which called for legislative interference, and occasioned the law to be what the 32 Geo. III., c. 60, has now made it. It was to guard against a judicial power so liable to abuse, and still more to suspicion, that the legislature resorted to the only sound and satisfactory cure for the evil of a vague law, viz. that of withdrawing its application from the judge, and leaving the whole matter, as Mr. Burke expresses it, to the province of popular judgment.' The judicial anomaly, therefore, of the extraordinary powers of the jury in cases of libel, is, in truth, to be regarded as a wise and efficient compensation for the necessary uncertainty and imperfection attending the very best descriptions of this crime. Instead of striving at a hopeless remedy in metaphysical definitions and futile word-catching, the legislature looked for a practical safeguard in an impartial and popular application of the law. They thought it right that a penal rule, inevitably wanting the ordinary securities of precise and defined terms, should be applied to particular cases, by a popular rather than a professional body-by a body whose constitution peculiarly guaranteed their independence and purity, and especially ensured public confidence, and whose minds were better fitted by the absence of technical habits for the determination of questions depending on plain sense and popular feelings. If the law, therefore, be indefinite, it is not on that ground insecure. What is wanting in the certainty of the rule is abundantly made up by the integrity of its application. Our law, as finally established by the statute of the 32 Geo. III., has thus left this important question, in the last resort, to the arbitrament of twelve jurors, whose mode of selection, since the improvement of Mr. Peel's Jury Bill, is such as to place their independence beyond question. But though libel in England (and as yet no other country can boast of such a definition) may thus be stated to be that, and only that, which twelve impartial citizens, declare on oath to be libel, yet it is not to be supposed that all principles of law on the subject are superseded, and that juries can conscientiously decide upon the matter according to chance or caprice. The law does all it can by laying down the broad characteristics of the offence; and it leaves the application of these general rules to particular facts for a jury, guided, but not governed, by the skilful directions of a judge. What the principles of law on the subject are, we will now succinctly state. The law denounces as libellous all writings published with intent, and having a tendency, to revile, or ridicule, or degrade the Christian religion, the Holy Scriptures, the established church, or any of its rites, the king and his government, the houses of parliament, the courts of justice, the magistrates-or, in short, any private individual, however humble and obscure. There must be 1., a publication a publication-2. a writing, or other sign, or representation-3. an offensive tendency to vilify and lower in public estimation-and 4. a malicious intent to produce such effect. When considered in the abstract, this definition may appear, perhaps, vague and unsatisfactory; but when applied in the concrete,-when the particular writing is brought to the test of the law, and the question is to be decided, whether that be or be not marked by the required characteristics-much of the difficulty vanishes; and (except when prejudice or party-spirit warp the judgment) there are few cases wherein any two intelligent men would long differ in deciding whether the libellous qualities are made out or not. -- No publications, therefore, being libellous, but such as are distinguished by all the above criteria, a slight observation will at once show the wide and multifarious field of free publication, which is left totally open from the restraints of the law. The English law of libel applies only to written compositions. Words spoken, however defamatory and malicious, are subject to no criminal proceedings, though they may, in certain cases, be the subjects of a civil action: (we do not at present inquire into the soundness of this distinction.) The noxious or defamatory tendency of the writing will not alone constitute it libel, where the circumstances are such as to negative a wicked or malicious, and to raise a presumption of honest and conscientious, motive in the publisher. On this principle, fairly and temperately to discuss and animadvert on the doctrines, the rites, the ceremonies of the national religion-to question the soundness of particular doctrines, or the propriety of particular ceremonies, is entirely lawful, provided the manner be decent and the intent honest, and provided Christianity, as a whole, be not attacked or impeached. So, also, to agitate abstract or even practical questions of government, policy, and morals receives no check from the law, so long as truth is the real and honest object of the writer, and the pursuit of it is not made a colour for attacking and vilifying the existing government and institutions, or for tainting the public mind with immorality or irreligion. So also with respect to public men, and their measures, and conduct, from the highest individual in the realm to the lowest civil functionary. Their proceedings and conduct in their public character may be made the subject of discussion, and of censure even strongly expressed, provided the writer confine himself to their public conduct, and clothe his remarks in a decent and temperate, though censorious, style. In a prosecution for a libel on the highest person in the realm, Lord Ellenborough thus expresses himself:"The information treats this as a libel on the person of his Majesty, and his personal administration of the government of the country. But there may be error in the present system without any any vicious motives, and with the greatest virtues on the part of the reigning sovereign. He may be misled by the ministers he employs, and a change of system may be desirable from their faults. He may himself, notwithstanding the utmost solicitude for the happiness of his people, take an erroneous view of some great question of policy, either foreign or domestic. I know but of one Being to whom error may not be imputed. If a person, who admits the wisdom and the virtues of his Majesty, laments that, in the exercise of these, he has taken an unfortunate and erroneous view of the interests of his dominions, I am not prepared to say that this tends to degrade his Majesty, or to alienate the affections of his subjects. I am not prepared to say that this is libellous-but it must be with perfect decency and respect, and without any imputation of bad motives.'-The King v. Lambert, 2 Campbell's Reports, 402. So also with respect to private individuals though the statement of falsehood is punished both civilly and criminally, so long as the writer keeps within the bounds of truth in his communications, his real and effectual responsibility to the law is very slight. He is subject neither to a civil action, nor to a criminal information. It is true he may be prosecuted by indictment; but the serious disadvantages to which such a proceeding subjects the prosecutor render it of comparatively rare occurrence and inefficient operation. And it is to be observed, that neither this, nor any proceeding at all, can be supported, where the publication is made under such circumstances as show the writer's motive to have been laudable, and the publication to be useful or necessary for any fair objects in the ordinary relations of life. Instances will best illustrate the great extent to which useful communications, though reflecting severely on private character, may be made with perfect impunity. Thus the true communication of the character of a servant, however injurious to his reputation-the published report of a court-martial, or duly-constituted board of inquiry, however prejudicial to the character of an individual-a confidential letter written by one partner to another, reflecting, however severely, on the conduct of a person in their joint employment-a letter written by a stranger to a gentleman giving him candid information of malpractices committed by his steward—a petition bonâ fide addressed to the Secretary at War by a creditor, in order to obtain an officer's pay, though containing matter highly derogatory to the officer's character a petition presented to Parliament, containing calumnious matter as to an individual, if not irrelevant to the object of the petition-an advertisement, inserted by direction of a wife. in a newspaper, for the purpose of investigating whether her husband husband were or were not previously married, though such advertisement obviously imputed bigamy to the husband-all these cases, and many more of a similar complexion, have been held not libellous writings, since the circumstances and mode of the communication do away the inference of a malicious design, and show the publication to be useful or necessary, and the motive upright. In the same manner the fullest latitude is allowed to all statements, whether written or oral, published in the course of prosecuting or defending a party's cause, in a court of justice, or any other constituted court, although such statements may be calumnious on an individual, and even not strictly true. The circumstances and mode of such publications show them not to be malicious. And for purposes of public benefit, and to give full publicity to judicial proceedings, the law allows a publication to the world of the real facts and history of such proceedings;—and such reports, if given with truth and correctness, will scarcely, in any circumstances, be considered as calumnious in stating the guilt which may be proved against the parties to them, although the same degree of impunity will not always attend the statement of matters alleged in court, which inculpate third parties only incidentally involved. The privilege extends not merely to the narration of the facts, but to free comments and observations on the facts proved on the conduct of the parties concerned, and on the judges and jurors, provided such remarks be decent and respectful in their style. Literary criticism, and the free discussion of the merits and defects of authors, as well as actors and dramatic representations, are also totally without any legal restraint-and even the weapons of sarcasm and ridicule are perfectly lawful for the purpose of exposing ignorance, bad taste, or false pretension. Lord Ellenborough's language on this subject is 'One writer, in exposing the follies and errors of another, may make use of ridicule, however poignant. Ridicule is often the fittest weapon that can be employed for such a purpose. If the reputation or pecuniary interests of the person ridiculed suffer, it is damnum absque injuria. Where is the liberty of the press, if an action can be maintained on such principles? Perhaps the plaintiff's tour through Scotland is now unsaleable; but is he to be indemnified by receiving a compensation in damages from the person who may have opened the eyes of the public to the bad taste and inanity of his compositions? Who would have bought the works of Sir Robert Filmer, after he had been refuted by Mr. Locke? But shall it be said that he might have sustained an action for defamation against that great philosopher, who was labouring to enlighten and ameliorate mankind? We really must not cramp observations upon authors and their works. They should be liable to criticism, exposure, and even ridicule, if their compositions be ridiculous; otherwise, the first who writes a book on any subject subject will maintain a monopoly of sentiment and opinion respecting it. This would tend to the perpetuity of error. Reflection on personal character is another thing. Show me an attack on the moral character of this plaintiff, or any attack upon his character unconnected with his authorship, and I shall be as ready as any judge who ever sat here to protect him; but I cannot hear of malice, on account of turning his works into ridicule.'-Carr v. Hood, 1 Campbell's Reports, 355. Such being the law, it remains to notice the mode of procedure by which it is enforced.-Libels affecting the church, the state, public institutions, and public morals, not being of individual application, can of course only be regarded as public crimes, the subject of penal proceedings. Libels affecting individual character are also regarded as crimes, being contra bonos mores, and hostile to the peace and harmony of society-but, as they are moreover injurious to individual reputation, the injured party may seek compensation in a civil action for damages. All libels are thus punishable criminally; libels of private character are, in addition, the subjects of a suit for private reparation. The criminal proceedings are either by ex-officio information, filed by the AttorneyGeneral, on behalf of the Crown, for libels on the Sovereign, the ministers, religion, the houses of parliament, or any other libels of a public nature, which that high public officer thinks proper to prosecute; or, secondly, by a criminal information granted by the court of King's Bench, at the instance of any injured party, on affidavits stating the publication of the libel, and asserting distinctly the applicant's innocence of the imputations cast upon him; or, thirdly, by an indictment in the ordinary course before a grand jury. The first mode is, of course, only resorted to, in general, agamst libels of a seditious and blasphemous character, or reflecting on officers of state or members of the government. The second is generally pursued in cases of private false libels on persons of some rank or station, or where the libel is of so flagrant a character as to call for an extraordinary interposition of the court; -for, it must be observed, that the proceeding by criminal information supersedes the office of the grand jury, and the party is called upon to plead, and held to bail, on the mere filing of the information, with permission of the court, instead of the preliminary finding of a bill by the grand inquest. The third mode of proceeding is adopted in cases where neither the Crown interposes, nor the case is such as to be a fit subject for an application to the court for a criminal information, and where the party prosecuting prefers this mode of avenging his wrongs to a civil action for damages. As the law regards libel as a public crime, on the technical ground of its tendency to produce breaches of the public peace,--but, in reality, because the attack on reputation is so flagrant a private in jury |