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“under him, but may be fairly construed as an expression of re
gret, 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.” (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 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 extensive 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
the governof 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 pain phlet which was ful defaming without excuse. See the called “ Thoughts on the English Gocase, post.
“ veroment,” there was this passage (q) As in Rex v. Rayner, 2 Barnard. amongst others which the House deem293. where the defendant was coo- 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 v. Owen, 25 Geo. 2. MS. Dig. L. The jury considered the expressions L. 67. In 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 (q). of Commons. A prosecution was also (6) 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.”
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 sedition. (w)
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)
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 libel
Reg. v. Tachin.
(1) Rex v. Perry and another, 1793. Abr. Libel (A) 2. p. 450.
(2) 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 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 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- tions against 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 justice. 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. (1)
(y) Reg. r. Tuchin, 1704. Holt's R. referred to. 424. 5 St. 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 an. advertisement, 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 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 conse
quences. 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.”' (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, provided it be done with candour and decency. An information was filed against the defendants, the proprietors and printers of a Sunday newspaper, for a libel upon Le Blanc, J. and a jury, by whom a prisoner had been tried for murder and acquitted; and it was contended on the part of the defendants that they had only made a fair use of their right to canvass the proceedings of a court of justice. Grose, J. said, that “it certainly was lawful, with
and candour, to discuss the propriety of the verdict of a jury, or the decisions of a Judge; and if the defendants should “ be thought to have done no more in this instance, they would “ be entitled to an acquittal : but, on the contrary, they had “transgressed the law, and ought to be convicted, if the extracts by writ of scandalum magnalum upon vileges in any action of slander, and to the statutes 3 Edw. I. c. 34. PR. 2. stand upon the same footing, with re
12 R 2. c. 11. is of a civil, spect to civil remedies, as their fellow as well as of a criminal nature; and subjects. was formerly had recourse to in case (c) Vin. Abr. Contempt (A) 44. Pool of defamation of any of the great offi- v. Sacheverel, 1720. cers and nobles. But the civil pro- (d) Rex v. Watson and others, 2 T. ceeding is now almost obsolete, the R. 199. nobility prcferring to wave their pri
st. 1. c. 5.
“ 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 spoken of, or
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. (5) 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;(R) 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 against him 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 such 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 () 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. Weltje, 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