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narrative. But it is objected that this practice tends to make the historical action only episodic. Yet, what choice has the novelist? It is clear that curiosity is not excitable for an event already known. To those who judge that the historical action is the nobler portion of the argument, it will be a sufficient apology to remind them, that the appetite of curiosity is the meanest that a writer of genius can condescend to gratify, and that this inferior kind of interest is attached, by their own showing, to the inferior part of the fable. Not all our author's tales require this apology, or are liable to that objection. Yet, however defensible his practice may be in this respect, to make historical events such mere conveniences, and historical persons such stark puppets, as the author of Brambletye House and Tor Hill has presumed to make them, is an abuse of privilege, and a license that, we apprehend, is capable of no vindication. The propriety of the principle when accurately applied, and rightly used, we think cannot long be doubted. Was the wrath of Achilles anything more than an episode in the history of the Trojan war? But there are critics who read Aristotle instead of Homer; hence they know all about poetry, but nothing of it.
ART. IX.-1. Starkie on the Law of Slander, Libel, Scandalum Magnatum, and False Rumours. London. 2. Holt on the Law of Libel. London. 1816.
AT a period like the present, when education and intelligence are every day spreading more widely through society-when commerce and freedom occasion an extraordinary activity in the public mind, and rapidity of intercourse between all parts of the empire-the Press has naturally acquired a range and intensity of power altogether unparalleled in history, and such as none of our forefathers could ever have ventured to predict. The occurrences of every day bear perpetual witness to the energy and extent of the influence which it exercises over society in all its departments. The vast increase of habits of reading is attended with a corresponding augmentation of publications of all descriptions, suited to every kind of taste, and every degree of education and capacity. But while every class of writings is supplied in varied abundance, the extraordinary increase of political publications, and of fugitive and periodical literature, is a singular characteristic of the modern press, and certainly must be reckoned foremost amongst the means of that active and wide-spreading sway which it exerts over the minds of so many millions of individuals. Learned folios may suit the retired lucubrations of the university and
and the convent; but the full influence of free publication on the minds, manners, actions, and habits of men in social life, must be in a great degree effected by the more rapid and lively appeals of reviews, journals, and newspapers. It appeared, from authenticated statements (founded in part on Parliamentary returns) made by Lord John Russell to the House of Commons in April, 1822, that a single firm of booksellers, in London, were in the habit of selling five millions of volumes annually; that they paid about 5500l. per annum for advertisements of their publications; and kept employed continually not less than two hundred and fifty printers and bookbinders. In the year 1821, there were not less than 23,600,000 newspapers sold in Great Britain; of these the London daily journals sold not less than fourteen millions, and the weekly papers two millions. In 1782, the newspapers published in Great Britain and Ireland were only seventy-ninein the next eight years, to 1790, they had sustained the extraordinary increase to one hundred and forty-six: but in the following thirty years, ending in 1821, they had augmented to not less than two hundred and eighty-four. The greater journals published in London were at the first period (1782) eighteen; in 1790, they were thirty-two; and in 1821, they had increased to fifty-six. Prior to 1790, weekly papers did not exist; in 1821, there were not less than thirty-two such papers published in London alone. Circulating libraries had increased with the same extraordinary rapidity. In 1770, there were only four in the metropolis; in 1821, the number was not less than one hundred; and about nine hundred were scattered through the country. Book clubs, and reading societies, which were unheard-of till within the last twenty years, existed, in 1821, to the number of 1500 or 2000.
We leave these facts, without comment, to speak for themselves. Every one's observation will, indeed, satisfy him of the prodigious activity of the press of the present day; but we have referred to these details in order to remind our readers of the extraordinary ratio in which that activity has increased within the last thirty years, and in which, or in nearly an equal degree, we may fairly presume that it still continues on the advance. The change is not alone in the mere mass of publication issuing from the press; the advance and improvements in the average quality of its productions (setting aside, of course, some extraordinary examples, and single high and stately departments of literature)-is not a whit less remarkable. Any one who has even cursorily compared the newspapers, magazines, and reviews of the present day, with the corresponding publications of thirty years ago, must have been struck with the superior information-the increased vigour
of thought and style-the far superior command of all the weapons of authorship, and all the means for producing effect on readers, which belong to the contemporary writers of this description.
That so much talent and activity should be unaccompanied by any tendency to transgression and excess;-that so much of good and utility should exist without its leaven of abuse,— was more than could be expected. On the contrary, it was to be anticipated that as the energies of the engine became more and more developed, its dangerous tendencies must become more conspicuous, and, of course, call for adequate safeguards against a redundant vigour-and, accordingly, the reports of our law proceedings at the present day bear witness, that, with the advancing influence and authority of the press, there has been a corresponding increase of appeals to the law against the mischiefs of its exuberance and licentiousness. The government, for a considerable period, has not stood forward among the complainants against authors; but scarcely a week now passes without producing several instances of private individuals, or public bodies, coming into the courts, and claiming the protection of the law against the calumniators and censurers of their. conduct. We think the present, therefore, not an unfit season for offering some observations on the law for punishing and restraining the excesses of writers, as it stands— and inquiring how far certain popular objections lately originated, or revived, against that law, are well or ill-founded. It is of the last importance that a law of such general influence and use should be rightly understood and freed from all misrepresentation—that it should be approved if wise, amended if defective. — We do not propose to enter into any historical view of the progress of the English law of libel; we shall not inquire whether it came to us from the court of Star Chamber, or the Roman republic, or emperors ;-thus much may be said in passing, that if the law came to us from Rome, few traces are to be found in it of descent from a code which punished libels on the state (famosi libelli) with death, and allowed individuals to recover damages for written calumny, whether true or false. But such inquiries are rather of historical curiosity than of direct practical interest. The claims of every law to the approbation of those who live under it, must rest on its operation and influence, rather than on any merits of pedigree; and the vices of its origin are of slight importance, if its actual condition and effects are proved to be sound and salutary. Nothing, we conceive, can be more superficial than the objection occasionally raised against the English law of libel, that it is not defined that there is no statute, nor even book of authority, wherein the various kinds of libel are set down and enumerated,
merated, so that the precise limits of the offence may be ascertained. Those who make such objections must have considered very inadequately the peculiar, the intellectual nature of the offence, and the very wide distinction that separates it from all ordinary delinquencies, consisting in some physical act operating against corporeal persons or property. What definition could any lawgiver devise, to embrace and mark out every species of composition, which may be a means of occasioning any one of the innumerable descriptions of injury, which the characters and feelings of men are capable of receiving? The only approach to definition which can be attempted, must be made with reference to the tendency and intention of the writing. To describe, or enumerate, or classify the writings themselves, by any other criteria, is obviously impossible; and even taking this, the most certain mode of description which the subject admits, a little attention will convince any one, that the most elaborate efforts must end at last in a generality of description, not less vague than that which our courts from necessity adopt. It is easy for the definer to declare that every writing, imputing to an individual any legal crime, is libellous-and he may extend the definition with certainty to every writing imputing any moral offence. But where will he discover the terms to mark out all the other compositions or symbols, which, imputing neither legal nor moral guilt, yet having, when wantonly published, a tendency to vilify, or render ridiculous, or provoke, the law wisely considers as fit subjects for punishment? The most logical of the advocates of definition appears to have arrived at nothing more satisfactory than declaring libel to be the imputation falsely of all acts hurtful to the person against whom the imputation is brought, by reason of the disrepute and dislike which attach to him by whom such acts are supposed to be committed:'-a description at once open to every charge of vagueness advanced against our law, and, at the same time, marvellously faulty; first, in excluding all writings not imputing acts,-whereas the most malignant libels often consist in the imputation of mere qualities and dispositionsand still more in omitting altogether the ingredient of malicious design in the writer, which, although in general an inference from the composition itself, is still of the essence of the offence, and the omission of which would render libellous a multitude of innocent and excusable communications, which one individual, in the ordinary transactions of life, may, under honest mistake, impart to another. But does any rational man suppose that any thing is gained in point of certainty of reasoning, or security of free
* Mill's Tracts.—Art. Liberty of the Press.
dom, by any such legislative definitions as these, or any others which could be arrived at, on a subject at once so subtle and so multifarious? General definitions, in moral and practical subjects, are, in truth, the least certain and most hazardous things imaginable; and nothing so easy as to stretch them or contract. them in their application, for the admission or exclusion of any particular facts. Those, therefore, who reject any but a law of definition, must either be content to leave the transgressions of the press entirely without controul-or they must admit the State for their critics as well as their rulers, according to Milton's phrase, and adopt the expedient of a preliminary censorship.
To a few perverse thinkers, it may be no recommendation, that the English law of libel is administered by a jury; but we may venture to suggest to the public at large, who prize and revere that institution, that this very indefinite nature of the law of libel has materially contributed to bring its practical administration so peculiarly within the jury's province. Had the law of libel been written and defined, like the law against forgery or the law against obtaining money on false pretences, there can be no question, that to this day the application of the law to the particular facts of each case, would in libel cases, as in the other species of offence, have remained entirely with the judge, instead of being, as it is now, vested in the hands of the jury. The case of libel would never have been made, indeed it would not have required to be made, an exception to the ordinary rule, that the criminality or innocence of any particular act is the result of the judgment which the law pronounces on that act, and must, therefore, always be a question of law, and not a question of fact;* and judges would have gone on to this hour-as they did till the passing of Mr. Fox's Act, 32 Geo. III., c. 60, and as they were bound, in our opinion, by the principles of law to do-requiring the jury to find a verdict of guilty on the mere proof of the publication of the libel, and on their being satisfied that the sense ascribed to it by the information or indictment was sound and correct. The jury would have thus continued to be now, as they were formerly, excluded entirely from one half of their present important functions-debarred altogether from pronouncing on the vital question in the prosecution-viz., whether the writing has or has not a calumnious or seditious character and tendency-whether it be or be not a libel. But it was precisely the difficulty of dealing with so delicate a subject, and the danger, or at least the apparent danger, of entrusting the sole application of a law so indefinite to judges appointed by the crown,
See the Answers of the Judges to the questions of the Lords previous to the passing of the 32 Geo. III., c. 60.-Lords' Journals, vol. xxxix., p. 412.