The provisions of the law as contained in chap. 10 C. S. L. C. do not extend to the meetings of any society or lodge of freemasons constituted by or under the authority of warrants in that behalf granted by or derived from any grand master or grand lodge in the United Kingdom of Great Britain and Ireland or the grand master or grand lodge of Canada.

The grand lodge of Canada exercises no authority over masonic lodges in the province of Quebec. 'In that province a separate body called the Grand Lodge of Quebec exercises jurisdiction over a number of masonic lodges to whom its warrants have been issued for the holding of meetings and the practice of masonry. In addition to these there are in the city of Montreal three old lodges of freemasons constituted and still working under warrants of the Grand Lodge of England, of which H. R. H. the Prince of Wales is the present Grand Master. Although these two sets of freemasons are on terms of the greatest friendship there can be no move towards their amalgamation until the existing doubt as to the legal status of the lodges of the Quebec Register is cleared away by placing them, by means of special legislation, (as was done with the Grand Lodge of Canada), within the exception which relieves freemasons of the English Register from the operation of the law against secret societies.

In the province of Quebec, the Loyal Orange Institution was held to be an illegal association combination and confederacy, the members thereof being bound by an oath to keep secret the proceedings of the association. The Orange Lodges had assembled in their meeting rooms in Montreal for the purpose of walking in procession, according to their annual custom on the twelfth of July, when the Mayor with the assistance of a large band of special constables armed with sticks, forcibly prevented the procession, and arrested the chief officers; and in an action of damages for false arrest taken by them against the mayor, the latter was held to have acted legally, the Orange order being an unlawful body, and there being a well grounded apprehension of a serious public disturbance taking place if the procession had been allowed to form and appear on the streets. (1)

123. Seditious words libels and conspiracies.-No one shall be deemed to have a seditious intention only because he intends in good faith

(a.) to show that Her Majesty has been misled or mistaken in her

measures; or

(b.) to point out errors or defects in the government or constitution of the United Kingdom, or of any part of it, or of Canada or any province thereof, or in either House of Parliament of the United Kingdom or of Canada, or in any legislature, or in the administration of justice; or to excite Her Majesty's subjects to attempt to procure, by lawful means, the alteration of any matter in the state; or

(c.) to point out, in order to their removal, matters which are producing or have a tendency to produce feelings of hatred and ill-will between different classes of Her Majesty's subjects.

2. Seditious words are words expressive of a seditious intention. 3. A seditious libel is a libel expressive of a seditious intention. 4. A seditious conspiracy is an agreement between two or more persons to carry into execution a seditious intention.

124. Every one is guilty of an indictable offence and liable to two years' imprisonment who speaks any seditious words or publishes any seditious libel or is a party to any seditious conspiracy.

(1) Grant & Beaudry, 4 L. N. 394, Q. B. (1881).

It will be seen by these articles that there are three different ways in which a seditious offence may be committed, namely, by speaking words expressive of a seditious intention, by publishing a libel expressing a seditious intention, and by entering into a conspiracy to carry a seditious intention into execution. But there is no definition given shewing what a seditious intention is.

In section 102 of the English Draft Code there is, in addition to what is above contained in article 123, a clause defining a seditious intention as,

"An intention

**

"to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, or the government and constitution of the United Kingdom "or of any part of it as by law established, or either House of Parliament, or "the administration of justice; or

"to excite Her Majesty's subjects to attempt to procure, otherwise than by "lawful means, the alteration of any matter in church or state by law established; or

"to raise discontent or disaffection amongst Her Majesty's subjects; or

"to promote feelings of ill-will and hostility between different classes of such subjects."

In a note to this section the Royal Commissioners say that this is as accurate a statement of the existing law as they can make; and as references they give 60 Geo. 3 & 1 Geo. 4, chap. 8, O'Connell v. R., 11 Cl. & F. 155, 234, R. v. Lambert & Perry, 2 Camp. 398, R. v. Vincent 9 C. & P. 91. In the body of their Report they also say in reference to seditious offences. "On this very delicate subject "we do not undertake to suggest any alteration of the law. It is not easy to

find explicit authority earlier than the case of R. v. Frost, (22 St. Tr. 471, tried "before Lord Kenyon in 1793), for the proposition that to speak seditious "words is an indictable offence. A passage in the 3rd institute (p. 14) certainly "says. But words without an overt deed are to be punished in another degree "as a high misprision. This, however, is an incid ntal remark at the end of a "passage, the main point of which is that mere words are not in general an "overt act of treason; "

The Canadian Code as originally drawn and introduced into Parliament contained a clause defining a seditious intention in terms similar to those above quoted from section 102 of the English Draft; but the clause evoked a long discussion and a great deal of criticism during the consideration of the Bill in Committee; and it was altimately decided to strike out the clause, and leave the definition to common law (1).

In tracing, with his usual clearness and ability, the history of this most interesting branch of the law, Sir James F. Stephen says, that there are two

different views of the relation between rulers and their subjects. If the ruler "is regarded as the superior of the subject, as being by the nature of his "position presumably wise and good,-the rightful ruler and guide of the whole 'population, it must necessarily follow that it is wrong to censure him openly,

that if he is mistaken his mistakes should be pointed out with the utmost respect, and that whether mistaken or not no censure should be cast upon him likely or designed to diminish his authority. If, on the other hand, the "ruler is regarded as the agent or servant and the subject as the wise and good "master who is obliged to delegate his power to the so-called ruler because, "being a multitude, he cannot use it himself, it is obvious that this sentiment "must be reversed. Every member of the public who censures the ruler for the "time being exercises in his own person the right which belongs to the whole ** of which he forms part. He is finding fault with his servant. If others think differently they can take the other side of the dispute, and the utmost that can happen is that the servant will be dismissed and another put in his place, or perhaps that the arrangements of the household will be modified. To those "who hold this view fully, and carry it out to all its consequences there can be

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(1) See Extra Appendix post.

66

"no such offence as sedition. There may indeed be breaches of the peace, "which may destroy or endanger life limb or property, and there may be incitements to such offences, but no imaginable censure of the government, "short of censure which has an immediate tendency to produce such a breach “of the peace ought to be regarded as criminal.” (1)

After stating that each of these extreme views has had a considerable share in moulding the law of England so as to practically produce a compromise such as is expressed in section 102 of the English Draft Code, (upon a part of which our article 123 is based), Sir James F. Stephen proceeds to trace the history of the legislation and of the legal controversies which, in conjunction with the development of broader popular views, have brought about this compromise (2).

This history is of no small value in arriving at a proper appreciation of the present state of the law in regard to these offences; and I therefore take the liberty of giving here a short outline of it.

Under the old idea a libel was written blame, true or false, of any man public or private. For a long time the law was administered by the Star Chamber, the name given, during the Tudor period, to the king's privy council sitting as a court, composed of the lord chancellor, the lord treasurer, the keeper of the privy seal, a bishop, a lord of the council, and the two chief-justices,-and trying cases and adjudging, without the aid of any jury, matters of fact as well as matters of law.

During the sixteenth century the Star Chamber took upon itself, in the plenitude of its power, to make and enforce, with extreme rigor and severity, a number of decrees and dinances regulating the manner of printing and the number of presses throughout the kingdom, and prohibiting all printing and publishing against the meaning of the statutes and laws of the realm.

At that time libels, as such, would not receive a great deal of attention, many offences being more severely dealt with as treasons, which at a later period would only be treated, at most, as seditious libels; for although, as already seen, mere words unconnected with any deed were not regarded as an overt act of treason the publication of written words were regarded in that light, when they displayed a treasonable intention (3).

After the abolition of the Star Chamber in 1641 by the Long Parliament, the latter introduced the system of licensing books, which system was continued by various Licensing Acts passed in the following reigns of Charles II, James II aud William & Mary, until it finally expired in 1794.

The licensing system and the special laws,-which, under the Commonwealth and under Charles II, exposed political libellers to prosecutions for treason, -made it very difficult and dangerous to publish any books or pamphlets objectionable to the government; and cases involving a discussion of the law of libel would not during this period be very numerous. Many prosecutions were either for offences amounting to treasonable publications under the special laws referred to, or for publishing without a license or in violation of some of the provisions of the Licensing Acts. As Sir Jas. F. Stephen remarks, until the right to publish without license is conceded the question of the limits of the right does not become debateable. (4)

On the abolition of the Star Chamber, cases of libel,-whenever they did arise, were tried in the Court of King's Bench; and the trials were by jury; but the Judges of that Court adopted and continued, for a long time, to follow, in regard to libel, the stringent doctrines of the Star Chamber, and held that,— libel was written blame, whether true or false, and as the law required the exact words of the matter complained of to be set out in order to judge by its

as

(1) 2 Steph. Hist. Cr. L. 298-300.

(2) Steph. Hist. Cr. L. 300-386.

(3) 3 Inst. 14; 2 Steph. Hist. Cr. L. 302.

(4) 2 Steph. Hist. Cr. L. 310,

tenor, of its libellous nature,-the question of whether it was or was not a libel was a question of law for the Court, and that the only questions of fact to be left to the jury were, "Did the defendant publish it? And were the innuendoes (if there were any) correct?

This rule, confining the jury to the simple question of whether or not the defendant committed the act of publishing, prevented them, as the presiding judge invariably charged them,-from going into the intentions or motives of the author or the circumstances connected with the publication; for, the matter set out and complained of being in law libellous on its face, the act of publishing when found by the jury rendered the conviction complete.

After a time efforts were made by very distinguished advocates, and especially towards the end of the eighteenth century by Erskine,-to bring about the adoption of a definition of libel different from that theretofore acted upon and more in accordance with changed popular sentiment. The controversy thus occasioned ultimately led to the passing of Fox's Libel Act in 1792.

It was during this controversy that the trial took place of the Dean of St. Asaph, who was prosecuted for a seditious libel said to be contained in certain extracts taken from a pamphlet called a dialogue between a gentleman and a farmer, (1) Mr. Justice Buller in his charge said that the only facts for the jury were the fact of publication and the meaning of the innuendoes; and they returned a verdict of guilty. On behalf of the defendant Erskine then moved for a new trial; and. in his argument thereon before Lord Mansfield, he submitted that the criminal intent was a fact to be found, like any other, by the jury, and that the case of libel formed no legal exception to the general principles which govern the trial of all other crimes. (2) He supported his argument by the celebrated illustration first suggested by Algernon Sidney,-A is indicted for publishing a blasphemous libel in the words, There is no God." Evidence is given that he sold a bible containing the words, 66 The fool hath said in his "heart, there is no God." The matter complained of and set out in the indictment being the words, "There is no God," there is no need for any innuendo; and the jury would be bound, upon the old view of the law, to convict the defendant because, according to that old view, they had nothing to do with his intention, and on moving in arrest of judgment the defendant would be met with the answer that the indictment was good on its face, as the words were blasphemous in themselves, and the jury had found their publication.

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As Erskine's argument proceeded, Lord Mansfield said, "To be sure, the jury "may judge from the whole context; to which Erskine replied, "And what " is this, my lord, but determining the question of libel?"

"6

Lord Mansfield: They certainly may in all cases go into the whole context." Mr Erskine: "And why may they go into the context? Clearly, my lord, to "enable them to form a correct judgment of the meaning of the part indicted, even though no particular meaning be submitted to them by averments in the "indictment."

46

In commenting upon this portion of Erskine's argument Sir James F. Stephen says that, in his opinion, the jury might look at the whole to see whether the words "There is no God," mean “to deny the existence of God," but that it does not follow that they were at liberty to consider what object the author had in view, or by what motives he was actuated when he made the assertion, if he did make it. (3)

For my own part I think that one among other good reasons for holding the jury entitled to look at the whole context would have been so that they could see if the author himself did in reality make the assertion "There is no God"; in other words, to see if the book itself by its whole tenor actually asserted, (which it surely did not), that, "there is no God," or merely stated what a fool had in his heart foolishly asserted to that effect.

(1) 21 St. Tr. 953.

(2) 2 Steph. Hist. Cr. L. 338.

(3) 2 Steph. His. Cr. L. 338.

Erskine, in continuation of his argumeut, contended that as the writing in question in the Dean of St. Asaph's case neither contained nor was averred by the indictment to contain any slander of an individual, and as its criminality was charged to consist in its tendency to stir up general discontent, the trial of such a charge did not involve and could not in its obvious nature involve any abstract question of law for the judgment of a Court, but must wholly depend upon the judgment of the jury on the tendency of the writing to produce such consequences when connected with all the circumstances attending its publication. The question of seditious intention, he submitted, must in the nature of things be a question of fact dependent upon a variety of circumstances which could not appear on the record, to which the Court was confined; for words, which, in their literal meaning, were indifferent, temperate, or even conciliatory, might when spoken or written under special circumstances be seditious. He said, "Circumscribed

46

by the record your Lordship can form no judgment of the tendency of this dialogue to excite sedition by anything but the mere words. You must look "at it as if it were an old M. S. dug out of the ruins of Herculaneum. You can

6.

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· collect nothing from the time when or the circumstances under which it was published, the person by whom and those amongst whom it was circulated; "yet these may render a paper, at one time and under some circumstances, dangerously wicked and seditious, which at another time and under different "circumstances might be innocent and highly meritorious." (1)

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Lord Mansfield however, upheld the doctrine that the jury had nothing to determine but the question of publishing and that of the innuendoes, and accordingly dismissed the motion for new trial. He traced the history down to that time of the development of the law of seditious libel; and in support of his judgment he cited, amongst other authorities, the cases of R. v. Clarke and R. v. Francklin, (in the reign of George II), of Miller, Almon and Woodfall, (in 1770), and the later case of R. v. Stockdale.

Erskine afterwards moved, in the Dean of St. Asaph's case, in arrest of judgment, on the ground that the matter set forth and complained of was not libellous; and he succeeded.

This was in 1783; and nine years later Fox's Libel Act, (2) became law. By that Act it was enacted that in any trial of an indictment for libel, it should be competent for the jury to give their verdict on the whole matter in issue, and that they should not be required or directed by the Court or Judge to find the defendant guilty merely on proof of publication by the defendant of the paper charged as a libel and of the sense ascribed to it in such indictment; but it was provided that the Court should, according to its discretion, give its opinion and directions on the matters in issue in the same manner as in other criminal cases. Nearly thirty years later was passed the 60 Geo. 3 & 1 Geo. 4, c. 8, which practically defines a seditious libel as one which tends to bring into hatred or contempt the person of the reigning sovereign his heirs or successors, or the government or the constitution of the United Kingdom as by law established or either House of Parliament, or to excite His Majesty's subjects to attempt the alteration of any matter in Church or State as by law established otherwise than by lawful means. Since the Reform Bill of 1832 there have been few instances of prosecutions for seditious libel; the more recent ones, such as that of Most, (3),-being, in reality, incitements to commit against reigning sovereigns, crimes of a similar kind to that of the assassination of the Emperor Alexander III of Russia.

The law of seditious libel has been insensibly modified by the law of defamatory libels upon private persons, which has been the subject of a great many important decisions, the effect of which has been, " amongst other things, to give the right to every one to criticise fairly, that is, honestly, even if mistakenly, the public conduct of public men, and to comment honestly

(1) 2 Steph. Hist. Cr. L. 340.

(2) 32 Geo. 3, c. 60.

(3) Reg. v. Most, 7 Q. B. D. 244; 50 L. J. (M. C.) 113.