SPEECH FOR THE DEFENDANT, IN THE PROSECUTION OF THE QUEEN v. MOXON, FOR THE PUBLICATION OF SHELLEY'S WORKS. DELIVERED IN THE COURT OF QUEEN'S BENCH, JUNE 23, 1841. PREFACE. In consenting to revise and publish the following Speech, I trust the circumstances attend ant on the trial in which it was delivered will be found to justify an exception to the usual abstinence of Counsel from interfering with the publication of speeches delivered at the bar. The peculiarity of the occasion-the prosecution of an eminent publisher of unblemished character at the instance of a person who had been himself convicted of blasphemous libel, on a similar charge-and the nature of the question which that prosecution involved, between Literature and the Law of Libel-may render the attempt of the defendant's advocate, to defeat the former and to solve the latter, worthy of more consideration than it could command either by its power or its success. Observing that the case has been unavoidably deprived, by the urgency of political topics and electioneering details, of the notice it would have received from the press at a calmer season; and being anxious that the references necessarily made to matters of solemn interest and of delicate relation should not be subject to the misconception attendant on any imperfect reports, I have thought it right to take on myself the responsibility of presenting to the public, as correctly as I can, the substance of that which I addressed to the jury. The necessary brevity of the reports of the trial, which has partly induced this publication of the speech for the defendant, also renders it proper to give a short account of the circumstances which preceded it. In the month of April, 1840, an indictment was preferred against Mr. Henry Hetherington, a bookseller in the Strand, at the instance of the Attorney-general, for selling certain numbers of a work entitled "Haslam's Letters to the Clergy of all Denominations," sold each at the price of one penny, and charging them as libels on the Old Testament. The cause came on to be tried before Lord Denman, in the Court of Queen's Bench, on 8th December, 1840, when the defence was conducted, with great propriety and talent, by the defendant himself, who rested it mainly on a claim of unqualified right to publish all matters of opinion, and on the argument, that the work charged as blasphemous came fairly within the operation of that principle. Mr. Hetherington was, however, convicted, and ultimately received judgment, under which he underwent an imprisonment of four months in the Queen's Bench prison. While this prosecution was pending, Mr. Hetherington appears to have adopted the design of becoming in his turn the Prosecutor of several booksellers for the sale of the complete edition of Shelley's Works, which had been recently issued by Mr. Moxon in a form similar to that in which he had published the collected works of the greatest English poets. He accordingly commissioned a person named Holt, then a compositor in his employ, to apply for the work at the shops of several persons eminent in the trade, and thus succeeded in obtaining copies of Mr. Moxon, of Mr. Fraser, and of Mr. Otley, or rather of the persons in their employ. On the sales thus obtained, indictments were preferred at the Central Criminal Court against the several vendors, which, with a similar indictment against Mr. Marshall, doubtless preferred by the same Prosecutor, were removed by certiorari at the instance of the defendants, and set down for trial by special juries. Mr. Moxon felt that, as the original publisher of the edition, he ought to bear the first attack; and therefore, although some advantage might have been gained by placing the case of a mere vendor before his own, he declined to use it, and entered his own cause the first of the series which were to be tried in Middlesex. These causes were called on for trial at the sittings after Hilary term; but the prosecutor was not prepared with the Attorney-general's warrant to pray a tales to supply the default of the special jury, and as the counsel for the defendant did not think it right to expedite his proceedings by doing so themselves, the cause went over, and ultimately came on for trial on Wednesday 23d June, when nine special jurymen appeared, and the panel was completed by a tales prayed for the prosecution. The indictment against Mr. Moxon, which the others exactly resembled, charged that he, being an evil-disposed and wicked person, disregarding the laws and religion of this realm, and wickedly and profanely devising and intending to bring the Holy Scriptures and the Christian religion into disbelief and contempt, unlawfully and wickedly, did falsely and maliciously publish a scandalous, impious, profane, and malicious libel of and concerning the Christian religion, and of and concerning the Holy Scriptures, and of and concerning Almighty God," in which were contained certain passages charged as blasphemous and profane. It then set forth a passage in blank verse, beginning, "They have three words: well tyrants know their use well pay them for the loan, with usury torn from a bleeding world!—God, Hell, and Heaven;" and after adding an innuendo, “meaning thereby that God, Hell, and Heaven, were merely words," proceeded to recite a few more lines, applying very coarse and irreverent, but not very intelligible comments to each of those words. It then charged, that the libel contained, in other parts, tw other passages, also in verse, and to which the same character may be justly applied. It lastly set forth a passage of prose from the notes, the object of which seems to be to assert, that the belief in the plurality of worlds is inconsistent with "religious systems," and with "deifying the principle of the universe;" and which, after speaking in very disrespectful terms of the statements of Christian history as "irreconcilable with the knowledge of the stars," concludes with the strange inconsistency pointed out by Lord Denman in his charge, (if the author's intention was to deny the being of God,) "The work of His fingers have borne witness against them." The case for the prosecution was opened by Mr. Thomas with a judicious abstinence from any remark on the motives or object of the Prosecutor, and without informing the jury whe the Prosecutor was. He stated several cases, and dicta to establish the general proposition that a work tending to bring religion into contempt and odium is an offence against the com mon law, and, among others, that of Mr. Hetherington; read, besides the indicted passages several others of a similar character, all selected from the poem of "Queen Mab;" eloquently eulogized the genius of Shelley, and fairly admitted the respectability of the defendant; and concluded by expressing the satisfaction he should feel if the result of this trial should esta blish, that no publications on religion should be subject for prosecution in future. He ther called Thomas Holt, who proved the purchase of the volume for twelve shillings at Mr. Mox on's shop; and who also proved, on cross-examination, that he made the purchase and other: at the desire of Mr. Hetherington, whom he understood to be the Prosecutor in this and the succeeding causes. The success of such a prosecution, proceeding from such a quarter, gives rise to very seri ous considerations; for although, in determining sentences, Judges will be able to diminish the evil, by a just discrimination between the publication of the complete works of an author of established fame, for the use of the studious, and for deposit in libraries, and the dissemination of cheap irreligion, directed to no object but to unsettle the belief of the reader-the power of prosecuting to conviction every one who may sell, or give, or lend any work containing passages to which the indictable character may be applied, is a fearful engine of oppression. Should such prosecutions be multiplied, and juries should not feel justified in adopting some principle of distinction like that for which I have feebly endeavoured to contend, they must lead to some alteration in the law, or to some restriction of the right to set it in action. It will, I think, be matter of regret among many who desire to respect the Law, and to see it wisely applied, that the question should have arisen; but since it has been so painfully raised, it is difficult to avoid it; and if the following address should present any materials for its elucidation, it will not, although unsuccessful in its immediate object, have been delivered entirely in vain. T. N. T. Serjeant's Inn, 28th June, 1841. May it please your Lordship, Gentlemen of the Jury, SPEECH, Ir has sometimes been my lot to express, and much oftener to feel, a degree of anxiety in addressing juries, which has painfully diminished the little power which I can ever command in representing the interests committed to my charge; but never has that feeling been so excited, and so justified, by any occasion as that on which it is my duty to address you. I am called from the Court in which I usually practise, to defend from the odious charge of blasphemy one with whom I have been acquainted for many years-one whom I have always believed incapable of wilful of fence towards God or towards man-one who was introduced to me in early and happy days, by the dearest of my friends who are gone before me by Charles Lamb-to whom the wife It has not been thought necessary to the argument to set out these passages; as it proceeds on the admission, that, separately considered, they are very offensive both to piety and good taste. of the defendant was as an adopted daughter, and who, dying, committed the interests which he left her in the products of his life of kindness to my charge. Would to God that the spirit which pervaded his being could decide the fate of this strange prosecution-I should only have to pronounce his name and to receive your verdict. Apart from these personal considerations, there is something in the nature of the charge itself, however unjustly applied to the party accused, which must depress a Christian advo cate addressing a Christian jury. On all other cases of accusation, he would implore the jurors, sworn to decide between the accuser and the defendant, to lay aside every prepossession-to forget every rumour-to strip themselves of every prejudice-to suppress every affection, which could prevent the exercise of a free and unclouded judgment; and, having made this appeal, or having forborne to make it as needless, he would regard the jury-box as a sacred spot, raised above all encircling under which he has suffered, odious by sanctioning the odious application which he contemplates; and that at his bidding you should scatter through the loftiest and serenest paths of literature, distress, and doubt, and dismay, awarding him that success which, "if not victory, is yet revenge." influences, to which he might address the-that you should aid him to render the law arguments of justice and mercy with the assurance of obtaining a decision only divested of the certainty of unerring truth by the imperfection of human evidence and of human reason. But in this case you cannot grantI cannot ask-the cold impartiality which on all other charges may be sought and expected from English juries. Sworn on the Gospel to try a charge of wickedly and profanely attempting to bring that Gospel, and the holy religion which it reveals, into disbelief and contempt, you are reminded even by that oath -if it were possible you could ever forget― of the deep, the solemn, the imperishable interest you have in those sacred things which the defendant is charged with assailing. The feelings which such a charge awakens are not like those political differences which it is delightful sometimes to forget or to trample on ;-or those local partialities which it is ennobling to forsake for a wider sphere of contemplation-or those hasty opinions which the daily press, in its vivid course, has scattered over our thoughts, and which we are proud sometimes to bring to the test of dispassionate reflection; or those worldly interests which, if they sway the honourable mind at all, incline it to take part against them;-but the emotions which this charge enkindles are intertwined with all that endears the Past and peoples the Future—with all that renders this life noble by enriching it with the hope of that which is to come. If the passages which have been read to you-torn asunder from the connection in which they stand-regarded without reference to the time, the object, the mode of their publication,—should array you at this moment almost as plaintiffs, personally wronged and insulted, against their publisher, I must not complain; for I shall not be provoked, even by the peculiarity of this charge, to defend Mr. Moxon by a suggestion which can violate the associations which are intertwined with all that is dear to you. He would rather submit to the utmost consequences which the selfish recklessness of this prosecution could entail, if you should sanction, and the court hereafter should support, its aim; he would rather be severed from the family whom he cherishes, and from the society of the good and the great in our literature, which he is privileged to share; than he would obtain immunity by a recourse to those weapons which the prosecutor would fain present to his choice. Neither will I, notwithstanding the anticipation of my learned friend, ask you to palter with your consciences, and, because you may doubt or deny the policy of the law which is thus set in action, invite you to do other than administer justice according to your oath and your duty. I take my stand on Christian ground; I base my defence on the recognised law; and if I do not show you that the Christianity, which the prosecutor most needlessly presumes to vindicate, and the law which with unhallowed hands he is striving to pervert, justify your verdict of acquittal, I am content that you should become the instruments of his attempt to retort the penalties of his own sentence on one who never wronged him even in thought The charge which Mr. Moxon is called upon to answer is, that with a wicked intention to bring the Holy Scriptures and the Christian religion into contempt, he published the volume which is in evidence before you, and which is characterized as a libel on that religion, on the Scriptures, and on Almighty God. I speak advisedly when I say the whole volume is thus indicted; it must be so considered in point of justice-it is so charged in point of form. The indictment, indeed, sets forth four passages, torn violently asunder from their context; yet it does not charge them as separate libels, but as portions of one "impious, blasphemous, profane and malicious libel,” in different parts of which the selected parts are found. Now these are not all to be found even in one poem, for the first three being in poetry, the last is taken from a mass of prose appended to the first poem of "Queen Mab," and intervening between it and a poem entitled "Alastor," which is the next in the series. And if this were not the form of the record, can it be doubted that, in point of justice, the scope, the object, the tendency of the entire publication, must be determined before you can decide on the guilt or innocence of the party who has thus published the passages charged as blasphemous? Supposing some question of law should be raised on the sufficiency of the indictment in which they are inserted, and they should be copied necessarily for the elucidation of the argument in one of the reports in which the decisions of this court are perpetuated; would the reporter, the law-bookseller, the officer of the court, who should hand the volume to a barrister, be guilty of blasphemy? Or if they should appear in some correct report, partaking of a more popular form, and that report should be indicted as containing them, what form would the question of the guilt or innocence of the publisher assume? Would it not be, whether he had been honestly anxious to lay before the world the history of an unexampled attempt to degrade and destroy the law, under pretence of asserting it; or whether he was studious to disseminate some frag ments of strange and fearful audacity, and had professed to report an extraordinary trial, only as a pretext to cover the popular dissemination of blasphemy? And would not the form, the commentary, the occasion, the price, all be material in deciding whether the wor were laudable or guilty-whether, as a wnole, it tended to good or to evil? These passages, like details and pictures in works of anatomy and surgery, are either innocent or criminal, according to the accompaniments which surround them, and the class to whom they are addressed. If really intended for the eye of the scientific student, they are most innocent; but if so published as to manifest another in tention, they will not be protected from legal sensure by the flimsy guise of science. By a | pressions, and the imperfect victories of such similar test let this publication be judged! If a spirit, because the picture has some pasits whole tenor lead you to believe that the sages of frightful gloom. I am far from condissemination of irreligious feelings was its tending that every thing which genius has in object-nay, that such will be its natural con- rashness or in wantonness produced, becomes, sequence-let Mr. Hetherington have his tri- when once committed to the press, the inalienumph; but if you believe that these words, able property of mankind. Such a principle, however offensive when abstractedly taken, indeed, seems to be involved in an argument form part of a great intellectual and moral phe- which was recently sanctioned by the authonomenon, which may be disclosed to the class rity of a Cabinet Minister more distinguished of readers who alone will purchase the volume, even as a profound thinker and an eloquent not only without injury, but to their instruc- and accomplished critic, than by political tion, you will joyfully find Mr. Moxon as free station. When I last urged the claim of the from blasphemy in contemplation of the strict- descendants of men of genius to be the guarest law, as I know he is in purpose and in spirit. dians of their fame, as well as the recipients The passages selected as specimens of the of its attendant rewards, I was met with denial indicted libel are found in a complete edition on the plea that, from some fastidiousness of of the works of Percy Bysshe Shelley-a work taste, or some over-niceness of moral apprecomprising more than twenty thousand lines hension, the hereditary representatives of a of verse, and occupy something less than the great writer may cover his works with artifithree-hundredth part of the volume which con- cial oblivion. I have asked, whether, if a poet tains them. The book presents the entire in- has written "some line which, dying, he may tellectual history-true and faithful, because wish to blot," he shall not be allowed by the traced in the series of those works which were insatiate public to blot it dying; and I have its events-of one of the most extraordinary asked in vain! Fielding and Richardson have persons ever gifted and doomed to illustrate been quoted, as writers whose works, multithe nobleness, the grandeur, the imperfections, plying as they will through all time the sources and the progress of human genius-whom it of innocent enjoyment, might have been suppleased God to take from this world while the pressed by some too dainty moralist. Now, process harmonizing his stupendous powers admitting that the tendency of Fielding's was yet incomplete, but not before it had indicat- works, taken as a whole, is as invigorating as ed its beneficent workings. It is edited by his it is delightful, I fear there are chapters which, widow, a lady endowed with great and original if taken from their connection-apart from the talent, who, as she states in her preface, hast-healthful atmosphere in which their impurities ens "to fulfil an important duty, that of giving the productions of a sublime genius to the world, with all the correctness possible, and of, at the same time, detailing the history of these productions as they sprang, warm and living, from his heart and brain." And, accordingly, the poems are all connected together by statements as to the circumstances under which they were written, and the feelings which inspired them. The "alterations (says Mrs. Shelley) his opinions underwent ought to be recorded, for they form his history." The first of these works is a poem, written at the age of eighteen, entitled "Queen Mab;" a composition marked with nothing to attract the casual reader-irregular in versification, wild, disjointed, visionary; often difficult to be understood even by a painful student of poetry, and sometimes wholly unintelligible even to him; but containing as much to wonder at, to ponder on, to weep over, as any half-formed work of genius which ever emanated from the vigour and the rashness of youth. This poem, which I shall bring before you presently, is followed by the marvellous series of works of which "Alastor," "The Revolt of Islam," the "Prometheus Unbound," and "The Cenci" form the principal, exhibiting a continuous riumph of mellowing and consecrating influences, down to the moment when sudden death shrouded the poet's career from the observation of mortals. Now the question is, whether it is blasphemy to present to the world-say rather to the calm, the laborious, the patient searcher after wisdom and beauty, who alone will peruse this volume-the awful mistakes, the mighty struggles, the strange de evaporate and die-and printed at some penny cost for dissemination among the young, would justly incur the censure of that law which has too long withheld its visitations from those who have sought a detestable profit by spreading cheap corruption through the land. It may be true, as Dr. Johnson ruled, that Richardson "had taught the passions to move at the command of virtue ;" and, as was recently asserted, that Mrs. Hannah More "first learned from his writings those principles of piety by which her life was guided;" but (to leave out of consideration the Adventures of Pamela, which must sometimes have put Mrs. Hannah More to the blush) I fear that selections might be made, even from the greatest of all prose romances, Clarissa Harlowe, which the Society for the Suppression of Vice would scarcely endure. Do I wish them therefore suppressed? No! Because in these massive volumes the antidote is found with the bane; because the effect of Lovelace's daring pleas for vice, and of pictures yet more vicious, is neutralized by the scenes of passion and suffering which surround them; because the unsullied image of heroic purity and beautiful endurance rises fairer from amidst the encircling pollutions, and conquers every feeling but those of admiration and pity. Yet if detached scenes were, like these passages of Shelley, selected for the prosecution, how could they be defended—but, like them, by reference to the spirit, and intent, and tendency of the entire work from which they were torn? And yet the defence would be less conclusive than that which I now offer; as descriptions which appeal to passion are far less capable of correction by accompanying moralities, than the cold specu- | pity for their weakness. Not only are they lations of a wild infidelity by the considera- incapable of awakening any chords of evil in tions which the history of their author's mind the soul, but they are ineffectual even to pre supplies. In the wise and just dispensations sent to it an intelligible heresy. "We underof Providence great powers are often found stand a fury in the words-but not the words." associated with weakness or with sorrow; but What do they import? Is it atheism ?—or is when these are not blended with the intellec-it mad defiance of a God by one who believes tual greatness they countervail, but merely and hates, yet does not tremble? To the first affect the personal fortunes of their possessors passage, commencing, "They have three words" -as when a sanguine temperament leads into "God, Hell, and Heaven!"-the prosecutor vicious excesses-there is no more propriety does not venture to affix any meaning at all, in unveiling the truth, because it is truth, than but tears them from their context, and alleges in exhibiting the details of some physical that they are part of a libel on the Holy Scripdisease. But when the greatness of the poet's tures, though there is no reference in them to intellect contains within itself the elements of the Bible, or to any Scripture doctrine; nor tumult and disorder-when the appreciation does the indictment supply any definite meanof the genius, in all its divine relations and ing or reference to explain or to answer. То all its human lapses, depends on a view of the the second paragraphentire picture, must it be withheld? It is not a sinful Elysium, full of lascivious blandishments, but a heaving chaos of mighty elements, that the publisher of the early productions of Shelley unveils. In such a case, the more awful the alienation, the more pregnant with good will be the lesson. Shall this life, fevered with beauty, restless with inspiration, be hidden; or, wanting its first blind but gigantic efforts, be falsely, because partially, revealed? If to trace back the stream of genius, from its greatest and most lucid earthly breadth to its remotest fountain, is one of the most interesting and instructive objects of philosophic research, shall we-when we have followed that of Shelley through its majestic windings, beneath the solemn glooms of "The Cenci," through the glory-tinged expanses of "The Revolt of Islam," amidst the dream-like haziness of the "Prometheus"-be forbidden to ascend with painful steps its narrowing course to its furthest spring, because black rocks may encircle the spot whence it rushes into day, and demon shapes-frightful but powerless for harm—may gleam and frown on us beside it? Is there a God ?—ay, an Almighty God, the indictment does present a most extended Having thus endeavoured to present to you the foundation of my defence-that the volume in which these passages appear is in its substance historical, and that, so far from being adopted by the compiler, they are presented as necessary to historical truth-I will consider the passages themselves, and the poem in which they appear, with a view to inquire whether they are of a nature capable of being fairly regarded as innoxious in their connection with Shelley's life. Admitting, as I do, that if published with an aim to commend them to the reader as the breathings or suggestions of truth-nay, that if recklessly published in such a manner as to present them to the reader for approval, they deserve all the indignation which can be lavished on them; I cannot thus propelled, with any other feeling than think, even then, they would have power to those of wonder and pity? Or do these words injure. They appeal to no passion-they per- merely import that the name and attributes of vert no affection-they find nothing in human the Supreme Being have been abused and pernature, frail as it always is, guilty as it some-verted by "the oppressors of mankind," for times becomes-to work on. Contemplated apart from the intellectual history of the extraordinary being who produced them, and from which they can never be severed by any reader of this book, they would excite no feelings but those of wonder at their audacity, and their own purposes, to the misery of the oppressed? Or do they vibrate and oscillate between all these meanings, so as to leave the mind in a state of perplexity, balancing and destroying each other? In either case, they are powerless for evil. Unlike that seductive |