LAW OF LIBEL.
THERE is a narrow and technical view taken of this important sub- ject whenever it is discussed by Englishmen, from which the able speeches delivered in the House of Peers by the Law Lords, when Lord CAMPBELL moved for a Committee on the law of Defamation and Libel, were not exempt. An Englishman rarely extends his views beyond defamation and an action of damages : Frenchmen, in words at least, take a wider range, and talk of " les delits de la presse."
It may have been a wise determination to adapt their arguments to the prejudices of their audience, but it was nevertheless striking, that on the occasion alluded to, the learned Lords seemed to rest their advocacy of a change in the law of libel mainly upon its insuf- ficiency at present to reach certain gross cases of defamation. One or two startling instances were noticed of the tendency of the com-
mon law to suppress free discussion or occasionally punish the wrong person, even now that it has, in the half poetical half chemical language of Lord Dinvidsy, " worked its way through the feelings of mankind, and filtered through sentiments of justice and rectitude till it can never again be laid down in the oppressive way in which it was once administered." This narrow view of the question is not unnatural in lawyers, whose professional avocations render them sharp-eyed to all defects which render a law equivocal or dif- ficult to be enforced, and afraid of venturing beyond the confined range of statute and precedents. The press is an element of mo- dern society which attained its full development long after our law of libel was completely formed—an element the existence of which seems yet scarcely recognized by the law. Libels and defamations may be circulated without the aid of the press. To rob an innocent man of his good name is a crime, not peculiar to the press. A good law of libel ought to be calculated to reach alike those who offend by the instrumentality of the press and all others. But even such a law would leave many possible " delicts of the press " unprovided for, and would afford no sufficient information to the honest jour- nalist as to what he might or might not say or do according to the law.
From the speeches of the learned Lords on Monday evening, it is clear that they had some dim idea that the press as much as individuals has an interest in having the law rendered more precise and efficacious. But, accustomed to view the subject only in the forms in which it is uniformly brought before a court of justice, they appear to have been unable to regard the press in any other light than as an instrument capable of giving an incalculably wider extension, and consequently greater power of harm, to a malicious lie, than speech or writing. Not one of them betrayed a suspicion that the press could commit offences which unless by the aid of a legal fiction could not be brought within the category of a libel; and that, on the other hand, society had an interest in the liberty of the press that rendered the utmost caution necessary in legislating concerning it. The great object in legislating about the press is to insure to it the utmost possible freedom to do what is right, and to subject it to the utmost possible responsibility for what is wrong. Liberty is the rule, restraint the exception. It ought to be clearly under- stood, that every thing may be published by the instrumentality of the press which is not expressly forbidden. The only restriction imposed upon those who employ the press ought to be—You may publish what you please ; but if you publish writings of such, or such, or such a character, you shall receive such or such punish- ment. It has been argued, (and in some countries the opinion is acted upon,) that it is better to prevent than to punish ; that the punishment of the libeller or blasphemer cannot repair the injury he has done, and that all writings intended for publication ought to be previously subjected to the inspection of a licenser. It is true that no punishment can undo the mischief; but, on the other hand, when the offence is known to all, and the judicial proceedings public, this publicity affords a guarantee that justice will be done to all parties; and as a refusal to license presumes the suppression of the work, an ignorant or corrupt licenser may not only injure the author but society at large. That hazard is too great to be in- curred : in the choice of evils, we must rest satisfied with the im- perfect guarantee afforded by punishment against repetition of the crime by the original offender, or the following of his example by others. There must be no preventive check upon the press. The penal law relating to the press ought to embrace two objects— the declaration of what acts are punishable, and of who are to be held responsible for those acts. By the fiction of the English law, all offences of the press are comprised under the head of libels ; and libels are punished on the plea of their tendency to provoke a breach of the peace, or to affect injuriously the pecuniary interests of the parties libelled. These legal fictions were laudable in the times in which they originated. In a rude age, legislators troubled themselves little with minor details, and men were impatient of too minute an interference with their actions. An unenlightened spirit of independence sought safety, not in checks upon the officers of the law, but in lawless- ness. In such a state of society, thanks were due to the Judges, who, by stretching the interpretation of the law, brought under their own cognizance disputes which men would otherwise have settled by blows. But now, that men have learned to protect their liberties by strictly defining the limits of the authority of the Judge, the Legislator, and the Executive power, such fictions are produc- tive of unmingled mischief. They confuse men's ideas of right and wrong, and give room for sophistry under which the guilty may escape and the innocent be punished. There are serious offences which may be committal by the agency of the press, which have no tendency either to injure men's property or to incite to breaches of the peace ; and there are publications which may have a tendency to do both and which nevertheless may be laudable. The offences which may be committed by the agency of the press are—defamation of public persons ; defamation of private individuals; publications having a tendency to injure the pecu- niary circumstances of individuals ; outrages of the moral and reli- gious feelings of society ; provocations to breach of the peace. All these offences, it is evident, may be committed without the as- sistance of the press ; but their character is so far modified when perpetrated through the medium of the press as to call for special legislation. For example, a defamatory or irritating expression may drop from a man in the heat of an oral controversy, which, being merely an unreflecting utterance of angry feeling, and regarded as such, implies no malice or dishonesty on his part, and does no harm to the person against whom it is levelled. But there is a deliberation in the act of circulating such expressions through the press, a wider extension of the scandal, and an increased risk of its producing a lasting impression, that renders the offence under all circumstances less venial. Defamation of public characters may apply either to their official or to their private conduct. Charges to their discredit may be criminal if they are untrue, or if they are brought forward solely to injure them without any prospect of advantage to the public. If the charges relate to their political conduct, their falsity or irrelevancy may require to be proved ; if to their private conduct, it may be ht'l incumbent on the party accused of defamation to show their t-nth or utility to the public. That the offender believed the truth of his charges, ought not, even in the case of political defamation to be held of itself a sufficient excuse, unless he can show that he made in- quiry and had plausible grounds for his belief. In the case of defamation of the private conduct of men in office through the press, even belief in the truth of the charges ought not to be ad- mitted in exculpation. In cases of defamation of private indivi- duals, the falsehood and malice of the charge ought in all cases to be presumed. Except in a very few cases, in which the miscon- duct has been such as almost to take the perpetrator out of the class of private individuals, the public has nothing to do with a man's conduct. The proceedings in courts of law ought to be published and freely commented upon at the time ; but public morality is more likely to be injured than benefited by publishing private crimes, or raking up offences which have been punished and forgotten long ago. A very strong and conclusive demonstration, indeed, of benefit to arise to the public from the circulation even of true statements to the disadvantage of a private individual through the press, ought in any case to be demanded in exculpation ; and if the statements are untrue, the plea that they were believed ought in no case to be admitted. These two classes of press offences are levelled against men's reputations, and ought to be punished as such. Into them the question of reparation can scarcely enter. If the charges brought against the injured party are untrue, the opportunity of disproving them is al- most the only reparation he can receive ; if they are true, though this may be no alleviation of the defamer's offence, yet it places reparation out of the question—it is by his own act that the offended party has been exposed to the injury. In cases where the defamatory reports are calculated to injure the party in a pe- cuniary point of view, it is different : in these, reparation to the injured party ought to be made part of the offender's punishment. Outrages against morals and religion cannot be committed by fair abstract reasoning : to plain argument the utmost latitude ought to be given. But this impunity cannot be extended to acts or exhi- bitions which stimulate sensuality, blunt the holy sense of shame, or wound the feelings of the religious. A man is punished for in- decent exposure, or for disturbing public worship ; and analogous offences committed by the agency of the press ought also to be punished. The publication of indecent books or engravings, or of books or engravings the object of which is to caricature and vilify the object of religious adoration, is a fair object of punishment. Such publications cannot promote truth ; they may corrupt the minds of youth ; and they occasion a sense of pain in the minds of the devout, which no man has a right to inflict upon another. Lastly, indulgence in the use of irri- tating expressions, for the purpose of stimulating men to acts of violence, or solely for the purpose of giving pain, may, if calculated to provoke to breaches of the peace, be declared punishable as a matter of police. Under this head are comprehended a wide range of offences of varying hurtfulness—from sedition down to a chal- lenge to a boxing-match. The object in punishing them is to assert the authority of the law, and prevent men from taking the redress of injuries into their own hands. In all the cases here enumerated, the nature and amount of the punishment ought to be prescribed with reference to two principles—the consideration of the kind and quantity of infliction which is most likely to deter men from offending; the balancing of the amount of good gained by preventing the offence, against the evil occasioned by giving pain to the offender.
The question who is to be punished, is one of no slight conse- quence with a view to the repression of crime. In offences of the press, the offending parties are the author and publisher : both are equally culpable, though their motives may be different. The justice of punishing the author, whenever he can be detected, will scarcely be questioned. What constitutes a publisher, is a question of some difficulty. To punish a man for merely selling a copy of a book or paper over a counter, seems hard : if the publication has been previously declared punishable by a court of justice, the case is somewhat altered. There is a difference too in the case of a professional publisher, who merely brings out a work at the author's cost, and the one who gives a price for the book and publishes it at his own risk and for his own emolument. This, however, is a consideration rather for the framer of a statute than for a writer on the principles of legislation against offences of the press. The author, and the tradesman who profits by the publication—be he called bookseller, printer, or any other name—are the parties to be punished. The act of issuing the work in a wholesale manner, to the trade as well as to private purchasers, may be hcld prima facie evidence that the party who acts thus is the tradesman who profits by the publication, leaving him to exonerate himself from the charge if he can.
It would be for the advantage of every honest man connected in any way with the press, could he get a penal code for it framed upon
principles like these, expressed in intelligible phraseology, and en- forced by competent tribunals, with prompt and economical modes of trial. But let it not be imagined that by such means alone the evils which formed the chief burden of the song in the House of Lords can be put down. The press has its scoundrels as well as every other profession—men who will weigh to a grain the risk of punish- ment against the etnolument of offending. The portion of the press which panders to the love of scandal and to prurient tastes, was created and is kept alive by the immorality of a portion of the public. So long as there is a market for such filthy wares, so long will men be found to brave punishment in order to supply it. The disgrace which the existence of such a press reflects upon the country lies at the door of its patrons. And if truth must be told, they are 'not confined to the young and unreflecting, or to the de- graded haunts of a populous and luxurious city. When such pub- lications are banished from the clubs of gentlemen, from the houses of " respectable" citizens, a step will have been taken to ex- ...guish the nuisance.
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