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dence of truth or falsehood stands to the only real questions in a prosecution for libel.

Having thus disposed of the more technical question, as to the propriety of admitting the truth or falsehood merely as evidence affecting the question, we will proceed to the far more important and purely political question, whether the truth ought or ought not to be admitted as a conclusive defence to a prosecution. We are sorry to have detained our readers so long on a discussion hitherto somewhat technical and forensic. In considering the propriety of the law, which declares that truth may be libellous and prosecutable, we are anxious to reduce the question to its right light and proper limits by throwing out of it all that prejudices and embarrasses, without fairly belonging to it. It is obvious, that truth or falsehood, in language of even ordinary accuracy, can only be predicated respecting matters of fact; and, that though in common parlance we may frequently assert an opinion, or a conclusion, or even a sentiment, to be true or false, this is only a lax mode of asserting it to be sound or fallacious; facts alone are capable of being proved or falsified. Proof may be adduced that an individual claiming damages has really committed the theft, or the perjury, or the adultery, which the libeller charges upon him; but for the libeller to come into court with his witnesses and documentary evidence, to establish an abstract principle or opinion in politics, or morals, or religion,-to prove a calumnious metaphor-or figure, or to substantiate a personal sarcasm, or sneer, would be a proceeding not less novel than nonsensical; and if the party did not in adopting it incur the risk of a commitment for contempt of court, he would at least be considered as an untimely and indecently audacious jester. The question, therefore, of truth or falsehood is, it must be admitted, one that can only concern prosecutions against libels which allege matters of fact. In prosecutions against any of the other endless varieties of libellous compositions, whether consisting in irreligious, or seditious, or immoral sentiments or reasonings, or in declamatory invective, or cold-blooded scoffing against individuals, the question of truth or falsehood in real effect can seldom any more enter into the inquiry than the colour of the paper or the ink by which they are set forth. The law, then, which says that truth may be a libel, in no way endangers or affects the freest discussion of any abstract or speculative questions, whether religious or political, and hardly ever of any public measures of the government, or its ministers; and it is a great error to suppose that any additional license would be acquired for any such inquiries, were the law altered, by allowing truth to be a defence to prosecutions. The guilt or innocence of such publications, in almost all cases,



depends altogether on other principles, which the alteration. of the law, by admitting evidence of truth, would in no degree touch. The privilege of giving truth in evidence, did it exist, could avail nothing to persons indicted for works against religion or the Holy Scriptures, and could very rarely assist those charged with libels on the government. It would have been amusing to have heard Mr. Erskine, on the part of Paine,* tender evidence before Lord Kenyon, of the truth of the statements in the Age of Reason, that the Bill of Rights was a bill of wrongs and insult,'-that William III. was rather a less evil than James II.,'-that the farce of monarchy and aristocracy was following that of chivalry, and Mr. Burke was dressing for the funeral,'or that it requires some talents to be a common mechanic, but to be a king requires only the animal figure of a man,' and other similar declamations, which formed in effect the seditious sting of that unhappy man's libel. How could truth or falsehood have been proved as to such a libel as that for which Stockdale was punished, that the impeachment of Mr. Hastings was carried on from motives of personal animosity, not of regard to public justice;' still less as to that in the King v. Frost, that equality was every man's birthright, and that there ought to be no king;' or as to that in the King v. Lambert, § that of all monarchs the successor of George III. would have the finest opportunity of becoming nobly popular.' It is sophistry to say, that if libels do not impute actual facts, but deal in general declamation, they can do no harm, and ought not to be punished: for all the bad ends of exciting hatred against the government, or undermining the respect due to religion, the libeller's most effective weapons are precisely the vague sneer and general invective. Paley has said there is no arguing against a sneer, and still less is it capable of proof or disproof. The above are not instances unfairly.selected, but taken at random. The libels in the cases of the King v. Hunt, || the King v. Drakard, ¶ the King v. Burdett, the King v. Hone, might be referred to on looking through the records of proceedings for libel against the government, extremely few instances indeed will be found in which the terms of the libel are such as to admit of the proof of truth, even if the law allowed it.

From the very nature of the case it must be so. Political crimes, errors of policy, invasions of public liberty, arbitrary interference with civil rights, form the substance of almost the only delinquencies which rulers, as such, can commit, or at least which they, in

* State Trials, vol. 22, 755.
State Trials, vol. 22, 471.
State Trials, vol. 31, 367.

+ State Trials, vol. 22, 237.
§ State Trials, vol. 31, 335.
State Trials, vol, 31, 495.



modern days, are ever in the habit of committing. But the mere dry statement of such conduct, or conduct supposed to be such, unlike the statement of the legal or moral crimes of individuals, would in scarcely a single instance amount to a defamatory libel, -though it may easily be made so when exaggerated and inflamed by virulent comment and colouring. For instance, in Horne Tooke's libel,* alleging our American fellow-subjects to be inhumanly murdered by the king's troops, for preferring death to slavery,' the statement of the naked fact of the king's troops having shot some American rebels at Lexington would obviously have been no libel at all; it was only when the shooting was called an 'inhuman murder,' and the condition of the Americans described as slavery,' and their rebellion a laudable resistance to slavery, that the statement became highly seditious and illegal ;-but it is obvious, that the proof of all that was fact in this statement would have availed Mr. Horne Tooke just nothing towards justifying its distortion and virulence—that is, towards doing away with all that made it libellous. In reality, the defendant here was actually allowed to prove the fact of the troops attacking and firing on the rebels-so entirely distinct was this considered from proving the truth of a libel. (20 Sta. Tri. 743.) The clamour, therefore, occasionally raised against the present state of the law, as tending to screen the government from the attacks of the press, and to prevent writers from freely and boldly censuring the conduct of their rulers is, we venture to say, the result of groundless mistatement and most gross exaggeration. We have shown that the law declaring that truth may be a libel, in the majority of cases, can have no such effect; and that the libellers of the government who have heretofore been brought under the lash of the law, must equally have suffered punishment had the law admitted truth as a justification. The case, indeed, is widely different with the assailants of individual character. The mere statement of facts of private conduct-of actions either immoral or ridiculous-may be in the highest degree defamatory and offensive, although unquestionably true--and even the more so on that account: what says the French proverb?- C'est la vérité qui blesse.' To admit evidence of the truth in justification would, of course, entirely screen from punishment all publishers of such private defamation. The only persons, therefore, with scarcely any exception, who are really concerned in an alteration of the law, are not the canvassers of public questions, and the censurers of the measures of government, (writers who often do much good, and whose excesses often proceed from excusable causes,) but the slanderers of private fame, the traffickers in indi*The King v. Horne. Cowper's Rep. 672-82. State Trials.

vidual vices and frailties, the inquisitors of domestic life, the foulfingered gropers for details which ought never to meet the light,— a class whose objects are, in general, mere malice or gain, and whose writings are scarcely ever attended with any advantage to society.

The question being thus placed in what we believe its only true bearing, is the law wise, or injudicious, which forbids the truth of the statement to be given in evidence on an indictment for libel? If the proof of the truth did away with the ground of the public prosecution, as it does with the basis of the private action, in all consistency it ought to be adducible. But if the libel tends equally to produce all the mischief which makes it criminal in the eye of the law, whether it be true or false, the allowing the proof of the truth would not only be a departure from principle, but would at once do away with the efficacy of the law in at least half of the cases falling within the mischief. We care not whether the law makes a libel criminal on the technical ground usually assigned,-viz. its tendency to breaches of the peace-or on the general policy of suppressing libellous writings; that is, because it considers the malicious and unauthorized attack on fame in the same way as it considers public nuisances, assaults, conspiracies to defraud, &c., &c.—not as mere matters of individual injury, but as public outrages, which the general peace of society requires to be criminally punished. It is puerile special-pleading to quarrel with the law, merely because the technical reason on which it rests may sound quaint and unsatisfactory, unless it can also be shown that its real object is mischievous or unwise. The public mischief of turbulent and unauthorized attack on character being what the law of a civilized country is to guard against, if it be clear that this mischief is produced equally, whether the libel be true or false, there is no principle on which the truth can be admitted in defence. Until the law ceases to regard libel as an outrage upon the peace of society, it cannot in consistency hear anything from the libeller but what tends to show that, in the particular instance, no such outrage has been committed; and showing the truth of the statement, so far from doing this, has rather the contrary tendency. Let it be declared that the traducer of private life, the malicious propagator of domestic foibles and obscure vices, is no public offender, but has only a personal account to settle in monies numbered with the individual whom he assails, and the law would be consistent at least, though, as we think, highly unwise. But as long as you continue to denounce the libeller as a delinquent against society, as a criminal public disturber, it is inconsistent to draw a distinction between true libels and false libels, since both are noxious to the public. By doing so, you allow the


libeller to address to society a defence which is purely ad hominem,-which only applies to the individual object or victim. You allow him to throw rockets in the public streets, because he tickets them for his private enemy-to commit a public nuisance, and then set off against the public his score with A. B., for whom alone he tells you the nuisance was intended.—But the indictment, it is alleged, is after all a private proceeding, always prosecuted by the individual libelled, and on which no bill would be found if prosecuted by any other party: why not treat it, therefore, as a private proceeding, and allow the truth to be an answer to it? We deny that it is a private proceeding. True, the crime is generally prosecuted by the libelled party, but it is not prosecuted for him, but for the public only. The prosecutor gains nothing by the proceeding, but necessarily incurs expense, and trouble, and odium, and does not even clear his reputation. It has every quality of a public proceeding-the prosecutor is a witness-the form of action and the tribunal are accordant with a public and not a private proceeding—and the end is punishment, not compensation. Every prosecution for housebreaking or robbery might as reasonably be styled a private proceeding, because the party prosecuting is, in ninety-nine cases of a hundred, the party injured by the crime. The prosecutor in all such cases is obviously but the instrument which puts in force the public law for the public benefit.

Some writers on this subject take lofty ground: they boldly contend, that there is great hardship in a party being punished for speaking nothing but what is strictly true, since every one, say they, has the right of speaking the truth. That there is an obligation on every one to speak, and still more to publish, nothing but what is true, we admit; but we entirely deny that it follows from hence, that every one has any right to speak, and still less to print and publish, all that is true. The right is necessarily limited to such truth alone as is beneficial or not prejudicial to the public. The truths of science, of philosophy, of literature, and of all intellectual and moral inquiry being clearly advantageous to the world, are subject to not the slightest censure or restriction by the law of the land. But when the law is called upon to permit the publication of vituperative and defamatory truths, it becomes necessary first to inquire whether such truths possess an equal, or any real claim at all, to the allowance of the law. Do such publications contribute to improve morals, to check crime, to incite to good conduct? And, if so, do they attain those ends without counterbalancing evils and disadvantages, which outweigh the good effected? It must always be remembered, that the question solely relates to volunteer and gratuitous publications of facts, for the mere general object of holding up and exposing vicious


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