of these he has taken an unfortunate and erroneous view of the interests of his dominions, I am not prepared to say that this tends to degrade his Majesty, or to alienate the affections of his subjects. I am not prepared to say that this is libellous. But it must be with perfect decency and respect, and without any imputation of bad motives. Go one step further, and say or insinuate that his Majesty acts from any partial or corrupt view or with an intention to favour or oppress any individual or class of men, and it would become most libellous.' Upon the second sentence, after stating that it was more equivocal, and telling the jury that they must determine what was the fair import of the words employed, not in the more lenient or severe sense, but in the sense fairly belonging to them, and which they were intended to convey, Lord Ellenborough proceeded: Now do these words mean, that his Majesty is actuated by improper motives, or that his successor may render himself nobly popular by taking a more lively interest in the welfare of his subjects? Such sentiments, as it would be most mischievous, so it would be most criminal to propagate. But if the passage only means that his Majesty, during his reign, or any length of time, may have taken an imperfect view of the interests of the country, either respecting our foreign relations, or the system of our internal policy; if it imputes nothing but honest error, without moral blame, I am not prepared to say that it is a libel.' And again, towards the conclusion of his address, his Lordship said: The question of intention is for your consideration. You will not distort the words, but give them their application and meaning as they impress your minds. What appears to me most material is the substantive paragraph itself; (b) and if you consider it as meant to represent that the reign of his Majesty is the only thing interposed between the subjects of this country and the possession of great blessings which are likely to be enjoyed in the reign of his successor, and thus to render his Majesty's administration of his government odious, it is a calumnious paragraph, and to be dealt with as a libel. If on the contrary you do not see that it means distinctly, according to your reasoning, to impute any purposed maladministration to his Majesty, or those acting under him, but may be fairly construed as an expression of regret that an erroneous view has been taken of public affairs, I am not prepared to say that it is a libel. There have been errors in the administration of the most enlightened men.' (c) Falsely publishing that the King is labouring under mental derangement is a libel: it tends to unsettle and agitate the public mind, and to lower the respect due to the King. (d) (b) The libel was published in a newspaper; and it had been allowed to the defendant to have read in evidence an extract from the same paper connected with the subject of the passage charged as libellous, although disjoined from it by extraneous matter, and printed in a different character. SEC. VII. Libels against Houses of Parliament. The two Houses of Parliament are an essential part of the constitution, and entitled to reverence and respect, on account of the important public duties which they have to discharge. But as they have the power of treating libels against them as breaches of their privileges, and vindicating them in the nature of contempts, more cases of such libels are to be met with in their journals than in the proceedings of the courts of law. The common law, however, is fully capable of taking cognizance of any publications reflecting in a libellous manner upon the members or proceedings of the Houses of Parliament; (e) and it seems rather to have been the inclination of Parliament in modern times to direct prosecutions for such offences in the courts of common law, and to waive the exercise of their own extensive privileges. In the case of R. v. Stockdale, (f) the attorney-general in his speech to the jury, after stating the address of the House of Commons to the King, praying that his Majesty would direct the information to be filed, proceeded thus: 'I state it as a measure which they have taken, thinking it in their wisdom, as every one must think it, to be the fittest to bring before a jury of their country an offender against themselves, avoiding thereby, what sometimes indeed is unavoidable, but which they wish to avoid whenever it can be done with propriety, the acting both as judges and accusers, which they must necessarily have done, had they resorted to their own powers, which are great. and extensive, for the purposes of vindicating themselves against insult and contempt, but which in the present instance they have wisely forborne to exercise, thinking it better to leave the offender to be dealt with by a fair and impartial jury.' (g) SEC. VIII. Libels upon the Government.1 Of publications against the government. The extent to which the measures of the King, or the proceedings of his government, may be (e) As in R. v. Rayner, 2 Barnard, 293, where the defendant was convicted of printing a scandalous libel on the Lords and Commons; and in R. v. Owen, 25 Geo. 2. MS. Dig. L. L. 67. In R. v. Stockdale, 28 Geo. 3, an information was filed by the attorney-general for a libel upon the House of Commons. A prosecution was also instituted in R. v. Reeves, 36 Geo. 3, in consequence of a resolution of the House of Commons, declaring a pamphlet, published by the defendant, to be a libel. In the AMERICAN 1 It is stated that the prosecution of libels on government are nearly or quite unknown in America. Bishop ii. s. 942 (2). The pamphlet, which was called 'Thoughts on the English Government,' there was this passage amongst others which the House deemed libellous "That the King's government might go on if the Lords and Commons were lopped off.' The jury considered the expressions as merely metaphorical, and acquitted the defendant. (f) Ante, note (e). (g) See 2 Ridgway's speeches of the Hon. T. Erskine, p. 208. NOTE. United States Courts have no common law jurisdiction as to these libels. fairly and legally canvassed, has been the subject of much discussion, as it is undoubtedly one of the first importance: but it is not within the scope and design of this Treatise to enter further upon the question, than by stating a few of the established principles and decided cases. It may be observed, that the liberty of discussion, which in many instances has been admitted on the part of the officers of the crown, would seem to be sufficient to answer all the purposes of the honest patriot; the man who would condemn only with a view to genuine and constitutional reformation. Upon a prosecution for a libel, the Attorney-General in his opening to the jury thus expressed himself · The right of every man to represent what he may conceive to be an abuse or grievance in the government of the country, if his intention in so doing be honest, and the statement made upon fair and open grounds, can never for a moment be questioned. I shall never think it my duty to prosecute any person for writing, printing, and publishing, fair and candid opinions on the system of the government and constitution of this country, nor for pointing out what he may honestly conceive to be grievances, nor for proposing legal means of redress. (h) Every man has a right to give every public matter a candid, full, and free discussion; but although the people have a right to discuss any grievances they have to complain of, they must not do it in a way to excite tumult; and if a party publish a paper on any such matter, and it contain no more than a calm and quiet discussion, allowing something for a little feeling in men's minds, that will be no libel; but if the paper go beyond that limit, and be calculated to excite tumult, it is a libel. (i) In many cases which may occur, the due exercise of this liberty and right of discussion will involve considerations of much difficulty, and require great nicety of discrimination; as it may become necessary to ascertain the particular points at which the bounds of rational discussion have been exceeded. The answer to the following question has, however, been proposed as a test, by which the intrinsic illegality of such publications may be decided: (j) Has the communication a plain tendency to produce public mischief by perverting the mind of the subject, and creating a general dissatisfaction towards government?' However innocent and allowable it may be to canvass political measures within these limits, it is quite clear that their discussion must not be made a cloak for an attack upon private character. Libels on persons employed in a public capacity receive an aggravation as they tend to scandalize the government by reflecting on those who are entrusted with the administration of public affairs; for they not only endanger the public peace, as all other libels do, by stirring up the parties immediately concerned to acts of revenge, but also have a direct tendency to breed in the people a dislike of their governors, and incline them to faction and sedition. (k) If a paper has a direct tendency to cause unlawful meetings and disturbances, and to lead to a violation of the laws, it is a seditious libel. (1) (h) R. v. Perry, 1793. See 2 Ridgway's speeches, 371. (i) R. v. Collins, 9 C. & P. 456. Littledale, J. (j) Starkie on Libel, 525, 1st edit. (k) 1 Hawk. P. C. c. 73, s. 7. Bac. Abr. tit. Libel (A.) 2. R. v. Franklin, 9 St. Tri. 255. (7) R v. Lovett, 9 C. & P. 462. Littledale, J. A person delivered a ticket up to the minister after sermon, wherein he desired him to take notice that offences passed now without control from the civil magistrate, and to quicken the civil magistrate to do his duty, &c.; and this was held to be a libel, though no magistrate in particular was mentioned, and though it was not averred that the magistrates suffered those vices knowingly. (m) In a case where the defendant was prosecuted upon an information for a libel upon the government, his counsel contended that the publication was innocent, and could not be considered as libellous, because it did not reflect upon particular persons. But Holt, C. J., said: "They say nothing is a libel but what reflects on some particular person. But this is a very strange doctrine to say that it is not a libel reflecting on the government, endeavouring to possess the people that the government is maladministered by corrupt persons that are employed in such stations, either in the navy or army. To say that corrupt officers are appointed to administer affairs is certainly a reflection on the government. If men should not be called to account for possessing the people with an ill opinion of the government, no government can subsist; nothing can be worse to any government than to endeavour to procure animosities as to the management of it; this has always been looked upon as a crime, and no government can be safe unless it be punished.' (n) This doctrine was recognized in a case, where the defendant was charged with publishing a libel upon the administration of the Irish government, and upon the public conduct and character of the Lord Lieutenant and Lord Chancellor of Ireland. Lord Ellenborough, C. J., in his address to the jury, observed, 'It is no new doctrine that if a publication be calculated to alienate the affections of the people, by bringing the government into disesteem, whether the expedient be by ridicule or obloquy, the person so conducting himself is exposed to the inflictions of the law. It is a crime; it has ever been considered as a crime, whether wrapt in one form or another. The case of R. v. Tuchin, decided in the time of Lord Chief Justice Holt, has removed all ambiguity from this question; and, although at the period when that case was decided great political contentions existed, the matter was not again brought before the judges of the Court by any application for a new trial. And afterwards his lordship said: 'It has been observed, that it is the right of the British subject to exhibit the folly or imbecility of the members of the government. But, gentlemen, we must confine ourselves within limits. If in so doing individual feelings are violated, there the line of interdiction begins, and the offence becomes the subject of penal visitation.' (0) Notwithstanding any statute rule or provision to the contrary, a person convicted of a seditious libel is to be treated as a first-class misdemeanant. (p) (m) Bac. Abr. tit. Libel (A.) 2. (n) R. v. Tuchin, 1704. Holt's R. 424. 5 St. Tri. 532. (0) R. v. Cobbett, 1804. Holt on Libel, 114, 115. 2 Starkie on Libel, 193, where see in the note other cases referred to. (p) 40 & 41 Vict. c. 21, s. 40. SEC. IX. Libels on Magistrates and Administration of Justice. As nothing tends more to the disturbance of the public weal than aspersions upon the administration of justice, contempts against the King's judges, and scandalous reflections upon their proceedings, have always been considered as highly criminal offences; and one of the earliest cases of libel appears to have been an indictment for an offence of this kind. (9) Generally, any contemptuous or contumacious words spoken to the judges of any courts in the execution of their offices are indictable; and when reflecting words are spoken of the judges of the superior courts at Westminster, the speaker is indictable both at common law and under the statutes of scandalum magnatum, whether the words relate to their office or not. (~) Any publications reflecting upon and calumniating the administration of justice are of a libellous nature (s). So an order made by a corporation, and entered in their books, stating that A. (against whom a jury had found a verdict with large damages in an action for a malicious prosecution, and which verdict had been confirmed in the Court of Common Pleas), was actuated by motives of public justice in preferring the indictment, was held to be a libel reflecting on the administration of justice, for which an information should be granted against the members who had made the order. Ashhurst, J., said, that the assertion that A. was actuated by motives of public justice carried with it an imputation on the public justice of the country; for if those were his only motives, then the verdict must be wrong. Buller, J., said: 'Nothing can be of greater importance to the welfare of the public than to put a stop to the animadversions and censures which are so frequently made on courts of justice in this country. They can be of no service, and may be attended with the most mischievous consequences. Cases may happen in which the judge and jury may be mistaken: when they are, the law has afforded a remedy; and the party injured is entitled to pursue every method which the law allows to correct the mistake. But when a person has recourse either by a writing like the present, by publications in print, or by any other means, to calumniate the proceedings of a court of justice, the obvious tendency of it is to weaken the administration of justice, and in consequence to sap the very foundation of the constitution itself.' (t) In another case the same doctrine was acted upon but it was at the same time clearly admitted that it would be lawful to discuss the (q) Holt on Libel, 153. (r) 2 Starkie on Libel, 195, where see the cases collected. And see 1 Hawk. P. C. c. 7, et seq. The proceeding by writ of scandalum magnatum upon the statutes 3 Edw. 1, c. 34. 2 R. 2, st. 1, c. 5. 12 R. 2, c. 11, is of a civil, as well as of a criminal nature; and was formerly had recourse to in case of defamation of any of the great officers and nobles. But the civil proceeding is now almost obsolete, the nobility preferring to waive their privileges in any action of slander, and to stand upon the same footing, with respect to civil remedies, as their fellow subjects. (s) Vin. Abr. tit. Contempt (A.) 44. Pool v. Sacheverel, 1720. (t) R. v. Watson, 2 T. R. 199. |