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 <c de inven-
toribus malorum rumorum, unde pax pcjfit
exterminari*.
It appears alfo that in the time of
Edward the Firft fpecial commiflions
were fent to all the counties of England,
" de rege purgando de certis numoribus in-
iquis contra ipfum ortis f .
c Plowden 357.- <* Britton 33.
e Fleta, I. 2. c. i. f 2 Inft. 227, pcf i)"?
Thefe
( vii )
Thefe provifions, it is evident, relate
to offences againft the government or
againft the public peace : offences of a
very different clafs g from that to which
the offence we are confidering, belongs,
and in all of them the flander muft be
falfe.
<c The paffage cited from Bratfort y by
Lord Coke in fnpport of his do6lrine, ap-
pears to be mifapplied. From the con-
text, and from the divifion under which
it appears, it is evident that writer is not
fpeaking of criminal offences, one might
rather infer, that he confidered libel as a
mere civil injury h .
< e I have not, after all, been able to
trace up the general do6lrine, we are
confidering to a higher fource than that
from which the following difcuflions
g Page 46. h g Co. 6. Braftde Cor. 155.
fuppofc
( viii )
fuppofe it to be derived, Lord Coke's re-
port of the decifion of the Star-Chamber
in the famous cafe of libels.
" From the materials I have commu-
nicated to you the outline of my defign
veill fuggefl itfelf.
" The prefent difcuflions confine them-
ielves to the law of libels upon private
perfons. This doctrine however is ex-
tended not only to libels upon public per-
fons but to criminal publications in ge-
neral.
" In a future publication, which will
treat more particularly of the judicial
cognifance of the offence, the general
reafoning I have employed will itfelf fur-
nifti its neceffary qualifications. I (hall
then admit that there are poffible cafes in
which the criminal intent of a publication
is not difproved by the truth of the fafts it
contains, I fhall alfo admit that there are
like-
likewlfe poflible cafes in which public
decency could not permit the truth of a
publication to be proved in evidence.
Thefe exceptions are, however, not incon-
futent with the fpirit of that reafoning,
by which I have endeavoured to fliew,
that a court of juftice cannot in general
form a competent judgment of the intent
of a publication, if it be precluded from
the examination of its truth or falfhood.
" So much for the matter of this pub-
lication, as to the reft, in the friendly
feverity of your criticifm, you ought to
remember that I profefs only to give a
converfation upon paper.
" You remark, I hope, that I have
endeavoured to obferve, a fort of dramatic
keeping in the characters we refpedively
fuftahi. I the legal fceptic you the pro-
feflional optirnift you grave, folemn,
and decorous I, inquifitive, impatient,
and petulant. In the choice of the very
b types
!( x )
types by wnich our parts are marked to
the eye, I did not lofe fight of this
diftinction. There is fomething ia the
fombre caft and felf-involved character of
the old black letter which muft ftrike
you as not ill contrafted with the light,
flimfy, and unfubflantial texture of that
of modern innovation.
" I cannot conclude without confeffing
that I feel very flrongly the force of an
obfervation in your letter. When I con-
fider with you the length of time this
doctrine has prevailed the fanftion it
has received from liberal and enlightened
judges and above all, that it has flood
the trial of the revolution itfelf I muft,
perhaps, own, that the errors of it are
grown fo inveterate as to be remediable
not by a judicial, but by a legijlative in-
terpofitign alone."
CON-
CONTENTS.
Examination of the authenticity of this law.
THE famous cafe of libels in the liar-chamber
its immediate origin.
'
The authority of Lord Coke, and the precedents he
has produced in fupport of it.
Authority and precedent in general prefumptive evi-
dence of law.
The evidence of general principles.
The evidence produced in fupport of the general doc-
trine defective : and hence the neceffity of refer-
ring its authenticity to an examination -by general
principles.
The
CONTENTS.
The quciUon ftatcd, and mode of difcuflion pro-
rjofed.
From p. I. to p. 26.
The constitution of the offence of libel
considered.
The confiderations which render it a public injury.
The preemption of injury to the character of the in-
dividual.
The preemption of the individual's refentment of
that of his family, friends, and connexions.
The prefumption of violence in confequence of fuch
refentment.
The
CONTENTS.
The prefumption of a difturbance of the public
peace.
The neceffity of public redrefs to the injury induced
by the above confederations.
Spiritual civil criminal defamation diflinguiflicd.
The criminal form of the offence the wilting or
printing the publication.
The poffibility of the injury to the public morals*
manners, and decency ; and of the direct injury
to the public peace, by the mean of a defamatory
libel on the individual.
From p. 27. to p, 28.
CONTENTS.
The truth or falfehood of the libel.
IT- .14
The pofuion that " the libel not the lefs a libel for
" its being true," conftdered with refpe
To juftice and policy ;
i.CMlc^ '!' OS -i^ ;': -p ^;, ^!'V
To the general fenfe of the unwritten law as col-
b
leded from the letter, fpirit, and judicial con-
ft ruction of the ftatutes de fcandalit mag-
natum.
To the fenfe of the court itfelf in which the of-
fence is cognizable as colle&ed from its
pradicc.
From p. 58, to p. 97.
The
CONTENT
The cafe de Libellis Famofis, 5. Co. 25. h fub-
joined.
ERRATA.
P 6. ! *8. read you witf debafe.
3 4. leave oat the comma after chapter*
a. 4. read its, inftead of it //
13. U. read /**> 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
<c majefty was informed, there were many
" extravagant and exorbitant opinions fet
* ( down for pofitive and good law."
%. This calumny was probably inftilled
in the ear of James by Lord Coke's
enemy,
' t 5 1
enemy, the attorney general, afterwards
Lord Bacon.
L. The calumny I admit to have been
in general falfe , I vvifh only to examine
whether it had not fome foundation in
the prefent inftance : though this perhaps
is not one of the cafes to which the king's
command was meant to be applied.
%. You will however obferve, that his
doftrine on this fubject does not reft
merely upon its own authority : in fup-
port of it he has produced precedents of
fb earl/ a date, as the reign of Edward
the Third.
nofv :i %> >.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 <veritatem"
And it does not prove that which your
cuftom alfo alleges, that a penalty was
5 Co. jajj. $ 3 Jnft. 174.
by
by the common law annexed to the of-
fence *. For though the libel in this
cafe is declared to have a tendency f in
" fcandalumjufticjariorum et curia* to fcan-
"dalife the public juftice of the coun-
" try," the court, % as I underftand the judg-
ment, only directs that fecurity fhall
be taken for the good behaviour of the
defendant : from whence one might in-
fer that prevention and not punijhment
was the common law remedy for the
offence.
E. But what evidence do you oppofe
to that I have' offered ?
* f"'*' t </ k ?t>
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-
<c nemens, et les autres le font des faits
" qu'ils prennent pour la raifon meme."
L. The
L. ' | ^ H E character of this offence,
-*- as you defcribe it* , has rather
an anomalous appearance j your defini-
tion does not neceffarily require it to have
been attended with aftual injury to the
public : the injurious public confequences
of it are not pofitive, but merely pre-
fumptive. It is, in this refpeft, I think,,
diilinguifhable from offences in general
which confifl rather in the injury itfelf,
than in the bare tendency to it. Other
offences require realities to their compoii-
* Hawkins's Pleas of the Crown, b i c, 73. i. 3.
E 2 tion
[ 28 ] ,
tiorij this is wholly compofed of prefump-
tions and probabilities.
Defamation is, I admit, in itfelfan im-
morality, and evidently proceeds from a
heart regardlefs of focial duty. In its
confequences too it may be a civil injury.
But all immoralities, all civil injuries are
not crimes : what then is the confidera-
tion which in the view of government,
renders it a public offence ?
. It has been in moft governments fo
treated. The offence of libel by the law
of the twelve tables
L* Non a duodecium tabutis, neque a
fra forts editfo, fed penitus ex intima phih-
fopbia bauriendam juris difclpllnam puto.
We are confidering the nature of the of-
fence itfelf, not the arbitrary conflitution
of it in different governments, or the pe-
nalties they may have annexed to it ;
penalties which have been too frequently
meafured, not by the exigency of the of-
fence itfelf, but by the pailions and
finifter policy of thofe who governed. In
the middle age of Rome, it was fubjecled
to corporal punifhment; but the ex-?
tremes of political tyranny met ; the De-
cemvirs and the Emperor Valentinian pu*
niftied it with death.
. In modern Europe the French
Law
L, Is the law of that government :
are confidering the genius of our own.
1L. And in our own (for I think I too
haftily gave up my former argument) I
am perfuaded that refearches in its hiilory
would (hew- -
L. That this offence has been punifhed
with the difgracing and mangling the
human
[ 30 ]
human form, with fuch horrors and in-
famies, that all recollection of the injury
was loft in the barbarity of the punifh-
men t. " Men," fays Lord Clarendon,
" begun no more to confider the former
" manners of the offenders, but the
< men."
I wifh to confine you to that .courfe of
enquiry, to which you have yourfelf
confented, to the derivation of your
do&rine, not from the laws of other coun-
tries, but from the principles of our
own ; not from -the practice of other go-
vernments, nor even from that of our
own, in fome periods of it, but from the-
enlightened fpirit of it. And I paufe up-
on the very outfet of the difcuffion, for a
reafon in which I may, perhaps be fingu-
lar. I doubt whether the mere defamation
of the fubject can, upon the principles of
our government, ever be a public offence.
I admit, that the injurious practice ought
tQ
[ 3' 1
to be reftrained, but I hefitate upon the
means. I doubt whether it ought not in
all cafes, to be punifhed by a civil aflion,
if I may ufe the expreflion, rather than
by a criminal proceeding ; whether the
penalty ought not to be rather compen-
fation to the private party, than vindic-
tive fatisfaction to the public party. At
lead the former appears to me more con-
fonant to the genius of our law and our
government than the latter.
It is, I think, the fpirit of arbitrary
governments to prefer public punifhment
to civil compenfation. Jealous of his
power, the Defpot feeks not fo much re-
paration of the injury to the individual,
as an atonement for tlje affront to his
authority. Such a government, is in
truth, more anxious for the mainte-
nance of its enormous arrogations, than
for the protection of the juft rights of
the fubje6l.
/ L You
f 1* } ....
)L. You do not advert to the peculiar
nature of the offence.
L. It is indeed the peculiar nature of
the offence, that accounts for its having
been fingled out as the object of the dif-
proportionate penalties which have been
inflicted upon it. The motive of them has
been not fo much to protect tjie charac-
ter of the individual, as that of the go-
vernment itfelf from cenfure. From a
dread that the|(haft of jufl reproach might
in fome inftance glance too high, the ufe
of it in every inftance has been fevcrely
prohibited,
. You forget its tendency to difturb
the public tranquillity.
L. The public tranquillity, as it is the
pnly fecurity of an arbitrary government,
is
. t 33 ]
is the object to which it facrifices every
other. The apprehenfion of a diilurb-
ance of the public peace, from the re-
fentment of the individual is, I think,
rather imputable to the fufpicious vigi-
lance and timidity of a bad government,
than to the firmnefs of a good one.
{Wiftfi-Tg 93/tg -^ -3J to mn. '>
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 <c heart-ftruck
" injuries" to the individual of which
our law takes no cognifance, and of
which, not taking cognifance of them,
it will not intend the refentment by vio-
lence. But, in the way in which you
proceed, there is no breach of honor or
duty from man to man, which may not,
from the provoking quality of it, and
the probability of its being refented, be
rendered a public offence. Nay, more
G 2 upon
t 44 ]
upon your principle all thofe affronts,
which in the fenfe of modern honor, are
confidered as fignals for an appeal to the
" trial by battle," become criminally cog-
nifable. The law, I know, cannot re-
gard the provocation in fuch cafes j but I
leave it to you to reconcile the incon-
iiftency of prefuming the refentment,
where it is at moft only probable, and
of not recognifing it, where the cuftorn
of the age has rendered it almoft certain.
Obferve, however, another extrava-
gent confequence from your doclrine.
You maintain, that the offence in every
cafe, confifts in the tendency to excite
the refentment of it. The judicial ap-
plication of this principle, I remark, is
impoflible. For a court cannot in the
very inftant in which it is adminiftering
public redrefs for the injury, proceed upon
a fuppofition of the poffibility of the in-
jured party's refenting it himfelf. The
moment
[ 45 ]
moment the injury is conftituted a public
offence, there is an end of its tendency
to a breach of the peace, by the violence
of the injured party. You make that a
criminal ingredient of the offence which
cannot, in any given cafe, be taken into
the judicial confideration of it.
Jt- Are you then contending, that in
our law no act is conftituted an offence,
by its tendency to a diilurbance of the
public peace ?
L. Moft unqueftionably I am not fo
contending ;-~but I think I mail mew a
manifefl diftincYion between this offence
and thofe of that clafs.
At
' [ 46 \
At prefent you appear to me however,
to confound two ideas, which are in
our law perfectly diftinct. Every fubject
of the government is entitled to its pro-
tection : he is faid to be in the king's
peace j becaufe the king is the executive
magiftratc of the government. Hence
every violence to his perfon is charged as
an offence, <c again ft the peace of our fo-
" vereign lord the king." But an offence
againft the public peace, I confider to be
of a very different nature. It does not
merely confift in an injury to the peace
or protection of one individual, but to
the peace or fecurity of all individuals.
Every act which has the effect of exciting
general terror and alarm, is certainly an
offence againft the public peace, and as
fuch properly punifhable j but the act
which has a tendency to a mere breach of
the peace, in the perfon of the indivi-
dual the law does not confider as the fub-
ject
[ 47 ]
ofptimjhment, but ofprewnfrort. For
even where intended violence to any one is
manifefted by dired and poiitive menaces,
the law does not punifh fuch intention,
but merely takes fecurity that it fhall not
be committed, not from the party, againft
whom, but from whom it is apprehended,
In this cafe the party is punilhecl who is
prefumed to have excited a refentment, of
which himfelf is to be the object.
&. You forget that the fcandal may ex-
cite not only the refentment of the party
injured, but of his family, his friends,
and connexions.
L. And produce a fort of chaude-melte
among them all. The law proceeds in no
cafe
cafe upon fa foreign a prefumption 5 if it
did, it would, I think, adminifter the
remedy I have mentioned. Again I chal-
lenge you to produce another inftance of
an offence fo conflituted.
IL- Your expreflion fuggefts one fome-
what analogous to the prefent ; challenges
to fight are criminal by our law.
L. The cafes may be fomewhat ana-
logous, but at the fame time, you muft
allow, that they are fomewhat diflimilar.
The one is a direft and pofitive folicita-
tion to join in an act, the avowed purpofe
of which is the deftruction of the indivi-
dual, with which felicitation, the cuftorn
and manners of the age render a com-
pliance more than probable.
The other is a conftruflive invitation
to an individual, his family, and friends
to
[ 49 1
to form a party, in which the inviter is
not to beat, but is to be beaten, ubi
vos pulfatis ego^apulo tantum which in-
vitation, as thefe ex parte engagements
are not faihionable, is generally declined.
. Your pleafantry is rather mifplaced;
but am I to underftand you to infift that
the defamation of the individual, can in
no cafe have a tendency to difturb the
public peace ? for you have admitted, I
think, that this circumftance would ren-
der it a public offence.
L. All I mean to maintain is, that
defamation of itfelf cannot be a public
offence ; it may be fo I allow in its con-
fequences. And though I confider the
general doctrine you advance as unfup-
portable, yet I think you might have de-
fended it upon more plaufible reafoning.
If you had afligned to the fcandal, the
H tendency
. [ 5 ]
tendency of exciting refentment and vio-
lence, not againft the party defaming,
but againft the object of the defamation,
there would have been fome colour for
the argument. You might then have pro-
ceeded in this way : Defamation civilly
cognifable, is that which has the effect of
debafing the individual, who is the ob-
ject of it in the eftimation of fociety ;
but if, added to this effect, it has that
of exciting mankind to acts of hoftility
againft him, it becomes criminal. I
fhould then have admitted, as I now ad-
mit, that the publication of a fcandal
which had for its evident purpofe, to in-
flame the paflions or prejudices of the pub-
lic againft the object of it, would be a
public offence : but I fhould then deny,
as I now deny, that fuch an effect was in
general, affignable to the defamation of
the individual.
The
The aftual conjuncture of the times,
the nature of the defamation, the fitua-
tion and character of the object of it,
may render a fcandalous publication as
effectual a mean of difturbing the public
peace as any other. The cafe however
mud be examined upon its own particular
circumftances, which, as they would be
of the criminal efTence of the charge, muft
be averred and proved. But it is evident
that the offence would confifl in fome-
thingvery different from the prefumprion
of the party's himfelf refenting the injury.
3L. I need not of courfe afk you, whe-
ther you admit that a libel upon the cha-
rader of the deceafed can be a public
offence.
L. Certainly not of itfelf. In my view
of the fubject, I can, however, imagine
the injury to fociety of a publication
H 2 which
.... . [ 5' 1 *
which fhould traduce thofe illuftrious
names, the memory of which has warmed
a nation's virtue, \.\ieHampdens> 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
<c words'* from that region to which'they
naturally belong, and to give them a
local habitation, and a name inthefyftem
of our criminal law, they muft be fixed
by regular profe or metre.
The definition is rather an unfortunate
-j for thofe who have the talent of
fpeaking
" , t 54 ] ,
fpeaking in correft periods, or of making
verfesfanfes pede in uno. A man might
find himfelf uttering indictable fcandal,
with that fort of furprife, which Moliere's
character exprefTes, upon difcovering that
he had been " talking profe" without
knowing it.
. The fcandal muft be written or
printed \ and the publication of it is the
ilriking feature of the offence.
-
L. This feature does not, I think,
^ifcriminate it from actionable (lander ;
for this alfo requires a publication.
%. By fpeaking ; but do you not ob-
.ferve the difference between thefe modes
of publication ?
L. I
[ 55 1
L. I admit that the printing or writing
of the fcandal, facilitates the more ex-
tenfive communication and impreillon of
it. But you know too that the action
againft flander, proceeds upon the pre-
fumption of its effect on the minds, not
of one or more individuals, but of all in*
dividuals, of mankind in general. If it
is the degree of publicity, that is to
change the nature of the injury, the fix-
ing this offence, will be a fort of geome-
trical problem : " required to find the
" diameter of that circle in which the
" fcandal propagated from actionable
" commences criminal." You indeed
purfue the circle till it vaniihes ; for I
think you maintain that a frivate letter
is a publication of the flander, it conveys
to the party who is the object of it. In
this inftance your own principles defert
you j for you will not, I hope, contend
that the flander, privately communicated
to the perfon to whom it is applied, be-
comes
eomes more provoking from the mere
circumftance of its mated alifation upon
paper, than when addrefled to him by
fpeaking it, however deliberately and
pointedly in the prefence of others.
At leaft, you are not, I think, warranted
fo to contend from the experience of hu-
jnan nature and human paffions.
&. I thank you for the exprefllon ;
it is the materialifation of the language,
which gives a confiftency and perma-
nency to the fcandal : it becomes as lad-
ing as the material. The c< winged
" words" leave no trace behind.
JL. Except in the minds of the auditors.
This accidental circumftance may indeed
aggravate the injury, but cannot alter
its nature ; cannot change it from a pri-
vate to a public one. And, in the fhape
in which we at prefent view it, it wants
the
I [ 57 1 "
the qualities you have now annexed to
the offence ; fince it is evident that the
permanency and further communication
of the fcandal depends entirely upon the
party who has the letter in his power. I
recur to my objection, that the mere
civil trefpafs, the private injury, cannot
become a crime by being publicly com-
mitted.
&. Not if it be an offence againft the
public manners ?
,.-.,.4 V>
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
\<t the
I 74 J
the truth or falfehood of the libel docs
not alter the nature of the offence j ftill
it would follow, that the court's, requifi-
tion of an affidavit to a fadt, which does
not touch the effence of the mifdemeanor,
would be nugatory. ><- 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
<c (inventions) eu autres fauxes chofes"
And accordingly, the truth of the fact
may be alledged in j unification of the de-
fendant.
JU The proceeding upon thcfe flatutcs
!s c ivil not criminal.
'
L. It is both criminal and civil : it
has for its object not only damages to
the party for the injury fuflained, but
the punifhment of the flanderer by im-
prifonment. Now the j unification, it is
evident, applies itfelf as well to the cri-
minal
[ 79 ]
ininal as to the civil object. of the pro*
cecding.
The firft ofthefe flatutes * informs us
.of the motive for pafiing it. For the
prevention of the difcord that might arife
" between the king and his people or
" great men of the realm,'* by the < de-
c< vifers of tales," the publishing of ct falff
<e news," is prohibited. The danger to
the government from civil difcord, in
thofe times confidered, the occafion wa#
certainly of fufficient importance to en-
gage the attention of the legiflature. Qne
is difpofed however, to aik where wa?
the necefllty of its interpofition. If, by
the common law, the fcandal that had a
tendency to a mere breach of the peace,
in confequence of the refentment of the
individual, was punifhable j furely that
which threatened the very exiftence of
Wefhrui. 3. Ed. i. c. 34. ,-j
govern-
t 80 ]
government, was a higher degree of of-
fence. And it is remarkable that this
flatute inflids no fpecific penalty on the
offender.
&. He is to be imprifoned till he pro-
duces " the author of the tale."
L. Agreeably to your docVme > 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-
<c vant performed his command, and
" thereupon the wife came with him to
" the abbot; and when the abbot and
te the woman were together, the fervant
< (who knew his matter's will) with-
'* drew from them, and left them two
" in the chamber alone, and then the
" abbot faid to the woman, that her ap-
" parel was grofs apparel -, to whom the
" wife faid, that her apparel was accord-
< ing to her ability, and according to the
N " ability.
t 90 ]
" ability of her bujband. The abbot
" (knowing in what women repofe de-
" light) faid to her that if fie would be
" ruled by him, that fie fioulfl have as good
" apparel as any woman in the parifi, and
" did folicit her chaftity j when the wife
" would not confent to him, the abbot
" did affault her, and would have made
" her an ill- woman, againft her will,
<c which the wife would not fufFer>
" whereupon the abbot kept her in his
<e chamber againft her will. The huf-
<c band, having notice of this abufe to
<e his wife, fpake publicly of this matter.
" Thereupon the abbot (adding one fin
" to another) fuedthe innocent and poor
" hufband for defamation in the fpiritual
C{ court, becaufe the hufband had pub-
<e lifhed, that the lord abbot had foli-
<c cited his wife's chaftity, and would
c< have made her an ill woman?'
The
[ 9' ]
The queftion upon this cafe, which I
have given in the words of the reporter,
was, whether the defamation were of
fpiritual cognifance.
Let me make a flight alteration in the
cafe, let me fuppofe, that the offended
hufband, inftead of publicly fpeaking the
flander, had privately conveyed it to the
abbot in a letter j had made his charge,
with remonftrances upon it, in terms of
becoming refentment.
From the traits, we have already of the
abbot's character, it is not improbable
that he might wifh to punifh the lay-
man's prefumption. In his application
to the fpiritual court, it is clear he mif-
took his remedy. The cafe required a
regimen not profalute animce, but pro falnte
corporis, he prefers then, I will fuppofe,
his indictment. The fpecial- pleader has
N 2 done
[ 92 I :
done his duty 3 his innuendo^ and averments
are properly charged; he has reprefented
the abbot as a character "of fingular piety,
" of gravity, and exemplary manners,"
and has libelled ad libitum the defendant.
The bill is found, and the defendant
anfwers to the charge of the indictment,
as he well may anfwer, that he is not
criminal.
The cafe of the profecutor is opened ;
and in fupport of it, that which the de-
fendant is ready to admit, is proved with
wonderful exadlnefs, but of that which
he denies no evidence is produced.
The defendant is called upon. He is
in porTeflion of an evidence who had been
the unobferved fpectator of the tranfac-
tion, and he offers that defence which
truth and juftice furnifh to him j his
mouth
t 93 1
mouth is {hut ; to what purpofe indeed
fhould he open it ? his juflification cannot
be heard.
The jurors, however, may have heard
fomething of this abbot, they live in his
neighbourhood ; his pallion for femes-
covert es may not have efcaped them ;
fome of them may have had an experi-
ence of it in their own families. The
jurors have to do with nothing but the
innuendos*
The defendant has no objection to
offer the grammatical ftructure of the
record, and the defendant is convicted.
Still there is fome hope. The charac-
ter of the abbot is notorious. (This infe-
rence from a Cmglefaiw-pas is I own ra-
ther (trained j and the general continence
of the clergy of thofe times confidered,
I
I admit the palpable anachronifm j but let
it pafs.) The court then cannot be fup-
pofed ignorant of that which every one
knows. The court can only look at the
record. It is the un-impaflioned organ
by which the law pronounces that judg-
ment which the conviction warrants.
This faithful iliuftration of your doc-
trine, exhibits a proceeding which has
for its fingular object, the exclufion of
truth from a court ofjuftice. Can you
ftill perfift in fixing fuch a folecifm, upon
a fyftem which has been pronounced,
the " perfection of reafon ?"
. ana
before
I
Before I conclude, I cannot help ex-
preffing it as my firm perfuafion that, in
the place of this exceptionable doctrine,
a law more adequate to its profefied ob-
ject, might be deduced from the very
fpirit of our fyftem.
%. Which (hould leave the individual
unprotected, from the aflaflin of pri-
vate reputation, and the government itfelf
expofed, to the ftill more dangerous ma-
chinations of the public incendiary,
L. Which to the really injured indi-
vidual {hould fubftitute compenfation,
inftead of vindictive fatisfaclion : which
fhould
[ 96 ]
fhould furnifh to government every means
neceffary to its juft fopport, without
leaving to a bad adminiflration the privi-
lege of profcribing the virtuous citizen,
who fhould enlighten mankind upon its
defigns.
%. Until your idea (hall have received
its comfummation, it may be of fome
fmall importance to your perfonal fafety,
not to confound the fubftantial diftinc-
tion there is between the law as it ought
to be y and the law as it is. Without
this caution, like the great critic, who
was himfelf an illuftration of " the fub-
" lime he drew," you may chance to
furnifh in your own character an exam-
ple of the offence we have been difcufl-
ing The times are mild, but
L. The age of barbarifm is paft j
that of cruel refinement not come, that
it
t 97 1
it may never arrive, we fhould avail our-
felves of the liberality of the prefent, for
the difcuflion of truths important to the
interefts of humanity.
We are confidering a doftrine which
has interrupted the general harmony of
our fyftem ; we are examining the con-
ftruclion of that engine by which the
trial by jury, and a free prefs, the very
ramparts of our conflitution, have been
and may hereafter be aflailed: The
fpeculation may not be without its ufe.
O
citeth all thofe of the fame family, kindred, or fociety
to revenge, and fo may be the eaufe of (bedding of
blood, and of great inconvenience : if it be againft a
magiftrate, or any other public perfon it is a greater of-
fence ; for that it conc:rneth not only the breach of
the peace, but alfo the fcandal of government ; for what
greater fcandal of government can there be, than to
have corrupt and wicked magiftrates, to be appointed
and conftituted by the king to govern his fubjedh
under him ? and greater imputation to the ftate it
cannot be, than to fuffer fuch corrupt men to fit in
the facred feat of juftice, and to have any medling in
or concerning the adminiftration of juftice.
jittttOiq i: ; . jrfj njojj^ $.,:
2. Although the private man or. magiftrate be dead
at the time of the making of the libel, yet it is pu-
iiifhable, for in the one cafe it ftirreth up others of the
fame family, blood, or fociety to revenge, and to
breach of the peace, and in the other the libeller
doth traduce the ftate and government^ which diqth
not.
3. A libeller (who is called /<#/; defamator} fhall
be punifhed cither by indictment at the common law,
or by bill, if he deny it, or ore tenus upon his con-
feflion, in the Star-chamber, and according to the
quality of the offence he may be puniflied by fmeorim-
,-di rf prifonment,
prlfonment, and if the cafe be exorbitant, fey pillory
and lofsof his ears.
'' I* * s not material whether the libel be true, or
whether the party againft whom the libel is made, be
of a good or ill fame ; for in a fettled ftate of govern-
ment the party grieved ought to complain for -every
injury done to him in ordinary courfe of law, and noc
by any means to revenge himfelf, either by odious
courfe of libelling, or otherwife : he who killeth a
a man with his fword in fight is a great offender, but
he is a greater offender who poifoneth another, for
in the one cafe he who is the party affaulted may de-
fend himfelf, and knoweth his adverfary, and may
endeavour to prevent it : but poifoning may be fo fe-
cret that none can defehd himfelf againft lt t for which
caufe the offence is more grievous, becaufe the of-
fender cannot be eafily known ; And of fuch nature is
libelling, it is fecret, and robbeth a man of his good
name, which ought to be more precious to him than
his life, fcf difficillimum tft invenire authorem infamato-
rite fcriptura, becaufe that when the offender is known,
he ought to be feverely punifhed. Every infamous
libel, either is in writing, or without writing. In
writing, when an epigram, rime, or other writing is
compofed or published to the fcandal or contumely of
another, by which his fame or dignity may be preju-
diced. And fuch libel may be publifhed, i. Verblj
ant
.out cantilenis. And where it is ma] icioufly repeated or
fung in the prefence of others. 2. Traditiont> 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. Pravitatis incrementum, increafe of lewdnefs : 2
Btirfe decrementttm t wafting of his money and beg*,
gary : 3, Confcientia detrlmentum^ fliipwreck of con
fcience.
10 101
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