THE LAW OF INSULT.
THE Carington-Murray correspondence, published in the Times of Tuesday, brings into strong relief one of the many discordances occasionally revealed between English laws and English manners. English laws make no adequate legal provision either for the prevention or the punishment of Insult. Libel no doubt is severely punishable, the law being very much more strict than people, misled by the leniency of juries, are ordinarily apt to suppose, and slander may be made the subject of an action, which in all but appearance is a prosecution leading to a severe fine ; but insult, as such, is not punishable, can only be reached by the roundabout method of alleging an intention to provoke a breach of the peace, a remedy not fully open to a man who could not affirm that he was being provoked into a duel. To provoke a duel is a criminal offence, but provocation to a breach of the peace is usually met by placing defendant under recog- nizances not to break it, that is, rather by a formal caution than by an actual penalty. In regard to certain insults in particular, the action ot the law halts in a manner which, considering
the careful legislation of many countries upon the subject, is almost inexplicable. Nobody pretends to doubt that if John Smith walks up to John Brown and affirms that his father was a swindler or his mother unchaste, Brown has suffered a severe injury, one quite as real as a robbery of his watch, and one which he will feel a great deal more ; yet the assault being upon the dead and not involving pecuniary loss to the living, there is under our system no legal remedy whatever. Social remedies there are, no doubt, among those cultivated enough to care for opinion or well placed enough to fear society, but for the great majority there is no redress whatever. The defect is the less explicable, because English-speaking people are all over the world almost morbidly sensitive to insult, the Americans displaying the feeling in an even stronger degree than our own countrymen. One clear half of the murders committed in the States are believed to be acts of vengeance for insults, either real or imaginary, whether deliberate or acts of excited temper. There is not the slightest trace on either side of the Atlantic of the feeling which, as De Quincey has pointed out, made the Roman patriciat so care- less about injurious speech, so frightfully reckless in abuse, the feeling that words, after all, alter nothing, and are below the atten- tion of self-respecting men. That is, perhaps, really the highest attitude of mind, but in modern society only Kings, and successful Kings, seem able to attain it, and they only by aid of a convenient deafness. A London cabby or a New Yorker from Five Points would "pitch into" anybody who called him half the names by which Cicero was not ashamed to brand his adversaries, and in a higher grade the use of any one of them would ostracize the offender, just as quiet submission to them would ostracize the victim. A feeling similar to the Roman one to this day pervades the East, and produces an astounding licence of speech ; but English and Americans remain just as sensitive as they were when opinion upheld the man who killed his best friend for an acid jest. The sensitiveness is constantly revealed in incidents like the one which this week has superseded politics in public interest, but it never finds expression in the Legislature, and the law is left in a condition which of itself tends to violence.
The truth appears to be, that upon this subject a tradition, derived from an ancient and superseded code of manners, still paralyzes any effort at remedial legislation. Fifty, or even thirty, years ago, the rule was for any person insulted to take the law into his own hands, and challenge the insulter to mortal combat ; and though, partly under the pressure of common sense, partly from the predominance of a class which in all countries detests the risking of life except at the call of duty, duelling has disappeared in England, a notion lingers that a man is bound to take extra-legal means of some sort for the protection of his honour. He must "defend himself," if only with his fists. Of course, the pistol being forbidden, that notion tends directly to the cabman's remedy, the use of physical force, a remedy which is not unfrequently openly defended, especially in novels. Guy Livingstone's heroes are always horsewhipping people, servants in particular, and a writer of very different opinions, Mr. Trollope, appears to support the same mode of securing redress for insult, evidently considering that Johnny Eames, for example, who, he is conscious, is occasion- ally a bit of a "cad," will become more heroic in his readers' eyes for hitting Crosbie, and so we may remark en passant, running the risk of bringing his lady-love's name into a police-court. The tradition is so strong, that it blinds the public to the absurdity of a remedy which depends for its utility not upon the justice of the cause, or even upon public opinion as to the justice of the cause, but upon the weakness or strength of the party in the wrong.
There is no redress for wounded honour in being knocked down. "It's a clever idea, really," says Mr. Folair to Nicholas Nickleby, speaking of a rival actor whom Nicholas had offended. "'If you had shown the white feather, and let him pull your nose, he'd have got it into the paper ; if you had sworn the peace against him, it would have been in the paper too, and he'd have been just as much talked about as you — don't you see ?' — Oh certainly,' rejoined Nicholas ; but suppose I were to turn the tables, and pull his nose, what then ? Would that make his fortune?'—' Why, I don't think it would,' replied Mr. Folair, scratching his head, because there wouldn't be any romance about it, and he wouldn't be favourably known.'" Mr.
Murray says, in this correspondence, he was inclined when hit to thrash his assailant. Suppose he had done so,—we have no idea which of the combatants was the stronger,—how would Lord Carington's father have been avenged ? or even, for that is the real issue, have seemed to be avenged ? The theory leaves Tom Sayers full liberty of libel, while placing, say Earl Russell, under the strictest regulation, fails, in fact, just as duelling failed in England and now fails in France, to put down the man who of all others wants putting down,—the professional bully or spadassin. Indeed, in practice violence of any sort fails to impose any check whatever upon insult, rather increases the liability, by piquing the personal courage of the insulter. The Press, for example, is nowhere so personal as in those parts of the Uuion where a personality is avenged by the cudgel, and was never so bad in England as when Theodore Hook kept an Irish porter to receive all visitors in the character of Editor of the Age; while Paris, where duelling is the accepted consequence of insult, is choked with papers which have no other business ; while even decent journalists, men who are gentlemen by every technical rule, say things which in England would kill any paper which trans- lated them.
If the tradition were once got rid of, it would not, we think, be very difficult to bring insult within the scope of the criminal law. Of course, there are and must be some few cases in which no law, however carefully constructed, and no practice either, however illegal, could give any real redress. Whenever women's names are concerned, society in all grades must depend partly on etiquette, partly on its own power of ostracism, the law court and the cudgel being equally objectionable, as inflicting an injury worse than the one to be repaired. Such cases will always remain among the opprobria, the failures, of every social system, and can be prevented only as less serious social liaises are prevented, by the silent cotn- pulsion of society. Duelling does not prevent them in the least, as we see in France, and still more in Italy, and we confess a total inability even to think of a plan which would. But we do not see why, in ordinary cases, a shrewd magistrate or an average jury should not be as able to decide what is and is not insult, as what is and is not injury. In this very case, for example, either could decide easily enough whether an attack on a man's father was an insult to the living or came within the range of fair historical disquisition. No such difficulty is experienced in France,—where, however, the law is carried to an absurd extreme, any Bourbon, for example, having right of action against any his- torian who might say St. Louis was a proffigate,--and none is felt by the only court of honour in this country, a military or naval court- martial. Indeed, Irish magistrates contrive under a special Act to visit one particular form of insult,—insult to religion,—with very condign punishment, though the offenders are usually drank and belong to the lowest classes of- the community. As to insult through newspapers, the only difficulty is to get at the right per- son, and that is more apparent than real, the right person being always the one who suffers, by dismissal or otherwise, in the end. We see no reason why insult of certain kinds should not be made an offence, just as much as libel, and are wholly unable to perceive that the "liberty of the Press," so far as that liberty is valuable, is involved in the matter at all. A journalist in a free country is a debater, and ought to be allowed to say anything that he would be allowed to say in Parliament,—surely a suffi- ciently wide margin,—and to be restricted from going beyond that limit,—a limit which, it should be remembered, admits of almost any accusation against a public man which the accuser is prepared to prove. Unless we mistake the drift of opinion in this country, we shall come to some rule like that at last, or to something infinitely more trying to the Press,—the unused French law called the "wall of private life,"—the law which gives every citizen right of action if his private history is mentioned at all, even in the most favourable manner.
Previous page
