right to publish practical six weeks of confinement.1 With that virtual triumph of the popular magistrates over the house, all real opposition to the debates the publication of parliamentary debates passed forever away. And yet with that disposition to cling to ancient forms after the spirit has departed, the house made no modification of its prinno change ciples; in theory reporting still remains, as before, a breach of privilege, and as such it may still be punished whenever any wilful misrepresentation occurs.2 outcome; of theory. Separate galleries for reporters provided 1834; since 1836 division lists pub After the fire that destroyed both houses of parliament in 1834, a commendable disposition was shown to encourage reafter fire of porting, always carried on under great physical difficulties, by the construction of separate galleries for reporters; and in 1836 the house took the final step necessary to secure the complete publicity of its proceedings and responsibility of its members by recording their votes, and publishing daily the division lists, a custom not adopted by the lords until 1857.8 lished daily; The only practical difficulty that still remained grew out of the power of every member to employ, when he pleased, the ancient usage of "spying" strangers, through which the speaker could be compelled to order the withdrawal without putting the question. After the exercise of that power in 1849, in 1870, and in 1872 had resulted in considerable inconresolution venience, a modification of the rule was finally made in May, of 1875 as to with1875, by a resolution which, while leaving the personal disdrawal of cretion of the speaker untouched, directs him, wherever the strangers. presence of strangers is brought to his attention, to put the question of their withdrawal, without debate or amendment, to the vote of all the members present. That resolution, now standing order No. 93, has been acted on in every case that has arisen since its adoption. Growth of the law of libel;. Having now attempted to explain how it was that the once serious restraints imposed upon the freedom of the press through the privileges of parliament gradually dwindled into insignificance, an effort must be made to draw out the process through which the law of libel, as administered in the ordinary tribunals, has, through the joint action of the courts and the 1 Parl. Hist., vol. xvii. pp. 59-163; 73. 2 Cf. May, Parl. Practice, pp. 70 8 Ibid., pp. 339, 349. 4 Ibid., p. 201. upon the the extinc origin in star legislature, been reduced to its present form. After the ex- only tinction of the censorship "the law of England" became, in restraint the language of Lord Ellensborough, "a law of liberty, and press, after consistently with this liberty we have not what is called an tion of the censorship; imprimatur; there is no such preliminary license necessary; but if a man publish a paper, he is exposed to the penal consequences, as he is in every other act, if it be illegal."1 Or, as Lord Mansfield has expressed it, "The liberty of the press consists in printing without any previous license, subject to the consequences of law." 2 The law to which reference was has its thus made was the law of libel through which the star cham- the procedber had enforced its control over the press, and which had ure of the become a highly important branch of jurisprudence in the chamber, days of the Tudors and Charles I. Hudson,3 in his treatise on the star chamber, tells us that "in all ages libels have been severely punished in this court, but most especially they began to be frequent about 42 & 43 Elizabeth (1600), when Sir Edward Coke was her attorney-general," in whose reports are to be found the earliest important authorities upon the subject. And here let the fact be emphasized that the star chamber, in which the law of libel was first administered, pos- that passed sessed the power to decide both the law and the fact. Influ- law and the enced by that tradition, the courts of common law for time persisted in the effort to retain in the hands of their effort of the judges substantially the same power, when in the latter part to retain of the seventeenth century the expiration of the Licensing Acts put the enforcement of the law of libel entirely under their control. That result was accomplished by withholding juries from juries the right to pass upon the vital question which right to pass every prosecution for libel involved, they were permitted upon the only to pass upon the fact of publication, seldom disputed, and upon the truth of what were called innuendoes. As an in Franckillustration, reference may be made to the case of Francklin, lin's case it the publisher of the "Craftsman," who was prosecuted in 1731 that 1 Rex v. Cobbett, State Trials, vol. xxix. p. 49; Odgers, Libel and Slander, p. 10. 2 Rex v. Dean of St. Asaph, Term Reports, vol. iii. p. 431 (note); Dicey, The Law of the Const., p. 235. 8 Pp. 100-104. "The cases relating to libel in a long Coke's Reports are the case de famosis 5 See above, p. 380. on both the fact; law courts the same power; denied the was held for an article in which the ministers were accused of incapacity and bad faith in concluding a treaty with Spain. After counsel had argued that the expression "certain ministers' meant the king's ministers, the judges declared that the only questions for the jury were the fact of publication and the truth of the innuendoes, questions about which there was really no doubt whatever. They then declared, "There is a third determine thing, to wit, whether these defamatory expressions amount to a libel or not? This does not belong to the office of the jury, but to the office of the court." It was also clearly settled by the judges that the truth of a libel could not be in any way be given in given in evidence, not even in mitigation of punishment. evidence; The greater the truth the greater the libel passed into a pro the court alone could what constituted a libel; truth of libel not to juries forced to resort to general verdicts; verb. The only means juries could employ to break through these rigid rules, by which the real question at issue — the character and truth of the subject-matter of the publicationwas withheld from them, was through the rendition of general verdicts of acquittal, despite the instructions of the court that the substance of the publication in question was libellous as a matter of law. But such means were illegitimate; and whenever such a verdict was rendered, the judges, while forced to their legal admit the jury's legal power so to act, sternly denied their moral right to do so.2 Such was the state of the law of libel, inherited by the courts of common law from the star chamber, at the moment the information was filed in the king's bench against Wilkes, as the author of No. 45 of "The North Briton." Wilkes fled So little was that fearless agitator inclined to regard that law as a law of liberty" that he fled to France, and during his absence he was found guilty in February, 1764, of reprinting No. 45, and of publishing the "Essay on Woman." right to do so admitted; to France rather than trust the king's bench. The great forensic contest between Mansfield and Erskine ; 66 The transformation of the law of libel from the despotic form in which it existed at the time when Wilkes began the struggle for the freedom of the press, to the mild and rational form in which it exists to-day, is the result of a great forensic contest carried on for many years in the courts of common law, in which the most prominent actors were Lord Mansfield, who, on the one hand, put forth his whole power in the effort 1 State Trials, vol. xvii. p. 672. 2 For a full history of the develop ment of the law of political or seditious libel from the Revolution to 1783, see the judgment of Lord Mansfield in the case of the dean of St. Asaph (Shipley), State Trials, vol. xxi. pp. 8471046. the latter, Almon, 1770; in Wood to uphold the old doctrine, and Erskine, the famous advocate, the former battling for who, on the other, employed all the resources of his genius to the old convince not only the judges, but the nation, that the law doctrine, should be so modified as to give to juries in trial for libels the for the new; same scope as in all other cases. The contest may be said to have fairly begun in 1770, with the trials of Almon, Miller, trials of and Woodfall,1 against whom informations were filed for the Miller, and printing and publishing in the year before of Junius' cele- Woodfall, brated letter to the king.2 Upon the trials of the printers of "The North Briton," his lordship, following the well-established doctrine, had declared that it was the province of the court alone to pass upon the criminality of the libel, and in the case of Woodfall he simply emphasized that doctrine by judgment adding that "as for the intention, the malice, the sedition, fall's case or any other harder words which might be given in informa- as to the tions for libels, public or private, they were merely formal juries; words, mere words of course, mere inferences of law. - with which the juries were not to concern themselves." In the hope of evading the instruction thus put upon them, the jury hit upon the expedient of returning a verdict against Woodfall of "guilty of printing and publishing only." 3 Almond was found guilty in the usual form, after the court had announced some very extreme doctrines as to the criminal liability of a criminal publisher for the acts of his servants, which continued in force until 1843, when they were annulled by Lord Campbell's Libel Act, to be considered hereafter. Miller was acquitted. Such was the prelude to the more memorable struggle which case; took place in the case of the dean of St. Asaph (Shipley), who dean of St. was prosecuted for publishing a pamphlet entitled "A Dia- case, 1778; logue between a Gentleman and a Farmer." At the trial, at the Shrewsbury assizes, the defendant was represented by 1 State Trials, vol. xx. pp. 803, 870, and 895. 2 It appeared in the Morning Advertiser of the 19th of December, 1769, Letter No. XXV.; Woodfall's ed., vol. ii. p. 62. Upon that verdict a new trial was granted, but the proceedings were dropped. Sir J. F. Stephen, Hist. of the Crim. Law, vol. ii. p. 324. 4 He was tried for selling the London Museum, in which the letter was reprinted. Parl. Hist., vol. xvi. pp. 5 rights of liability of his servants as settled in Almond's Asaph's famous speech upon the motion for Erskine, and after Justice Buller had told the jury that the only question for them was the fact of publication and the truth of the innuendoes, a verdict was rendered of "guilty of Erskine's publishing only." Upon a motion for a new trial made at the next term, Erskine was brought face to face with Mansfield, and then it was that he made what Fox declared to be "the a new trial; finest argument in the English language,' an argument his five pro- embodying "five propositions most logically framed and conpositions; nected, which, if true, completely established his case, and he supported them with a depth of learning which would have done honor to Selden or Hale." The essence of those propositions, as restated by a master of the criminal law, is "that the case of a libel forms no legal exception to the general principles which govern the trial of all other crimes, . . . that it is a question of fact and not of law whether a libel is or is not seditious." So little did Mansfield appreciate Erskine's not of law argument, that he not only refused the new trial, but sneered libel is or at the "jealousy of leaving the law to the court" as "puerile seditious;" " rant and declamation." And in speaking of this judgment some years afterwards, in his defence of Paine, Erskine said, Lord Mansfield Mansfield "treated me not with contempt indeed, for of that Erskine's his nature was incapable, but he put me aside with indulgence, as you do a child when it is lisping its prattle out of season." But the argument of Erskine, in the dean of St. Asaph's case, defend him- forced Mansfield into the first solemn judicial exposition of the self by a old law of political libels, and in that way its whole history was judicial exposition; set forth from the Revolution down to that time. The result "it is a question of fact and whether a is not overruled motion, but was forced to was a declaration from the chief justice that Buller, in his summing up, had simply followed the practice of all his predecessors since the Revolution, and that "such a judicial prac tice. . . is not to be shaken by arguments of general theory or popular declamation." Undaunted by such rebuffs, Erskine persevered in his contention, and in the trial of Stockdale in Stockdale 1789, upon an information filed against him for publishing a defence of Warren Hastings, which was taken to be a seditious trial of in 1789; 1 Campbell, Lives of the Chancellors, vol. viii. p. 277, et seq. 2 Sir J. F. Stephen, Hist. of the Crim. Law, vol. ii. pp. 337, 338. 8 Paine was found guilty. State Trials, vol. xxii. p. 357. 4 State Trials, vol. xxii. p. 237; Erskine's Speeches, vol. ii. p. 205. He was prosecuted by the attorney-general at the instance of the house of commons. Parl. Hist., vol. xxvii. pp. 1, 7. |