§ Mr. O'Connell moved the second reading of the Law of Libel Bill. He felt it his duty to state the circumstances under which the measure came under the consideration of the House as well as the objects and principles of the measure. It was the same Bill that had already been three times before the House, but as yet had never been read a second 478 time. It was in the year 1833 that he first proposed a measure of this description, and at that time Lord Althorp requested him not to press it forward, but to abandon it for that Session, upon the understanding that it was the intention of the Government to have a Committee upon the subject of the law of libel. It happened, however, that the Session was at that time so far advanced as to render it inconvenient then to appoint the Committee, and the subject, as a matter of necessity, stood over till the next year. In 1834 the then Attorney-General (now the Lord Chancellor) brought the question under the consideration of the House, and proposed a Committee to consider the law of libel and to suggest remedies for its improvement. The Committee appointed upon that occasion went fully into the subject, and not only admitted the defects of the law as it then stood, bat fully demonstrated the extraordinary anomalies to which it gave rise. That hon. and learned Gentleman, the Attorney-General in 1834, now the noble and learned Lord, displayed upon that occasion that solid good sense, that true knowledge of the subject, which had made him, he believed, one of the most useful Lord Chancellors this country ever saw. He believed it was unanimously admitted by the profession that no man ever, filled the high office of Lord Chancellor with more credit to himself or greater advantage to the public than Lord Cottenham. It was strange, indeed, that this fact had never before been noticed in that House, but out of the House he believed there was but one opinion upon the subject, that he not only exceeded his predecessors in the duty of hearing original causes for the first time, but that none had ever been distinguished by a sounder knowledge of the law, or a stronger or more manly mind. A great deal of evidence was given before the Committee appointed in 1834, but, unfortunately, no Report had been brought before the House, and the evidence was not printed. The Committee, in fact, proved to be a perfect abortion—no record even of its proceedings remained— all the evidence given before it was lost. Yet there was no person examined, no person who spoke upon the subject, who did not admit that the law of libel was in a most defective, nay, a most indefensible, state. The first question that naturally suggested itself upon the subject 479 was —what is libel? As the law at present stood he defied any man to limit the definition of a libel. Any thing was a libel. On one occasion Lord Ellenborough held that the calling Lord Hardwick a sheep-feeder from Lincolnshire was a libel, yet in the case of Mr. Perry, the then proprietor of the Morning Chronicle, the same Lord Ellenborough insisted very strongly that saying George the 3rd was not a popular king was not libellous. So that in point of fact the matter held to constitute a libel was just what the judge chose to determine, or a partisan jury to insist. The only fixed rule upon the subject was this: that anything was a libel that hurt the feelings of the person against whom it was directed. Ought there in England to be such a law as that? Observe the inconsistency of it. Scandalous words were used viva voce—the same words were written or printed; the one was slander, the other libel. How did the law deal with these? As regarded scandal there really was something definite and distinct in the law, because nothing was held to be scandalous but that which imputed crime, or incapacity, or unfitness to a man in his trade or occupation. The law of slander, therefore, had its limits. But if the same words were written or put into print there was no limit whatever. No anomaly, he thought, could be greater than that; because, if the words used were criminal in themselves, they must be equally criminal whether they were spoken or written. The nature of the offence must be in the words themselves. It was a singular absurdity that a set of words which, if merely spoken, would be held by the judge to be perfectly harmless, should, if written or printed, be declared by the same judge to constitute a crime. There was another anomaly in the law. There were two modes of proceeding against persons accused of libel—one to prosecute criminally, the other by civil action for damages. The mode of proceeding criminally divided itself into three distinct branches: first, by filing a bill ex officio—that was by an indictment instituted by the Attorney-General himself; second, by criminal information; third, by common indictment. Thus there were three modes of proceeding against a libel as a crime; and one mode of proceeding for compensation. The moment the criminal proceedings were instituted, all the circumstances of the publication were 480 taken into consideration by the jury, to determine whether or not the publication were criminal—all except one. And what was that? The trifling circumstance of whether the allegations contained in the publication were true or not. One would think that the first thing to be inquired into should be whether the allegations were true or false. If false, it ought no doubt to be deemed criminal; but if true, ought it always to be held a fit subject for punishment? But, as the law at present stood, it mattered not how perfectly true the publication might be. Its truth was the only immaterial circumstance connected with it. It might be perfectly true in every particular, and yet conviction and punishment would follow. Such was the state of the law as regarded criminal prosecutions for libel. How did it stand with respect to civil actions where the party aggrieved sought redress in damages? In civil actions, if the truth of the publication could be proved, it was a complete and perfect defence, no matter how malicious or injurious the publication might have been. He proposed to change the law in these respects; he proposed to make the law definite and precise; and, if it were not entering too much into detail, he would explain the means by which he proposed to do so. It was his intention, if the House allowed the Bill to be read a second time, to propose that it be referred to a Select Committee up stairs to consider its provisions. He proposed, in the first place, to make that definite which was at present indefinite. He proposed, to reduce actions of libel to the same limits as actions of slander. He proposed also to define distinctly what should be held to be libel; he proposed that no language should be held to be criminal which was not in itself an incitement to crime. Any publication accessorial to crime he would leave to be punished by the criminal law; but any publication uncomfortable to the feelings of private or public men, unless it imputed criminality to them, he would leave to be met by argument, or to be rebutted by the same means as that by which it was advanced. These were the two first principles of his Bill. In the next place he proposed to deal with the criminal modes of proceeding in cases of libel. These, as he had already stated, were three. The first, the ex officio proceeding by the Attorney-General, he proposed to do away with altogether. At present 481 the Attorney-General could, at his own caprice, indict any person for libel. Public opinion, it was true, was a great protection in London against an arbitrary or improper use of that power; but he doubted whether it would prove the same protection in more distant parts of the kingdom. He did not think public opinion so good a protection in Edinburgh as in London, nor in Dublin as in Edinburgh. He thought that the Attorney-General ought not to possess this privilege. The only argument in its favour was, that in some cases it might be necessary to proceed with great quickness and dispatch in matters of libel. But proceedings ex officio were not necessary to the attainment of that end, because where would be the difficulty of sending up indictments to the Central Criminal Court, to the Quarter Sessions, or to the other criminal courts which are almost perpetually sitting. If expedition were required, it would be easy at any time to issue a special commission, and in forty-eight hours a special jury might be summoned, and the indictment laid before them. In the next place he proposed to take away from the Court of King's Bench the power of granting criminal informations. He knew that that was a favourite power with the profession, and he had more than once quarrelled with his professional brethren in opposing it; but it always appeared to him to be a most unsatisfactory as well as a most expensive mode of proceeding. In the first place, an affidavit must be made by the party complaining; if the affidavit were false it must be contradicted by a counter affidavit. There could not be a worse system than that of proceeding by affidavit. The last swearer had always a considerable advantage; the hardy swearer had a much greater advantage. A striking instance of that fact had occurred within the last fifteen months. Instead of these informations, therefore, he proposed for the future that all criminal proceedings in cases of libel should be by indictment. He should wish a Committee up stairs to discuss the details of this measure. Next, with respect to criminal prosecutions, and allowing truth to be given in evidence, he thought it better not to allow the parties to go out of court free of expenses, because they had proved the truth. Then he took up another point of the law of libel that related to costs. At present, in actions for slander, when the damages were under 40s. the parties recovered no costs. In 482 spoken libel, or slander, 40s. did not carry damages; but in cases of written libel, if the damages were laid at only one farthing-, that carried costs. Thus, in the one case no costs were allowed, whilst in the other enormous costs were imposed. He had heard of several cases where 400l. had been the amount of costs of the plaintiff and defendant, when only one farthing damages had been returned. There had been cases in Liverpool and Devonshire where one farthing damages had been awarded, but where 400l. had been the actual amount of costs. Was this a state of the law which ought to be allowed to continue? It was matter of speculation to many attorneys in respect to certain libellous paragraphs being copied from one paper into another. Many instances occurred where attorneys speculated upon there being no more than one farthing damages, and brought fifteen actions afterwards against each paper into which the libel might have been copied. He might be told that the judge might certify; but who ever heard of a judge certifying under these circumstances? If a judge so certified, it might be said it would deprive the parties of costs. His opinion was, that no man who should recover no more than 20l. damages should be entitled to costs; or, that if the plaintiff obtained 50l. damages he should not recover more than that amount of costs. If the damages exceeded 50l., the plaintiff to be entitled to full costs, as between attorney and client. By this measure he introduced two principles—the one giving the power of retractation in criminal cases; and, secondly, that the prosecutor must serve notice on the party to retract. The jury, moreover, were to be the judges whether bonâ fide this retractation was sufficient in criminal cases. This clause did not go to interfere with actions in civil cases. In the case of criminal prosecutions he had given the power to the parties publishing the libel to give up the author. If he gave up the name of the author, then no action for damages would lie; but if such person refused to do this, then an action would lie. But in the case of authorship not being proved, the publisher of the libel was to pay all costs. This Bill also provided that in criminal proceedings the parties should be allowed to prove that the libel was promulgated without his assent; though this was not to be admitted as complete evidence to the jury, but as mi- 483 tigating circumstances. He proposed that this should apply only to cases of criminal proceedings, but should not extend to cases where civil actions were brought. He thought it impossible for any man to say that the present state of the law was such as should continue. After some further observations, the hon. and learned Gentleman concluded by saying, that all he wished was, that this Bill should be read a second time, upon the principle that the existing taw was such as required improvement. If this motion should be agreed to, he should move for a Select Committee tip stairs to inquire into and report upon the question. He hoped that his Majesty's Attorney-General would help in farming such Committee.
§ The Attorney-GeneralI feel myself under the necessity of opposing the second reading of this Bill, but by no means on the ground that the existing law does not require improvement. I apprehend, however, that the promoter of the Bill is bound to prove, first that the law requires improvement; secondly, that this Bill would be an improvement of the law. Now the first of these propositions has, I think, been most completely demonstrated by the hon. and learned Member. As to the second, I think, with great respect to him, that he has utterly railed. Now, that the present state of the law of libel is defective and Unsatisfactory, I readily allow. I agree With every word that was said by the hon. and learned Gentleman on that subject in the course of his speech; and I perfectly subscribe to the tribute which he has paid to the great qualifications and important services, as a judge, of the distinguished individual he referred to it is one thing to say, that the law is defective; another, to suggest how it should be remedied. I acknowledge that the present law is defective; and if there were any probability, in the present state of the business of the House, of carrying through Such a Measure, I myself, humble individual as I am, would most eagerly undertake to bring in a Bill to amend the law of libel. But, Sir, so lamentable is the present state of public business in this House, that I, for one, quite despair of Succeeding in Such an attempt. I have, myself, prepared four or five Bills connected with alterations and improvements in the law upon this and other matters. But what encouragement is there to bring in new Bills? On the very first day of the 484 present Session, I brought in a Bill for taking away the punishment of imprisonment for debt except in cases of fraud. I have done, I think the House will allow, everything in my power to forward that important Bill; but I have failed, hitherto, in getting it even into Committee. And why? Because it pleases some hon. Members, to occupy the time of the House upon such mere speculative questions as whether the convocation should be assembled again (for example), to the great detriment and delay of the real business before this branch of the Legislature. In fine, Sir, until there shall be some signal improvement in our present mode of conducting the business of this House, I totally despair of success in carrying any measure of legal reform or amendment. Now, Sir, as to the measure before us. With all my great respect for his talents and attainments—for his professional character and great experience— I must confess I have been quite astonished to find the hon. and learned Member for Kilkenny bringing in such a Bill as this. I speak (I hope) most humbly, but still in all earnestness. I should have expected from a Gentleman of his experience and ability the suggestion of some remedy for the evil which, he tells us, be seeks to put down. But here is nothing of the soft. On the contrary, I should be prepared to anticipate, Were this Bill, in its present shape, to pass into a law, that the law of libel would, thereupon, be reduced to a Condition much worse, and more objectionable, than that even which it is admitted to be in at present. The hon. and learned Member has given us no sort of definition as to what it is that shall henceforward be held to constitute a libel,—nor yet of the limits Within which the truth, in defence to an action for libel, may be given in evidence. In the case of pleading the truth, in justification of a libel, he has, indeed, introduced a variety of provisions, having regard to the tender of such evidence; but I am pre- pared to show, that, were they ever to be- come enactments, they would necessarily lead to the most mischievous and disastrous consequences. He begins, here, by taking away and abolishing the power at present vested in his Majesty's Attorney- General to file, in certain cases, ex officio informations. Now, allow me to say that it would be a much fairer thing for the accused party, in criminal prosecutions, if there were a public prosecutor, who, on his 485 own responsibility, in that capacity, would put the accused, at once, upon his trial; for then, the accused would come to his trial without any prejudice to his cause. The hon. and learned Gentleman has referred to what he says would have been done in such a matter in Edinburgh. Why, there is no such tribunal as a grand jury in Scotland! The Lord Advocate, as public prosecutor, puts the accused upon his trial at once; but I do not say, that criminal justice is better administered in the Northern than it is in the Southern parts of the island. I have never, yet, had occasion, since I have had the honour of holding the office of his Majesty's Attorney-General, to file a single ex-officio information. In this respect I consider myself to have been very fortunate; but, most undoubtedly, if I felt it my duty to do so, at any time, I would much rather file an ex officio information against an accused, than I would send him to a grand jury, from which he Would go to his trial at the assizes with this prejudice, at least, created against him,—namely, that on an ex parte trial, before twenty of his countrymen, there was that sort of primâ facie case of guilt against him, that they had found the Bill, Why, Sir, I may mention that an hon. Friend of mine is, at this moment, engaged in preparing a Bill for the abolition of grand juries. But the fact is, that grand juries are so much looked up to and respected, in this country, that I do not think the time is yet come for so sweeping a measure. Still, I do think, that the system of ex parte proceedings before grand juries is inconsistent with the present state and feeling of society; and I must always declare, that I do not like to send a man, thus prejudiced by their finding, to his trial before a petty jury. It is not intended, I believe, by the hon. and learned Member for Kilkenny to take away the power of the Attorney-General to proceed by ex officio information in other cases. But why, I ask, should the learned Member except the case of libel only from such informations, filed by the Attorney-General? If the Attorney-General may still file these informations for blasphemous words, seditious acts, and so forth, there seems no reason in depriving him of the power only in the case of libel. If he is not to retain the power in any of those other cases in which, I apprehend, he must originate the proceedings, there 486 can be no reason why he should retain it in this. Then, the preamble of the Bill goes on to declare, in the next place, that no such thing as a criminal information shall be filed by order of the Court of King's Bench. The hon. and learned Gentleman told us, in the course of his speech, "that he has not yet been able to find a single member in his own profession, in Ireland," who would concur with him in this proposition. He might safely have gone much further, and added, "nor a single member of that profession out of Ireland." I am at a loss to conceive upon what grounds the hon. and learned Gentleman could have assumed, that this restriction would prove either just or prudent. Why, Sir, the practice which he would put down is a most potent and most salutary protection for all parties. It gives to the party against whom the charge on which the proceeding for libel is brought, an opportunity of purging himself from that charge on oath;—to the party who brings that charge, an opportunity, on the other hand, of substantiating it also upon his oath; and be it observed, that unless the party against whom that charge is brought can make out that he is an innocent man, and has been wronged by the statement of the accused, he is refused the information he prays, and denied the protection which he invokes. I know that two most distinguished men, Lord Erskine and Lord Brougham, have held this power to be a most salutary one; and that Lord Brougham has declared, that the Court of King's Bench is a court of honour, and has a tendency to protect the peace of the country and the honour of individuals. The Bill next proceeds to attempt to tell us in what cases there may be a prosecution for a public libel; and the definition which is given of a public libel, as I take it from clause 22, is this,—"the words public libel' shall be construed to include any matter, written or printed, reflecting upon his Majesty's Government or his Majesty's Ministers, Or upon either or both Houses of Parliament, or upon any constituted authority in the State, or upon the conduct and management of public affairs in any department of the state, whether foreign or domestic, or upon the administration of justice;" and in clause 2, it is declared, that "it shall be necessary in every such indictment to allege and to prove, at the trial that the 487 libel therein set forth was published to aid or abet, or to counsel or advise, or procure the commission of some crime for which a person may now, by law, be indicted as an accessory before the fact." Now, with respect to the proposition that all criminal informations for libels, unless they incite to or abet crimes, should be done away with, I repeat, that the Bill of the hon. and learned Gentleman would leave the law worse than it is at present. Let me ask the hon. and learned Member whether or not he justifies the late Sir Arthur Piggott for the only ex officio information which he ever directed to be filed while in office? Will the hon. and learned Gentleman tell us that he thinks Sir Arthur Piggott, on that occasion, abused his authority? The case was this — a certain newspaper reported that the Admiralty had sent out troops in transports which were unseaworthy vessels, only in order that they might be lost. Why, according to the learned Member for Kilkenny's definition of a public libel, against this atrocious charge, which, I believe, every body, at the time, thought to be one of the most proper cases for a criminal prosecution that was ever known,—no such information would lie! Even if the newspaper writer had said, that troops had been sent out by the Government with poisoned bread, or that the judges or the bench had been corrupted, I contend that, according to the learned Gentleman's construction, these would not be libels tending "to aid or abet, or to counsel or advise, or procure the commission of some crime for which a person may now, by law, be indictable as an accessory before the fact." I think, therefore, that these provisions of the learned Member for Kilkenny's Bill would be, in practice, extremely injurious, and would mete out impunity to those who would well deserve condign punishment. But, then, this Bill goes on to say, that no action or indictment for libel shall lie for a written or printed libel, unless for words which, if spoken, would be libellous:—
No civil action shall be maintained for any words,' merely because of the same being printed or written, or for any other words, save for such as would be sufficient to sustain an action when spoken; neither shall any indictment be sustained for any personal libel, save for such words as would sustain an action according to this Act.I am sure that my hon. and learned 488 Friend had not properly considered the effect of such a provision as this, when he finally allowed it to stand as one of the clauses of his Bill; or he must have forgotten, at the time, what the law of England at present is with respect to spoken words. By the law, as it stands, to say of a man that he is a coward, a liar, and a scoundrel, will lay no sufficient ground of action, nor yet of criminal indictment. So, in the case of a woman of the greatest modesty and good conduct; to abuse her with the foulest terms, involving imputations upon her chastity—these words in themselves, and unless special injury be proved to have resulted from them, will sustain neither action nor indictment. They are, in legal phrase, only "words of pique." But will any man contend, that if words of this sort be printed in a newspaper, and circulated to all the world—if a man of honour be accused, in that way, of being a liar and a scoundrel —or a virtuous woman of a breach of chastity—no action should be brought against the publication? And yet, under this clause of the Bill, any one might disseminate the most intolerable calumnies by the public press with perfect impunity—provided, truly, that the party retract the same, through the same channel, before an indictment for them shall have been found against him. If, indeed, the hon. and learned Gentleman had brought the penalty for spoken words up to the same point as that which the law assigns for written words, he might safely have effected some improvement in the existing law. But he does the very reverse of this. He equalises the offence of written words of libel to that of spoken words; so that there shall be no remedy, to the most injured party in the world, for abuse and scandal of the foulest character, though it be promulgated to the utmost possible extent. Then, Sir, we come to the clause empowering the defendant in actions for libel to prove the truth of his allegations. Now I think, that as to this point I must admit the defectiveness of the present law of libel. I think that, in actions of this sort, the truth of the alleged libel should be allowed to be pleaded, not as a necessary justification of the cause of action—not as in itself a good and complete defence to such action—but as matter proper to go to the jury to enable them to judge whether there has been, on the part of the defend- 489 ant, malicious intention or not; and then let the jury determine accordingly. Truth, it must always be observed, is not a complete justification in a case of libel. For example, the House may recollect the well-known anecdote of a young woman who happened, in her youth, to have had a child, but who, at a more advanced period of her life, had become a very highly respectable matron, and mother of a family. A charge was cruelly brought against her, that at some previous time she had been deficient in personal chastity. Now, in that instance, every body must perceive that the truth of the statement could be in no respect a justification of the libel; and it must be admitted, that the person who could be guilty of inflicting so enormous an injury on a female, thus circumstanced, was deserving of the most severe punishment. With regard to the clause, "defendant, in actions for libel, may prove the truth of his allegations;" the prosecutor ought to give notice of his proceeding. Then the prosecuted should have the opportunity of producing his witnesses and preparing his defence; and the other party would have to show that the charge against him is unfounded. But all that is provided for here is, that the truth may be given in as evidence. In my opinion, the proper mode of proceeding in such cases would be this—if the defendant rely on the truth, he should be compelled to say, "the charge is true, and therefore I publish it; and then you should let the case go on to trial either on the truth or on the merits. Nothing of that kind, I repeat, is contemplated under this clause. All that is said is, that the truth may be pleaded. Now we arrive at what I cannot but consider a most highly objectionable part of this Bill; namely, the clause providing that on his retractation of the libel there shall be complete impunity to the libeller. [Mr. O'Connell,—No; no.] I say from all criminal proceedings,—complete impunity; because, there shall be no punishment. That there shall, under these circumstances, be no punishment, is gravely proposed in the body of the Bill. It is gravely proposed that "at the trial of any indictment for a personal libel, it shall be necessary for the prosecutor to prove the service on the publisher thereof, either personally or at his place of abode (one week at least, before the indictment found), of a notice, in writing, calling on him to re- 490 tract and contradict the libellous matter; and unless such notice be proved, or if the defendant shall prove that he, before the indictment was found, fairly and unequivocally published a retractation and contradiction of such libellous matter, in the same mode in which it was originally published, such publisher shall be acquitted," So that the party aggrieved is to give a week's notice to the libeller, in order that he may have the opportunity of "retracting" his libel before such party shall be entitled to substitute criminal proceedings. So that if an editor of a newspaper publish an article maliciously impugning the conduct and character of any man, however respectable,—an article attributing to him the most crying enormities, the most scandalous motives, the most degrading conduct,—so long as he takes care to publish, in another day's copy of his newspaper, another article or retractation, as the hon. and learned Gentleman calls it, contradictory of that which preceded it,—such publisher or libeller may exempt himself from all the penal consequences that should justly attach to his offence. Having determined to calumniate any members of the community, he may go on repeating his offence, only taking care to publish its "retractation," "totics quoties," for there is no limitation? whatever imposed upon the number of libels which, under these conditions, he shall be allowed to perpetrate. Why, surely, it is quite possible that a newspaper might be set up for the express purpose of libelling. Does not the hon. and learned Gentleman see that this proposed privilege of retractation to the libellers would assure to such an establishment an extensive and totally unrestrained trade in slander? But, here again, in clause 8, it is enacted, that if the author be given up, the publisher cannot be touched. My hon. and learned Friend is aware that, where a libel has been published in a newspaper, the prosecutor will not have much chance of success in vindicating his character, unless he can get at the author. If the conductor of the newspaper has believed the genuineness of an article he has published, but for publishing which he is proceeded against—if he has inserted it bonâ fide, but because imposed upon, the existing law allows that the author should be punished. But here we have a sweeping enactment, that "if publisher discloses name and residence of author of a libel, action against publisher 491 to cease." Is it not perfectly within the range of possibility that a roan of straw may be set up as the author; and if he be not actually the proprietor of the journal, he may in effect be put forward as the scapegoat of the concern for all purposes? He may even be in gaol. He may, from interested motives, consider a gaol as his home. And thus the publisher or proprietor of the newspaper, who has given him up, escapes with perfect impunity, if he is only in a condition to say, "the author of this libel is already in Newgate. Go to him." But then, says my hon. and learned Friend, "the party libelled has a civil action." I do not wish to advert to any particular newspaper by name; but is it not quite possible that a man of straw (or woman of straw, for there are women, newspaper proprietors) may be put forward, as the party in whom the property is ostensibly vested? Now, let us suppose that some overruling aristocrat of a magistrate (if such a man there be in the commission), possessed of overwhelming influence in the community, were guilty of libelling some poor patriot, and that the latter sought his redress in an appeal to the legal tribunals. The purse-proud libeller —the Sir Giles Overreach—against whom he might institute a suit, would be allowed the privilege of a special jury by the hon. and learned Member for Kilkenny, and would very probably be acquitted, whilst the unoffending poor patriot would be made the victim. The next enactment is important. There is one case of grievance under the existing law, as alluded to by the hon. and learned Gentleman, to which a remedy should clearly be applied. That is, the anomaly which exists in respect of the marked difference between the proceedings in an action of damages for spoken words and an action of libel. In the former case, when the jury finds for the plaintiff damages not exceeding 40s. he is not entitled to recover costs exceeding that sum. This rule supplies a very proper check upon the plundering system of malicious or pettifogging prosecutors and attorneys. But, on the contrary, it unfortunately happens that if a man brings an action for libel, and gets but one farthing damages, if the judge certifies, the defendant may be subject to enormous costs. This is, undoubtedly, a very crying evil, and ought immediately to be remedied. I know full well that there are, very many cases in which ac- 492 tions are entered solely for this purpose of obtaining costs, and for nothing else. A well known prosecution, which mast be fresh within the memory of the House, has recently been instituted, which was most likely a case of this sort. But what is the sort of remedy proposed by this Bill? Why, that in any case where "the jury shall give damages exceeding 40s. and not exceeding 20l., neither party shall be entitled to costs from each other." Now this would lead, in many cases, to gross injustice; for example, a little tradesman may bring an action against another tradesman in the same rank of life, for a libel, and the jury upon the trial may think that 18l. or 19l., for example, would be a very handsome compensation; but under the provisions of this Bill, though the party may recover 18l. or 19l. which would be worth as much to him as 1,000l. to some individual in a higher class of society, he is debarred from recovering costs; he is saddled with all the expense to which he may have been put by the charges of instituting and prosecuting his action; he will be an absolute loser by this attempt to vindicate his character under the hon. and learned Gentleman's proposed "improvement" of the law of libel. The next enactment is one of a very objectionable character. It is to the effect that there shall be no special jury without consent of defendant; but that defendant may, if he please, have the case tried by a special jury. If the hon. and learned Gentleman had said that there never should be a special jury, there would, at all events, be some appearance of equality so far as the interests of the plaintiff and defendant were concerned. But what says the clause? "that it shall not be lawful for any prosecutor for any libel, either public or personal, to have a special jury, unless with the consent of the defendant; but"—(mark the unequal terms on which these parties are placed)—"the defendant may, if he please, have the cause tried by a special jury." Is there any justice in this? or rather, will not the hon. and learned Gentleman defeat his own object? In that case, your only remedy is to proceed against the party by indictment. It would be idle to prosecute him by civil action; of all your damages you would not recover one single farthing. When I find amendments of this nature proposed in the law of libel by the hon. and learned1 Member, I must say I read 493 his Bill with infinite regret. Let us next look at the law with respect to the punishment for this offence; and here the hon. and learned Gentleman adopts what I must be permitted to call a most extraordinary course. It is here enacted, that the penalty for libel shall be fine "or" imprisonment. You cannot visit a party with both these penalties. Very well. But, then, why do you put a limit to the extent of the fine and the amount of the imprisonment? The imprisonment, it seems, is never, in any case, to exceed six months. I allow that there have been very heavy and improper sentences inflicted by the courts,—imprisonments for years,—for libels: but I can conceive cases in which the libels may be so atrocious—so destructive to the tranquillity of society—so ruinous to the peace of families, that it may be utterly impossible to appreciate the full extent of the mischief to which they may tend. They may be such as to be deserving of a much more serious punishment than many felonious offences; yet, under the enactments of this Bill, however enormous the offence may be, no circumstances will allow of your inflicting a greater term of imprisonment than six months. It really seems to me the most capricious thing in the world to attempt to lay down any fixed rule for cases of this sort. But the rule which the Bill lays down, as to fine, is yet more extraordinary than the other. One would have thought that a fine ought always to be imposed with reference to the pecuniary means of the party. Thus, we know, that a penalty of 10l. may be as much to one individual to pay, as a penalty of 1,000l. would be to another. Yet the hon. and learned Member for Kilkenny proposes that, however great the offence may be, there shall in no case of libel be a fine of greater amount than 100l.: so that, if some millionnaire choose to libel anybody, he may go into a town, with a bag of money carried before him by one of his servants, and do so in the most outrageous manner, making up his mind to lay out so much money upon such an employment. There is one other point involved in this Bill, in connexion with which I shall always contend for this principle, namely; that where a libel is published in a newspaper, it shall always be competent to the proprietor to show, that such libel was published without his, privity, or consent, or knowledge. Primá 494 facie, the proprietor of a newspaper is liable to prosecution for publishing a libel; but I consider it to be clearly the law,—and it has so been held by the highest authorities,—that if the proprietor can show that any agent of his, unauthorised by him, or that any accident, beyond his control at the time,—has caused the publication of such libel; the proprietor, though he may be civilly responsible, cannot be made criminally liable. The law of England never means to visit people, thus unintentionally offending, in this manner. The spirit of our law is quite opposed to such principle. I will not now detain the House, any longer. I think I have said enough to show the House, that, however great and admitted the defects of the existing law of libel may be, there is no hope of the slightest improvement in it being produced by this Bill. I excessively regret that the Bill before the House does not, in any manner, answer the expectations I had formed of it, from the well-known ability of the hon. and learned Member for Kilkenny. I did anticipate from him a measure more worthy of his high reputation. I did hope that the name of O'Connell was destined to go down to posterity by the side of those of Mr. Fox and of Lord Erskine, as a reformer of the law of libel. In that expectation I have been most grievously deceived. I cannot indulge a hope that any beneficial effect would be produced by this measure, and therefore I must oppose the second reading.
§ Mr. Jervissaid, that if the hon. and learned Member for Kilkenny had proposed this Bill as a perfect measure on the law of libel, and one which ought to be passed into a law during the present Session, he should have been disposed to agree with the Attorney-General that it was too imperfect to be allowed to pass a Second reading. But inasmuch as it was admitted on all hands that the present law of libel was most defective, and inasmuch as the hon. and learned Member for Kilkenny had laid down in the Bill certain general principles as to that defective state of the law, and as to the necessity of its reformation, with a view that the Bill itself should be referred to a Committee up stairs, he (Mr. Jervis) thought that, as a nucleus of a reform of the law: of libel, the Bill ought to be read a second time. It would be the commencement of a reformation, the necessity of which was 495 admitted by all. He would submit to the House that the hon. and learned Member for Kilkenny had not been very fairly dealt with by the Attorney-General. The Attorney-General, instead of discussing the principle of the Bill, had confined himself to certain clauses of it, which he deemed objectionable—passing over other clauses which he (Mr. Jervis) therefore assumed were not objected to—and then argued that, because some of the clauses were objectionable, the Bill ought to be thrown out altogether. The Attorney-General had even argued against the Bill because the blanks had been filled up in italics with the words six months' imprisonment, and only 100l. fine; although he must have known that these were matters peculiarly referable to a Committee up stairs. Again, the Attorney-General complained that ex officio informations were proposed to be abolished. But, in his opinion, ex officio informations were bad things altogether, and the Attorney-General well knew that a very strong feeling prevailed against them among the members of the bar. The Attorney-General did not contend for the propriety of that species of process in other criminal cases. Why, then, should he advocate it in cases of libel? If it were a good process in libel cases, it ought to be adopted in every other case. It was his opinion, that the power of prosecuting by ex officio process was calculated to act with great severity against the press. No man who had read the excellent treatises written by Lord Brougham, in reviews and elsewhere, could deny that it was not only an anomaly, but the greatest possible injustice, that in a civil action for slander the truth might be given in evidence, whereas in a criminal proceeding it could not be given. The Attorney-General admitted that some of the clauses of the Bill were good, and that the principle for admitting the truth to be given in evidence in criminal cases —not as a justification per se, but as showing the motive of the defendant—was a sound principle, What, then, was the objection of the Attorney-General to this clause? Why, because there was not added to it a proviso, saying, that in criminal proceedings the defendant should plead specially the truth of the libel. For this reason it was, that the Attorney-General would have the whole Bill rejected. If Bills were to be rejected on 496 the second reading for want of provisos, he begged to inform the Attorney-General that very few would ever be read a second time. So much did he (Mr. Jervis) appreciate the clause admitting the truth of the libel to be given in evidence, that he would vote for the second reading of the Bill if it were only for the purpose of preserving that clause. He would take the liberty of controverting another position of the Attorney-General, who had said, that in the case of a male or female being put forth as a proprietor who might be only a man or woman of straw, or if the author of the libel were a mere man of straw, and these parties were in prison, there would be no means of proceeding against any of them with a view to punishment, because they could not pay damages. But could they not be imprisoned? But the Attorney-General had assumed the author of the libel to be already in gaol; even in that case, would it not be in the power of the prosecutor to detain him there, and would not that be a punishment? There was another clause in the Bill of which he highly approved; it was the clause which provided that if the proprietor of a paper should give up the author of the libel, but should not furnish the prosecutor with sufficient evidence to prove the authorship, the proprietor should pay the costs. This was a very salutary provision, and was alone amply sufficient to call upon the House to read the Bill a second time. The hon. and learned Gentleman concluded by again urging the House to send the Bill to a Committee up stairs.
§ Mr. Borthwicksaid, that the hon. and learned Attorney-General having made a personal charge against him, and alluded to a motion which he had recently made, as affording an instance of the desire which was assumed to be entertained by hon. Members generally to postpone practical legislation to theoretical disquisition, he begged to inquire of the hon. and learned Gentleman whether, by "practical legislation," he meant the discovery and application of an imaginary surplus, with which the House had been recently occupied for a considerable period, upon the motion of a Minister of the Crown? The hon. Gentleman then expressed himself favourable to the principle of introducing some reform into the law of libel.
§ Sir Frederick Pollockentirely concurred with all those hon. Gentlemen who had 497 preceded him in believing that the present state of the law of libel was unsatisfactory. In the first place, with regard to ex officio informations, it might be a fair subject of discussion how far those informations ought to be permitted to exist in their present state, or whether they should exist at all. For his part, he was inclined to think, that the power which the Attorney-General now possessed of filing an information for libel of his own act, and ex officio merely—a power which was not conferred upon that officer before the year 1810 or 1811—was a power which ought no longer to exist. With respect to the costs of actions of this description, he agreed with the hon. and learned Member for Kilkenny, that it was quite monstrous, that in cases of slander, a party who was awarded damages of a less amount than 40s. should not be entitled to receive the costs, although in a case of libel one farthing damages carried full costs. With regard to the discretionary power which was at present vested in the judges, he certainly would say, that they did not interfere so often as he thought they ought to interfere, in deference to public opinion. The sum which was at present limited to 40s. should, he thought, be increased, but not to so large a sum as 10l. These, however, were all matters of detail, which would be best decided in Committee. With reference to the question of publication, he thought that the provisions contained in the twenty-first clause of this Bill ought to be made part of the law of the land. Speaking his opinion with perfect freedom in that House, he would state his belief that it was the law of the land at present. It was proper, however, that there should be an explicit statute upon the subject. With reference to the Attorney-General's observation, that a proprietor or publisher was not responsible by law when he could prove that the libellous matter was inserted contrary to his knowledge or consent, he (Sir F. Pollock) was sorry to say, that, although he agreed with the hon. and learned Gentleman in believing that this was the law of the land, and ought to be the law of the land, it had not been so decided. On the last occasion upon which this point was discussed in the Court of King's Bench, it was decided that, although the party accused was not aware of the publication, he was criminally responsible, and the circumstances of this case were rather 498 remarkable; for the party was absent from his establishment when the sole copy of the libel that was issued, was sold; and the very instant of his return put a stop to the further sale. For the disposal of this single copy, however, he was convicted of the libel, fined, and, if his memory served him rightly, imprisoned for six months. That doctrine had prevailed then, and would be allowed again, and he could not help thinking that some Act of Parliament ought to pass to remove such a disgrace from the administration of the law. If it was the intention of the hon. and learned Member for Kilkenny to get this Bill read a second time, and then sent to a Select Committee up stairs, to such a course of proceeding he could not consent, for he foresaw that in such a case the Bill would be allowed to sleep for the rest of the Session, and all that was beneficial in it would be lost in consequence of the discussions on those parts of the Bill which he must say made it a most objectionable measure. Admitting, as he fully did, the advantages of a Select Committee for the arrangement and settlement of matters of detail, he had a further objection to this Bill going to a Committee up stairs, inasmuch as it contained many objectionable clauses which involved not merely details, but principles, of which it would best become the House itself to undertake the discussion. Those principles the House would appear to sanction if it consented to the second reading of this Bill. With an earnest desire that the time of the House should not be wasted in a fruitless discussion, and in the sincere hope that those improvements of the laws which all seemed agreed should be carried into effect, he conceived it would be much better that the hon. and learned Member for Kilkenny should withdraw this Bill, and after removing its objectionable provisions, bring in a new Bill, embracing only those topics as to the propriety of which there appeared to exist no doubts. He objected to those provisions of the Bill which brought libel to the lowest point at which slander commences; he objected also to the retractation clause, which provided, that if the publisher of a libel, after notice, retracted the offence in the same publication, he should be exempted from the liability which that publication incurred. Why, there were daily, weekly, monthly, and annual publications; and would it be said that a man libelled in 499 the Annual Register, for instance, was to wait a year for the retractation, or that the publisher should bring out a new edition containing it? Why, the retractation in such a case would never reach the knowledge of many who had heard and been influenced, perhaps, by the original libel. He objected also to the relief given to a publisher for the disclosure of the author of the libel complained of; and his objection was, that a man might be found who would be content to remain in prison (the King's Bench, for instance) for life, on being well paid to undertake the responsibility, as general author of all the libels which (he would not say the newspapers) evil-disposed and malicious persons might trade in and send forth to the world. For the reasons he had stated, he should, if the hon. and learned Member for Kilkenny persevered in sending the Bill to a Committee up stairs, vote against the second reading. He, however, hoped the hon. and learned Member would adopt his suggestion, and withdraw the Bill for the purpose of introducing a measure of a less objectionable character.
§ Mr. Poultersaid, that so many changes were required in the existing law of libel, and so few of them were embraced in the measure now before the House, that he could not give his sanction to its second reading, for which, indeed, no sufficient grounds had as yet been laid. The Bill by its 5th Clause, appeared to him to contract and almost annihilate the right of action for libel, and it left private character open to the most calumnious misrepresentations without re-dress. Instead of lowering the law of libel to the level of the law of slander, as the hon. and learned Member for Kilkenny did by this Bill, he would reverse the position, and make the utterer of slanders upon private character and public worth in speeches well calculated to excite the passions of the many thousands to whom they might be addressed, deeply responsible. He thought, also, that provisions ought to be made in any measure designed to alter the existing law of libel to exempt from that law substantially accurate reports of the proceedings before courts of law and the legislative assemblies. Upon this much doubt existed, as a recent case, involving a question as to the privileges of that House, had recently exhibited. It was in these times due to the country that fair and substantially 500 correct reports of those proceedings should be published and sent forthwith to the world freed from the risk Which even the publication of truth now involved. Another point he would deal with, and which was not met by this Bill, Was this—he would exempt those poor people who sold publications, of the contents of which they were wholly ignorant, from the liabilities to which their trade Under the existing law exposed them. The hon. and learned Member for Kilkenny had endeavoured by his Bill to define what should be libel, but it was a subject too difficult even for the hon. and learned Member to deal with. On the whole, he thought this Bill contained too little to meet the views and wishes of the country to entitle it to the sanction of the Legislature, and, holding these opinions, he should move as an amendment, that the Bill be read a second time this day six months.
§ Mr. Sergeant Talfourdwould vote against the second reading of this Bill, because, great as were the defects of the present law of libel, it seemed to him to be an attempt to remedy those defects all on one side. Every provision appeared to be designed for the immunity and protection of those who disseminate slander, while not one tittle of protection was afforded to that private character and private reputation which he was sure the hon. and learned Member for Kilkenny would feel to be one of the dearest possessions any individual could enjoy. Among many other most objectionable clauses, the Bill provided, that the publisher of a libel was to have his Option of impunity from criminal charge if within a week after notice in writing, he retracted; or he had the option of giving up at his own will and pleasure the author, and then, because the author was surrendered, the publisher was to be held free from guilt. Was the House prepared to say, that trade in libel was no crime? Was it to be said, that the trader in slander, the pander to the worst passions, should escape from guilt by giving up to the parties assailed the author of the calumnies, however impotent he might be as an object for redress? From first to last the provisions of this Bill were framed in favour of the party guilty of slander, who was to have his choice of jury, the advantage of a reply upon the case of the party assailed and seeking redress, and 501 indeed every thing that could conduce to his comfort, protection, immunity, and advantage. On the whole the Bill cast a degree of protection around him unequalled in any of the laws of this country. Agreeing that a measure should be brought in to prevent those mean, paltry actions for slander and libel, which were brought merely for the sake of costs, doubting whether even the hon. and learned Member would ever be able to define what should or should not be libel —satisfied also that it was right and fitting; for the Legislature to apply its mind to those remedies which the defects of the law required, he could not agree to go into Committee on a Bill which was not called for by the. present state of the public press, and which afforded no protection to private character from the assaults of malice.
§ Mr. Macleanconcurred in what had fallen, from the hon. and learned Member for Reading, and rose only to call the attention of the hon. and learned Member for, Kilkenny to an omission in his Bill. The Bill abolished by the 14th section, all ex officio and criminal informations, and provided no remedy for libels on the Crown, on Christianity, or publications of obscenity, and provided no satisfactory substitute either for the Crown or for private individuals.
Mr. O'Connell, in reply, remarked, that the hon. and learned Member for Oxford had misunderstood the meaning of the 14th clause, which excluded in terms the offences he had mentioned from the provisions of the Bill. Every hon. Member who had opposed the Bill had admitted, that the law of libel required to be altered; bat yet no one had brought forward a measure for the purpose. His object was to have the law, which as it stood at present was atrociously bad, defined; and he would therefore divide the House.
§ The House divided. Ayes 47; Noes 55:—Majority 8.
| List of the AYES. | |
| Aglionby, H A. | Fielden, J. |
| Bish, Thomas | Gordon, R. |
| Blake, Martin J. | Hardy, J. |
| Bodkin, J. | Hawes, B. |
| Brady, D. C. | Hector, C. J. |
| Brotherton, J. | Hindley, C. |
| Browne, R. D. | Hume, J. |
| Bulwer, E. L. | Hutt, W. |
| Chalmers, P. | King, Edward B. |
| Collins, W. | Lennard, T. B. |
| Crawford, W. S. | Lynch, A. H. |
| Maher, John | Talbot, J. Hyacinth |
| Marsland, Henry | Thompson, Colonel |
| Musgrave, Sir R. bt. | Thornley T. |
| O'Brien C. | Wakley, T. |
| O'Connell, J. | Wallace, Robert |
| O'Connell, Morgan | Warburton, H. |
| O'Connor, Don | Wason, R. |
| O'Ferrall, R. M. | Wilbraham, G. |
| Parrott, J. | Wilmington, H. J. |
| Pease, J. | Wood, Alderman |
| Philips, Mark | Wyse, Thomas |
| Power, James | TELLERS. |
| Roch, D. | O'Connell, D. |
| Rundle, J. | Jervis John |
| List of the NOES. | |
| Agnew, Sir A. | Lennox, Lord A. |
| Angerstein, John | Lowther, J. H. |
| Balfour, T. | Mackenzie, T. |
| Baring, F. T. | North, Frederick |
| Bell, Matthew | Parker, John |
| Bramston, T. W. | Pollock, Sir F. |
| Burrell, Sir C. M. | Price, S, G. |
| Campbell, Sir J. | Pringle, A. |
| Copeland, W. T. | Rolfe, Sir R. M. |
| Corbett, T. | Rushbrooke, Colonel |
| Dunbar, George | Ryle, John |
| Elley, Sir J. | Scott, J. W. |
| Fector, J. M. | Steuart, R. |
| Finch, George | Talford, Serjeant |
| Follett, Sir W. | Tooke, William |
| Forbes, W. | Trevor, hon. A. |
| Forster, Charles S. | Twiss, Horace |
| Freshfield, J. | Vere, Sir C. B. |
| Goulburn, Sergeant | Verner, Colonel |
| Halse, James | Vesey, hon. T. |
| Heathcote, G. J. | West, J. B. |
| Hobhouse, Sir J. | Wilson, H. |
| Hogg, J. W. | Wortley, J. S. |
| Hughes, Hughes | Young, G. F. |
| Ingham, R. | Young, J. |
| Inglis, Sir R. H. | |
| Lee, John Lee | TELLERS. |
| Lefevre, C. S | Maclean, |
| Lennox, Lord G | Poulter, J. S. |