LIBEL. (Hansard, 18 March 1835)

Mr. O'Connell

stated, that as the subject of which he had given notice was one of no small interest and importance, he should not have proposed to bring it forward at that late hour of the night, if he had not obtained the assent of the hon. and learned Gentlemen who were in the confidence of the Crown. His object was to obtain leave to bring in a Bill to amend tile Law of Libel. If he could so far obtain the consent of the House, his intention was to appoint a day at some fortnight's distance—a day that should be most convenient to the hon. and learned Gentlemen the Law Officers of the Crown—for the second reading; after which he should propose to refer the Bill to a Select Committee up-stairs, who should have power to report generally upon the Law of Libel. Such was the course he pro- 1179 posed to pursue. In the absence of the hon. and learned Gentlemen, the Attorney and Solicitor Generals, he did not intend to enter at any length into the subject. He merely wished to initiate the Bill in such a way as not to prevent its being ultimately prosecuted under the sanction and responsibility of the Law Officers of the Crown, leaving to them full power to oppose any of the details that they should deem objectionable. With that view, he should upon that occasion simply move for leave to bring in the Bill; but in so doing, he would humbly submit to the House, that if there were any one proposition upon which all legal men—no matter what their political opinions—were agreed, it was this—that the Law of Libel was at the present moment in a most unsatisfactory state. No law, in fact, could be more anomalous. There were three different modes of proceeding against a libeller. First, by action for damages. The law in that case was, that if the words spoken or published, no matter how malicious or vindictive the motive in speaking or publishing them, were proved to be true, it was a perfect defence to the libeller, and the plaintiff was not only deprived of any compensation but was subjected to all the costs of the action. That was a gross defect. Upon the other hand, in an action of libel for damages, if the truth were not proved precisely according to the terms contained in the allegation, however innocently the words complained of might have been intended, all that the Jury could do was to give small and mitigated damages, but those damages were aggravated to an enormous extent by the amount of the costs. It was true, that in England the Judge had the power, under particular circumstances, of certifying, so as to prevent the carrying of costs; but in Ireland that power did not exist at all, and in England it was very rarely exercised. Frequent instances occurred of men bringing actions for libel upon the mere speculation of obtaining sixpence or a shilling damages, knowing that a verdict in their favour, of however small an amount, would insure to them the whole of the costs, which in many cases amounted to 200l., 300l., and even to 500l. That was a most unsatisfactory state of the law. Independent of actions for damages, there were two modes of criminally proceeding for libel, which were equally anomalous. First, there was the mode of proceeding 1180 by information before the Court of King's Bench. But no man could apply for a criminal information in that Court unless he could deny the imputation of guilt contained in the alleged libel; and if the party publishing, could show by affidavit, that the alleged libel was substantially true, the proceeding failed, and the prosecution could not be carried out But if a party took a third course, every word of the libel being perfectly true, every tittle of it really merited, he need not proceed by action—need not proceed by criminal information, but he might go and lay an indictment before a Grand Jury. There the truth was not inquired into. The indictment was carried from the Grand Jury to a Petty Jury. There the truth was not listened to, and conviction followed. That, again, was a state of the law which surely ought not to exist. But in introducing a specific measure upon the subject, he would, above all things, impress this upon the House—that they had been told over and over again by the Judges, that upon this subject there was no Statute-law. No doubt that was the fact. Publication was not known until the period had arrived at which all out Common-law was framed—it was not known until after the art of printing had been discovered and brought into use. It happened, too, that none of our Courts were regulated by what was termed Statute-law. Then the Judges told them, that it was for the Jury to determine, whether the alleged libel were maliciously intended; but as the law at present stood, it took from the Jury the test best calculated to exhibit the intention, namely, the truth. Surely a better criterion could not in most cases be had for judging whether a publication were innocently or maliciously intended, than the proof of whether it was true or not. He knew that it was not an infallible criterion, but it was, at least, as good a one as could be obtained. He did not intend on that occasion to go further into detail. He thought he had stated enough to show that the Law Officers of the Crown, in not opposing the introduction of a Bill upon the subject, were in no way guilty of a dereliction of duty. The House would feel more immediately aware of that fact when he added, that he knew it to be the intention of several hon. and learned Gentleman to watch the entire progress of the Bill, and to endeavour, to the utmost 1181 of their power, to make it satisfactory to all sides of the House. The hon. and learned Gentleman concluded by moving for leave to bring in a Bill to amend the Law of Libel.