The Sun.
London, England, 1839-02-01 00:00:00

SPIRIT OF THE PUBLIC JOURNALS.

The criminal law of libel is in itself an offence against mo-
rality, and a disgrace to a civilised people. Repeatedly have
patriot declaimers, when ingratiating themselves with the
Press, pledged themselves to bring this law for the protection
of crime aid the proscription of truth under the reformatory'
revision of the Legislature. The law, as it stands, reproaches
the broken vows of Lord Brougham, and reminds us of one
of O'Connell's many-violated engagements. Both promised
years ago the reform of the libel law, and neither kept his
word. As to the Noble and Learned ex-Lord Coancelior, he
lived to become an admirer and panegyrist of one of the very
worst branches of the administrative process of that law—tteit
by criminal information. We say the process by criminal in-
formation was one of the most objectionable branches of the
jud,ciat procedure under the libel law, because it allows a
party charged with any wrong or crime to purge himself upon his
oath, which is contrary to ail other criminal practice, and which,
if right in this case, ought to be adopted in every case where a
man is charged with an offence. But not only does it allow the
deposition of the:pirty so charged to be evidence in his own case,
it takes that evidence as conclusive if the party accused boldly
and explicitly denies whatever is charged against him. It is true
that, in arguing against the rule for a criminal information,
the party who has made the accusation may, if he pleases, file
his own affidavit, and those of others, in support of the allega-
tions of the alleged libel. But the Court, in determining
upon the question whether the rule is to be made absolute or
not, will not try the conflicting matter of the affidavits on both
sides. It is enough to induce the Court to send the case before
a Jury that the party on whose behalf the criminal information
is prayed should fully and explicitly deny on oath the general
or specific chargesmade against him. It was, indeed, formerly
laid down that suspicion attaching to the party from the facts
of the case, or ex evidentia rei, was a ground for refusing to
make the rule absolute, and referring the complainant to his
ordinary remedy at law, notwithstanding the fullest denial of
the truth of the inculpatory matter on oath. But that seems
to have become obsolete law. The consequence is that crimi-
nal informations, which were formerly very rare, are now more
frequent than any other proceedings for libel. They are said
to be resorted to for the vindication of character against de-
famatory statements. They are in reality only vindictive
proceedings, which make no distinction between virtue and
vice—baseness and honour—truth and falsehood. Conse-
quently, though effective enough, in penal consequences, to
gratify revenge, or to silence the public exposure of shame-
ful actions, the process by criminal information can no more
repair a damaged reputation than rebuild a shattered bridge,
or restore a broken character than set a broken leg. How,
indeed, can the punishment of one man, by a species of legal
process which allows no inquiry into the truth or falsehood
of an accusation, salve the wounded honour of another ?
What magic is there in the verdict of a jury to bring out
the virtues of a character obscured, or said to be obscured,
by defamation, which verdict is founded on the exclusion, not
on the investigation of the truth ? The judgment of the
Court in the case of the " Queen v. Lawson," which has
subjected the defendant to fine and imprisonment, forces this
subject once more on our attention. We formerly expressed
our opinion upon the proceeding when the result of the trial,
if trial it could be called, was known; a trial which left
nothing to the jury to determine, but what the Court
had 'previously determined—viz., that the publication
was libellous; for that point did the Court impliedly, if
not expressly, decide, when they granted the criminal
information. As to the fact of the publication, that
was not, we believe, disputed by the defendant, so that
the Jury had no fact to pronounce an opinion upon, and the
Court had already decided upon the law. It is true Mr. Ere-
line's Act makes the Jury, in cases of criminal proceedings
for libel, judges both of the law and the fact ; but, when a
Jury hears that a full Court sitting in Banco has already de-
cided the question of law, and that the present proceedings
would not have come before theta if that had not been so, it
is hardly to be expected that they will dispute by their verdict
the only thing left to them to discuss, the correctness with
which the law has beeu judicially interpreted. We ques-
tion not the correctness with which that law was interpreted.
On that part of the subject we thus expressed ourselves
when commenting upon the case immediately after the trial :
—" Nothing could be more correct, according to previous
decisions, than the law as laid down by Lord Chief Justice
Denman. Nothing could more clearly prove the necessity
which exists for the reform of that law than the mere state-
ment of it. Criminal information for libel, with a strict ad-
herence to the established rule of law, which excludes the in-
vestigation of the truth of the charges as immaterial to the
issue, is truly one of the cases in which summum jus est
summa injuria." In considering the hardships imposed upon
the defendant by this mode of proceeding it must not be for-
gotten that if the person who, with the best and most patriotic
motive, charges another in the public press with misconduct
which it greatly concerns the interests of the public should not
be unnoticed, and if the person making such charge has his
information from others, and those others when applied to re-
fuse to make affidavits in support of the charge, he has no
means whatever of compelling them to do so ; and as to his
own knowledge of the matter, it being only hearsay, it is not
receivable in evidence even upon oath. We are not putting
an imaginary case. Such cases occur in practice, and when
they do there is not even an inquiry by affidavits, which is at
best a very unsatisfactory mode of investigation. The de-
fendant iu such a case has not the shadow of a trial,
either before making the rule absolute or afterwards, and
yet a verdict in such a case is called a vindication of cha-
racter! When the proceeding is by indictment, the de-
fendant can have process to compel witnesses to attend,
but of what practical use is that? The inquiry into the
truth or falsehood of the charges is there excluded, as
well as on criminal ;information. The grand jury find the
bill on er parte evidence, and the petty jury try it without any
evidence at all. Such is our famous criminal law of libel. So
protective is it of the " characters" of the basest and vilest of
mankind, that if a thief, a forger, or a murderer, tried and
convicted of any of those heinous crimes in another country,
and sentenced to condign punishment, were to escape to this
country, and be placed in a high situation, even in the coun-
cils of the Sovereign, and a newspaper, actuated solely by a
regard for time public interests, were to state the fact, the full
and positive denial, upon oath, by that person of his crime
would enable him, as the law now stands, to obtain a criminal
information ; and tin-n, if the form of a trial followed, the truth
could not be inquired into. Whether the trial were by indict-
ment or information, the jury sitting in the box would not be
allowed to receive evidence of the fact, although a witness
should be present with the judgment under the seal of the fo-
reign Court in his hands, and holding it up before their eyes.
In such cases it may he well said Justice is blind. It is true
in a criminal proceeding for libel, whether by indictment or
information, the prosecutor may waive his privilege, and pre-
sent himself in tne witness-box for a cross-examination. On
the trial of the case of the " Queen v. Lawson," the Lord
Chief Justice being reminded of two instances in which
the prosecutors took that direct and manly course, seemed
to commend the proceeding in the case of the one, and to
treat it with something like derision in the case of the other.
Let us state this in the words which we used on a former oc-
casion, observing that the first of the cases thus remarked on
was that of AI: Hartshorn, the other that of the Duke of
Cumberland :—" In allusion to oi,e of the two cases cited by
the Attorney-General, the Lord Chief Justice is reported to
have said • that a person labouring under such a charge (ass
he did) would feel a strong wish to present himself in the box;
that young gentleman did so present himself; there was no
•
imputation on his character in other respects, nor, indeed, did
any rest upon it ; but I eel sure it must be felt that when he
came foreard no vindication could be superabundant as to the
n (lure of such a charge ' In reference to the Duke of Corn-
berland's ca-e, his Lordship says, It was a case intrusted to
my [lore and Learned Friend Sir Charles Wetherell, who
wis not suite so much in the habit of condueting cases of this
nature as the Learned Counsel at the bar who have had the
c niduct of the present casee Ile cilled the Duke of Cum-
berland. but I cotild not consider that an inquiry. It
was a mock issue; the parties giving testimony on it, if
they gave that testimony falsely, could not he indicted
for it.' " It is true the same rule that excludes the evidence
of the truth or felsehood of a libel in a criminal proceeding,
prevents an indictment for pet jury on account of any evi-
dence given as to truth or falsehood in such cases, because an
indictment for perjury does not lie for giving false evidence,
unless it be inoterial to tLe issue ; and we have seen tbs.,. there
is no issue juiced on the truth or falsehood of the charges,
except where a justVication is pleaded in a civil case of libel.
But though that is so, it is still not immaterial to the moral,
though it is to the technical, issue in the case, that the prose-
cutor should present himself, and defy time searching ordeal
of a cross-examination, as both the Duke of Cumberland and
Mr. Hartshorn did, the former having also put in the box the
foreman of the jury on the Coroner's inquest which sat on the
body of Sellis. Either both these prosecutors did right or
they both did wrong in presenting themselves for cross exami-
nation. Our opinion is. both acted right, and showed on that
occasion the moral courage of conscious innocence, Although
an indictment for pc/jury would not lie. yet :1 guilty conscience
prvaricating or shuffling in the witness-box, might induce a
jury to return a different verdict from that which the jury
pronounced it. both those cases under circumstances which
:silenced the malicious voice of calumny for ever. But those
were verdicts which carried a moral conviction with them to
the public mind, not because the regular practice of the law
had been adhered to, but bedause it had been departed from.
On the merits of Sir John Conroy's case we express no opi-
nion. It is matter of legal history that he obtained a criminal
information against our contemporary the Times, for the ex-
press purpose of vindicating his character against charges
which he declared to be prejudicial to his honour. It is also
matter of legal history, that, although in the neighbourhood of
the Guildhall, when the information was tried, he did not pre-
sent himself in the witness-box to undergo a cross-examina-
tion. It will, we think, be matter of legal history hereafter,
that this case greatly contributed to prove to the public the ne-
cessity of a thorough revision and reform of the criminal law of
libel.—Morning Herald.
Onr paper of yesterday contained a report of the.judgment
in the Court of Queen's Bench upon the publisher of the
Timer newspaper for a libel on Sir John Conroy. It was
not our intention to have done anything more in this matter
than merely report what took place in Court, but a leading
article in the Times of yesterday occasions an alteration of
our previous intention. In the article' to which we refer, the
offence which the Court thought worthy of punishment is
renewed with aggravated bitterness, and there is a flourish in-
troduced at the end, as though the liberty of the press were
held to be properly supported and vindicated, by this insult to
the tribunals, and this perseverance in doing injury. We
desire to relieve ourselves from the opprobrium, which by our
Yslk • eceewsi es silence might attach to us, of c9Mciding in this view. We
t,ese'ra',.ss" _think the liberty of the British Press is disgraced and jeopar-
rf
• disc& not vindicated' and secured, by that perseverance in
an. ascertained and decreed offence, of which the Times has
bean guilty. No members of the Press can be more ready

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