« НазадПродовжити »
A common magnifier, of an inch focus, shows the peace; and if against a magistrate, it is that the cornea is marked by a prodigious not only a breach of the peace, but a scannumber of minute decussating lines, giving dal to government, and stirs up sedition. a kind of granular appearance to the whole Where a writing inveighs against mankind convexity; but with a microscope it exhi- in general, or against a particular order of bits a continued surface of convex hexagons. men, this is no libel; it must descend to According to Lewenhoek there are 12,544 particulars and individuals, to make it a lenses in each eye of this animal. See Shaw's libel. But a general reflection on the Zoology, vol. vi.
government is a libel, though no particular LIBELLUS famosus. A contumely or person is reflected on : and the writing reproach, published to the defamation of against a known law is held to be criminal. the government, of a magistrate, or of a Though a private person or magistrate be private person. It is also defined to be a dead at the time of making the libel, yet it malicious defamation, expressed either in is punishable, as it tends to a breach of the printing or writing, or by signs, pictures, peace. But an indictment for publishing &c. tending either to biacken the memory libellous matter reflecting on the memory of one who is dead, or the reputation of one of a dead person, not alledging that it was who is alive, and thereby exposing him to done with a design to bring contempt on public hatred, contempt, and ridicule. the family of the deceased, and to stir up
Libels, says Blackstone, taken in their the batred of the King's subjects against largest and most extensive sense, signify them, and to excite his relations to a breach any writings, pictures, or the like, of an im- of the peace, cannot be supported; and moral or illegal tendency. This species of judgment was in this case accordingly ardefamation is usually termed written scan- rested. dal, and thereby receives an aggravation, in Scandalous matter, in legal proceedings, that it is presumed to have been entered by bill, petition, &c. in a court of justice, upon with coolness and deliberation; and amounts not to a libel, if the court hath to continue longer, and propagate wider jurisdiction of the cause. But he who deand further than any other scandal.
livers a paper full of reflections on any perThe important distinction between libels son, in nature of a petition to a committee, and words spoken, was fully established in to any other persons except the members of the case of Villers v. Mousley, (2 Wils. 403.) parliament who liave to do with it, may be riz. that whatever renders a man ridiculous, punished as the publisher of a libel. And or lowers him in the esteem and opinion of by the better opinion, a person cannot justhe world, amounts to a libel; though the tify the printing any papers which import a same expressions, if spoken, would not have crime in another, to instruct counsel, &c. been defamation: as, to call a person, in but it will be a libel. 2. The communicawriting, an itchy old toad, was held in that tion of a libel to any one person, is a publicase to be a libel; although, as words cation in the eye of the law; therefore the spoken, they would not have been action- sending an abusive private letter to a man, able. And on this ground, a young lady of is as much a libel as it it were openly printquality, in the year 1793, recovered 4,0001. ed; for it equally tends to a breach of the damages for reflections upon her chastity, peace. published in a newspaper, although she Iu the making of libels, if one inan diccould bar e bronght no action for the grossest tates, and another writes a libel, both are verbal aspersions that could bave been guilty; for the writing after another shows nttered against ber honour. An action for his approbation of what is contained in the a libel also differs from an action for words libel ; and the first reducing a libel into in this particular; that the former may be writing may be said to be the making it, brought at any time within six years, and but not the composing. If one repeats, anany damages will entitle the plaintiff to full other writes, and a third approves what is costs. To print of any person that he is a written, they are all makers of the libel; swindler, is a libel, and actionable.
because all persons who concur to an unlawAll libels are made against private men, ful act are guilty. or magistrates, and public persons; and If one writes a copy of a libel and does those against magistrates deserve the great- not deliver it to others, the writing is no est punishment: if a libel be made against publication : but it has been adjudged that a private man, it may excite the person li- the copying of a libel, without authority, is belled, or his friends, to revenge and to break writing a libel, and he that thus writes it is
a contriver; and that he who hath a written not the contents of them, they are punishcopy of a known libel, if it is found upon able. him, this shall be evidence of the publica. It has been held that writing a seditious tion; but if such libel be not publicly libel is not an actual breach of the peace : known, then the mere having a copy is not and that a member of parliament writing a publication.
such a libel is entitled to his privilege from When any man finds a libel, if it be being arrested for the same. against a private person, he ought to burn In informations, the libel must be set out it, or deliver it to a magistrate ; and where correctly, according to the words or the it concerns a magistrate, he should deliver material sense. it presently to a magistrate.
It has been freqnently determined, that The sale of the libel by a servant in a in the trial of an indictment for a libel, the shop, is prima facie evidence of publication, only questions for the consideration of the in a prosecution against the master; and is jury are the fact of publishing, and the snfficient for convictiov, unless contradicted truth of the inuendoes; that is, the truth of by contrary evidence, shewing that he was the meaning, and sense of the passages of not privy, nor in any way assenting to it. the libel, as stated and averred in the re.
It is immaterial, on a criminal prosecu. cord; whether the matter be or be not a tion with respect to the essence of a libel, libel, is a question of law for the considerawhether the matter of it be true or false ; tion of the court. But the statute 32 because it equally tends to a breach of the Geo. III. c. 60, after reciting that “doubts peace; and the provocation, not the falsity, had arisen whether on the trial of an indict. is the thing to be punished criminally; ment or information for the making or pubthough, doubtless, the falsehood of it may lishing any libel, where an issue or issues are aggravate its gnilt and enhance its punish. joined between the King and the defendant, ment. In a civil action, a libel must appear on the plea of not guilty pleaded, it be to be false as well as scandalous : for if the competent to the jury, impannelled to try charge be true the plaintiff has received no the same, to give their verdict upon the private injury, and has no grond to demand whole matter in issue;" enacts, that “on for a compensation himself, whatever of every such trial, the jury, sworn to try the fence it may be against the public peace; issue, may give a general verdict of guilty and, therefore, upon a civil action, the truth
or not guilty, upon the whole matter put in of the accusation may be pleaded in bar of issue, upon such indictment or information; the suit. But in a criminal prosecution, the and shall not be required or directed by the tendency which all libels have to create court or judge, before whom the indict. animosities, and to disturb the public peace, ment, &c. shall be tried, to find the defenis the whole that the law considers. And, dant guilty, merely on the proof of the pubtherefore, in such prosecutions, the only lication by such defendant, of the paper points to be enquired into are, first, the charged to be a libel, and of the sense making or publishing of a book or writing; ascribed to the same in such indictment.” and secondly, whether the matter be crimi. But it is provided by the said statute, that nal; and if both these points are against the the court or judge shall, according to their defendant, the offence against the public is discretion, give their opinion and directions eomplete,
to the jury on the matter in issue, as in It is not competent to a defendant other criminal cases, that the jury may also charged with having published a libel, to find a special verdict; and that, in case the prove that a paper, similar to that for the jury shall find the defendant guilty, be may publication of which he is prosecuted, was move in arrest of judgment, as by law he published on a former occasion by other might have done before the passing of the persons who have never been prosecuted act. tor it.
It has, in the case of the King, -, Lord The punishment of libellers for either George Gordon ; and the King, v. Peltier, making, repeating, printing, or publishing been held that a writing tending to defame the libel is fine, and such corporal punish- the Sovereign of a foreign country, is a libel ment (as imprisonment, pillory, &c.) as the punishable in England. The law was not court in its discretion shall inflict; re- questioned in the first case; in the second garding the quantity of the offence, and the the punishment was not enforced. We quality of the offender. Also if booksellers, think there are many serious arguments ac, publish or sell libels, though they know against the doctrine,
In the case of Gilbert Wakefield, and of of Commons, which was prosecuted by tie Mart and White, recently, although the popular party. offences were committed, and the trials had We shall observe, that the law of libels in Westminster and London, the defendants is plainly derived to us from the imperial were committed to Dorchester and Glou- constitutions of Rome under the Constancester gaols, to render their continement tines, not from the laws of republican Rome, the more irksome and severe.
and that it caine recommended to us from We have thus briefly endeavoured to the Star Chamber by Lord Coke. We have select the principal authorities under the not here sntficient space to investigate, as law of England, with respect to libels, and a political question, what ought to be the we are free to confess that unless juries law of libels ; and we must acknowledge, boldly assert the right of judging according that many objections may occur to admit. to the general intention and honest view of ting truth to be a justification of a writing the writer, rather than upon casual expres. when it is aimed at government, and there is sions, and the subtle inuendoes of an infor- great difficulty in verifying charges of mismation, there will be found little actual conduct, even when they are contined to liberty of the press, excepting what is allow. particular instances. It is only by long re. ed by the lenity of an attorney general. flection, and an ardent desire for the utmost
For the law is strictly, that any thing liberty that is consistent with good governwhich affects the character of an individual, ment, that we are led to wish that the press or reflects on the government, is a libel; should be uncontrolled. and with such a restraint we hold the right Libel, in the spiritual court, the origiof free discussion upon a frail tenure. The nal declaration of any action in the civil absolute freedom of the press can, we think, law. See statute 2 Edward VI. c. 13. never be fully obtained while truth con- The libel used in ecclesiastical proceed. tinues to be a libel; and it is remarkable, ings consists of three parts : 1. The major that in former times, libels were charged as proposition, which shows a just cause of the false, scandalous, and malicious writings; in petition. 2. The parration, or minor propothe time of Lord Coke the doctrine was sition. 3. The conclusion, or conclusivc petilaid down that the falsehood of a libel was tion, which conjoins both propositions, &ç. immaterial; and very recently, the word LIBERTY, in its most general signifi“ false," has been omitted in the informa- cation, is said to be a power to do as one tions filed by the present Attorney General thinks fit; unless restrained by the law Sir Vicary Gibbs.
of the land: and it is well observed, that We admit that the point how far the human nature is ever an advocate for this press shall be uncontrolled is a nice question liberty; it being the gift of God to man in politics, but it should be remembered in his creation. It is upon that account that the press, that is the right of publie the laws of England in all cases favour complaint, and of exposing public delin. liberty. According to Montesquieu, liberty quents to public odium, is the peoples' consists principally in not being compelled cheapest and best defence, and the oppres. to do any thing which the law does not resors' greatest awe. Were that right uncon- quire; because we are governed by civil trolled, no wicked government could last laws, and therefore we are free, living unlong; and as the press is open to all, per- der those laws. haps no just and good government could The absolute rights of man, considered long continue to be misrepresented before as a free agent, endowed with discernment an enlightened and just thinking people. In to know good from evil, and with power of England, it must be acknowledged that the choosing those measures which appear to practical liberty of the press has been him to be most desirable, are usually sumgreater than in any country in the world, ed up in one general appellation, and debut we attribute this more to the character nominated the natural liberty of mankind. of the government and the people, than to This natural liberty consists properly in a the law, which if rigidly exercised would power of acting as one thinks tit, withont be severe. We have, it is true, not had any restraint or contronl, unless by the very frequently informations for libels at the law of nature; being a right inberent in us suit of government, but we have never by birth, and one of the gifts of God to known them fail to convict, except in the man at his creation, when he endowed lim case of Mr. Reeves, for a libel on the House with the faculty of free will,
But every man, when he enters into be clear, distinct, and rational, as far as society, gives up a part of his natural relates to civil liberty; in the definition of liberty, as the price of so valuable a pr. which, however, he adds, it ought to be chase; and in consideration of receiving understood, or rather expressed, that the the advantages of mutual commerce, ob- restraints introduced by the law should be liges himself to conform to those laws which equal to all; in as much so as the nature the community lias thought proper of things will admit. blish. This species of legal obedience is Political liberty is distinguished by Mr. intinitely more desirable than that wild and Christian from civil liberty, and he defines savage liberty, which is sacrificed to ob- it to be the security with which from the tain it. For no man, who considers a mo- constitution, form, and nature of the estament, would wish to retain the absolute blished government, the subjects enjoy and uncontronled power of doing whatever civil liberty. No ideas, continues he, are he pleases; the consequence of which is, more distinct than those of civil and politithat every other man would also have the cal liberty; yet they are generally consame power; and then there would be no founded; and the latter cannot yet claim security to individuals in any of the enjoy an appropriate name. The learned judge ments of life.
(Blackstone) uses political and civil liberty Political or civil liberty, therefore, which indiscriminately; but it would perhaps be is that of a member of society, is no other convenient uniformly to use those terms than natural liberty, so far restrained by in the respective senses here suggested, or human laws, and no further, as is necessary to have some fixed specific denominations and expedient for the general advantage of for ideas which, in their natures, are so the public.
widely different. The last species of liberty Hence we may collect that the law, has most engaged the attention of mankind, which restrains a man from doing mischief and particularly of the people of England. to his fellow.citizens, though it diminishes The people of England have a firm rethe natural, increases the civil liberty of liance that this civil liberty is secured to mankind: but that every wanton and cause- them under the constitution of the governless restraint of the will of the subject, ment. whether practised by a monarch, hy nobi- First. By the great charter of liberties, lity, or a popular assembly, is a degree of which was obtained, sword in hand, from tyranny; nay, that even laws themselves, King John; and afterwards with some alwhether made with or without our consent, terations, contirmed in parliament by King if they regulate and constrain our conduct Henry III. his son; which charter conin matters of mere indifference without any tained very few new grants; but as Sir good end in view, are regulations destruc- Edward Coke observes, was for the most tive of liberty; whereas, if any public ad- part declaratory of the principal grounds vantage can arise from observing such pre- of the fundamental laws of England. Aftercepts, the controul of our private inclina- wards by the statute called Confirmatio tions, in one or two particular points, will Cartarum, 25 Edward I, whereby the great conduce to preserve our general freedom charter is directed to be allowed as the in others of more importance, by support. common law: all judgments contrary to it ing that state of society which alone can are declared void;, copies of it are ordered secure our independence. So that laws, to be sent to all the cathedral churches, and when prudently framed, are by no means read twice a year to the people; and sen. subversive, but rather introductive of li- tence of excommunication is directed to be berty; for where there is no law, there is as constantly denounced against all those no freedom.
who by word, deed, or counsel, act conBut then, on the other hand, that con- trary thereto, or in any degree infringe it. stitution or form of government, is alone Next, by a multitude of subsequent corrocalculated to maintain civil liberty, which borating statutes from Edward I. to Henry leaves the subject entire master of his own IV. ; of which the following are the niost conduct, except in those points wherein forcible. the public good requires some direction or Statute 25 Edward III. statute 5, c. 4. restraint.
Nope shall be taken by petition or suggesThe above definition of the learned com- tion made to the King or his council, unless mentator is admitted by his last editor to be by indictment of lawful people of the
Deighbourhood, or by process made by of the crown, by pretence of prerogative, writ original at the common law. And without grant of parliament, for longer none shall be put out of his franchises or time, or in other manner than the same is freehold, unless he be duly brought to or shall be granted, is illegal; that it is the answer, and fore-judged by course of law; right of the subjects to petition the King, and it any thing be done to the contrary, and all commitments and prosecutions for it shall be redressed and holden for none. such petitioning, are illegal ; that the rais.
Statute 42 Edward III. c. 3. No man ing or keeping a standing army within the shall be put to answer without presentment kingdom in time of peace, unless it be before justices, or matter of record of due with consent of parliament, is against law; process, or writ original, according to the that the subjects which are protestants may ancient law of the land. And if any thing have arms for their defence, suitable to be done to the contrary, it sha!! be void their conditions, and as allowed by law; in law, and held for error. After a long that election of members of parliament interval these liberties were still further ought to be free; that the freedom of confirmed by the petition of right; which speech, and debates or proceedings in parwas a parliamentary declaration of the liament onght not to be impeaclied or liberties of the people, assented to by King questioned in any conrt or place out of Charles I. in the beginning of his reign. parliament; that excessive bail ought not This was closely followed by the still more to be required, nor excessive fines imposed, ample concessions made by that unhappy nor cruel and unusual punishments inflicted; Prince to his parliament; (particularly the that jurors ought to be duly impanuelled and dissolution of the Star Chamber, by statute returned, and jurors which pass upon men 16 Charles I. c. 10); before the fatal rup- in trials for high treason, ought to be freeture between them; and by the many salu- holders; that all grants and promises of tary laws, particularly the Habeas Corpus fines and forfeitures of particular persons Act, passed under King Charles II.
before conviction, are illegal and void ; and To these succeeded the Bill of Rights, or for redress of all grievances, and for the declaration delivered by the Lords and amending, strengthening, and preserving of Commons to the Prince and Princess of the laws, parliaments ought to be held Orange, February 13, 1088; and afterwards frequently; and they do claim, demand, enacted in parliament, when they became and insist upon all and singular the premises, King and Queen; which, as peculiarly in- as their undoubted rights and liberties; and teresting, is here inserted at length.
that no declarations, judgments, doings, or Statute 1 William and Mary, statute 2, proceedings, to the prejudice of the people C. 2, § 1. Whereas the Lords Spiritual and in any of the said premises, ought in any. Temporal, and Commons, assembled at wise to be drawn hereafter into conse. Westminster, representing all the estates quence or example ; Sect. 6. All and sin. of the people of this realm, did upon the. gular the rights and liberties asserted and 13th of February 1688, present unto their claimed in the said declaration are the true, Majesties, then Prince and Princess of ancient, and indubitable rights and liberties Orange, a declaration containing that, the of the people of this kingdom, and so shall said Lords Spiritual and Temporal, and be esteemed, allowed, adjudged, and taken Commons, being assembled in a full and to be; and all the particulars atoresaid free representative of this nation, for the shall be tirmly holden as they are expressed vindicating their ancient rights and liber- in the said declaration; and all officers ties; declare, that the pretended power of shall serve their majesties according to the suspending of laws, or the execution of same in all times to come. Sect. 12. No laws, by legal authority, without consent dispensation by non obstante of any statute of parliament, is illegal ; that the pretend- shall be allowed, except a dispensation be ed power of dispensing with laws, or the allowed of in such statute ; and except in execution of laws, by regal authority, as it such cases as shall be especially provided hath been assumed and exercised of late, for during session of parliament. Sect. is illegal; that the commission for erecting 13. No charter granted before the 23d of the late court of commissioners for eccle. October, 1689, shall be invalidated by this siastical causes, and all other commissions act, but shall remain of the same force as and courts of like nature, are illegal and if this act had never been made. Lastly, pernicious.
these liberties were again asserted at the That levying money for, or to the use commencement of the present century, in