which was the last trial of any
importance for a political libel before Fox's Act came into
force. I will accordingly mention it here, though out of the
order of time. ^ Stockdale was tried for publishing a pamphlet
by Logan (a minister of the Scotch Church, who died before
the trial) in defence of Warren Hastings. It contains several
passages which censured the prosecution warmly. The strongest
expressions complained of were that certain charges "originate
" from misrepresentation and falsehood," that " an impeach-
"mentof error in judgment . . . characterises a tribunal of
^ inquisition rather than a court of Parliament," and that
" the world has every reason to suppose that the impeach-
" ment is carried on from motives of personal animosity, not
"from regard to public justice." On the motion of Fox,
carried unanimously in the House of Commons, the publisher
of the pamphlet which contained these passages (it was a
pamphlet of 150 pages) was prosecuted for a libel on the
House of Commons, by imputing to them injustice to Hastings.
Erskine's defence was that when the pamphlet was read as
a whole it would be seen that it referred, not to the House
of Commons as a whole, nor to their public conduct, but to
the proceedings of some particular persons. This, he argued
at great length, appeared from reading not only the passages
informed against but the context in which they were introduced,
and ^ he availed himself with immense effect of this opportunity

1 22 Staie Trials, 287.

* This is the speech in which Erakine introdaced the fetmous Indian chief;
who "raised the war-sound of his nation" (p. 279). The argument into
which he is introduced is extremely powerful as an appeal <id homines, though,
as Erskine said himself, it constitutes "an anomalous kind of defence.'*— If
you will govern India, you ought not to quarrel with a man who carries out
your instructions in the only Miay in which they can be effectuaUy carried
out It seems to me, however, to be greatly weakened bv its unworthy
admissions, and by the contradiction between what, after all, does amount
to a defence of Hastings (though Erskine tried to avoid that inference) and the
admission that '*he may and must have offended against the laws of Ood and
" nature if he was the faithful viceroy of an empire wrested in blood from the
" people to whom God and nature had given it To whom, I should like to
know, had either God or nature given the Diwani of Bengal f In whatever
sense God ^ve it first to the great Mogul, and afterwards to the subadars, of
whom Sunga Dowlah was a fair specimen, he may be said to have taken it away


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to dilate on many topics of a general nature. The logical Ch. XXIV
connection of these topics with the main purpose of his
speech was this: Mr. Logan's purpose when he said this,
that, and the other, was not to attack the House of Com-
mons but to defend Warren Hastings. Therefore the aver-
ments which must be established before the information can
be proved are not true. This was how Lord Kenyon, who
tried the case, understood it. ^He said: "In applying
" the innuendoes, I accede] entirely to what was said by
"the counsel for the defendant, and which was admitted
" yesterday by the Attorney General as counsel for the Crown,
** that you must upon this information make up your minds
" that this was meant as an aspersion upon the House of
" Commons, and I admit also that in forming your opinion
" you are not bound to confine your inquiry to those detached
" passages which the Attorney General has selected as offensive
''matter, and the subject of prosecution." The defendant
was acquitted.

I am particular upon this point because it appears to me to
have been misunderstood by so great an authority as Lord
Campbell * He says that, according to the old doctrine, " the
** defendant ought certainly to have been convicted, for the
" act of publication was admitted, and the technical innuendoes
" were proved, so that the acquittal proceeded upon the ground
" that the intention of the pamphlet was fairly to discuss the
" merits of the impeachment, not to asperse the House of
" ConmiODs, or in other words that the pamphlet was not a
" libel."

The acquittal appears to me to have proceeded on the
ground that the introductory averment (which was equivalent
to an innuendo) that the words related to the House of
Commons was not made out. Practically, in this particular
case, the result was the same as if the jury had considered

from them audgiven it to Clive and the East India Company, ^s to nature,
its maxim is Va victia. As to the Indian chief and his war-whoop, what
wonld the tribes whom he scalped have said about God's giving him the rivers
and the forests of which Erskine talked ? If God gave Komi America as a
prize to be fought for by a set of prowling tribes of savage hunters, how can
we say that he did not mean white men to join in the scramble I

» 22 StaU TricUa, 292.

' Lives of Chief Justices, iii. 48-49.


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33^ R- ^- SHIPLEY.

Ch. XXIV. the whole matter ; but I think that Lord Kenyon trod exactly
in the footsteps of his predecessors.

To return, however, to the order of time. The directions
given by Lord Mansfield in the cases already referred to
continued to be accepted as the law till the year 1783, when
the Dean of St. Asaph's (Shipley) was prosecuted for publish-
ing a pamphlet called A Dialogue hetween a Gentleman and a
Fariner. It was written at a time when the disastrous results
of the American War had led to the first great general agitation
in favour of recasting the representative system. Its author
was Sir William Jones (the Dean's brother-in-law), and the
subject was the principles of government. It was prosecuted
as a seditious libel on indictment by a private person (also
called Jones, as also was the principal witness) on the ground
apparently that towards the end of the pamphlet the right of
subjects to bear arms was noticed in a mariner capable of being
represented by a hasty reader as advice to them to rebel.

The case was tried at Shrewsbury Assizes before Buller, J.,
and the defendant was defended by Erskine on the ground
that the pamphlet was innocent, and that it was the province
of the jury to judge of its guilt or innocence. The judge,
after referring to the earlier decisions already mentioned,
told the jury, as his predecessors had done, that the only
questions for them were the fact of publication and the
meaning of the innuendoes. He also abstained from giving any
opinion whatever of his own as to whether the pamphlet was
libellous or not, telling the jury that if they found a verdict
of guilty it would be open to the defendant to move in arrest
of judgment on the ground that there was no criminality in
the paper. The jury found a verdict of " guilty of publishing
" only," and a scene thereupon ensued between the judge, the
counsel, and the jury, which has become celebrated, though
I do not think it is properly understood. The question was
what verdict the jury meant to give. The judge pointed out
to them that the legal effect of "guilty of publishing only"
would be to negative the innuendoes, which was not their
intention, and Erskine insisted that whatever might be its
legal effect the word "only" should be recorded as part of the


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There are two difiTerent reports of the dispute, but they Ch. XXIV
are much to the same ^ eflfect. The followmg is the important
part of one of them : —

•*Jfr. Justice Buller: Gentlemen, if you add the word
" ordy, it will be negativing or at all events not finding the
" truth of the innuendoes ; that, I understand, you do not mean
"to do. Mr. Er shine: ^That has the effect of a general
" verdict of guilty. I desire your lordship, sitting here as judge,
" to record the verdict as given by the jury. If the jury depart
" from the word only they alter their verdict. Mr, Justice
** Buller: I will take their verdict as they mean to give it;
" it shall not be altered. Gentlemen, do you mean to find
"him guilty of publishing the libel? One of the Jury:
"Of publishing the pamphlet; we don't decide upon its
'• being a libel or not. Mr, Justice Buller: And the meaning
"of the innuendoes as is stated in the indictment? Ons
** of the Jury: Yes; certainly. Mr. Er shine: Would you
"have the word only recorded? One of the Jury: Yes.
"J/r. Ershine: Then I insist that it shall be recorded.
"^Mq\ Justice Buller: Mr. Erskine, sit down, or I shall be
"obliged to interpose in some other way. Mr. Erskine:
" Your lordshijp may interpose in any manner you think

It certainly seems to me that Erskine overstepped the limits
of his duty, and forgot (for once in his life) what was due to
the judge when he insisted that the word only should be
recorded. It was the judge's clear duty to make the jury

^ 21 State TrialSy 958. The other account is in the footnote on the same and
the preceding page. It is a little more dramatic.

' What ? But shorthand-writer's notes are often inaccurate as well as the
grammar which they record. The reporter's ear and fin^r act mechanically,
but a man who does not hear with his mind necessarily nears wrong in many
cases. I once told a jury that under given circumstances it was the duty of a
railway servant "to act with caution, and, of course, with humanity." In
tlie shorthand note this became, "to act with caution in the cause of
** humanity." Which, by the way, would be very good advice to many enthu-

* The other report goes on thus : — **i/r. Justice BvZler : Then the verdict
** must be misunderstood. Let me understand the jury. Erskine : The jury
** do understand their verdict. Mr. Jxcstice Buller : Sir, I will not be inter-
" rupted. Erskine : I stand here as an advocate for a brother citizen, and I
** desire that the word only may be recorded, i/r. Justice Buller : Sit down,
"sir, or 1 shall be obli^d to jiroceed in another manner. Erskine: Your
•* loitlship may proceed in what manner you think fit : I know my duty as
•' well as yoioi- lordship knows yours. I shall not alter my conduct.


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Ch. XXIV. understand that the verdict given in these terms would be
imperfect, and make a new trial necessary. This had been
formally decided in Woodfall's case. On the other hand, a
gentle reproof to Erskine, a simple observation that he was im-
properly interrupting the judge in giving the jury information
necessary for the proper discharge of their duty, would have
been more eflfective than an abortive threat to commit, and
more proper in dealing with a man of Erskine's great eminence
and remarkable generosity of temper. This essentially small
^ incident has been invested with a constitutional halo. For
myself I can see in it nothing but an unimportant skirmish
between a rather short-tempered judge and a most eminent
advocate, in which neither was absolutely free from blame,
especially if Erskine talked about " standing here as advocate
" for a brother citizen," and boasted of " knowing his duty."

The discussion continued for a considerable time, and with
good humour, as the following short extract will show : —

" Jfn JSrskine: I desire with great submission, the jury
" having said guilty only of publishing, that it may be so
" recorded. Mr. Justice Buller: Whether you say guilty
" orUy of publishing, or guilty of publishing only, that
" amounts to the same thing. You may put it thus : ' Guilty
** ' of publishing, but whether it is a libel or not you don't
" ' know,' if that is your intention. One of the Jury : That
" is our intention."

^ " The learned judoe took no notice of this reply* and quailing nnder the
" rebuke of his pupu " (say rather having recovered his temper), "did not
" repeat the menace of commitment. This noble stand for the independence
" of the bar would of itself have entitled Erskine to the statue which," kc —
CampbelFs Chancellors, viii. 277. I do not see how Erskine vindicated Uie
independence of the bar on this occasion, or how it was in question at
all ; I see no rebuke on the one side, and-no quailing on the other, but some
temper on both sides. Apart from this, what did Erskine risk by " de^ring "
the judge ? If Buller had been so ill-advised as to commit him, he would have
given Sm for all the rest of his life a better topic for eloquence and pathos
than even his noble descent and the fervour of his religious belief. By being
committed, Erskiife would have suffered no inconvenience greater than a few
nights rather uncomfortable lodging, and he would have moved for a new
trial on the grouiid of the miscoiKluct of the judge, with all his political
partisans shoutinff at his heels. Whatever msf have oeen the case in the days
of the Star Chamber, it required, in 1783, moie courage to five offence to one
attorney in large practice, or to say what the newspapers did not like, than
to assert the independence of the bar before all the judges in England, a
performance which never since 1688 has reauired much courage. I am not
aware that Erskine ever put in peril either nis practice or his popularity, or
that he was ever called upon to do either, except jierhaps in mne's case,
mentioned below.


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After some further discussion the verdict was entered Ch. XXIV.
accordingly. It is thus a mistake to suppose that on this
occasion Erskine triumphed over his former tutor; on the

Online LibraryJames Fitzjames StephenA history of the criminal law of England → online text (page 32 of 48)