Thursday, January 5, 2017

The Law of Libel

No part of the law of England is more closely connected with the common affairs of life, or more liable to be misunderstood on account of the difficulties inherent in the subject, and superinduced by the legislator, than the law of libel. Most of us find it easy to keep clear of the other branches of criminal law, and even civil litigation may generally be avoided without much real difficulty, but the law of libel is peculiar. Any one who has to give the character of a servant, or who repeats a story which happens to have struck his fancy, and which is to the disadvantage of some other person, may find himself involved in its meshes without having had the slightest notion of committing a crime or inflicting an injury; and it is not too much to say that, of that innumerable multitude of men and women who are in one way or other concerned in writing for the papers, there is hardly one who has not frequent occasion to write what, if the law wore rigorously, construed, might be regarded as a libel. Wide, however, as is the definition of libel, it is no less true that the course of events has gradually introduced extensive changes into the law, all of which, at least of late years, have tended to discourage the strict notions upon the subject which formerly prevailed; and it is hardly too much to say of this gradual change, that of late the courts have been disposed to regard newspapers as being invested with a sort of quasi-judicial position, involving privileges not unlike those which are possessed by regular tribunals. This change, which would be enough to make the elder generation of lawyers turn in their graves, has been very gradual; but the length to which it has gone, may be collected from a case lately decided between a Dr. Hunter, the incidents of whoso career attracted a good deal of public attention, and the Pall Mall Gazette. Dr. Hunter published in various newspapers a series of letters on consumption, and otherwise conducted his professional affairs in such a manner, that the Pall Mall Gazette considered itself justified in assailing him in terms about as vehement as could well be used. The article was headed "Impostors and Dupes," implying that Dr. Hunter belonged to the one class, and his patients to the other. Dr. Hunter was described as a quack, classed with scoundrels, and his right to call himself "Dr." wan questioned in the most vehement and contemptuous manner. In short, the article primâ facie was about as severe a libel as could be written. If the printer had been criminally prosecuted for its publication forty, or even thirty years ago, he would, in all probability, have had to undergo substantial punishment. Nevertheless, in the course of his summing up, the Lord Chief Justice of England made the following observations on the subject:—
"Under his second head of defence, the defendant says—This was a matter of public concern. The plaintiff put forward in these advertisements his system, his theory, and communicated to a certain extent the remedies by which he proposed to cure this malady. He invited persons to come to him for the purpose of being treated and cured by him. I could see from his account of the theory on which his treatment was based, and from his account of the treatment that he proposed to use, that the whole was a more idle delusion, and looking at the mode in which his work was published, looking at the secrecy in which his discovery was shrouded, looking to the mode which he adopted to bring himself into notoriety—a mode which was utterly at variance with the received habits of the profession to which he professed to belong—I was warranted in drawing the inference that he was a mere pretender, and not only a pretender, but a quack who intended to impose on mankind as quacks do. I was warranted in drawing this inference, and I denounced him accordingly. It may be that I was wrong, it may be that now the matter has been fully investigated, and that the plaintiff has had an opportunity of being heard and vindicating this theory which he has put forward, of showing that his practice has not been wholly unsuccessful, that a jury may think I have gone too far; but the question is not thereby concluded, if it should appear, under all the circumstances of the case, that, bringing to the discharge of my duty as a public writer caution and moderation in criticizing what I thought to be a mischievous and noxious pretence, I have exercised a reasonable and careful judgment, have not been over-hasty and precipitate, inferring sinister design and wicked motive against the person whom I have assailed. If I have brought to the discharge of my duty only an honest desire to do good and benefit in the department to which I belong, in that case, if a jury should be of that opinion, I am entitled to their verdict. And, gentlemen, I endorse that proposition."
We do not believe that the law has ever before been stated in a manner so favourable to journalists, and we think that it may possibly be interesting to our readers to be presented with a short sketch of the various phases through which the law passed before it reached this point. The law of libel is singularly confused, and it is by no means an easy matter to give anything like a systematic account of it. It may, however, be traced back to the very infancy of English law, into which, together with a far larger proportion of our system than is generally supposed, it was introduced from the Roman law. It would be interesting to lawyers, but hardly to unprofessional readers, to exhibit at length the influence which the one system had upon the other. Those who wish to study the subject will find much learning about it, mixed up with a great deal of singularly prosy and commonplace speculation, in the preliminary discourse prefixed by Mr. Starkie to his work on the Law of Slander and Libel. A few observations on the leading points of the history of the system in England may be of interest to our readers as an introduction to what we have to say on the most recent development of the law.

The law of libel may be divided into two great branches, each of which again is subdivided into two other great branches. Libel may be regarded either as a crime or as a civil wrong, and the crime may be committed or the wrong inflicted either by writings, pictures, or other permanent things, or by words spoken. Each of these has its own history. Libel, regarded as a crime, has passed through a great variety of changes at different periods in our history. In very early times, when there was no periodical literature, and when comparatively few people could read, the commonest way of committing the offence was by word of mouth: by spreading rumours which either were or were considered as false, by writing the songs which were the first germs of the modern leading article or review, and by maintaining propositions which were regarded as dangerous to the established authorities in church and state. The gravity of these offences varied from the very highest degree of criminality to the most petty breach of police regulations. Many instances occur in our early history, and especially in the more excited periods of it, when, for a certain time and under special provocation, the severest of all penalties were attached to words spoken. In Henry VIII.'s reign, for instance, it was made high treason to deny the royal supremacy, and in the fierce legislation of that period many similar instances may be found of the severity with which the expressions of any sort of censure upon the Government, or on the doctrines which for the time being happened to be established, were repressed. If we go to the other end of the scale, we find a homely provision made for the punishment of mere bad language in the bridle or trebuchet and ducking-stool. The bridle was a sort of gag made of iron which surrounded the head and confined the tongue, and the ducking-stool was a contrivance by which a person could be ducked under water in a pond. These were the remedies which our ancestors considered it necessary in old times to provide for scolds. They were at the disposal of the petty criminal jurisdictions which at that time existed in manors under the name of courts-leet, and which to a certain extent filled the place of our modern magistrates. There was besides this another jurisdiction, once most formidable and efficient, but now almost forgotten, which it may be well to mention, and which existed till our own times. This was the jurisdiction of the spiritual courts, which before the Reformation was by no means confined to the discipline of the clergy and to questions of doctrine and the like, but extended to the laity quite as rigorously, and applied to almost all cases of moral delinquency, and especially to matters connected with the relations of the sexes and the sins of the tongue. The well-known saying, that the duty of archdeacons is to discharge archidiaconal functions, had once a very different meaning from that which it has at present. The archidiaconal functions were no joke at all, nor were they confined to questions about the repair of the fabric of churches and the like. The archdeacon was a sort of inquisitor in a mild way. He took cognizance of all charges of on chastity, all matters of defamation, and various other things, and the spiritual sentence which was promulgated by his court was known to and enforceable by the secular arm. Some of the oddest points about our existing law of libel may be traced to the existence of this forgotten jurisdiction. For instance, words imputing unchastity to a woman are, generally speaking, not actionable, however base and false the accusation may be. This is because by the old law such topics were matter of spiritual cognizance. There would have been a remedy for such a wrong in the spiritual court, and consequently the temporal court refused to notice it. The shadow of this jurisdiction survived till our own days. In the year 1849 or 1850, a clergyman near Cambridge thought fit to prosecute one of his parishioners in the court of the Bishop of Ely for talking scandal about him and one of his servants. The suit ended in the condemnation of the defendant, who was in a very poor position in life, to do penance in the church of the clergyman whom he had defamed. He was, that is, to make his appearance in a white sheet in front of the pulpit, and there to read a recantation of his words. The man took it as an excellent joke, and announced his intention of getting drunk and blacking his face to heighten the effect. Whether he exactly kept his word we do not know, but he did appear, surrounded by admiring and sympathizing friends, in a most disgraceful state. The consequence was that the church became the scene of a riot. The clergyman was pelted with hassocks, and had to take refuge in his parsonage from the indignation of the public. The jurisdiction of the ecclesiastical court over suits for defamation was abolished by the 18 & 19 Vict. c. 41.

The next great step in the history of proceedings against cases committed by writing or word of mouth, is to be found in the well-known history of the Star Chamber. To punish all offences which were committed by offenders too powerful to be dealt with by the common law, or which concerned the interests of the Government and the peace of the whole kingdom, was the object of that court, and of its ecclesiastical twin, the Court of High Commission. These two courts, which followed the course of the civil law, and in which, accordingly, people were put to their trial, not on the motion of private prosecutors, nor by the presentment of a grand jury, but directly by the highest officers of the Crown acting as public prosecutors, form a sort of parenthesis in the history of the law of libel and analogous offences. As they and their procedure were swept away by the Long Parliament, they left but small traces behind them in the law as at present administered. The nature of the supervision which they exercised over the press—the strongest illustration of which is to be found in the famous case of Prynne, Bastwick, and Burton—and the terrible severity of the punishments which they inflicted both on the purses and on the persons of those who fell under their power, are too well-known to require more than a passing allusion. The effect of their existence upon the common law turned out, singularly enough, to be in the long run rather beneficial than otherwise. Whilst the Star Chamber and the Court of High Commission were in full operation, there was no necessity for any other legal protection for the Government against literary assaults, and they flourished just at the time when such assaults were beginning to be formidable. Hence their existence during the whole of that period superseded the necessity of the introduction, by judicial legislation, of despotic principles upon this subject into the courts of common law; and when they fell, the additions which otherwise might, and probably would, have been made to the common law for the protection of the Government, by the judges, had not been effected. The excessive exercise of the prerogative through the Star Chamber may thus be said to have protected the principles of the common law much as a frost will sometimes protect seeds from the cold.

There is, however, one branch of the law of libel considered as a crime which is probably transmitted directly from the Star Chamber, and which still exists, though it is of no great practical importance. This is the law relating to blasphemous libels, and attacks on morality and religion in general. After the Star Chamber had been abolished, and after the Restoration, the Court of Queen's Bench in one or two cases assumed the character of a "Custos morum," and in that capacity punished acts which it considered as gross outrages on the elementary principles of religion and morals. This was justified principally on the ground that, though the Star Chamber had ceased to exist, such offences must not be allowed to go unpunished. Upon this ground a variety of prosecutions for blasphemy, indecency, and blasphemous and indecent publications, have at different times been successfully prosecuted. At present, however, this branch of the law is of little importance. Indecency is dealt with by special laws provided for that purpose; and it appears to be pretty well recognized, though it may be doubted whether the principle is honestly acted upon in all cases, that the offence of blasphemy or blasphemous libel consists not in the sin of denying or arguing against the fundamental principles of religion, but in the crime of wounding the feelings of others by abusing the principle they consider sacred. If the law thus understood were administered with complete impartiality, mere abuse of an unpopular creed would be punished, whilst the most eager and sharply-expressed invectives against the fundamental doctrines of Christianity would be left unpunished so long as they were honestly intended to have an effect as arguments.

From the Restoration to the Revolution the crime of libel was taken cognizance of exclusively by the courts of common law, and though abundant proof might be given of the excessive severity with which the crime was punished, and of the wide interpretation which was put upon the generalities of the law relating to it, it is remarkable, and indeed it is characteristic of the coarseness of the age, that the great question as to the bearing of the truth upon the criminality of a defamatory writing or speaking does not appear to have been decided during the reign of Charles II. and James II. in a manner hostile to our present views on the subject. There was so much partisanship in the political trials which occurred, and there were so many special penal laws for the repression of particular topics obnoxious to the Government, that there was no occasion to invent and lay down as law a despotic theory on the subject. The famous case of the seven bishops is one which it is not very easy to turn into a precedent according to the modern fashion; but throughout the whole of it the judges appear to have assumed that there was some connection between the truth of the matter published and the innocence of its publication. Each judge expressed his opinion separately, and the opinions themselves are very discordant; but no one of them lays down in broad terms the doctrines as to the irrelevance of the question, whether the matter published was true or not, which would have been laid down on such an occasion a hundred years later.

During the 18th century the law relating to libel considered as a crime assumed a degree of importance altogether different from anything which had belonged to it before. Pamphleteering first, and by degrees journalism, were rapidly growing towards their present dimensions, and of course they were regarded with the greatest jealousy by all constituted authorities, and by none more than the judges. There is a good deal of the judge about the journalist, for he has the power of inflicting upon those of whose conduct ho disapproves the punishment of as much public indignation as his skill and power enable him to direct against them. His paper, as far as its influence extends, is a kind of open court of an irregular kind, in which all manner of persons may be called upon to justify themselves upon every sort of charge affecting any part of their conduct. For sufficiently obvious reasons the judges have always felt the greatest possible jealousy of this power, and it is to be owned that a great deal is to be said for the judicial view of the subject, though it was certainly carried during the last century to a most pernicious extent.

There were three main theories—perfectly independent of each other in reality, though they were in practice closely connected—by which the judges proposed to bridle, and, to a certain extent, actually succeeded in bridling, the continually increasing power of the press. These theories or principles were—
First—Maliciously to impute blame to a man publicly is criminal, and especially it is criminal maliciously to find fault with the Government, or to dispute the truth of the established religion, or to express dissatisfaction with any public measures or established institutions whatever.
Secondly—The court, and not the jury, are to determine in each particular case whether the matter complained of did impute blame or express dissatisfaction, and whether such expressions were or were not malicious. The jury are to decide whether the matter was published and what it meant.
Thirdly—Whether the matter is true or not makes no difference, except indeed that either the truth or the falsehood of the accusation may have an effect upon the punishment.

This was the spirit of the law of libel as administered and interpreted throughout the whole of the eighteenth century, and till it was modified by the famous Act passed at the instance of Lord Erskine. To our modern notions of things, it certainly does appear about as harsh a view of the law of libel as it would be possible to frame; yet there is a good deal more to be said for it than would appear at first sight, and it still forms the foundation of the law, and far more of it survives as a legal theory to the present day than most persons are aware.

If we take in succession the different propositions of which the theory is composed, it will be found that the first of the three is pretty nearly the only one which can be laid down upon the subject. The only difficulty about it lies in defining what is meant by the word "maliciously," that is, in specifying the occasions upon which the public censure of one person by another ought to be permitted. The great struggle between Lord Erskine when at the bar, and the various judges before whom he pleaded on different occasions, was to secure to the jury the right of saying generally whether or not the publication was malicious (other abusive adjectives, "false," "scandalous," &c., were introduced into indictments, but one is enough for our purpose). The judges stoutly resisted, and for many years deferred the admission of the claim, but at last it was declared by Parliament (32 Geo. 8. c. 6.,) that the jury might give a general verdict "on the whole matter put in issue," including of course the averment of malice. There is a good deal of slovenliness and confusion about this matter. "Malice" is the vaguest of all vague words, and nothing shows the unscientific popular character of one of the most important parts of the law of England than the fact that such a word should have entered into the definition of two such crimes as murder and libel. Murder is a "malicious" killing, and libel is a "malicious" attack on reputation. "Malicious" really means no more than wicked, so that unless we know what malice is, this definition is in reality no definition at all. In the case of murder the term "malice" has by degrees been reduced to a certainty. It means all intentional killing, with certain specified exceptions, such as killing under the recent provocation of considerable personal violence; and besides this general provision it has been specifically determined that certain cases of killing are to be considered as murder—for instance, killing a constable in the execution of his duty, and so forth. If, therefore, the analogy of the law of murder had been followed in the case of libel, the judges would have devised a variety of specific rules as to the cases in which attacks on reputation were or were not " malicious," and the jury would have had to find whether the particular case at issue fell under any one of those rules or not. Something more than this, however, was claimed for the judges on the one hand, and for the juries on the other. The judges claimed a right not merely to lay down subordinate general rules as to the nature of malice, but to say in general whether the particular publication in question was or was not malicious. On the other hand, a right was claimed for the jury of saying not merely whether the case fell under any of the particular rules as to the nature of malice laid down by the judge, but generally whether the publication was "malicious" or not. There was no disposition on either Bide to define clearly what constituted a libel. The struggle was between the arbitrary power of the judges and the arbitrary power of the juries to label any publication with the word "malicious," and so convert it into a crime. In this contest the juries were at last successful, the victory being secured to them by the declaratory Act above referred to. No law ever defined what occasions or causes render it legal to blame a man publicly in writing, and under Lord Erskine's Act all that could be said was, that a libel was any writing for which a jury might think that a man ought to be sent to prison. At one time their thoughts upon this subject were apt to run into most tyrannical shapes. Mr. Reeves, for instance, the author of the only history of English law which is even now in existence, was all but convicted of libel in 1796 for having written a pamphlet in which the royal power was compared to the trunk, and the powers of Parliament and of juries to the branches of a tree: a comparison which was said to tend "to raise and excite jealousies and divisions amongst the liege subjects of our lord the king, and to alienate the affections of the liege subjects of our lord the king, from the government by king, lords, and commons now happily established."

The only point in the whole matter which was well established was, that in a criminal prosecution the truth of the libel was no defence. As regarded public establishments, it seems to have been considered that it was altogether improper for a private person to question their advantages or to criticize the manner in which they were conducted. As regarded private persons, it was said that libels tended to produce a breach of the peace, and that this tendency was rather increased than diminished by their truth, if they were true. Apart from this, which obviously was a mere excuse, it was urged that to sanction the bringing of true charges against people by means of the public press would amount to the erection of a new set of volunteer tribunals for the trial of offences of every description. If a man has committed a crime, it was said, prosecute him as the law directs. If the law does not punish his conduct you shall not punish it by public exposure. That the law was and always must be a most imperfect instrument for the protection of society against various kinds of dangerous and improper conduct, was a view against which, all lawyers revolted with the natural jealousy of those who watch the encroachments of a rival power upon their own dominions. By maintaining this principle inflexibly (notwithstanding the rule that the jury were to judge of the existence of malice), a considerable degree of strictness was still maintained; for though the whole matter was left to the jury, the judge always directed them that they must not consider the truth of the matter alleged, and excluded all evidence tending to establish it. Thus the matter stood till the passing of Lord Campbell's Act (6 & 7 Vict, c. 96), which provided that on the trial of any indictment or information for a defamatory libel (this has been held not to apply to seditious or blasphemous libels) the defendant might plead that the matters charged in the libel were true, and that their publication was for the public benefit; and this put the right of the press to act as a volunteer tribunal for the trial of all offences upon a legal footing—subject of course to the opinion of a jury that the matters alleged by the writer were true, and that their publication was beneficial to the public. It is upon this footing that the writer now rests, except as regards libels of a seditious or blasphemous character. With respect to them, it seems that even in the present day truth would be no justification, but the old rule would apply.

Thus much for libel regarded as a crime. There is not much difference between the crime and the civil injury, except on the point of the effect of the truth of the matter complained of in respect to the right to recover damages. There are, however, one or two other points which may be noticed before we come to this. The law of verbal slander, regarded as a civil injury, is very singular at first sight. Yet, though open to just exception in one or two points, its peculiarities are due rather to the real difficulty of the question than to any defect on the part of the legislator. It is obvious, on the one hand, that mere abuse ought not to be the subject of an action, and on the other, that serious slanders should; and to draw the line between the two definitely enough for practical purposes is no easy matter. In early times the judges fluctuated between the fear of encouraging litigation and that of encouraging slander, till they produced a set of precedents as astonishing as any to be met with in the whole range of the law. One of the curious entertainments in the nature of high jinks which took place in old times at the Northern Circuit bar mess was an Amoebaean dialogue between two learned gentlemen, in language which had been held to be not actionable. Considerable parts of it were not exactly fit for republication. We will try to give a specimen of the less offensive parts.
"A. You poisoned C. I don't say he is dead.
"B. You ran away from your captain. I don't say you were pressed.
"A. I charge you with felony.
"B. You were in Newgate for a highwayman.
"A. You smell of the robbery of C. You are a cheat, and stole two bonds from me.
"B. You stole my corn.
"A. You stole the iron bars out of my window.
"B. You stole Lord Derby's deer.
"A. You are forsworn.
"B. You, being a justice of the peace, are a bloodsucker, and will take a couple of capons.
"A. You, being a justice of the peace, are a rascally villain, and keep a company of thieves and traitors to do mischief.
"B. You are a beetle-headed justice, an ass, a coxcomb, &c.
"A. And you are a vermin, a corrupt man, and a hypocrite."
The dialogue might be continued almost ad infinitum by any two gentlemen who chose to refer to Comyn's Digest, and great part of it would be very much more picturesque than decent.

With respect to the effect of the truth of the matters charged upon the right to recover damages for any slander, verbal or written, and also with respect to the definition of malice, there is a marked difference between the crime and the civil injury. Speaking broadly, proof of the truth of the matter complained of has always been regarded for a great length of time as a complete answer to a claim for damages, inasmuch as a man is held to be entitled only to a reputation founded on truth; so that the publication of the truth about him may be a crime as against the State, but can be no injury to him. On the other hand, proof that a man has said or written of another that which, being libellous, was not true, has been held to entitle the plaintiff to damages, however good the intention of the defendant may have been, except in certain excepted cases; for your good intentions are no reason why you should damage the character to which I have a right. The excepted cases are those in which it is thought expedient for carrying on the business of life that persons should be protected who make false statements to the disadvantage of others under an honest and reasonable belief in their truth. Such statements are described as privileged, and the occasions on which they are made are said to rebut the presumption of malice. In other and simpler words, men who attack each other's characters falsely are not excused by an honest belief of the truth of what they say, except in certain cases. In a popular sketch like this it will be needless to enumerate the cases in question. The case of giving a servant's character is the illustration most commonly given; and it would not be very incorrect to say, in general terms, that wherever there is a moral duty incumbent on a man to give advice or to state an opinion which may be to the disadvantage of another, a mistake as to a matter of fact will not expose him to an action if it is made honestly. The peculiar interest of the case of Hunter v. Sharpe, to which we referred at the beginning of this article, is that, if it is good law, it most unquestionably recognizes what to Lord Ellenborough and Lord Kenyon would have appeared the monstrous and intolerable heresy that a journalist is under a moral duty to criticize his neighbours; and that if in doing so he exercises reasonable skill, and writes with proper moderation on the facts as he apprehends them, he is not responsible for honest mistakes. This certainly does carry the theory of privileged writing to a length to which we do not think it has ever been carried before, though the doctrine in question was contended for unsuccessfully in the case of Campbell v. Spottiswoode, in which an action was brought and damages were recovered by Dr. Campbell against the Saturday Review for making imputations on him which the jury found to be false; though they also found that the reviewer honestly believed them to be true, and though they might very probably have found, if they had been asked, that Dr. Campbell's conduct in the matter which was the subject of the libel had been such as to suggest to the reviewer the conclusion which he did honestly draw from that conduct. The result of the case of Hunter v. Sharpe was a verdict for the plaintiff, with a farthing damages, and this practically put a stop to further litigation on the subject; for the plaintiff could not set aside a verdict which was found in his favour; and the defendant could not complain of a misdirection (if such it was) which was favourable to him, though the verdict was not. The question thus remains open for future discussion, but the journalists have on their side an argument more than they had before this case was decided. If the matter be viewed as one of policy and not of law, it certainly does seem hard that if people are practically allowed and encouraged to make a profession of discussing every kind of conduct and sitting in judgment on every sort of reputation, they should not be at liberty to suggest any conclusion whatever as to conduct or character which the facts before them reasonably suggest. If the facts are such that a rational man, honestly considering them, might naturally come to the conclusion that A. B. is an impostor, why may he not honestly state the facts and boldly avow the conclusion which he draws, without the fear of an action before his eyes if he happens in point of fact to be mistaken? It is perhaps natural in a public writer to overlook what might be said on the other side; and on the other hand it must be owned that it certainly is hard that I should be liable to be falsely accused of any offence which a volunteer accuser may honestly but erroneously suppose me to have committed, and that when I have established my innocence I may nevertheless have to pay my accuser's costs because of his good intentions. Not that we mean to apply this observation to the particular case referred to in this article.

Cornhill Magazine, January 1867.

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