effected when Hetherington escaped with six weeks in a debtor's prison. Linton adds that Moxon, after being found guilty, was never called up for judgment nor were the other indictments proceeded with, because personal animosity or revenge were beside the question. "We had gained enough. Prosecutions for blasphemy were estopped. I think there has since been only one, with foolish wilfulness provoked, for the sake of a spurious notoriety." 2 The words of the prosecuting attorney on introducing the case will be found to support Linton's statement of the objects of the action against Moxon. From these facts it will easily be seen that Mr. Ingpen was fundamentally mistaken in assuming 25 that the case was a bona fide prosecution by Government.

Aside from the purpose of benefiting Hetherington by forcing the government to apply the law of libel to Moxon, it is plain that the initiators of the prosecution designed the trial to establish the principle that no publications on religion were libellous. Indeed, this hope was plainly stated by the prosecution in opening the trial. The trial therefore becomes significant as a part of the radical effort to abolish prosecutions for blasphemy. One popular effect is to be seen in the appearance in Tait's Edinburgh Magazine 26 of a poem, On the Recent Prosecution of the Publisher of Shelley's Poems, which denounces the prosecution on the mistaken assumption that it is another attempt on the part of the "silkgowned and surpliced hogs" to muzzle truth. Moreover the Monthly Magazine in a review of Talfourd's pamphlet 27 commented unfavorably on the present state of the law-from the point of view, however, of Talfourd rather than of Hetherington.

The opening gun of the attack had already been fired by Hetherington in his own trial, in which he strongly protested the impolicy of such trials, attacked the law of libel on extra-legal grounds of justice and humanity, and quoted copiously from the

removal to another court, the non-appearance of some of the special jurors and the prosecution's inability to furnish a necessary warrant from the Attorney General, who at the very time was being criticized for his grossly unfair conduct in Hetherington's trial.

24 Op. cit., p. 52.

25 Op. cit., ii: 62.

26 November, 1841, Vol. 8, N. S., p. 727.

27 Vol. 2, N. S., 1841, pp. 545-552.

most respected authors in favor of freedom of opinion and expression. Less than three weeks after the verdict against him, Hetherington published a 32-page pamphlet giving an accurate account of the trial "with the whole of the Authorities cited in the Defence, at Full Length," and claiming that he was the victim of discrimination.28 He advised the government to take its stand "on this glorious principle-Perfect Freedom in the Formation and Publication of Opinion for Every Sect and Party." Several newspapers took up the defence-the Sun, the Morning Chronicle, and the Weekly Dispatch, in a series of letters by Publicola.

The effect of this agitation on Lord Denman is distinctly noticeable. In the prosecution of both Hetherington and Moxon he had been scrupulously fair and equal. In commenting on Hetherington's argument as to the impolicy of blasphemy trials he had said merely that such matters were not for the court to decide. It is significant therefore, to find him repeating this statement in summing up the Moxon trial and adding,

For myself I am of opinion that the best and most effectual method of acting in regard to such obnoxious doctrines is to refute them by argument and reasoning. . . . Such publications can be more effectually suppressed or neutralized by confuting the sentiments themselves than by prosecuting their authors.29

This was Hetherington's argument exactly. Coming from the bench practically as a hint to would-be prosecutors it testifies that Hetherington's campaign had already achieved some success.

Hetherington and his friends continued their campaign of publicity. When, six months after Moxon's conviction, Charles Southwell, editor of the Oracle of Reason, was tried for blasphemy in Bristol, a committee formed for his defense engaged a special reporter and published a full report of the trial.30 Hetherington was present at the trial and was the publisher of the report. The preface, signed by M. Ryall as secretary of the committee, states the hope of the committee to arouse the public against such prosecutions. By August 5 of the same year, when G. J. Holyoake was sentenced at Gloucester to six months' im

29 A Full Report of the Trial of Henry Hetherington, etc., London, 1840. 29 State Trials, New Series, IV, 722.

30 The Trial of Charles Southwell (Editor of the Oracle of Reason) for Blasphemy, etc., Bristol, Jan. 14, 1842.

prisonment for blasphemy (Adams having previously received a lighter sentence at the same assizes for selling Southwell's Oracle of Reason) the committee which had defended Southwell had become "The Anti-Persecution Union," with M. Ryall as secretary. Following Hetherington's tactics, the Anti-Persecution Union published an account of Holyoake's trial.31 An unsigned preface, similar to the preface to Southwell's Trial, pointed out the injustice of the treatment accorded Holyoake and quoted Publicola (who had been quoted in both the Hetherington and Southwell pamphlets) on the absurd composition of the juries for such trials. An Address of the Anti-Persecution Union, immediately following the preface, maintains in temperate language that the right of free opinion and utterance is essential to liberty, and refers to the cases of Southwell, Adams and Holyoake as necessitating an Anti-Persecution Union to defend the right to free publication of opinion and to help victims for conscience's sake. The authorities quoted by Holyoake in his defense are given in detail, as they had been in the cases of Hetherington and Southwell, and the editor points out once more that these defenses have been based on the most orthodox and respectable authorities. Holyoake later added to the campaign of publicity by himself publishing an account of the trial.32 Holyoake and his friends were able to command sufficient support to get a bill introduced and passed in Parliament by which all trials involving speculative opinions must be tried at assizes only, where the judge was supposed to be independent of local prejudices. Here we have a tangible achievement of the radical war against the law of libel. Moreover, the judge suggested to Holyoake a construction that might be put upon the indicted words which would enable him to instruct the jury for acquittal. Holyoake rejected the suggestion and it seems even from Holyoake's retrospective account 33 that Linton was right in saying that the trial would never have oc

31 The Trial of George Jacob Holyoake, on an Indictment for Blasphemy Before Mr. Justice Erskine and a Common Jury at Gloucester, August 5, 1842. From Notes Specially taken by Mr. Hunt, etc. London, Printed and Published for "The Anti-Persecution Union," by Thomas Paterson, 8 Holywell Street, Strand.

22 History of the Last Trial by Jury for Atheism in England, London,

33 Sixty Years of an Agitator's Life, I, 145-165.

curred but for Holyoake's own conduct in wilfully forcing an action.

The cases of Hetherington, Moxon, Southwell, and Holyoake, in less than three years, wrought a considerable change in the application of the law of libel. Starting on the offensive, in what was almost certainly an attempt to "railroad" a prominent radical, the government ended on the defensive, in a judge suggesting to a radical defendant an easy way by which conviction might be avoided. The radicals had found a way of showing the government that political prosecutions for religious offenses could be made so embarrassing to Government as to be no longer worth while. No longer were juries to be instructed, as they were in the early 19th century, that it was their duty as Christians to convict. Under the direct influence of these trials a judge had discountenanced such prosecutions from the bench, another judge had tried to avoid a conviction, and Parliament had removed cases of blasphemous libel from the jurisdiction of local magistrates. A campaign of publicity had produced a state of enlightenment under which the old misuse of the law as a whip for radicals had to be abandoned. Free speech, under English law, was made comparatively feasible-primarily for radicals, of course, but incidentally for literature.

It is true that the radicals did not secure the abolition of the law. Neither was Holyoake's trial, as both he and Linton supposed, "the last trial for atheism in England." Since Holyoake's trial there have been at least four prosecutions in England for blasphemous libel. In only one of these, however (that of Foote, Ramsay, and Kemp, in 1883) was there a conviction for blasphemous publication, and that only upon a second trial, after the jury had disagreed in the first trial. Moreover, when two of the same defendants were again tried in the same year for another alleged blasphemy, the jury again disagreed and the prosecution dropped the case on a direct hint from the judge that he would otherwise be compelled to throw it out of court.35

The law of blasphemous libel is still a part of English common law, but it has fallen into practical desuetude. It is a far cry from

34 For brief summaries of the cases see W. B. Odgers, Digest of the Law of Libel and Slander, 5th ed., London, 1911, pp. 482-484.

35 Law Times, N. S., xlviii: 733.

the law as applied since the trials herein related to the law which in 1819, with the direct encouragement of the Duke of Wellington, arraigned Richard Carlyle for Publishing Paine's Age of Reason and Palmer's Principles of Nature and sentenced him to three years in prison, fines aggregating £5500, and security of £1200 for good behavior during life-the defendant to remain in prison till the fines were paid and the security given. It is not here claimed that the activities of Hetherington and his friends were wholly responsible for bridging this distance. The distance is no doubt partly bridged by the growing liberalism of the times, the constant criticism of the law of libel by such liberal reviews as the Westminster Review, and the practice of the Chancery Court (to which Odgers apparently gives the whole credit) in legalizing bequests by Jews and Unitarians under common law. It is not too much to claim, however, that a large span in this bridge should be inscribed with the name of Henry Hetherington, who furnished the tactics and a large part of the leadership and publicity in the attack upon the law of libel to which this paper is mainly devoted. Percy Bysshe Shelley, who knew himself to be in danger of this same law and took surprising precautions against it, could hardly have been anything but pleased could he have known that he was to be used as an instrument for its mitigation. His pronouncement on that law (almost identical with Hetherington's) in the Letter to Lord Ellenborough and his hot indignation at the sentence imposed upon Carlyle make him of the party of Hetherington rather than of his own eulogist, Talfourd.

Duke University.