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or libel. Libels against private persons, and libels against
writers are therefore no longer liable to that disgraceful punish-
of the Judge Suck
is, however, by no means the case. What the present state of the law of England
is, with respect to libel, can not be more clearly or forciblyo expressed than in the following words of a writer who is well acquainted with the subject.ro
He says2. The power of puhishing for ubet, "assumed and exercised by the Court of Kings Bench is neither founded upon, nor guided by any provision of the legislature whatsoever. The assent of Parliament to it is merely riegativeco We assert that there is not within the statute book, a single form of words, by which it is altempted to declare what libelling is ; by which any form or degree of punishment is appointed for it; or by which it is so much as. forbidderia There is no written standard, by which the decisions of the court are pronounced. The power rests on the sole foundazo tion of the practice of the Court of Star-Chamber, in which prosecutions for libel first commenced, and the Judges of the Court of King's Bench have all along had no other rule whatsoever for
Berita ***!! 3r lace! their conduct, but the decisions pronounced by that arbitrary court, and the decisions of preceding judges who followed its example, 3: The definitions given by the highest legal authorities of the abuse of the Press, or of what constitutes a libel all bear, without exception, the stamp of the uncertainty of the law.!:o We shall now cite a few of the most remarkable. Chief Justice Comyns $ays, in his digest of the laws of England, a book which is consi, dered classical: «Alibel (libellus famosus) is a contumely or Teproach, published to the defamation of the government, a magis trate, or a private person."
**', 'ATUS The celebrated Blackstone expresses himself thus: Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the Press je but if he publishes what is improper, mischievous, orville gal, he must take the consequences of his own temerity.?? w 1113
Lord Ellenborough, chief justice of the Court of King's Bench, in the year 1804, declared every publication punishable, which tends to excite the discontent of the people, or, either by calumny or derision, to bring the established authorities of the government into disesteem."
; One of the latest writers on this! subject, who is a deeply learned and practical lawyer, in defining a libel, says, with not much more precision than his predecessors « The offence consists in publishing a written, or printed, at painted composition, tending to disturb the public peace, by zilifynı ing, the government, or otherwise exciting the subject to revolt:"
29'u biti 294 295505 plecusti it"!!!1115 layol 90. Edioburgh Review, Vol. XVIII. p. 104., w
wayne 2801 ja 10 2 Commentaries on the law of England, Vol. IV. p. 152. 10th edition The thing most remarkable in this nothing defining definition, is the word, ILLEGAL used in a country, where, according to the universal declaration of all persons conversant in the subject toʻjule of law has yet determined what is to be considered a libel. 21 bris got to ws.srt to SjJ2 jacanza
P&On the satne triál, on which he opposed this maximi to various misconsi ceptions aod misconstructions; the declared påssage, in which
the defense dunt; in speaking of the yiceroy of Ireland, had said. He bas the reputa
understanding the tionmer in Cambridgeshop ethod of fattening sheep better
the design of lowering the viceroy in' the public esteem.” 10 Golevorg 16
The sibetled was no dess a personsthad she notorious Gokhett, agailisty whom the charge then brought was the having ridiculed, a Lord Lieutenant of Ireland, by representing him as a
breeder, but who was
with impunity, among the lowest rabble, all that a libellous spirit of the most daring and prohišo gate nature couldinvent until at length; borne down by the weight of bist Owoh Avisdeeds, and detested even by this former partişens, he made hiso escape from England
draaida 1970 sda io so 4.19 3.1 to 2013 mLdinburgh Review, September, 1816.
bu ne 101 cm 1992 73 19V9023-31W sint mise en bril oncle tis'o rade
It would be a waste of time to dwell on the deficiency, uncertainty, and worthlessness of this, and all other definitions of the same description, or to enter into any detailed proof of the very unfair and severe treatment which authors must suffer, or the serious dangers to which the State must be exposed, under such a complete silence of the law, according as caprice or power may incline the balance to one side or the other. The foundation of the whole edifice, namely, the ambiguous formula, - a breach of the King's peace,” which is a mere legal fiction, is sufficient to produce a conviction that it cannot answer its object. Indeed the freedom of the Press in England, under whatever point of view it might be contempla:ed, would appear most unfavorably situated, were it not, as will hereafter be shown that the imperfection of the law is more or less compensated by certain remedies.
A great error would be committed, were it supposed that the defects we have noticed belong exclusively to the British legislation on the Press, or that they have their origin in some peculiar property of the British Constitution, and consequently, that under another system of government they could be easily avoided. These defects are attached to the nature of the thing, and are its unavoidable and immediate results. It may, perhaps, be regarded merely as a proof of the just feeling, and lucky instinct of British Statesmen, that on this subject they have never attempted to struggle for the accomplishment of impracticabilities. Every lawyer knows how difficult it is to specify with logical and legal precision the character of a private wrong, or of a calumnious publication against individuals, and in how few criminal codes any approximation has, hitherto been made towards satisfying this proposition. But to define a libel against the State, correctly and legally, or, in other words, to draw a clear line of demarcation between the innocent use and the abuse of the Press, with respect to public affairs, is what really appears to us impossible. If it could be done by three or four set phrases--were it sufficient, for example, to declare, whoever shall insult the person of the sovereign with unbecoming expressious—whoever shall openly and expressly instigate to insurrection against the sovereign or his representativc-whoever shall for himself, or others, disclaim obedirence to the existing laws--and so forth, shall be liable to punishment, the difficulty would be easily overcome. At the same time it may be observed, that the trouble of enacting such laws might perhaps be very well spared ; for the cases in which they would be transgressed could not be numerous, and the offenders would be fitter for a mad-house than a prison. But when we descend from this extreme, and enter the region of practical possibilities, or practical probabilities, the proposition assumes quite another form. It is indeed
instructive and likewise amusing, to observe the levity and temerity with which many persons who pretend to be the guides of their fellows citizens, in questions of this kind, call for “a good law on the liberty of the Press ;" with what confidence they state their expectation, that this urgent want of the times will, from one quarter op another, from above or from below, in some certain way be supplied ; and how incapable they seem of sutficiently manifesting their surprise, that, whether through the inability of the advisers, or the obstinacy of the holders of power, so salutary a work should be so long delayed. It is still more instructive, and not less amus. ing, to see legislators, statesmen, and well-meaning authors, 3truggling and straining, and after a hundred abortive trials, still renewing their attempts to conquer this rebellious problem. They would not spend their time and their efforts more fruitlessly, were they to employ themselves in endeavouring to square the circle.
The discovery of a law, or series of laws, which should define, with a clearness and precision sufficient for practical application, and satisfactory as to the freedom of authors, and the security of the State, what ought to be understood by the abuse of the Press, in respect to political relations, is, we are persuaded, altogether impracticable, and this persuasion, which many years' reflection has only served to confirm, rests on two grounds.'
THE FIRST is, that what is to be transgressed by words, cannot be previously defined, much less exhibited in all its details, by words. The law can explain, if not with perfect, at least with sufficient practical precision, what is to be understood by the terms, highway-robbery, larceny, arson, counterfeiting coin, fraud, &c. Not that these crimes or offences do not admit of various forms, gradations, intricacies, and disguises, but there is in each some matter of fact or distinct principle which a well-digested law can once for all comprehensively embrace and describe. What law, however, can be expected to distinguish the good from the bad, the blameless from the punishable, among the infinite combinations of which human ideas and human language are capable ? Who shall draw the boundary, and by what form of words can it be marked out? In framing the law, should those general definitions be adopted with which all the constructors of penal statutes have hitherto found themselves obliged to be contented, the State prosecutor must necessarily resort to forced interpreta
· We do not at present enter into the consideration of the offences of the press against private persons, because the legislation on this part of the subject, though also presenting great difficulties, may be brought to a certain degree, (yet never to a degree completely satisfactory) of perfection, and also because its interest is infinitely inferior to that of offences against the State.
tions, dubious inductions, arbitrary, perhaps violent applications and inferences, or the dexterity and ingenuity of the delinquent will enable hina to overstep all legal bounds. Were these dangers sought to be avoided by multiplying regulations, or by the minute enumerations of possible cases of transgression, and a vain endean vour to render them complete, the object would still be as remote as ever, but in its stead a criminal code would be obtained, which would crush the innocent along with the guilty, and under which no author would yenture to wield a pen. It is the eternal and. unavoidable destiny of such a law to be either too lax or too rigid sa and this is an alternative on which all the ingenuity of the human mind cannot escape being wrecked do eid diw tagaisto
The second, and perhaps the chief reason of the impossibility a of regulating the offences of the Press, by any law, consists in the peculiar, nature of these offences. This is a circumstance which has hitherto been little attended to, but which merits a more par ticular investigation. od 211.01.god. 16 nabro bşdeildş:29 sd leda
Penal laws have usually for their object either the real commission of a corporeal act, or the intention such to commit; and as soon as one or the other of these cases can be shown to have arisen, the greater or less criminality of the person accused is determinede On the contrary, the criminality of a manuscript is not determined able either by any corporeal act, or by any intention of the writer taken separately, or by both united :tra third circumstance, never taken into consideration in other criminal cases, and which distus tinguishes the offences of the Press from all other crimes, must be addedorosaberg et brow 9no ni Ils gbuloni 08:10 2191757sda sdı
The corporeal act of the author or publisher of a, manuscript v is the PUBLICATION 5 with that the legal existence of the work 50 begins, The mere, composition constitutes no legal crime ofw offence of any description whatever. As it is permitted to every b individual. (that is to say, it is not legally prohibited) to conceive A the most criminal thoughts, and centertain the most flagitiousov wishes in so every one, "setting aside,
the internal responsibility, hexo owes to his own conscience, has the undeniable right to write as what he may please for his own amusement. The printing, which is the immediate preparation for publication, can, strictly speakingeni be considered as only an act of the same nature as the writingsda The proper act for the cognisance
of the law, js, necessarily, the 10 publication,d It is, however, in most cases impossible to estimate'w the criminality of a work immediately on its publication. This can only be done in the very uncommon case of an authors being so injudicious as to be at once guilty of a positive erime, cleavlyat defined by the law, or to advise, in commission. But such a circumstance
Svould 1999the case