And the statute of 1796 made any writing, speaking, or preaching, which incited to a hatred or contempt of majesty or the Government, a high misdemeanour. And that law continued until 1848, when it was repealed and superseded by another enactment, which is now in force. By this later Act, whoever intends to levy war against her Majesty in order by force to compel her to change her measures or counsels, or in order to intimidate either House of Parliament, or move foreigners to invade the kingdom, if such intention be expressed by printing or open and advised speaking, or by any overt act, then he is guilty of felony."

Libels on ministers of state.-The same consideration which protects the Sovereign from libels extends in a large degree to the ministers of state, as part of the executive Government. There must be ministers, and there must be credit given to these ministers that they know their duties, rights, and powers, and that they give to these their best attention, free from corruption and the vices incident to the exercise of all but absolute authority. Holt, C. J. said, that

1 36 Geo. III. c. 7, § 2. The words were: Whoever maliciously and advisedly, by printing, preaching, or speaking, uses words to incite or stir up the people to hatred or contempt of his Majesty, his heirs or successors, or the Government and Constitution as by law established, commits a misdemeanour, punishable as in other cases, and on a second offence is punishable with seven years' transportation." Fox said under that Act freedom became a mockery.— 32 Parl. Hist. 272.

2 11 & 12 Vic. c. 12; Stat. L. Rev. Acts, 1871, 1875; 20 & 21 Vic. c. 3: 27 & 28 Vic. c. 47. The punishment is imprisonment for two years, or penal servitude for life or seven years. The remedy for spoken words must be prosecuted in six days, and no costs are to be allowed to the prosecutor. Two witnesses are required.

3 "It is for the interests of society, that the public conduct of men should be criticised without any other limit than that the writer should have an honest belief that what he writes is true. But the public have an equal interest in the maintenance of the public character of public men; and public affairs could not be conducted by men of honour with a view to the welfare of the country, if we were to sanction attacks on them destructive of their honour and character and made without any foundation. The true position is this. Where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives, which arise fairly and legitimately out of his conduct, so that a jury shall say, that the criticism was not only honest but also well founded, an action is not maintainable. But it is not because a public writer fancies, that the conduct of a public man is

to assert, that corrupt officers are appointed to administer affairs is a reflection on the Government, and tends to beget an ill opinion of the administration of the Government.1 Criticisms which make no fair allowances to these public servants as being honestly desirous to do their work well, and imputing corruption or dishonesty, or any other personal vice incompatible with a high sense of duty, are thus treated as libels. Nearly all the questions arising out of libels on ministers of state turn on this point, whether some gross personal vice or moral defect is attributed to individual members of the Government. This is sometimes described as bringing Government into contempt, or exciting sedition, these being the necessary consequences of such imputations. But the modern practice is to disregard many imputations which formerly were made matter of prosecution as seditious. To charge folly, or imbecility, or incapacity to a member of the Government may be quite compatible with avoiding undue license or the imputation of malice or corruption, and this is said to be, because honest, wellmeaning men do as great public mischief as those who are able but unprincipled. If therefore the drift of the public writer is not to discuss the matter in its bearings on public interests, but to impute dishonesty to the individual minister, the writing is a libel. And it is not the less libellous because any one individual of the Government may not be specified or indicated, if the whole, that is to say, several of the high officials are clearly included, as was the case where Tutchin alluded to " the influence of French gold on the conduct of affairs, and accused those who had the management of the navy of ignorance and incapacity." 2

open to the suspicion of dishonesty, he is therefore justified in assailing his character as dishonest.”—Per Cockburn, C. J., Campbell * Spottiswoode, 3 B. & S. 777.

1 Tutchin's Case, 14 St. Tr. 1128.

2 R. v Tutchin, 14 St. Tr. 1095. In R. v Luxford, in 1791, a pub-. isher of a newspaper was found guilty of a libel for arguing, that the real object of a certain naval expedition was not what it professed to be "that the ministry had deluded the people, and acted without policy, prudence, or spirit."-29 Parl. Hist. 558. It was also once held, that to charge a Government with intending to violate a public treaty with a foreign Government, and with being enemies to the public good, was libellous, according to the mode of treating the subject and the circumstances of the time.-R. v Francklin, 17

Cobbett, in 1804, published a letter charged with invective, and among other things spoke of Lord Hardwicke, Lord Lieutenant of Ireland, and Lord Redesdale, Lord Chancellor of Ireland, as "a very eminent sheep feeder from Cambridgeshire, assisted by a very able and strongbuilt chancery pleader from Lincoln's Inn." The prosecution urged, that this letter had for its purpose to degrade and vilify the whole administration of government in Ireland, and to expose it to the scorn and execration of the Irish people. His counsel defended it as fair ridicule and good English humour, having the object of "supporting the good Government of Ireland and the removal of the present inefficient administration." Lord Ellenborough, C.J., told the jury, 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." And in commenting on passages the judge suggested, that it was instigating the people to rebellion. The jury found Cobbett guilty. And in 1820 Sir F. Burdett was convicted of a seditious libel for publishing, that "divers liege subjects were inhumanly cut down and killed by his Majesty's troops" at a certain place in a riot.2 Hunt was prosecuted for an article in the Examiner newspaper commenting on the excess of flogging in the army, a sentence of one thousand lashes having been ordered in one case; and though the judge, Lord Ellenborough, told the jury, that it was a libel and intended to excite disaffection in the army, the jury found a verdict of not guilty.3

When ministers of the day are charged with some personal dishonesty or corruption, they have the same

St. Tr. 626. To publish a writing that his Majesty's troops inhumanly murdered innocent subjects on an occasion specified was held to be a seditious libel.-R. v Horne, 20 St. Tr. 651; Corp. 672.

1 R. v Cobbett, 29 St. Tr. 54. Mr. Justice Johnson, an Irish judge, was known to the author, and Cobbett was never called upon to receive sentence.

2 R. v Burdett, 4 B. & Ald. 95.

3 R. v Hunt, 31 St. Tr. 367. In another case, however, relating to the same libel, the jury found the publisher guilty.-R. v Drakard, 31 St. Tr. 495.

remedies as others, apart from a state prosecution. Thus in 1786, when Pitt, the Prime Minister, was charged by the Morning Herald with gambling in the funds and fraudulently availing himself of official information to make money on the Stock Exchange, and that "his friends were deeply grieved by the discovery, but were trying to palliate his misconduct," he sued the publisher for damages. Erskine, for the defendant, admitted there was no justification, and Lord Mansfield told the jury to remember, this was a very serious question, in which all the public were concerned, namely, whether there shall be any protection to the reputation of honourable men in public or private life. The jury gave a verdict of 2507. damages.1

Libels on the Constitution.-It has sometimes been said that besides speeches and libels charged with sedition by way of exciting the people against the Sovereign or the ininisters, there may be also a libel which defames and wantonly attacks the Constitution itself. But as the Constitution is at best an abstraction, it may well seem idle and hypercritical to interfere with any one for commenting on such a subject. And judges in former times have sometimes used sweeping language such as would utterly suppress free speech or thought on almost any political subject, for most people are constantly finding fault with the Constitution in one respect or another, and without allowing free scope to such faultfinding there would never be reformation or amendment in anything. All those indictments and informations for what are called libels on the Constitution really resolve themselves into one or other of the specific libels already mentioned, and to go further is usually to interfere with the inherent rights of freedom. It is true, that in certain states of public feeling what may otherwise be innocent language is viewed as an incentive to public disorder and tumult, and hence the surrounding circumstances cannot but enter largely into the construction of all libellous writings and speeches, when charged with promoting sedition. And this part of such business, it will be seen, is well confided to a jury. Political writers cannot be tied down closely to the 11 Polit. Anecd. 360.

1

subject matter of their animadversions, and all attempts of courts to define the limits of this kind of discussion have as already stated been unsuccessful. Parliaments as well as the courts have in recent times become much more liberal in dealing with political libels, for, as Cobbett said, there is always an appeal from the tellers of the Houses of Parliament to the tellers of the nation.1 As a great master has observed:-" If in the march of the human mind no man could have gone before the establishments of the time he lived in, how could our establishment by reiterated changes have become what it is? If no man could have awakened the public mind to errors and abuses in our government, how could it have passed on from stage to stage, through reformation and revolution, so as to have arrived from barbarism to its modern pitch of happiness and perfection?"2 "Government has at all times been in its own estimation a system of perfection; but a free press has examined and detected its errors, and the people have from time to time reformed it." s

Some examples of libels against the Constitution.Arguments and discussions now perfectly innocent and almost part of common knowledge, or at least admitted to be open questions, formerly had serious consequences. There have been in former times instances of these libels against what may be called the existing form of government, where courts and juries have found the author of the libel guilty. Thus to argue, that, in case of the Sovereign abusing his powers, the subjects may and ought to resist with force of arms, was once punished. In another case the writer, after justifying the regicides, said, that a rebellion against one estate of the realm is not properly rebellion at all, for that there could only be rebellion against the three estates collectively. And he was found guilty.5 Again it was equally a crime to argue, that the revolution settlement was the destruction of the laws of England." In one case the author of a treatise on hereditary right was held guilty, though he made no reflection on any part of the existing

2 Erskine, arg. R. v Paine, 22 Brewster, 15 Ch. II. Holt, Lib.

87. 5 R. v Harrison, 3 Keb. 841; Vent. 324. 6 R. v Brown, Holt, Lib. 87.