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to the innocence of his motive,-whereas proving the actual truth of his story is still not inconsistent with the supposition, that he published it maliciously, and believing it false. Whether a prosecutor ought to be allowed to press for a severe sentence, by proving the defendant to be the fabricator of the libel, knowing its falsehood, is another question; though we confess we think this is a crime so far aggravated above the ordinary guilt of casual publishing in haste or negligence, that the court ought to hear such facts in awarding the punishment. According, however, to the rule of the King v. Burdett, it is clear, that neither the falsehood nor the truth can be received in proof, where the calumny imputes an indictable crime; and, from the language of the Lord Chief Justice, it is obvious that his acuteness saw that proof of the mere falsehood by the prosecutor has really no bearing on the point of the degree of guilt, unless the evidence goes further, and shows the defendant's knowledge of the falsehood; in the same way that his lordship considered that the actual truth of the occurrences at Manchester could not extenuate Sir Francis Burdett's letter, when it appeared that the letter was written merely on the faith of a newspaper report, and in igno rance whether the alleged occurrences were really true or false.
In the case, therefore, of a prosecutor seeking to enhance the punishment, by showing the falsehood and the guilty knowledge of it, and in this case alone, we think the defendant ought to be allowed to rebut the evidence against him by proving the truth of his libel. Where the highly-aggravated guilt of being the malicious inventor of a calumny is sought to be fixed on the libeller, he must be allowed to meet such an attempt by adequate evidence ; but where the defendant stands before the court as the mere publisher of a defamatory statement, neither the false and malicious invention thereof, nor even the guilty knowledge of its falsehood being charged upon him, we think the truth of the statement is really immaterial to the question touching the amount of his malice; and, we conceive, that evidence in mitigation can, in such case, only be fairly sought in collateral circumstances attending, preceding, or following the publication, which go to the very root of the defendant's views and intentions in putting it forth. If this be a correct view of the matter on principle, it is obvious that, practically considered, the allowing the defendant to repeat his libel with proofs in the face of the court, by way of mitigation of his guilt, is a proceeding most offensive to the court, open to most grave objections, in fact likely to be attended with all the bad effects which, as we have before shown, must follow from allowing such evidence in total bar of the proceeding. It would also have one additional and serious evil, viz., that the trial of the
truth or falsehood of the libel must, in this stage of the proceeding, be upon affidavits, cut off, therefore, from the advantage of cross-examination, or any of the other safeguards which attend a viva voce inquiry. In the case before supposed, where the prose cutor himself calls for such a trial, by producing affidavits proving the falsehood of the writing, he, and not the defendant, is the cause of the investigation of the question; and it might perhaps form a recommendation of the plan of allowing a prosecutor to open this question, by proving the falsehood, accompanied with guilty knowledge, in aggravation, that this course would free the proceeding by indictment from the objection before alluded to, -namely, that it amounts almost to a tacit admission of guilt on the part of the prosecutor.
One word more on the practical execution of the law which we have been reviewing and discussing. We have before applauded the wisdom of the legislature, which intrusts the application of so critical a code to the pure and popular tribunal of a jury. If our property and lives are safe in their hands, individual fame, the outwork which defends all other possessions, and makes them all valuable,' must equally depend for security on their verdicts. We trust that juries will never forget that they are invested by the law of libel with a two-fold trust; and that while they are the guardians of all useful freedom of discussion, they are the constitutional safeguards on which society relies against anonymous detraction and ribaldry. It is with them in practice to draw the delicate line between the legitimate uses and the pernicious excesses of authorship; and let them remember, that while the press justly looks to them for defence against any arbitrary aggressions of power, the public equally demand at their hands effectual protection against licentious invasions from the press. It is not less their duty to check its excesses, than to guard its legitimate exertions from obstruction. By the help of juries the press has triumphed over all its enemies and antagonists, and is in possession of an authority and influence daily increasing, and already immeasurably beyond anything that could have been anticipated, even at a very short distance of time. It is for juries now to defend society and individuals against the excesses of a triumph valuable in itself, but indescribably perilous in the extravagances to which it has a tendency. They saved the press from becoming a victim,-let them restrain it from growing into a tyrant. Let them not fancy (though many noisy writers perpetually tell them so) that injury and persecution are, in all circumstances, the characteristics of the press when it appears in a court, or severity and oppression the invariable attributes of those who make complaints against it. Let them separate clearly in their minds
between the public discussions and animadversions, and the private inquisitions and calumnies of authors. Let them neyer imagine that they are serving the cause of useful freedom of discussion, by shielding from punishment that scurrility, which is separated from it by a broad and palpable line, not to be confounded by all the efforts of interested writers, who would abuse the valuable immunities of the press to the wretched purposes of venal detraction, and a lucrative pandaring to the morbid tastes of the public. But, above all, let them not fancy that the undefined and peculiar nature of the libel-law can ever leave them, consistently with their consciences or their oaths, any latitude to adjust, and balance, and legislate on the cases coming judicially before them. It is not for them, in their ministerial office, to speculate, whether the law is wise or unwise in declaring, as it does, that a writing tending to defame, or degrade, or render ridiculous an individual, is a punishable libel; while such is the undoubted law, jurors are bound by their oaths to respect and enforce it, whenever its violation is established before them, as much as if fifty statutes had defined its terms. When they are satisfied that the writing prosecuted has the illegal tendency, it is not for them to canvass, whether, under all the circumstances, it is fit or unfit that it should be punished-whether the probable sentence or the costs of a conviction may or may not be a hard measure of justice on the individual libeller. If they see clearly the illegal tendency and quality of the writing, they cannot acquit, from any such considerations, without tampering with their consciences, and perilously violating a religious obligation. If motives and views of this sort ought not to influence jurors, we believe they are, and ever will be, equally above being swayed by the insolent intimidations and the insidious flatteries by which certain parts of the press unblushingly endeavour to practise on them. Let them not mistake the interested clamours of journalists (differing on all possible subjects, and only unanimous on their own right to full and eternal privilege of tongue') for the voice of the public at large. When an acquitted journal overloads them with its interested gratitude, put forth with all the consequential air of an award of impartial praise, let them not become the dupes of such shallow flattery, which they could only laugh at if addressed to them by any other defendant, not the proprietor of a printing press: and when they fearlessly do their duty, in convicting a libeller according to law, let not their satisfaction of conscience be diminished, or their firmness shaken by the threats or insinuations, which the convicted defendant and his literary compeers may put forth, with the pompous pretensions of expressing the public censure, when, in truth, they are only upholding their private and pecuniary
interests. The applause or disapprobation of a plaintiff or defendant can never be the guide of an honest juror in the discharge of his duty; an approving conscience, and public respect, will make him despise alike interested censures and suspicious eulogy.
Note to the Article on the Sandwich Islanders. (p. 419.)
SINCE the preceding pages have been struck off, we have been favoured with the following literal copy of a letter of Boki, (which we pledge ourselves to be genuine,) confirming what we have stated with regard to the conduct of the American missionaries at the Sandwich Islands.
Island of Woahoo, Jan. 24, 1826.
Sir, I take this opportunity to send you thes fu lines, hopping the will find you in good health, as ples god the leve me at present. I am sorrey to inform You that Mr. Pitt (Karaimakoo) has gon thro four opperashons sine you sailed from here, but thank god he is now much better, and we ar in hops of his recovery, and I am verey sorey to tell you that Mr. Bingham the head of the Misheneres is trieng evere thing in his pour to have the Law of this country in his own hands. all of us ar verry happy to have sum pepel to instruct us in what is rite and good but he wants us to be intirly under his laws which will not do with the natives. I have don all in my pour to prevent it and I have don it as yet, Ther is Cahomano wishes the Misheneres to have the whol atority but I sholl prevent it as long as I cane, for if the have ther will be nothing donein thes Ilands not even cultivation for ther own use. I wish the pepel to reid and to rite and likewise to worke, but the Misheneres have got them night and day old and young so that ther is verrey little don her at present. The pepel in general ar verrey much discetisfied at the Misheneres thinking they will have the laws in ther own hands. Captain Charlton has not arived from Otiety which makes me thing sumthing has hapned to him. Mr. Bingham has gone so far as to tell thes natives that nether king George nor Lord Biron has any regard for God, or aney of the English cheefs, that they are all bad pepel but themselves, and that ther is no Redemsion for aney of the heads of the English or American nations. God send you good health and a long life
Mrs. Boki sends her kind love to Lord Biron and Mr. Camrone and the Hon. Mr. Hill.
Note on Life Assurance. (See Article I. in last Number.)
We find it necessary to offer a caution to our readers with reference to one part of the article on Life Assurance in our last Number. At page 9 is inserted a Table of the rates of profit charged by the various offices at the presumed average age of forty-six, which, in conjunction
VOL. XXXV. NO. LXX.
with the sentence which immediately follows, may produce an impres sion that the Table affords a fair criterion by which to judge of the comparative rates charged by the different companies at the various periods of life. This impression, however, would be incorrect; and we therefore hasten, in justice to our subject and to the Assurance Companies, to rectify it.
The tables of mortality chiefly used by the Assurance Companies, are those of Northampton and Carlisle. The premiums calculated from the Carlisle tables are lower, on the younger lives, than those framed from the Northampton rates of mortality; but, on the other hand, they are higher on the older lives. This being the case, it is obvious that the rate of profit charged by the various Companies, at different periods of life, must necessarily vary, and consequently that the Table referred to, though accurate as it respects the comparative rates of profit charged at one age, is wholly inaccurate if it be taken as a guide to the comparative rates of profit which are charged at all ages. We shall endea vour to make the matter perfectly clear by an example:-At the age of forty-six, the premium of the Sun, and of the Alliance Companies, which use the Carlisle tables, is 4l. Os. 5d. per cent., while at that age the premium of the Equitable, which makes use of the Northampton tables, is only 4l. Os. 2d., and of the Guardian, 31. 17s. 3d. per cent. But, on the other hand, taking the age of twenty-one, the premium of the Alliance and the Sun is only 17. 17s. 11d. per cent., while that of the Equitable is 2l. 4s. 6d., and of the Guardian, 2l. 1s. 10d. per cent. We have no doubt that this explanation will remove any misconception that may have arisen on the point in question.
Among several communications which we have received on this subject, one appears to us to deserve a place in our pages. The author expresses his opinion that both Mr. Babbage and his reviewer have taken an erroneous view of some part of the subject. · Mr. B. (he says) seems to have an unreasonable prejudice against such societies having a capital. Now, I acknowledge this to be unnecessary, where the premium, as in the Equitable, is much higher than the waste of life requires; but if a society be established on the principle of taking the lowest possible premium, there can be no doubt but that a capital is then necessary for the security of the assured. In p. 12 (of the Review) there is an extract, in which Mr. Babbage makes a comparison between two societies, one of which has a capital of 200,000l., and he supposes the profits in each to be the same: in the division of the septennial profits to the assured, he makes them in one case 15,000l., in the other, 50,000l. This supposes that the capital has been shut up in a chest, quite unproductive, a plan, it is presumed, which no society ever-adopts: if the directors make five per cent. on it, the dividend to the assured will be the same in both cases; and I am surprised that this has been overlooked. Both Mr. Babbage and his reviewer are, in my opinion, wrong in their views of the principle on which the bonus should be given. The former says, "those who live longest will be the gainers, whilst those