THE BRIGHTON GUARDIAN—LIBEL LAW.

HC Deb 21 February 1834 vol 21 cc635-49

Mr. Wigney

, on presenting the Petition of Mr. Levy Emanuel Cohen, Editor of The Brighton Guardian newspaper, for remitting the sentence of imprisonment against him, assured the House that he would not unnecessarily occupy their time in reading at length the whole of the petition, but would confine himself to a few of the leading points, making a few observations on the peculiar hardship of the petitioner's case, the most striking of which was the length of the imprisonment and the circumstance of his incarceration being fixed in a distant county, out of the reach of his friends but through the medium of a tedious correspondence. Why should he not have been sentenced to a gaol in his own county? or at all events within one post of his home, where he had left an aged mother to whose subsistence he had for years mainly contributed by his own industry? There were many other points which might be adverted to; but he would not trespass on the patience of the House. The hon. Member concluded by congratulating the House and the country upon the Motion for the amending of the Libel Law, introduced by the hon. and learned member for Dublin, and which he trusted would meet with the sanction and support of his Majesty's Ministers.

Sir Charles Burrell

said, he could not help expressing his surprise and regret, after the statement of the hon. member for Brighton, of his having given notice of his intention to present this petition, that not one member of the Government was present to take notice of the complaints of the petitioner. He could only attribute it to neglect, or some extraordinary pressure of business, which prevented their attendance, for this petition was one of some importance, and should have been answered by a proper Minister of the Crown. But, not seeing either of the members for the county of Sussex in their places, and being himself one of that Bench of Magistrates at Horsham, to whom the libel referred, he felt it his duty to offer a few words on the subject. He should feel some delicacy in speaking of this individual, for reasons which affected him personally; but this party who came forward to-day, under the garb of an innocent man, had, on two previous occasions, been convicted of libels on various individuals. That ought not to be kept entirely out of view. He felt it his duty to inform the House of this circumstance, because they ought not to receive the petition blindfolded, before they were made acquainted with the character of the party from whom it sprang. The petitioner had already been convicted of libels. With regard to the parish of Horsham, which was eulogised by the libel, he knew of no particular eulogy that it was deserving of; he only knew that, in the neighbourhood, great endeavours were made to find employment for the poor; that good and sufficient employment had been sought, and proper remuneration given. That was the object the Magistrates had in view. In his judgment, much of the agricultural distress, which had occasioned the prevalence of incendiarism in the county of Sussex, arose, in a great measure, from the wages paid to the labourers. As to the Labourers' Employment Act, which he had the honour of introducing last Session, he regretted very much that it had been rejected, for he felt convinced, that it would have gone a great way to remedy the evil, for he believed that throughout England there had been no instance of these acts of incendiarism taking place where a Labour-rate Bill had been put in force. That fact spoke volumes in favour of the Bill, and, he thought, showed that it ought not to be rejected. He would not detain the House further, only he had thought it right, in the absence of other information, to state what he knew of the petitioner. He had never seen either Mr. Cohen or his paper, but from what he had heard of him, he believed his public character was liable to much and deserved animadversion.

Lord William Lennox

said, he did not think it was proper to enter into a discussion on the private libels alluded to by the hon. member for Shoreham; they were not before the House; but the question was, whether, in the present instance, the petitioner's punishment did not exceed the offence for which he was now suffering incarceration in Chelmsford gaol. He (Lord W. Lennox) had no personal motive in the matter, or predisposition in favour of Mr. Cohen, who ever since he had conducted The Brighton Guardian, had done nothing every week but libel his family; but he nevertheless thought in this instance the utmsst severity had been adopted towards the petitioner. In the first place, the petitioner denied being the author of the paragraph, and then, when brought up for judgment, he was entirely exonerated by Mr. Justice Parke from the charge of exciting the peasantry to acts of incendiarism; and yet, from the month of March to the middle of November, the editor had suffered under the scandal and opprobrium inseparable from so foul an accusation. Then there was another fact which ought to be borne in mind, which was, that although previous to the publication of this paragraph, there appeared a disposition among the misguided peasantry to renew the devastating scenes of 1830 and 1831, yet, from the time of the appearance of this paragraph, there had not been a single fire during the whole of the following, winter. That showed that the paragraph did not do a great deal of mischief, indeed he thought that Mr. Cohen did not know that the paragraph was a libel, and he only received it late on the night before publication, which fact ought also to have been taken into consideration. There were one or two remarks made in the petition in which he did not concur, but which, however, he would not allude to. However, he would just observe that Mr. Justice Parke in charging the jury said:—" With the reasons why the Government had not prosecuted, they (the Jury) had nothing-to do. The case was now before them, and they were to look at it as it was, without taking that circumstance at all into consideration. One reason why the Government had not come forward might be, that when they did so, there was generally a strong feeling on the part of the people in favour of the defendant, of which, in most cases, the defendant availed himself." Now, why was there such a feeling on the part of the people? Because they thought that this man was aggrieved, that he supported the people, and that he ought not to be punished. He concurred entirely in the prayer of the petition, as far as related to the law of libel, than which a more dis- graceful law never existed, and he hoped a speedy alteration would take place in it. He wished the hon. and learned member for Dublin were there, for in offering a suggestion to so able a lawyer, he hoped he should not be deemed guilty of presumption; but he would say to the hon. and learned member who was about to bring in his Bill,—let him take the American Law of Libel for his pattern. It was the best code that ever was; it was found to answer very well; and it had been used in that country thirty years, where there was a much greater freedom of expression allowed than in this country. That law was, that truth was allowed to be brought forward in justification of the libel; but then the Jury had to consider whether that libel was published on public grounds; whether the publisher was actuated by public motives for the general good, to expose vice; or, whether he was actuated by private feelings, and inserted it to gratify private and vindictive feelings. If the Jury believed the man was actuated by public motives, in every such case a verdict of acquittal followed. There was no such thing as a farthing damages carrying heavy costs. He merely through out this hint, and hoped the hon. and learned member for Dublin would make use of it; but, on a future occasion, he should enter further upon the subject of the Law of Libel, which as it stood at present was the grossest absurdity, and was most unjust; it was an injustice which checked the free expression of sentiments without at all controlling the licentiousness of the Press.

Mr. Feargus O'Connor

was happy the noble Lord had preceded him; he had done justice to the question; and his (Mr. O'Connor's) feelings on the subject coincided with those of the noble Lord. He agreed with the hon. member for Shoreham in reprobating the conduct of Ministers, in not appearing to listen to the present petition; but he must reprobate the conduct of the hon. Member himself, in alluding to the former convictions. The hon. Member should have proved, that Mr. Cohen benefited by the former convictions; for the hon. Member had proved that, though he (Mr. Cohen) had been twice convicted of libel, yet when he published the present paragraph, he did not know he was committing a breach of the law. The noble Lord had told them, that notwithstanding; all the editor had done, notwithstanding all his former convictions, he did not know he was publishing a libel. And yet he was to be imprisoned in Chelmsford gaol! This came from the liberty of the Press of the Whigs! This came from the Government which professed to be so liberal! He thought in Ireland only the Government—[Sir C. Burrell said, this prosecution was instituted and carried on by the Magistrates of Sussex.] Yes, it was instituted by the Magistrates certainly, and carried on in their name; but they were under the direction of the Government, and the Government awarded the punishment. There had been more prosecutions under this Government to endeavour to put down the liberty of the Press, than under any other Administration, so that if Ministers continued going on thus, the House of Commons would soon have petitions from all the editors in the country, for a convenient prison for them to be imprisoned in. It was a peculiarly hard case that Mr. Cohen was to be removed from his own family, transported into a distant county, and imprisoned for six months for publishing a paragraph, when he did not know he was committing a breach of the law. He concurred in the opinions expressed by the hon. member for King's Lynn, that it was necessary that something should be done, to alter the Law of Libel, or the Press, instead of being the means of defending public liberty, would become the organ of an oppressive and corrupt Government.

Mr. Sheil

said, there seemed to be but one opinion in the House about the absence of all the responsible members of the Government on the present occasion. There was an agreement made—or at least there was an understanding come to, between the Government and the Members of that House, at the commencement of the Session, that some member of his Majesty's Government should be present to listen to petitions. He thought it would be better that the morning sittings should not be held at all if the members of the Government could not be present. Petitions were presented for two purposes—for the purpose of presenting statements of grievances—facts—and for obtaining an answer from the Government to those facts in each particular case. If the absence of the noble Lord (Althorp) arose from his attendance in council on official business; surely there were so many Ministers Members of that House who were not Cabinet Ministers, that one ought at least to attend and give answers to the petitions. The reference which had been made to the Law of Libel had induced him to take the earliest opportunity of speaking, for the purpose of stating a fact, upon which he was sure the British Legislature would take some strong and immediate measure. That fact was this—that Mr. R. Barrett, the proprietor of the Pilot Dublin paper, was prosecuted for the publication of a letter bearing the signature "Daniell O'Connell." The prosecution had been instituted after the Jury Bill had been introduced, by which a Ballot was given in Special Juries. It went off in the first instance for default of Jurors; but it came on again after the Jury Bill had passed, but before it had come into operation. It was strongly pressed upon the Government and the Court, that the trial ought to be postponed till after the first of January, because the Jury Bill would then have come into operation, and such a Jury would be obtained as would try the question fairly. That application was refused. A list of forty-eight names was given by the Clerk of the Crown, out of which twenty-four were to be selected, and out of these forty-eight names there were only four Roman Catholics. The Clerk had furnished the names of but four Roman Catholics out of forty-eight Jurors; and the Crown Solicitor, in the execution of his official prerogative, struck off the names of these four Roman Catholics, and the case went before the Jury—of persons, who, to use a vulgar and strong phrase, were "packed. "The Jury then tried the question—a question where the name of Daniel O'Connell was involved was tried by a jury composed of persons, who, he would not say were of one party, but the public conduct of the most prominent individuals on which, was characteristic of factious feelings, and the greater part of that jury was composed of persons of the most aristocratical kind. The matter did not rest there. The defendant was found guilty, with a recommendation to mercy, and sentenced by the Court to six months' imprisonment, and the Court said the recommendation to mercy weighed upon them. And what had been the conduct of Government? They had availed themselves of an act passed in 1815, 55 Geo. 3rd c. 80, and issued an ordinance,—he used the word ordinance because the idea of an ordinance was associated with the whole transaction—to prohibit the granting of stamps to that paper (The Pilot.) So that the Government, in the first instance, availed themselves of an Act, not in existence in this country, by which they had incarcerated a man in this way, and not only deprived him of his liberty, but, though recommended to mercy, had deprived him of the means of livelihood. Was this to be tolerated by the British public? Was this a line of conduct to be sanctioned in a country where the liberty of the Press was boasted of as a part of the liberty of the people? They were then told the Irish Government were in the habit of acting in the spirit of fairness. He appealed—not to the Government, on this occasion, but to public opinion—he appealed to British sentiments; and he had no doubt, that it would not be long before a feeling of just indignation (of which he hoped the royal breast had no monopoly) would be evoked from the hearts of the British people at so scandalous—if it were not unparliamentary he would have given vent to the impetuosity of his feelings—but he would say, so unjust, so merciless, and so despotic a proceeding. He would submit the case to their justice, and he had to tell them, that it was one not only entitled to their sympathies, but bound up with their interests.

Mr. Wilks

agreed in the opinions of the hon. member for Tipperary. He said, he felt a deep regret and deep displeasure at the proceeding to which the hon. member had alluded the moment he beheld the announcement, but, in the absence of the Members of his Majesty's Government he thought it was only due to them to state, that on reference to the Act it did appear, that no discretion was left to the Commissioners of Stamps, but under the provisions of that Act they were particularly ordered, that in case of the conviction of any publisher—The words of the Act were—" That if any printer, or publisher, or proprietor of a newspaper in Ireland shall be, by a due course of law, outlawed for any offence, or convicted of publishing any seditious libel, the said Commissioners of Stamps are hereby prohibited to send or deliver to or for the use of any such printer, &c, any stamped paper for the printing of news." Undoubtedly the words of the Act were specific upon the subject; and no persons connected with the Stamp Office could supply stamps to the editor of The Pilot without incurring the penalty under this Act. He felt it only due to the Government, that he should make this statement. He had, however, been informed, that the moment the Government found that this law was put into operation, it was their intention, with the greatest possible expedition, to introduce a Bill by which this compulsory clause should be repealed; and that this outrageous disgrace to the Statute-book should no longer be endured. He perfectly agreed with the sentiments expressed by the hon. member for Brighton. He regretted, and every man who advocated the liberty of the Press must also regret, the extreme severity of the punishment inflicted upon the editor of the Brighton Guardian. He regretted, that he (Mr. Cohen) should be transported, as had been so aptly said by an hon. member, from the county of Sussex, to Chelmsford. Why should they endeavour to crush him, to check his industry, to put an end to his paper, and break off his connexion with his family and friends? Those were the doings of former times. He hoped that the feeling of that House would be expressed upon the subject, and would show judges, that in their future sentences, they should be considerate:—that men were not to be torn from the soil on which they had grown, and were not thus to be destroyed.

Mr. O'Dwyer

thought, with his hon. friend below him, that this was a most disgraceful clause. The distributor of stamps could not be aware of the clause; but the truth was, the distributor of stamps acted under the instructions of Government; and it was too true, that it had been reserved for a Government professing to uphold liberty to enforce this abominable Act. His hon. friend said, the Commissioners of Stamps were obliged to enforce the law. He (Mr. O'Dwyer) had read the Statute; and he saw no penalty attached to the Commissioners for not enforcing the law. It was, therefore, quite within their power to continue to issue stamps to Mr. Barrett, and no penalty would have been incurred by them. But there was another part of the transaction to which he begged leave to call the attention of the House. Mr. Barrett could not have been treated in this way, but he was found guilty of pub- lishing a seditious libel. If that word "seditious" had not been introduced into the indictment, Mr. Barrett could not have been so treated. He had carefully examined the indictment; and he would defy any lawyer to say that the word seditious was not complete surplusage; it was not required; but it was introduced solely from a vindictive feeling, and for the purpose of bringing it within the operation of this Act. He should not detain the House now, as he had given notice of a motion on the case of Mr. Barrett; and when he brought it forward, he should see whether there was that opinion among them which he thought existed. He begged, however, to express his deep sympathy with the hon. member for Brighton on the case of Mr. Cohen. That gentleman had been prosecuted for a libel upon the magistrates of Sussex, a very serious offence he was willing to omit; but he thought he was justified in saying, that where the libel was against a particular class, Mr. Cohen should not have been tried by persons of the same class. He should have been tried by his peers, who were not magistrates, and persons who had not a sympathy with his prosecutor.

Major Beauclerk

said, as the hon. member for Boston (Mr. Wilks) had declared that the words of the Act were imperative on the Commissioners, they it was clear were not to blame. No person could feel more indignant than himself at the conduct they had pursued; yet he thought it would only be an act of justice to wait until some one of the Ministers was present to defend their conduct. But to return to the question brought forward respecting the editor of the Brighton Guardian, he begged to say, he had read that paper for some years, and though he could not say he greed in all the editor's opinions,—he did not mean to say, that in his (Mr. Cohen's) opinion he had not sometimes gone further than was necessary in support of that cause which that editor advocated, and was still advocating,—and he trusted Mr. Cohen might never attack individuals,—yet he (Major Beauclerk) thought that great allowance ought to be made for the period in which that paragraph appeared. It was a time of extraordinary excitement; and if hon. Members would look at the Chronicle or Times, as well as many other journals, they would find far greater, more frequent;, and violent attacks made then upon the Government and even magistrates, and by a pen far more powerful than Mr. Cohen's, and calculated to have much greater influence; but no notice had been taken of these. And, therefore, their duty now was to release the petitioner, who was deprived of his liberty, and whose prospects would be blighted—perhaps ruined—if he were allowed to Wither in a distant gaol. He thought, if his Majesty's Ministers took the case into consideration, they would see it was one of great hardship. The petitioner had been tried for a most heinous crime, and when he satisfactorily proved that this charge was founded in an absolute want of truth, and when even the Judge acquitted him of all intention to incite the peasantry to acts of incendiarism, it was cruel in the extreme to declare that the petitioner was to be thrown for six months into a distant prison. He perfectly agreed with what had fallen from the noble Lord, the member for King's Lynn. His conduct was deserving of their applause. That editor, whose petition was before the House, might, in a time of excitement, have attacked his Lordship's family, but the noble Lord had declared, that he had thrown away all personal feeling towards him, and looked only to the present case as one in which he conceived the petitioner had been treated with great cruelty. There was no person he would more readily bow to, except in politics, upon which the best friends differed, than the hon. member for Shoreham; but if the hon. Member looked into the circumstances of this case fairly and without prejudice, and if he took into consideration the period when these attacks were made—a period when all the papers made attacks upon magistrates much more severe than Mr. Cohen had done; and when the hon. Member remembered the exceeding severity of the sentence, he thought the hon. Member would go with them in praying his Majesty's Ministers to release this individual. If the petitioner had done wrong, he trusted the hon. Member (Sir C. Burrell) would be satisfied with the vengeance that had been taken upon this individual, and would join with them in praying his Majesty's Ministers to release him from this unjust punishment. This case was one of compassion, and he hoped after what the petitioner had endured, the remainder of the sentence would be remitted.

Sir Charles Burrell

said, that until the case was fairly brought before the House, it was impossible for him, and it was impossible for the House, to judge of it; for, in the absence of Ministers, they had no information on which they could rest. At the same time, in stating that the individual in question had been convicted of libels in other cases, he submitted, that it was more incumbent for them to wait till a full and efficient answer could be had to the complaints of the petitioner. He only wanted to add, that one hon. Member who had stated the case, had made a mistake with regard to saying, that the petitioner was tried by magistrates. He believed no magistrate was on that jury. Some of the magistrates were called by the Sheriff on the Grand Jury, and sent the libel to be tried, but not a single magistrate tried the petitioner. It would be doing a great injustice to the magistrates to send that statement forth to the world.

Mr. Pryme

said, this prosecution was clearly not a prosecution instituted by the Government; they had nothing more to do with it than with any ordinary trial for a felony that had been tried in the county of Sussex at the last assizes. But, whoever were the prosecutors, he must say—knowing nothing of the case but what he had heard in that House, and hearing the publication read by the hon. Member who had presented the petition (for he had never read the libel, or the report of the trial)—but he must say, he was surprised that such a sentence could be inflicted upon any individual; that in such a case it should be imprisonment in any gaol, and much more in such a distant gaol. They knew that Government had nothing to do with the prosecution, but some hon. Gentlemen were so anxious to throw blame upon Government, that they seized every opportunity of doing it; and a discussion had been raised upon a question with which they had nothing to do, and he deprecated all discussions upon any subject that was not regularly before the House, as the parties concerned could not be expected to be present. He thought the hon. member for Boston would have done better to have postponed his observations on the case of Mr. Barrett; there were two notices of motions on the same question. He would not, therefore, anticipate that question, which would be brought forward in a distinct Motion by the hon. member for Drogheda, further than to make one remark upon the observation of the hon. member for Drogheda, relative to that Statute which had been quoted, and in which the hon. Member said, no penalty was specified for disobedience of the provisions of that Statute. The words of that Act were "That they (the Commissioners of Stamps) are hereby prohibited from issuing stamps" to any printer convicted of a seditious libel. Certainly there was no penalty attached to a disobedience of this provision, but every lawyer knew that disobedience of any Act of Parliament was an indictable offence, and punishable at common law. This was an oppressive and an improper law; but if the Commissioners had not put it; in force they would have been liable to an indictment at the prosecution of any person who chose to institute one.

Mr. Roebuck

said, this was not a matter connected at first with the Government, it was true; the Government did not commence the prosecution, and as far as that was concerned, the Government had nothing to do with it; but the Government possessed a discretionary power of keeping the parties referred to in gaol; and when an application had been made to them, as it appeared there had been in this case, he thought their conduct came very properly under the cognizance of the House. The Government had exercised that discretionary power, and it seemed they did not mean to release the petitioner, and, therefore, that House ought to act in the matter. From the beginning to the end of this transaction, he must call it a most disgraceful one. It was disgraceful to the prosecutors who instituted it—it was disgraceful to the Grand Jury who returned the bill—it was disgraceful to the jury who convicted the petitioner—it was disgraceful to the magistrates of Sussex—and he would say, it was disgraceful to the Judge on the bench. He would not use guarded language, because this was not a case in which guarded language ought to be used. They had come there to express their opinions freely, and he, for one, would do so. This unfortunate editor had inserted in his paper a paragraph relative to incendiary fires. He stated a fact, and a fact simply—namely, that in certain districts in Sussex, incendiary fires prevailed, and that in others, fires did not prevail, and that, in some districts, the magistrates were severe, and that in others they were not. The gravamen of the charge was, that the editor had incited the people to commit these incendiary fires, and yet the Judge, before whom he was tried, afterwards declared, that the charge was not made out. Then what was he punished for? Why, simply for saying, that the Magistrates in one district were harsher towards the lower classes than in another, and if he did say so, he was perfectly justified. It was an observation in which he (Mr. Roebuck) coincided. In every district where the people were against the Magistrates, they would find some specific cause for it. The people, generally, were fond of law; they never kicked against it, except on account of some persecution or oppressions. No man thought more than he did that a resident gentry and magistracy were of great service in promoting the interests of the people, but as magistrates, they held a great and powerful engine in their hands; and if they abused it, or made it the instrument of oppression against the people, it would only incite them against the laws and against themselves; and he knew they might, and did, in many instances, set the people against the laws. And this was a matter on which every man had a right to express an opinion; it was for expressing this opinion, that the proprietor of the Brighton Guardian had been punished; and the law, which in such a case gave power to shut a man for six months in a gaol, was a most disgraceful law, and disgraceful to those who administered it. They always found the Judges of the Court of King's Bench leaning to the most strict interpretation of the Libel-law in its penal provisions; they had made it what it was—a disgrace to the country. It was nothing but such unjust cases as this that had created the existing antipathy against the Libel-laws. Mr. Cohen had, by accident, inserted in his paper a paragraph, which he expressed himself willing to explain, and to show that he had always done quite the contrary to that which he was charged with. The Judges would not hear him, and he was punished for that single act of publishing a fact. When the Libel-law was administered, the Judges ought to have taken into consideration the man's intention, and Mr. Cohen was willing to come forward and show, that if he were to be judged by his previous acts, the whole tenor of his writings had been against these incendiary fires, and that he had always been an enemy to this species of depredation and destruction, and that though he had expressed his opinions in his paper before for seven years, yet no person had ever been able to say, except on the publication of this paltry paragraph, that he had ever, in any one instance, incited the people to acts of incendiarism. The Government had instituted a great many prosecutions at that time; there was one against the hon. member for Oldham, but that failed and he escaped; but they had caught the unfortunate editor of the Brighton Guardian; and, by means of a Special Jury, and the disgraceful Libel-law, he had been flung into prison, and the poor unfortunate Mr. Cohen was now suffering for all the rest. He besought the hon. member for Brighton not to let the matter drop here, but bring forward a distinct motion for an address to the Crown. It was disgraceful to keep the man in Chelmsford gaol, and it was disgraceful to those who kept him there. There was to be an alteration with respect to the law of Libel and they ought to express their opinions relative to it. They ought to know facts; and if a man published truth—if a statement were true and contained nothing but truth—then any man was justified in laying that statement before the country. For doing that was the editor of the Brighton Guardian committed to prison; and he did hope the hon. member for Brighton would move an address to his Majesty. The Secretary of State had determined not to interfere in the matter, and the only resource left was, an Address from that House to his Majesty, and if the hon. member for Brighton would bring forward a motion to that effect, it should have his cordial support, such as it was.

Captain Curteis

said, he was one of the Magistrates alluded to in the petition, and he felt it his duty to state, that a more honourable man than the prosecutor could not exist. He (Captain Curteis), with several other Magistrates, did not think it necessary to go on with this prosecution; but the prosecutor thought it absolutely necessary that it should be carried on, and conceived it to be his duty to file the bill against the petitioner. He hoped the hon. member for Brighton would move an Address to the Crown, and he would give it his support.

Mr. Goring

said, that he was a member of the Arundel bench, and if any persons were libelled at all in the paragraph, it was the members of that bench, and not one of them had thought it right that any prosecution should be instituted. They thought it would be giving a notice and importance to this paragraph which it did not merit, and as a proof of the very little mischief it had done, he begged to say, that there was not one fire in the whole Arundel district after the publication appeared, and there had not been to this time, and therefore he did not consider the paragraph worthy of notice.

The Petition laid on the Table.