SOME AccouNT OF LORD BROUGHAM'S EVIDENCE BEFORE THE LIBEL COMMITfEE.
Lonn Brougham has been examined as a witness before the Select Committee on the Law of Libel. It is one of the beautiful anomalies, that while Committees on Private Business are open to all who please to walk in, the Public Committees are held in secret conclave; and the publication of evidence is a breach of privilege. We are therefore un- able to give a verbatim transcript of the Lord Chancellor's evidence; but enough has transpired indirectly to enable us to furnish some ac- count of it. We dare not say that the following is an exact epitome ; but we could lay a wager it is not far removed from the actual truth.
Lord Brougham appears to have been as much puzzled as other people to give a correct definition of a libel. All the definitions he had ever seen were wanting in some requisites of a good logical definition. The same might almost be said of sedition. Horne Tooke, warped by his love of etymology, said that a libel was merely a "little hook," and that
there was no such thing as that which lawyers call a libel: but he might as well have said that there is no such crime as forgery, because to forge is to beat iron into a form when it is red hot. Besides, libellus alone is not the English " libel :" that offence is signified by libellus famosus ; and there is a title in the Pandeets "Deinjuriis et libellisfirmosis." The want, however, of a correct definition is not, after all, productive of much evil ; for the Chancellor never knew of an instance of an indivi- dual being oppressed or a jury misled by the want of precision in the terms employed.
The existing law, the Chancellor considers in many respects too leni-
ent to the defendant. For example, spoken slander is frequently more injurious than written slander ; yet, unless a person imputes to another an indictable offence, he is liable to no action at law. He may call a man a coward, knave, profligate, or adulterer, and escape : but if he had put a small part of this in writinAr, and it is only read by a single person, an action will lie for libel. It is only or chiefly as regards what is called actions, that the law is too lenient to offenders : the criminal branch does not lean that way. Lord Brougham very much approves of the mode of proceeding by criminal information. It erects the Court of King's Bench Into a court of honour ; for the complainant is obliged to deny on oath the charge which he declares to be libellous. There are many charges which cannot be disproved ; and to bring an action, or to in- dict the aggressor, is useless. For want of evidence on the part of the defendant, a verdict may be gained with damages ; but the el a- racter of the plaintiff is not cleared ; and to indict a person, is deemed almost the same as acknowledging the truth of the libel. Even the anode of proceeding by criminal information is not fair to the pro- secutor, when it is rendered necessary for him to clear himself of every tittle alleged against him. This rule bore hard upon a man who was charged in the same libel with embezzlement and usury: he cared nothing about the charge of usury, but wanted to disprove the peculation ; as, however, he could not deny the smaller offence, he left the Court as if the whole charge was true. This rule has in some cIrgia e been relaxed by the Court of King's Bench. On the whole, the it o he of proceeding by criminal information, lord Brougham thinks by far the most satisfactory to persons defamed ; although itt another respect the law leans to the defend,. a', in giving him the prtli- lege of swearing last, and not permitting counter affidavits by the pro- secutor to be put in. Sometimes, however, c neictions cannot be had after the rule has been made absolute ; for the prosecutor, who has it all his own way upon paper, may not stand a vie i race examination ; and when such takes place, an acquittal is sometiners the result. The expense is not much larger in criminal pros. edin.rs than by action ;: and the prosecutor is not to blame be,muse it is larger, as it is the Court, not he, that regulates the expense. Where these are contradictory affi- davits, and the Court does not know which to I. elieve, the best way is to send the case for trial.
The greatest absurdity in the whole libel law, or in almost any branch of the law, is the denial of the right to give the truth in evidence. The truth should not be made decisive either in civil or criminal proceed- ings,—for in some eases the truth may be an aggravation, not a justi- fication of the libel ; but it should be giten in evi•'enco, anditheCourt would judge whether it were an aggravation, a justification, or neutral. In almost c. try case, falsehood would be decisive of guilt : the truth might prove innocence, or it might not. Were the truth allowed to be given ill evidence, proceedings by indictment would be as efficacious to prove the innocence of the calumniated party as criminal informations, except in those cases where it would be almost impossible for the de- fendant to prove the truth : then the only way for the prosecutor to purge himself, would be by making oath, as in criminal informations. The Stamp-duties upon Newspapers are one very great cause of the worst of libellous publications, both private and public. 'the laws, ge- nerally, made to restrain the press, have a tendency to lessen the respect- ability of the persons engaged in that profession, and therefore todiminish the best description of security the public possesses against libels. There are two remarkable instances of injurious practices against the press, and therefore tip i tat thepublic, whom they were designed to protect. One of them is one of the Six Acts of 1819, by which conviction on a second offence is made punishable by banishment,—though that has never been put in force ; the other is the tendency of the Judges to deny editors of newspapers that protection to their characters which the rest of the community enjoys. Nothing can be more palpably effectual to destroy the respectability of any class of men, than for a Judge on summing up to treat newspaper editors PS not entitled to judicial refress. Yet Lord Brougham knew of an instance, where a Jadge had told the Jury, that the prosecutor for one of the foulest libels ever published was only the editor of a newspaper, and therefore, had the cause been undefended, not entitled to a conviction. The act of 39th George III., was good as far as it compelled editors to furnish evidence against themselves ; but one part of it would be perfectly intolerable if acted upon,—namely, that by which the right is given of filing a bill in equity to discover the author of any paragraph : were it not the law of the land, and therefore entitled to his respect, Lord Brougham would call it contrary to all principle and all justice ; but its existence is known only to few. The previsions which require newspaper proprietors to register themselves at the Stamp-office are justifiable ; but the Stamp-duties merely encourage contraband trading. The worst libels appear in the unbtamped papers, published almost all without the printer's name, and quite untraceable. The Attorney-General of the day once showed Lord Brougham a list of more than one hundred and fifty of such papers—all containing the most infamous trash. If you remove the stamps, you apply the right principle of lowering the duties to destroy the smuggler, with whom at present the fair trader has no chance. The best security for good government is the diffusion of political informa- tion. All classes should have access to sound and impartial publica- tions. It is very fit that the labouring classes should read the debates in Parliament and the public news. Were this combined with other useful and moral information, millions of cheap papers would be read, where thousands are now. As to increasing the severity of the law against unstamped publications, it would be mere brulum fidmcn. If it were made a capital felony to publish a libel, as some people have
j wisely suggested, no jury would convict at all.
The established newspapers would hardly suffer by the removal of the Stamp-duty, as they would come into the field with great advan- tages over new competitors. The stamp now operates to narrow useful competition, and to give a monopoly to obscene, blasphemous, and se- ditious writers, who neither mind the old law of the land, nor care Ault a breach of the Stamp-laws. Taking away the duty would not be beneficial to the great newspapers ; but the interest of the consumer, not the grower, is to be attended to. Most assuredly, the great bulk of the people of England would prefer decent and useful newspapers to those which deal in ribaldry and obscenity; but them they red/ have news, and they ought to have it cheap. In this way only can you expel the abominable class of publications from the dwellings of the poor. Prosecutions do no good ; Camille's trade has broken down, since pro- secutions against him have been suspended. The loss to the revenue arising from the abolition of the Stamp-duties would be nearly made up by an increase of advertisements and in the consumption of paper.
Some means ought to be taken to prevent men of straw being regis-
tered as pre p ietors of papers. It has been intimated that the party libelled shout. I have some security on the press from which the libel issued. This is matter for consideration. Something should be done to remedy the great grievance under which the sellers of newspapers labour in being liable to prosecution for distributing a libel, which they had not time least participation in writing, and never even read. The casts in actions for libel ought to be given in reference to the amount oF damages. Courts of Common Law ought to have the same discre- tion as Courts of Equity in regard to costs. Now the Judge tells the Jury, " You have nothing to do with costs ;" but Lord Brougham would say, " You have to do do with costs ;"and Lord Denman now follows that rule.
[ We hope next week to give the sequel to this account.]
Previous page
