The Sun.
London, England, 1841-06-15 00:00:00

EXTRACTS.

A remarkable instanoe to showthe..injustice of reject-
ing evidence of the truth of the statement contained in
an alleged libel on a prosecutionovi' 'a. view to repel
the presumption of malice, is understood to have been
mentioned by the Lord Chancellor, (Lord Brougham) in
his evidence before a select committee of the Hciuse of
Commons on the law of libel, in which his Lordship (be-
fore he left the bar) had been counsel. The publisher of a
newspaper was prosecuted by indictment for having
stated a fact, namely, that a person teaching-. in EL li pubc
institution had been convicted of forgery in'France, end
sent to work in irons. The learned counsel rested his-
case on negativing malice, and for this purpose offered
to prove that the statement was merely a reference 'to a
known fact. He produced with that 'flew the most satis-
factory evidence that could be given,
an exemplification
under the seal of the court of the record of the convic-
tion, by which it appeared that the prosecutor. had been
tried- for forgery-, convicted, and sentaneed to work in
the galleys, or in the streets, with. a chain round his
leg. The learned judge who presided at the trial re-
jected this evidence, which by the law he wa.4 undoubt-
ediy bound to do, and the defendant was convicted, just
as if he had been the author of a•false, scandalous, and
malicious libel.

Whilst the exclusion of the distinction between truth
and falsehood is, with the exception alluded to, and
subject to the condition which has been. noticed, :con-
sistent with- the operation of the limited' principle
avowe i by the law of En4lancl, such exclusion would
obviously be inconsistent with the adoption of a larger
principle, viz., the protection of the private individual in
his private capacity, in the enjoyment of his reputa-.
tion ; for there the very nature and character of the
injury itself depend on the truth or falsehood of the
charge, and the truth of the charge must either. be
a conclusive answer to the complaint of injury to repu-
tation, or must at all events greatly diminish the extent
of the offence and mitigate the guilt of the offender. Re-
garding the offence simply as it concerns injury to the
individual, it i. difficult to say that any one ought to be
protected in the enjoyment of that reputation which
exists only through .ignorance of the truth, and which
is therefore in itself falsec and deceptive. In such a
case a guilty individual may Suffer privation, but it
is impossible to say that he suffers injury from pub-
licity, unless ignorance of the characters ot individuals,
which cannot possibly be of advantage to the 'public, can
constitute a private right. The laW of England, so far
from acknowledging the existence of-any such right,
positively disclaims it, in making the • truth of the
alleged libel to constitute an absolute and peremptory
bar to a civil action to recover a remedy for the defy-'
illation in damages. Were the principle of rejecting
evidence of the truth of an alleged libel to be ever so
well preserved, and which is more difficult to suppose, to
be ever so well appreciated by the generality of people,
the law would still be defective in moral effect, as making
no distinction between a statement of the truth and the
publication of a false and wicked invention. This, how
ever, is a distinction which the law of England recog-
nises, although at the expense of some - inconsistency
for it is tkie practice of the Court of Queen's Bench to
refuse a criminal information in respect of a personal
libel, unless the applicant deny its truth by affidavit.—

p. 57.
Acting upon the grounds we have above suggested,
we now proceed to submit the following recommenda-

ions :

We recommend that, in respect of personal libels, two
distinct classes of offences should be constituted,—that
one of those should be founded on the general principle
of protection to private reputation against such defama-
tory imputations as are false as well as malicious ; that
the second should be founded on the principle already es-
tablished, of protection to the public peace by preventing
the publication of libels on private, persons, tending to
the disturbance of the peace.
That in respect of the former class, the truth of the
matterpublished, when it either directly or by implica-
tion contained a charge of miscondnet, should be a bar to
the prosecution ; that in cases within the latter class, the
truth of the niattei published 'should in no ease be avail-
able by way of defence to the publisher of the libel.
But that in either case, and generally, evidence of the
truth or falsity of the matter published should be admis-
sible where the_occasion of the publication was a privi-
leged ortt,- dui as legally to raise the question as to the
actual intention of the defendant, whether he acted bona,
fide in reference to the 'particular occasion, or•with .an
actually malicious intention independently of the occasion.
That none but a party defamed, or some other person
with his consent, should be allowed to prosecute for the
publication of a libel alleged to be false.
The grounds for these suggestions have already been
adverted to. As regards the first, it has already been
observed that the present avowed foundation of the cri-
minal law in the case of personal libels is too narrow, as
being confined in its object, principally if not solely, to
the protection of the public peace ; we think that Ct ought
to be extended to the protection of reputation -as a valu-
able private possession, against a malicious injury, the
remedy afforded by a civil action to recover damages
being wholly inadequate to afford the protection which
is necessary.
We see no objection in such cases, and so far as con-
cerns personal libels, to allow the truth to be a bar, as
in the case of a civil action.
Where the contents of the libel are not alleged to be
false, but it is written with intent to provoke another to
commit a breach of the peace, or where its terms are
such as naturally and 'immediately tend to a breach of
the public peace, it seems to us that the truth of the con-
tents of the libel ought not to constitute a bar to the in-
dictment. This stands on the principle recognised by
the present law—it is essential to the public peace and
tranquillity to prevent their disturbance by the unne-
cessary publication even of that which is true ; truth
itself ought not to be .made use of as a colour and pre-
tence for wreaking private malice and producing public
discord. . •
Again, it seems to us that in all cases where, on its
being admitted or proved`` that the party published
the alleged libel on some occasion or unier cir-
cumstances recognised by the law as afforditig a
qualified justification, dependent on the question
whether he acted honestly and bona fide, in reference
to the occasion, or main tide, and out of mere malice,.
the truth or falsity of the alleged libel ought to be ad-
mitted in evidence, the better to enable the jury to de-
cide on the real motives and intention of the party. It
is, we think, plainly inconsistent that in the first place
the innocence or guilt of the party charged with libel
should be made to depend on the actual disposition of
mind and intention at the time of publication, and yet
that one of the best and surest tests for deciding that
fact should be -withheld from the consideration of the
jury. It is obvious that to exclude such evidence must
often occasion the conviction of the innocent, and still
more frequently the acquittal of the guilty ; no evidence
can possibly be mere cogent to show that the party was
acting mala tide than the fact that he knew that the inju-
rious matter published was false.
These provisions, we may observe, seem to unite, so
far as union is practicable, the ancient ivith the modern
law in respect to personal libels, and at the same time
remove an unseemly anomaly to the general rules and
principles of the law of evidence.
We further recommend that it should be competent to
any person responsible as editor, publisher, or otherwise,
of any newspaper or otherperiochcal work, either before
or after any prosecution commenced against him in re-
spect of auy personal libel contained . in such work, to
disclose to the party libelled the name of .the author of
the libel, and to supply him with such evidence as may
be sufficient to prove
,the fact, and in case such disclosure
shall be made and proof be given after such prosecution
commenced, then to pay or tender to the prosecutor the
costs of the prosecution then incurred ; and that if such
prosecutor shall, after such disclosure made and evidence
supplied, and incase such disclosure be not made and evi-
dence supplied before the commenecment of the prosecu-
tion, also after tender of such exepnses, proceedwith the pro-
secutitin, the defendant, on proof of those facts, shall be
entitlecUto-an acquittal, unless the prosecutor shall prove
that the defendant published out of actual malice ; and
that in case the prosecution -shall be forborne or sus-
pended by such prosecutor, and he shall by the means of
the evidence supplied prosecute the author, whose name
shall have been disclosed, the party so having disclosed
the author's name shall not be liable to. any prosecution,
none having been commenced at the time of such dis-
closure or information, or to any further prosecution, in
case of a prosecution suspended as aforesaid, unless the
disclosure made and evidence supplied shall be insufficient
to oecasion the conviction .oan f the party whose name shall
have been so disclosed ; d that, n ease of failure from
the insufficiency of the evidence .so supplied,. the prose-
cutor shall be entitled to commence a prosecution, or to
,continue a prosecution already commenced, against such
original publisher, and to recover 'from him the costs of
such ineffectual prosecution. •
We found this recommendation upon the following
grounds :
I tvry
freqpittiebnlishe tlyhqpens that a party responsible, or
theeditorr of a newspaper or periodical work
containing
may, through inadvertence, without any
malicious motive, publish libellous matter. The injurious
or
news,
quality of the libel may frequently depe el on circumstances
charge
furtherg es
responsible sible
to which he is an entire stranger. In such cases it is obviously
politic that the real author of the calumny should be made
per son al ill-will or
responsible for his miscptiduct, and that the instrument of
amenable. 'On the
was himself
oiut,publication,le.eh is aaNgldiatenrsseht
otwhullledo:naolob,
actuated by malicious feeling in publishing the Übe', he