existing. The essence of seditious libel may be said to be its immediate tendency to stir up general discontent to the pitch of illegal courses, that is to say, to induce people to resort to illegal methods other than those provided by the Constitution, in order to redress the evils which press upon their minds. If laws are unjust, the legal method is to petition Parliament to amend them. If a minister is obnoxious, the legal method is to petition the Crown to remove him, and failing that to dismiss at the next opportunity those members of Parliament who support him. Whenever a writing is so framed as to urge strongly the people, and especially the ignorant and turbulent portion of the people, to take some shorter and illegal method, not at a future time, but at once, of attaining the end in view, then it may be said to be a seditious libel. And hence the construction to be put on the language, unlike the general rule in most other cases, is not what reasonable men would understand by it, but rather what the ignorant and excited people of the day would be likely to do after hearing or reading it. The difficulty of defining a seditious libel is thus inherent in the subject matter, for no limit can be set to the topics, the men, and the measures that may be spoken of and commented upon. The utmost certainty attainable is to say, that whenever a speech or writing imputes personal corruption or scandalous misconduct or ignorance in such terms as to incite others to get rid of the obnoxious person by other and speedier methods than the ordinary remedies prescribed by the law, then to that extent and no further it is a seditious libel. This effect of the libel on others in stirring their passions and leading them to violent courses is sometimes deemed the gist of the offence.1 But any excess in the degree, the adequacy, the justification of the language must always remain to be settled by means of a jury. He who, as Erskine observed, wishes to avoid sedition, must not excite individuals to withdraw from their subjection to the law, by which the whole nation consents to be governed. He must not strike at the security of property, or hint, that anything less than the whole nation can constitute the law, or that the law, be it what it may, is not the inexorable rule of action for every individual.2 1 R. v Sullivan, 11 Cox, C. C. 47. 22 St. Tr. 357.

2 Erskine, arg. R. v Paine,

A seditious libel therefore in its shortest definition consists in "any words which tend to incite people immediately to take other than legal courses to alter what the Government has in charge."

Thus it was once said, that whenever a paper has a direct tendency to cause unlawful meetings and disturbances and to lead to a violation of the laws, that is sufficient to bring it within the terms of an indictment, and it is a seditious libel. Thus also where a public meeting held at Birmingham once passed a resolution, that "a flagrant outrage had been made upon the people of Birmingham by a bloodthirsty force from London (of constables)" and that "the people of Birmingham are the best judges of their own power and resources to obtain justice," the jury were told to consider, whether this resolution contained no more than a calm and quiet discussion, allowing something for a little feeling in men's minds (for persons in an excited state do not discuss subjects calmly). If so, it would be no libel. And the jury were to consider "whether the resolutions meant the regular mode of proceeding by presenting petitions to the Crown or either House of Parliament, or by publishing a declaration of grievances, or whether they ineant, that the people should make use of physical force as their own resource to obtain justice, and meant to excite them to tumult and disorder." The jury found the defendant guilty.2

Importance of juries in defining seditious libels.— Such being the difficulty of defining seditious libels, the law restraining them-the law that teaches how to foresee and avoid them-would often be inscrutable, if it were not, that in all cases it rests with the jury, that is to say, with a certain number of fellow citizens fairly selected and

1 Littledale, J., R. v Lovett, 9 C. & P. 466.

2 Littledale, J., R. v Collins, 9 C. & P. 461. In one case, in 1797, the prisoner was charged with seditious words at a meeting in favour of annual parliaments and universal suffrage. He said that "it was their object to obtain reform by every peaceable means in their power, for it would be shocking to shed the blood of their fellow creatures; but if the Government continued obstinate, and force was necessary, he hoped there was not a citizen in the room but would shed his last drop of blood either in the field or on the scaffold." And the jury found him not guilty, obviously thinking that force was not recommended.-R. v Binns, 26 St. Tr. 595

capable of estimating the dangers of license on the one hand and of tyranny on the other hand, to decide not only what is the fact, but what is the law. And no man can be declared guilty of transgressing the limit of free speech or writing without their consent and acquiescence in some form or another. Words which were formerly deemed seditious would now be deemed mere expressions of abstract opinion as to the best forms of government, and such are now tolerated both within and without the walls of Parliament as the inevitable result of freedom of thought. And all men of moderate education can scarcely fail to acquire an instinctive appreciation of the standard of license and decorum.1

Proclamations of the Crown as to seditious meetings. -The difficulty of putting an end to a general and systematic excess in free speaking and writing bordering on sedition has sometimes induced the Government of the day to resort to the good advice of the Crown as a means of allaying a feverish excitement. In 1792 the Crown issued a proclamation as to seditious writings, the bad effects of which were described, and it charged all magistrates to make diligent inquiry to discover the authors and printers. But Mr. Grey complained of this as defamatory, malicious, and impolitic, and one of the lords denounced it as most malignant and impotent, for if there were offenders, the proper course was to prosecute them, and not urge magistrates to become spies and informers.2 And opinions have generally been divided as to the policy of such a step, while it is admitted that it supplies nothing in the form of a legal remedy. As will be seen hereafter, it sometimes also happens, that Parliament itself

1 "Comments on Government, on ministers and officers of state, on members of both Houses of Parliament, on judges and other public functionaries, are now made every day, which half a century ago would have been the subjects of actions or ex officio informations, and would have brought down fine and imprisonment on publishers and authors. Yet who can doubt the public are gainers by the change, and that though injustice may often be done, and though public men may often have to smart under the keen sense of wrong inflicted by hostile criticism, the nation profits by public opinion being thus freely brought to bear on the discharge of public duties.” -Wason Walter, L. R., 4 Q. B. 94.

See further as to juries deciding the fact as well as the law, post. 29 Parl. Hist. 1480.

intervenes, and by its own authority takes notice of libels, even though not aimed specially at itself, declaring them to be libels, but, nevertheless, not dealing further with the libeller. This also little advances the remedy. In one noted case the House of Commons had resolved, that a particular publication was a seditious libel, but this resolution was held nowise conclusive, when an indictment for the same publication came to be tried; and it was left to the jury to find whether they thought it to be so, and the jury held it was no libel.'

Sedition at public meetings.-There is nothing peculiar to sedition which is written and published which does not extend to seditious speeches; and the limits are the same in both cases, except that as the effect of speaking is usually ephemeral and transitory depending on the occasion and the numbers, and above all the conduct of the audience, a remedy might be resorted to in one case which would be deemed superfluous in the other. A seditious speech, if it have any effect at all, usually operates instantaneously, and the extent of the evil can usually be estimated from the conduct of the day; while published libel is far reaching, and may become more obnoxious as time advances. Public meetings held for discussion of public affairs are sometimes used only as a cloak for demonstrations of physical force, and with the secret intent of overawing the Government and concussing it.

Lord

Abinger, C.B., is said to have charged the jury at a trial of Chartists, that to summon a meeting of 3000 or 4000 people to discuss things, or form a deliberative assembly, was a farce; and if an assembly was such as to render all notion of serious debate impossible, and if the only object was to hear one side, then it could not be viewed as anything but illegal. Yet great allowances must be made in times of excitement as to what is legitimate to be considered and put forward at public meetings. As Erskine observed, “It was often said, that bold language was held at public meetings; it was certainly bold to say, that the people had a right to resist and that they ought to rise, but there were some occasions which rendered the boldest language warrantable."

1 R. v Reeves, 2 Peake, N.P.C. 84; R. v Stockdale, lb. 86. 2 66 Parl. Deb. (3) 1050.

3 52 Parl. Hist. 313. LORD CHATHAM, on a great occasion, said:

Unpublished seditious writing.-Such was the disregard of principle by the judges of a former time, that Peacham, a clergyman, was found guilty of treason for certain words in a sermon found in his study, which had never been published, nor was ever intended to be preached.' And the same was held as to an unpublished paper on the rationale of Government found in Algernon Sidney's study, and never published, Judge Jeffreys holding that the writing was per se an act of treason.2 But while mere words or mere unpublished writings cannot be construed into an offence against the government in the nature of seditious. libel, yet when the writing is published and can be construed into a compassing the death of the Sovereign, then it is nothing less than an overt act of treason.3

Libels on the Sovereign. In the free play of speech and writing, whenever a seditious tendency was indulged, it was in former times inevitable, that the conduct of the Sovereign should be marked out for comment. In any circumstances great delicacy of treatment is here imperative. In a constitutional country the whole strength of blame can be sufficiently directed against the ministers and advisers, who are deemed responsible for all the great issues of affairs. In this view it is a maxim of law, that the Sovereign can do no wrong, and hence whatever grievance

"If the king's servants will not permit a constitutional question to be decided on, according to the forms and on the principles of the Constitution, it must then be decided in some other manner; and rather than that it should be given up-rather than the nation sha!l surrender their birthright to a despotic minister, I hope, old as I am, I shall see the question brought to issue and fairly tried between the people and the Government. -16 Parl. Hist. 747.

To which ERSKINE added: "I was born a free man, and I will never die a slave."-32 Parl. Hist. 313.

Fox also observed: "When the power of public speaking was taken away, what was there left but the patience of implicit submission: what hopes could be entertained that grievances would be removed, when those who felt them dared not complain?"-32 Parl. Hist. 352.

1 Peacham's Case, Cro. Ch. 125; Foster, 199.

Sidney's trial, 9 St. Tr. 889, 893; Foster, 198. An Act of Parliament afterwards was passed, in 1689, to reverse that judgment. -9 St. Tr. 996. And see further, post, as to the effect of publication and its evidence.

3 25 Ed. III. c. 2; Hale, P. C. 118; Foster, 198; Williams' Case, 2 Roll. Rep. 88; 3 Inst. 121. See post, p. 91.