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contrary to the laws of God. (f) And a defendant was convicted on an information charging him with having published, concerning the government of England and the traitors who adjudged king Charles the First to death, that the government of the kingdom consists of three estates, and that if a rebellion should happen in the kingdom, unless that rebellion was against the three estates, it was no rebellion. (g) In another case a person was convicted for publishing a libel, in which it was suggested that the revolution was an unjust and unconstitutional proceeding, and the limitation established by the act of settlement was represented as illegal, and that the revolution and settlement of the crown as by law established had been attended with fatal aud pernicious consequences to the subjects of this kingdom. (1) IV. Though a different construction may have prevailed in of publica
tions against more arbitrary times, it is now settled that bare words, not rela
the King. tive to any act or design, however wicked, indecent, or reprehensible they may be, are not in themselves overt acts of high treason; but only a misprision, punishable at common law by fine and imprisonment, or other corporal punishment. (i) Though words may expound an overt act, and shew with what intent it was done. (k) And, generally speaking, any words, acts, or writing tending to vilify or disgrace the King, or to lessen him in the esteem of his subjects, or any denial of his right to the crown, even in common and unadvised discourse, amount at common law to a misprision punishable by fine and corporal punishment. (1)
There are also some legislative provisions upon this subject. Statutes. The 3 Edw. 1. c. 34. enacts that none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander, may grow between the king and his people, and the great men of the realm. (m) And with a view to the security of the succession of the house of Hanover, according to the act of settlement, a law was passed declaring it to be treason to write or print against it. (n)
The nature of the offence of libel against the monarch personally has been ably explained and illustrated, according to the more mild and liberal doctrines of the present time, in a case of recent occurrence.
The defendant was charged with having published a libel to the Rex v. Lamfollowing tenor and effect : “What a crowd of blessings rush bert and
upon one's mind, that might be bestowed upon the country in It is not libel“ the event of a total change of system ! Of all monarchs indeed lous for a wri
ter who allows “since the revolution, the successor of George the Third will
the sovereign Uf) 2 Roll. Abr. 78.
(1) 4 Blac. Com. 123. (8) Rex v. Harrison, 1677. 3 Keb. (m) It is said to have been resolved 841. Vent. 324. And a treatise upon by all the Judges that all writers of hereditary right was holden to be a false news are indictable and punishlibel, though it contained no reflec- able; (* Read. St. L. Dig. L. L. 23.) tion upon any part of the then govern- and probably at this day the fabricament, Reg. v. Bedford 1711. 2 Str. tion of news likely to produce any 789. Gilb. 297.
public detriment would be considered (h) Rex v. Nutt, 1754. Dig. L. L. as criminal. Starkie on Lib. 546. 126. and see Dr. Shebbeare's case, and (n) 6 Anne, c. 7.; and see other staRex v. Paine, Holt on Lib. 88, 89. and tutes which were passed for the purStarkie on Lib. 508.
pose of guarding the King's character (i) i East. P. C. c. 2. s. 55. p. 117. and title, cited in Starkie on Lib. 520, (k) Crohagan's case, Cro. Car. 332. 521,
to be solicit- “ have the finest opportunity of becoming nobly popular.” Lord ous for the
Ellenborough, C. J. in addressing the jury, stated, that the first welfare of his subjects, and sentence of this passage would easily admit of an innocent interwho has no pretation ; that the fair meaning of the expression “ change of intention of calumniating
system” was a change of political system-not a change in the him, or of
frame of the established government—but in the measures of bringing his
policy which had been for some time pursued; and that by total personal go
change of system was certainly not meant subversion or demolition, public odium, the descent of the crown to the successor of his Majesty being to express re- mentioned immediately after. His lordship then proceeded :-“ If gret that he has taken an
a person who admits the wisdom and virtues of his Majesty,
“ laments that in the exercise of these he has taken an unfortunate view of any
and erroneous view of the interests of his dominions, I am not question of foreign or do
prepared to say that this tends to degrade his Majesty, or mestic policy. “ 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 suceessor may “ render bimself 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 re"lations, or the system of our internal policy; if it imputes “ nothing but honest error, without moral blame, I am not pre“ pared 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; (c) and if you consider it as meant to repre
sent 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 suc“cessor, 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 mal-administration to his Majesty, or those acting
(c) The libel was published in a age charged as libellous, although newspaper; and it had been allowed disjointed from it by extraneous malto the defendant to have read in evi- ter, and printed in a different chadence an extract from the same paper racter. connected with the subject of the pass
“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 6 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
the governhas been the subject of much discussion, as it is undoubtedly one 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, 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,
“ vernment,” there was this passage (a) 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 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 (9). of Commons. A prosecution was also (8) 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 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. Tuchin.
(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
possessing 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." (2) VII. As nothing tends more to the disturbance of the public of publica
tions against weal 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 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. (6)
(y) Reg. v. Tuchin, 1704. Holt's R. referred to. 424. 5 St. Tri. 532.
(a) Holt 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 i Hawk. 530. where see in the note other cases c. 21. s. 7. et sequ. The proceeding VOL, I,