Mr. O'Connellsaid, it was his anxious desire to trespass as briefly as possible upon the attention of the House in the discharge of the duty he had taken upon himself; and the importance of the subject would be his excuse for at all occupying the public time. As he thought the Libel-law was at present in a very unsatisfactory state, he could not foresee any very serious objection to giving him leave to bring in a bill for its amendment. How far the provisions of the Bill, which it was his intention to suggest, would meet the evils which were admitted to exist, was another and a different consideration, and should not in anywise be mixed up with the plain question before the House, which simply was, "Did the Libel-law require Amendment?" To the member for St. Alban's, he should apologise for, in some measure, having taken the subject out of his hands; and he should not have presumed to have done so, were it not that he had one advantage from practical knowledge. His professional experience had given him facilities of acquiring information upon the subject which no lay Gentleman, if he might so speak, could possibly possess. The basis of his plan, was to secure freedom of discussion—to give increased facilities to free and independent discussion. The object of the Libel-law, was the protection of character; his object was different. He was anxious to give increased power to the tribunal of public opinion, which had been sacrificed in a too great anxiety, though he did not condemn that, for the preservation of character. He did not mean to underrate the importance of affording efficient protection to character; but even that was secondary to the establishment of a tribunal found to be the most effectual in checking the progress of public and of private delinquency. He knew of no control over vice so great as public opinion; and it was, therefore, his wish to strike down those points of the Libel-law which interfered with its exercise—carefully retaining, however, such portions of it as, without chaining down discussion, would be found effectual for the protection of character. If he could succeed in preserving both advantages—if he could give additional facilities for the dissemination of public opinion—and he might add, too, of public morality, through the powerful medium of the Press; and, if he could, at the same time, give to every injured man a sufficient remedy for any 469 wrong he might sustain, and to all men a sufficient protection for their character, he should have accomplished that which he most ardently desired, and have rendered a great, and he trusted, a permanent good to all classes of the people. Such was his object. Without entering into the detail of the complaints so frequently and so justly made against the Libel-law, he should refer to the most obvious of the anomalies by which it was disgraced. The first, and perhaps the most glaring, that struck the attention was that, while falsehood was not punishable, truth, no matter whether religious, moral, or political, was held to be a crime. He had said, that falsehood was not punishable by the law of Libel. There was the falsehood of flattery, which was not punishable. A writer was at liberty to flatter the worst of men, or the worst of Governments. He might go almost the length of deifying the greatest miscreant that ever lived, and no indictment was ever brought against him. Yet surely, in its effect upon the morality of a nation, it was no less criminal to extol vice than to calumniate virtue. Another anomaly was, that truth was a libel, and some Judges had even gone the length of holding that the greater the truth, the greater the libel; and he should admit, that according to the present state of the Libel-law, they were justified. The excuse was, that the libel was calculated to tend to a breach of the peace, and certainly no libel was more likely to do so than a publication which carried with it the sting of truth, and the consciousness of being deserved. But that was merely a legal fiction, and an abuse, and nothing could demonstrate its absurdity more clearly than the fact that, if a breach of the peace did actually take place, the guilty party was, perhaps, imprisoned for a fortnight, a month, or six weeks, and, it might be, fined 10l. But if found guilty of a libel, down came the Judges, and, for an offence which could only be regarded as accessorial, six months' imprisonment was regarded as light punishment; and it often happened that a man was imprisoned for so long a time as two years for merely provoking a breach of the peace, while, had he absolutely committed it, he should have been merely imprisoned for six weeks or two months. But that was merely a pretext. He would put another case to the House; if a man made a speech or published a document, and was charged 470 with having spoken or written a libel, he had many defences. He might show that it was his duty to have so written or spoken. He might show that he was—suppose a Judge—and that he had written or spoken in the discharge of his official duty. He might show, that he was a Commissioner appointed by Government, and that the proper discharge of his functions required him to write or speak the imputed libel. He might urge in his defence that he was a lawyer, or that the alleged libel was a true account of what took place in a Court of Justice. Any of these circumstances might be urged in justification of the libel; and the only thing he was precluded from urging in his defence, was the truth of the statement. Under the existing Libel-law, the indictment charged the accused with improper intention. Surely, there could be no better criterion of the intention with which anything was said than its falsehood. If it were false, and the party publishing knew it to be so, that would furnish the Judge with the best possible criterion of his guilt; but if, upon the other hand, the statement were true, its publication could not be regarded as evidence of evil intention. But there was another matter which had already struck the public, which exhibited in a very strong light the absurdity of the Libel-law. A man perfectly innocent of the publishing or the printing of a libel, might yet be punished for it. The present Libel-law had no definition—no description; and anything which reflected upon the Government, any thing calculated to hurt individual feeling, was construed to be a libel. Under these circumstances, if a man wished to speak of the Government, he could only praise it; for any thing in its disparagement might be construed to be a libel. Lord Redesdale having been called "a stout-built special pleader," it was held to be a libel; and Lord Hardwicke having been called "a sheep-feeder, from Cambridge," that, too, was held to be a libel; and he would pledge himself, that he never yet read a Newspaper which did not contain something which, under the existing law of libel, could not be construed into a libel. If it were a Ministerial Paper, it libelled the people; and if what was called a "popular" Paper, it libelled the Ministry; and if a neutral Paper, the chances were it libelled both. If a man sold a Newspaper which con- 471 tained a libel, he could be prosecuted and convicted. So that every Newspaper-vender in the British dominions was liable to be prosecuted for selling a Paper which might happen to contain a libel. Indeed it was lately very gravely held, that it was the duty of every newsvender to take care that he did not sell a paper containing a libel; so that it became necessary for him to read every newspaper in his possession, and to take a legal opinion upon their contents. He should, in fact, be a lawyer as well as a news-vender. But there was another point of view in which the present Libel-law affected gentlemen more nearly. It was not necessary to receive money for reading a paper to constitute the publishing of a libel. If one gentleman handed a newspaper to another in a club-house, and it contained a libel, he would defy any lawyer to prove that, under the existing law, he could not be indicted for a libel. And, indeed, if some half dozen of the members at Brookes's, or the Conservative Club, were indicted and found guilty, it would probably have the effect of producing the desired change in the Libel-law. Such being the state of the Libel-law—being incapable of definition or description—depending, in fact, for its construction upon the discretion of the Judges—embracing every thing which might be construed as disparaging to the Government, or hurtful to the feelings of individuals—excluding from the defence of the accused the truth of the allegation—it surely would not be said that leave should not be given to bring in a bill for its amendment. In fact, so bad was the law, that the odium which attached to any person seeking protection from it prevented its intentions from being carried into effect. Public opinion was always directed against any person applying to the Libel-law for relief; and, without intending any disparagement to the noble individual to whom he was about to allude, he might illustrate his position by a reference to the case of Lord Durham. He was accused, and it appeared most unjustly, of very tyrannical conduct. He appealed to the Libel-law for redress; an outcry was immediately raised against him. Now, what was the use of a law of libel, if it were insufficient to meet a case of that kind? A man was assailed in his private capacity, and accused of tyrannical conduct by the party who were opposed to him in politics; but yet, so odious was the Libel-law, that 472 he could not, by appealing to it, obtain redress. The noble Lord was forced—and he was glad that the noble Lord had been forced—to abandon his prosecutions; and, so long as the law remained in its present condition, no man could have recourse to it without soiling himself with the filth with which it was surrounded. The law, therefore, it was clear, required amendment. In its present condition, no man with a good character would think of availing himself of its protection. For his own part, he never yet knew a man who instituted a prosecution for libel, who did not come out of it a great deal worse; who, in fact, was not a great deal more libelled, before he was done, than he might originally have been. One case he was himself cognizant of, in which the prosecutor got 500l. damages; but, so blackened was his character in the course of the trial, that he was obliged to leave the country. At present, the law gave no remedy—no redress. Counsel for the defendant, in an action, had no right to urge the truth as a justification of the alleged libel; but then he had a right to deplore the existing state of the law. He might say, "Oh, Gentlemen of the Jury, I wish the law permitted me to prove for you the truth of this libel! If the plaintiff would but consent that I should examine witnesses to prove the truth of every allegation my client has made!" Thus it was that counsel might insinuate even much more than was contained in the libel; and the wrong sustained by the party might be greatly exaggerated by the very law to which he had appealed for redress. These were the anomalies from which he wished to vindicate the law. If asked upon what statute a party was prohibited from urging its truth in defence of an alleged libel, he could only say he knew of none. If asked for a rule of common law, he knew of none; for, certainly, a printed libel could not have been contemplated by any rule of common law. If he were asked, where was the Statute prohibiting the truth from being told in writing, his answer would certainly be, that there was no such Statute. Publication by printing was, of course, unknown to the common law; but, as a lawyer, he might refer to two Statutes; the first was the Statute of Westminster, 3rd Edward 1st; and the second, the Statute De Scandalo Magnatum, passed in 2nd Richard 2nd. The one was passed against the "bearers of false news 473 and tales;" and the other against "the bearers of false news, and the utterers of horrible lies." The titles of these Acts showed the value that was then set upon truth, though truth, it seemed, was now of no value. What did the Judges do at a subsequent period regarding those Statutes? They met and solemnly determined that he who was to be punished for telling false news and horrible lies, was equally liable to punishment for telling the truth. This was, in fact, the Legislation of Judges—not expounding Statutes, but contradicting them. Then, as to cases in which actions were brought for damages—as that of a newsvender, or a Paper which copied the articles supposed to be libellous.—he would observe that, in Ireland, if any man got one farthing damages, he got his costs; whereas, in England, it was not so, the Judges having a control under these circumstances. In alluding to this, he would refer to the late case of the True Sun and Mr. Hunt, where the parties were punished, by costs, to the amount of 80l.; so that, as the law stood now, it was at the utmost peril that men published any newspapers; they knowing that 80 or 100 actions might be brought against them, where, though the plaintiff, in each case, might secure, perhaps, five shillings, the attorney pocketed 80l. There was one branch of the Libel-law which he would not touch upon—he meant that which applied to libels against Christianity. He did not wish to meddle with this part of the subject, because he did not wish to cause any opposition in the House, which might endanger the introduction of his Bill, as he thought it would be amply useful in its present form, and that he should do well in not involving himself with the House by allowing the law, in this case, to remain as it was. He thought that there ought not to be any punishment for libel against Christianity; such, however, was his private opinion; but the feeling upon which he acted, on the present occasion, was deference to the House. But he thought that, when a country was divided in opinion on these grave subjects, they were those in which, above all others, it was legitimate to impugn some of the doctrines held by others, and which, in his persuasion, were of great importance to him, as a Roman Catholic, for instance, who did not dispute the doctrine of the Holy Trinity. He really thought that there was no reason to 474 make this a subject of penal restriction; but he did not touch this part of the law. He must protest, however, in saying thus much, against its being supposed that he did not object to the law on that subject, as it at present stood. He would confine himself, on the present occasion, to prosecutions and actions; and begged, in the first place, to call the attention of the House, to the difference between the law of libel and the law of slander. Libel, in the law, was written calumny—slander, in the law, was oral calumny. Calumny being the essence of both, it would have been thought that there ought to be no difference in principle. But there was a material difference—the law of slander was limited within reasonable bounds. No man could bring an action for slander, unless it imputed some crime—impeached him in his trade or business—charged him with having an infectious disorder, or had been followed by some special injury. In all these cases the legal description was sufficient for all practical purposes; but it was not so with written slander—it was confined by no bounds, and had broken through all limits; "everything," in the words of Lord Ellenborough, "that hurts a man's feelings is a libel, and may be made matter of action or of prosecution." Was it not an absurdity, that the same grievance should have a different species of remedy? It had been proposed, by that Judge, to bring up the law of slander to the standard of the law of libel. He had great respect for the individual who made this suggestion, but, with all becoming deference, he must say that he was exceedingly mistaken. The true way was to cut down the law of libel to the standard of the law of slander—thus, in all private cases, there would be fixed rules and boundaries of offences. Trespassing on the patience of the House for a few minutes longer, he would advert to the possible consequences of a change. Prosecutions were either public or private—at present anything tending to disparage Government, or, in the words of the law, reflecting on Government, was liable to prosecution. He meant to put an end to that, and to endeavour to find sufficient legal grounds to define what should or should not be a libel. He would state what he proposed to substitute. He took the law of principal and accessory. At present, if one man counselled another to commit a crime, the accessory could not 475 be punished unless the crime had been committed. At common law, the accessory could not be convicted until the principal had been convicted; but that rule had been altered by statute. At present, no man could be punished as accessory, unless the crime he had advised had been committed. He thought that a limitation which ought to be excluded from the law of libel, because if a man were an accessory, the law ought not to wait for the commission of the crime. He proposed to make anything accessorial equally criminal, whether the crime were or were not committed. This would be done by striking out from the indictment the averment that the crime had been committed. By acting on this principle, he should be able to bring every offence of the Press within known categories of the law. In High Treason there were no accessories; in misdemeanour there were no accessories; and he thought this principle should be extended, and that the same rule should hold in the publication of matter proceeding merely to misdemeanour. The liberty of the Press could never be secured until that step had been taken. He then came to private libels; and here he would have nothing actionable that was not at present actionable as oral slander. Thus he would limit all private prosecutions to the bounds of oral slander. His next step would be to do away with ex-officio and other informations. Prosecutions for libel ought to be, like other offences, submitted first to a Grand Jury, and proceed by indictment. The Court of King's Bench would not grant a criminal information to any man who did not purge himself by denying the truth of the charge in the libel. This was one of the strange anomalies to which lawyers sometimes became reconciled by habit; for though the truth was no answer to a libel, the Court of King's Bench would not allow a man to prosecute in a particular form, without denying that the libel was true. When the criminal information was granted, the case came to be tried by the Court in the first instance, How? Upon affidavits—in the absence of the witnesses—without the means, therefore, of cross-examination, and without the power of sifting a single phrase or expression. When once the Court granted the information, it might, in fact, as well proceed to the sentence at once. Next he meant to take from Counsel for the Crown the right of reply in all cases in 476 which the defendant adduced no evidence. He would allow of no second speeches for the Crown, except in such a case, and even then he would give to the defendant the right of having the last word in the proceedings. With regard to prosecutions before Special Juries, he thought Special Juries in the highest degree objectionable, and that the practice of bringing actions before them ought to be done away with. The evils of that mode of procedure, were strikingly illustrated in the case of Mr. Cohen, the editor and proprietor of The Brighton Guardian. With the circumstances of that case the House was well acquainted. Mr. Cohen was now suffering six months' imprisonment, and was, besides, subjected to a fine of 50l., for an offence of which he had been found guilty by a Special Jury. He did not believe that any man could suppose that Mr. Cohen had any ill intention in publishing the article for which he was suffering imprisonment. He was indicted for the offence at the Sessions, composed of the very Magistrates who were angry at his general political writings, and supposed themselves referred to in the article complained of. He was charged, in the indictment, with an intention to excite the lower orders to the incendiarism which had existed in that neighbourhood. The Special Jury before whom he was tried, and who had been, in the first instance, Judges, as Grand Jurors, as well as Special Jurors, convicted him of the offence. But what did the Judge think and say on the occasion? When the defendant was brought up for judgment, he told him he had been convicted by the Jury, but that he did not think Mr. Cohen had been actuated by any evil intention in the publication complained of; and, therefore, the Judge only sentenced him to six months' imprisonment and to pay a fine of 50l. Though he adverted to the evils of Special Juries, he did not wish to see them abolished altogether. What he wished was, that there should be this distinction made between the prosecutor and defendant—that while the latter should have the right to be tried by a Special Jury whenever he chose, the prosecutor should have no such right without the concurrence of the defendant. This arrangement would constitute a safeguard to the Press, for which he had a high respect, and which he wished to see protected and afforded full 477 liberty of discussion. The course he suggested would not, in any respect, interfere with the right of an aggrieved party to bring his action. He could do so by indictment, though not by criminal information. He would do away all ex-officio informations, though it might then be said, that libels might be published so rapidly, that the Attorney-General could not proceed fast enough against the offending parties. There would be no ground for this apprehension; and if there were, he knew of nothing that would excuse criminal informations. These were the principal features of the plan which he had to propose for the reformation of the law of libel; adding to it, that the truth of the allegation ought to be admitted as a defence. He knew there were many who would be adverse to this part of his plan. It might be objected, that if a man had, in early life, been guilty of improper conduct, but had since repented of that conduct, and acted in the most praiseworthy and exemplary manner for a long course of subsequent years, it would be hard indeed if the editor of a publication, or any other person, should be suffered, with impunity, to bring that one improper action before the public for the purpose of gratifying his own private spleen, or from any other unworthy motive. He admitted that such a case would be a very hard one indeed; but he conceived that, so far from the defendant commending himself to the Jury in the supposed circumstances, or bettering his condition, it would operate very much against him to urge the truth of such a statement in extenuation of making it. He wished the House to understand, that he did not mean that the truth of an offensive article ought, at all times, to be regarded as a justification for the publication: he only wished that the defendant should have the right of proving his allegations in his own defence; and he thought that, in ninety-nine cases out of a hundred, a Jury would find that the proof of the charge ought to be a justification of the defendant, and entitle him to a verdict of acquittal. He now came to the question of speculative actions. He thanked the House for the patience with which they had listened to him during the time he had trespassed on their attention, and would not now detain them much longer. Without intending to interfere with the principle of the present law relative to the costs of libels, be 478 wished to introduce a law which would have the effect of putting an end to the practice of bringing speculative actions against publishers. The clause he meant to introduce was, that in those cases in which the prosecutor did not recover more than 40s. damages, he should obtain no costs, but should, on the contrary, be made to pay the costs. If a man's character were estimated at 20l. or where 20l. damages were obtained, the plaintiff should receive no costs, nor be made to pay costs, but each party should pay his own expenses. If the plaintiff recovered 50l. damages, then he should receive the same amount in costs; but if above 50l. damages, then he should obtain all costs against the party responsible for the libel. These were the principal alterations he proposed to make in the existing law of libel. There were other minute things which he had not then mentioned, which might occur to him before drawing up the proposed Bill. He again thanked the House for the indulgence it had extended to him during the time he had occupied its attention. He begged to conclude by moving for leave to bring in his Bill relative to the law of libel.
§ Sir Francis Vincentrejoiced most sincerely to find that this matter had been taken up by such an able advocate as the hon. and learned member for Dublin. In many of the arguments which had been urged by the hon. and learned Member, he perfectly concurred, but he would not say much on the present occasion, as another opportunity would occur for him to state his sentiments. He was glad that the subject of proceeding by information was to be altered, and the very instance of the indictment of the editor of the Brighton Guardian had confirmed any doubts he might previously have entertained upon the question. In Westminster, he believed in three cases out of four, no prosecution followed upon the first proceeding. In the general principle of the Bill proposed to be introduced by the hon. and learned Gentleman, he fully concurred; but at the same time he begged to reserve to himself the right of suggesting those alterations which he might think were desirable to be made.
§ Mr. Jervishad intended to move, as an Amendment to Mr. O'Connell's Motion, "That a Select Committee be appointed to Inquire into the existing Law of Libel, and to Report to the House what Alter- 479 ations ought to be adopted." But after hearing the hon. and learned Member's speech, he did not mean to persevere in that intention.
§ Lord Althorpthought, it would be desirable to bring in a Bill to amend the law of libel, and therefore he would not oppose the Motion of the hon. and learned member for Dublin, though he hoped he should not be understood as acceding to the details, because he was disposed to go to a certain extent with the hon. and learned Gentleman; but he thought that the hon. and learned Gentleman's plan went farther than he should be disposed to go. The hon. and learned Gentleman had divided the question into two parts—namely, criminal prosecutions, and those by civil actions. In the first instance he thought the hon. and learned Gentleman, as far as he could understand him, went to this length, that truth might be pleaded and proved in cases of criminal prosecution. In cases of private libels, this system would operate most injuriously. With regard to cases of criminal information, though he, with the feelings which he entertained as to Grand Juries, would prefer a Bill being found by them to ex-officio informations, still as the question affected criminal informations, he entertained some doubts. He would not, however, enter into the details of the measure, reserving to himself the right to make such objections as might arise in his mind to the Bill when it was brought in.
Mr. Fleetwoodwished to know whether it was the intention of the hon. and learned member for Dublin to include in his Bill the right of bringing civil actions against more than one party for the same libel?
Mr. O'Connellsaid, it was not his intention to limit the right of action to any given number of actions; but he thought, that the regulations which he had suggested, in respect to costs, would check the evil to which the hon. Gentleman alluded.
Mr. Fleetwoodsaid, if the House would allow him, he would allude shortly to some of the details of the Bill proposed ["oh, oh."] He would then only express his wish, and hope, that the hon. and learned Gentleman would introduce into his Bill some mode of registering the real, the bona fide proprietors of newspapers, pamphlets, &c, who should be made amenable for the consequences of libel. This was a point of great importance, and 480 he wished to call the attention of the House to this, though there were many others upon which he was desirous of addressing the House; but, as it was usual to bring in a Bill at once without discussing it in detail, he would retain his observations for a better opportunity.
§ Leave was given to bring the Bill.