HL Deb 30 April 1839 vol 47 cc639-77
Lord Brougham

rose to bring forward a subject of great importance regarding the administration of the law and government in an outpost, as it were, of great consequence both in a military and commercial point of view—he meant the island of Malta, but of still greater importance in his view of the subject as regarded the general principles of our jurisprudence; because, whatever might be the law of Malta, the ordinance which had been issued respecting the liberty of the press gave a sanction at least, if nothing further should follow, to a principle which he entirely disapproved of, which he knew their Lordships and all lawyers would disapprove of, which was repugnant, in some respects, to the actual principles of the law of England, and, in other respects, repugnant to what those principles ought to be made and to what all those who had ever considered the subject of the law of libel were of opinion they ought to be made. It might be naturally asked, why he should meddle with the affairs of Malta—a subject to which he never yet had given the smallest attention, and on which his information was as limited as almost any of their Lordships? But he must say, that his defence for coming forward on this oc- casion was not, as he had already stated, so much in respect to Malta as with regard to English jurisprudence and the law of libel itself. His attention had not of late, only, been called to this important question. He believed it was known to their Lordships, that he had not only given his testimony on the subject before a committee of the House of Commons since he had had the honour of a seat in their Lordships' House, but also that while he was a Member of the other House, at various times during the last thirty years, he had constantly made this a subject of earnest representation, and had introduced several bills for the purpose of amending the law. How was it possible for him to see without an effort, legislation not advancing or improving with the advancement and improvement of the age, nor even keeping stationary and secure in the ground already gained, but retrograding and retreating away from the light, enveloping itself in the darkness of a former and worse period of jurisprudence, and, in all respects, lessening the security of the subject, diminishing the rights of free discussion, and fettering and cramping, instead of extending the liberty of the press. He was the more incited to take the course he was pursuing by the disappointment which he felt at this ordinance, a disappointment which he felt in common with others who had congratulated themselves on the occasion of an assurance given by the King's Government in 1836, that the censorship of the press was to be abolished in Malta, and that the liberty of the press was to be established in that settlement. He now found, that the performance of that promise, the redemption of that pledge, or rather the verification of that statement—for it was a statement of fact which was made in 1836, which called forth so much approbation in the House of Commons, and which was received with so much gratitude out of doors, as being highly creditable to those who made it—consisted of an ordinance with which it was utterly and absolutely impossible that there should exist even the shadow of a shade of the liberty of the press. For these reasons it was, that he came forward and entreated the attention of their Lordships to this ordinance, although he must add, that he did so with the greatest reluctance, when he saw the names attached to the recommendations on which this ordinance was passed by the council of Malta. He had the greatest respect for those learned individuals. He had the highest respect for their learning and their talents, grounded upon experience of those qualifications. He had been the fellow-labourer of both of them in various departments of labour, as he thought useful to the State. With respect to one of them, he had himself given the best proof of the confidence that he reposed in him, by selecting Mr. Austen and placing him forward in an important station on a commission for the reform of the criminal law of this country. It was his duty to state—what it was at all times his pleasure and gratification to state—now, when he objected to the course lately taken in the Malta ordinance, that no man had ever better answered a recommendation; no man had ever by his conduct more amply justified the selection to which he owed his place on that commission. On the authority of all his brother commissioners, with whom he had been in constant communication during the course of their inquiries, he had the highest pleasure in stating, that a more useful, a more acute, or a more learned person than Mr. Austen never was engaged in any such inquiry. The other member of the Malta commission, Mr. Lewis, was known to many of their Lordships as a man of great learning and great capacity, although not, perhaps, of so much experience in the profession of the law, as made it advisable to choose him for the important, difficult, and delicate task of making a new code of laws—but of as much experience as Mr. Austen, who from ill-health, and not from want of capacity, had never practised at the bar. When he placed Mr. Austen on the Criminal Law Commission, he was the only person of that description upon it—the only person of a profound and general knowledge, not only of the laws of his own country, but of the principles of general jurisprudence. He was peculiar in that respect, and stood out from among his colleagues. He was peculiar in another respect (and with such a peculiarity his selection could only be justified)—by his being the only one of five commissioners to whom it belonged, which was, that he was not a lawyer in the full, constant, and daily practice of the profession. But he protested—much as he respected Mr. Austen, and greatly and justly as he estimated his talents, and well as he knew his learning—he should no more have thought of placing him alone on a commission for the reform of the criminal law, or of any other branch of the law, criminal or civil, than he should have thought of appointing one who had never had a wig and gown. He might be a very admirable, useful, nay, indispensable adjunct, but utterly unfitted—by his very excellence, by his very capacity—to be the sole constituent member of a board. With respect to what had been done in consequence of the Malta commission, he did not attach to his noble Friend, the former Secretary for Foreign Affairs, any blame whatever for the mistake, or error of judgment—provided it was corrected before it was too late. It was now an error of judgment, but it would become a fault of a very different description if it were not speedily amended. The only fault he had to find with his noble Friend was, that he had not taken the opinion of the English crown lawyers on the subject; for most assuredly, if he had done so, this most preposterous ordinance would never have seen the light. In the view he took of the conduct of his noble Friend (Lord Glenelg), however, in this matter, his noble Friend was not liable even to the blame of participation in an error of judgment. The circumstance of the ordinance not having been acted upon until January, 1839, was only an apparent delay, which was thus explained:—The original draught of the ordinance was so faulty, that his noble Friend could not sanction it at all. It was accordingly withdrawn, and another prepared. That accounted for the delay, which he would be very willing to forgive if it were much longer. If, instead of sending out the ordinance in the month of March last, they had delayed a few weeks or months longer, in order to take the opinion of the Crown lawyers upon the subject, he thought it required no spirit of divination to see, that whoever they might be, this ordinance would never have gone out to Malta. His noble Friend sent it out to be considered, giving a general approval of its principle, praising the diligence of the Commissioners, and calling the serious and undivided attention of the Malta council to the draught of the ordinance "for," said he, "it will require much consideration as to the details, and to its adaptation to the circumstances of Malta." Now, if that attention had been paid to its details and to its adaptation, not only to the circumstances of Malta, but to those of the English law, he was sure the council would have found them so inconsistent, that they would not have passed them. But it was not surprising, that they should have passed, and easily enough, in a council of military officers and civil servants who had no lawyer amongst them. This draught of the ordinance was submitted to be considered, weighed, sifted in its details, and finally adopted or rejected altogether or partially, all the matters contained in it being of a technical and legal description—to what? to a lack-learning council, without the shadow of a lawyer, the recommendations for abolishing the offices of Chief Justice and Attorney-General having been acted upon, and in reference to which he was glad to find, that his noble Friend intended to bring forward a motion on Monday week. This evidence was, therefore, the result of an inquiry on the part of an incompetent council, and contained such a mass of blunders—he could give them no other name—as had never been known in modern legislation. It consisted of five chapters and four pages, and to these four pages and five chapters were appended forty closely printed folios of note and comment. So that they had sixty-four notes and forty pages for the purpose of explaining five chapters and four pages. If they made laws which were not intelligible, the Legislature was bound to explain them for the subjects who were to obey them; but, in this instance, so extraordinary was the division of labour, that they had four pages of a legislative effort in Italian and English, and forty pages of explanation, not for those who were called upon to obey the ordinance, but for the service of their Lordships who were to comment upon it. Whether those who were to obey it, suffered much from the loss of those forty pages was another matter. When he looked to the explanations which they contained, he was bound to say, that he did not think they did. He doubted, whether those explanations would not have left them in that state of mind which a person might be supposed to be in who was a little confounded by a statement, but found himself worse confounded by the explanatory notes and elucidations. The notes were, undoubtedly, extremely clever, such as no one but a person of learning, of acuteness and ingenuity, and possessed of much knowledge of various kinds, could have written; but then, unfortunately, the knowledge displayed was not of that particular subject which was required for the occasion, namely, a knowledge of the English law; for certainly he bad never met with a more curious assemblage of blunders in this point of view in his life. In page 74 it was stated, "Perhaps these notes will not be strictly authoritative." A very strange proposition, as was also that in the next page,—"It is obvious, that annotations cannot have the authority of law." No mortal ever dreamt of the possibility of any rote having any legislative authority. That would be telling the subject what to do in one law, and stating in writing, not in another law, what it meant. The Legislature was first bound to know what it meant. It was next bound to tell what it meant, and having done so, to rely upon it, and take it only for what it meant when legally construed. It was further stated, with respect to these notes—"If they are re-published by the Government, they will be nearly equivalent in the interpretation of the law to proceedings directly from the Legislature." Thus they would be as good as if they were in the text of the law. They all knew, that when the Legislature w shed to tell what it meant, it did so in the form of a declaratory act. No court of law would allow any speech or writing which had been made by the framer of a law to be read for the purpose of giving a judicial interpretation of the enactment. He concluded, therefore, that these notes were of no authority. But, leaving that out of the question, let the House see whether these notes did really afford any great knowledge, or throw any great light upon the text which they were designed to illustrate. In the first place, he wished to remark upon the subject of these notes, that they displayed a very great affectation of accuracy. Wherever accuracy was of no value whatever, there the notes were roost superabundantly accurate, they only failed in the quality where it was requisite, and might easily have been attained. For instance, according to this exposition, the writings mentioned in the text were explained to mean any words in alphabetical or other characters, meaning thereby, of course, hieroglyphics, because all written languages were expressed either by alphabetical characters or hieroglyphics, very few were written in the latter mode. The Chinese was one, but it seemed rather an unnecessary precaution to extend the scope of a Maltese ordinance either to Chinese or hieroglyphics. But the accuracy of the note did not finish there, it went on to declare, that the printed writings in question compre- hended words in alphabetical or other characters, printed with types on one or more paper or papers, or other substance or substances, and then the note proceeded to say, it would be extremely difficult to enumerate all the substances which might be printed upon, and therefore no attempt had been made either to enumerate all the species of such substances, or even to define their genera. Among the species, however, they gave "for example, a book, pamphlet, unstitched sheet, handbill, card, or roll, consisting of paper, parchment, or linen." There was much more information on this point in the commentary, with which he (Lord Brougham) would not trouble the House. He would only observe, that he was very glad, so far, that these explanations had not been put into the text, for they would have had anything but the effect of explaining. Another cause involved the publisher of any publication objected to in the penalties, not only if it were done wilfully, but also if it were done "negligently." What was the definition of negligence afforded by the commissioners? "Negligence," they laid out, "is the want of due attention, meaning by due attention the attention due from a given party, by virtue of a given law, or rule, or principle of morals." This was a most comprehensive and detailed account of negligence, certainly, but how far it would assist the Maltese in comprehending the law was another matter. The note did not attempt to define how much attention "due attention" meant. And, in truth, that was a matter incapable of definition, being one of that description which, according to our own laws, was always left to the decision of a jury. A jury, however, would not have to decide upon cases under the Maltese ordinance. All such cases would be decided by an officer removeable by the Crown, and thus the very evil would exist which formed the great objection to a censorship. Then, again, the commissioners changed about their words in a most unaccountable manner. There was one set of words very much used in the text by the commissioners, "that which reviles, traduces, or ridicules." What was it they meant by this word "revile?" When the reader came to the notes, he found this word changed to "vituperation," and there was a remarkable instance of this in one part of the commentary, which said, "as the ordinance says, revile, vituperate;" where as the ordinance did not use the word vituperation at all. Look at the definition which the commentary gave of a word which predominated throughout the ordinance—he meant the word "censure;" which was extremely popular with the commissioners; it was a word wholly unknown to the English law, and was, moreover, the most indefinite word that could be imagined. "Defamation" was a legal term. Everybody knew what was meant by the word "ridicule," all understood the term "invective," and most people felt accurately enough what "scurrility" was: but "censure!" who ever heard of such a term in the law of libel? Yet that was the chosen word of this ordinance. What account did the notes give of the word? Why, they said, that any publication would fall within the prohibition, whatever might be the nature or form of the censure—whether it was serious or ironical, express or implied, so that it was a statement, which, although unaccompanied with any expressed inference of misconduct, would lead others to make such an inference. He must confess, that he understood the word "censure" better before than after reading the definition of it. The word, in truth, was so vague a term, that God forbid any person should be put on his trial on a charge of censure. A man might be censured for the merest comparatively trifles, as well as for the greatest enormities. You may censure a man, by saying, that he is a murderer, a robber, a ruffian of the deepest dye; that he is as profligate in private conduct as he is unprincipled in public life; but you may also censure him by saying, that "he is not so good as might be wished;" that "many better men are worse spoken of;" that "he is far from being a perfect character—as who indeed, is "—that "he has many little faults, as who has not;"—that "he has several little weaknesses; that his conduct is not free from blame;"—and so on; but could any man for a moment describe these latter "censures" as libels? Libels, however, they were declared to be in Malta, and punishable too, with twelve months' imprisonment. It must not be forgotten, too, that the ordinance comprehended every thing that tended to defame. The homely language of the English law merely extended to that which actually defamed, to that which lowered the estimation in which a man was held, to that whereby his reputation was tarnished, or his character damaged in the eyes of the public. But, in this ordinance were to be found over and over again such expressions as "that which tends to incite any one to attempt to do an act." Another expression used in this document was of a sufficiently vague nature. Provision was made for the punishment of those who should be found guilty of publicly censuring, or disrespectfully mentioning, her Majesty, meaning, of course, the sovereign for the time being. What was meant by the word "disrespectfully" was not defined. Why, he could figure to himself, at the instant, fifty different expressions used without any evil intention, without unkindness, but which were improper in themselves, and disrespectful towards the object of them, but which no man in his senses would call a libel. Why, he had hundreds of times seen the term "poor blind old king" applied to one monarch of this country; "the fat old king," said of another. Now, these expressions were both improper in themselves, indecorous, and disrespectful; but who had ever thought of charging the utterers of them with libel, and sending them to prison, as would infallibly be done at Malta, under this ordinance. He could figure to himself another expression, which he had himself heard more than 500 times made use of towards as good, kind, and warm-hearted a monarch as ever reigned, and who had been called "the jolly old tar, William the Fourth." Such a phrase was obviously used entirely in a spirit of kindness; but it was, nevertheless, by no means a respectful designation. The sovereign was, by the law, regarded as perfect, and as above all such indecorous familiarity. But, notwithstanding the impropriety of these expressions, who would ever dream of calling them libellous, making them the subject of legal proceedings, and punishing those who use them like the worst criminals. Then there was another word used in this ordinance, "malversation," which seemed a most extraordinary phrase. No doubt a definition was propounded of the word by the commissioners, but he should loudly protest against such a definition ever being parcel of our law, for the doctrine involved was frightful to contemplate. "Malversation," said the commissioners, "signifies any misconduct (positive or negative) in a public capacity; or, in other words, it signifies any violation (positive or negative) of any legal or moral duty incumbent on a person in a public capacity." So that if any man in a public situation was not charitable, for instance, was narrow, did not give to the poor, which was a breach of one of the first moral duties, and any person made an observation to this effect, he was forthwith to be put into prison for twelve months as a malversator. The list of persons protected by this provision was very large and singularly comprehensive. They were, "all persons employed or concerned in administering the government of these islands," which description in the notes was explained to embrace any person within any of the following descriptions. First, a person employed or concerned in administering such government generally, or in administering any department of such government, be it civil, military, naval, or other. Second, a person employed or concerned in administering such government, in any capacity superior or inferior. Third, a person employed or concerned in administering such government, in any capacity permanent or transient. For example, a judge, a military officer commanding a regiment or fort, or a naval officer commanding a ship, is employed or concerned in administering such government, in a permanent capacity. A juryman, a military officer on guard, or a sentry on his post, is employed or concerned in administering such government, in a transient capacity. Fourth, a person employed or concerned in administering such government, within or beyond the limits of these islands." The care taken of "the centry on his post" was singularly considerate. It was certainly desirable that no person should accuse of "malversation," a public functionary like the sentry, concerned in "administering the government of the islands" in a transient capacity" from six to eight o'clock in the morning or afternoon of any given day, and that the other public functionary who relieved him should have the same protection. Otherwise, of how many of these public functionaries might not unthinking persons observe that they were not so charitable as they ought to be, or that they were fond of drinking or "malversation," imputable but in too many instances to parties "concerned in administering the government of the islands in this transient public capacity." It was quite right that they should be protected by a penalty of twelve months' imprisonment, and some future Blackstone, in commenting upon this law, would say, "So tender are the laws of England of the character of sentinels on duty in a transient capacity." All these provisions regarded animadversions on private character, and the learned annotators drew a broad distinction between censures on the private and public actions of individuals. With respect to the latter, a very extraordinary proposition was advanced. "Mere vituperation or ridicule of a person in a public capacity," said the commissioners, "has little or no tendency to detract from his reputation, or even to wound his feelings." No! no tendency to detract from his reputation, or wound his feelings! Had the vituperation or ridicule of a statesman, for instance, in the newspapers, no tendency to detract from his reputation or wound his feelings; or to detract from his reputation at all events? Could it be imagined that the reputation or feelings of those who happened to be the Ministers of the day were wholly unaffected by all the unsavoury comparisons which were from time to time made respecting them? For instance, when it was said of one, that "he had the stature of a cockchafer and the spirit of a titmouse," or when it was said, that a Minister was an animal devoid of all feeling. Let the House hear, too, the character of Sir R. Walpole, as it appeared in the Craftsman, and say whether there was nothing in it to detract from the reputation or wound the feelings? Or was there anything calculated to increase the reputation or gratify the feelings of the Duke of Newcastle, in the account which appeared of him, and which summed up his character with this description:— He never knew his own mind for forty-eight hours. His whole life was a perpetual course of trimming. He had given up every point, every measure, and every principle, and was driven about by every wind from side to side. He was first driven from left to right, and then carried back by a more brawny arm from right to left again, thus uniting the repose of the shuttlecock with the dignity of the puppet. A minister devoid of all feeling whatever, truth an entire stranger to his bosom, as feeling and humanity are to his nature. He never says 'yes,' except when he means 'no,' he never denies a thing unless he positively knows it to be true. If you are a suitor for his favour, if he smiles on you, have a great distrust of him. If he makes you a promise, distrust him still more, but if he squeezes your hand, and professes friendship for you, give yourself up as a lost man. Every man of common sense on this occasion leaves town, and retires into the country until he himself dies, or the ministry changes. Again, to say to a woman that any particular man seeking her love was ten times more stupid than any of his rivals, might be extremely disagreeable to that person, and might deeply wound his feelings; but would you punish any one for libel and defamation on such an account? The same might be said, if he stated that no one wrote a worse hand than his noble and learned Friend, and provided also that his noble and learned Friend prided himself on his calligraphy; but for saying so much in Malta he would render himself liable to six months' imprisonment. So, again, if there was a man who danced indifferently, but who prided himself on his dancing, and of whom it was said, that he could not dance at all, it might be held under this ordinance, that he had been libelled. By the law of England it was punishable to pain the feelings of a man's family by stating that he was dead; and this had been done in the case of himself, when it had been cried about that he had died under peculiar circumstances. There could be no doubt that this, for the moment when the party was at a distance, was calculated to give great pain; but it was not calculated to defame or wound the feelings of the person named, and, therefore, it was not punishable by the law of Malta. If this ordinance had undergone the least investigation by the Crown lawyers, it never would have received the sanction of the Colonial-office, nor of the authorities in Malta. Suppose an individual chose to apply such epithets to any of the Government men of those days, and to persist in their repetition, could any man doubt, that it would have been construed to be a libel? Could any man doubt, that the application of such epithets tended to wound the feelings? But this ordinance said "No," and for a curious reason,—because it is known to proceed from the ebullition of party animosity; because he must be aware of the light in which it is regarded by the public. Suppose that he was aware of its being regarded by the public in two lights, by one half in a favourable light, and by the other half in an unfavourable; and would any man say that such a publication did not tend to wound the feelings? The old-fashioned, straightforward, manly principle of the law of England made that a libel which wounded the feelings or lowered the reputation of an individual; it gave him his remedy by action, and he could punish by prosecution. The law of England was undoubtedly very bad, in some respects; it would not allow the truth to be given in justification under prosecution. Perhaps it was right, that it should make this restriction in an action. It should not be put in as a plea in mitigation; but it ought always to go as evidence to the jury. This had always been his expressed conviction; not so with the commissioners. Why, these sage legislators decreed that a man who merely hurt the feelings of another might be imprisoned for six months. Now that which might be very hurtful to the feelings of an individual might, so far as his moral character was concerned, be of the least possible consideration, and need be remind the House, that "de minimis non curat lex?" To say that a man was a bad orator, or a bad poet; to say that he could produce neither harmonious verse nor eloquent prose, might be extremely hurtful to his feelings—his vanity or (as the French termed it) his self-love. But who ever, in God's name, made that an offence to be punished by six months' imprisonment? Another, and an equally great, absurdity was with regard to the mode of publication. In order that a man might be punishable at all, the libel, according to the commissioners, must be written and printed. A libellous placard, therefore, exhibited in manuscript, was not punishable. The libel must also be published in the usual manner. If a man, therefore, called together 200 or 2,000 people, and read libellous matter to them from a book that was not a publication. The declaration of the meaning of the word "publishing" was altogether new "Exposing and offering for sale." What would they say of the case where the libel was offered for sale to parties who would not take it? The party to whom it was offered said, "keep the libel to yourself; I'll have nothing to do with it;" and yet that was construed to be a publication, as much as if it had been read, expounded, and communicated to 20,000 persons; acts of omission were punishable by the ordinance of these commissioners. If a party omitted to do anything which might have prevented the publication, he might be punished. This was the first time that non-feasance was punishable by law in these countries, If, ignorant of its contents, an individual laid a publication on his table, so that another might read it, and the publication happened to be libellous, he was punishable, but not with twelve months' imprisonment. Oh, no! he was let off with six months, provided be might, with care and attention, have made himself master of its contents. Let their Lordships only reflect upon this for a moment. Under such a law as this, they must tremble to receive letters by the post. There was no doubt unexamined letters lying on their tables; but then, with "a little care and attention," they might have made themselves masters of their contents, and they were, therefore, to be held punishable. On the same principle he might be held responsible for perhaps a dozen libels contained in a single newspaper reaching him by post, from which he had never torn the cover, and punished, according to the law laid down by these commissioners, with twelve months' imprisonment, because with "a little care and attention" he might have perused the whole of the newspaper writer's editorial lucubrations. If he published the fact of a man having been convicted of a felony, he would, according to this ordinance, be liable to twelve months' imprisonment, even although at the time of publication he held a copy of the warrant of conviction in his pocket. This was not the law of England. Then came the extraordinary chapter with regard to treasonable publications. A printed writing, exciting the people to subvert the Government by force, or to change it by force of arms, or to assist a foreign power, was treated by the commissioners as a mere libel. Why, it was an overt act of treason, in which the minor offence of the misdemeanour merged by the law of England. The commissioners argued for a whole page that it was not high treason. There was another part of the ordinance most objectionable; and although he did not like to weary the House by going into details, he felt bound to notice it. It held that an attack upon any description of religion was libellous. It stated:— 1. Any writing reviling, ridiculing, or otherwise insulting an essential or fundamental doctrine of the Christian religion—that is to say, a doctrine received by the generality of Christians of any church, society, or denomination. 2. Any writing reviling, ridiculing, or otherwise insulting any doctrine of the Roman Catholic church, or the government or discipline of the Roman Catholic church, or any part of its government or discipline, or any ritual or other religious observance of Roman Catholic Christians of any class or discipline. 3. Any writing reviling, ridiculing, or otherwise insulting any doctrine of the Established Church of England, or its government, discipline, or rites. 4. Any writing reviling, ridiculing, or otherwise insulting any doctrine of any church or society of Christians other than the Roman Catholic church or the Established Church of England, or reviling, ridiculing, or otherwise insulting the government, discipline, or rights of any such church or society. From this part of the ordinance, it was needless for him to state, that a Protestant could not say of the Catholic religion that it was a false religion, or was founded in error; nor could a Roman Catholic declare that the Protestant religion was an innovation and was not founded in truth, without rendering himself liable to punishment for libel. According to this part of the ordinance his late excellent friend, Mr. Wilberforce, would have been liable to punishment for what he said of the Socinians. He had ever regretted that his esteemed friend had used the expression, but having done so it was no doubt libellous under this ordinance. He said that Socinianism was the half-way house to infidelity. He was bound, however, in justice, to state that on some one remonstrating with Mr. Wilberforce on such a harsh expression being used by him, his excellent friend very good humouredly replied that it was also the half-way house from infidelity. This observation, however, would have been libellous by the Malta ordinance. To say that the Catholic worship was superstitious and idolatrous, as had been said by their Lordships in 1829, was surely to revile that religion; and yet this law would make such a declaration punishable by imprisonment; it was, however, highly tolerant; and, therefore, he did not much object to this part of it, since it erred on the safe side. But to all the other portions which he had enumerated he certainly did most object. In July, 1836, the Governor issued an ordinance announcing that it was the determination of the government to abolish the censorship in Malta, but how had that promise been fulfilled by the present ordinance? The law, as it was called, left men in perfect ignorance as to when they abided by it and whets they disobeyed it. An editor in Malta might very fairly say, "If there was a censor, I should be, at all events, secure—I should know that whatever passes through his hands is safe. But here I am publishing wholly at my own risk; and I am to be confounded, first, by the text of this singular ordinance, and next, still more by the notes and commentaries." It was monstrous and ridiculous to call this the setting rid of the censorship and establishing the liberty of the press at Malta. Under the old law any books might be imported into Malta; but by the new law this could not be done without running the risk of punishment. The truth was, that the ordinance made the censorship more stringent and oppressive under the pretence of abolishing it; and this law, be it recollected, was administered, not by a jury, but by a single Maltese judge. If be wished for the abolition of the liberty of the press, he would require no readier means of attaining that object than the abolition of jury trial in libel cases. It was only the other day that a Maltese judge, being a Catholic, sentenced a man to six months' imprisonment under this law, for something disrespectful which he had said respecting the Catholic religion. It was for these reasons that he had felt it to be his bounden duty to call their Lordships' attention, at the earliest possible period, to the existence of this state of the law in Malta; and he had no doubt, if the Government should not agree to recal or suspend, for the purpose of reconsidering and improving this ordinance, their Lordships would be induced to scud up an address calling upon the Crown to disallow it. He knew that it would be said that this would occasion delay—that it would delay a little longer the final liberty of the press in Malta; but after already a delay of three years since the promise was made surely a month or six weeks was not too much to ask, in order that the question might be properly settled. He should now say one word respecting the origin of all these blunders. These were not caused by the commission or by his noble Friend, but by the Council at Malta. If the Chief Justice had been still a member of that Council they would never have occurred. But he was not a member, and the ordinance was, as it were, swallowed whole. But why did he say that it would not have passed if the Chief Justice had been a member? Because he knew the learning, the talents, and the ability of that learned judge, and because he knew that he had been the cause of the rejection of another ordinance respecting the colonial revenue. The noble and learned Lord, in conclusion, begged pardon of their Lordships for having troubled them at such length, but he found that, in order to point out the absurdities and inconsistencies of this ordinance, it was absolutely necessary he should go into details. He had hoped, from the communications which had taken place on this subject, that he should have been spared the task of bringing the subject forward; and he could only say that, if the proposition of the Government were made out to the satisfaction of their Lordships, he should be one of the first to acknowledge that all which had been done was right and proper. The noble and learned Lord then moved, that an humble address be presented to her Majesty praying that she will be graciously pleased to disallow the ordinance relative to the liberty of the press in Malta.

Lord Glenelg

said, that he trusted their Lordships would permit him to offer a few words in reply to the noble and learned Lord who had just sat down. After the eloquent and powerful speech which had just been delivered, he should have considered himself inadequate to follow the noble and learned Lord, if he had felt called upon to discuss all the details into which the noble and learned Lord had entered. Indeed, it was impossible for him to do so; for the arguments of the noble and learned Lord related in so great a degree to legal technicalities and considerations, that it would have been absurd in him to pretend to follow the legal investigations into which the noble and learned Lord had entered. His was a humbler task. It was his purpose to state to their Lordships the part he had taken in the transactions which had been brought under their consideration, and to lay before them the motives and considerations by which he had been prompted to follow the course which the noble and learned Lord had condemned. The noble and learned Lord had paid a just tribute of praise to the commissioners who had been appointed, and on whose recommendation this ordinance had been framed; and he, notwithstanding all that had been said by the noble and learned Lord, still adhered to his opinion, that the ordinance was a great improvement on the state of things which previously existed. Perhaps their Lordships might differ from him as to the policy of the course which he had felt it his duty to pursue; but, at all events, he had a perfect right to claim the tribute of praise which had been bestowed upon the commissioners by the noble and learned Lord, and by others, as a warrant for him for placing confidence in their judgment and talents, and for adopting the measures which they had recommended. And though it was not for him to cope with the noble and learned Lord in legal knowledge, or to enter into an examination of the legal terms of the ordinance, and the legal bearing of certain expressions which it contained, or to examine the alleged absence of analogy between the laws of England and the enactments of that ordinance, yet he could not but feel that the noble and learned Lord had very little ground for exulting in the superiority of the arguments he had used. He would not, at that time, enter upon the subject to which the noble and learned Lord had called attention—namely, the absence of the Chief Justice of Malta at the time the ordinance was under consideration, for that would come under discussion on a future day. All he could say was, that the recommendations of the commissioners which his noble and learned friend had condemned, had been maturely considered, and had been supported by the highest authority, and notwithstanding all that had passed, he was still prepared to defend the measures which had been adopted. But what was the real question relative to the ordinance which their Lordships had to consider? The noble and learned Lord had said, that the state of things under the ordinance was worse than under the censorship. But what was the fact? The censorship amounted to a complete suppression of all political discussion, and he, for one, could not suppose anything more calculated to irritate the people, and to prevent their improvement in morals or in freedom, than the total suppression of comment and discussion on the measures of the Government. When he looked to Malta, and when he considered the evils of which the people had complained, and the many and great abuses which had grown up during the last twenty or thirty years—when he reflected that, although a dependency on this country, the Maltese had been deprived of the exercise of the functions of government, and that all the honours and offices of the colony had been assigned to persons from this country—when he remembered that the people of that dependency were ground down by heavy taxation, and when he considered, at the same time, that the duties of the different offices were not executed by those who held them—that, in fact, they were mere sinecures, the duties being, performed by the natives—when he reflected that the charities had withered, and that national education had decayed—when he considered all these things, and when he reflected on the great improvements which had taken place throughout the world, then he felt justified in saying that much of those great and growing evils must be attributed to the previous absence of the possibility of public discussion on all measures involving the welfare of the island, and the prosperity and happiness of the people. He would ask whether, looking back on the history of this country during a period of one hundred or two hundred years, the improvements which had taken place, and the corrections of evils which had been effected, were not mainly owing to the press—to the public discussion of the measures which were carried on for advancing the prosperity of the country, and which discussions had ever had a most important effect on those who possessed the administrative power. When he looked to the state of Malta, could any degree of legal ingenuity or argument close his eyes to the reality which was presented, and could he believe that that which in all other countries tended to depress the people, and to deprive them of the blessings of civilization—could he believe that the absence of the liberty of the press, which in all other countries had been productive of disastrous consequences—that the complete extinction of public discussion had, in Malta alone, been productive of no evil consequences? The noble and learned Lord had said that the present state of the law under the ordinance was worse than under the censorship; but he must, in this particular, differ entirely from the noble and learned Lord. Under the censorship, the extinction of public discussion was complete—so complete that no law of libel of any kind existed. Libel was impossible when discussion was absolutely and entirely prohibited, and the legislature had never contemplated the establishment of a law of libel; for it was not necessary that they should provide a remedy for an impossibility; and libel in Malta was utterly impossible. They suppressed, as it was said, all discussions, and published an ordinance most oppressive in its character, and calculated to excite suspicion, and to give ground for believing that there was something in the measures of the Government which required to be concealed. But then it was contended that they had admitted foreign publications, and this was called public discussion, and was said to have produced the same effect as if discussions on the measures of the Government had been carried on by the people of the island themselves; but such reasoning was at variance with experience, and one effect of this admission of foreign publications had been found highly impolitic. It had been found that, whereas public discussion was carried on by means of accusation and defence, those foreign publications were the works of the most violent agitators: the grossest exaggerations in consequence had been printed relative to the measures and conduct of the Government. And what was the consequence? The Government had felt it to be their duty to suppress all discussion. Even the Gazette the organ of the Government, excluded all discussion on the measures of the Administration. They prevented the publication of all censures upon their measures, and in consequence they excluded from the Gazette all defence. They had thought it unfair to admit a defence without admitting the accusation also. The consequences of this course were most disastrous, and the Government of this country had felt called upon to provide a remedy. Now, respecting the merits of the present system, he should not detain their Lordships by any discussion on the subject. He knew that the censorship was productive of the greatest evils, and he was therefore not disposed to argue when a remedy had been applied, whether such a law as had been established was or was not better than that which had previously existed. The censorship had been universally condemned, and was to be abolished, and the question was, what was to be the substitute? Now he would assume, that as long as the law admitted the principle of discussion, considerable improvement must be made in the progress of freedom. The noble and learned Lord had told them that liberty had retrograded in consequence of the law which had been established, but he was bound to dissent from that opinion, because, whatever might be the defects of the ordinance, when he looked to the previous state of Malta, he could not but feel that a sensible advance in improvement had taken place since the ordinance had been framed. The censorship being abolished, the question which the Government had to consider was, what law were they to establish? Now, it was not for him to discuss the merits of the English law on this subject, and he was unequal to such a task; but when it was contended that they ought to have transferred the English law of libel to Malta, he confessed he was utterly unable to comprehend how such a course could have been adopted. He knew not where the English law of libel was to be found, he knew of no statute which told what libel was or on what it depended. He knew that there were decisions of judges eminent for their learning and their knowledge of the law on this subject; but of late years something had superseded those decisions, and since the law of Mr. Fox, he believed the libel law had rested not on statutes, nor on the decisions of judges, but with the juries before whom cases of libel had been tried. The law of libel had become a question of sentiment, and had of late depended upon public feeling. He knew that there had been instances where the verdict of a jury had superseded the decision of the judges. The law of libel in this country was a law which pre-supposed a considerable degree of enlightenment amongst the people, and it was to be found in the common sense and honest and conscientious opinion of a jury. Now he would ask how, or in what shape, could that law be transferred to Malta? The noble and learned Lord had said, that the ordinance abolished juries.

Lord Brougham,

had only complained that it did not introduce them.

Lord Glenelg—

Well, that it did not introduce them. Now he was very far from contending, that because they could not have the complete machinery of the English law in Malta that therefore there should be no approximation of the laws of Malta to those of England. On the contrary, he was anxious that they should be assimilated; and the attention of the commissioners had been directed to the subject of the introduction of juries into the island. But after full and mature investigation and deliberation, they had come to the conclusion that Malta at present was not prepared for the introduction of that system; but they had also stated, that if it was resolved to establish that system, it might be tried first as an experiment. He thought his noble and learned Friend had confounded two separate and distinct questions. He admitted that if they could find in Malta the materials for a jury, it might have been better to adopt that system, but it was no answer to the arguments against the adoption of that system to tell him that they might have selected better machinery. The question was one entirely of experiment, and he could not understand why the recommendations of the commissioners should not have been brought into operation. The course then to be pursued, as it was not possible, from the want of machinery, to introduce the law of libel, was, if possible, to obtain from persons acquainted with the wishes and conditions of the people, and eminent in the law, a form of laws such as their general knowledge enabled them to frame, and adapted to the wants of the people, and such, at the same time, as would be intelligible to the legal practitioners and to the judges in Malta. Such were the reasons for the course which had been adopted, and such were the objects at which the Government had aimed. Accordingly commissioners had been appointed, and those commissioners, with their profound knowledge of the state of the country, and with the wishes of the people, and with an intimate knowledge of the laws, had applied themselves with the utmost diligence to the subject, and after most mature deliberation had presented a plan which had been recommended by the judges as an assimilation to the English law, and which was at the same time acceptable to the people. It was, in fact, acceptable to all classes, and in perfect accordance with their wishes, and calculated to promote their welfare and happiness. It had been said, that in this matter the wishes and feelings of the inhabitants and population of Malta ought not to have any weight. But could that argument be really urged with any hope of success? Small, indeed, was the population of Malta, as compared with the other colonies, but still the island of Malta had a numerous population—a population which well deserved the attention of the Government. In past times, in the intercourse with Malta, in speeches delivered in Parliament, and in official documents, the Maltese population had been recognised as being entitled to the good offices and attention of the British Government; that title had been recognised, and it was the duty of the Legislature to attend to the interests and aim at the improvement and enlightenment of that portion of the British colonial possessions. He repeated, that those rights had heretofore been admitted, and upon them he must again insist, because in the disquisitions which had taken place on this subject, it had been of late but too much the fashion to treat with contumely and contempt, the views, the feelings, and the wishes of the Maltese population. Malta, was not so treated in former times, nor at the period when this country gained possession of her. Look at the peculiar tenure under which Malta was now held by the British Crown. Malta was not a possession the result of a conquest, Malta, when it belonged to the French, resisted French usurpation, and appealed to this country for aid. Great Britain furnished auxiliaries, and with the Maltese had blockaded Valetta, and to those united forces the French surrendered, and then the Maltese people, by their own act and authority, voluntarily assented to the protection of Great Britain. In that light the rights and privileges of Malta had ever since been regarded, and it was peculiarly the duty of Great Britain to take care, that the principles of British freedom and the full benefits of British legislation should be brought into operation in that, even above all other dependencies of the British Crown. To this England was bound by her own declarations and promises made at the various periods to which he had already alluded. Therefore it was, that be attached great weight to the general application which had been made to the Government on the part of the Maltese population on this subject. His noble and learned Friend had entered at great length into the matters and points urged in the commentary attached to the ordinance, Now, it was very easy, in dealing with a document of that description—a document which entered into so many minute details—it was very easy for a person of the talent and eloquence of his noble and learned Friend to find various topics for animadversion, and numerous materials for humorous satire. Nay, some of the most eminent works on the subject, could scarcely escape determined assaults of the nature of those which his noble and learned Friend had directed against the commentary. He admitted, that commentary might be open to censure in various ways; it might push too far that delight which able minds felt in following out a subject to which their attention had been long and interestedly directed? but he called on his noble and learned Friend to say whether, in spite of all those applications—in spite of the feelings excited by the humour of the moment, or by transient invective, that commentary would not remain a monument of great ability, of deep investigation, and of powerful discrimination, and able development of the true principles which ought to guide legislation. Therefore, notwithstanding what had fallen from his noble and learned Friend, he must say, that the commentary had been most advantageous, not only to the people of Malta, but to those who practised, and the judges who administered the law in that island. The course which he had taken, he had felt would be beneficial to the whole population. He felt, that the ordinance would extinguish and crush the expression of public opinion which had previously existed, and would divest the population of the bondage under which they had previously laboured. It would require more legal knowledge than he possessed, to enter into a dispute with respect to many of the disquisitions upon which his noble and learned Friend had enlarged, but he could not help observing, that however vigorous his noble and learned Friend had been in his attack upon the disquisitions and commentary, he had treated the ordinance itself with great moderation and temper. He had expected, that his noble and learned Friend having exhausted so much of his talents and eloquence on the commentary, or appendix to the ordinance, after disporting, as he might call it, with the commissioners, would have made a powerful attack upon the ordinance itself. Not so, however; his noble and learned Friend having exhausted the powerful artillery and magazine of his eloquence upon that which seemed to him to be inadequate to the violence of the exertion, failed in his attack upon the ordinance itself, and had touched gently and lightly upon those particulars on which he (Lord Glenelg) had expected the severest censure. His noble and learned Friend had, on a preceding evening, stigmatised the ordinance as destructive and fatal, because under it a recent condemnation had taken place in Malta; but he had not much enlarged on that point on the present occasion. He felt it his duty to state with respect to the enactment of the ordinance under which that condemnation had taken place, that his noble and learned Friend ought to have examined that enactment, not merely by itself; but with reference to the state of Malta, and the existing feelings of the Maltese population. His noble and learned Friend had brought many charges against the ordinance—charges respecting its enactments against censures on private individuals and foreign sovereigns, and he had especially directed his eloquence against the enactment respecting irreligion. In that enactment he (Lord Glenelg) could not avoid avowing his full concurrence—for what did it do? Did it prohibit any discussion—did it prohibit examination into the truths of religion? No, but it prohibited the reviling and insulting the existing religion of the country, and he ventured to say, that no Protestant really desirous of the diffusion of his faith, would quarrel with a law which should forbid a man from trampling upon, reviling, or insulting, the established religion of a country under the toleration of which he was permitted to remain in the country. The people of Malta were peculiarly alive to any insult or calumny upon their religion, and as the only restriction in the enactment complained of, was, that there should be no reviling, insult, or calumny upon religion, he thought it was an enactment highly to be approved of. The restriction had been approved by the people of Malta themselves, and could it justly be denied them? Allusion had been made to the trial and condemnation which had taken place. That condemnation was for the publication of a sentence in a paper called the Harlequin, and the sentence was this—"that the Catholic was the most detestable religion under the sun." When it was considered, that this opinion was declared in the face of a population professing the Catholic faith, he (Lord Glenelg) could not but think, that it was a recommendation to the ordinance, that it secured the punishment of a man who so far forgot the principles of the religion of which he set himself up as the advocate, as to publish such a sentence against another religion, under the toleration of which he was permitted to remain in the island of Malta. Another enactment which had excited the attention of his noble and learned Friend, was that which related to censures on private individuals, and it had been thought hard that comments should be thus restricted. He would not compare the law of England, in this respect, as it at present stood, but he took it, that it was severe in cases of defamation of, or injury to, the characters of private individuals. In this country, with a base press, the people were accustomed to attacks, of which the population of Malta had no conception; but they had just cause to feel alarmed at the prospect before them, when, prior to the ordinance, the publishers of the Harlequin deliberately announced, that as soon as the liberty of the press was granted, they would institute a searching examination into, and report upon, every family in Malta. This created a degree of alarm which, with other considerations, fully justified the enactment. He was not aware that there remained any other topics upon which it was necessary for him to touch. He had stated all that had been done, and, relying upon the talent and authority of the commissioners, he thought he had been justified in at once acceding to their proposal, and directing the ordinance to take effect. It had been his purpose, the censorship of the press being abolished, to establish a law, which he considered to be adapted to the feelings and wishes of the people; that law had undergone repeated revisions, and had been, in its present state, approved, not only by the authorities, but also by all classes of the Maltese population. It was now carried into effect, and it was worthy of remark, that this discussion had not arisen from any complaint which had been made to either House of Parliament, but entirely and exclusively from observations arising out of the general question of the law of libel. But so far from any complaint against the ordinance from Malta, there was now in town a Maltese gentleman, who had acted as agent for the people of Malta, in the transaction which led to the commission, and who had brought petitions, one of which had already been presented to the other House of Parliament, and the other would shortly be presented to this House, against any alteration in the enactments of the ordinance, and especially of the enactment against censuring the religion of the island. The law, he repeated, was now in operation, and whatever might be its faults, it ought not to be regarded as final and permanent; it was open to alteration and amendment; its removal, however, would be productive of discontent. On these grounds, he should feel it his duty to oppose the motion of his noble and learned Friend.

Lord Brougham,

in explanation, observed, that he had stated that the proclamation had promised the abolition of the censorship, and to establish the freedom of the press. His noble friend seemed to suppose that he had insisted on the introduction into Malta of something better than the English law of libel, while he had said, "No; let us not have a law which is worse than the law of England." He owned he was not before aware that the Catholic was the established religion of Malta, for he saw that the same protection was given by the ordinance to every denomination of Christians. As to his not objecting to other parts of the ordinance, but only to the commentary, he begged to say, that his objections were made to the ordinance, the defence of which he had taken from the commentary.

The Bishop of Exeter

said, that in tending as he did to vote with the noble and learned Lord, he could assure their Lordships it was with astonishment he found himself about to address them at all, but some words had fallen both from the noble and learned Lord, and from the noble Lord behind him, which it was impossible for him, wearing the garb in which he appeared before their Lordships, to hear without notice. It was not his intention to animadvert on that part of the ordinance which related to religion; he left that to itself; he was only going to remark upon an assertion of a matter of fact, rather, he should say, an assertion in relation to the law, which had fallen from the noble and learned Lord—an assertion which, from the noble and learned Lord's high legal knowledge and authority, demanded peculiar attention. The noble and learned Lord had, in the course of his first speech, said, that he understood the Catholic religion was the established or dominant religion in Malta—he spoke of it, doubtfully, as only understanding the fact to be so. In his second speech the noble and learned Lord had spoken of it in a more decided manner as the established religion, and the noble Lord who had so recently served her Majesty as Secretary for the Colonies had gone still further, for he stated, on the high authority which belonged to his recent office, that the Catholic religion was the established religion in Malta. Nay, the noble Lord had even gone beyond that assertion, for speaking of a person who had offended against that religion by publishing what was considered to be a libel upon it, he had held it as an aggravation of the offence that the individual had forgotten, that it was under the toleration of the Roman Catholic religion that he was permitted to stay in that island. Now, he was greatly mistaken, and he called for correction if he was in error, he was utterly mistaken if in any part of the dominions of the Sovereign of England the Roman Catholic could be the established religion. It was contrary to the act of supremacy, it was contrary to the coronation oath, by which her Majesty had sworn to maintain the Protestant religion, as established by law in England, in Ireland, and in all the territories thereof. Was Malta one of those territories? if not, his observation of course would not apply. But if Malta was part of the territories of this realm, the Roman Catholic Religion could not be the established religion there. In saying this, he was alive to the peculiar circumstances of that island, and he was ready to admit, that its inhabitants had a very strong claim upon the utmost liberality in protecting the religion they professed. It was impossible for him not to remember with gratitude and pride the way in which Malta gave herself to be subject to the British Crown: when he said gave herself to be subject, he meant that she made no such bargain for the establishment of her religion, and no Government could have made any such bargain as one by which the fundamental laws of this kingdom should be violated, in order to receive them into the territories of the British Crown. It was with great satisfaction that he looked forward to an era of religious improvement in that island, not merely from the improved disposition of the Roman Catholic population, but still more from the blessing that island had recently received from the visit to it of a Queen who never visited any place without marking it with benefits,—who never left a place without causing the deepest feelings of regret and gratitude on the parts of all who had ever seen her. The noble act which that illustrious lady had performed in that island would, he hoped, form an era from which to date the diffusion of true religion—a diffusion not created by the bitterness of controversies, vituperating or insulting the religion of the majority of the people, but by the free course of that pure Christianity which needed only (with God's blessing) to be seen that it be loved and fostered.

The Marquess of Normanby

rejoiced, that he had given way to his noble Friend behind him (Lord Glenelg), because it would prevent him the necessity of troubling their Lordships at so great a length as otherwise he would have been required, and because it would enable him to take up the question where his noble Friend left off, namely, from the time his noble Friend quitted the office which he had now the honour to fill. He also rejoiced, that he had given to his noble Friend an opportunity of evincing the spirit and eloquence with which he would be able to defend his whole government with respect to Malta, whenever that question came on for discussion, and of showing the resolution with which he had attended to the recommendations of the Commissioners, and the satisfaction which had thereby been diffused throughout the whole island, where heretofore only discontent prevailed. With respect to the particular persons to whom allusion had been made, he meant the Chief Justice and the Attorney-General of Malta, of whom he wished to speak with every possible respect, he had seen those gentlemen, he had heard their story, and he had read their statement, and he concurred in the decision of his noble Friend, that their continuance in the enjoyment of their offices would not be advantageous to the Maltese community. That conclusion had not arisen from any doubt as to the qualification of those gentlemen to perform the duties of their offices, but from the fact, that they were overpaid servants of the public with very inadequate duties to perform. In reference to the question before the House, the noble and learned Lord had addressed their Lordships with great ability, and had, no doubt, attained his object in delivering that speech; and it was now for their Lordships to decide what interference they would think justiable on their part with the ordinance in question. The noble and learned Lord had treated with unmerited severity two able men who, if they had not altogether succeeded in bringing to perfection the details of a system of law to the principles of which there was no objection, had certainly endeavoured to make it adequate and applicable to the object for which it was designed. And, tried by that test, there would be found nothing in relation to the ordinance which might not be fairly left to the modification of the Government in all of its details. The noble and learned Lord had, on four different occasions, varied the terms of the motion which he had now brought under the notice of their Lordships. He had said, that he should that day call for the positive disallowance of the ordinance, The notice which he gave yesterday was for re-consideration. Now the motion was for an Address to the Crown, for the disallowance of the ordinance with a view to its re-construction. [Lord Brougham: Re-consideration.] Well, although his opinion on a point of order was of little authority, because he was comparatively unacquainted with the forms of the House, he should think that such a motion as that was entirely without parallel. He should think that a motion for an Address to the Crown either for the positive disallowance of an ordinance, or for its re-consideration, or for its re-construction, was one of a very unusual form. The noble and learned Lord had, on a former day, called his attention to an Italian newspaper containing a copy of the ordinance, and asked him whether it had or had not been disallowed. He told the noble and learned Lord that it had not, but that it was not, confirmed; and that, in deference to the opinions by which it was recommended, and the manner in which it was sent out by his noble Friend who preceded him, for consideration and adoption with certain modifications, which might be considered a proper, though the only proper qualification appended, and in deference to those local authorities who considered it applicable to the condition of Malta, he said be thought it was right, that her Majesty's Ministers should advise the Crown not to interfere until this law had been some time tried, and until the Governor had a further opportunity of reporting upon its operation and effects. The next day the noble and learned Lord came into the House with another Italian newspaper, and read an extract from a trial for libel, arid commented upon the concluding words of the libel for which the person tried had been convicted. The libel was in English, and the first and last words were copied into the Italian newspaper. The words on which the noble and learned Lord had commented were these:—"A system of religion which leaves the mind at a loss to decide whether it is better than no religion at all." That was the ground upon which the noble and learned Lord founded the motion, which now, for the reasons he had given, he had varied. Now the whole libel was printed in an English newspaper called the Harlequin, and ran as follows:— Without going into the merits of the proofs of the divine authority of Christianity, we may affirm fearlessly, that religion is necessary for mankind. Without the interposition of religion men cannot be governed: the race of human beings would perish in the disorganization and crime which would then follow; and a greater service cannot be done to the world than to devote time and talents to the support of religion. In the present case there can be no doubt, no uncertainty; and we defy the world to produce a more unexceptionable and pure faith than the Protestant faith as established in Great Britain. And though we may have no faith—and God knows our faith is not very strong—' Such were the words of this Protestant advocate, and he was sure the noble and learned Lord himself would not but feel opposed to such a state of feeling,— Though our faith is not very strong, we cannot but rejoice at the thoughts of there being set up in Malta the Christian religion against a system the most detestable that the world ever saw—a system which leaves the mind at a loss to determine whether it is better than no religion at all. The noble Lord had already addressed the House upon this subject, and he was sure, that all who were acquainted with Malta must be aware that if any of our possessions required a law to restrain publications of this description it was Malta. There were peculiar reasons why a publication of such a libel, at such a moment, should not take place, and he thought, that this publication having been made, fully justified the prosecution which had been authorised by the gallant general the governor of the island. There was an attempt to connect this subject with the act which the right rev. Prelate (the Bishop of Exeter) had justly characterised as an act of the greatest beneficence, and he was convinced, that there was no one person who would regret such a perversion of the motives which had actuated the illustrious lady in question more than he should, because it must be recollected, that this was in connection with the establishment of a Protestant Church, and it was highly improper that she who had acted with the purest feelings of beneficence, should be stated as having done so "against a system of religion the most detestable the world ever saw." With respect to the libels upon private character, he would fairly say, that there were words in the ordinance which were at this moment under the consideration of Government. Some of the words mentioned by the noble and learned Lord had struck himself as being too wide, and as being inapplicable to the purpose for which they were introduced—the word "censure," for instance. But he would not trust himself to comment upon the particular objections which might be made; it was to the principle only that it was necessary to allude under the peculiar circumstances in which the island of Malta was placed, not only in reference to religion, but to private character also; and he was told, that there was a degree of horror entertained among many of the private families of the island that they might be exposed to the system of persecution in their domestic comforts and their social arrangements from being subjected to that from which he regretted, that in this country, the public were not free. He was aware that no one had more strongly stated his objection to this abuse of the liberty of the press in England than the noble and learned Lord; but it was here a sort of second nature, and many of its abuses were tolerated from custom. In a spot, however, so confined as Malta, with a population so limited, with no great events in which the sense of private injury was lost, and where the newspaper had literally few resources without the publication of these unmerited insults to which the public were exposed, he thought that an ordinance of this nature was most essentially necessary. If the House, then, wished to act in accordance with the feelings of the people of Malta, and to save private character from scandal, and from systematic attacks, such as the publisher of this libel had threatened against every person in the island, they would adopt some such law as that which had been framed, although perhaps its very terms might not be adhered to. Having said thus much with a view to shorten the discussion, he should not trouble the House further than to say, that if this law were left to the consideration of her Majesty's Government, it would receive the same degree of attention which had hitherto been paid to it by him and by his colleagues; and while they adopted such a law as they should consider most wholesome and most applicable to the object in view, they would take care also not to undo what they had already done—not to re-establish a censorship of the press, which had been removed by this very ordinance, the effect of which would be to destroy and render valueless all those funds which had recently been invested in the establishment of new journals, and really to make that retrograde movement in legislation as what the noble and learned Lord had characterised the enactment of the present ordinance.

The Duke of Wellington

said, that being unwilling at all times to trouble their lordships with his observations, and more particularly upon questions in which the prerogative of the Crown was involved, he confessed that he should have been anxious so avoid touching on this subject at all, had it not been for some remarks which fell from the noble Baron (Lord Glenelg) in the course of what he stated. The noble and learned Lord had advanced in an unrivalled speech, his objections to this ordinance, and had moved for an address, to entreat her Majesty to permit the ordinance to be disallowed, for the purpose of having its different parts reconsidered. The noble marquess, the Secretary for the Colonies had stated, that when first this subject was brought forward by the noble and learned Lord, he had informed the House, that the ordinance was under consideration, and that it had not been rejected, nor had it been confirmed; but further, that the Governor, having been desired to carry it into execution, had been desired also to report upon it, and that her Majesty's Government would take the subject into consideration after having received the report of the Governor as to the working of the ordinance. The noble marquess had repeated the same statement just now, and said, that the subject was still under the consideration of the Government; that the ordinance, at present, was in course of execution in Malta, that the Governor would report upon it, and that it would be taken into consideration by her Majesty's Council when the report was received, and that they would act accordingly. Under these circumstances, he felt himself dispensed from the necessity of voting for the Address; and certainly, considering it as a matter entirely for her Majesty's Council, he should suppose that the proper course for the House to adopt would be, to request the noble and learned Lord, in consideration of what the noble Marquess had stated, to withdraw his motion. But he (the Duke of Wellington) was particularly anxious to address their Lordships upon what had fallen from the noble Baron. He was one of those who had always thought, that if there existed any part of her Majesty's dominions in which a free press was not necessary, Malta was that part. Our business there was to maintain a garrison, and a great naval station. Malta contained a population of 100,000 persons, for whom he entertained the highest respect and regard, being convinced that her Majesty had not better or more devoted subjects than they were. It was the duty of Government, and the duty of that House, as far as it could, to superintend the good government of the people of Malta. The good government, he said, of the people of Malta—a people who talked the Maltese language, and the Maltese language alone—a people of whom not one in 500 could read a line. Surely, of all the institutions of this country which were least necessary for a people of that description—and he declared his belief that that was a true description of the people of Malta—he ventured to assert a free press was that one institution. He did not dispute with the noble Lord on the third bench (Lord Glenelg), and above all, with the noble and learned Lord who had brought forward this motion, the advantage which might be derived here after by the population of Malta from a free press, but he believed that it would be admitted, that there were other institutions—that of education, for instance, and others of a like description, still more necessary for the happiness of the people, and which besides it would be requisite that they should receive, in order to render that of a free press useful to them hereafter—he said useful to them, much less advantageous, and therefore he contended, that they should receive the advantage of education before a free press was conferred upon them. He had stated what he believed to be the facts on a former occasion, when the question was under discussion. A certain liberal set of gentlemen, however, in this country, thought that a free press in Malta was exceedingly desirable, not for the sake of the advantage of Malta, but for the sake of the advantage to be produced on the people of the neighbouring coasts of France, of Spain, and of Italy. With respect to the advocacy of a free trade in Malta, he acquitted the noble Baron (Lord Glenelg)—nay, more, he acquitted all the noble Lords opposite of entertaining this question in their minds, at the present time; he believed that they had had enough of private war; he believed that they now saw the advantage which would have accrued to this country, as well as to other parts of the world, if they had never undertaken any private wars, either with those parts of the world, or with countries nearer home. He acquitted them of any such intentions at the present time, but he did not care at what time those intentions were entertained as to the objects of a free press, because he said, that all such objects were inconsistent with the interests and the honour of his country. They were inconsistent with the interests of this country. He maintained—and he had always maintained—that the interests of this country essentially depended, not only on maintaining peace for itself, but also on maintaining peace among other nations, and upon preventing any possible disturbance among other nations; and he said also, that the power of this country depended upon not exciting to insurrection and rebellion in other countries, while at the same time it was asserted by the government, that we were ostensibly, and in fact, at peace with those nations. These were the grounds on which he had always objected to a free press in Malta. First, because the intention of its enactment was not for Malta, but for the neighbouring coasts of France, Italy, and Spain; and next, if they were to have a free press in Malta, in God's name let it be a press in the Maltese language; and he would venture to recommend to the noble Marquess opposite, if he would listen for a moment to his recommendation, that if Government were about to amend the ordinance, he would have the kindness to insert a little paragraph, to enact that the press to come under the regulations of this ordinance must be in the Maltese language, and that he would also take care that the ordinance itself should be drawn up in the Maltese language. He had not, however, as yet performed the duty which had induced him to trouble their Lordships that evening. The noble Baron opposite had stated, that he considered a free press to be necessary in Malta, on account of the long period of misgovernment which he stated to have taken place in Malta, and of the sinecures which had been held by persons introduced from England. He must say, that he could not exactly see how this press was to save the people of Malta from the occurrence of such evils for the future; and there was one remark which he must make upon the latter part of the statement. If the island of Malta had for a long period of years required such a remedy as a free press, he begged to remind the noble Lord, that during a great part of that time, the island had been under the noble Baron's own government—at all events, he thought that the noble Lord had been in office under the governments of those who had misgoverned Malta for this long period of time—it was for a period of not less than twenty-five years, and a short time, about a year and a half, under himself (the Duke of Wellington), and when he had the misfortune of losing the confidence of the noble Lord; for whatever else it might have been it certainly was not on account of the misgovernment of Malta. He thought, therefore, that it was strange that while the noble Lord was in office supporting the Government which he now said had misgoverned the island, it had never occurred to the noble Lord, that before March last they ought to have established a free press in Malta. He begged leave to give a different account of that island. He had reason to know something of the island of Malta; he had had opportunities of trying its resources; and, instead of being an island which was misgoverned, he must say that, in his intercourse with Malta, he was astonished at the excellence of, its government, at its immense resources of all descriptions, and at the readiness with which those resources were furnished to his Majesty's forces and his army, to enable them to carry on the war against his enemies. He said this, because it was but justice to the Maltese, and to those noble and hon. persons who had governed Malta and this country. He said, then, that he had known Malta up to a period of little more than twenty years; and he really believed, that on the whole globe there was not a place of the same extent and of the same population which possessed one thousandth part of its riches, or its resources of all descriptions. At least, when the noble Lord talked of the abuses of the government of Malta, he ought to remember the period of its prosperity, and ought to have stated something of that prosperity; and he was sure that the noble Lord would, with his usual candour, forgive him for directing the attention of the House to such facts. He thought; in reference to the question then before the House, that it was where it ought to be, in the hands of the Government. If they thought proper to establish a free press in Malta, he could not help it; but he had no desire to press the motion before the House, or to do anything to interfere with them. He entreated them, however, to remember the whole state of the island of Malta, and of that garrison of great name and station. They had great duties to perform to hold the place, and it was the duty of the Government to keep possession of Malta according to the laws, and to promote its prosperity by every means in their power; and he said, that if a free press were required to promote its happiness and prosperity, let it be a Maltese free press, and not an English or an Italian press.

The Earl of Ripon

said, that as the noble Baron and the noble Marquess opposite lectured him for his intended motion, he would ask them, whether they knew what that motion was? For, from what fell from those noble Lords, he thought that they had quite mistaken the nature of that motion; whether it was injudicious or not, it would be quite time enough for them to decide when they had heard his statement in its support. As to the present motion, it had been so exhausted by the discussion that had taken place—all the objections to the ordinance had been so well stated by his noble and learned Friend—all that could be said for it had been so well said by the noble Lord the late Secretary for the Colonies, and all the main objections had been admitted by the noble Marquess opposite, that it would be preposterous for him to make any further remarks. He thought that great attention was due to the important observations which had been made by his noble Friend as to the situation of Malta, and to the difficulty of applying to such an island all the principles belonging to that free system of which we were justly proud, and which prevailed in this country. He wished, however, to say one word as to the doctrine which had been advanced by the noble Lord the late Secretary of State, and which seemed to be founded on a statement of the commissioners as to the mal-administration of the government of Malta. He thought that the accusation had escaped from those Gentlemen in the hurry of composition. In page 41 of their report they stated this, with reference to the removal of the legal officers "The island was not governed before the appointment of the present governor with the requisite regard to the reasonable wishes of the people." This statement of the two Gentlemen who acted as commissioners was not warranted by the facts. If the serious imputation was made against the local administration of the island of Malta, that nothing had been done with a requisite regard to the reasonable wishes of the people, he would take upon himself peremptorily to deny its accuracy. He need not deny it for himself; but he did it on behalf of the late governor, Sir Frederick Ponsonby—as excellent a man as ever lived, an admirable governor, a man of political principles which in that day were deeed liberal, and who had acted up to the principles which he professed; and it was too much for the two gentlemen who were sent out as commissioners to heap censure on one who, unfortunately for Malta, unfortunately for this country, and unfortunately for himself, could no longer defend himself, because he no longer lived.

Lord Brougham,

in reply, said, that he also disagreed with the censure which the noble Earl had pointed out, and referred to the acts of the different governors of late years, as having shown a contrary course of conduct. The noble Marquess had charged him with having altered the form of his motion; but he could see no real difference between the four forms of notice which he had given, all of which were intended for the reconsideration of the ordinance. The noble Baron had said, that he had flinched from his duty in not commenting upon the ordinance; but his whole address was directed to the words of the ordinance, and he had only used the notes when commenting on the text, or as showing that his own views of the interpretation to be put upon the ordinance corresponded with those of the commissioners. He was delighted, however, that the ordinance was to under go the reconsideration of the Government, and he would therefore repeat his main objection that it did not go far enough in one direction, whilst it went too far in another. He said let there be an intelligible description of one kind of libels—let there be a punishment for anything that slandered, or defamed, or turned a person into ridicule—for it was a libel to expose a man by ribaldry to ridicule. This was not done by the present ordinance, and there was no public prosecutor to conduct the prosecutions that might be necessary under it. The question of the ordinance, as it affected religion, was a very difficult one. In common with the right rev. Prelate, he did not believe, that there was any part of her Majesty's dominions in which the Catholic religion could he established as a dominant religion, as it was in France prior to the edict of Nantes. The noble Baron had said, that the very religion was slandered, under which the person who slandered it, was tolerated and suffered to remain in the island. But was the Catholic religion so established as the dominant religion in any part of her Majesty's dominions, that the people professing other creeds could be turned out as they were in France? He ventured to say, that such was not the law, and that if this doctrine were attempted to be set up, it would fail. But in one sense undoubtedly the Catholic religion was the established religion in Malta—it was the religion of the great majority of the people. Under the ordinance, however, all forms of Christianity were equally protected,—the Protestant as well as the Catholic; and it was as much a libel to ridicule or defame the Unitarian as the Presbyterian faith. He admitted, however, that this was a delicate and difficult subject to deal with in debate, when expressions calculated to do mischief might inadvertently escape. He admired the tolerant and liberal spirit in which that part of the ordinance which related to this subject had its origin; but he thought, that there would be a difficulty in carrying it out. He trusted, that the ordinance would prosper under the consideration of her Majesty's Government, and that they would leave in it much that was good, and as little that was bad as they possibly could. There was much truth, however, in what had been stated by the noble Lord, that this was the first time, that there had been any attempt to make a code of the libel laws. It was easy to pick holes in the first step, but it was not so easy to take the first step itself; and he gave the full benefit of that observation to the commissioners, who had succeeded moderately, though only moderately in their first attempt, which it was impossible could have been absolutely perfect. Under all the circumstances, therefore, he would acquiesce in the suggestion of the noble Duke, and leave the whole matter for the promised consideration of the Government.

The Marquess of Lansdowne

had no desire to make a speech, but as the noble and learned Lord had, in the course of his address to their Lordships, said, that no provision was made to meet the case of ridicule or personal reviling, he would refer the noble and learned Lord to the code; and he would find at page 76 those offences in express terms referred to. The offences there enumerated, were—"any writing censuring any person in any private capacity, or reviling, ridiculing, or otherwise insulting any person in any civil capacity whatever." He therefore did submit, whatever amendment this code might require in other respects, that in this very important particular it required no amendment at all. The noble and learned Lord had likewise alluded to the want of a public prosecutor in cases of libel; but this case also was provided for by the code, a public prosecutor being appointed to conduct the suits constituted under this ordinance, and to carry the law into effect.

Motion withdrawn.

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