LAW OF SLANDER.—RESOLUTION. (Hansard, 13 April 1875)

§ SIR WILLIAM FRASER
, in rising to call attention to the Law relating to Slander; and to move, "That, in the opinion of this House, the Law relating to Slander requires amendment," said: Mr. Speaker, after the opinions given this afternoon by some of the ablest Members of this House in the debate which has just terminated, I hesitate to express, even, in the humblest manner, my views on the subject of slander. The point to which I wish to direct the attention of the House is simple, but important. I will not enter upon the broad question what is slander, and what is not. I use the generic term slander; but it is the specific form of slander known as libel on which I shall comment. I will not relate the views of eminent persons in the last, nor present century; I will not repeat the opinions of Lord Mansfield, nor describe the legislation of Lord Campbell. I shall be glad, Sir, to know from the Attorney General, whether the law which protects our property, in some smaller degree our persons, and in some degree our reputation, enables us at present to protect the memory of those who have been dear to us; whether by the present law the son is able to guard the memory of his father or mother, the husband of his wife, the wife of her husband? It would not become me to give a decided opinion as to the precise state of the law; especially as some of 812 the wisest Judges that have sat upon the Bench have not been very clear on the subject. I am induced to think that the law is not sufficiently strong, from the fact that for 80 years no attempt has been made to proceed by indictment against one who has slandered the dead. The last case recorded is that of the King v. Topham. Topham was the editor of a newspaper called The World, and he published very gross libels against George, Earl Cowper, deceased. He was tried before Judge Buller and a jury, and was convicted. An appeal was made against the judgment, and Lord Kenyon as Chief Justice reversed the decision of the Court below. In delivering his judgment Lord Kenyon quoted Lord Mansfield— Where the act is in itself unlawful (as in this case) the proof of justification or excuse lies on the defendant; and in failure thereof the law implies a criminal intent. Lord Kenyon also refers to Sir Edward Coke, who says that— Defamation of the dead is libellous as stirring up the family to revenge, and to break the peace. He (Lord Kenyon) reverses the judgment of the Court below, because, not that the libel did not tend to a breach of the peace, but that it was not so stated in the indictment. This point is most important; for the decision of Lord Kenyon has been quoted as if he had reversed the judgment, because the libel did not tend to a breach of the peace. No attempt has been made, I believe, since that date, 1791, to remedy the wrong done to a dead person by indictment. Lord Kenyon followed up his decision with these words— To hold that, even after ages are passed, the conduct of bad men cannot be contrasted with good, would be to exclude the best part of history. This, Sir, seems to me a judicial truism; and is not to the point; for it cannot be applied to the case of a man who has recently died. Sir Edward Coke, to whom Lord Kenyon referred, had tried a case of a man, who certainly bolder than most persons, had dared to libel two Archbishops of Canterbury at once. Sir Edward Coke stated that, if a libel was made against a public or private person, it was punishable if the person might be dead at the time of making the libel, because it stirred up the relatives of 813 the person libelled to a breach of the peace; but in the case tried before him (Sir Edward Coke) it is doubtful whether the person convicted was so convicted for the libel on the Archbishop deceased or the living Archbishop, so that whatever Sir Edward Coke's opinion may be worth, and, as we know, he was most eminent as a lawyer, it cannot be said that he, by this decision, made the point clear. I believe, Sir, that the law of libel might be without difficulty extended to the defamation of the dead as well as of the living; either by declaring the present law to have such operation; or by a fresh enactment. I make this suggestion at a time when our public men cannot be accused of too great sensitiveness to criticism. If ever there was a time when men were freely criticized it has been in the generation in which we live. What must be the sensation of a statesman on taking up an illustrated periodical week after week for 20 years, to see himself hebdomadally depicted in some grotesque attitude, doing something he has never done, from some motive he has never thought of, I know not. It may be that, like the slave in the Capitol, these pictures whisper in his ear "Thou art mortal." In these days not only do we live in glass houses, but under a magnifying glass of the most powerful sort. One of the most remarkable features of the newspaper intelligence of the present day is the London correspondent of the provincial Press. This wonderful and mysterious being is evidently present at Cabinet Councils, and dines with an Archbishop or a Chief Justice at least once a-week. He not only tells us what we have done, but informs us of what we are going to do. I venture to read to the House a short specimen which I happened to see lately, "The appearance of the right honourable gentleman is that of a market-gardener out for a Sunday walk." The writer is perfectly impartial in his criticisms, and goes from side to side of this House. "Colonel So-and-so's clothes were evidently made for somebody else." While "Sir Some body-o'-something's perennial pair of trousers would, if unstitched, suffice for the mainsail of a moderate-sized yacht." At the same time, we must admit that our generation has seen a great change for the better from the ferocious libels, pictorial and 814 literary, of 40 years ago. Since the price of newspapers has been lowered a much better tone has pervaded public prints—I do not say post hoc propter hoc—but there can be no doubt that great good feeling, and good humour are shown in this respect. Most of us have had our biography written. We have not to wait until we go where we must all go sooner or later; but even in the tempting circumstances of a recent Parliamentary Election, neither ill-humour nor unfairness in the description given of us is to be detected when we enter this House; but there is one class of publication which has shown of late a great tendency to crop up; books written by men who vent their spleen against those whom they do not like; leaving behind them calumny and slander, to overhang either their victims, or their victims' children. These books inflict a great hardship and wrong. The memory of the best, as well as the worst of men is hot spared. Men of the highest honour in private life and of conspicuous public virtue, once in their graves, are held up to their relatives and friends and to mankind in general as not honest, and not honourable. You are told in these books that the man whom you have for long years respected and admired was a worthless being. These writers say to you: "You think that statesman was honest, and that, misinterpreted during his life-time, he would be done justice to at his death: you are mistaken; you are ignorant; you are a fool; you thought the man a gentleman; I tell you he was a rogue! You think that his public life, his career were influenced by high minded self-denial! Believe nothing of the sort; he was selfish from first to last. You think that his private life was pure? Humbug! It was the contrary. I've bribed his valet, and I ought to know." Now this is no exaggerated description of the sort of book that appears periodically in English society. I will quote a case that has been sent to me since the Notice of this Motion appeared. A particular libel was published in a book, which I will not advertize by giving its name; suffice it to say that it was written by a wandering physician; a man who travelled about from watering place to watering place on the Continent; and instructed people as to their specific requirements. The person slandered 815 was Captain Burdett, an officer of considerable distinction in His Majesty's Navy. It appears from authentic documents at the Admiralty that he was a man of high character, and excellent conduct. In the book to which I allude he is described as having behaved in a most discreditable manner, and been dismissed from the Navy with disgrace. There is no truth in these libels. Captain Burdett commanded some of the largest ships in the Navy, and died bearing a very high character from all those whom he had commanded, and from all those under whom he had served. It may have occurred Sir, to some Members of this House that I should allude to a book recently published. I will not mention its precise name, for that might add to the sale to the extent of some few copies, but every Member will know the book to which I allude. It was written by a person eminent, I mean, for the office which he filled; it was not published in his life-time, when his slanders might have been met and confuted. It was left behind him at his death; and published by another. It is a dull and dirty book; compiled by Malice, published by Avarice, edited by Vulgarity. A more profligate book never came from any publisher. Not only is it shown by this book that Mr. Greville had broken, and frequently, the solemn oath taken three times on appointment to the service of the Sovereigns whom he boasts on the title page to have served; but he had set at nought the higher law, the religion of society, the law of honour. He was— Un héros qui n'est point esclave de sa foi. There is nothing of Lazarus about this publication; it is Dives all over: literally purple and fine linen. On the outside is an apologetic motto: "Vix ea nostra voco;" and above is a Phœnix, seemingly out of health; a moulting Phoenix. The bird appears to be engaged in the very act of dirtying its own nest. "Nihil tetigit quod non fædavit." The most conspicuous objects of Mr. Greville's slanders are the monarchs whom he seems vain to have served as Clerk of the Council, George IV. and William IV. No doubt as regards the first, an old gentleman in a brown wig, and vain of his leg, was a fair subject for satire. Hone and Moore were the persons employed to write him down. 816 Hone was paid; Moore was petted. We have all read of The Dandy of sixty who bows with a grace; And has taste in Coats, Collars, Cuirasses, and Lace. There are not many people who have taste in anything; and George IV. had excellent taste in matters of more importance than these. We are indebted to his fine perception of the beautiful for the handsome coins of Pistrucci, whom George IV. brought to this country. The dragon sovereigns of this artist are amongst the most classic coins that the world has seen; and have been lately re-issued in large numbers from the Mint. Waterloo Bridge is a noble monument of the encouragement given to art by George IV.; and many of the pictures and works of Art in the Royal Palaces were collected by him. Lord Byron condescended to libel the man who had, as he frequently admits in his letters, treated him with invariable courtesy, kindness, and consideration. George IV., when Prince Regent, wishing to pay honour to the memory of Charles I., beheaded, buried, and forgotten, discovered in the neighbourhood of Charles's coffin the body of Henry VIII. Lord Byron wrote eight of his best lines on this discovery— Famed for contemptuous breach of sacred ties, By headless Charles see heartless Henry lies; Between them stands another sceptred thing; it moves; it reigns; in all but name a King: Charles to his country, Henry to his wife; In him the double tyrant starts to life: Oh! what can tombs avail, since they disgorge The blood, and dust of both to make a George! Now we know this to have been all nonsense; and no one knew it better than Lord Byron himself. If George IV. was a tyrant to his country, he was the sort of tyrant that we see at Christmas; a Pantomime tyrant; one who, if he has a difficulty with his Prime Minister, knocks him on the head with a sceptre not altogether unlike yonder mace: and as regards being a tyrant to his wife; when they met, after an absence of 25 years, the lady certainly got the best of it. It is true that George IV., when far advanced in years, was in the habit of associating with two elderly persons of the opposite sex; the first of them re-voltingly ugly, the second preposterously fat; but in the latter case not only the lady's husband, but her son and daughter lived with the King in a very small house in Windsor Forest; so that even 817 the pure and sensitive mind of Mr. Greville must admit that under such circumstances impropriety was very difficult, if not impossible. The King had no family circle; his wife was away, his daughter dead; and he must associate with some one. "Fame," as a brilliant writer has said, "is a thing of Party," and the fact was, that George IV. changed his political opinions, or at least the expression of his political views; and the whole tribe of slanderers was at once let loose upon him. As regards King William, whom Mr. Greville attempts to blacken without producing one fact to support his calumny, one would have thought that the jovial sailor-monarch, who, after 65 years of comparative obscurity, unexpectedly came to the Throne, would have escaped the censure of even so great a moralist as the author of this book. The ancedotes relating to this King are without exception thoroughly spoilt. Mr. Greville was not only a malicious man, but he must have been a dull one; and he contrived to remove the point from almost every story he tells. He relates that King William, in order to procure personal liberty for himself, did what Louis Philippe invariably did, and what I believe the Emperor of Russia does to this day; he thought that he could accustom the people, by walking alone, to his presence; and that in a few weeks he would not be molested by a crowd in the streets of London. Mr. Greville tolls us that King William walked up St. James's Street; but he omits a story that I have known all my life; which I belive to be absolutely true; and which is very characteristic of the King. Entering Hoby's shop, which was then on the left side of St. James's Street going up, His Majesty ordered a pair of boots; the assistant who was in the shop did not know the King by sight, and said—"I beg your pardon, Sir, I have forgotten your name." William IV. replied—"Well, I am the King; I am down in your books as Duke of Clarence." That story shows a simple mind, and a very unaffected disposition; but there is one trait which I have always thought redounds very much to the credit of King William, and to his thoughtful consideration of others. When he was told a fact as disagreeable to monarchs as to the rest of mankind, that he must die; and learned that— Death lays his icy hands on Kings, 818 one of his first questions was— Shall I live over the 18th of June? I should be very sorry for the Duke of Wellington's dinners to he interrupted: the chain has never yet been broken since Waterloo, and I hope that I shall live long enough to enable the Duke to have his dinner on that day. Now, Sir, if over a true-hearted and chivalrous gentleman spoke, he spoke when he said those words; and cynicism itself can hardly point with a more un relenting finger than when it indicates MR. Greville attributing the persistence with which King William, on mounting the Throne, sought out every old friend to promote him, to obvious madness. There is one slander in this book, and one of the worst, not of the dead but of the living; a lady who is still alive, the widow of a gallant soldier; the mother of a most gallant soldier, who having drawn the attention of the judicial au thorities to a half-witted forger is in this book——

§ SIR WILFEID LAWSON
Mr. Speaker, I rise to Order. The Motion upon the Paper is that the law of slander should be amended. I wish to ask whether the hon. Baronet is speaking to the Question?

§ MR. SPEAKER
I understand the hon. Baronet to be illustrating his arguments. I feel sure that I can trust to his discretion not to wander too far from the matter of debate.

§ SIR WILLIAM FRASER
Sir, I will not offend again. I was endeavouring to enliven a somewhat dry subject. I will read to the House the law on this subject of Germany and of Prance. By the Code of Law establishd in Germany, in 1870, section 189— Whoever slanders the memory of a person deceased, by stating a fact that would have lowered the deceased in public esteem if stated in his lifetime, shall be punished with imprisonment not exceeding six months; if with extenuating circumstances, a fine may be adjudged. The prosecution can only be instituted by the parents, the children, or the wife of the deceased. In France it has been settled by the Court of Cassation, the highest tribunal in the country, by two decisions, one on the 24th of March, 1860, and the other on the 23rd of March, 1866, that the 13th Article of Law of the 17th of May, 1819, applies to calumny on the dead as well as on the living. The heirs of the deceased, or any one of them, can take action. The 819 penalty, on conviction for the crime of defamation of the dead, is by the Law of the 17th of May, 1819, imprisonment for not more than a year; or a fine of not more than 2,000 francs, or both. Now, Sir, I am the last person in this House, or out of it, to wish to interfere with due and wholesome publicity. I hope never to see the time when the affairs of State are conducted under the momentary impulse of fretful popularity: the ignorance of the present I despise; but I love the deep-thinking, far-seeing public opinion, the result of observation and of experience. It is this which has made our institutions so great and so sound. It is not the perfection of the machanism that enables statesmen to conduct the government of this country; it is the oil of good sense that lubricates the machine; it is the sublime, I had almost said divine, give and take, which makes this Empire great and free. I would do nothing to check publicity. I would do nothing to prevent this public opinion bringing its admirable influence to bear upon public affairs. I believe that the alteration in the law which I suggest, after much thought, might be made without difficulty, certainly without clamour. Considering that the law is now imperfect, I sincerely hope that the Law Officers of the Crown may be able to take my view of the matter. I thank the House for the patience and good humour with which they have listened to me; and I have the honour to move the Resolution which stands on the Paper in my name.

THE ATTORNEY GENERAL
said, that while he had listened with great pleasure to the amusing speech of the hon. and gallant Baronet, he was unable to give his assent to the Resolution which he proposed. The English law had always recognized that there might be slander of the memory of the dead as well as of the living. In an old legal work of authority, Hawkins's Pleas of the Crown, it was laid down that a libel was a malicious defamation, in printing or writing, tending to blacken either the memory of the dead or the reputation of the living. That, he believed, represented the real state of the law, 820 and it was illustrated by the judgment of Lord Kenyon, in the case to which his hon. and gallant Friend had referred, and which had reference to a libel on the memory of Lord Cowper. Lord Kenyon then stated that such a publication might be made fairly and honestly; but, whether made sooner or later, if it were done with a malevolent purpose, to vilify the memory of a deceased person, and with a view to injure his posterity as in the case of R. v. Critchley, then it came within the rule stated by Hawkins, and was illegal, as being done with a view to break the peace. The indictment, however, in the case decided by Lord Kenyon, contained no allegation that the libel tended to lead to a breach of the peace, and judgment was arrested on that account; but there was nothing in the judgment of Lord Kenyon to indicate that an indictment would not lie in such a case, when the circumstances warranted it, and the law, he ventured to say, remained the same up to the present time. There could, however, be no doubt that the practice of preferring indictments with respect to slanders on the dead had fallen into desuetude, and it seemed to be the general feeling of the country that it was undesirable to prosecute proceedings of that character. It was, at the same time, his opinion that if ever a case should arise in which it should be deemed expedient to prefer an indictment in respect of slander upon the memory of the dead the present law would be found sufficient for the purpose. He thought it would, under these circumstances, be undesirable to make any alteration in it.

§ MR. NEWDEGATE
believed that the present tendency of our Courts was to render the law of libel more stringent than it used to be, and until prosecutions for slanders such as those of which the hon. and gallant Member complained were instituted, and it was found that the law in such cases was insufficient, the House would, he thought, do wrong further to restrict publication. Increased restrictions might operate to destroy the most useful of all classes of publications—that of recent history.

§ MR. SANDFORD
said, he thought it was perfectly clear that the hon. and gallant Member had brought forward his Motion for the purpose not of illustrating the defects in the law of slander, 821 but rather the Greville Memoirs. No one objected to the Memoirs of Saint Simon, yet Saint Simon dealt much more hardly with his contemporaries than Mr. Greville had done. Again, there was the Diary of Sir Nathaniel Wraxall, which gave a great deal of information about the politicians of his time. The only question was as to the period at which such memoirs should be published. He believed that Mr. Greville left an absolute discretion to those to whom his Memoirs were left as to the period of publication. If there had been an unduly early publication, therefore, Mr. Greville stood entirely acquitted of blame, and no soreness would have been caused if the period of publication had been postponed. He had observed that men were very sensitive as to what was said of their fathers and mothers who were very indifferent about the reputation of their grandmothers. If a wise discretion had been exercised as to the publication of the Greville Memoirs he believed that they would be a valuable contribution to the history of the time, and no offence would have been given to the feelings of individuals.

§ SIR WILLIAM FRASER
, in reply, said: The hon. Member for Maldon (Mr. Sandford) is mistaken in supposing that there were no objections taken to Wraxall's Memoirs, when they were published. I must be permitted, Sir, to allude to a case which I omitted in my opening speech, and which shows a very great grievance on the part of an excellent lady now alive. Her late husband, after a most brilliant career in this House, and filling the highest law office of those who address you, rose to the highest position in "another place;" a man of great intellect and great eloquence; a man who, at 90 years of age, knew well how— The applause of listening Senates to command; one whom I remember waiting for many hours to hear speak on a great subject. The husband of this lady—and everybody in the House knows to whom I allude—is foully slandered in this pernicious book. I have heard, since I gave the Notice of this Motion, that it was the wish of the lady in question to indict the persons who have brought these slanders before the public; and she was told, so I am informed, that the law afforded her no redress. The law at present 822 declares that the plaintiff must show malice on the part of the defendant; or that the publication of the libel tends to a breach of the peace. I wish to extend it to cases, as in this instance, where the slander has been published for the sole and simple purpose of obtaining money.

§ MR. ALGERNON EGERTON
wished to state that neither the relatives nor the executors of Mr. Greville had any pecuniary interest whatever in the publication of his Memoirs. They fell, by a species of gift, into the hands of the publishers. The relatives had nothing to do with the publication.