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shut out by a police on the principle of quarantine; an idea which reminds me of what Milton says, in his Areopagitica, of a wise country gentleman who raised the wall of his park to keep out the crows.
Gentlemen, I shall close here this disgusting history; for the introduction of which, or any part of it, I ought to apologize to the court, but for its direct and unanswerable application. I persuade myself that there is not a man in England who would consider as a libel, any of the instances I have insisted on by way of example; and if the principle is once admitted, it is impossible to draw any rational line in the application, except the one I have freely admitted, viz., whether the writing be honestly intended, or malicious. If malicious, I abandon the justification.
As to the danger to the state from these sort of writings, more especially as when in this case, there has been no kind of complaint; I should think that Russia, from its immense distance, and from the circumstance that our newspapers do not circulate there as in France and Germany, and that our language is but little known among the inhabitants, was of all instances of apprehension on that score the most singular to select; and if it succeeds I expect to see, very soon, an information filed for a libel upon the planet Saturn, setting forth that the printer of some London newspaper, maliciously intending and contriving to disturb the laws of gravitation, and to create great disorder and mutiny amongst the planets, had printed and published that Saturn had no dependence on the sun, and was not governed in his orbit by its influence; with another count for publishing that he had only four satellites, whereas in truth, and in fact, he had five.
Gentlemen, this may be thought a ridiculous parallel, as the laws of nature could not be changed by a paragraph in a newspaper, but so neither can any relations amongst states that are worth preserving. The only thing the resemblance fails in, is that Saturn does not send an ambassador to the earth; but I have already said, and I am ready to prove, that the Russian ambassador has neither directly nor indirectly interfered.
I have already, gentlemen, or rather with the most tiresome tautology very frequently, admitted that none of the cases I have troubled you with, by way of illustration and example, apply to cases of malicious falsehood; but where a jury can plainly see that the writing, however severe, was intended to be real history and observation, it does not fall, upon any just or useful principle, under the acceptation of a libel.
Since the libel act, the judge cannot say what is a libel, as a judgment of law; he can only give his opinion, as I have, upon general principles, though with the high authority of his station; but the jury, after all, are bound upon their oaths to decide from all the circumstances of the case, and I feel myself obliged to say, cannot, in the present instance, decide against the defendants without manifest injustice. Writers, in all times, have not .
, only written with impunity on such subjects, but the press has literally teemed with them without censure or question. Paragraphs, ten times more severe than the present, against the Emperor and King of Prussia, have been in great circulation within these few hours past, which the Times and True Briton have re-printed, and I confess I see no fault in it; but, be that as it may, I will, for a most trifling premium, underwrite their security, because they are truths which nobody can deny, and which all England has an interest in exposing.
[Mr. Erskine here read the letters from Mr. Sharp, the British consul at St. Petersburgh, to the governor of the Russia Company, to prove that the edict was in fact issued and existed as represented in the Courier by the article in question, and made a forcible appeal to the feelings of the jury upon the injustice of subjecting innocent men, perhaps, to an ignominious punishment, as the punishment was discretionary, and the judgment of the court, when a humiliating sacrifice was to be made to a supposed insult upon a foreign ally, on the principle adverted to, might not be easily satisfied.]
I do not wish, continued Mr. Erskine, to see the laws relaxed; but it would be still worse to see them strained for any foreign power, however deserving, in opposition to the liberal policy of our ancestors, and the freedom of the British constitution, both of which would be grossly violated by a verdict against any of the defendants. Mr. Parry I know personally to be a liberal gentleman, incapable of malicious falsehood, and it has been candidly admitted by the Attorney-General himself, as well as established by proof, that the paragraph was a literal narration of a fact extremely important to be generally known, and which had, therefore, been circulated by the Russia Company, for the express purpose of communicating it to the mercantile world. Thus, what related to the edict was strictly the fact, not enlarged upon in any manner whatsoever; and as to the introduction so much complained of, it was general and just observation, quite within the scope of history upon the transactions of the great political world; for whoever heard of a history which confined itself to facts only, without the qualities and characters which belonged to them? Justice, too, should be impartially administered; the matter complained of did not originate with the Courier, but notoriously came to it from the Caledonian Mercury, whose proprietors, or publishers, have never been questioned by the Crown. If, therefore, the proprietor, printer, or publisher now before you is to be held responsible, and deprived of liberty on such an account as this, our boasted liberty of the press is but an empty sound.
EVIDENCE FOR THE DEFENDANTS.
Mr. Forster, the governor of the Russia Company, was called to prove Mr. Sharp's letters, which were brought by the waiter of Batson's coffee-house, where they had been sent for the information of merchants.
The Attorney-General objected to their admissibility, but said he waived the objection.
Lord Kenyon, however, disapproving of the production of the papers, the admission was therefore taken, without reading the letters.