can seldom be done with justice, seeing that libel is not the offence of the illiterate. Besides a special jury was said to be not peculiar to civil or criminal proceedings,1 and the official who had charge of the special jury was as independent of the Crown as the judge could be. One grievous abuse long complained of was, that when the information was filed there was no means of compelling the prosecution to be promptly followed up. At last however, by a statute of 1819, if the trial be not brought on by the prosecutor within twelve months the defendant is allowed to bring it on himself3; and the same statute compels the prosecutor to give a copy of the information to the defendant.1 Policy of ex officio informations.-The policy of this mode of prosecuting libels has had its opponents and defenders, though it is now in point of practice confined to seditious and blasphemous libels. It has been often complained of in Parliament as in its secresy and swiftness and overwhelming force too nearly akin to despotism, and somewhat out of harmony with a land of liberty, where prosecutions are subject to fixed and well understood laws, and where a man can defend himself against all antagonists on equal terms. On the other hand it has been urged, that the press often acts like an assassin, and must be coped with by weapons which may be nearly as suddenly and energetically used; and that this cannot be done except by confiding a discretion to one, who is bound over to prudence and moderation by all the circumstances of his office, and is too well watched to be likely to abuse it. And it is added that though the power has been used since the time of Edward III., no great abuses have been discovered in it. Like the sword of Goliath, it is reserved for great occasions. 6 And 1 Att.-Gen. 34 Parl. Deb. 314; Ersk. Speeches, R. v Perry, 22 St. Tr. 953. 2 The JUDGES however said, in 1770, that if the Attorney-General unduly delayed to bring the defendant to trial, the court had power to order a trial.—R. v Almon, 20 St. Tr. 856. 3 60 Geo. III. & 1 Geo. IV. c. 4, § 9. 4 Ibid. § 8. 5 16 Parl.Hist. 1127. 6 BURKE, indeed, urged, that so dangerous a power should be cut off from the Constitution as a rotten limb, and that it had only escaped the notice of our forefathers in the hurry and precipitation of the Revolution.-16 Parl. Hist. 1152. AS WEDDERBURN urged: "When reason and sound principles dictate reformation, must we be what now makes less important the existence of any weapon so secret and deadly in the hands of Government, is the knowledge, that while there is no censorship and no registry of printing presses or of newspapers, while education prepares its millions of readers and writers, a champion will never fail to come forth on any great emergency. Even in the midst of legions of spies and informers a hand will issue from the crowd and write on the wall in letters of fire immortal slanders-a hand without a name, which cannot be traced, but will leave many things well spoken and wholesome to be remembered in all future time.1 Punishment for seditious libel.-The punishment for seditious libel did not differ from the punishment as to blasphemous and immoral libels. The pillory was often selected as peculiarly appropriate, as well as ordering the defendant to appear at the assizes with a paper denoting his offence. This was done in 1699 in a case at Exeter.2 In another case he was ordered to go into all the courts of Westminster with this paper in his hat, and it is said that in Chancery he behaved himself insolently, so that the court increased his punishment by imprisonment. Sometimes whipping was added. The pillory was abolished in deterred by mere names? What might have been proper 400 years ago may be now quite absurd and pernicious."-16 Parl. Hist. 1148. But LORD NORTH defended the power as a wholesome terror to restrain the virulence of the press. Speaking in the age of Wilkes, he said: "Our eyes open on libels; our eyes close upon libels. short, libels, lampoons, and satires constitute all the writing, printing, and reading of our time."-16 Parl. Hist. 1166. In 1 Re Junius, ante p. 90. An ex-Att. Gen. has said: "In considering whether a criminal information should be issued, the Att.-Gen. has to consider various matters. The public jealousy is vigilant in all that concerns the freedom of the press. Juries have learned the secret of covering with their indulgence nearly every kind of expression of opinion honestly put forward. What injury recoils on a Government when defeated by an acquital, or even if not defeated, by the risk of forcing into notice and enhancing the importance of mock martyrs! The injustice of punishing one who may be a mere instrument of publication, and ignorant of the evil he creates, while the real author or practised libeller may contrive still to write with more than bitterness without risk of legal visitation!"-1 Lord Denman, Mem. 370. LORD MANSFIELD said a court prosecution should never be instituted without certainty of success.-1 Butler's Rem. 125. 2 R. v Beare, 12 Mod. 221; L. Raym. 418. 3 R. v Fitzgerald (1702), Salk. 401; R. v Bedford, Holt. Lib. 107. 4 R. v Walker, 2 Geo. II., Holt, Lib. 108. 1837,1 and whipping for this offence has long been abolished also.2 The punishment at common law consists of fine or imprisonment or both, to which may be added surety of the peace. And these last are the only punishments now left. And if there are several libels, a series of terms of imprisonment may be added one to the other.4 3 1 1 Vic. c. 23; 2 Pat. Com. (Pers.) 282. 2 2 Pat. Com. (Pers.) 271. Leighton, in 1630, was fined, imprisoned, whipped, pilloried, slit in the nose, branded in the face, and lopt of his ears.-3 St. Tr. 387. Prynne was punished with several of the same pains.-3 St. Tr. 575. And Bastrick had the like punishment for a libel against the hierarchy.-3 St. Tr. 711. And Dangerfield was, in addition, whipped from Aldgate to Newgate, and Newgate to Tyburn.-11 St. Tr. 503. And a woman was also fined and pilloried in 1680.-R. v Cellier, Dig. L. Lib. 117. 3 R. v Dunn, 12 Q. B. 1062. 4 Gregory R. 15 Q. B. 974. See further as to punishment generally for libel, post. CHAPTER VI. LIBELS ON PARLIAMENT AND RIGHT TO PUBLISH Peculiarity of libels on Parliament. Of all the subjects on which the tongue and pen of free citizens can be engaged, none is to be compared to the powers and duties of the legislature. Parliament is at once the centre of all those threads of discussion-the mainspring of all that complicated machinery, which reduces speculation, argument, and remonstrance into practice. Whatever can be done to influence Parliament is the first step in all practical reforms. Whoever can advocate, advise, warn, or entreat, looks to this as the great sum of his efforts. Hence the points of contact and collision are as numerous as the variety of topics which are always in course of discussion. While there is the same freedom in public speakers and writers to comment on the work and conduct of Parliament, and all its members, as on all other parts of the Constitution, there is this striking difference, that Parliament can redress its own wrongs, avenge its own insults, and dictate the bounds beyond which its critics must be content to be silent. Each and every member of Parliament has duties to perform, and duties which are expected, and the tongue of slander may be too free with his reputation, and thwart his best efforts. It is therefore one of the chief heads of this chapter on Sedition to trace out how far the free handling of critics and commentators can go in interfering with the labours, the dignity, and reputation of that great power in the state, which has done so much and has still constant arrears of work to overtake. To watch or predict the course, to advance the intelligence, and promote the objects of Parliament engross a large share of every citizen's daily life, and he cannot choose to shut his eyes to the sequel of all these hopes and fears. How far and on what occasions he is likely to provoke the indignation of Parliament, and at what cost, ought now to be set forth. The privilege of Parliament. The privilege of Parliament, by which is meant the exclusive right of either House to decide for itself on each occasion what is or is not an interference with its own independence, dignity, and duties, and with those of each of its members, is so obvious an accompaniment of its exalted position in the economy of government, that if it had not existed by a long course of usage it would have required to be invented. The function of legislation being the highest exercise of reason and power known to mankind, it would have been a degradation to be obliged to resort to any other court in order to vindicate each obstruction of that function. And though courts of law, when in their highest state of efficiency, are able satisfactorily to administer justice between man and man in all other respects, yet their whole practice and principles are based on a fixed and certain order of things, and definite rules foreordained for their guidance, and which they have no power to change, however inadequate and defective as a means of highest justice. This necessarily implies, that there must be some other tribunal and some other source of power which can adapt its processes to a higher standard of justice, and can emancipate itself from technicalities which are inevitable in all ordinary courts, and which are felt even by judges themselves to be impediments, and often a cause of humiliation on that very account. Where wisdom is allied to power, and that power, at least in the case of the House of Commons, is so great, that it can safely withstand all other powers known to the Constitution, there is no reason why it should not execute the office of self-vindication.1 And this is the more necessary, seeing that it is entirely identified at all times with the community, for whose benefit it exists and in which it constantly lives and moves. Its very constitution, its means of knowledge, its intimate 1 "The House of Commons, by reason of its power to refuse mutiny bills and supplies, is a power in the Constitution, which no other body could resist."—Lord J. Russell, H. C., 151 Parl. Deb. (3) 1380. |