Hastings vs Hicky: The defamation trial against the publisher of India’s first newspaper

06 August 2018

In his recent book, the American scholar Andrew Otis chronicles the journey of Hicky’s Bengal Gazette—India’s first major newspaper, printed from Calcutta in 1780. The newspaper was founded by a poor Irishman named James Augustus Hicky, and sold for Re 1 every Saturday. It immediately became a “sensation,” Otis writes, laying bare the underbelly of the early British Empire. 

In the book, “Hicky’s Bengal Gazette: The Untold Story of India’s First Newspaper,” Otis discusses Hicky’s background and motivations, and describes the making of the newspaper—what it covered and how it challenged the rich and powerful of British Calcutta. He writes that the paper tried to be the voice of the underdog, spotlighting the lives of the “lower rungs of society, shut out from patronage and prestige.” As the paper’s influence grew, it became more political, exposing corruption in the East India Company and criticising the then Governor-General Warren Hastings for fighting expansionist wars that only furthered his “personal dreams of conquest.” 

Soon, Hastings moved to stop its circulation. He forbid Hicky from mailing his newspapers through the post office, and gave the postmaster general the right to inspect any mail suspected of carrying the newspaper. But, as Otis writes, Hicky would not “bow, cringe or fawn to any of his oppressors.” He started an “an anti-tyranny, anti-corruption, and pro-free speech campaign using his newspaper as his platform, and words as his weapons.”  In June 1781, Hicky was arrested and charged with libel. He went on to face four trials. Otis describes the court battles, the attempts to suppress the paper, and the resourceful ways in which Hicky tried to fight back. In the following excerpt from the book, Otis writes about Hicky’s first trial, in which “the freedom of the Press stood on the line.”

Tuesday, 26 June, Supreme Court House, Calcutta

A hircarrah [courier] stood on the crumbling steps of the Court House in the fierce morning sun, a stack of two-page special edition Hicky’s Bengal Gazette Extraordinary in his arms. Passers-by were glad to escape the brown dirt plaza outside, next to the stinking great tank, and enter the Court House’s cool, dark archways. Under the mildewed, cracked-paint pillars, they read the gazette, printed the day before.

Tomorrow the very important Trial of Mr James Augustus Hicky will come on at the Court House in Calcutta, on the Fate of which materially depend the inestimable Liberty of the Press, the security of the property, and the boasted Liberty of all British Subjects in this Part of the World …

Let such know that a libel on which a man is criminally indicted is in a strict sense a malicious defamation, expressed in printing or writing, so that if a jury does not think it answers that exact description they must in conscience find him not guilty.

The extraordinary gazette continued, with a warning from Hicky that his case was not just about one newspaper. Freedom of speech was on trial. If he lost, not just his newspaper but the people’s voice would be lost. Their last protector would be gone. “We shall then be in the Condition of the sheep … when our Dogs, our Guardians, are gone our House may be robbed whilst we sleep,” the gazette read.

Hicky included a list of the grand jury that had indicted him. Thus, he stripped them of their anonymity; he wanted to show his readers that his trials had been rigged before they began, that the jury had been packed with his enemies. The grand jury were either members of Company committees, contractors, residents at foreign courts, or those who had some connection with Hastings. Even the postmaster general had been on the grand jury, so had the bye-law’s tax collector, and also the army contractor, Charles “Charley Bullock” Croftes.

9.08 am, Inside the Court House

Hicky stood at the bar in front of the judges as the court sat in sweltering silence. He came ready to cause chaos, starting by objecting to Impey sitting on his trial:

Impey was incensed. No man had the right to insinuate that he would be prejudiced. He knew he would never bow to public odium. “This cannot be meant as a serious objection. Let the trial go on,”Impey said.“Mr Hicky must know he has no right to make this objection,” Justice Hyde chimed in.

This was not actually the first time Impey and Hicky had met. They had known of each other when Hicky was a law clerk and when Impey was a lawyer in England’s Western Circuit. “No popular clamour will ever make me neglect my duty. I think myself man enough not to be affected with any threats thrown out, and honest enough not to let any prejudice affect my conduct,”Impey told the court.

Hicky’s objection was overruled. But Hicky had more objections to make.When the court moved to pick the jury, Hicky objected to any Company servants sitting on the jury. He believed they would all be biased like the grand jury.

Impey suggested a compromise, allowing both Hicky and Hastings’ lawyer, Henry Davies, to object to any jurors before they reached a full twelve-man jury. And if they did not have enough jurors then they would go through those that had been rejected.

With that compromise, the court swore in the jury.Henry Davies opened the prosecution. Today, he told the court, he would try the first of Hastings’ three counts: the article in which Hicky’s writer called Hastings, Clive’s “miserable successor.”

Davies read the article to the court. He believed he had a straightforward case. Precedent was on his side. All he needed to prove was that Hicky printed the paper and that Hastings was the one libelled. “Two points will be for your consideration, whether Mr Hicky published this paper and whether the successor of Lord Clive means Mr Hastings,” he told the jury.

Because libel in the eighteenth century was defined as any printed matter whose content could breach the peace, a printer could be sued for libel on almost anything.Furthermore, printers were responsible for their writers’ articles, meaning that they could be sued just for printing an article, even if they had never seen its content.

Most important of all, judges, not juries, determined libel. The jury’s sole job was to determine who printed the article and who was libelled. Once the jury determined these points, the judges would determine if the words contained malice. If the words contained malice then the printer was guilty of libel.

Thus, to find Hicky guilty, Davies only had to convince the jury that Hicky had printed the article and that the words “miserable successor” meant Hastings.

“Can anything be more contemptuous than the words ‘miserable successor?’” Davies asked the jury, and then looked at Hicky, adding, “He says also that Mr Hastings has reduced the name of Britons to ‘contumely and contempt.’”

Davies then held up Hicky’s satiric playbill to the jury. “All the mean and paltry arts which have been used in England to cajole the lowest of the people, are repeated here to prejudice a jury of the gentlemen of Calcutta. You are to be intimidated by the abuse on the grand jury in Mr Hicky’s paper by the description of slaves, train-bearers, toad-eaters and sycophants. And, to be cajoled as the honest petty jury who have not yet found him guilty, by the description of ‘liberty boys,’” Davies said, hoping to show the jury how Hicky had tried to bias them.

11.05 am

Hicky’s attorney, Anthony Fay, began his defence. Fay began by cross-examining Hastings’ witnesses.He argued that the article may have referred to the military commander at Midnapore, Major Allen Macpherson, not Hastings. “Do you not think the words ‘miserable successor’ might as well be applied to the military officer who commands in Midnapore?” he asked Thomas Motte, the chief of police.

Fay’s plan was to prove that the article could have referred to anyone as Clive’s miserable successor. If he could cast enough doubt on who the article referenced, the jury would not be able to determine beyond a reasonable doubt that the words “miserable successor” meant Hastings, and Hicky would be acquitted.

But Motte was certain. “Miserable successor” could only mean the person who held Clive’s position as Governor-General, and that was Hastings. “I do not think it can be applied to the military commander in Midnapore. The successor must mean the person now in possession of the place Lord Clive held, because he uses the word disgraces the seat in the present tense,”Motte replied.

Fay asked the next witness, Charles Wilkins, the Company’s printer, the same question. “Do you know of any other person beside Lord Clive that may answer the description of ‘the Immortal Clive?’”

“I know no other who can answer to the epithet of immortal but Lord Clive,” Wilkins replied. “May not there be some other person who may deserve that epithet, though your knowledge does not extend so far?”

“Everything is possible, but I know no other,” Wilkins said. “Why do you apply the opprobrious word “miserable” to the Governor-General, Mr Hastings?” Fay asked, hoping Wilkins would admit ambiguity.

“I have before sworn that the word ‘successor’ meant Mr Hastings and ‘miserable’ must be applied to the same person. I do not think the word successor can be applied to the military commander at Midnapore.”

Fay was failing. Not a single witness testified that ‘miserable successor’ might mean someone beside Hastings. Still, he kept his strategy. “I must beg your indulgence,” he stopped his cross-examination and turned to the jury. “It must require great ingenuity to form these innuendos. There can be no libel where there is not some person reflected on. If it is uncertain as to the person, it is like a random shot that seldom does any execution. It is like an indictment for murder without saying who the person was who has lost his life. It does not appear except by innuendo that the newspaper concerns Mr Hastings—”

“I had rather read my own defence,” Hicky jumped up. “You do not seem to understand my counsel,” he said, turning to Fay.Hicky had enough. It was clear the issue was not who was Clive’s miserable successor. The issue was freedom of the Press.

“My newspapers have been arbitrarily stopped at the public post office. I was taken by above two hundred constables and peons and without any ceremony dragged into a stinking prison under the same roof with thieves and murderers,” he said.

Then he turned to Impey. “Sir Elijah Impey, Lord Chief Justice of the Supreme Court and Superintendent of the Sudder Dewanny Adaulat. The best security of the press is an honest and disinterested jury.”

His defense was simple yet radical. He claimed he was the victim of tyranny and despotism, and he had a right to print that no man, or no Company, could take away from him. “The mere writing, printing and publishing is no proof of guilt. The malicious or seditious tendency must be proved. Otherwise, they ought to acquit the defendant. If an Englishman now speaks truth he is immediately prosecuted for a libel,” he said.

His goal was to convince the jury that they had the right to determine malice and libel, not the judges. He cited the famous case, The King v. Henry Sampson Woodfallin his defence. Woodfall’s case bore striking resemblance to his own. The King had sued Woodfall for printing a letter—written by none other than Philip Francis (under a pseudonym)—threatening insurrection if another journalist, John Wilkes, was not released from jail. To everyone’s surprise, the jury bucked a hundred years of legal precedent and refused to find Woodfall guilty, finding him guilty of “printing and publishing only.” By finding him guilty of printing “only,” they implied that Woodfall did not mean malice. Thus, by determining malice, they took away the judges’ power to determine libel. The trial ended in a mistrial and Woodfall walked free, becoming one of the most famous editors in England.

Hicky argued that Woodfall’s trial should set the precedent for his own, and that his jury, like Woodfall’s, could determine malice, and thus libel.Hicky then argued that he did not mean malice. He began his closing speech with the story of Parson Prick, a Protestant minister, who around 1585 delivered a sermon against Catholicism. Prick recited a passage from Foxe’s Book of Martyrs, a book that recounted the brutal murders of Protestants by Catholics, and the divine retributions that followed. One of these Catholics who suffered divine retribution was a Mr Greenwood. According to Foxe, God struck down Greenwood for his sins. “Great plagues” were inflicted on Greenwood and “his bowels fell out of his body by the terrible judgment of God,” Prick said.

Yet, in a strange odyssey of fate, this same Greenwood happened to be present at Prick’s sermon, and very much alive. Greenwood was actually a Protestant, and seeing himself called a “papist,” he sued Prick for defamation. Surprisingly, when the case came to trial, the judge found Prick not guilty because he had only related someone else’s story and did not mean malice when he said it.

Hicky argued that Prick’s trial set the precedent that retelling someone else’s writing did not constitute libel. As an editor, he hoped the jury would recognise that he had only reprinted someone else’s letter and did not mean malice.

Hicky stopped abruptly and rested his case, leaving his fate to the jury, hoping that they would protect his freedom of speech and the freedom of the press.

1.22 pm

Impey gave his guidance to the jury in the dripping midday heat. He clearly indicated they should find Hicky guilty and that Davies’ interpretation of the law was correct; that the jury’s sole job was to determine if the article referred to Hastings. Whether it was malicious, whether it was libel, was his right to determine.

“The defendant Hicky stands indicted for a malicious and false libel. In this heat, and at this time of day, I will not trouble you with more than is absolutely necessary. If the paper has not the meaning which the drawer of the indictment puts, you cannot find him guilty. You are to enquire whether in common understanding the meaning is such as is alleged, not whether they might possibly have had some other meaning. Whether the paper is criminal or not, whether it is libel or not, is not for you to determine,” he said.

2.57 pm

With these words, the case went to the jury. All eyes were on them as they filed out to their private room.The jury’s foreman returned fifty minutes later and told the judges that they were unlikely to agree on a verdict soon. With that, the jury adjourned to Justice Hyde’s house for further discussion.The jury sat through the afternoon. They sat through the evening. They sat through the night.The freedom of the Press stood on the line with no end in sight.

This is an extract from the book Hicky’s Bengal Gazette: The Untold Story of India’s First Newspaper, written by Andrew Otis and published by Westland.

Andrew Otis was a Fulbright Scholar to India in 2013 to 2014 and lived in Kolkata where he researched journalism in early India.

Keywords: media British Empire East India Company media freedom Freedom of Press
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