The Sun.
London, England, 1834-09-02 00:00:00

COMMITTEE ON LAW OF LIBEL.

(Continued from our Paper of Saturday.)
MINUTES OF EVIDENCE TAKEN BEFORE THE SELECT COMMIT-
TEE APPOINTED TO CONSIDER THE PRESENT STATE OF TIIE
LAW AS REGARDS LIBEL AND SLANDER, AND TO REPORT
THEIR OBSERVATIONS THEREUPON TO THE HOUSE.—MOs-
DAY, JUNE 9.
(The SOLICITOR-GENERAL in the Chair.)

EVIDENCE OF THE LORD CHANCELLOR.
Is there any thing that your Lordship wishes to state to
the committee with reference to the subjects upon which
you expressed an opinion upon the former days :—I ob-
serve, in looking over the evidence which I gave upon the
three last days, that I omitted to state two. particulars
one respecting the propOsed alteration in the law of libel,
by allowing the truth to be given in evidence, and the other
respectinc, the kind of obstructions which are thrown in
the way of publishers by the Act passed in the year 1799,
the 39th of George 111. With respect to the first matter,
I omitted to mention a remarkable instance of the great
absurdity of the present law, and the great injustice which
arises from the practice under it. A very short time before
I left the bar I had occasion to see a case of libel tried in
the Court of King's Bench—l was indeed of counsel for
the defendant. The publisher of a newspaper was prose-
cuted by indictment for having stated &fact, namely, that
a person teaching in a public institution had been convicted
of forgery in France, and sentenced to work in irons. As
leading for the defendant, I either admitted the publication
or saw it easily proved, and then rested my case on nega-
tiving malice ; and for this purpose I offered to prove that
the statement was merely a reference to a known fact. I
produced with that view the most satisfactory evidence
that could possibly be given, for it was an office copy, or
rather exemplification, for it was under the seal of the
Court, of the record of the conviction, by-which it ap-
peared that the individual had been tried for forgery, con-
victed, thid sentenced to work in the gallies or on the
streets, with a chain round his leg—for forgery. Mr. Jus-
tice Littledale, who then sat for the Lord Chief Justice,
rejected the evidence, which he was, by the undoubted law,
bound to do, and the defendant was convicted, just as if he
had been the author of a false, scandalous, and malicious
libel. The prosecutor, however, did not choose to run the ,
risk of having this given in evidence in mitigation of punish-
ment, and he never, as far as I know, brought up the de-
fendant for judgment.
The other circumstance I wish to mention regards the
provision of the law which obliges the editors of newspa-
pers to furnish evidence against themselves, and of which I
expressed upon the whole a favourable opinion. I omitted
to mention that provision of that description is highly ap-
p:'
o%ed by a very great advocate of the freest possible dis-
cussion, a very illustrious opponent of all: unnecessary re.

striction upon publication—l mean. no less a man than
Milton. In his Areopagitica, or a " Discourse of the Li-
berty of Unlicensed Printing," he mentions that there had
been a very great improvement in the law introduced, I
think he says, by the Long Parliament, and lie mentions -it
in terms of unqualified praise—namely, requiring the regis-
try of the names of publishers and authors, or at least, he says,
the publishers ; from which I conclude that he had a lean.
ing towards making authors register, though he doubted on
this,—but at all events' publishers. It must be observed
that this illustrious friend of liberty and enemy of previous
restrictions on the press, never dreamt of a state of things
in which men should be exempt from legal responsibility for
what they published.
The case which I have just mentioned was one of the
strongest I ever saw, and one which made everybody feel
the absurdity of that part of the law of libel. There was
another instance in which I was consulted some years
before ; it was a prosecution ex-officio of a respectable pro-
vincial paper, called the Nottingham Review, for strong
observations upon the conduct of the King's Government,
and particularly the King's troops in North America the
year before ; and we had there, as in the late case, a very
compendious and easy mode of giving the matter in evi-
dence, because we bad the Gazette account of the military
operations, and that would-have proved that the Govern-
ment had published a certain account of the affair. It was,
I believe, tendered in evidence, and refused, but having
been prevented by accident from going special to the trial, I
cannot speak with confidence further.
In point of fact, as the law now stands, is not the prose-
cuting by indictment almost constructive evidence of the
truth of a libel ?—lt is almost supposed to admit that.
Does not it strike your Lordship that the present mode
of proceeding by information is still more objectionable than
by indictment, inasmuch as if the affidavits upon which you
ground your information are contradicted you cannot re-
ply ?—There is no doubt that this occasions hardship ;
nevertheless, 'it is a hardship that is not confined to cases
of criminal information ; it is the consequence of the uni-
versal rule. If I move on affidavit for a new trial in any
common case, in an action upon a bill of exchange, upon
the ground of the verdict being contrary to evidence, and
get a rule to show cause ; when my adversary produces
affidavits against the rule lie has the advantage of swearing
last, and I have no means of answering him. I have rea-
son to believe, from what I heard here stated the other
day, that it is not so.in Ireland, but in England it is uni-
versally the rule, so much so, .that there is a common ex-
pression, "You are believed because you swear last ;"
therefore it is not peculiar to cases of libel ; but it is no
doubt a rule which often gives rise to great inconvenience,
and it does to a certain degree detract from the advantages
with which the proceeding by criminal information
is attended. But still I am perfectly clear that the
proceeding by criminal information is justly an ob-
ject of great commendation on the part of all those
who have seen its practical operation. It may be liable to
some speculative objections, but in practice it affords a very
substantial relief to a person who has been injured by a
libel, of the falsehood of which he is conscious, and from
which he instantly proceeds to purge himself upon oath,
and to obtain the sanction of the Court to his innocence
by the granting of a rule. He then to a certain degree de-
fies his adversary to prove the truth against him, pretty
much in the same manner as in an action, but in one re-
spect less satisfactorily, because there is no cross-examina-
tion of his witnesses, though in another respect it is a
greater defiance, because the informant or the slanderer
will often venture to swear a thing upon affidavit which he
would be unwilling to swear in the witness-box ;so that in
this respect it is a greater defiance than an action.
Would not many of the incpnveniences which may now
result from the proceedings upon a criminal information be
done away with if the truth were admitted upon the trial,
so that this should only be a preliminary examination upon
that point?—Many would, because the truth is now only in
issue in the preliminary stage of grantinc, the information.
Would it not make the proceeding byb indictment much
more effectual for the purpose of clearing the character of
the prosecutor if he were obliged to deny the charge in the
libel upon oath ?—Every body knows that a man by an ac-
tion or by an indictment does not in reality defy his adver-
sary. An action is a great defiance in respect of such
charges as are from their nature likely to have witnesses ;
but it is no defiance with respect to charges which are in
their nature secret : for example, in the case I put the
other day of a person who is charged with having com-
mitted adultery with a married woman ; if that is the
charge against him, what possible defiance is it for him to
bring his action, or what defiance would it be to prefer his
bill of indictment? It may be just as true after the ver-
dict as before ; he only defies the party to prove it, but he
may be perfectly satisfied that nobody but himself and his
paramour is aware of the truth, and therefore he may most
safely bring an action or prefer an indictment. But sup-
posing the law were changed, and he had to swear that it
was not true, and if his paramour also had to swear the
same (which would be required), the probability is, that
he would not prosecute ; yet I am clear that the swearing
to this effect before a grand jury would have an infinitely
less beneficial effect. I have often thought it might be alti
improvement in the proceeding by criminal information, If
the Court in its discretion were to allow the prosecutor
who moves for a criminal information to reply upon affi-
davit, or, if that should be thought to be breaking in upon
too important a rule of proceeding, that the Court should
not be tied down against allowing him to reiterate his mo-
tion (when he had mended his hand) by moving for a new
information after his first rule is discharged. At present
they hold it to be almost conclusive, and it is very often
positively conclusive, by the circuit having intervened.
When the knowledge of a fact is in the breast of a de-
fendant, does not it follow, that even admitting the truth
upon the present rules of evidence would hardly be a defi-
ance, because the defendant would be shut out at nisi pries
from giving that evidence, subject to the cross-examination
which he may giVe upon affidavit, without cross-examina-
tion, and does your Lordship think that to be a good rule
of law ?—Those are rare cases ; it does not often happen
that the only persons cognizant of a fact of a criminal na-
ture should be the prosecutor of the information and -the
libeller. Often no one but the prosecutor knows it, but
seldom he and the libeller, and none besides. But the cir-
cumstance alluded to is by no means peculiar to the case
of libel : it is emphatically the case with respect to charges
of rape ; it is the case with charges of unnatural crime ; it
is the case with many thefts, and robberies, and assaults,
where the prosecutor is heard upon oath and the prisoner
is not heard upon oath. The law of England is anomalous
upon that subject, bolding the party really interested in the
prosecution to be no party at all, but only the Crown's
witness, and hearing him on oath, as if he were without
any interest. There is another anomaly, of a somewhat
similar kind, in the courts of equity, where one party states
his case upon assertion, and the other party is bound to
answer upon oath : but then no one can read his own an-
swer in evidence for himself. •
Does not your Lordship think that the benefit of a cri-
minal information, which consists chiefly in the vindication
of the plaintiff's character upon his own oath, might be ob-
tained by obliging him to accompany his indictment by
affidavits to the same effect :—lt is not merely obliging
him to clear his character by oath that aids him, but the
manner in which he does it. He moves first upon his affi-
davit ; notice is thereby given to the defendant, who has
time to get counter-affidavits, and then, upon those coun-
ter-affidavits being filed, the Court discusses the whole
matter, weighs one swearing against the other, and pro-
nounces an opinion upon the whole subject.
Does not your Lordship think that that discussion upon
affidavits is about as bad a mode of discussing the question
as can be ?—I do not think it is ; I do not think it is so
bad as a grand jury ; the grand jury at present is bad
enough, but this would be ten times worse, because here
you would have an affidavit without examining the person.
The grand jury can always examine the prosecutor, if they
choose to put the question whether the charge is true or
not ; but theri this is behind the back of the other party.
Does your Lordship think that the improvement which
has been made in the Court of Review in bankruptcy, by
giving to the Court the power of calling up persons who
have made affidavits and examining them viva-Voce, might
be usefully introduced into informations in cases of libel ?
I have some difficulty in saying positively that it would, be-
cause many of those persons who are most likely to be
libelled are of a feeble, nervous description, and they would
not like to come before a court to be examined and cross-
examined.

Would it be desirable to give that power to the Court as
matter of discretion ?—I have not sufficiently considered
that subject to give a confident opinion upon it ; I am not
prepared to say that such a discretion might not with ad-
vantage be introduced. I understand that the Court of
Review has not often availed itself of the power. 1
In your Lordship's evidence on the last day, you stated"
that you thought that no practical evil had arisen in thel
law of England from the want of a better definition of libel ;i
do not you think that great practical evil has arisen from.
the want of better classification of offences of the press
I will not take upon me to deny that it might be more ad-,
vantageous to have such a classification of offences and of
punishments as should award more definite amounts of
punishment to particular species of offence, though I see
very great difficulty in making that classification in the case
of libels, for the reasons I have before stated against deg
.fining. This, in fact, is another form of the same question.
I think that the different species of libels run into each
other in a way which makes it very difficult to say that and
class of libel shall have this degree of punishment, a second
class shall have a second degree of punishment, and a third
class a third degree of punishment. I can easily understand
that great difficulty may arise, even after you. have over-
come the first difficulty, of dividing theta 'into different
classes, and agpointing different degrees of punishment to
each. I are almost certain that you could not describe