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 attendant 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, two 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 who 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 common 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 establish, that no publications on religion should be subject for prosecution in future. He then called Thomas Holt, who proved the purchase of the volume for twelve shillings at Mr. Moxon's shop; and who also proved, on cross-examination, that he made the purchase and others 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 serious 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 feel ing 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 prepos session-to forget every rumour-to strip them. selves 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 that you should aid him to render the law 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 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 The charge which Mr. Moxon is called upon try a charge of wickedly and profanely at- to answer is, that with a wicked intention to tempting to bring that Gospel, and the holy bring the Holy Scriptures and the Christian religion which it reveals, into disbelief and religion into contempt, he published the volume contempt, you are reminded even by that oath which is in evidence before you, and which is -if it were possible you could ever forget- characterized as a libel on that religion, on of the deep, the solemn, the imperishable in- the Scriptures, and on Almighty God. I speak terest you have in those sacred things which advisedly when I say the whole volume is thus inthe defendant is charged with assailing. The dicted; it must be so considered in point of feelings which such a charge awakens are justice-it is so charged in point of form. The not like those political differences which it is indictment, indeed, sets forth four passages, delightful sometimes to forget or to trample torn violently asunder from their context; yet on; or those local partialities which it is en- it does not charge them as separate libels, but nobling to forsake for a wider sphere of con- as portions of one "impious, blasphemous, templation or those hasty opinions which the profane and malicious libel,” in different parts daily press, in its vivid course, has scattered of which the selected parts are found. Now over our thoughts, and which we are proud these are not all to be found even in one poem, sometimes to bring to the test of dispassionate for the first three being in poetry, the last is reflection; or those worldly interests which, taken from a mass of prose appended to the if they sway the honourable mind at all, in- first poem of "Queen Mab," and intervening cline it to take part against them;-but the between it and a poem entitled "Alastor," emotions which this charge enkindles are in- which is the next in the series. And if this tertwined with all that endears the Past and were not the form of the record, can it be peoples the Future-with all that renders this doubted that, in point of justice, the scope, the life noble by enriching it with the hope of that object, the tendency of the entire publication, which is to come. If the passages which must be determined before you can decide on have been read to you-torn asunder from the the guilt or innocence of the party who has connection in which they stand-regarded with- thus published the passages charged as blasout reference to the time, the object, the mode of phemous? Supposing some question of law their publication,-should array you at this mo- should be raised on the sufficiency of the inment almost as plaintiffs, personally wronged dictment in which they are inserted, and they and insulted, against their publisher, I must should be copied necessarily for the elucidation not complain; for I shall not be provoked, of the argument in one of the reports in which even by the peculiarity of this charge, to de- the decisions of this court are perpetuated; fend Mr. Moxon by a suggestion which can would the reporter, the law-bookseller, the violate the associations which are intertwined officer of the court, who should hand the with all that is dear to you. He would rather volume to a barrister, be guilty of blasphemy? submit to the utmost consequences which the Or if they should appear in some correct report, selfish recklessness of this prosecution could partaking of a more popular form, and that reentail, if you should sanction, and the court port should be indicted as containing them, hereafter should support, its aim; he would what form would the question of the guilt or inrather be severed from the family whom he nocence of the publisher assume? Would it cherishes, and from the society of the good not be, whether he had been honestly anxious and the great in our literature, which he is to lay before the world the history of an unprivileged to share; than he would obtain im- exampled attempt to degrade and destroy the munity by a recourse to those weapons which law, under pretence of asserting it; or whether the prosecutor would fain present to his choice. he was studious to disseminate some frag Neither will I, notwithstanding the anticipation ments of strange and fearful audacity, and of my learned friend, ask you to palter with had professed to report an extraordinary trial, your consciences, and, because you may doubt only as a pretext to cover the popular dissemior deny the policy of the law which is thus nation of blasphemy? And would not the set in action, invite you to do other than ad- form, the commentary, the occasion, the price, minister justice according to your oath and all be material in deciding whether the work your duty. I take my stand on Christian were laudable or guilty-whether, as a wnole, ground; I base my defence on the recognised it tended to good or to evil? These passages, law; and if I do not show you that the Christian-like details and pictures in works of anatomy ity, 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 and surgery, are either innocent or criminal, according to the accompaniments which sur round 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 intention, they will not be protected from legal pressions, and the imperfect victories of such a spirit, because the picture has some passages of frightful gloom. I am far from contending that every thing which genius has in rashness or in wantonness produced, becomes, when once committed to the press, the inalienable property of mankind. Such a principle, indeed, seems to be involved in an argument which was recently sanctioned by the authority of a Cabinet Minister more distinguished even as a profound thinker and an eloquent and accomplished critic, than by political station. When I last urged the claim of the descendants of men of genius to be the guardians of their fame, as well as the recipients of its attendant rewards, I was met with denial on the plea that, from some fastidiousness of taste, or some over-niceness of moral apprehension, the hereditary representatives of a great writer may cover his works with artificial oblivion. I have asked, whether, if a poet has written "some line which, dying, he may wish to blot," he shall not be allowed by the insatiate public to blot it dying; and I have asked in vain! Fielding and Richardson have been quoted, as writers whose works, multiplying as they will through all time the sources of innocent enjoyment, might have been suppressed by some too dainty moralist. Now, admitting that the tendency of Fielding's works, taken as a whole, is as invigorating as it is delightful, I fear there are chapters which, if taken from their connection-apart from the censure by the flimsy guise of science. By a similar test let this publication be judged! If its whole tenor lead you to believe that the dissemination of irreligious feelings was its object-nay, that such will be its natural consequence-let Mr. Hetherington have his triumph; but if you believe that these words, however offensive when abstractedly taken, form part of a great intellectual and moral phenomenon, which may be disclosed to the class of readers who alone will purchase the volume, not only without injury, but to their instruction, you will joyfully find Mr. Moxon as free from blasphemy in contemplation of the strict est law, as I know he is in purpose and in spirit. The passages selected as specimens of the indicted libel are found in a complete edition of the works of Percy Bysshe Shelley-a work comprising more than twenty thousand lines of verse, and occupy something less than the three-hundredth part of the volume which contains them. The book presents the entire intellectual history-true and faithful, because traced in the series of those works which were its events of one of the most extraordinary persons ever gifted and doomed to illustrate the nobleness, the grandeur, the imperfections, and the progress of human genius-whom it pleased God to take from this world while the process harmonizing his stupendous powers was yet incomplete, but not before it had indicated its beneficent workings. It is edited by his widow, a lady endowed with great and original 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 in spired 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 triumph 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 the soul, but they are ineffectual even to present to it an intelligible heresy. "We under stand a fury in the words-but not the words." What do they import? Is it atheism?-or is it mad defiance of a God by one who believes and hates, yet does not tremble? To the first passage, commencing, "They have three words" Is there a God?-ay, an Almighty God, And vengeful as almighty! Once his voice Το 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 supplies. In the wise and just dispensations of Providence great powers are often found associated with weakness or with sorrow; but when these are not blended with the intellectual greatness they countervail, but merely affect the personal fortunes of their possessors -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 anding or reference to explain or to answer. 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 phi-dauntless and good for daring to hurl defiance at losophic 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? Was heard on earth: earth shudder'd at the sound the indictment does present a most extended the throne of Almighty God." This is, indeed, a flight of the poetry of pleading-a construction which you must find as the undoubted sense of the passage-before you can sustain this part of the accusation. But again, I ask, is there any determinate meaning in these "wild and whirling words?" Are they more than atoms of chaotic thought not yet subsided into harmony-over which the Spirit of Love has not yet brooded, so as to make them pregnant with life, and beauty, and joy? But suppose, for a moment, they nakedly assert atheismHaving thus endeavoured to present to you never was there an error which, thus incithe foundation of my defence-that the volume dentally exhibited, had less power to charm. in which these passages appear is in its sub- How far it is possible that such a miserable stance historical, and that, so far from being dogma, dexterously insinuated into a perplexed adopted by the compiler, they are presented as understanding or a corrupted heart, may find necessary to historical truth-I will consider reception, I will not venture to speculate, but the passages themselves, and the poem in I venture to affirm that thus nakedly presented, which they appear, with a view to inquire as the dream of a wild fancy, it can at most whether they are of a nature capable of being only glare for a moment, a bloodless phantom, fairly regarded as innoxious in their connection and pass into kindred nothing! Or do the with Shelley's life. Admitting, as I do, that if words rather import a belief in a God-the published with an aim to commend them to ruling Power of the universe-yet an insane the reader as the breathings or suggestions of hatred of his attributes? Is it possible to contruth-nay, that if recklessly published in template the creature of a day standing up such a manner as to present them to the reader amidst countless ages-like a shadowy film for approval, they deserve all the indignation among the confused grandeur of the universe 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 their own purposes, to the misery of the opapart 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 pressed? 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 |