UNIVERSITY OF CALIFORNIA AT LOS ANGELES DISCUSSIONS OF THE LAW OF LIBELS AS AT PRESENT RECEIVED, IN WHICH ITS AUTHENTICITY I S EXAMINED; WITH INCIDENTAL OBSERVATIONS OK THE L.EGAL EFFECT O F PRECEDENT AND AUTHORITY. 8 P 3 5 :, L O N D ON:, PRINTED FOR T. CAD ELL, IN THE STRAND, M. DCC, tXXXV. 8'-.U 1 AT >r aa i '_! HV Pajjagesfrom the Private Correfpondence of the Editor. " WITH refpec~l to the publication in queftion, you admit, I think, that the fubftance of our conferences is, g upon the whole, faithfully preferved. This is all I afk. You muft then allow it at leaft, the merit of containing the law itfelf, with your Readings upon it : it may - alfo have that of proving its fuccefsful refiftance to the cavils of the captious = objeftor. " You Hill fufpeft that more accurate refearches in the hiftory of our law would evince, that this doclrine has a higher o ; w original and more authentic fanclion than I I attribute to it ; and that the argument ^ ^" on your fide has not all the advantage to A 2 which hich it is fairly entitled. You have however, had recourfe to the topics upon which it is generally fupported ; and you will obferve, that my reafoning has for its object, not only to fhew that it is not law, but that if it is law it ought no longer to remain fo. " I may admit libel to be a public offence, but I may at the fame time doubt the authenticity of your doctrine in its extent : I may admit the authenticity of your doctrine in its extent, and ftill queftion its juftice. c< Your conjectures have, however, fuggefted the neceflity of a more particu- lar inveftigation of the fubject ; and, I own, I cannot after all difcover upon what ground of authority Lord Coke Jays down his doctrine as the common law of England. ' ' r ' ' ' ' ' m L r r ' c ' -a tif\ * c From the laws of the Weft-Saxons which were probably afterwards incorpo- rated rated into the general code founded by Alfred, and reftored by Edward the Con- feflbr, it appears a indeed that penalties ftrongly tinctured with the barbarifm of the age, were inflidted upon the calum- niator. Lord Coke b has alfo cited laws of Alured, Edgar, and Canute which clearly prove this point. But it is to be obferved that even in thofe times the of- fence confuted in t\\z falfehood of the ca- lumny. I muft alfo remark, that had the law of (lander, as at prefent received, derived itfelf from fo remote an origin it is manifeft that every fpecies of fla.nder would have been penal ; and that penal (lander might have been juftified. But we know that by our law every fpecies of flander is not penal ; and that by the law, as delivered by Lord Coke, the truth of penal (lander, or libel, is no j unification of it. ft To this do6lrine, which profeffes to be the common law of the country, a Larabard Archaionomia. t> 2 Inft. 227. ( vi ) no fupport is derived from the mirror, Britton^ Fleta, or Fitzherbert no orna- ment c from Glanville or Bratfon. " From Britton, I find indeed among the articles of public offence, which were required to be prefented before the juftices of Eyre, the devifmg and report- ing falfe rumours concerning the king, ceux qui trouvent G? content menfonges de nous d . In Fleta mention is made inftead of //. 20. * rcadww, inflead of w. 64. 7- rea<1 DISCUSSIONS, &c. L. T Plead to the jurifdiction ; I deny -- it's competency. The iffue of this great queftion muft be tried by the law of the land alone. When I call for that law, you read me the *decifion of a court, the principle of whofe constitution, the rules of whofe proceeding, the fpirit of whofe judgments were in perpetual conflict with it. * The cafede Lfaltit Famofis, 5 Co. 12$. B %. I TU I do not produce this Star-Cham- ber determination, for it's intrinfic merit only, but for the fan6tion the doctrine contained in it, receives from the con- current opinion of that great oracle of our law, the Lord Coke. (I Z/. The refponfes of that oracle, like thofe of other oracles, were fometimes prompted by the perfonal policy of the prince, and the ambition of the minifler. His extenfive profeffional learning gives great weight to his opinion on all occa- fions ; but there arc fome in which his intereft muft be placed in the oppofing fcale. When I confider the afcendancy of the prerogative at the time in which he lived, I do not feel myfelf difpofed im- plicitly to fubfcribe to his fentiments, on a queftion which in certain refpecls con- trailed the power of government with the liberty of the fufejecl:. The true value of t 3 ] of his opinion in every cafe iriuft be efti- mated by ; the teft of " reafon and the " franchife of the land." %. This is his own fentiment ; and you pay an involuntary tribute to his memory, when to refift his authority, you are obliged to have recourfe to the arms himfelf has furnifhed. Z/. It is. true ; I cite Lord Coke againfl himfelf ; 1 appeal from Lord Coke the courtly judge, to Lord Coke the patriot Englifh .lawyer. I repeat it, I mean to eftimate, . not to depreciate his authority. And if I were to delineate his moral cha-, rafter, I would wifh to view it, not in the meridian funfhine, but in the mild evening of his day. I fhould defire to forget his invectives againfi Effex and Raleigh; and to remember only that he afterwards oppofed the meafures of def- B 2 potiim, : ;v " : [ 4 i potifm, that he drew and propofed the petition of right. When I fee him fuf- fering under the fangs of the prerogative, ee that overgrown monfter," as he then calls it, I wifh not to mix with the emotions I feel a malignant pleafure from the re- flefting, that he had himfelf aflifted to rear it , . All I intend at prefent is to enquire whether there was any juft caufe for the king's command delivered to him at the council, in the hour of his difgrace, by Winwood. The fecretary enjoins him ** to review, in his retirement, his books " of reports," wherein he tells him, " his >.tfl/' r .'"'..'' *f. ;;'.* ct iihw I >.?. L. Among the precedents of that reign, there is one which gives us the outline of the proceeding of the Court of Ring's Bench, againft forcerers. I take it from Hawkins * and will read it to you.- Pleas of the Crown, B. i. C. 3. ' JU You - [ 6 ] %. You need not > I recollect it per- feftly well : but the law is now obfoletc. L* We have, it is true, no more for- cerers j the law has ceafed with the ob- ject of it : fhould this art, however, be rertored, you would not, I think, propofe the precedent as a correct model of the ..... . c judicial cognizance or it. X _ _ , r , %,. This is an unbecoming fneer i impeach the authority of precedents, and you render vain and illufory the boaft '* of being governed by known laws/' ybli'io ' !; r. ; r: T t zr, ( iti:i> r, vKr.^ <>t .l-MT ^ L. I wifli to maintain this glorious privilege, by fixing it on the firm and con- (iftent bafis of reafon. The excellency of laws does not merely confift in their being known, but in their juilice and equality- It is you debafe the authority of prece- dents, by the blind and implicit confi- dence [ 7 1 dence you exac"l to itj not I who defirc my faith to be enlightened. TL- I do not attribute infallibility to the judgments of our courts ; on the con- trary, I know that former precedents have been frequently declared in fubfe- quent decifions of the fame points, " not " to be law.'* And I know too, that the general practice of every court, and the right of appeal from one to the other, fuppofe the poflibility of error. But ob- ferve the courfe I have taken ; I indeed admit to you, that the law, as received at prefent, on this fubject, derives itfelf immediately from the report of a decifion of the Star Chamber, the famous cafe of libels ; but I afTert, that this decifion was declaratory of the common law, as it then exifted, and in proof of this afler- tion I offer the opinion of the reporter, and the precedents to which he refers. What t 8 ] What is the nature of the evidence you require ? L* I certainly do not expecl that you fhould produce a chapter, from the com- pilations of Edward the ConfefTor, a fragment of the dome-book of Alfred, or a ftanza from the fongs of the Druids. If you were to produce the law itfelf, you would, in the language of the profeflion be non-fuit ; fince you have undertaken to eftablifh it by immemorial ufage alone* And in fupport of that ufage I cannot I know, require any other fort of proof than that which you bring. I ad- mit, that in queflions of this nature, precedents and authorities are ftrong pre- furnptive evidence of law : as fuch, they indeed become conclufive when unen- countered by fuperior evidence ; but as fuch too, by the force of fuperior evidence their effect may be defeated. [ 9 %. And what do you confider as the evidence fuperior to that of precedent ? L. That which is deduced from the law itfelf ; the evidence of it is reafon. -(i< :;.. .vicfn .10 ,:}:io -to' torrj:) )L. And whence do you collect the reafon of the law ?' ji!gi3w aiom -avfiil isdrnun i3Jfi3*jg orlj vir// Z. From its eftablifhed principles. ft. And thefe eftablifhed principles, what gives them their ilamp and cur- rency ? Z/. The general obfervance of them ia judicial decifions. C That ' [ 1 ] ' %. That is, in precedents ; you are re- duced to the neceflity of confefling the authority of precedents, in the very in- flant in which you controvert it -, to pre- cedents you oppofe precedents. L. I oppofe evidence to evidence; I oppofe the evidence of precedents in general (for principles are abftractions from precedents in general) to the evi- dence of one or more. And in this the law is confiftent ; its refpeft for the au- thority of precedents is the very reafon, why the greater number have more weight with it than the lefs. JL. I do not difapprove of your idea ; on the contrary I wifh to fix it, as I hope to avail myfelf of it hereafter. It is not then, the fuggeftions of general reafon ing, unexcrcifed in, and unapplied to, the [ " 3 the fcience of the law that you would oppofe to the authority of precedents ? L. Certainly not ; but the reafon that arifes from a fyftematic view of it. %. And the precedents of which the reafon has ceafed, or for which the rea- fon does not appear, or which general reafoning may perhaps disapprove, but againft which no reafon can be drawn from the law itfelf, ought ftill, you con- ceive, to be fupportej. L. Exactly fo ; the law, if I may be allowed the expreffion, obierves no neu- trality on fuch occafions, If it is not againft a precedent it is with it, and it frequently happens that it protects a de- cifion which perhaps from its own weak- nefs could not defend itfelf; and that, upon this principle of found policy, that C 2 the . 12 ; the error of one precedent is rather to be endured, than the uncertainty of all. %. It would then follow, that in a queftion upon the unwritten law, a court would be as much bound by the rule which precedent had eftablifhed, even though it fhould not approve of it, as it would be in a queftion of written law, by a pofitive ac~l of parliament, the im- policy of which might be manifeft. L. You are fixing me indeed ! JL- The confequence is inevitable from your own premifes, L. With the qualifications I have an- nexed, I believe I may admit it. The court, in the confideration of an ad" judged cafe, cannot, I think, regard the in- inconvenience or harfhnefs of its opera- tion, in the particular inftance before it : it can only examine, whether it be or not legally inconvenient - y confident or in- confiftent with the principles of that fyftem, of which it profefles to form a part. The upright judge, imprefTed with the religion of his high office, pronoun- ces that judgment, not which his private reafon, but which his duty fuggefts, per- quam durum eft fed ita len efl. I have, I hope, fufficiently explained myfelf. &. You have indeed conceded to me more than I expected, and have fo com- pletely aflifted me in the fortifying my pofition, that I cannot difcover, in what quarter a breach is practicable. L. The metaphor is not germain to the fubject. For the purpofe of illuftrating my idea, and of placing your arguments in [ '4 } in their true point of view, allow me an alluiion with which the nature of our enquiry has more affinity. You have fet out your cuftom upon the record} you have opened your cafe, and the evidence by which you intend to fup- port it. To your Star-Chamber deter- mination I object, that it is not a court of competent jurifdiftion ; the judgment is not conclufive. As your firft witnefs you call I think Lord Coke. &. Whom you confidently with your objection to his intereft mean I fuppofe to examine upon a voir dire. L.I [ '5 1 i. I always wifti to hear Lord Coke ; my objection does not go to his compe- tency but merely to his credit. For your next evidence you offer two precedents. . You will not I hope aver againft the record. L, Certainly not ; one of them does not conclude for you ; and the other con- cludes againft you. E. I propofe in the next place, to pro- duce a cloud of as refpeftable witnefles as ever appeared in a court of juftiee. L. Not I hope to the general charac- ter and credit of your firft witnefs j have I impeached it ? ? !L. I [ 16 ] JU I mean a feries of authorities and decifions Jince the time of Lord Coke to the prefent moment. 73 J/ k J*I L, However highly I may deem of the great names which have fanclioned thofe authorities and thofe decifions, I cannot allow you to avail yourfelf of their tefti- mony ; it does not meet the point of the queftion : for you have undertaken to prove that your law exifted before the time of Lord Coke. If you cannot (hew this, the doctrine contained in the refo- lutions of your Star-Chamber cafe is not law ; unlefs you mean to contend that the pronouncing it made it fo. But I am fure, whatever might be the arroga- tions of that court, you are too good an Englishman, to allow it to have had a legiflative authority. i tf L~H'J3 r *IT! t . I have not fufficiently prepared my- fclf with evidence from that period, to which I 17 ] which, I admit, the queftion is in its prefent fhape confined. L. Perhaps the fearch may be uime- ceffary j let us however examine the precedents * you have produced. Upon the firfl J obferve, that it is incomplete j the judgment does not appear. As it is at prefent, it only proves that it was the opinion of the profecutor, that the offence was indictable j but it does not fhew that this was the opinion of the court, on the contrary, one might infer, if no judgment was pronounced, that it was the opinion of the court, that it was not an indictable offence. But, admitting that judgment actually pa{Ted, ftill I obferve that this is not evi- dence of that full and decifive effect, which the importance of the queflion requires. I fhould have expected the production of * 3 Inft. 174. D a [ is 3 a record in which the point had been de- termined, after argument and folemft confideration, upon demurrer or arreft .of judgment. This cafe may have pro- ceeded, according to* your own Lord .Coke's expreffion, " without challenge of " the party or debate of the juftices." I apply this lad obfervation to your other precedent ; but allowing it its full force it makes againft you. The judg- ment indeed appears, but unfortunately contradicts your firft witnefs, and con- cludes againft the allegation of your cuftom, " that * the truth or falfehood of the libel is immaterial to the nature of the offence. For the falfehood of the libel is Hated as the ground of the judgment ; qute liter a continet infe nullam Z/. I doubt whether you have made fuch a cafe as entitles .you to call upon me for ah anfwer. Your evidence is not only defective, but contradictory 5 and * 5 Co. D 2 de* t ] dcftroys the very cuftom it affects to fupport. But I wave my objection to that which you have already produced, or may hereafter produce. The error I aflign is upon the face of the record. The cuftom you have fet out is unrea- fonable -, it deflroys itfelf. The law you advance profefles to de- rive itfelf from a period of antiquity, at which, from the general ignorance of the arts, not only of printing, but of writing, the offence of libel, which, as you define it, confifls in written or printed defama- tion, was fcarcely poffible. Certain it is, that it could not be of fufficient frequency to engage the attention of the legiflature. I do not fo much infut upon this obfer- vationj t ] vation, becaufe, at whatever period it might obtain, this law, (I repeat the ex- preffion) is " againft reafon and the fran- " chife of the land." . Allow me to interrupt you. Do you mean to contend that no pra6lice can be an offence by the unwritten law, but that which muil have had a necefTary and frequent occurrence, in that period of remote antiquity, from which fome of bur common-law cuftoms are fuppofed to derive their origin? I think you might as well infift, that the deftroying a man by fire-arms, was not capital by the law of the twelfth century, becaufe gun- powder was not invented till the thir- teenth ; that poifoning with laurel -water was not murder, becaufe the knowledge of it's deleterious effects is a recent dif- coveryj or that a nuifance cannot be com- mitted by a preparation which infects the common common air, becaufe the relative proper- ties of its ingredients, have been newly found out by the chymifh . _ > L. Every malicious deftruction of the life of the individual is murder j every in- jury to the public health is nuifance. But if you were aflerting the exiftence of a law in the twelfth century, which made the ufe of fire-arms in every cafe penal j or which before the noxious qualities of the diftillation you inftance were known, prohibited the adminiftering it in medi- cine j or which, to meet your third cafe, before the unwholefome effects of your chymical preparation had been difcovered, declared the experiment a nuifance ; I ftiould object, as I do now, that the law Defeated itfelf> that its exiftence was not fuppofeable. . You t *3 3 - 1L. You fay, that every injury to the public health is a nuifance j whence, I afk you; do you derive the fanftion of that law, but from judicial decifions f srn . - L* It is impoflible not to admit, that a great part of our law owes its immediate original to judicial declarations ; but it is alfo to be traced up, as to its fource, to .*-'< the firft principles of the law and govern- ment of this country, from which fuck decifions are the unforced derivations^^ {*>; V'/^^O^i V':>l; '- fbtt Sift !L. This is precifely the point to whicft I wifhed to lead you : And why may not the law in queftion have been fo derived ? Z. You have I think, taken another courfe you profefs to derive it, not from the general principles of the law, but from a pofitive conftitution, by which libel / !*'** J libel was made an offence, and a fpecific penalty annexed to it. But whichever of thefe courfes you take, my objection meets you; as I am to maintain that your Jaw is unreafonable, in the ftrict fenfe we have before annexed to the term. For obferve. As you do not produce the law itfelf, you muft neceffarily proceed in one of thefe ways ; either you offer your au- thorities and precedents, to induce a pre- fumption that die law once exifled j or you produce them as deduc"lions, from the general principles of our fyflem. In the firft inftance, I oppofe evidence to evidence, to your authorities and prece- dents general principles ; and I fay, that the prefumption againft its having exifled is ftronger than the prefumption for it. Jn the fecond inftance, I anfwer, that the law you fuppofe, is, not only not derivable from, but abfolutely inconfiftent with the principles of our law. In [ 25 3 In cither view, therefore, the enquiry refolves itfelf into this queftion: whether the law as received upon this fubjecl, be deducible from the general principles of our legal fyftem ?-~you engage fo to de- duce it ;-*-! am to maintain that it is in- confident with them. And as in a quef- tion of private right, our reafonings would be drawn from the civil depart- ment of it j fo in a queftion of public wrong, they rnuft be drawn from its cri- minal department. If the precedents and authorities you can produce have, the fanction of thefe principles, I admit the juft effect of them; but againft thefe principles they cannot, I think, prevail. E [ 26 ] &. I confent that the difcuffion proceed upon this ftate of the queftion : you have however, I fufpeft, formed a hafty and rafh conclufion. Tecum habita et noris quam fit libi curta fapellex. L. I do not pronounce j I wifti only to examine. In return for your advice, let me cite you an obfervation, which, to each of u's, may fuggeft an ufeful leflbn. The chancellor d'AguefTeau in the con- clufion of his inftru&ions to his fon, on the ftudy of hiftory, has this paflage, " ceuxcy veul.ent juger de ce qui s'eft fait, *' par ce qui doit fe fairej et ceux la " veulent toujours decider de ce qui doit fe faire par ce qui fe fait. Les uns " font, fi je i'ofe dire, la dupe des raifon- i:; ; J think I perfectly well underftand the -fpirit of Lord Coke's eulogium, on the court of Star-Chamber, " This court, " the right inftitution and antient orders " thereof being obferved, doth keep all " England in quiet*" ; I think I com- prehend the principle, upon which this court affected the criminal cognizance of a civil injury j made the fenfibility of the injured party, the meafure, not of its reparation, but of its vindictive fatisfac- tion; difcovered in his poffible refent- ments, a poffible difturbance of the public * 4 raft- c. f. '1 F peace, I 3.4 3 ;;, / peace, and adminiilered to if not preven- tion but punifhment. When I read the famous cafe of libels, I own I am not furprized that the learned reporter gives us declamation in the place of fober reafon. But the pr-emifes of the doctrine of that cafe once granted, I muft admit, I know, the confequences that follow from them. When your authority aflerts * " that it is not material, whe- " ther the libel be true, or whether the " party againfl whom the libel is made be " of good or ill fame," I may doubt the legality of the pofition : but when I read that a libel upon perfons entrufted with the adminiftration of government is a flill greater offence, I underftand the ufe of the argument a fortiori ', and feel all the force of the inevitable conclufion. In the darkeft pages of our hiftory I collect the * 5. Co 1*5. purpofes [ 35 3 purpofes of this inftitution from the purpofes to which it has actually been employed. E. The order of a good government I ftill think requires the puniflirnent of this offence ; for, if there were no public redrefs for the injury *, the injured party- could not be rellrained from acts of vio- lence. The law allows, in many cafes, no other remedy for libel. L. The order of good government re- quires fuch a fyftem of juitice, that no public wrong (hall be without its punifh- f i Hawk. P. C. 73, F 2 nient, t 36 3 mcnt, no private wrong without its compcrifation. This fyftem once com- plete, the private party who takes the punifhment of wrong into his own hands, is an ufurper of the public authority : and this the law cannot pre-fuppofe. L. But upon what other principle does government take cognizance of any in- jury whatever, but upon that of prevent* ing the difordcr that would enfue, from the individual's righting himfelf ? L. This is certainly the motive upon which government not only punifhes the public injury, but compenfates the private one. But, before this principle can have its application, the acT: itfelf muft from its na- ture be an injury public or private. Inilead of the criminal ingredient of this offence, you fubftitute the general motive of go- vernment to the punifhing of all of- fences [ 37 1 fences whatever. I will illuftrate my meaning. If I were to afk, why murder is an, offence ; in the fpirit of your reafoning you might anfwer, becaufe, if it were not punifhed, the relation or friend of the deceafed, might be inflamed to avenge his death ; violence and diforder might enfue. To this I fhould then obferve, this is not the circumftance which confti- tutes the crime, this is the motive of go- vernment to the punifhing an a6l which is in itfelf an injury to fociety, the ex- tin6tion of a life in which it is diredtly interefled. Again, if I were to afk, why govern- ment enforces a compenfation for an injury to the private rights of the individual; you might alfo anfwer, to prevent the party claiming it, from compelling a re- paration by force, Here likewife I ihould remark, [38 I remark, this is merely the motive of go- vernment, for exacting a fatisfaftion for the violation of a right which it recog- nifes. But I fhould not complicate a public offence in this manner : I fhould not fay this a6l is in its nature an injury . to the individual ; but it is an injury for which the law gives no fatisfaclion ; and the law giving no fatisfaction for it, it is poflible the injured party may compel it by force ; and becaufe the injured party may compel it by force, this acT: has a tendency to a breach of the peace ; and becaufe it has a tendency to a breach of the peace, this act is a public offence. H. Do you then mean to contend, that this fpecies of defamation ought in all cafes to be remediable by civil redrefs ? ,. It is not necefTary to my argument that I fhould contend for fo much. You are to fhew it a public offence. Upon [ 39 ] Upon the firil view of this offence, as you define it, one might be inclined to rank it in the clafs of actionable injuries. " The expofing the individual to the con- M tempt or hatred of mankind," one might think cannot but be injurious to his com- fort and happinefs j a damage which feems as eftimable by compenfation as many others for which it is enforced: Confidered in another refpeft, the injury becomes flill more palpable to fuch an eftimation ; the good name of the indi- vidual is a valuable pofTeflion ; it is in every rank of life, if not property itfelf, the means of acquiring it. It is not I, however, it is you who are reduced to the neceffity-.of confefling it hi all cafes, in which it is criminally coguifable a civil injury. It is you, who for the purpofe of railing it to : an importance fufficient to engage the attention of government, defcribe it as the higheftof injuries to the individual, and of all others the mod feniibiy t 40 ] fenfibly felt by him. And you cannot do this, without imputing the not having provided civil redrefs for it, as a defect in our fyflem ; but you do worfe you reprefent the law as availing itfelf of this very defeft, for the purpofe of making the act a public offence. Produce me another inftance of an offence fo confli- tuted by our law. . I may admit the cafe to be ano- malous ; but the injury is fo too. It is fuch as the law cannot but recognife, and at the fame time fuch as cannot al- ways be the fubjecl of civil fatis faction. .-/::'; o . n '.'>' ' ad ! * V ; r, 5 01 * -~ L. But [ 4' ] < L. But in cafes where defamation is not remediable by a6lion, is it not cog- nifable by fuit in the fpiritual court ? JU If it import a charge of an offence there punifhable. L. The fyftem then feems to me to be j complete. Where-ever the law can take notice of the defamation, it appears to have provided adequate remedy : for the moral injury the fpiritual proceeding; for the civil injury the proceeding by civil action. What then remains for the cri- minal proceeding ? %. The writing, or printing the defa- mation. L. But the writing or printing does not take it out of civil cognifance. Li- G bel, I 42 ] . bel, if it contain a&ionable flander, is ftiil alienable. %. But it takes it out of the cognifance of the fpiritual court. L. Upon what principle ? does the defamation become from this circum- ftance lefs immoral or lefs irreligious ? %. Upon this principle, that it is in- dictable at common law. JL. This is indeed a reafon. Your ar- gument " is come full circle." I obferve however, that your reafon from the want of redrefs is not co-extenfive with your law -, it does not prevail in thofe cafes of libel for which there is a remedy by action. L. Still [ 43 ] E. Still you muft admit, that it ought to prevail where the law gives no fuch remedy. L. The confequencc is by no means necefTary. If the injury be fubftantial enough, for the prefumption of damage to the individual to attach upon it, it is fubftantial enough for compenfation ; if it be not -omnla fcire, non omnia refcqui. A moment's recollection will, I think, fuggeft to you inftances of theJRz^/r, the Sidneys of their age j which fhould have for its purpofe to rake up their aflies and to extinguifli the Hill-remaining fparks, by which tjie flame of patriotifm might be enkindled. Such a publication, I might confider as an attempt to fub- vert that public virtue, upon which the happinefs of a flate depends. We have then examined the matter qf the offence, (if I may ufe the expreflion j) let us confidcr-its form, the mode of its communication. The [ 53 -3 Ta e (lander of the individual by loofe words, is at moil only actionable. -To render them criminally cognifable, they mufl be conne^ed in a fort of compofi- tion, which implies premeditation. Am I fo to underftand you ? . Certainly. -r r* 1 t -i^tt L, So that to reclaim ' the winged L. This indeed would change its na- ture j the act would then commence an injury to the public. For, I admit that every publication, be the object of it what- ever it may, that, from the expreffions and ideas it conveys, is offenfive to the public morals, and decency becomes from this circumftan.ce criminally cognifable. This eircumftance I admit too, might render the libel upon the character of the indi- vidual a public offence j but it would be I acci- [ 58 ] accidental not efTential to the injury. The mifdemeanor in the cafe I fuppofe, would be punifliable, not bccaufe it is an in- jury to the individual, which the indi- vidual may refent 5 but becaufe it is an injury to the public, which the public ought to punifli. . You admit the poffibility of the of- fence againft the public morals and vir- tue ; and you do not exclude that of the offence againft the public peace. The " tendency to the breach of it," I cannot help ftill infilling is the very " gift" of the offence of which we have been fp.eaking. L. I am endeavouring to analyfe this doftrine, but when I alk you for the reafon of it, you anfwer me with a technical phrafe. I am examining the ftamp and value of the coin, and you think you fatisfy me, by telling me, you have received it for current. L.WE L. T T T E have now, I think, con- * V fidered the nature of the in- jury, and the modes of communication, which render libel a public offence. E. I omitted to mention that it may not only be committed by writing and printing but alfo byjigns and pictures. L. The expreflion reminds me of a point, which, though within our pre- fent view of the fubjecl, we have only I 2 touched ' .' t'v. t 6o 1 touched upon. It deferves however a diftinft and particular examination. It is, I think you fay, immaterial to the nature of the offence, whether the reprefentation be true or falfe. U. Certainly ; for the more true it is the more provoking. L. To a man who has a deformed per- fon, there is frequently nothing fo pro- voking as the exhibition of it, by any one but himfelf. In fuch cafe, the demerit of the artift, would be exactly in pro- portion to the fidelity of his pencil. The moral painter, in courfe, who delineates, however truly, the ridiculous foibles, the contemptible manners, or the odious morals of another, is at leaft equally cul- pable. I fpeak not of the caricature, but of the juft portrait. . You [ 61 . You have drawn the necefTary con- fequence from the principle 1 maintain. L. It would feem, I own, on the firft impreflion, that the colors of the painter, and the language of the writer, are merely the media, through which thefe deformities of perfon and character are viewed ; that it is the object itfelf, not the reprefentation of it, which reflects the ridicule or fcahdal. The dramatic poet, the fatyrift, then whofe profeflion it is, to expofe the vices and follies of men are criminal characters. ,. It is not the fatyrift, but the li- beller, that incurs the penalty. The fatyrift exhibits the general character of the times j the libeller the particular character of the individual, L. I t 62 ] L. I understand you : you may exhi- bit to the age its form and pieflure, but you muft not hold up the mirror to the individual. You muft not cenfure one individual, but you may cenfure all. The private portion of the public odium is in- finitely fmall : thus divided it is felt by no one. But fatire has, for its general purpofe, the correction of the public manners : may not the cenfure of the individual proceed from a motive equally virtuous, the reformation of its object. L. The duty arifing from particular relations in fociety, may render fuch cenfure juftifiable. In the inftance of the painter you have alluded to, it is the bufmefs of his profeflion to give refem- blances to the perfons who fit to him. L. I accept the qualification, and fhall hereafter remember it. But befides the relative [ 63 3 relative duties to each other, which may arife from our particular (ituations in fo- ciety, is there not a duty to fociety in general ? . No one has a right to conftitute himfelf the cenfor of private characters. L. The cenfor, I fuppofe you mean, who draws from fact's his own conclu- fions, and annexes to them criminating epithets; who forms his judgment of the individual from particular instances, and pronounces fcntence upon his general character. He who fo judges, deferves himfelf feverly to be judged. But what (hall we fay of the mere relater ? of him who only finds facts, and leaves the con- clufion from them toothers. Is he equal- ly criminal if the facts themfelves be true ? Amgs t 64 ] Amas d'epithetes ! mauvaifes louanges ! fays La, Bruyere,ce font les faits qui louent. Reverfe the obfervation and it applies equally to cenfure. . The truth of the cenfure I have "al- ready faid is an aggravation of the of- fence. L. One might have thought the re- verfe to have been the cafe ; that the of- fence was heightened bv the falfehood of *~-' ^ the charge, diminifhed by the truth of it. But I underftand you it certainly be- comes more provoking to the perfon who is the object of it : the accufation of his own confcience doubles its feverity. This rule, however, produces to the accufing party ftrange fort of fupererogation of the demerit of the party accufcd. 1. The [ 65 . The expreffion is juft ; libel is an tio*) and ought to be judicially pre- ferred ; not in this odious courfe. L. All immoralities are not judicially cognifable. There are violations of fo- cial duty, amefnable to public juftice by no regular procefs, in the knowlege which the interefts of fociety may be concerned. The perfidious friend- t;he feducer of unfufpecVmg virtue -the cruel fpoiler of domeftic happinefs the hard unfeeling opprefTor of his dependants all, all, de- fire the " convenient feeming" of honefty, Da mihi failure : da fanfttim juftumque videri : Noftem peccatis, et fraudibus objice nubcm. They may well indeed refent the officious caution to mankind againft-them: but does the law itfelf prepare the difguife for fuch characters ? does juftice make common caufe with the importers in morality and religion, and in confideration for the irri- tability of their refentments, arm itfelf K to [ 65 ] to avenge the detection of their profli- gacy ? tt> , Irt'i I I JU Mere declamation ! L. I have, however, heard of a maxim of the civil law, which our law has I think not over looked; " eum qul nv- <( centem lnfamat y non eft cequum et bo- cc num ob earn rem condemnari -, deli Eta ct enlm nocentium not a e/Je oportet et ex- *u t <( pedit" ,-ih JL. This reafoning has with us, its ap- plication only in the civil proceeding. L. Hereafter I may have an opportu- nity of more particularly examining how . far this diftinclion be deriveable ex cequo et bono. When we come to view your doc- trine ia its further confequences* it -will c. be 'be neceflary to enquire into the legality of the pofition, " that the defendant " fhall not be permitted to give that de- " fenfive ""matter in evidence, under the " general ifTue, upon a criminal profe- " cution, which, if the fame individual * e : al had .been the. fuhject of a civil ac- " tipn, lie might have fpecially pleaded J ' / i . i J J I i 1 ^4*^ - - i 1^' ^ ! i J ' 1 i J i - ' - j * w ,' "/ ^ * * ''for hbj unification." At prei'ent, J take this pofition to he utterly Incqn- t^>'.*. i. '"' A T 1 ^ J 1 **" V.v-j'-*^^ ' "*, -s~~'<\ fiftent with the- eftablifhed rules of our .'.x\ r ;\ .Xi *uutVi yv*iv.fc'i v'.v^.wV." ssxv.*^^v'j i judicial proceedings^ rules not merely, pofitive or arbitrary, but founded in tlie. JL " STu f- r ''j ' 'i n *'~j """ r r%r ' eternal principles of -reaifon and juftife, It is in this cafe aiorie, i cSfeve, tne. fuppofed criminal is deprived of tnofe arms for his felf defence, with which the humane temper of our ' law ' is* in every other cafe anxious to farnifh Kim. Tiie reafon for this rigorous, peeulianty^ll alfo, I believe, fyereafter explain h(e}f,. .. &. There E. There may be fomething plaufible in your reafoning upon this firft part of the fubjeft : I muft however fufpect the fallacy of it. Perlculofum eft quod non virorum bonorum comprobatur exempli s. The pofition you have now been impeach- ing, has ever been the governing prin- ciple of that court, in which the offence is cognifable. L. This alfo I may 'queftion. I will cite you a cafe determined in that court *. One Maddox, an apothecary, had per- fonated Dr. Crow y a phyfician, had writ-' Str. 498. ten, tert, and taken his fee. Some perfon, r who conceived, I fuppofe,' the public to be interested in the detection of this im- pofture, publifhed the fa 61 in an adver- tifement. The apothecary, in confidence of your pofition, that the truth of the fact was no j unification of the libel, had the effrontery to move the Court of King's B^nch for ,an information againit it ; but did not pretend to deny the fraud with which he was charged. The cafe was too glaring ; and the court refufed the information. ,^;. P J i '!.. ^7 VC? LCL'Yr/Vv/Xj -u L'iOiV 'Vfl: JC-'., I JU And what is the ufe you make of this inftance ? ' f I * ''I ' '- i s"l t "-J "i ' > '-''":'' 31 ' i . Ij lijivij :i!"w J-:JLJ c...^ >; v :;~ L. I fee in this determination the tri-, umph of the court's good fenfe over your un-principled pofition. A conjuncture could iiot have beerfdevifed, to put it to a feverer trial, and more effectually ta force [ 7 ] force the confeffion of its abfurdity. It could not have been endured, that a public impoftor fhould proclaim his fraud in a court of juftice, and obtain its in- terpofition, for the punifhment of the party whofe only ofFence was the detec- tion of it. . %. But you do not obferve that this power is merely difcretionary. . . L. The court in the exercife of it dif- cernlt quid Jit juftum per legem ; and can- not therefore be governed by your rule. lo ... '. JL The profecutor afks a favour ; he muft " come into court with clean hands." - ' L. The profecutor afks no favour j he denounces to the public party an ofFence, which [ 7' ] -which, upon your principle, it is 'the public intereft to piinifh, and offers him- felf as the mere inftrument of the pro- ceeding. . The difcretion of the court applies itfelf to the particular circumftances of the cafe. The rank and character of the party, in the inftance you mention, were not, perhaps, of an importance to engage its attention. L. *' The tendency to a difturbance ." of the public peace," from whatever quarter it is apprehended, is ever of fuf- ficient importance to engage the attention of a court of jivftice. I collet however, from the report of the cafe J have cited, that the only reafon for refufing the in- formation was, that the party had not upon oath, " denied the truth of the fpe- ." cific charge Contained in the libel." > . . j * It [ 7* ] It is a general rule with the court, in no cafe, to difpenfe with this precedent con- dition. In our time, you muft recollect, that it was exprefsly required from a no- tleman of the firft rank *. ]L. The party however in your cafe, was not precluded from his remedy by an indictment to the grand jury. L. If he had afterwards applied to this remedy, a fingular confcquence had fol- lowed from the obfervance of your rule. The grand jury muft have found the bill upon the fame evidence which was pro- duced to the Court of King's Bench. Upon the fame evidence, the petty jury muft have convicted the defendant. And the court might have heard this audaci- ous impoftor infifting upon judgment, for Douglas 372. the t n 1 the very offence, which, upon the dence produced, it had dimifled from its confideration ; a judgment which, con- fiftently with its duty, the court muft have pronounced. Upon the whole, it appears to me, that this judicial pro- ceeding reduces you to the dilemma of either confefling, that your general doc- trine on this fubjecl: is inconfiftent with itfelf, or that it is incompatible with our law. For if the truth of the libel be, in any given cafe, an aggravation of the of- fence, in as much as by its higher de- gree of provocation, it has a greater ten- dency to a breach of the peace, it is moft manifeft that the intereft of the public in the punifhment of it, is directly in pro- portion to the truth of the charge ; and confequently that the court, inftead of an. affidavit in denial of the charge, fhould require one in affirmance of it. And, even, if you ftiould wifh to recede from the extravancy of your doctrine, and content yourfelf with maintaining, that \<- R . This would only tend to fhew that the practice of the court is wrong ; not that the doctrine I maintain is fo. L. I prefer the other conclufion : That the rule of the court is right, and your doctrine wrong. I have not, however, yet done with my cafe. The libel complained of was per- haps actionable ; it contained a charge injurious to the party in the way of his bufmefs. Let me fuppofe then, that re- lying upon the difficulty of proving the faft charged, he had commenced his [ 75 1 The defendant pleads fpecially the truth of the fad for his j unification ; and upon this point the parties are at iflue. The caufe goes on, the impofture is proved in evidence, and the jury find a verdict for the defendant. The unfuccefsful plaintiff, let me now fuppofe, turns profecutor, and prefers his ihJS&mhA for the libel. The de- fendant pleads the general iflue, that he is not guilty; and upon the trial of the indittmmt tenders in evidence the verdicl and judgment in the aftion. Could this evidence, I aik you, be received ? -^i b'.tniji-'i'i '.:' ; or. , t y: JL. I do not know that this point has ever been determined. L. That enquiry is to me unneceffary ; lean avail myfelf of the determination cither way. Jf this evidence could be L 2 received, [ 76 ] received, the truth of your maxim is im- peached ; if it could not, what will you fay of its juftice? JL. The notoriety of a verdict publicly given might, perhaps, make the pro- duction'of it in evidence unneceflary. L. There is a maxim in your way ; de non exiftentibus et not apparentibus eadem eft ratio. I will not however forget your conceflion, that the jury ought in their cognifance of libel, to take into their confideration facls of fuch manifeft no- toriety, that no one can be prefumed ig- norant of them. This, in many cafes, will have the fame effect as if the de- fendant were allowed to give them in evidence. 3L. I am difpofed to retract it j for it occurs to me that the private knowlege of jurors . ' [ 77 1 jurors ought not to be of account in the formation of their verdicT:. L. This will not exclude that which they have in common with the public. The enquiry has hitherto confined it- felf to the fpirit of the unwritten law; but if you confult the fpirit, and even the letter of the written law in the only cafe in which it has provided a remedy for fcandal, you will find that thefalfe- hood of the charge is an efTential ingre- dient to the conftitution of the offence. I have endeavoured to collect the fenfe of our law in general, and the fenfe of that court in which the offence is cognifable, as to thejuftice of the rule we are con- fldering : t 78 ] fide ring : I now fpeak of the fenfe of the legiflature upon this point. From the penning of the feveral flatutes de fcandalis magnatum, it is manifefl, that to render it punifhable the flander muft be falfe. The offence is defcribed to confift in tl fauxs novelles, menfonges, controveures he would be the publiflier, and confequently punifhable in the firft inftanCe. Again I obferve, that if by the common law, the truth of the fcandal was not a juf- tification of it, it is fingular, that in the moft dangerous inftance of it, the legif- lature fhould have made the offence to conflft in its falfehood. The a&ion for this injury was given, not by the exprefs words, but by the equity of the ftatute, as I take it, upon this [ 8i this principle 5 that where an act is pro- hibited by law, it becomes the {abject, not only of a proceeding by the public party, but alfo of the private party who may fuftain injury from it. I except of- fences from which the individual receives an injury, only in common with others. I mean in gerieral ihofe in which he re- ceives an injury peculiar to himfelf -, and of thefe too, I miift except cafes in which a fatisfaction to him, would be incompa- tible with that which the public exacts. As my inftanees, I mention felonies and public nufances. .'. < <}1 hns i r ~:s~i ". t With this general principle, as with others, your doctrine is inconfiftent. For the libel which you afTert to be a public offence, you muft admit includes an in- jury to the individual j and this injury is peculiar to him ; and his private fatis- faction is not incompatible with that which the public requires. But the law M you E 8* ] you maintain, does not allovV an aftion in all cafes of inclinable defamation of the individual. In this, as in other re- fpefts, your law is not only inconfiftent with our general fyftem, but inconfiftent with itfelf. In fome future difcuflion, I may have occafion to refume the confideration of thefe ilatutes and the judicial conftruc- tion of them : when my objections will probably receive from you a complete fo- lution. The conclufion, you will ob- ferve, I draw at prefent is, that not only their letter and fpirit, but the actual paf- fing of them difprovc the exiftence of vour law. There i ,/iiorn ..< n -.\~! .(-'> ;ui jw<} There is one more point of view in which your-reafoning ftrikes me, which I cannot help adverting to. The general fpirit of it may be humane, but you carry it, I think, to an extreme. You have fo tender a confideration for the in- firmities of our nature, that you regard this injury as an irrefiftible provocation to -relent meat by violence; you do not, however, I think, allow it as a legal jufti- fication of a breach of the peace ? . Certainly not. L. But if the party defamed refifts the impulfe of his refentment, you confider M 2 his [ 84 ] his moderation as a juft motive for the public punimment of the defamer. And thus you place the excefs of merit in one party to the criminal account of the other. This perhaps is not perfect equality. Let me however fuppofe, that the party defamed has himfelf been the firfl aggref- for; that the fcandal arifes from the mere relation of an injury, which he has himfelf inflifled on the very party whp complains of it. ,". He ought not to tell it the public. X. His murmurs may be deep but they muft not be loud. In your tender mer- cies for the feelings of humanity, you de- prive mifery of its laft refource, com- plaint. But if the oppreffed heart is der nied this relief, may it not find fome other ? The fpring comprefled may re- coil. Have you forgot your prefump- tions tions of poffible refentments ? and your alarms for the public peace ? but I un^- derftand you your maxim is juft. por.givenefs to the injured doth belong; He never pardons who has done the wrong. This poetical reafoning is not however, always to be trufted. The application of it may not be without danger, when by the ufe of your argument a fortiori : , you extend the law of libels upon private per- fons, to libels upon public characters. The experience of .human nature and of the temper of a free people might evince, that to fupprefs the public difcuflion of the acts .of a government, is not always the bed means of maintaining its fecurity. Our difcuflions are arrived at their pro- pofed term. Let us recapitulate tfie fe- yeral paflages of them. SUM- [ 86 J We have examined the authority of this law. . The nature of the evidence by which it is fupported, apd, incidentally, the legal effect of authority and precedent have been confideredj confiderations which Tiave induced the neceffity of referring to the principles of the criminal department of our legal fyftem. *-* i With reference to thefe principles, the eonftitution of the offence of libel has been analyfed. The t 8? ] The cohflderatibns which in the view of government render it a public injury y * the truth, or falfehood of ; the fcandal the modes of its communication the fe~ feveral ingredients which enter into the compofition of this offence, Have 'been examined iii their feparate and combined - i: v, .; .,.:V_-, ;,. .. i . o (X. \ In thefe different views this law appears not only not deriveable from, but abfo- lutely in.eonfiflent with, the principles of that fyftenl of which itprofefles to form a part and inconfiftent with itfelfj From the refult of the whole, I con- clude that the ftriking irregularities which mark this anomalous doclrine, proceed from the irregular conftitution of the of- fence itfelf. This idea will more fully unfold itfelf, when in fome future difcuflion, we (hall confider the judicial cogriifance of this of- fence, t 88 j ;':''! fence, and the confufion it has intro- duced between the provinces of the court and the jury, provinces in themfelves perfectly dittinc!. For the prefent I obferve, in general, that you confiitute the offence in fuch a manner, as t6 take the cognifance of the criminal intention of the agent, from that jurifdiftion which is alone competent td it, and to transfer it to a jurifdiclion which is utterly incompetent to it. When you do not fufFer the confideration of truth or falfhood to be of any accountj in the eftimation of the offence, it is ma- nifeft that you exclude-the very criterion, by which human intentions muft be ex- amined. I will give you fome illuftration of my idea from a cafe reported > * in which the principal lines of your doctrine fhall meet as in their center. 4 Co. zo. THE THE A B B O T's CASE, " The Abbot of St. Albans fent his " fervantto a feme-covert to come to his " matter, and fpeak with him. The fer- " whereupon the abbot kept her in his when the libel, or copy of it is delivered over to fcandalize the party ; a famous libel without writing may be. I. Piflitrtf, as to paint the party in any {hameful and ignominious manner. 2. Signis, as to fix a gallows, or other ignominious figns at the parties door or clfewhere. And it was refolved Mich. 43 ^"44. Eliz. rn the Star-Chamber in Haiti-wood's cafe, That if one find a libel (and .would keep himfelf out of danger) if it be compofed againft a private man, the finder ei- ther may burn it, or prefently deliver it to a ma- giftrate : but if it concern a magiftrate, or other public perfon, the finder of it ought prefently to deliver it to a magiftrate, to the intent that by examination and induftry, the author may be found out and puniflied. And libelling and calumniation is an of- fence againfl the law of God. For Leviticus 17. Non facias caluntniam proximo. Exod. xxii. ver. 2.8. Principi papuli tui.non maledices. Ecclefiaftes 10. / togitatione tua ne detrahas Regi^ , nee in fecreto cubiculi , tui diviti maledices ^ quia volucres casli portabunt vocem tuam, & .qui babet.pennas annuntiabit fcntentiam^ Pial. .:Ixi. 13. Adverjus ne loquebantur qui fedebant in porta ^ y in me pfallebant qui bibebant vinum. Job xxx. ver. 7^ 8. Filii /lultorum & ignobilium y & in terra penitus non parentts, nunc in corum canticum fum verfus, & fatfm fitm m in preverbiurn. And it was obfervedj that Job who. who was the mirror of patience, as appeareth by hi words, became in a manner impatient when libels were made of him ; and therefore it appeareth of what force it is to provoke impatience and contention. And there are certain marks by which a libeller may be known : Qua trla fequuntur defamatorem famofum* i. 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