Lords Sitting of 13 May 1817

LIBEL LAW—LORD SIDMOUTH'S CIRCULAR.
Lord Erskine,adverting to the discussion of the night before on the subject of the power of justices of the peace with respect to commitments for libel, observed, that it was unfit a question of such magnitude and importance should remain in its present state; it was necessary that the law, whatever it was, on the subject, should be fully understood and settled, and on that account it was his intention to move for a return of the precedents, which at least would establish what the practice had been; and he would in a day or two put his motion into a proper shape.—He was desirous to have a return of all the re-
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cognizances returned to the court of King's-bench, and the different quarter sessions throughout England which had been taken by justices in cases of libel, before indictment found; as he could not believe that they would prove to be so numerous, as to establish any thing like a practice, much less a recognition of the law on such an important subject. But if it should turn out that it had been held or considered to be the law, he would never rest until it was altered. There had been for many years an erroneous opinion regarding jurisdiction over libel, till set to rights by the libel act, and since the passing of that act, which took even from the judges the right of determining the criminality of any writing upon general subjects as an abstract question of law. It could not with any propriety be competent to the lower magistrates to exercise such a jurisdiction by holding to bail before indictment found. When be first came to the bar, the jurisdiction of the judges over libel as a matter of law, was considered to be so settled that he could hardly obtain an audience regarding it in the courts, but he then told lord Mansfield, that he never would submit to it, and that he was sure he should live to see it altered by the authority of parliament. Now, indeed, that he was grown old, he could not be so confident in looking forward to any event which might be distant, yet still, he had no doubt whatever that in a matter so vital to the liberty of the press, the pressure of public opinion would be so strong and so universal, that the legislature would give way to it, as they had done before when the libel bill was passed; as, if any justice of the peace might deprive any man of his liberty upon his own judgment of the quality of what he had written without the opinion of a grand jury, that statute, so justly popular, might be cast into the fire, His noble friend upon the woolsack, who had not pledged himself to any opinion had most truly said on a former night that it did not follow because libel could not be adjudged without the opinion of the jury as to libel that therefore a person might not, as in other cases, be arrested to answer to such a charge, and there certainly was an obvious distinction; but then in the cases of other crimes their definitions were matters of law for magistrates to judge of and generally very simple. Whenever libels were now held to be not matters of law but of a nature only fit for juries to decide, and if the jurisdiction to im-

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prison before indictment with the justices of the might be more vexed and harassed, and be far longer imprisoned, than after a condemnation of the offence. It would therefore be such an intolerable obstruction to the freedom of the press, to allow this jurisdiction even if it were at present legal, that he would never rest until it was done away; but in the mean time, be wished to have it clearly ascertained what the law was, and with that view he gave notice, that he would move in a very few days for precedents of the description he had mentioned.