The Trial
By clicking on the audio symbol on the AR version of King’s Bench you can listen to excerpts from speeches made by lawyers and the Lord Chief Justice during this very significant libel trial in 1789. While these short speeches cannot convey the full power of lawyers’ rhetoric and legal arguments, they do provide an opportunity to hear how they sought to persuade the jury of the freedom or limitations of the C18th press – an issue that still excites strong opposing views today.
The Case
The charge of libel was largely a result of a dispute in the House of Commons over the behaviour of the East India Company. Warren Hastings, as the first Governor General of Bengal. Hastings had been admired for laying the foundations of the British Empire in India, but on his return he was accused of high crimes and misdemeanours based on the methods he used to achieve that. The Whig opposition party supported Edmund Burke’s allegations of tyranny, corruption and fraud against Hastings for his mistreatment of the colonised Indian people, which resulted in his Impeachment before the House of Lords in Westminster Hall in February 1788. The trial attracted huge crowds and ran (intermittently for 7 years) until Hastings was acquitted by the House of Lords in 1795.
During the whole process Hastings had many supporters, one of which, the Rev. John Logan, wrote a pamphlet entitled A Review of the Principal Charges against Warren Hastings, strongly criticising the House of Commons’ actions. It was published by John Stockdale in 1788 and soon became a bestseller. Charles James Fox (leader of the Whig party) complained of the text in the House of Commons, who agreed to bring a charge of Libel against the author and publisher.
The Law
Eighteenth-century libel law and the way such trials were conducted were very different from modern law. At that time the author, publisher and printer of a text could all held liable for its publication. Although the principle that the press was essential for any free state was acknowledged, any text could become liable to legal prosecution after it had been published if it was deemed likely to provoke public disorder or undermine the government. In this case the House of Commons believed that Rev. Logan’s pamphlet had brought it into disrepute. Logan had died after its publication, so Stockdale as the publisher and bookseller, became the sole defendant in the trial for libel.
Libel trials were also conducted very differently to other criminal trials. Juries, most of which were specially selected gentlemen for seditious libel cases, were only allowed to determine the fact of whether the defendant had written or published a text. Therefore, only Judges decided whether the meaning of the content was libelous and seditious. Even more strangely, the defendant’s intention or motive was not considered at all. Lawyer Thomas Erskine and Whig leader Charles James Fox campaigned to change the law in court and in parliament for many years.
The Defendant
John Stockdale (1750-1814) was a reputable London bookseller and publisher who owned a shop in Picadilly. He had ‘radical’ Whig political interests and sympathised with the Americans during and after the War of Independence. He published numerous American texts, including one by Thomas Jefferson. Both Jefferson and John Adams stayed with Stockdale and regularly purchased books from him. His premises were known as a meeting place for political discussion. Stockdale was also described as having eccentric and often coarse manners. He is satirised in this Whig magazine as a Blacksmith (his father’s trade) for ‘forging’ a book, for the ‘King’s ‘New Friends because he published pamphlets for William Pitt’s ministry.
On 22 February 1788 Stockdale explained to Jefferson that his order had been delayed because:
“I am a little discomposed by having been complained of by the House of Commons. They have ordered me to be prosecuted.”
Founders Archive, US Government
The Charge
Eighteenth Century cases of seditious libel were often prosecuted by the Attorney General acting for the King using an Information. While an Indictment was a formal accusation that had to be presented to a Grand Jury to decide if there was sufficient evidence to proceed to court; an Information enabled the Attorney General to act as prosecutor and file the charge directly in the Court of King’s Bench. Seditious libel was deemed a dangerous threat to the King that could undermine respect for him and his government and stir up public unrest against them.
Sir Richard Pepper Arden (Attorney General to George III 1784-88) charged John Stockdale with “being a wicked, seditious, and ill-disposed person, having no regard for the laws of this realm, or for the public peace and tranquillity of this kingdom, and most unlawfully, wickedly, and maliciously …. intending to asperse, scandalize, and vilify the Commons of Great Britain in Parliament assembled, and most wickedly and audaciously to represent their proceedings in Parliament as corrupt and unjust.”
The Indictment (Information) against John Stockdale for publishing :
” A Review of the Principal Charges against Warren Hastings, Esquire, late Governor General of Bengal” [From Gurney’s & Stockdale’s published Proceedings of the Trial, 1790] Accessed 3/7/2024 https://dn790002.ca.archive.org/0/items/wholeproceedings00stociala/wholeproceedings00stociala.pdf
“Be it Remembered that Richard Pepper Arden Esquire,1 Attorney General of our present Sovereign Lord the King … in his own proper person comes here into the Court of our said Lord the King, before the King himself at Westminster, … and giveth the Court here to understand and be informed, that before the printing and publishing of the several false, scandalous, infamous, wicked, malicious, and seditious libels, herein after mentioned, the Commons of Great Britain in Parliament assembled, had, at the bar of the Houfe of Lords, impeached Warren Hastings, Esquire, late Governor General of Bengal, of high crimes and misdemeanours, and had there exhibited divers articles of impeachment of high crimes and misdemeanours against the said Warren Hastings, to wit, at Westminster aforesaid, in the county of Middlesex aforesaid ; yet John Stockdale, late of the parish of St. James’s, Westminster, in the county of Middlesex, Bookseller, well knowing the premises, but being a wicked, seditious, and ill-disposed person, having no regard for the laws of this realm, or for the public peace and tranquillity of this kingdom, and most 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 in Parliament as corrupt and unjust, and to make it to be believed and thought as if the majority of the Commons of Great Britain in Parliament assembled, were a most wicked, tyrannical, base, and corrupt set of persons, and to bring the Commons of Great Britain in Parliament assembled into hatred and contempt with the subjects of this kingdom, and to raise, excite, and create most groundless distrusts in the minds of all the King’s subjects, as if from the profligacy and wickedness of the Commons of Great Britain in Parliament assembled, great injustice would be done to the said Warren Hastings on the fifteenth day of February, in the twenty-eighth year of the reign of our said present Sovereign Lord the King, at Westminster aforesaid, in the county of Middlesex aforesaid; with force and arms, unlawfully, wickedly, maliciously and seditiously printed and published, and caused and procured to be printed and published, in a certain book, or pamphlet, intitled,
” A Review of the Principal Charges against Warren Hastings, Esquire, late Governor General of Bengal”,
A certain false, scandalous, wicked, seditious and malicious libel of and concerning the said impeachment of the said Warren Hastings, so exhibited as aforesaid, and of and concerning the Commons of Great Britain in Parliament assembled, containing amongst other things divers false, scandalous, seditious, and malicious matters of and concerning the said impeachment, and of and concerning the Commons of Great Britain in Parliament assembled, according to the tenor and effect following (to wit) :
The Houfe of Commons (meaning the Commons of Great Britain in Parliament assembled) has now given its final decision with regard to the merits and demerits of Mr. Hastings, (meaning the said Warren Hastings, Esquire, late Governor General of Bengal.) The grand inquest of England, (meaning the said Commons of Great Britain in Parliament assembled) have delivered their charges ……
What credit can we give to multiplied and accumulated charges, (meaning the faid charges of high crimes and misdemeanours lo exhibited, by the Commons of Great Britain in Parliament assembled as aforesaid, against … Hastings,) when we find that they (meaning the said charges of high crimes and misdemeanours so exhibited by the Commons … against …Hastings) originate from misrepresentation and falsehood, (meaning thereby to cause it to be believed and understood, that the said charges of … so exhibited by the Commons …, did originate from misrepresentation and falsehood,) ;
and in another part thereof according to the tenor and effect following(to wit) : An impeachment of error in judgment, with regard to the quantum of a fine, and for an intention that never was executed and never known to the offending party, characterises a tribunal-inquisition rather than a Court of Parliament (meaning thereby to cause it to be believed and understood that the Commons …. had proceeded in the … impeachment of … Warren Hastings in a manner unjust and unworthy of a House of Parliament of Great Britain);
and in another part thereof, according to the tenor and effect following (to wit):
The other charges (meaning …. ) are so insignificant in themselves, or founded on such gross misrepresentations, that they would not affect an obscure individual, much lefs a public character; they are merely added to swell the catalogue of accusations, as if the boldness of calumny would insure its success, and a multiplicity of charges were an accumulation of crimes. Thirteen of them (meaning thirteen of the said charges so exhibited by the Commons … against the said Warren Hastings, Esquire, as aforesaid) passed in the Houfe of Commons not only without investigation, but without being read; and the votes (meaning the votes of the Commons …) were given without enquiry, argument, or conviction; a majority (meaning a majority of the Commons…) had determined to impeach; opposite parties met each other and jostled in the dark, to perplex the political drama and bring the hero (meaning …Warren Hastings..) to a tragic catastrophe;
[And in another part …]
But if, after exerting all your efforts in the cause of your country, you return covered with laurels and crowned with success, if you preserve a loyal attachment to your Sovereign you may expect the thunders of parliamentary vengeance; you will certainly be impeached, and probably be undone (meaning thereby to cause it to be believed and understood, that the Commons …. had impeached … Hastings of high crimes and misdemeanours, not from motives of justice, but because the said Hastings had exerted all his efforts in the cause of his country, and returned covered with laurels and crowned with success, and preserved a loyal attachment to our said present Sovereign Lord the King)
[In another part…]
The office of calm deliberate justice is to redress grievances as well as to punish offences. It has been affirmed; that the natives of India have been deeply injured; but has any motion been made to make them compensation for the injuries they have sustained? Have the accusers of Mr. Hastings (meaning …) ever proposed to bring back the Rohillas to the country from which they were expelled?2 To restore Cheit Sing to the Zemindary of Benares?3 Or to return to the Nabob of Oude, the present which the Governor of Bengal received from him, for the benefit of the Company? Till such measures are adopted, and in the train of negotiation, the world has every reason to conclude that the impeachment of Mr. Hastings (meaning the said impeachment so exhibited by the said Commons …, against the said Warren Hastings,…, is carried on from motives of personal animosity, not from regard to public justice, to the great scandal and dishonour of the Commons of Great Britain in Parliament assembled, and in high contempt of their authority, to the great disturbance of the public peace and tranquillity of this kingdom, in contempt of our present Sovereign Lord the King and his laws, to the evil and pernicious example of all others in the like case offending, and also against the peace of our said Lord the present King, his crown and dignity, &c. Whereupon the said Attorney General of our said Lord the King, who for our said Lord the King, in this behalf, prosecuteth for our said Lord the King, prayeth the consideration of the court, here in the premises, and that due process of law may be awarded against him the said John Stockdale, in this behalf, to make him answer to our said Lord the King, touching and concerning the premises aforesaid.
The most important point to note is that each accusation is accompanied by an “innuendo”: an explanation of what the prosecutor argued each part of the text cited actually meant, which proved it was seditious. That meant the jury had to base their decision only on the passages the prosecutor had chosen, out of context, and which formed only a small portion of the whole pamphlet. This became a key issue for the defence and Judge Lord Kenyon made specific reference to considering the whole text when instructing the jury.
The Lawyers
Prosecution: Attorney General, Sir Archibald Macdonald (1747-1826)
A lawyer, judge and politician, Macdonald was the youngest son of a Scottish Earl, he knew Thomas Erskine when they were boys. Mostly educated in England, he studied at Oxford, entered Lincoln’s Inn in 1765 and was called to the bar in 1770, then elected an MP in 1777. It was a typically elite pattern of education that often led to a joint career in the law and politics. He was initially a Whig, but later joined the King’s ministry led by Prime Minister William Pitt. was appointed Attorney General in 1788 after Arden left office, so he took over the prosecution of Stockdale in King’s Bench using Arden’s Information. Later, in 1792 Macdonald successfully prosecuted Thomas Paine for his Right’s of Man who was again defended by Thomas Erskine.
You can listen to two recordings of extracts from Macdonald’s speeches: one explains the prosecution and defends the House of Common’s actions; the other is a carefully framed, closing argument. Both have been considered relatively understated compared to prosecution speeches in other libel trials, but he made his points well and his closing speech is a carefully framed ‘rational’ rhetorical response to Erskine’s powerful emotive arguments.
Extracts from the Speeches of Attorney General Sir Archibald Macdonald in the Trial of John Stockdale (1789)
[ 20 ] From the Attorney General’s opening speech
After due investigation, the Commons of Great Britain thought it their duty, as is well known, to submit the conduct of a servant of this country, who governed one of its most opulent dependencies for many years, to an enquiry before that tribunal. One should have thought that every good subject of this country would have forborne imputing to the House of Commons motives utterly unworthy of them, and of those whom they represent. Instead of this, to so great degree now has the licentiousness of the press arisen, that motives, the most unbecoming that can actuate … any individual, who may be concerned in the prosecution of public justice, are imputed to the representatives of the people of this country in a body. No credit is given to them for meaning to do justice to their country, but on the contrary, private, personal, and malicious motives are imputed to the Commons of Great Britain.
———
[ 21 ]
Gentlemen [of the jury], the particular passages which I shall put my finger upon in this libel, it will now be my duty to state. You know very well, that it is your duty to consider of the meaning that I have imputed to those passages in the information. If you agree with me in that meaning you convict; if you disagree with me, of course you acquit.
[ 98 ] Attorney General’s Reply to (Erskine’s)Defence
Gentlemen of the Jury,
My learned friend and I stand very much contrasted with each other in this cause. To him belong infinite eloquence, great ingenuity, and power of persuasion, beyond that which I almost ever knew fall to any man’s share, and a power of language greater than that which ever met my ear.
In his situation, it is not only permitted to him, but it is commendable in him, it is his duty to his client, to exert all those faculties, to comprehend every possible topic that by the utmost stretch of ingenuity can possibly be introduced into the most remote connection with this cause. I on the other hand, gentlemen, must disclaim those qualities which I ascribe to my learned friend: namely that ingenuity, that eloquence, and that power of words. But, if they did belong to me, we stand contrasted also in this circumstance: that I durst not in my present situation use them, whatever little effort I might make to that effect in a private cause [by] … acting the part simply of an advocate. Yet, all that I must abandon, by recollecting the situation in which I stand, which is not that simply of an advocate.
Gentlemen, however unworthily, … I stand in the situation of … the first officer of his Lordship’s Court. Therefore, the utmost plain dealing, the plainest common sense, and clearest argument that I can use … with the Court and Jury, are the duties incumbent upon me.
In that spirit, therefore, gentlemen, you will not expect from me the discharge of my duty, in any other way than by the most temperate observation, and by the most correct and the fairest reasoning in my power.
Defence: Thomas Erskine (1750-1832)
Erskine was the youngest son of an impoverished Scottish Earl. Lack of funds meant Thomas was enrolled in the navy at 14, and later in the Army. He sold his commission to study law, enrolled at Lincoln’s Inn in 1775 and was called to the bar in 1778. Success in court followed and he became famous for his powerful advocacy. He was elected an MP for the Whigs in 1783, and appointed Lord Chancellor 1806-07. His Whig political beliefs in liberty, individual rights, freedom of the press and trial by jury shaped his speeches in trials for Treason and Seditious libel. Stockdale’s trial was awkward for Erskine because it had been brought by his party leader, Charles James Fox. But in his opening speech he argued that political principles never influence a lawyer’s professional duties or impacted on the administration of justice.
Erskine’s speech combined very emotive, powerful rhetoric with effective logical arguments. Stockdale published and profited from a pamphlet of the Whole Trial; newspapers published many accounts. A later review of an edited collection of Erskine’s speeches claimed it was:
“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.” The Edinburgh Review (1810)
Extracts from the Speech of Thomas Erskine In Defence of John Stockdale in 1789
[ 31] [Not included in King’s Bench digital recreation, but see webpage for explanation of how Erskine stresses the honour and profession of the English bar as well as his own credibility as a lawyer (known as Ethos) to get his audience to trust him.]
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 defence and justification.
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 honour of the English Bar, that the world should know such things happen to all of us daily, […] and that the defendant, without any sort of 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 characterise other places, … [since?] the Councils of the highest departments of the state may occasionally be 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 or our professional duties.
…..
[ 86 – 87 ] [anti British Imperial conquest and rule]
It may and must be true, that Mr. Hastings has repeatedly offended against the rights and privileges of Asiatic government, if he was the faithful deputy of a power which could not maintain itself for an hour without trampling upon both. He may and must have offended against the laws of God 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. He may and must have preserved that unjust dominion over a timorous and abject nation, by a terrifying, overbearing, insulting superiority, if he was the faithful administrator of your government; which, having no root in consent or affection, no foundation in similarity of interests, nor support from any one principle which cements men together in society, could only be upheld by alternate stratagem and force. The unhappy people of India, feeble and effeminate as they are from the softness of their climate, and subdued and broken as they have been by the knavery and strength of civilisation, still occasionally start up in all the vigour and intelligence of insulted nature. To be governed at all, they must be governed with a rod of iron; and our Empire in the East would over and over again have been lost to Great Britain if civil skill and military prowess had not united their efforts, to support an authority which heaven never gave, by means which it can never sanction.
——
[ 90 ] [addressing jury on libel law and freedom of the press]
You will be told, that the matters which I have been justifying as legal and even meritorious, have therefore not been made the subject of complaint. … Whatever intrinsic merits parts of the book may be supposed or even admitted to possess, such merit can afford no justification to the selected passages, some of which, even with the context, carry the meaning charged by the [indictment], and which are indecent animadversions on authority.
Gentlemen, to this I would answer … that, if you are firmly persuaded of the singleness and purity of the author’s intentions, you are not bound to subject him to infamy because, in the zealous career of a just and animated composition, he happens to have tripped with his pen into an intemperate expression in one or two instances of a long work. If this severe duty were binding on your consciences, the liberty of the press would be an empty sound, and no man could venture to write on any subject, however pure his purpose, without an attorney at one elbow, and a counsel at the other.
From minds thus subdued by the terrors of punishment, there could issue no works of genius to expand he empire of human reason, nor any masterly compositions on the general nature of government; by the help of which the great commonwealths of mankind have founded their establishments; much less any of those useful applications of them …, by which our own constitution, by the exertion of patriot citizens, has been brought back to its standard.
Under such terrors, all the great lights of science and civilisation must be extinguished: for men cannot communicate their free thoughts to one another wit a lash held over their heads.
————————-
[Very famous ‘Indian Chief speech’ p. 87; but not included in King’s Bench recreation. Here Erskine uses the figure an Indian chief, to create a character of a ‘noble savage’ – illiterate, but nonetheless more eloquent in his criticism of unjust British rule. ]
Gentlemen, I think I can observe that you are touched with this way of considering the subject; and I can account for it. I have not been considering through the cold medium of books, but have been speaking of man and his nature, and of human dominion from what I have seen of the myself amongst reluctant nations submitting to our authority. I know what they feel, and how such feelings can alone be repressed. I have heard them in my youth from a naked savage, in the indignant character of a prince surrounded by his subjects, addressing the Governor of a British colony, holding a bundle of sticks in his hand, as the notes of his unlettered eloquence.
“Who is it,” said the jealous ruler over the desert encroached upon by the restless foot of English adventure. “Who is it that causes this river to rise in the high mountains, and to empty itself into the ocean? Who is it that causes to blow the loud winds of winter, and that calms them again in summer? Who is it that rears up the shade of these lofty forests, and blasts them with the quick lightening at his pleasure? The same being who gave to you a country on the other side of the waters and, gave ours to us; and, by this title we will defend it;” said the warrior throwing down his tomahawk upon the ground, and raising the war sound of his nation. These are the feelings of subjugated man all round the globe; and depend upon it, nothing but fear will control where it is in vain to look for affection.
END
Judge: Lord Chief Justice, Lord Kenyon (1732-1802)
Lloyd Kenyon was the younger son of a Cheshire gentlemen and JP and was initially articled to an Attorney (like William Garrow), rather than following the more elite path of public school and university study. He was admitted to Middle Temple in 1750 and, like many students, he learned law partly by listening to cases in Westminster Hall courts. Called to the bar in 1756, he became an MP in 1780. He was appointed Attorney General in 1782 and Lord Chief Justice in 1788. Kenyon admirer of Erskine’ advocacy throughout his career and they shared strong religious convictions and moral principles. Kenyon was politically and legally a conservative, and prone to delivering short judgements based primarily on technical points. He was an expert in the letter of the law and presided over several important state trials for seditious libel, in most of which he supported the government’s view of seditious libel law.
ln this trial, Kenyon was concerned about criticism of the House of Commons but directed the jury to focus only on two issues: whether Stockdale had published the pamphlet, which he had; and whether the Attorney General’s innuendos, concerning his interpretation of its content proved seditious libel. Most importantly, Kenyon supported Erskine’s argument that the jury must consider the whole book, not just the passages selected by Macdonald.
Extracts from Chief Justice Lord Kenyon’s Summing Up in the Trial of John Stockdale (1789)
[ 112 ]
Gentlemen of the Jury,
I do not feel that I am called upon to discuss the nature of this libel, or to state to you what the merit of the composition is, or what the merit of the argument is, but merely to state what the questions are, to which you are to apply your judgement, and the evidence given in support of this information.
—–
[114]
In applying the innuendoes, I accede entirely to what was laid down 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 enquiry to those detached passages which the Attorney General has selected as offensive matter, [that are the] subject of prosecution.
But let me on the other side warn you, that thought there may be much good writing, good argument, morality and humanity in many parts of it, yet if there are offensive passages, the good part will not sanctify the bad part.
[…] I ought also to tell you, that in order to see what is the sense, to be fairly imputed to those passages that are culled out as the offensive passages, you have a right to look at all the context. You have a right to look at the whole book; and if you find it has been garbled, and that the passages selected by the Attorney General do not bear the sense imputed to them, the man has a right to be acquitted; and God forbid he should be convicted.
The Verdict
The jury retired for two hours before returning a verdict of Not Guilty.
The outcome contributed to the success of the Whig parliamentary campaign to change the law regarding the rights of juries to decide both fact and law, which was later guaranteed by the Libel Act (1792). The number of Political libel trials in the court of King’s Bench at Westminster Hall, however, increased between 1789-1810. Erskine’s fame as a forensic orator grew in Britain and America where copies and edited collections of his speeches were sold and held in University Law Libraries. Parts of his speech in Stockdale’s trial were still being reprinted in books on Advocacy skills for law students in 2010.