contrary to the laws of God. (f) And a defendant was convicted on an information charging him with having published, concerning the government of England and the traitors who adjudged king Charles the First to death, that the government of the kingdom consists of three estates, and that if a rebellion should happen in the kingdom, unless that rebellion was against the three estates, it was no rebellion. (g) In another case a person was convicted for publishing a libel, in which it was suggested that the revolution was an unjust and unconstitutional proceeding, and the limitation established by the act of settlement was represented as illegal, and that the revolution and settlement of the crown as by law established had been attended with fatal aud pernicious consequences to the subjects of this kingdom. (h) tions against the King. IV. Though a different construction may have prevailed in of publicamore arbitrary times, it is now settled that bare words, not relative to any act or design, however wicked, indecent, or reprehensible they may be, are not in themselves overt acts of high treason; but only a misprision, punishable at common law by fine and imprisonment, or other corporal punishment. (i) Though words may expound an overt act, and shew with what intent it was done. (k) And, generally speaking, any words, acts, or writing tending to vilify or disgrace the King, or to lessen him in the esteem of his subjects, or any denial of his right to the crown, even in common and unadvised discourse, amount at common law to a misprision punishable by fine and corporal punishment. (1) There are also some legislative provisions upon this subject. Statutes. The 3 Edw. 1. c. 34. enacts that none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander, may grow between the king and his people, and the great men of the realm. (m) And with a view to the security of the succession of the house of Hanover, according to the act of settlement, a law was passed declaring it to be treason to write or print against it. (n) The nature of the offence of libel against the monarch personally has been ably explained and illustrated, according to the more mild and liberal doctrines of the present time, in a case of recent occurrence. 66 bert and Perry. The defendant was charged with having published a libel to the Rex v. Lamfollowing tenor and effect: "What a crowd of blessings rush upon one's mind, that might be bestowed upon the country in "the event of a total change of system! Of all monarchs indeed "since the revolution, the successor of George the Third will (f) 2 Roll. Abr. 78. (g) Rex v. Harrison, 1677. 3 Keb. 841. Vent. 324. And a treatise upon hereditary right was holden to be a libel, though it contained no reflection upon any part of the then government, Reg. v. Bedford 1711. 2 Str. 789. Gilb. 297. (h) Rex v. Nutt, 1754. Dig. L. L. 126. and see Dr. Shebbeare's case, and Rex v. Paine, Holt on Lib. 88, 89. and Starkie on Lib. 508. (i) 1 East. P. C. c. 2. s. 55. p. 117. (k) Crohagan's case, Cro. Car. 332. (7) 4 Blac. Com. 123. (m) It is said to have been resolved by all the Judges that all writers of false news are indictable and punishable; (4 Read. St. L. Dig. L. L. 23.) and probably at this day the fabrication of news likely to produce any public detriment would be considered as criminal. Starkie on Lib. 546. (n) 6 Anne, c. 7.; and see other statutes which were passed for the purpose of guarding the King's character and title, cited in Starkie on Lib. 520, 521. It is not libellous for a wri ter who allows the sovereign to be solicit ous for the welfare of his who has no intention of calumniating him, or of bringing his personal go-to public odium, to express re gret that he has taken an erroneous view of any question of foreign or domestic policy. 66 66 "have the finest opportunity of becoming nobly popular." Lord Ellenborough, C. J. in addressing the jury, stated, that the first subjects, and sentence of this passage would easily admit of an innocent interpretation; that the fair meaning of the expression "change of system" was a change of political system-not a change in the frame of the established government-but in the measures of policy which had been for some time pursued; and that by total change of system was certainly not meant subversion or demolition, the descent of the crown to the successor of his Majesty being mentioned immediately after. His lordship then proceeded :-" If a person who admits the wisdom and 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 66 say that this is libellous. But it must be with perfect decency "and respect, and without any imputation of bad motives. Go "one step further, and say or insinuate that his Majesty acts "from any partial or corrupt view, or with an intention to favour 66 or oppress any individual or class of men, and it would become "most libellous." Upon the second sentence, after stating that it was more equivocal, and telling the jury that they must determine what was the fair import of the words employed, not in the more lenient or severe sense, but in the sense fairly belonging to them, and which they were intended to convey, Lord Ellenborough proceeded, "Now do these words mean, that his Majesty "is actuated by improper motives, or that his suceessor may "render himself nobly popular by taking a more lively interest in "the welfare of his subjects? Such sentiments, as it would be "most mischievous, so it would be most criminal to propagate. "But if the passage only means that his Majesty, during his "reign, or any length of time, may have taken an imperfect view "of the interests of the country, either respecting our foreign re"lations, or the system of our internal policy; if it imputes "nothing but honest error, without moral blame, I am not pre"pared to say that it is a libel." And again towards the conclusion of his address his lordship said, "The question of intention "is for your consideration. You will not distort the words, but 66 give them their application and meaning as they impress your "minds. What appears to me most material is the substantive paragraph itself; (o) and if you consider it as meant to repre"sent that the reign of his Majesty is the only thing interposed "between the subjects of this country and the possession of great "blessings which are likely to be enjoyed in the reign of his suc 66 cessor, and thus to render his Majesty's administration of his government odious, it is a calumnious paragraph, and to be "dealt with as a libel. If on the contrary you do not see that it " means distinctly, according to your reasoning, to impute any "purposed mal-administration to his Majesty, or those acting (0) The libel was published in a newspaper; and it had been allowed to the defendant to have read in evidence an extract from the same paper connected with the subject of the pass age charged as libellous, although disjointed from it by extraneous matter, and printed in a different character. "under him, but may be fairly construed as an expression of regret, that an erroneous view has been taken of public affairs, I "am not prepared to say that it is a libel. There have been errors "in the administration of the most enlightened men." (p) Falsely publishing that the King is labouring under mental derangement is a libel: it tends to unsettle and agitate the public mind, and to lower the respect due to the King. (a) the two houses V. The two houses of Parliament are an essential part of the Of publicaconstitution, and entitled to reverence and respect, on account of tions against the important public duties which they have to discharge. But of parliament. as they have the power of treating libels against them as breaches of their privileges, and vindicating them in the nature of contempts, more cases of such libels are to be met with in their journals, than in the proceedings of the courts of law. The common law, however, is fully capable of taking cognizance of any publications reflecting in a libellous manner upon the members or proceedings of the houses of Parliament; (q) and it seems rather to have been the inclination of Parliament in modern times to direct prosecutions for such offences in the courts of common law, and to waive the exercise of their own extensive privileges. In the case of the King v. Stockdale, (r) the Attorney-General in his speech to the jury, after stating the address of the House of Commons to the King, praying that his Majesty would direct the information to be filed, proceeded thus, "I state it as a measure "which they have taken, thinking it in their wisdom, as every "one must think it, to be the fittest to bring before a jury of their country an offender against themselves, avoiding thereby, what "sometimes indeed is unavoidable, but which they wish to avoid "whenever it can be done with propriety, the acting both as "judges and accusers, which they must necessarily have done, "had they resorted to their own powers, which are great and ex"tensive, for the purpose of vindicating themselves against insult "and contempt, but which in the present instance they have "wisely forborne to exercise, thinking it better to leave the "offender to be dealt with by a fair and impartial jury." (s) VI. The extent to which the measures of the King, or the proceedings of his government, may be fairly and legally canvassed, has been the subject of much discussion, as it is undoubtedly one of the first importance: but it is not within the scope and design (p) Rex v. Lambert and Perry, 2 Camp. 398. (a) Rex v. Harvey, 2 B. & C. 257. and malice will be implied from such wil ful defaming without excuse. See the case, post. (q) As in Rex v. Rayner, 2 Barnard. 293. where the defendant was convicted of printing a scandalous libel on the Lords and Commons; and in Rex v. Owen, 25 Geo. 2. MS. Dig. L. L. 67. In Rex v. Stockdale, 28 Geo. 3. an information was filed by the Attorney-General for a libel upon the house of Commons. A prosecution was also instituted in Rex v. Reeves, 36 Geo. 3. in consequence of a resolution of the (r) Ante, note (q). (s) See 2 Ridgway's Speeches of the Hon. T. Erskine, p. 208. Of publications against the government. Cases. Reg. v. Tuchin. of this Treatise to enter further upon the question, than by stating a few of the established principles and decided cases. It may be observed, that the liberty of discussion, which in many instances has been admitted on the part of the officers of the crown, would seem to be sufficient to answer all the purposes of the honest patriot;-the man who would condemn only with a view to genuine and constitutional reformation. Upon a late prosecution for a libel the attorney-general, in his opening to the jury, thus expressed himself: "The right of every man to represent what he may conceive to be an abuse or grievance in "the government of the country, if his intention in so doing be "honest, and the statement made upon fair and open grounds, can never for a moment be questioned. I shall never think it my "duty to prosecute any person for writing, printing, and publish"ing, fair and candid opinions on the system of the government "and constitution of this country, nor for pointing out what he may honestly conceive to be grievances, nor for proposing legal 66 means of redress." (1) In many cases which may occur, the due exercise of this liberty and right of discussion will involve considerations of much difficulty, and require great nicety of discrimination; as it may become necessary to ascertain the particular points at which the bounds of rational discussion have been exceeded. The answer to the following question has however been proposed as a test, by which the intrinsic illegality of such publications may be decided (u) "Has the communication a plain tendency to produce public mischief by perverting the mind of the subject, and "creating a general dissatisfaction towards government?" 66 However innocent and allowable it may be to canvass political measures within these limits, it is quite clear that their discussion must not be made a cloak for an attack upon private character. Libels on persons employed in a public capacity receive an aggravation as they tend to scandalize the government by reflecting on those who are entrusted with the administration of public affairs; for they not only endanger the public peace, as all other libels do, by stirring up the parties immediately concerned to acts of revenge, but also have a direct tendency to breed in the people a dislike of their governors, and incline them to faction and sedition. (w) A person delivered a ticket up to the minister after sermon, wherein he desired him to take notice that offences passed now without controul from the civil magistrate, and to quicken the civil magistrate to do his duty, &c.; and this was held to be a libel, though no magistrate in particular was mentioned, and though it was not averred that the magistrates suffered those vices knowingly. (x) In a case where the defendant was prosecuted upon an information for a libel upon the government, his counsel contended that the publication was innocent, and could not be considered as libel (1) Rex v. Perry and another, 1793. (w) 1 Hawk. P. C. c. 73. s. 7. 4 Bac. Abr. Libel (A) 2. p. 450. Rex v. (x) 4 Bac. Abr. Libel (A) 2. p. 451. lous, because it did not reflect upon particular persons. But Holt, C. J. said, "They say nothing is a libel but what reflects on "some particular person. But this is a very strange doctrine to say that it is not a libel, reflecting on the government; endea"vouring to possess the people that the government is mal-admi"nistered by corrupt persons that are employed in such stations, "either in the navy or army. To say that corrupt officers are "appointed to administer affairs is certainly a reflection on the government. If men should not be called to account for possessing the people with an ill opinion of the government, no government can subsist; nothing can be worse to any govern"ment than to endeavour to procure animosities as to the manage"ment of it; this has always been looked upon as a crime, and 66 66 no government can be safe unless it be punished." (y) This doctrine was recognized in a more modern case, where the Rex v.Cobbett. defendant was charged with publishing a libel upon the administration of the Irish government, and upon the public conduct and character of the lord lieutenant and lord chancellor of Ireland. Lord Ellenborough, C. J. in his address to the jury observed, "It " is no new doctrine that if a publication be calculated to alienate "the affections of the people, by bringing the government into "disesteem, whether the expedient be by ridicule or obloquy, the person so conducting himself is exposed to the inflictions of "the law. It is a crime; it has ever been considered as a crime, "whether wrapt in one form or another. The case of Reg. v. "Tuchin, decided in the time of Lord Chief Justice Holt, has re"moved all ambiguity from this question; and, although at the "period when that case was decided great political contentions "existed, the matter was not again brought before the Judges of "the Court by any application for a new trial." And afterwards his Lordship said, " It has been observed, that it is the right of "the British subject to exhibit the folly or imbecillity of the mem"bers of the government. But, Gentlemen, we must confine "ourselves within limits. If in so doing individual feelings are "violated, there the line of interdiction begins, and the offence "becomes the subject of penal visitation." (z) VII. As nothing tends more to the disturbance of the public Of publications against weal than aspersions upon the administration of justice; con- magistrates tempts against the King's Judges, and scandalous reflections upon and the adtheir proceedings, have always been considered as highly criminal ministration offences; and one of the earliest cases of libel appears to have of justice. been an indictment for an offence of this kind. (a) Generally, any contemptuous or contumacious words spoken to the Judges of any Courts in the execution of their offices are indictable; and when reflecting words are spoken of the Judges of the superior courts at Westminster, the speaker is indictable both at common law and under the statutes of Scandalum Magnatum, whether the words relate to their office or not. (b) (y) Reg. v. Tuchin, 1704. Holt's R. 424. 5 St. Tri. 532. (2) Rex v. Cobbett, 1804. Holt on Lib. 114, 115. Starkie on Lib. 529, 530. where see in the note other cases VOL. I. referred to. (a) Holt on Lib. 153. (b) Starkie on Lib. 533. where see the cases collected. And see 1 Hawk. c. 21. s. 7. et sequ. The proceeding |