Lords Sitting of 5 July 1844

MINUTES.
BILLS. Public.—1a. Bank of England Charter; Prisons (Scotland); Linen, etc. Manufactures (Ireland).
Private.—1a. Lord Lovat's Estate.
2a. North Wales Mineral Railway; Morton's Estate.
Reported.—London and South Western Railway; Newport (Monmouth) Dock.
3a. and passed:—Taff Vale Railway.
PETITIONS PRESENTED. By Duke of Wellington, from Highclerc, and 4 other places, for Protection to Agriculture; and from Warlingham, against any Alteration in the present Corn Laws.

STATE OF THE NAVY.
The Earl of Mintorose to put to the noble Lord at the head of the Admiralty the question of which he had given notice, as to the intentions of the Government with respect to sending any force to the coast of Morocco or elsewhere, or what measures the Government had in contemplation on that
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subject. He felt the extreme importance of the contest which apparently was likely to arise in the empire of Morocco. He understood that our mediation had been, or was likely to be, declined, and he must say that however deeply he regretted this, he was not at all surprised at it, because he did not think that we had placed ourselves in such a position as to afford to a weaker state that assurance of assistance and support which it might have felt, if it had seen any symptoms of preparation on the part of this country. Their Lordships were aware that some important points of our possessions were dependent almost entirely for their supplies upon the empire of Morocco, and it could not be a matter of indifference to that House that the independence of that state should be put in any hazard. There were, moreover, positions on that coast which it would be most injurious and dangerous for the interests of this country if they should be transferred to any other hands, and there were also points not immediately forming a portion of the territory of Morocco, which in the event of a war between France and Spain and Morocco, would be placed in considerable jeopardy,—he meant the island of Majorca and the other Balearic Islands. All those of their Lordships who had paid attention to this subject must feel the same anxiety that he did, that nothing should occur to endanger our amicable relations with the empire of Morocco, or its entire independence from the control of any Foreign Powers. He should have felt little uneasiness if he had perceived that Her Majesty's Government had placed themselves in a position to be ready to second the negotiations with that display of strength which, on the highest authority among them, it was so desirable for this state to be always able to show—he repeated that he would have had less apprehension if he had found anywhere the appearance that Her Majesty's Government had retained the means of sending forth a sufficient force to strengthen the negotiations; but, unhappily, he found the naval force of this country so reduced, that he declared he knew not where the noble Lord could turn to find such a reinforcement, for our naval force in those seas as would be at all calculated to produce any impression. This was not his own opinion; he was anxious to deliver to their Lordships, in stating the necessity that our negotiations should be backed by a respectable force. He should quote the highest authority in that House

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on the subject, from the strictures that had been addressed to himself (Lord Minto) in one of the numerous attacks which he had so frequently experienced when he held office. It was the authority of the noble Duke opposite, who had always been the most fair, generous, and candid of all the assailants whom he had had to encounter. In a discussion on our commercial relations which had taken place in that House, towards the close of the Session of 1838, the noble Duke said—
"Now, he confessed that he could not view the state of our commercial relations, and of our position in the world generally, in connexion with these commercial pursuits, with any degree of unmixed satisfaction. On the contrary, he did deplore the state in which they found themselves placed in many parts of the world, particularly as had been described in the course of the evening by his noble Friend (Lord Strangford). What he attributed that state of our commercial relations to in a great degree was, the extreme weakness and tottering condition of our naval establishments. He did not now mean to complain of the distribution of our naval establishments; though at the same time, he by no means meant to unsay what he had said in respect to the expeditions to Spain, which he could not approve of; but he repeated his expression that he considered our naval establishments to be in too weak and tottering a condition to answer the purpose for which they were intended, which was to give protection to the commercial interest of the country in all parts of the world; for the commerce of England did extend to all parts of the world."
And afterwards, when our interference and good offices were exercised in the case of the misunderstanding between France and Mexico, the noble Duke asked—
"When the Minister who was concerned in carrying on the negotiations on the part of the French Government with respect to the claim for 120,000 l., the subject of this war, placed himself for protection on board one of the vessels composing the French fleet, in the harbour of Santo Sacrificio, how could the representative of the English Crown upon the spot treat with the French Minister at all, if he had not some force at his back? He did not at all wish to threaten, but what he desired was, to have amicable intercourse with the representative of France. But to have that he must be on an equal footing with him."
Now, at the time to which the noble Duke then referred, we had eighteen sail-of-the-line in commission, and a large force in every part of the world. There was no station on which we had not a force adequate to all the demands which could arise,
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and at home we had a reserved force of four or five ships of the line, disposable for any service. What was the state of the case now? Not only were there questions pending with respect to Morocco, but also that question with America relating to the Oregon boundaries, and with respect to Texas, and other questions, in which the interests of this country were materially concerned. All these, one might think, might suggest the necessity of having a respectable naval force at our command. But how stood the case? He was sure their Lordships were not prepared to hear what he was about to state, as to the amount of the naval force of this country at the present moment. The present Government had succeeded to a fleet of six-and-twenty ships-of-the-line, a force more than adequate to the then altered circumstances of the country. A reduction was then made to a degree that had never been known or dreamt of. At the present moment there was not in commission, he believed, one ship-of-the-line, other than those employed to bear the flags of the admirals commanding. There might, perhaps, be one. We had in all nine ships-of-the-line in commission, of which there were two in the East Indies, at a distance; one in the West Indies, also at a distance; three guard-ships, bearing the flags of the port-admirals in the different ports of this country. Then there was in the Mediterranean fleet one ship-of-the-line, and one flag ship, and finally there was the Albion, which had been recently employed—he did not know whether she now was—as the flag ship at Cork. Here then, we had for the Navy of England nine ships-of-the line, and this at a time when none of their Lordships would deny that the state of affairs abroad was such as necessarily to cause the greatest anxiety. He did not say he had any immediate fear of war, but there were questions pending, the settlement of which depended upon the respect and estimation in which this country was held; and that respect and estimation would be governed in no small degree by the strength which we were enabled to exhibit. He knew not what answer would be given to his questions. He hoped his noble Friend would be able to say that he had resources at command of which he (Lord Minto) knew nothing, and that the Government were about to send a force to the Mediterranean which would more than balance the French fleet—that we were

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not to leave the Mediterranean entirely to France, but that we were still to retain some power there. It would be no answer to him to say that there were demands for the employment of Her Majesty's ships in other parts of the world, and that there was great pressure on the Admiralty—he had never seen the day when there could be the slightest difficulty in meeting any demands that could arise; and, as he had said, when the attacks were directed agsinst him, if there was any defect, it was the fault of the individual presiding over the Admiralty. The noble Lord ought to show that there was a British fleet prepared, whenever it should be required. Nor could the noble Lord tell them that though the number of ships of the line was reduced, there was an increase in the number of vessels of smaller rates: for how stood the facts? On looking at the amount of the force at the two periods, he found that at the former date it was larger than at present, and therefore the ships of the line, of which the country had been relieved, were not counterbalanced by an extraordinary equipment of vessels of another sort. So that his noble Friend could not say that he had felt called on to reduce the number of ships of the line in consequence of the demand on the Admiralty for an increased number of smaller vessels. Let it be supposed that it should be thought necessary to support our negotiations in the manner described by the noble Duke, and that a respectable force should be sent to the Mediterranean, in order that the British flag should be supported, where was that force to be found? From three flag-ships and three guard-ships? He besought their Lordships to remember all that used to be said of the necessity of having a reserve at home and of the danger of leaving our shores at home unprotected save by four or five guard ships. He was sure that this increasing reduction of our naval force was not called for by the country. On the contrary, he believed that the country saw with great regret the Mediterranean without a British fleet. The circumstances under which this reduction occurred were peculiarly unfortunate. In addition to those questions he had referred to as existing on the other side of the Atlantic, and those which were arising on the shores of the Mediterranean, there had been, as he was informed, a considerable increase of the French fleet in commission; and he for one did not see without some degree of anxiety
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that the command of that portion of the fleet which was destined for Morocco had been given to the Prince de Joinville. He would refrain from saying anything of the character or conduct of that Prince, but with the knowledge their Lordships had of the opinions, sentiments, and feelings which had been recently expressed in that country, he felt assured that they would participate in the regret which he felt that the Prince should have been selected for such a service. In conclusion he begged to ask whether it was the intention of the Government to adopt any measures for sending to Morocco, or elsewhere such a naval force as would be sufficient for the protection of British interests?
The Earl of Haddingtonsaid, their Lordships had heard the question of the noble Earl, and the speech with which he had thought it prudent and becoming to preface it. The practice of making long speeches, and of entering into general discussion when only a particular question was put, was a very inconvenient one, and was one to which the noble Earl was somewhat prone. It was not only an inconvenient practice, but also an unfair one, because if he had been informed that the noble Earl was going to put a question as to the distribution of the whole naval force of the country, he would have thought it necessary to refresh his memory a little as to the details. He had never been more surprised in his life than at the long speech de omnibus rebus, which had fallen from the noble Earl; and as the noble Earl in some of his remarks had diverged into diplomacy, he thought he had some reason to complain, that he had not waited for the arrival of the noble Earl the Secretary for Foreign Affairs before entering into them. He was not going to answer the speech of the noble Earl, but his question, which bore more particularly on the noble Earl's charge, that there was only one ship-of-the-line left in the Mediterranean. At the time that resolution was taken, there was not the slightest appearance of anything requiring a British force in that part of the world, and it formed no part of the policy of the British Government that because the French had an exercising squadron in that part of the world, we were, therefore to have a countervailing one. The French had not themselves at that time the least expectation that they would be called upon to send a force to the coast of Morocco. But the noble Earl should also please to remember that the Mediterranean was not a distant

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sea—that it was not a difficult thing to send vessels there—that the Government had sent such a force there as they thought the circumstances required—and that, if it was necessary to add to it, it was in their power to do so. With respect to the "elsewhere" alluded to in the noble Earl's question, we had such a force on every station as, after the most minute deliberation and attention to British interests all over the world, the Government had thought it right and proper to send there. The noble Earl had alluded to the Oregon question and the Pacific. To the noble Earl's remarks on these points he made the same reply. They had also increased the force on the coast of Africa. The noble Earl might shake his head, but there was no reason for his doing so. It was the intention of Her Majesty's Government still further to strengthen the force on the coast of Africa. What had prevented them hitherto from carrying that intention into effect was the necessity Her Majesty's Government had been placed under of having a force in Ireland—a necessity which he hoped would be temporary only. Some vessels had been sent, and more would be sent very shortly. He would only add, that he thought the desponding speech the noble Earl had made was not a very prudent one to come from a Peer in his place in Parliament. There could be no doubt that if circumstances should call for the application of an adequate naval force in any part of the world, the means would not be wanting, and that the time would not be long before the required force would be ready. At the same time, with regard to Morocco, there was every reason to hope, that the issue which they all so much deprecated would not take place.
The Earl of Mintosaid, he was far from being satisfied with the answer he had received. He was told that the Government would do what they thought proper. He knew they could only do what was possible; and out of nine ships of the line, three being necessary here, and three necessary in the East and West Indies, and another necessarily in the Pacific, it was impossible to extract such a fleet as would be adequate to support the credit and character of the British flag.

LAW OF LIBEL ACT AMENDMENT BILL.
Order of the Day for the third reading read.
Lord Campbellsaid, he had hoped that it might not have been necessary for him
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to trouble their Lordships with any further observations on the provisions of this Bill, beyond the short statement which he had made when he first laid it on the Table of the House, as it seemed to him to follow inevitably from the principles which their Lordships had adopted and acted upon in the last Session of Parliament; but having learned, to his surprise and mortification, that it was to be opposed in quarters entitled to the highest possible respect, he was called upon, in the discharge of his duty, now to explain and defend it. The object of the present Bill was to obviate what he considered a gross defect in the conduct of public prosecutions for seditious libels and seditious words. Last Session Parliament dealt with the subject of defamation, or the injury to private character. An Act was then passed which had the double object of better guarding private character from slander, and protecting the respectable part of the press from frivolous and vexatious prosecutions and actions. He was happy to be able to assure their Lordships that, from all the information he had received, that Act had worked well. By its stringent enactments the trade in slander had been very much checked, and more than one infamous weekly journal had dropped; while prosecutions and actions against respectable newspapers, with a view to costs, had become much less frequent. The main Amendment of the law introduced by that Bill was, that on the trial of a prosecution for libel, evidence of the truth of the charge might be received as an ingredient for the consideration of the jury in determining on the guilt or innocence of the defendant. On the fallacious ground that libel is an offence merely because it may lead to a breach of the peace, the truth was excluded as immaterial, and the maxim arose "the more true the more libellous," because a person is more likely to resent what he knows to be true, and thinks may be believed, than pure invention, which may be treated with mere contempt. But their Lordships came to the conclusion that defamation is to be punished criminally, like theft, for the protection of a right which a citizen in a well regulated state is entitled to enjoy—his reputation, and that without an inquiry into the truth of the charge it was utterly impossible to determine how far this right has been evaded. Their Lordships were shocked by the injustice of trying and

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punishing a man for an alleged libel, without considering whether he had merely stated what was true, with a view to the public good, or had invented a calumny to gratify malignity or for pecuniary extortion. Great inconveniences were pointed out which might arise from the change in the law; but these were considered as nothing compared with the injustice and mischiefs of the former system, and scandal brought upon the administration of justice by adhering to it. Accordingly, now, in every prosecution for defamation the defendant might plead that the charge was true, and that he published it for the public good; and if he made out both propositions he was entitled to a verdict. But Government prosecutions for seditious libels or words were allowed to remain subject to the old rule, by which truth was excluded, both on the trial and after conviction, in mitigation of punishment. This defect in the measure had been very forcibly pointed out by his noble and learned Friend in his letter to Sir James Graham, and he (Lord Campbell) very frankly acknowledged it. But he had thought it might be more prudent, having got an acknowledgment of the great principle of admitting evidence of truth in prosecutions for libel, to confine the application of it in the first instance to cases of private defamation, considering that it would without difficulty be extended to public prosecutions for seditious libels or words. With respect to these, justice equally required that the truth should be admitted, and fortunately there was less risk of the principle leading to hardship or inconvenience. It would surely be admitted that the object of every criminal trial was to ascertain whether the accused be guilty or innocent. When the charge was publishing a seditious libel, his guilt or innocence must depend upon motive and tendency. Whether he was actuated by malice, and whether the publication was likely to do mischief, by inciting to insurrection—or to confer a benefit by the correction of a public abuse. It must be observed that this Bill applied only where there were facts alleged in the supposed libel; and where there were facts alleged, how was it possible to get at motive or tendency, without the opportunity of inquiring whether they were true or false? Consider the libel for which Sir Arthur Pigot, when Attorney General, filed an ex officio information in the year 1806—for
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stating in a newspaper that troops had been sent to sea in transports which were unseaworthy. Would it have been immaterial whether he invented a falsehood to stir up mutiny in the army, or only stated what he could prove to be true with a view to the safety of our brave defenders in arms? Suppose there were a prosecution for stating instances of excessive, and cruel, and unjustifiable flogging in the army. Would it make no difference in the guilt or the punishment whether the facts alleged were true or false? Or suppose the charge were, that from some culpable mismanagement in the commissariat, the provisions supplied to an army in the field were defective and of bad quality. Again, suppose (what is most unlikely in these days) the charge in the libel to be, that Her Majesty' Ministers had received bribes from a Foreign Government, If the defendant were to say "I am ready to prove the charge," would you refuse the evidence, and at once find him guilty and punish him? But let one other case be put, not so very improbable. Suppose a paragraph were to appear alleging that Her Majesty's Government, at the instigation of Foreign Sovereigns, had been in the habit of sanctioning the opening of letters at the Post Office, re-sealing them, and forwarding them to their destination, and that an information were filed against the proprietor of the newspaper charging this to be a seditious libel. Prima facie the information could, undoubtedly, be maintained, for it would be imputing to Her Majesty's Ministers a very grave offence, which I now by no means say, or wish to insinuate, that they have committed. But would it not be monstrous to prevent the defendant from attempting to show that what he alleged is true, and that his only object was to put an end to a practice which he considered illegal, discreditable, and mischievous? As the law now stands, however strong his proofs might be, he could not defend himself by adducing them before the jury, nor would he be permitted to avail himself of these facts by affidavit when he comes to receive sentence. This rule is unjust to the defendant, for he is punished when he may be innocent, and it is unjust to the public, as it must have a tendency to fetter free discussion, and prevent the disclosure of facts in which the public are interested. Then, as laid down by Mr. Starkie, the Criminal Law Commissioner, if you exclude evi-

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dence of the truth, the Court is not justified in considering the statements to be false, and is bound to give a sentence as if the charge were true, so that for the offence of inventing and propagating a wicked calumny the law of England provides no punishment. This exclusion of evidence of the truth is against all analogy; for the general practice is to admit evidence of the whole chain of circumstances connected with the act charged as criminal. Thus upon an indictment for an assault, you hear everything that can be considered provocation; and by way of mitigation, you even admit proof of a libel by the prosecutor on the defendant; although upon an indictment for a libel, you would not receive evidence of the provocation that the facts stated are correctly true. See the inconsistency and anomaly which must arise, if you now refuse to extend the same rule to public as to private prosecutions. As the law stands, if a Minister of the Crown were to direct his own solicitor to prefer an indictment for a charge of misconduct upon him, the truth might be pleaded and proved. Is it to be permitted that for the very same paragraph an ex officio information might be filed, and there that the truth should be excluded? Consider the scandal which may thus be brought upon the administration of justice, and beware of the sympathy which may be created even in favour of a guilty man, by enabling him plausibly to boast how he could prove the truth were he permitted to do so, and to inveigh against the law, although he may not suffer from its injustice. I am aware there is one very weighty authority not altogether in my favour—the Lord Chief Justice of the Court of Queen's Bench—the zealous, steady, and enlightened friend of the liberties of his country. When examined last Session of Parliament before the Committee on the Law of Libel, he certainly intimated an opinion that evidence of truth ought not to be generally admitted even in mitigation, and that the present rules do not generally operate unjustly; and he strongly objected to a right to challenge the character of a man whom it is wished to injure. But I am sure I shall not displease my noble and learned Friend by manfully combating his opinion. In expressing these sentiments, of all the witnesses who were examined, he stood alone. Lord Brougham in his evidence,
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when speaking of excluding evidence of truth, says,
"I hold that to be the greatest absurdity in the whole Libel Law, or almost in any branch of the law. For, whereas, the utmost that can be said against making the truth evidence that it is not in all cases a decisive test, yet if it is only an unilateral test, surely it is no reason for excluding so material a circumstance from the knowledge of the Court and Jury."
I cannot refrain, likewise, from availing myself of the testimony of the late noble and learned Chief Baron of the Exchequer, who said,
"With respect to public prosecutions, it seems to me to be contrary to common sense to say that a man is justly liable to the same punishment, whether what he publishes be true or false. The publication may be injurious whether true or false; but it must be always more injurious if it be false, and, at all events, less excuseable if it be false."
I have likewise the authority of my noble and learned Friend who lately held the Great Seal (Lord Cottenham). When Solicitor General, and a Member of the other House, he there delivered a very powerful speech in favour of admitting evidence of the truth in all cases, and I have no reason to suppose that he has changed his opinion. The great majority of the puisne Judges, I admit, are against me, but they were equally strong against the Bill of last year, which Parliament adopted; and with all respect for those venerable magistrates, whom I so much love and honour, I must be permitted to say that I would rather inquire of them what the law is, than what it ought to be. I cannot forget that, with one exception, they strongly disapproved of the Prisoner's Counsel Bill, which wiped off a great stain from our criminal procedure: and they zealously as well as conscientiously disapproved of the mitigation of the criminal code. For example, my noble and learned Friend the Chief Justice may remember that when the Bill for taking away capital punishment from forgery was passing, they foretold that the change would be attended with effects the most calamitous, whereas it has only led to certainty of conviction, and a diminution of the offence. But I must remind your Lordships that the exclusion of the truth on public prosecutions is rather what is to be denominated judge-made law, and was not finally settled as law till the opinion of the Judges was taken by this House on the passing of

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Mr. Fox's Libel Bill in the year 1792. In the reign of Charles II., Pemberton, a great Judge, admitted evidence of the truth of an allegation that Sir Edmonds bury Godfrey had murdered himself. In "Rex v. Fuller," in 1702, on an information by the Attorney General for a public libel, Chief Justice Holt, addressing the defendant said—
"Can you make it appear that the publications are true? You might have had subpœnas for your witnesses against this day. If you take upon you to write such things as you are charged with, it lies on you to prove it at your peril. If you have any witnesses, I will hear them. If you have any witnesses produce them."
The King v. Franklin, in 1731, before Chief Justice Raymond, for publishing the Craftsman, is the first instance of the truth being rejected; but even so late as the year 1777, in Horne Tooke's case, before Lord Mansfield, evidence was admitted of the truth of the charge contained in the libel; upon the whole, I cannot bring myself to believe that after you agreed to the Bill of last year, this Bill can be in jeopardy, for it is equally called for by justice, and is less liable to objection. In prosecutions for private defamation, to admit the truth is certainly liable to the objection that the character of a private individual may be thus wantonly drawn into discussion; but prosecutions for seditious libels can hardly be conceived at all to enter into the concerns of private life. Still, if some inconvenience may be pointed out, you must compare this with the flagrant injustice and many mischiefs of the existing system, and your choice cannot remain doubtful. I ought to mention that the Bill contains one exception which is quite consistent with its principle, and which I am sure your Lordships will approve of. Our constitution says the Sovereign can do no wrong. For matters of State, the Ministers, by whose advice the Sovereign acts, are responsible. In private life the law decorously supposes that no wrong can be committed, and affords no remedy. Therefore, if there ever should be a libel touching the person of the Sovereign, no allegation or proof of its truth can be admitted. I have only, now, a short explanation to give with respect to the manner in which the evidence is to be admitted. In prosecutions for private defamation, where a specific charge is made, which is the gravamen
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of the offence, the plan adopted was to require a plea alleging the truth of the charge, and that it was published for the public good. But seditious libels may consist of such a mixture of fact, comment, and incentives to insurrection, that it would often be exceedingly difficult to have any specific issue on truth or falsehood; and the plan is adopted of requiring notice to be given by the defendant, and then of permitting evidence to be given of the truth, under the general issue of not guilty, as an ingredient for the consideration of the jury. Such evidence will not be conclusive; but, on considering it, the jury will say whether upon the whole the publication is criminal or excusable. Though the facts be proved to their satisfaction, they may still think that the defendant was actuated by malicious motives, and intended to stir up sedition, in which case they will still find him guilty; but if the facts he alleges are true, however criminatory, and the jury are of opinion that the comments he makes upon them, instead of being seditious, are for the benefit of the public, they will acquit him; and, my Lords, ought he not to be acquitted? The learned Judges themselves, who doubt or disapprove of the principle, admit that there is no better mode in which the principle can be carried into effect. The question, therefore, is, whether you will not, by adopting this Bill, complete the reform of prosecution for libel which you have so auspiciously begun—or leave the law in its present imperfect and incongruous state. Public prosecutions in this island may not at present attract much notice; but the system of oppressive Government informations may any day be revived, and Englishmen ought to enjoy their rights by law, and not merely by the forbearance of the public prosecutor. His Lordship concluded by moving, that the Bill be now read a third time.
The Lord Chancellor: My Lords, although I entertain a very great respect for the opinion of my noble and learned Friend who has brought forward this Bill, and for the opinion of those who concur with him, still, after the best consideration I have been able to give to the measure I cannot consider it an improvement of the existing law; on the contrary, I think that if the Bill should pass, it will lead to great practical evils. My noble and learned friend, in his ad-

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dress to your Lordships, seems to have wished your Lordships to believe, that by the law, as it has recently stood, the truth might have been given in justification of libels of this description. My Lords, it is sufficient for me to refer your Lordships upon this point to a fact which my noble and learned Friend has himself stated—namely, that in the opinion of the judges of England, who were examined in your Lordships' House, such was not the law of England, and in so stating their opinion, they referred not merely to the law as it stood at that moment, but as the law had been at an anterior period. I stand, therefore, my Lords, upon clear ground when I state that the truth cannot be given in justification in a case of a prosecution for libel. In order to show to your Lordships the nature of my objections to this Bill, I next remind your Lordships of the course of proceeding in prosecutions for libel, in order to explain the specific grounds upon which I object to it. If a party brings an action for damages for a libel, the defendant may plead the truth of the libel in justification, and the judge, when he addresses the jury, will state his opinion whether the publication be a libel, and that a justification had been put upon the record; evidence would be given in support of the justification, and the judge would stale to the jury his opinion whether the justification was made out; and if it was so, he would tell them they were bound to find a verdict for the defendant. The functions of the judge and the jury were here perfectly distinct; there nothing was left to the jury, being guided by the opinion of the judge as to the law. So much for the action for damages. If a prosecution be instituted by a private individual, the object of the Bill of his noble and learned Friend was, that a similar justification might be put in issue, and that the party might plead that it was for the public benefit that the libel was published. The judge would then leave the fact to the jury, whether it was proved that it was for the public benefit that the alleged libel was published, and if, in their opinion, it was so, then it would be their duty to find a verdict for the defendant. In that case the duty and offices of judge and jury would be distinct. Now, my noble and learned Friend should have framed a measure of the same nature for cases in which the prosecutor is the Attorney General, or where the prosecution is carried on under the direction of the Attorney-General,
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for a seditious libel or for seditious language. But my noble and learned Friend has not pursued that course; if he had, the duty and the functions of judge and jury would have been kept equally distinct. But the objects of such prosecutions are libels calculated to disturb the public peace, to excite disorder and disaffection in the country; and it is no defence in such cases to say that the libels are true, for the effect may be as effectually produced by such libels as if the whole were founded in falsehood. And mark the consequences of the extraordinary course which my noble and learned Friend has adopted in this Bill. If there is any allegation of facts in the libel, it is to be open to the defendant—to do what? Why, to give evidence that the alleged facts are true, and thus put them in issue on the trial. And what will be the result? Why, if any one fact put in issue, out of scores of libellous and calumnious charges, be proved, it must be put to the jury to find a verdict of "guilty" or "not guilty;" and the jury, according to their caprice or fancy, without the slightest chart to guide them, without any rule of law to regulate their judgment, will pronounce such a verdict as may happen to suit their views. It will be the duty of the judge to say, "If you believe the evidence, this is a seditious libel; a justification is put upon the record; there is a fact in issue; evidence has been given to prove that fact; you have heard the evidence on both sides upon the justification upon the record, and it is for you to say whether the defendant is guilty or not guilty." I think that this would be a most extraordinary state of the law; that where a single fact is proved out of a mass of facts, a jury should decide and give a verdict of guilty or not guilty, without any guide or compass. It would be trusting in the hands of a jury an unbounded power, which would be liable to great abuse. What would be the effect? In many cases of this nature, inflammatory speeches addressed to the passions of the jury would be employed in order to procure a verdict according to their fancy or caprice. A party publishes a seditious libel and is prosecuted:—in such cases there is generally mixed up no slight portion of attack in their private as well as their public capacity: — according to the law as it now stands, such a person may, if he be an orator, or if he think himself one, undertake his own defence—and what is his ordinary course? He proceeds to reiterate, perhaps with increased

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virulence, the libels and calumnies until the judge interferes; and if the party perseveres, he is checked, and if he repeats his calumnies, the judge interposes, and restrains him, and preserves the decency of the Court. But what does my noble and learned Friend's Bill propose to do? A party, after attacking the character of men of the highest rank and respectability in public life, is brought before a Court of Justice, where he repeats the charges, perhaps with exaggeration, upon the characters of these persons. Can the judge interfere? No; the party says, "I will offer evidence of it," and the judge must sit and listen to all this abuse, and all these calumnies in silence, and leave them to operate upon the minds of an ignorant jury. And what will the result be? Why, the party will, perhaps, offer evidence—hearsay evidence and vague rumours—which cannot be received, but which the jury will think is rejected upon a technical objection, and with inflamed passions, without any guidance from the judge, will find a verdict of "not guilty." That will be the effect of my noble and learned Friend's Bill, and it marks the extreme injustice of it. Then the prosecution is carried on by the Attorney General; an individual against whom charges are made has no right to interfere, and if the system of calumny should be resorted to in a Court of Justice, he has no right to interfere. Is not that extreme injustice? Again, the Attorney General is the person to defend the character of the party attacked; he may or may not defend it; different considerations may apply to different individuals; party or political feelings may interfere. But it is no part of the law of England that a man's private character is to be put in issue, and he has no right to employ his own counsel to defend it. This, however, is one of the effects of my noble and learned Friend's Bill, and notwithstanding all the praise he has bestowed upon his former Bill he should, I think, weigh well the consequences, before he asks your Lordships to pass a Bill so inconsistent with the due administration of justice as this. And I would call your Lordships' attention to the last observation of my noble and learned Friend. He says, that libels against the person of the Sovereign are to be excepted. What is meant by "libels against the person of the Sovereign" is not very easy to understand. Are all the other members of the Royal Family to be subject to this Bill? My Lords, I will put one case
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merely by way of example or illustration. I will suppose that a foreign Sovereign should be made the object of calumny and abuse; that the Attorney General should commence a prosecution against the libeller, and that he defends his own cause in a Court of Justice, where he reiterates the calumny and puts in issue the character of that foreign Sovereign, an ally of this country; that the defendant calls witnesses to prove his charges, and a jury is empanelled to see whether the foreign Sovereign is guilty or not of the charges. Can my noble and learned Friend be blind to the consequences of this—that a foreign Sovereign and his acts shall be put in issue in a Court of this country; that witnesses are to be called, and a jury is to pronounce a verdict of "guilty" or "not guilty," according to their opinion of the character and conduct of that Sovereign? Yet this, my Lords, is one of the consequences of this Bill. I am satisfied that under the circumstances, your Lordships will be of opinion that it is a Bill which ought not to be adopted. My noble and learned Friend has alluded to a noble and learned Friend (Lord Cottenham) not now present, as having approved of this Bill. My Lords, I think I know so much of my noble and learned Friend as to be able to say, that if he approved of this Bill he would have been found at his post to support it. I know enough of that noble and learned Lord's opinion, that I can state that he does not support the Bill—I do not say he opposes it—but he does not support the Bill, or he would have been here to-night to do his duty to it. My Lords, my opinion of the Bill is such that I shall move that it be read a third time this day three months.
Lord Broughamsaid, he had been anxious and alarmed when he saw his noble and learned Friend rise so immediately after he had heard his noble and learned Friend who had argued the question so clearly and so cogently, to take part against a measure which he had so long and so anxiously had at heart; but he could not help thinking that the speech of his noble and learned Friend (the Lord Chancellor), taking it altogether, would be found to make, on the whole, rather for than against the Bill. Nothing was more likely than that their Lordships, not being, generally speaking, professional men, should feel the force of his noble and learned Friend's arguments in the direction in which he intended them, when he exclaimed, "Could anything be

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more pernicious and unjust, than that a party should be dragged into a court, his character put in issue by a libeller, he being no party to the prosecution of the libeller, and that witnesses should be called to give evidence in his absence, and that this should be done even in the case of a foreign Sovereign?" Why this objection of the noble and learned Lord's might have applied to the law as it stood two years ago, but it was altogether inapplicable to the law as it stood at present; for, under the existing law, the very thing which the noble and learned Lord deprecated, might be done on any one of the 365 days of the year in which any law proceedings at all could take place. His noble and learned Friend on the Woolsack might charge him (Lord Brougham) any day he chose with whatever he pleased, and be prosecuted for it by his noble and learned Friend behind him (Lord Campbell), and yet he (Lord Brougham) know nothing whatever about it—and the two might go into Court, and his noble and learned Friend who had libelled him might bring any evidence they could scrape together against him, and he know nothing whatever about it—in short, they might try his character in the Court of Common Pleas, at any time, for a long summer day, and he, all the time perfectly ignorant that the prosecution had ever been instituted. Such was the law as it had been recently established; and he had herein seen so grave an objection to the step taken last year that he at one time was minded to introduce a Clause, whereby it should be enacted, that only in cases where the party libelled was himself the prosecutor, should the truth be admitted in evidence; but his reason, on reflection, for not proposing such a Clause was, that it would be inefficacious. The objection, however, which might have applied to other cases, did not apply here; where no two parties could lay their heads together to put in issue the reputation of high public characters, without the knowledge of the Attorney General, who would not fail to make his employers acquainted with what was going on, who would then, of course, exercise their discretion as to further proceedings. But there was another point which could be put forward in favour of this Bill. Noble Lords, not professional men, were likely to be led away by the argument of his noble and learned Friend on the Woolsack, when he alluded to attacks that might be made on the Government, utterly without foundation and on pro-
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ceedings being adopted against the libeller, and a part of the truth or something like the truth being given in evidence, a jury, under such circumstances, were likely to be led away by declamatory and inflammatory speeches of the counsel for the defence. Now, what was the case at present, when a man was defended in a case of libel? He would undertake to show, that the crime of which his noble and learned Friend complained was in force under the present state of the law. On this point he would appeal to the experience of his noble and learned Friend who introduced this Bill, to that of his noble and learned Friend the Lord Chief Justice, and to that of his noble and learned Friend on the Woolsack, as to whether what he was about to state was not uniformly the case in a case of libel. The alleged libeller came to consult his counsel as to the case. The counsel, on looking into the case, would say, "This is a very bad case of libel—there is a monstrous deal of malignity and venom in it, and you will go with a great deal of prejudice against you before a jury." And besides, it is probable that some young counsel who was present, and who had not much practice in the profession, would say, "Oh, it is very bad, for it charges a fact which is clearly false, and the jury will be up in arms against you, and you will very likely be sent to gaol for eighteen months," and this young counsel would add, "if it was only general declamation, we could say something about it, but the fact we can't overcome." "But oh," says the old counsel, who had years upon years been in the profession, and had probably grown gray in it, "that is the particularly strong part of our case, for we will assume these alleged facts to be all true." "How so," the young counsel would exclaim, "when we know them to be notoriously false." He (Lord Brougham) could think that he saw his noble and learned Friend when engaged in the profession, at some such consultation, and he knew what his reply would be in such case. Why, any old counsel would say, "We will tell the jury that we are precluded from giving evidence as to the truth of these alleged statements, but we are precluded in consequence of the iniquitous state of the law, from doing so; and if we were not excluded from doing so, the jury should see that there was good reason for the statement." This was the case in all libel cases, and it was always assumed by counsel that the case might be true. It always made an impression on

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the jury, when they were told that the law had shut out counsel from producing either evidence or documents in proof of the statement. He had known juries so strongly operated upon by statements of this kind, that they have found verdicts against the justice of the cases, because the state of the law was such as to expose them to be operated upon by all the arts of an able counsel, and that, by the fervour of the eloquence of the barrister for the defence, they were led away from the due consideration of the case. His noble and learned Friend had also complained of the hardship which would be imposed upon the Government by the law as it now stood; but he would ask whether they did not now always, in cases of libels on Government, go into court with a stain and impediment in their way in this respect; and when the counsel for the defence complained that it was impossible to answer the case for the prosecution satisfactorily, as the law would not allow him to prove the truth of the libel, and he rested on the assumption that he could prove the case, which no doubt made an impression on the jury; but if the party was afforded an opportunity of producing these alleged proofs, it would appear that nothing of the kind would be done. He would remind his noble Friend of a case which had already occurred. He would refer to the celebrated case of Sir Arthur Piggott, in which proceedings were taken by that learned person for a libel of a most abominable character on the then Government. This took place at the time that either the present Lord Grey or Mr. T. Grenville was First Lord of the Admiralty: the libel, which appeared in one of the then Opposition newspapers, alleged that the Government had sent troops on board ships to the West Indies which were not seaworthy. In the then and in the present state of the law, it would be utterly impossible for the Admiralty to say to the libeller, prove your case, for the law said in its wisdom that it would not allow any such proof to be adduced. Such an accusation against the Admiralty was a mere fiction in the brain of this libeller, and for which there was not a shadow of truth; but still, if that case had gone to trial, his counsel would have been enabled to avail himself of the argument of being precluded from giving evidence. This liability to being libelled was no doubt a grievance to every Government, but all Government lost at present, in such cases, in the opinion of the juries in
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consequence of this abuse in the law, by which the counsel for the defendant could turn round and complain most strongly that they would not allow a libeller to show that his charge was true. His noble and learned Friend said what a hard thing it was that a foreign prince should be libelled, and that in such case a defendant should have the opportunity afforded to him of proving the truth in justification; but what was the case now, and what course would be taken by the libeller prosecuted in such case? Why, exactly the same course that would be adopted in an action brought by the Government or a private party for libel—namely an appeal to the jury that the law did not permit them to prove the truth of the charge. Suppose any foreign prince charged with the Commission of a serious offence, and he (Lord Brougham) had to defend the person who had made this charge in some newspaper or pamphlet, the first thing that he should do would be to state that the nature of the law was such that he could not prove the truth of the charge; that there was no doubt but that some parts of the accusation were true, but that how much was true he could not tell. He could not tell them how much was true and how much was false, because the law excluded the truth of the matter from the cognizance of the court and the jury. This was a very great foundation for counsel to rest on in such cases, and they never failed to do much to raise strong impressions in the minds of the jury on such ground. Counsel almost uniformly mixed up a declaration and an assumption of the truth of the libel, with a constant reference to the unjust and oppressive state of the law. He had experienced this over and over again, and he found that this almost inevitably led the jury to a leaning towards an acquittal. He was counsel on one occasion in a case of libel on the clergy of Durham. The fact of the alleged libel could not be proved, and there was much vague declamation and vituperative language mixed up in it. The defence that he was obliged to make was, allusions and complaints as to the state of the law, which prevented any attempt at a proof of the truth of the case, and dwelling upon the state of such establishments as that of Durham, so richly endowed, and the resources of which were not expended in the most advantageous manner. He was obliged to make a statement of this kind to the jury in such a manner as to induce them to retire for three or four hours for the purpose

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of considering their verdict, for such appeared to them to be the obscure and difficult nature of the case, while in fact nothing could be clearer than the nature of the libel in itself, and all this difficulty arose from the state of the law; and the result was, that the jury returned a special verdict of such a character that it was rather more for than against the defendant, and the consequence was that he was at length enabled to get it set aside altogether. He confessed that in this case, but for the state of the law, instead of making a very long address to the jury, he did not think that he could have spoken for ten minutes on it. [The Lord Chancellor observed that he doubted that very much.] He proceeded to state that he recollected that Lord Erskine used to say, that since the jury had been made the judge of the law as well as the fact in cases of libel, the mouth of the counsel was stopped much more than before this change took place; and he (Lord Brougham) was satisfied that this would be found to be still more the case by allowing the opportunity of producing evidence as to the proof of the libel according to this Bill. In the case to which he had just alluded to, if the law had then been such as his noble Friend now proposed to make it, he should have been told, "You had the opportunity of proving the charge you made against the clergy of Durham, but you did not do so because you could not." Under such circumstances the jury would not have found the verdict which they did, but the party would have been declared guilty, and would have been brought up to receive judgment. It was well known that whatever excited public feeling against a prosecutor, was productive of sympathy in favour of a culprit. This led to great mischief. He had never seen a case of a man being brought up for judgment in case of libel where this was not more or less manifest. The public were too apt to say, if the man had been allowed to adduce evidence in support of his charge, who knows what case he might have proved? He feared even that this sometimes operated on the mind of the judge, and the consequence was, that the libeller had a higher punishment inflicted upon him than he ought to have had. This complaint of the whole of the law had much influence in cases of private libels, but it was infinitely stronger in cases of public libels. The object of this part of the Bill was not to give any private or public libeller an advantage as defendant, but that all the evidence
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should be admitted, and then let the whole go to the jury. His noble and learned Friend on the Woolsack said that by adopting this course they would be letting in a great deal of evidence at random, and the Bill was of such a vague character that the Act of last Session was liable to the same objection; and no one made an objection to it on this ground either in that House or in the Committee up stairs. He was most anxious that some such change in the law as was proposed in this Bill should take place, and he should deeply regret the rejection of the Bill. If his noble and learned Friend on the Woolsack thought that they should place foreign princes on the same footing, with respect to the proof of a libel, as the sovereign of this country, let him propose an alteration to that effect, although he (Lord Brougham) confessed that he did not see any necessity for any such provision. The reason why the Sovereign of this country was excepted in the Bill was, that the Sovereign was held to be impeccable, and, therefore, to allow proof to the contrary would be perfectly inconsistent, and would be quite incompatible with the constitutional doctrine of this country. He had stated his opinion on this point, and he had alluded to his own professional experience in the matter, and he would only add, that he was satisfied that all the objections which had been urged by his noble and learned Friend on the Woolsack applied to the law as it now stood, with respect to the effect of declamatory and excitable harangues made by counsel in addressing jurors for defendants in libel cases, and he was convinced that by such an Amendment as was now proposed, they would cut this rotten ground from under the feet both of counsel and libellers.
Lord Denmanthought, that such an important alteration in the law as was proposed in the Bill now before their Lordships, should not have been brought forward without further consideration. His noble and learned Friend who had introduced the Bill, had said that the matter had been under consideration of a Committee of their Lordships for two years. Now, what were the facts of the case? At an early period of the last Session, his noble and learned Friend introduced a measure for the alteration of the law of libel; but subsequently, a Committee was appointed to inquire into the Law of Defamation and Libel, which, at a subsequent part of the Session, presented a Report, with evidence.

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The Bill of his noble and learned Friend was then sent to a Committee up stairs, where it received much consideration, and it was returned to the House in a much more satisfactory state than the present Bill.
Lord Broughamobserved that the whole question of the Law of Defamation and Libel was under the Consideration of the Committee.
Lord Denmansaid, that no doubt the general question of the law of Defamation and Libel was sent to the Committee, but not that part of the subject affecting seditious publications.
Lord Broughamremarked that this was embraced in the general question.
Lord Denmandenied that this was the fact, for he had very recently read the evidence, and he could find nothing of the kind. But they had been told that, this Bill was a corollary to the measure of last year. The fact, however, was, that the offence of sedition or seditious libel was a specific offence. His noble and learned Friend appeared to confine his view of this part of the law to one single branch of it, and that of the least importance, namely, to that which was called sedition some forty or fifty years ago, where every newspaper proprietor or publisher was at the tender mercy of the Attorney General—if in any such publication the conduct or the measures of the Government for the time being were discussed with any degree of freedom. Thank God! these times have gone by, and since Mr. Fox's Bill passed, no Attorney General would be stupid enough to bring before a jury such cases as were previously constantly sent to them, and no judge would charge a jury, as was formerly done in such cases, or if any judge did so, he would only lose his credit with the jury, and his verdict too. There was a remarkable case illustrative of this which occurred a few years after the passing of Mr. Fox's Bill. The case he alluded to occurred in 1810, and was a trial for a libel upon His Majesty George III. inserted in the Morning Chronicle newspaper. On that occasion, Mr. Lambert and Mr. Perry were charged with reflecting on the Government of George III., with respect to Ireland. The alleged libel was, "What a crowd of blessings rush upon one's mind that might be bestowed upon the country, in the event of a total change of system. Of all monarchs, indeed, since the Revolution, the successor of George III. will have the finest opportunity of becoming
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nobly popular." Mr. Perry, who defended himself, claimed the right of free discussion on the administration of public affairs, and on the conduct of public men engaged in them, and maintained that he was perfectly justified in thus alluding to the conduct of the Sovereign. Lord Ellenborough, on that occasion, fully admitted the right to the discussion of the measures of the Government of the Sovereign, and almost directed an acquittal on this principle. The example set in that case had been almost uniformly followed since that time. He thought, therefore, that in such proceedings in a case of libel, when a statement was true, and even if it was false, when it appeared that it was made bona fide—for a public writer could not be expected to know everything that occurred connected with a public event—that a jury would not now find a party guilty. But he would ask his noble and learned Friend whether the crime of sedition was not a crime of itself and unconnected with libel. It often happened that in such a case the country was excited in the extreme, and almost up in arms against the Government and the law; were they to adopt the course suggested by his noble and learned Friend in this Bill when the country was in this condition of danger from the state of excitement produced and kept up by seditious publications? Suppose any man chose to attack, in an inflammatory manner, at such a season, the noble Duke and his Colleagues, in the Government, and he was brought into a court of law to answer for his conduct, he would be able to say, if the Bill of his noble and learned Friend passed, that before he should meet the charge in the libel which had almost excited the people to rebellion, he had a right to subpœna witnesses to inquire into the character of any one of the Ministers; and who would have to pay these witnesses—for such a man was not very likely to be able to do so? And thus the whole proceedings in the charge against him would be stopped, while the whole country was almost in a state of civil war. This, he asserted, would be the case, and the man who had raised the people almost to rebellion, would be able to take his stand in a court of justice as a person who had himself been injured. This was not an improbable state of things, and was it one which should be encouraged? However, in proceedings in libel cases, there was no consideration whatever to be had for the prosecutor. Would the Legislature allow a libeller to pursue a man with accusations,

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even if true? Was it to be borne, that because a man some years ago had been found guilty of a misdemeanor, he might be attacked in every way, and the whole of his life rendered miserable by such attacks? If the liberty of the press was thus to be maintained, they would find, as was observed by Dr. Franklin, that men thus attacked, would resort to "the liberty of the cudgel." If such a state of things was to be allowed, men would resort to those means of defence from such attacks as God had given them. He was convinced that his noble and learned Friend was going too far; and he believed, that if his measure was carried, it would prove injurious in every point of view. His noble and learned Friend (Lord Brougham) had said, that in the present state of the law, by which the truth of a libel could not be received in evidence, the counsel for the libeller had an advantage from the assumption that the charge in the libel was true, but that he was not allowed to prove it. His noble and learned Friend must certainly have rather an odd opinion of juries, when he supposed that they would be influenced in favour of a defence, in a case where the facts alleged in the libel are notoriously false, merely because counsel were to say that he could prove them to be true if he had the opportunity. He must also own that the argument of his noble and learned Friend (Lord Campbell), with respect to the extent of the provisions of the Bill of last year, made him very much doubt the propriety of having extended the law as far as they then did. If the provisions of that Bill were to be carried to the extent assumed by his noble and learned Friend, it was very doubtful to him whether the Legislature had not gone much farther than it was aware of. His noble and learned Friend said that that Bill had done much to improve the character of the press, and above all as regarded the conduct of those who were tainted as habitual libellers. He could not help feeling, when his noble and learned Friend thus said that great and manifest benefits had resulted from his Bill, that he (Lord Campbell) had not the sanction of time to justify him in making such an assertion. It should be remembered that the proceedings in nearly all the cases of libel which had been taken recently had been in conformity with the old law. It must be in the recollection of the House that a series of libels of the most abominable and scandalous description had been published on the character of a foreign
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prince, residing in this country, and of which parties had recently been convicted. He asked, however, whether it was decent and to be tolerated, that this paper week after week calumniating, in the most gross and hateful terms an illustrious person—was it to be borne, that this libeller should be allowed, when brought into court, to say, "Oh, I shall call my witnesses. I am able to show that that illustrious person has been guilty of the hateful crimes imputed to him." Were such great advantages to be extended to the libeller, and impediments to be thrown in the course of the person libelled? With respect to what had been said as to the readiness of parties libelled to give evidence and aid to the Attorney-General to prosecute the libeller, it might happen, on a change of Government, that an Attorney-General might not have all the feelings to carry on a prosecution commenced by his predecessor for an attack on the former Government. He would refer to the case which had already been mentioned that evening, namely, the proceedings instituted by Sir Arthur Piggott, when Attorney-General, against a paper which had been connected in someway with the previous Government, for a libel on the then Board of Admiralty. On that occasion Sir Arthur Piggott filed an ex officio information against this newspaper, but the Attorney General of the succeeding Government did not think it proper to go on with the proceedings, and the case was not brought to trial, and it was said that this had taken place in consequence of the interference of the new Government. He must be allowed to say, that he took the liberty of thinking that Sir Arthur Piggott did wrong in filing an ex officio information, for he might have taken another course, namely, by proceeding on a criminal information, which must have been founded on affidavits, stating the falsehood of the alleged facts. If Sir Arthur Piggott had come into Court with direct affidavits, showing that the matter charged in the libel was altogether false, his belief was, that the case would have been proceeded with and the parties found guilty. He could not sit down without alluding to the opinion on the subject which his noble and learned Friend had stated, was entertained by a predecessor of his (Lord Denman)—whose memory he must ever regard with the greatest respect—he alluded to Chief Justice Holt. His noble and learned Friend had stated, that that eminent and learned Judge had admitted evi-

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dence as to the truth of a libel. He believed his noble and learned Friend alluded to the case of the prosecution of Fuller, at the instigation of the House of of Lords, and which was published in the State Trials:—but that was for cheat and imposture.
Lord Campbellobserved, that if his noble and learned Friend would refer to the case, he would find that Fuller was prosecuted for a libel.
Lord Denmansaid, that the charge directly against him, was, that he was a cheat and impostor. In the course of the trial he was repeatedly designated a cheat and impostor, and was charged with endeavouring to get and obtain money fraudulently and deceitfully from the King. Chief Justice Holt asked him,
"Have you any counsel? Fuller: No, my Lord; I have none. I have no money to procure counsel. I have put my thoughts in writing, and I beg leave to read it. Chief Justice Holt: but you must speak to the purpose, what do you say concerning the publishing these books? Fuller: That is what I have to offer. Chief Justice Holt: Can you make it appear that they are true? Fuller: my Lord, I hope I shall. Chief Justice Holt: Have you any witnesses? Fuller: I have none here at present; but if your Lordship will please to hear the terms upon which the witnesses would have come in, I can produce them. If your Lordship will grant your warrant for Jones, I will forfeit my life if he appear not, Chief Justice Holt: You might have had subpœnas for your witnesses against this day."
This, he presumed, was what his noble and learned Friend alluded to as to Chief Justice Holt admitting the proof of the truth of a libel; but the proceedings in this case was against Fuller for being a cheat and impostor, and for endeavouring to extort money, and he was afforded the opportunity to disprove this charge. The record stated that the prisoner had sought "falsò et illicitè deludere, decipere et defraudere." He did not believe that Chief Justice Holt entertained the opinion imputed to him by his noble and learned Friend on the subject, for some of the decisions of that learned Judge in cases of libel, showed that he, with the other Judges of that age, took a very narrow view of it, as in the case of the King v. Bere, where a person was proceeded against for merely having in his possession some libellous matter. This was in 1692, and the learned Judge took it down that the truth or falsehood of the matter made no difference, for all that the jury had to
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consider was, the probability of its tending to the disturbance of the public peace. He believed that the first case in which the truth or falsehood of a libel was allowed to be canvassed, was that of Underwood v. Parkes, reported in Strange, and which occurred about 100 years ago, when the truth was allowed to be pleaded in justification, and the principle has since usually been acted upon, and no one was likely to bring an action for a libel on his character, whose character would not bear the strictest investigation. His noble and learned Friend, when he brought in his Bill last year, drew a broad distinction, as to the proof of the truth of a libel, between a person who had maliciously or malignantly published it, or one who had not. His noble and learned Friend then repudiated the notion, that because a libel was true, parties might be enabled for years to prosecute an individual by its constant repetition. He again must complain that this great change was proposed to be introduced without sufficient consideration. No doubt there had been a Committee up stairs on this Bill, but it was rather a Committee to put the Bill into a properform, than to consider the important principles involved in it. His noble and learned Friend had asked the opinion of the Judges on this Bill, and he (Lord Denman) happened to know that many of the Judges had given their opinion on it to his noble and learned Friend, and he believed that there was not one of them—at least that he had heard of — who did not agree as to the impropriety of this Bill, and no doubt those learned persons had given good reasons for withholding their approval. It had been said that judges were opposed to reforms of the law; this certainly could not be said of the present judicial personages, who had always evinced a ready desire to accept of any thing that really could be regarded as a beneficial reform. In the present Bill there was an omission of what he certainly should have thought would have been a most material thing to consider—namely, as to connivance in publishing seditious libels. With regard to attacks on private character—in the first place, the party was at liberty to prove the truth by such evidence as he could bring; and in the second place, it might be shown that it was a public benefit that the truth should be disclosed. He certainly thought as to a public libel, that the second consideration was most indispensable, but he found it was omitted by

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his noble and learned Friend. One of the judges had suggested to him an extraordinary omission in the Bill — namely, the omission of the name of the Sovereign. Was it really to be said that the character and feelings of the Sovereign, and the conduct of the Sovereign were to be exposed to the canvassing in a court of justice? And might the nearest relations and dearest connections be attacked, and every person who uttered a seditious libel by word or mouth, or in writing, be at liberty to call from the interior of the palace witnesses to prove in general terms what he thought proper to utter—for he was not obliged to give evidence of specific facts, but merely to give proof in general terms? A fact might be stated of a general nature, and he was then to give a notice of the general circumstances by which he sought to establish his general imputation. Supposing that to be done with reference to the character of those who were nearest to the Sovereign, was it possible that they could be brought into a court of justice without the Sovereign being implicated? He thought that would be a result much to be deplored. He felt extremely unwilling to say that the truth of what was called a libel might not be given in evidence, in mitigation of punishment that might be inflicted. He was not prepared to say that in all cases it should be altogether excluded, but he thought the particular modes and occasions in which it ought to be allowed should have been much more fully considered and defined, and it should not have been left to the option of the individual who was charged with the offence, to call into question the character of any one of his fellow subjects, merely because he had committed a crime. Although in his evidence before the Committee he had expressed his opinion, that for certain libels the truth might be put in issue, he could not go the length of the present measure, which certainly had not been very maturely considered. It was a most serious and important change in the law, and demanded the deepest deliberation. This it did not seem to have received, and the present measure he thought was open to such serious objections, that he felt called upon to oppose it.
Lord Campbell, in reply, said, that their Lordships were called upon to reverse their unanimous decision of last Session. Almost every word which had fallen from his noble and learned Friend on the Woolsack would apply to the Bill of last year; and, without its being said that that mea-
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sure had worked amiss, they were called upon to censure and condemn it. His noble and learned Friend who last spoke acknowledged that the Bill had so far been beneficial to the public; but his noble and learned Friend said, they had not proceeded with due deliberation: he was, however, mistaken on that subject, for the Committee of last year was appointed generally to consider the Law of Libel, and they examined witnesses, particularly his noble and learned Friend, who had left the House, and, with the exception of his noble and learned Friend, who had last addressed the House, it was the unanimous opinion of all who were examined, that truth should be an ingredient for the consideration of the jury in all cases. It was their deliberate opinion, and it was upon the strength of that opinion that the Bill of last Session was passed. But, said his noble and learned Friend, libel was a crime merely because it assailed that which a citizen in every well-regulated society ought to be allowed to enjoy—his reputation. Libel, he said, was a crime just as theft was a crime; theft was a crime because the thief deprived a man of the property which he had a right to enjoy, and libel was a crime because it deprived him of the character to which he was entitled; but they could not know whether that character was true or false, in what degree it had been violated, and whether the character had a right to come into a court of justice for redress at all or not. His noble and learned Friend said there was no occasion for that Bill, because the truth might be ascertained by applying to the Court of Queen's Bench for a criminal information. In some cases that might be of service, but he would remind him that with regard to public libellers prosecuted by the Attorney General, there was no remedy at all, for his learned predecessor, Lord Kenyon, told the Attorney General that he should not apply to the Court, as he had the power to file an ex officio information, and he would not hear him in the Court of Queen's Bench; and although the party who made the imputation might have the most ample grounds for bringing it forward, if he applied to the Court of Queen's Bench for a criminal information he had no means of compelling the party upon whose knowledge he had obtained the facts, to make an affidavit; that could only be done volun-

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tarily. But, then, his noble and learned Friend was greatly alarmed because of the reputation of Lord Chief Justice Holt, and he said that he (Lord Campbell) was mistaken with regard to the King and Buller. He had, however, referred to it, and he found that it was an information for a libel, and he believed it was a libel upon the memory of King William, and in that case not only did Lord Chief Justice Holt say that he would admit evidence of truth, but he called again and again upon the defendant to prove the charges, intimating that if he could do so he would direct the jury to find a verdict of not guilty. His noble and learned Friend had referred to those most infamous libels against the Duke of Brunswick; but would not those convictions have been still more satisfactory if an opportunity had been allowed of proving the fact which those libels imputed? He would remind his noble and learned Friend of the proceeding of an illustrious Prince—now the Sovereign of a foreign country—he meant the King of Hanover—upon whose character there had been an infamous imputation cast; but he appeared before a jury, he went into the witness box, and utterly denied every particle of the imputation; and he thus afforded an opportunity to show the truth, if there had been any truth in the charge. The consequence was, that he entirely put an end to the calumny; and from that hour to this, no one had been found to repeat the infamous charge. His noble and learned Friend had also said, that there was no occasion now for any improvement in the law, on account of the great mildness with which it was administered. He did not wish to say anything offensive; but he could not quite agree with his noble and learned Friend. Look at the cases which occurred in the time of Sir Vicary Gibbs, and amongst others, that of Mary Vincent, who was obliged to appear on the floor of the Queen's Bench, and to plead guilty to a libel in a newspaper which partly belonged to her, she not having read a newspaper for seven years before. His noble and learned Friend said that they might safely trust a jury, but he (Lord Campbell), without depreciating the value of Trial by Jury, thought a great deal too much discretion was left to juries in cases of libel, and the law was not sufficiently defined. If the jury were to be trusted as the law at present stood,
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why might they not be trusted with hearing evidence respecting the truth or falsehood of facts, and have it left to them to determine whether the defendant had been actuated by laudable or malicious motives, and whether the tendency of the imputed libel was beneficial to the public or not? Both his noble and learned Friends had evaded the evils which arose from the present system, and the arguments, which went to show that by the present system great injustice was done; and they had only pointed out the inconvenience which an alteration in the law would occasion. After the declaration made by his noble and learned Friend on the Woolsack, supported as it had been by his noble and learned Friend the Chief Justice, he very much apprehended the fate of the Bill, and it was possible that their Lordships might, by an overwhelming majority, repudiate the principle of which they had unanimously approved last Session; but still he would divide the House, and it must not be supposed that noble Lords who were absent were indifferent about this Bill. His noble and learned Friend on the Woolsack had said, that Lord Cottenham would disapprove of the Bill if he were present, but he (Lord Campbell) believed that he was absent because he thought the Bill was secure, for he could not suppose that the noble and learned Lord on the Woolsack would be guilty of such gross inconsistency as to ask their Lordships to contradict this Session what they had approved last Session. But his noble and learned Friend (Lord Brougham) could not be said to be inimical to the Bill because he had left the House—and although he deplored his absence, he should persist in dividing the House.
Their Lordships then divided:—Contents 3; Not-Contents 33: Majority 30.
The Bill was consequently lost.

SEES OF ST. ASAPH AND BANGOR.
Lord Wharncliffe, as Chairman, reported from the Select Committee appointed to inquire as to the necessity of the Royal Consent being given to the above Bill, that such consent was necessary, and that it had been the custom of the House to receive such consent at various stages of the Bill.
House adjourned.