26 DECEMBER 1829, Page 9



THE liability of newspaper proprietors, under all circumstances what- soever, both to civil and criminal actions in cases of libel, has been generally taken for granted. They have accordingly, for the most part, when criminally prosecuted, pleaded on the assumption that the prosecution was founded on just views of the existing law. Mr. FREDERICK POLLocx, when plead ingthe cause of one of the proprietors of the Morning Journal on Tuesday, took a somewhat novel view of the question, and one which is not unworthy of a short consideration. Assuming that his client had taken no share whatever in the manage- ment of the paper, he contended, that although liable civilly, he was not liable criminally for the conduct of those who had that manage- ment. Mr. Ponnocx's argument was partly legal. There are no de- cisions on the point older than one hundred years ; most of them are nisi prius cases ; and the dictum of the deciding Judge in one case,— namely, that the servant who carries a libel is liable as a publisher, —is so extravagantly absurd, as not unreasonably to throw descredit on any decision emanating from the same source. Indeed, by such a dictum, his Majesty's Postmaster-General might be made a particeps criminis in every newspaper libel that issued from the press. Mr. Ponnocic also argued the case on the grounds of natural justice and common sense, which in every description of property except literary property are respected. And as the law of copartnership in libel is of that description of law called common (because its limits are undefined and every one has a right to Wander over it at will), these arguments are not so very irrelevant as they would be were the question one of statute law.

We need not waste many words to point out the broad distinction between civil and criminal responsibility, nor show how the one may be admitted where the other is impossible. The reason why compensa- tion may be justly demanded of those who, whether by direct or indi- rect means, do their neighbour damage, is plain. Of whom is the party injured to seek it, if not of the party that occasions the injury ? But everywhere malus animus is essential to crime—it is involved in its very definition—it is impossible to conceive criminality abstracted

from it. So completely is this acknowledged by the law itself, that if a man can be proved incapable of malus animus, he can in law com- mit no crime. He may rob—it is no felony ; he may kill—it is no murder ; he may rebel—it is no treason. is it not therefore strange, that a man should, 'under such circumstances, be criminally respon- sible for a ? It was stated by Mr. PonnocK, that a partner of a newspaper might be made criminally responsible for its contents, though at the time of their publication he was immured in a madhouse. He might have put a still stronger case. Suppose that Mr. ALEXAN- DER had concocted the libel tried on Tuesday in a fit of derangement, —suppose that he were at this moment in confinement as a lunatic,— according to the law, as laid down by the Attorney-General and Lord TENTERDEN, his partners, because they gave him charge of the Morning Journal, • BELIEVING HIM SANE, would be criminally liable for his acts of madness. Of Course we would not presume to set up our own notions of law in opposition to those of Sir JAMES SCARLETT and Lord TENTERDEN; but, in noticing Mr. Ponimmes argument, both of these eminent lawyers, not content with stating what the law was, undertook to show its reasonableness. On this ground alone—keeping in view the very high respect that is due to their knowledge and experience—we venture to meet them.

Their arguments (for the Bar and the Bench made use of the same) were these. 1st, the proprietors furnish in part or in whole the means of publishing the libel. 2d, They receive the benefit of its publication. 3d, If proprietors were not criminally liable, they might perpetrate the most scandalous libels, and escape punishment, by putting forward any wretch who for a small bribe might be content to endure prison and banishment for such delinquencies.

SirJamEs SCARLETT illustrated the first of these arguments by a case. "Suppose one man furnish another with powder and shot, and send him forth to rob and slay, while he lies perdue and receives the plunder, himself neither robbing nor slaying,—would he not be justly deemed an accessory before the fact ?" But this hypothetical case, with submis- sion be it observed, involves anignoratio elenchi, as the schoolmen term it. The case put by Mr. PonLocic was that of a proprietor who did not advise—who was not privy, either before or after the fact, to the concoction of the libel. If we must have a powder and shot case,— suppose a man to send out his servant with shooting materials, on a commission to shoot crows; and suppose the servant, instead of shoot- ing crows, to step into a preserve and fall to shooting pheasants,— would the master, to whom the first intimation of his servani's mis- doings was a summons to attend the quarter-sessions, be equitably liable to the penalties of the laws for protecting game ? The hypo- thetical case of Sir JAMES SCARLETT, and all similar cases, lie open to another objectionr—they are a violation of the well-known rule, inter dissimilia comparatio non fit. In felony or larceny there is but one thing to prove—the perpetrator of the crime ; in libel it is necessary to prove the crime as well as the criminal : for, granting that a clear- headed man may generally know what is libellous, no. man under heaven can predicate in every case what a Jury, under the address of a clever advocate, may term so. Is it not curious, that for an offence of which even the perpetrator may be unconscious, one that is a thou- sand miles distant at the time of its commission may be criminally visited ?

But a proprietor receives the benefit of libels, and therefore ought to receive the punishment. Granting this were as true as it is false, the benefit would be' but pecuniary,—and are not damages which may be levied to the ruin of his fortune sufficient punishment on such a

proprietor ? It is false, however, that public libels ever made or will make any paper. Prosecutions for libel have sometimes done so, when unwisely or vindictively urged by inconsiderate servants of Government, but libel never. Private scandal—personal libels—may give currency to a publication, may swell the gains, and be in conse- quence encouraged by a selfish and dishonest proprietor,—and for this encouragement and its consequence he has only to fear an action of damages : but who is so simple as to imagine that vague and incon- sistent charges against the Cabinet, denunciations of appstates, clamours of Whigs, and lugubrious lamentations over the state of Protestant Ireland, ever gave prosperity to any periodical ? These topics are the bores of the press and the public, and, like other bores, they are disliked first and neglected afterwards.

Now with respect to the third advantage of the law, as interpreted by Lord TENTERDEN and Sir JAMES SCARLETT,—do not both of these eminent persons attribute to it virtues which it does not possess ? What is there to hinder proprietors at present from setting up a man of straw to undergo the punishment of libel in their stead ? Has not this been done already ? Does any man in his senses believe that the Beacon was edited by Mr. Nimmo, or the John Bull by Mr. SHACKELL ? There is a consequence of the law, as above interpreted, tharcannot be too much or sincerely deprecated. Men of character and capital will be deterred from embarking in newspaper speculations because of the infamous punishment which the connexion may entail on them. What man would peril his personal liberty, nay, incur the hazard of banishment beyond seas, without very great temptation in- deed ? Is it not to be feared I hat the " straw man" system will become general, or that all but needy and unprincipled adventurers will be driven from the press? Sir JAMES SCARLETT says, that ex officio in- formations will purify the press : we do not deny that the grossness of some part of it may be drawn off by such a fiery purgation, but the essence of the whole will evaporate at the same time, and leave nothing but a caput mortuum behind.