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“ under him, but may be fairly construed as an expression of re“gret, that an erroneous view bas 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.” (p)
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. (a)
V. The two houses of Parliament are an essential part of the Of publicaconstitution, and entitled to reverence and respect, on account of tions against
u the two houses the important public duties which they have to discharge, But of parliament. 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 ; (9) 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 extepsive privileges. In the case of the King v. Stockdale, (r) 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 ex“tensive, for the purpose 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.” (s)
VI. The extent to which the measures of the King, or the pro- of publicaceedings of his government, may be fairly and legally canvassed, tions against has been the subject of much discussion, as it is undoubtedly one
ment. of the first importance : but it is not within the scope and design
(p) Rex v. Lambert and Perry, 2 in consequence of a resolution of the Camp. 398.
House of Commons, declaring a pam(a) Rex v. Harvey, 2 B. & C. 257. and phlet, published by the defendant, to malice will be implied from such wil be a libel. In the pamphlet which was ful defaming without excuse. See the called “ Thoughts on the English Gocase, post.
“ verament," there was this passage (q) As in Rex v. Rayner, 2 Barnard. amongst others which the House deem293. where the defendant was con ed libellous" That the King's govicted of printing a scandalous libel “vernment might go on if the Lords on the Lords and Commons; and in “ and Commons were lopped off." Rex o. Owen, 25 Geo. 2. MS. Dig. L. The jury considered the expressions L. 67. Iu Rex v. Stockdale, 28 Geo. 3. as merely metaphorical, and acquitted an information was filed by the Attor- the defendant. ney-General for a libel upon the house (r) Ante, note (a). of Commons. A prosecution was also (S) See 2 Ridgway's Speeches of the instituted in Rex v. Reeves, 36 Geo. 3. Hon. T. Erskine, p. 208.
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 late 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 publish“ing, 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.” (1)
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 :(u) “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 sedi
tion. (w) Cases.
A person delivered a ticket up to the minister after sermon, wherein he desired him to take notice that offences passed now without controul 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. (x) Reg.v. Tuchin. In a case where the defendant was prosecuted upon an informa
tion for a libel upon the government, his counsel contended that the publication was innocent, and could not be considered as libel
(1) Rex v. Perry and another, 1793. Abr. Libel (A) 2. p. 450. Rex v. See 2 Ridgway's Speeches, 371. Franklin, 9 St. Tri. 255. (u) Starkie on Lib. 525.
(x) 4 Bac. Abr. Libel (A) 2. p. 451. (w) i Hawk. P.C. c. 73. s. 7. 4 Bac.
lous, 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; endea“ vouring to possess the people that the government is mal-admi
nistered 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 pos“ sessing the people with an ill opinion of the government, no “ government can subsist; nothing can be worse to any govern“ ment than to endeavour to procure animosities as to the manage“ ment of it; this has always been looked upon as a crime, and “ no government can be safe unless it be punished.” (y)
This doctrine was recognized in a more modern case, where the Rex v.Cobbett. defendant was charged with publishing a libel upon the adminis, tration 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 Reg. v. “ Tuchin, decided in the time of Lord Chief Justice Holt, has re“ moved 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 imbecillity of the mem“bers 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.” (z)
VII. As nothing tends more to the disturbance of the public Of publicaweal than aspersions upon the administration of justice; con
magistrates tempts against the King's Judges, and scandalous reflections upon and the adtheir proceedings, have always been considered as highly criminal ministration offences; and one of the earliest cases of libel appears to have of been an indictment for an offence of this kind. (a)
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. ()
(y) Reg. v. Tuchin, 1704. Holt's R. referred to. 424. 5 Št. Tri. 532.
(a) Bolt on Lib. 153. (2) Rex v. Cobbett, 1804. Holt on (0) Starkie on Lib. 533. where see Lib. 114, 115. Starkie on Lib. 529, the cases collected. And see 1 Hawk. 530. where see in the note other cases c. 21. s. 7. et sequ. The proceeding
Any publications reflecting upon, and calumniating, the administration of justice, are without doubt of a libellous nature; and where a libel was published in a newspaper, in the form of anadvertisement, reflecting on the proceedings of a court of justice,
it was characterized as a reproach to the justice of the nation, a Rex v. Watson thing insufferable, and a contempt of court. (c) So an order made and others.
by a corporation and entered in their books stating that A. (against
“ foundation of the constitution itself.”' (d) Rex v. White In a late case the same doctrine was acted upon : but it was at and another. the same time clearly admitted that it would be lawful to discuss
the merits of the verdict of a jury, or the decisions of a Judge,
a tiary of
(1) the a case ; indictablot beim
“ from the newspaper, set out in the information, contained no “ reasoning or discussion, but only declamation and invective, and “ were written not with a view to elucidate the truth, but to “ injure the characters of individuals, and to bring into hatred and “contempt the administration of justice in the country.” (e)
It seems that no indictment will lie for contemptuous words Of words spoken either of or to inferior magistrates, unless they are at the spe
to, inferior time in the actual execution of their duty, or at least unless the magistrates. words affect them directly in their office; though it may be good cause for binding the offender to his good behaviour. (f) This doctrine was recognized in a modern case, where the defendant was indicted for saying of a justice of the peace for the county of Middlesex, in his absence, that he was a scoundrel and a liar. (3) Lord Ellenborough, C. J. said, “ the words not being spoken to “ the justice, I think they are not indictable. This doctrine is “ laid down by Lord Holt in a case in Salkeld; (h) and in Rex v. “ Pocock in Strange, (i) the Court of King's Bench refused to “ grant an information for saying of a justice, in his absence, that “ he was a forsworn rogue. However, I will not direct an ac“ quittal upon this point, as it is upon the record, and may be “ taken advantage of in arrest of judgment. It will be for the “ jury now to say whether these words were spoken of the prose“ cutor as a justice of the peace, and with intent to defame him “ in that capacity; for if they were not, this indictment is not “ supported; and it could not by possibility be a misdemeanor to “ utter them, although the prosecutor's name may be in the com“ mission of the peace for the county of Middlesex.”(k) But it has been holden to be an indictable offence to say of a justice of the peace, when in the execution of his office, “you are a rogue " and a liar.”(1)
VIII. As every person desires to appear agreeable in life, and of publicamust be highly provoked by such ridiculous representations of tions main
private indihim as tend to lessen him in the esteem of the world, and take viduals. away his reputation, which to some men is more dear than life itself; it has been held that not only charges of a flagrant nature, and which reflect a moral turpitude on the party, are libellous, but also sach as set him in a scurrilous ignominious light, whether expressed in printing or writing, or by signs or pictures; for these equally create ill blood, and provoke the parties to acts of revenge and breaches of the peace. (m)
(e) Rex v. White and another, 1808. (m) Ante, p. 209. 4 Bac. Abr. Libel, i Campb. 359. The defendants were (A) 2. p. 450. So in the late case of found guilty. And see a note of an- Thorley v. Lord Kerry, 4 Taunt. 364, other proceeding by information a- Mansfield, C. J., delivering the opigainst the same defendants for a libel nion of the Court, said, “there is no on Lord Ellenborough, C. J. Holt on “doubt this is a libel for which the Lib. 170, 171.
“plaintiff in error might have been (f) Starkie on Lib. 533. 1 Hawk. “indicted and punished, because, P. C. c. 21. s. 13.
“though the words impute no punish(g) Rex v. Wellje, 2 Campb. 142. “able crimes, they contain that sort (h) Rex v. Wrightson, 2 Salk. 699. " of imputation which is calculated to
(i) 2 Str. 1157. And see Rex v. “ vilify a man, and bring him, as the Penny, I Lord Raym. 153.
"books say, into hatred, contempt, (k) Rex v. Weltje, 2 Campb. 143. “and ridicule; for all words of that (1) Rex v. Revel, 1 Str. 420. “ description an indictment lies.” And