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A.D. 1791.

the Libel

СНАР. LORD CAMDEN showed his sincere and unabated attachment CXLVIII.

to his early political principles by his zealous support of

Mr. Fox's Libel Bill, which otherwise never would have His services passed the House of Lords. Near the close of the session of in passing

1791 Thurlow threw it out, under pretence that there was Bill. not time to consider it, but not before Lord Camden had

made an admirable speech in its favour, showing that the jury were the proper judges of the seditious tendency of any writing called a seditious libel. He said,

He said, “I have long endeavoured to define what is a seditious libel, but have not been able to find any definition which either meets the approbation of my own mind, or ought to be satisfactory to others. Some Judges have laid down that any censure of the government is a libel. Others say, that it is only groundless calumnies on government that are to be considered libels; but is the Judge to decide as a matter of law whether the accusation be well or ill founded? You must place the press under the power of Judges or Juries, and I think your

Lordships will have no doubt which to prefer.' His reason- In the following year the bill again came up from the ing in defence of the Commons, and Thurlow did his best to defeat it. He sumrights of

moned the Judges, and obtained from them an unanimous jurors.

opinion that the question of • libel or no libel?' was one of pure law, for the Court alone,-and two law Lords, Lord Bathurst, an Ex-chancellor, and Lord Kenyon, the Chief Justice of the King's Bench, combined with him to extinguish the rights of juries. But the veteran champion of those rights was undaunted. Nothing can be more refreshing to the lovers of liberty, or more gratifying to those who venerate the judicial character, than to contemplate the

A.D. 1792.

* 29 Parl. Hist. 731.

A.D. 1792.

glorious struggle for his long-cherished principles with which CHI AP. Lord Camden's illustrious life closed. The fire of his youth

CXLVIIT. seemed to kindle in the bosom of one touching on fourscore, as he was impelled to destroy the servile and inconsistent doctrines of others — slaves to mere technical lore, but void of the sound and discriminating judgment which mainly constitutes a legal -- and above all a judicial mind."*

In the memorable debate which decided the fate of the bill, May 16. — rising in his place slowly and with difficulty, --still leaning on his staff, he thus began:-“ I thought never to have His great troubled your Lordships more. The hand of age is upon me, against and I have for some time felt myself unable to take an active Lord Thur

low. part in your deliberations. On the present occasion, however, I consider myself as particularly, or rather as personally, bound to address you—and probably for the last time. My opinion on this subject has been long known; it is upon record; it lies on your Lordships' table; I shall retain it, and I trust I have yet strength to demonstrate that it is consonant to law and the constitution.” His voice, which had been at first low and tremulous, grew firm and loud, and all his physical, as well as mental powers, seemed animated and revived. He then stated with his wonted precision what the true question was, and he argued it with greater spirit than ever. Alluding to his favourite illustration, from a trial for murder, he said, “A man may kill another in his own defence, or under various circumstances, which render the killing no murder. How are these things to be explained ? By the circumstances of the case. What is the ruling principle ? — The intention of the party. Who decides on the intention of the party? The Judge ? No! the jury! So the jury are allowed to judge of the intention upon an indictment for murder, and not upon an indictment for a libel!!! The jury might as well be deprived of the power of judging of the fact of publication, for that, likewise, depends upon the intention. What is the oath of the jury? Well and truly to try the issue joined — which is the plea of not guilty to the whole charge.” In going over the cases,

* Lord Brougham's Lives of Statesmen, iii. 178.

CHAP. when he came to Rex v. Owen, in which he gained such distincCXLVIII.

tion as counsel for the defendant, he explained how he had been A. D. 1792. allowed to address the jury, to show the innocence of the

alleged libel. “ Then,” said he, “came Rex v. Shebbeare, where, as Attorney-General, I conducted the prosecution. I went into court predetermined to insist on the jury taking the whole case into their consideration; and so little did I attend to the authority of the Judges, that, in arguing the character of the libel, I turned my back upon them, directing all I had to say to the jury-box. In the days of the Charles's and James's, the doctrine now contended for would have been most precious; it would have served as an admirable footstool for tyranny. So clear is it that the jury are to decide the question of libel or no libel?' that if all the bench, and all the bar, and the unanimous voice of Parliament, were to declare it to be otherwise, I could not change my opinion. I ask your Lordships to say, who shall have the care of the liberty of the press ? the Judges or the people of England ? The jury are the people of England. The Judges are independent men! Be it so. But are they totally beyond the possibility of corruption from the Crown? Is it impossible to show them favour in any way whatever? The truth is, they possibly may be corrupted — juries never can! What would be the effect of giving Judges the whole control of the press ? Nothing would appear that could be disagreeable to the government. As well might an act of Parliament pass, that nothing shall be printed or published but panegyrics on ministers. Such doctrines being acted upon, we should soon lose every thought of freedom. If it is not law it should be made law -- that in prosecutions for libel, the jury shall decide upon the whole case. In the full catalogue of crimes, there is not one so fit to be determined by a jury as libel.” Before he concluded, he took an opportunity to pay a just tribute of respect to his old rival, Lord Mansfield, now almost in the tomb, into which he himself was so soon to follow him. “ Though so often opposed to him," said he, “ I ever honoured his learning and his genius; and, if he could be present, he would bear witness that personal rancour or animosity never mixed with our controversies.

A.n, 1792.


When, after this last effort, I shall disappear, I hope that I, CH AP.

CXLVIII. too, may have credit for good intentions with those who differ from my opinions, and that perhaps it may be said, through a long life he was consistent in the desire to serve his country.' This speech was warmly complimented by all who followed, on both sides, in a two-nights' debate, and gained a majority of 57 to 32 for the second reading of the Bill.

The general expectation was, that it would be allowed to pass silently through its subsequent stages; but Thurlow, trying to damage it in Committee by a nullifying amendment, Lord Camden was again called up, saying, that “ he would contend for the truth of his position as to the right of juries, June 1. in cases of libel, to the last hour of his existence, manibus pedibusque.” When he had reiterated his argument, the amendment was rejected.

Lord Chancellor, -—“I trust the noble and learned Lord His last will agree to a clause being added to the bill, which he will words in

the House see is indispensably necessary to do equal justice between the of Lords. public and those prosecuted for libels. This clause will authorise the granting of a new trial, if the Court should be dissatisfied with a verdict given for the defendant.”

Earl Camden. “ What! after a verdict of acquittal ?"
Lord Chancellor. “ Yes!”
Earl Camden. “ No, I THANK YOU !!!

These were the last words he ever uttered in public. The bill, in its declaratory form, was then suffered to pass through the Committee, and to be read a third time; Lords Thurlow, Bathurst, and Kenyon, signing a strong protest against it. This is to be honoured as a great example of a law Lord boldly declaring and acting upon his own deliberate and conscientious conviction upon a question of law, contrary to the unanimous opinion of the Judges when asked their advice for the assistance of the House. — Now that the mist of prejudice has cleared away, I believe that English lawyers almost unanimously think that Lord Camden's view of the question was correct on strict legal principles; and that the act was properly made to declare the right of the jury to determine

29 Parl. Hist. 1404-1534.

CHAP. upon the character of the alleged libel, instead of enacting it CXLVIII.

as an innovation. Salutary No law ever operated more beneficially than that which operation of had been so long and so violently opposed by legal digthe Libel Bill.

nitaries. It put an end to the indecent struggle in trials for libel between the Judge and the jury, which had agitated courts of justice near a century; it placed the liberty of the press on a secure basis; all the predictions that it would encourage seditious publications and attacks on private character have been falsified; and we have now the best definition of a libel — “a publication which, in the opinion of twelve honest, independent, and intelligent men, is mischievous and ought to be punished.” The bill bears the name of Mr. Fox, because he introduced it into the House of Commons, while the merit of it is claimed by the admirers of Erskine, on account of his glorious fight for the rights of juries in the case of the Dean of St. Asaph; but Pratt had struggled successfully for its principle long before these names were ever heard of, and to him we must ascribe its final triumph. His perseverance is the more meritorious, as he might have had a plausible pretext for taking a contrary course from the multiplication of seditious writings, and the democratic movement then supposed to threaten the public tranquillity ; but he wisely thought that the vessel of the state is best prepared

to encounter a storm by making a jettison of abuses. Lord Cam. Lord Camden survived two years. Although his mental faden retires culties remained unimpaired, he did not again appear before the from public life. public. He wished to have resigned his office, but it was not

convenient that a vacancy should be made in the cabinet, and “the King claimed a continuation of his services while he was so well able to perform them.” Every possible indulgence was shown him. Cabinets were often held at his house; and draughts of deliberation were sent to him into the country, where he now for the most part resided.

His private friendships continued to be cherished with

Dec. 7. 1793.

It is said that Lord Camden had prepared the draught of Mr. Fox's Libel Bill many years before, but kept it back till he saw there was a chance of carry. ing it. - Europ. Mag. Aug. 1794, p. 93.

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