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highwayman," is not punishable, on account of its vagueness. Chief-Justice De Grey says that "an action for scandal can only be brought when damage has resulted therefrom, or is likely to arise, but when one by parole doth impute to another the want of virtues, or only doth reproach him with faults rendering him contemptible, he is not punishable." If the "vulgarest" word in the language be applied to a respectable woman, only a relatively moderate punishment can be imposed by a judge of the Ecclesiastical Court. If the imputation, however, be made in the City of London, an action may be maintained for damages and ample punishment before the City courts, on the ground of an old custom, whereby the mayor and aldermen are empowered to have unchaste women whipped from the streets.* Whenever, therefore, (by words spoken) a person exposes another to hatred, contempt, or ridicule, no punishment attaches; the same imputations when published, either in writing or printing, become a libel. If the above imputations had only been spoken against Lord Hardwick and Lord Redesdale, they would not have been punishable. A young lady, against whom imputations were made, in a pot-house publication, affecting her chastity, obtained £4000 damages; had the scandal been spoken merely, she would not have obtained one penny, unless she could have proved special damage. Despite the severe laws against libel, a greater liberty of the press in regard to the action of the government obtains in England than in any other country in Europe. The reason may be found partly in the laws, and partly in the mode of public life prevailing in the land.

During almost the whole of the last century the judges declared that it was the province of the jury, on indictments for libel, simply to find that the party accused was the author of the publication. Numerous convictions in cases of press prosecutions resulted from this doctrine.† Fox's Libel Bill of 1792 empowered the jury to determine whether a publication was a false and scandalous libel; thereupon restrictive limits were established against judicial onesidedness, and the government was ultimately defeated in the prosecution of suspected publications. The absence of a special functionary charged with press prosecutions af

* Bl. iii. 125; note 5 to 15, Ed. Christian; and note 9, Bl. 76; Burns E. L. ii: 126.

+ Bl. iii. 230.

The continental Staats-anwalt is a public officer who searches through all

fords a further protection, whereas the action of the jury in assessing the damages in cases of individual wrong caused by the press is treated even more strictly; to secure damages, however, a libel must be at once of a false and scandalous nature.

Because the law of libel is so vague, the issue of a prosecution for libel is always extremely doubtful; private individuals, when calumniated, fear to have recourse to law; and hence the press secures an unwarrantable license. "I do not know any one," says O'Connell, "who has instituted an action for libel who has not come out from the prosecution much worse than he went in." So far as the press has no interest in keeping matters concealed, it goes to work with an aplomb and freedom wholly unknown during the last century. Even Smollett, in his continuation of the History of England, did not venture to make use of the words, "king," "ministry," "government," or "parlia ment;" Wilkes was the first who had the hardihood to indicate, in the "North Briton," the names of high-placed officials and other leading men.

Ultimately, the excess of the materia peccans contributed to render all proceedings against the efforts of the press impracticable.†

In 1777 the well-known preacher, Horne Tooke, was condemned for having opened a subscription in 1775 "for the relief of widows, orphans, and gray old men of our beloved American brethren, who, true to their character as Englishmen, preferred death to slavery; and on this account were brutally murdered at Lexington and Concord by the king's troops." During the last Chinese war, the attack upon Canton was frequently stigmatized as "piracy," and the acts of the English soldiers "murder." The government deemed silence the safer tactics, the dangers of an acquittal being likely to exceed tenfold the advantage of procuring a conviction. The old severe statutes are allowed to slumber, in order, when occasion serves, to be able to bring them out from the lumber-room of the past. "Though the law of England on the subject of the press, is as servile to this day as it was in the time of the Tudors, there is little danger of its being actually put in

the periodicals, in order to pounce upon anything indictable, and forthwith prosecute. In Prussia he has the right to confiscate, even before the judge has decided about the contents of the work.

*Hansard, Ser. iii. vol. xxi. 470.

+ The influence of the press in its operation upon public opinion, will be treated of in Book vii.

force against political discussion, except during some temporary panic, when fear of insurrection drives ministers and judges from their propriety."*

For the contents of the publication, the publisher or propagator of a libel is primarily responsible; and, if he cannot be found, the printer may be prosecuted: the author, however, only in case he assume the responsibility. Both publisher and printer must, in the event of their being made responsible, afford proof of their ignorance of the contents. It has been decided by the courts that the exposing a libel for sale in a bookseller's shop, is to be considered as primâ facie evidence that it has been propagated by the proprietor of the shop; but he may show proof to the contrary. A person becomes responsible, also, for reprinting extracts from the publications of others.

No political publication is subject to seizure, so long as a verdict has not been pronounced; this was decided by the House of Commons, 25th April, 1766. On the other hand two statutes of the last year of George III. and first of George IV. enact, that all copies of a libel subject to punishment-that is, after the judge shall have pronounced such publication libellous-are subject to suppression. By Lord Campbell's 20 and 21 Vict. c. 83, an official seizure, without previous sentence, is permissible in the case of obscene and immoral books and prints; any police magistrate or two justices of the peace may, on a sworn information, issue a warrant for the seizure of such productions by day, and, if need be, by breaking in the doors.

The compulsory newspaper stamp has, by recent enactment, been abolished; as an equivalent for the impressed stamp, the post-office undertakes to forward publications free of charge.

Theatres are under survey of the Lord-Chamberlain and his subordinates; this claim was originally upheld as a custom merely. Walpole sanctioned the system by an Act of Parliament; his

* Mill, On Liberty, p. 31. Mr. Mill further saya, that the government press prosecutions of 1858, although an illjudged interference with the liberty of public discussion, have not induced him to change the opinion above expressed -1st, because the prosecutions were not persisted in; and, 2ndly, because they were not, properly speaking, political prosecutions. The offence charged was not that of criticizing institutions, but of circulating what was deemed an im

moral doctrine. Mr. Mill is of opinion that there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.

This was decided by the House of Commons, 25th April, 1766, vide Julius Lorbeer, Die Grenzlineen der Rede und Pressfreiheit nach Englischem Rechte, p. 418.

H

Playhouse Bill, 20 George II. c. 28, enacted, that every piece should, fourteen days before its production, be submitted to the censorship, under penalty of £50 and loss of license; any actor who, without a fixed place of abode or license from the LordChamberlain, should represent any such piece, should be treated "rogue."*

as a

The Lord-Chamberlain grants licenses to theatres, according to 6 and 7 Vict.; the Home Secretary may pass regulations affecting all theatres, with reservation of local observances. Theatrical representations in booths, markets, and fairs are granted by a justice of the peace or local authorities. The Lord-Chamberlain further orders the closing of playhouses in the event of a death in the royal family. In the present year Lord Sidney, the actual Lord-Chamberlain, has roused the clergy to excitement for having accorded permission to open theatres during holy week.

Mahont boasts that the censorship of plays has never been exerted in the interest of any party; a certain administrative solicitude has, however, been occasionally brought to bear. Thus, during the French Revolution, the Lord-Chamberlain, in a piece called the "Iron Mask," converted "the Bastille" into "the Island of St. Margaret," with a view to forestall ill-timed allusions. This was, indeed, at a period when the keeper of a public-house in Cambridge was forced to take an oath to denounce all political conversation;§ and when a militiaman, for employing democratic language, at the mere order of his superior officer, was flogged-a period when the English aristocracy seemed fairly to have taken leave of its wits.

* Mahon, ii.

+ Ibid. ii.

+ Moniteur Universel, 1790, 3, Dec.

§ Archenholz, Brit. Ann. x. 183. || Ibid. xi. 41.

CHAPTER IX.

PROTECTION OF PERSONAL LIBERTY.

Magna Charta.-Protection of Prisoners.-Arbitrary dealing of the Tudors and Stuarts.-Petition of Right.-Acts under Charles I.-Habeas Corpus Act.-Jail Delivery.-Who may Arrest.-Form of Arrest.-Warrant of Commitment.— Bail.-House-searching.-Insolvency.

MAGNA CHARTA, repeating the "good old Saxon law," enacts, Art. 39, "Nullus Liber homo capiatur vel imprisonetur, aut disseisietur de aliquo libero tenemento suo vel libertatibus vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nisi per legale judicium parium suorum vel per legem terræ." "No free man shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free-customs, or be outlawed or exiled, or any otherwise destroyed, but by lawful judgment of his peers, or by the law of the land."* Chatham declares that this barbarous Latin of the "Iron Barons" is worth all the classics.†

Later statutes aimed at protecting prisoners from arbitrary treatment. In the reign of Henry II. it was forbidden to put fetters upon prisoners. Bracton says, "Imprisonment should serve for safe custody, and not for punishment." In every court of law the accused, from the time of the Plantagenets, must appear without fetters.‡

All these wise provisions were found insufficient against the arbitrary authority of the Lancastrian kings, the Tudors, and the Stuarts. Under Mary, Sir Nicholas Throgmorton was charged with levying war against the queen, being an accomplice in Wyat's conspiracy, intending to depose and destroy her Majesty, and in order to it, with conspiring to seize the Tower of London.

"Neminem captivari permittimus nisi jure victum," says the old Polish Habeas Corpus Act of the 16th century, (vide Poelitz, Europaeische Verfassungen, vol. iii.)

Brougham, Statesmen, etc., London, 1855, 37: "Those iron barons (for

so I may call them when compared with the silken barons of modern days) were the guardians of the people, and three words of their barbarous Latin, nullus liber homo,' are worth all the classics." Crabb, 311.

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