CHAP. CLXXXI. timber, deals, &c. In consequence of this ill-timed law, upwards of 100 sail of vessels are likely to return to this kingdom without freights." For this the Attorney General A. D. 1799. filed a criminal information against the proprietor, printer, and publisher of the Courier. In vain did Erskine point out that as the facts stated in the paragraph were allowed to be true, the commentary upon them was justifiable, and that there was here no malicious defamation of a foreign government, but only a wish to point out the wrongs of British subjects. However, Lord Kenyon, sneering at the late Libel Act, said, "I am bound by my oath to declare my own opinion, and I should forget my duty if I were not to say to you that it is a gross libel." The jury found the defendants guilty, and they were sentenced to fine and imprisonment.† In the present Memoir I have only one other case of libel to mention, and this likewise should make us gratefully to rejoice that we live in better times. Mr. Cuthell, one of the most respectable booksellers in London, dealt almost exclusively in classical works, and had published the philological writings of the Rev. Gilbert Wakefield. That eminent scholar, being the author of a political pamphlet in answer to one by the Bishop of Llandaff, employed Mr. Johnson, of St. Paul's Church Yard, to publish it, but some copies were sent to Mr. Cuthell's shop, and his servant, without authority, sold a few of them. As soon as Mr. Cuthell was aware of the nature of the publication, he stopped the sale of it. Nevertheless, in addition to criminal informations against the author and the publisher, a criminal information was filed against Mr. Cuthell, which came on for trial at Guildhall, before Lord Kenyon. The pamphlet was such as would not * Mr. Fox's Act only requires the Judges to give their opinion on matter of law in libel cases, as in other cases. But did any Judge ever say, "Gentlemen, I am of opinion that this is a wilful, malicious, and atrocious murder?" For a considerable time after the Act passed against the unanimous opposition of the Judges, they almost all spitefully followed this course. I myself heard one Judge say, "As the legislature requires me to give my own opinion in the present case, I am of opinion that this is a diabolically atrocious libel." Lord Denman now puts the just construction on the Act, by leaving the question to the jury, and telling them that "if so and so be the tendency and intention of the paper, it is a libel — aliter non." † 27 St. Tr. 627-642. And of thell, the bookseller. Mr. Cu Feb. 21. 1799. CLXXXI. A. D. 1799. CHAP now be noticed by the Attorney General, consisting chiefly of strong charges of misconduct against the existing Administration, with an exaggerated picture of the deplorable condition to which the country was reduced. But Erskine, as counsel for the defendant, declined entering into the question of libel or no libel,-contending, by the following unanswerable arguments, that the defendant was not criminally responsible, having been ignorant of the contents of the pamphlet, and the publication having been without his authority: "In the case of a civil action throughout the whole range of civil injuries - the master is always civiliter answerable for the acts of his servant or agent; and accident or neglect can therefore be no answer to a plaintiff complaining of consequential wrong. If the driver of a public carriage, by gross negligence, overturns the passengers on the road while the proprietor is asleep in his bed at a hundred miles distance, the proprietor must unquestionably pay the damages to the last farthing. The servant may be liable to indictment, and to suffer an infamous judgment; could the master also become the object of such a prosecution? CERTAINLY NOT! In the same manner, partners in trade are civilly answerable for bills drawn by one another, or by their agents under procuration, though fraudulently and in abuse of their trust; but if one partner commits a fraud by forgery, or fictitious indorsements, so as to subject himself to death or other punishment by indictment, could the other partners be indicted? To answer such a question here would be folly; because it not only answers itself in the negative, but exposes to scorn every argument which would confound indictments with civil actions. Why, then, is printing and publishing to be an exception to every other human act? Why is a man to be answerable criminaliter for the act of his servant in this case more than in all others? As far, indeed, as damages go, the principle is intelligible and universal; but as it establishes a crime, and inflicts a punishment, it is shocking to humanity, and insulting to common sense. The Court of King's Bench, since I have been at the bar, (very long, I admit, before the noble Lord presided in it, but under the administration of a truly great Judge,) pronounced the in- Lord Kenyon, however, acting on former precedents, and saying that the passing of the Libel Bill was "a race for popularity between two seemingly contending parties, who then chose to run amicably together," the defendant was found guilty. The case was so revolting that after a short imprisonment he was discharged on paying a fine of thirty marks.* 27 St. Tr. 641-680. Erskine's Speeches, vol. v. 213-246. There had been one case (the King against the Rev. Bate Dudley, proprietor of the Morning Post) in which Erskine, having William Pitt for his junior, had obtained an acquittal under similar circumstances against the summing up of Lord Mansfield. Unfortunately there is no report of this trial extant.-The grievance is at last effectually redressed by Lord Campbell's Libel Bill," which expressly admits the defence to an indictment or criminal information for a libel, that the publication was by a servant, without any authority from the defendant. 66 CHAP. CLXXXI. A.D. 1799. CHAPTER CLXXXII. CLXXXII. April 26. 1800. Trial of Hadfield for shooting at George III. CONTINUATION OF THE LIFE OF LORD ERSKINE TILL HIS VISIT CHAP. I COME to Erskine's last, and perhaps his greatest, display of genius in defending a party prosecuted by the Crown-his speech as counsel for James Hadfield indicted for shooting at King George III. in Drury Lane Theatre. It is now, and will ever be, studied by medical men for its philosophic views of mental disease,—by lawyers for its admirable distinctions as to the degree of alienation of mind which will exempt from penal responsibility,-by logicians for its severe and connected reasoning, and by all lovers of genuine eloquence for its touching appeals to human feeling. A few detached extracts can only excite a desire to peruse the whole composition, the different parts of which will be found beautifully to illustrate and to give force to each other. It should be remembered that a strong impression had been made by the case for the prosecution, and that the Judges, the jury, and all present viewed with just horror the attempt proved to have been made by an assassin upon the life of a beloved Sovereign. Thus Erskine began, in a subdued and solemn tone, to win the sympathies of his hearers, and to prepare them for the discussion of the awful and mysterious question arising from the distinction between the insanity of passion, unaccompanied by delusion, and that total derangement of the intellectual faculties which ought to exempt from punishment acts the most atrocious:-"The scene which we are engaged in, and the duty which I am not merely privileged but appointed by the authority of the Court to perform, exhibits to the whole civilised world a perpetual monument of our national justice. The transaction, indeed, in every part of it, as it stands recorded in the evidence already before us, places our country Erskine's speech for the pri soner. CLXXXII. and its government and its inhabitants upon the highest CHAP. pinnacle of human elevation. It appears that upon the 15th of May last, His Majesty, after a reign of forty years, A.D. 1800. not merely in sovereign power, but spontaneously in the very hearts of his people, was openly shot at (or to all appearance shot at) in a public theatre in the centre of his capital, and amidst the loyal plaudits of his subjects; YET NOT A HAIR OF THE HEAD OF THE SUPPOSED ASSASSIN WAS TOUCHED. In this unparalleled scene of calm forbearance, the King himself, though he stood first in personal interest and feeling, as well as in command, was a singular and fortunate example. The least appearance of emotion on the part of that august personage, must unavoidably have produced a scene quite different and far less honourable than the Court is now witnessing but his Majesty remained unmoved, and the person apparently offending was only secured, without injury or reproach, for the business of this day." After the advocate had gracefully insinuated himself into the favour of the jury, by an appeal to their loyal sympathies, he comes to discuss the question on which their verdict was to depend: "It is agreed by all jurists, and is established by the law of this and every other country, that it is the reason of man which makes him accountable for his actions, and that the deprivation of reason acquits him of crime. This principle is indisputable; yet so Mental fearfully and wonderfully are we made,--so infinitely subtle is the spiritual part of our being, so difficult is it to trace with accuracy the effect of diseased intellect upon human action, that I may appeal to all who hear me, whether there are any causes more difficult, or which indeed so often confound the learning of the Judges themselves, as when insanity, or the effects and consequences of insanity, become the subjects of legal consideration and judgment? Your province, to-day, will be to decide whether the prisoner, when he did the act, was under the uncontrollable dominion of insanity, and was impelled to it by a morbid delusion, or whether it was the act of a man who, though occasionally mad, or even at the time not perfectly collected, was yet not actuated by the disease, but by the suggestion of a wicked and malignant dis alienation and cri minal re sponsi bility. |