The Statesman.
London, England, 1820-02-19 00:00:00

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•
LIBERTY OP THE PRESS.

(Concluded frau" oar Paper of yesterday..) •

The question deco mei sfill more critical, when it is
considered that a tribunal cannot, like the political cen-
sor. consider each single case acconling to its peculiar
iscutostances ; (which are often only. known to the
totter) ; but, in all investigatimis, looks tio the establish-
ment of general principles and fixed rules. Heuer, in•
times when prueecutions for offencesof the Press accumu-
late, a Court, which has acquitted or condemned two ur
thee* writings of a certain tone or character, cannot
hesitate, likewise, to acquit or condemn allsimilar pub-
lications. Thus a systematic course of proceeding is
adopted, which places the tribunal in constant opposi-
either with the government or with the public.—
Theme alternatives must. however, he equally prejudicial.
In the one case the government, being impeached by the
tribiseal, will appear in an °thousand inimical piiint of
view ; in the other, the tribunal will be regarded as an
abject and blind instrument of power. The consequence
of such a state of things must unavoidably be, that the
judges lose, without redemption, all their independence
and dignity—whether iodating in reality or in opinion—
along with the respect, the favour, and the confidence of
the better part of the nation. •
To obviate souse of these objections, it has been pro-
posed, in lieu of the ordinary Courts of Justi-e, to ap-
oint for the trial of publications, prosecuted the suit
41 the Crown, a particular tribunal, compose., of legal
Judges, political assessors, and a certain number of men
I.f experience, distinguished for their cultivated know-
ledge and learuing. But such an authority would no
longer be a tribunal, but as extraordinary commission,
us Lich winsid very insufficiently and insecurely supple
the place of a real Court of Justice. 11'hatever such a
con.mission, on the one hand, might gain, through the
niftier of its composition, in ability and fitness for judg-
ing, it would lose tenfold, on the other, in indepetithuce,
weight, and public confidence.
.1 much better remedy is afforded loyolie arrangement
at present existing in England : whereby, in rases of
libel, the judicial authority is, as it were, divided into
two separate portions; one of which, the bench oil
Judges merely superintends the process, and pronounces •
the final judgment : whilst the other, the Jury, derides
on the wain question of the guilt or innocence of the
_defrudant. 11 e are, however, far from perceiving in !
this method that degree of perfection which has bees
haply ascribed to it, in France, by several men, in other
inspects highly intelligent. We are rather of lyinien
that, for pronouncing judgment on political writings, a
Jury is, in fact, an authority infinitely less competent
th..n the members of a Court of Justice. lint as, se- I
cording to the foregoing observations, the sentence of
no Judicial authority, on anion of the press, can be
entirely cteitipt Irma the suspicion or the appearance
of arbitrary dreisimi and partiality, we conceive it to '
be, beyond all contradiction, better that this suspicion
vr appearance should attach to a selection t the
.people than to the Judges. For this very reason, in
ountries where such forms already exist, or are comps-
Ode with criminal proceedings, we should prefer the .
Jury, with all its deficiencies and dangers, to the 'eels-'
sire responsibility of the Judge, which we regard as the
greater evil of the two.
We shall now enter into an historical explanation of ,
the manner in which the power of the British Jury, io .
actioas for libel, has attained its present roneistency,
and what, under its authority, the freedom of the press
in England leas become.
After the abolition of a preliminary censorship in that
c.rintry, offences of the came within the ordinary
er,mninal jurisdiction. press
England no criminal pro-
-1-..5. is carried un the intervention of the Jury,
it naturally found its place in trials for libel. But. in
actions of this kind, the power of the Jury was notch
more limited than in any other process, until at the
ckme of the eighteenth century, when the sphere of that
oestitution was materially extended. We t better
lieeerihe the state of Juries before that period than by
the following words of Mr. Burke, spoken in favour of
extending the power of Juries, in one of the first Portia-
tnentary Debates that took place on time subject
61 It is the very ancient privilege of the people of
riigland, that they shall be tried, except in the known
seeptioes, not by Judges appointed by the Crown, but
I.v their own fellow-subjects—the Peers of that County
Mart at which they ()we their snit end serrisse; and out
~f this principle the Trial by Amy has grown. This
inciple has not, that I can hail, been contested in any
..,se, by any authority whatsoever; but there is one case
1%1 which, without directly contesting the principle, the
whole substance, energy, and virtue of the privilege is
‘Leti out of it : that is, in the case of a trial by indict-
( .rot ur information for a libel. The doctrine, in that
.141% laid down by I Judges, amounts to this:
teat the Jury have no competence where a libel is al-
-1••,:rel, except to 6nd the gross corporeal facts of the
i. toting and publication, together with the identity of
the things and persons to which it refers; but that the
intent and tendency of the work, in which intent and
t-miency the whole criminality consists, is the sole and
veclusive province of the Judge. 'rims having reduced
Cie Jury to the cognisance of facts, not in themselves
presumptively criminal, but actions neutral and indiffe-
rent, the whole matter, in which the subject has any
concern or interest, is taken out of the [sands of the
Jury; and if the Jury take more epos themselves, what
they so take, is contrary to their duty; it is no moral,
Lot a merely natural power : the same by which they
may do any other improper act; the same by which they
may even prejudice themselves with regard to any part
of the issue before them. Such is the matter as it now
viols, in possession of your highest criminal Courts;
I .nded down to them from very respectable legal an-
C: slurs."
During the first eighty years after the abolition of the
censorship, originally exercised by the Star Chamber.
:•n•i afterwards by a Parliamentary Commission, the
fruition of the powers of Juries, se actions for libel,
pears to have been very seldom, or not at all, agi-
tated. There exists, indeed, scarcely any traces, either
is.dicial or extra-judicial, of the discussion of this ques-
tion. But though the boundary line between the pro-
s ince of the Court and the Jury was then determined
be an law, a long usage, uninterrupted and, until the
sear 1770, undisputed, had sanctioned the rule—that
the Jnry could only decide on the fact Of the publiew
lion, and that every thing else was to be kft In the
Judge. All the legal and judicial authorities, free Sir
John Holt, the first Chief Justice after the Revolution at
1689, down to Lord llansiebi, had constantly earl Mete
(lily maintained this rule.
Early in the reign of (horse 111. the first publicatinte
of an offensive political paper !meanie the occasion of
eery memorable proceediari and violent commotions in
the country. John Wilkes, a Member of the House of
Cosninons, a man of euodesate talents, very restless
spirit, and little respectability as to moral clic:aster, in
ft:stony-fifth number of * periodic,' work, which he
published ander the title el l'Ae Aosta Britt*. dared
to make a most indecent attach on the king. sad
charged several passages of a speech delivered from the
'llirooe to Parliament with falsehood. or this of enee
he was arrested by order of the fietretary of State, and
%est to the Tower. In the course of a few•daya he Was,
however, brought up, by writ of hibeas corpse, to the
'Dort Of Common Pleas, and,(3llequati.ee Pratt (niter-
wards Lord Camden)) set him at on
. the ground
that ihe privilege of Parliamentarm*NOM is hisperma.

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