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and the defendant had pleaded that the supposed libel contained a true account of the proceedings in the court of law; it was holden (after verdict for the defendant) that the plea was bad, inasmuch as the words "shameful conduct of an attorney” formed no part of the proceedings in the court of law, and that the plain
tiff was therefore entitled to judgment. (6) Publication of It should be observed also, that the publication of preliminary ex parte exa
examinations before a magistrate, taken ex parte, will not come minations before a magis- within the principle by which the fair reports of proceedings in trate may be courts of justice have been held to be privileged. Such publicalibellous.
tions have a tendency to cause great mischief by perverting the public mind, and disturbing the course of justice; and, if they contain libellous matter, will be considered as highly criminal. (c) . And the Court of King's Bench has gone to the extent of granting a criminal information for publishing in a newspaper a statement of the evidence given before a coroner's jury, accompanied with comments; although the statement was correct, and the party
had no malicious motive in the publication. (d) How far the Though the publication of a proceeding in parliament will, in publication of general, be considered as privileged and protected from being proceedings in parliament is
deemed libellous ; (e) and the printing and delivering a petition to allowable. members of a committee of the House of Commons, being accord
ing to the order of proceedings of parliament and their committees, has been held to be justifiable : (7) yet it may be doubted how far the circulation of a copy of a writing containing matter of an injurious tendency to the character of an individual, though published for the use of the members, is legitimate and exempted from prosecution. (8) And it is clear that the publication of the speech of a member of parliament, if it contain matter of libel, is not protected, even though such publication be made by the member himself. In a case upon this subject, Lord Kenyon, C.J. observed that if the words in question had been spoken in the House of Lords, and confined to its walls, the Court of King's Bench would have had no jurisdiction to call a member of that house before them, to answer for such words as an offence; but that the offence was the publication of them in the public papers, under the authority of the member, with his sanction, and at his expense : that a member of parliament bad certainly a right to publish his speech, but that his speech should not be made the vehicle of slander against any individual ; if it were, it would be a libel.(h)
And in a more recent case it was held by the Court (b) Lewis v. Clement, 3 B. & A. 702. ter, or in the regular discharge of his In this case the question was raised magisterial functions. M'Gregor v. whether it be lawful to publish pro- Thwaites and another, 3 B. & C. 24. ceedings of a court of law containing (d) Rex v. Fleet, 1 Barn. & Ald. 379. matter defamatory of a person neither (e) Rex r. Wright, 8 T. R. 293. In a party to the suit nor present at the this case a former case of Rex v. Wiltime of the enquiry ; but it became liams, 2 Show. 471. Comb. 18., was unnecessary to decide this point. aniniadverted upon by Lord Kenyon,
(c) Rex v. Lee and another, 5 Esp. C. J. and Grose, J. as having happened 123. Rex v. Fisher and others, 2 Campb. in the worst of times. 563. Duncan v. Thwaites and others, (f) Lake v. King, I Saund, 131. 3 B. & C. 556. And still less can the
(g) See the judgment of Lord Ellendefendant justify the publication of a borough, c. J., in Rex v. Creevey, 1 matter which was not brought before M. & $. 278. the magistrate in his judicial charac- (1) Rex v: Ld. Abingdon, 1 Esp. 226.
of King's Bench that a member of the House of Commons may be convicted upon an indictment for a libel, in publishing in a newspaper the report of a speech delivered by him in that house, if it contain libellous matter, although the publication be a correct report of such speech, and be made in consequence of an incorrect publication having appeared in that and other newspapers. (i)
Having treated generally of the publications which may be considered as libellous, it may be useful to refer to some of the particular points which have been holden, respecting publications: I. Against the Christian religion. II. Against morality. III. Against the constitution. IV. Against the King. V. Against the two Houses of Pariiament. VI. Against the Government. VII. Against the magistrates and the administration of justice. VIII, Against private individuals. And, IX. Against foreigners of distinction.
I. It has been before observed, (k) that blaspheming God, or Of publicaturning the doctrines of the Christian religion to contempt and tions against ridicule, is an indictable offence. At common law, all blasphemies religion. against God, as denying His being or providence; and all contumelious reproaches of Jesus Christ; all profane scoffing at the Holy Scripture, or exposing any part thereof to contempt or ridicule; and also seditious words in derogation of the established religion; are considered as offences tending to subvert all religion and morality, and punishable by the temporal courts with fine and imprisonment, and also infamous corporal punishment in the discretion of the court. (1)
Some provisions have also been made upon this subject by Statutes upon statutes. The 1 Ed. 6. c. 1. (m) enacts that persons revising the this subject. sacrament of the Lord's Supper, by contemptuous words or otherwise, shall suffer imprisonment. The statute 1 Eliz. c. 2. enacts that if any minister shall speak any thing in derogation of the book of common prayer, he shall
, if not beneficed, be imprisoned one year for the first offence, and for life, the second ; and if he be beneficed, shall for the first offence be imprisoned six months and forfeit a year's value of his benefice; for the second, shall be deprived and suffer one year's imprisonment; and for the third shall in like manner be deprived and suffer imprisonment for life. And that if any person whatsoever shall in plays, songs, or other open words, speak any thing in derogation, depraving, or despis-, ing of the said book, or shall forcibly prevent the reading of it, or cause any other service to be read in its stead, he shall forfeit for the first offence 100 marks; for the second 400; and for the third, shall forfeit all his goods and chattels, and suffer imprisonment for life. By the 3 Jac. 1. c. 21. a person using the name of the Holy Trinity profanely, or jestingly, in any stage-play, interlude, or show, shall be liable to a qui tam penalty of ten pounds. The 1 W.3. c. 18. s. 17. enacted that whoever should deny in his preaching or writing the doctrine of the blessed Trinity, should lose all benefit of the act for granting toleration. This section is
(1) Rex v. Creevey, 1 M. & S. 273. P. C c. 5. (k) Ante, p. 209.
(m) Repealed by 1 Mary, c. 2., and (!) See the cases collected in 1 Hawk. revived by i Eliz. c. 1.
now repealed by 53 Geo. 3. c. 160.: but while it was in existence it was considered as operating to deprive the offender of the benefit therein mentioned, leaving the punishment of the offence as for a misdemeanor at common law.(n) The 9 & 10 W.3. c. 32. enacted that if any person, educated in or having made profession of the Christian religion, should, by writing, printing, teaching, or advised speaking, deny the Christian religion to be true, or the Holy Scriptures to be of Divine authority, he should upon the first offence be rendered incapable to hold any office or place of trust; and for the second be rendered incapable of bringing any action, being guardian, executor, legatee, or purchaser of lands, and should suffer three years' imprisonment without bail. (0) A person offending under this statute was held to be also indictable at common law. (p) This doctrine was considered in a recent case where a motion was made in arrest of judgment, after conviction on an information for a blasphemous libel, on the ground that this statute had put an end to the common law offence : and the Court were clear that it had not, considering that the provi
sions of the statute were cumulative. (9) To reproach Upon the trial of an information against the defendant for utterthe Christian ing expressions grossly blasphemous, Hale, C. J., observed, that speak in sub- such kind of wicked blasphemous words were not only an offence version of the to God and religion, but a crime against the laws, state, and
government, and therefore punishable in the Court of King's Bench. That to say religion is a cheat is to dissolve all those obligations whereby civil society is preserved; that Christianity is part of the laws of England, and therefore to reproach the Christian religion is to speak in subversion of the law. (r) In a late case where a libel stated that Jesus Christ was an impostor, a murderer in principle, and a fanatic, a juryman asked whether a work denying the divinity of our Saviour was a libel; and Abbott, C.J., answered, that a work speaking of Jesus Christ in the language here used was a libel; and the defendant was found guilty. Upon a motion for a new trial, on the ground that this was a wrong answer, the Court without difficulty held that the answer was
right, and refused the rule.(a) The Christian
In a case where the defendant had been convicted for publishing religion is part several blasphemous libels, in which the miracles of our Saviour of the law of were turned into ridicule and contempt, and His life and converthe land.
sation calumniated, it was moved in arrest of judgment that this was not an offence within the cognizance of the temporal courts at common law : but the Court would not suffer the point to be argued, saying that the Christian religion, as established in this kingdom, is part of the law; and, therefore, that whatever derided Christianity derided the law, and consequently must be an offence
(n) By Lord Kenyon in Rex v. Wil- v. Caton, 1812. This statute also reliams, 1797. Holt on Libel, 66. lated to persons denying, as therein
(0) But the delinquent publicly re- mentioned, respecting the Holy Triuily: nouncing his error in open court, with- but such provisions are repealed by 53 in four months after the first convic- Geo. 3. c. 160. tion, is to be discharged for that once (9) Rex v. Carlisle, 3 B. & A. 161. from all disabilities.
(r) Rex v. Taylor, Vent. 293. 3 Keb. (p) Barnard. 162. 2 Str. 834. Fitz. 607. gib. 64. Rex v. Williams, 1797. Rex (a) Rex v. Waddington, 1 B. & C. 26.
against the law.(r) It was also moved in arrest of judgment, that as the intent of the book was only to shew that the miracles of Jesus Christ were not to be taken in their literal sense, it could not be considered as attacking Christianity in general, but only as striking against one received proof of His being the Messiah; to which the Court said, that the attacking Christianity in the way in which it was attacked in this publication was destroying But though to the very foundation of it; and that, though there were professions write against in the book that its design was to establish Christianity upon a
Christianity in true bottom by considering these narrations in Scripture as em- offence atcomblematical and prophetical, yet that such professions were not to mon law, the be credited, and that the rule is allegatio contra factum non est meddle with admittenda. But the Court also said, that though to write against differences of Christianity in general is clearly an offence at common law, they opinion upon
controverted laid a stress upon the word general, and did not intend to include
points. disputes between learned men upon particular controverted points ; and, in delivering the judgment of the Court, Raymond, Lord C. J., said, “I would have it taken notice of that we do not meddle “ with any differences of opinion, and that we interpose only “ where the very root of Christianity itself is struck at.”(s)
The doctrine of the Christian religion constituting part of the The dread of law of the land was recognised in a later case, where the future punishjudgment of the Court of King's Bench was pronounced upon the principal a person convicted of having published a very impious and blas- sanctions of phemous libel called Paine's Age of Reason. (t) Ashhurst, J., the law. said, that although the Almighty did not require the aid of human tribunals to vindicate His precepts, it was nevertheless fit to shew our abhorrence of such wicked doctrines as were not only an offence against God, but against all law and government, from their direct tendency to dissolve all the bonds and obligations of civil society; and that it was upon this ground that the Christian religion constituted part of the law of the land. That if the name of our Redeemer was suffered to be traduced, and His holy religion treated with contempt, the solemnity of an oath, on which the due administration of justice depended, would be destroyed, and the law be stripped of one of its principal sanctions, the dread of future punishments. (u)
Contumely and contempt are what no establishment can tolerate: Rational and but, on the other hand, it would not be proper to lay any restraint dispassionate upon rational and dispassionate discussions of the rectitude and discussions are
allowable. propriety of the established mode of worship. (w) A sensible writer upon the subject of libel says, as to this point, “that it
may not be going too far to infer, from the principles and deci“sions, that no author or preacher who fairly and conscientiously
promulgates the opinions with whose truth he is impressed, for () Rex v. Woolston, Barnard. 162. obligations on the conduct of man2 Str. 834. Fitzgib. 64.
kind. In other respects also it ridi(8) Rex v. Woolston, Fitzgib. 66. culed and vilified the prophets, our
(1) This libel was of the worst kind, Saviour, His disciples, and the Sacred attacking the truth of the Old and New Scriptures. Testaments; arguiog that there was no (u) Rex v. Williams, 1797. Holton genuine revelation of the will of God Libel, 69, note (e). existing in the world ; aud that reason (w) 4 Bla. Com. 51. was the only true faith which laid any
“ the benefit of others, is, for so doing, amenable as a criminal ; " that a malicious and mischievous intention is in such case the “ broad boundary between right and wrong; and that if it can be “ collected, from the offensive levity with which so serious a sub“ject is treated, or from other circumstances, that the act of the
party was malicious, then, since the law has no means of dis
tingishing between different degrees of evil tendency, if the “ matter published contain any such tendency, the publisher be
comes amenable to justice."(x)
At to the extent of this offence and the nature and certainty of the words, it appears to be immaterial whether the publication is oral or written; though the committing mischievous matter to print or writing, and thereby affording it a wider circulation, would undoubtedly be considered as an aggravation, and affect the
measure of punishmeut.(y) Ofpublications II. When the Star-Chamber had been abolished, it appears that against moral- the Court of King's Bench came to be considered as the custos ity.
morum, having cognizance of all offences against the public morals; (2) under which head may be comprehended representations whether by writing, picture, sign, or substitute, tending to vitiate and corrupt the minds and morals of the people. (a) Formerly, indeed, it appears to have been holden that publications of this kind were not punishable in the temporal courts :(6) but a different doctrine has since been established. (c) And in late times indictments for obscene writings and prints have frequently been preferred; without any objection having been made to the jurisdiction
of the temporal courts. Oral commu- The principle of the cases upon this subject seems to comprenications.
hend oral communications, when made before a large assembly, and when there is a clear tendency to produce immorality; as in
the case of the performance of an obscene play. (d) Ofpublications
III. Libels against the constitution, abstracted from all personal against the constitution. allusions, do not appear, either in ancient or modern times, to
have been often made the subject of legal enquiry. In general, publications upon the constitution, avoiding all discussions of personal rights and privileges, are speculative in their nature, and not calculated to generate popular heat. But if they should be of a different description, tending to degrade and vilify the constitution, to promote insurrection, and circulate discontent through its members, they would, without doubt, be considered as seditious and criminal. (e)
Thus it appears to have been adjudged, that though no indictment lay for saying that the laws of the realm were not the laws of God, because true it is that they are not the laws of God; yet that it would be otherwise to say that the laws of the realm are
(3) Starkie on Libel, 496, 497. (d) Starkie on Libel 504. In Rex v. (y) Starkie on Libel, 493.
Curl, 2 Str. 790. it was stated that (2) Sir Ch. Sedley's case, 1663. Keb. there had been many prosecutions 720. 2 Str. 790. Sid. 168.
against the players for obscene plays, (a) Holt on Libel, 73.
but that they had interest enough (6) Rex v. Read, 11 Mod. 142. to get the proceedings stayed before Hawk, P. C. c. 73. s. 9.
judgment. (c) Rex v. Curl, 2 Str. 788. Rex v. (e) Holt on Lib. 86. Wilks, 4 Burr. 2527.