Obrazy na stronie

culated according to the New Astronomical Tables, give the longitude of Quito precisely the same with his, Vol. II. p. 353. Some great errors in the longitude of Mexico have also been corrected. The agreement of his own observations with one another, deserves to be remarked.

Longitude of Mexico, by the Chronometer


6h 45' 4.2"
by eclipses of the satellites of Jupiter 6 45'
by distances of the Moon from the

by the Hypsometrical method be-
fore explained

6 45'


[ocr errors]

6 45' 37"

-the mean of all which, 6h 45′ 40′′, is but ten seconds distant from the extremes, Vol. II. p. 495.

[ocr errors]

Even this short and imperfect statement, will fairly justify the remark with which we set out, that no traveller by land ever produced, in the same time, such a number of astronomical and geographical determinations.-Their accuracy, at the same time, is proved beyond a possibility of doubt, both by their consistency among themselves, and their agreement with the observations of other astronomers. Their author, indeed, has been extremely careful to put it in the power of every one to examine his observations, and detect their inconsistency, by the very ample detail of all the particulars into which he has entered. That one individual, in such difficult situations as he was often placed, and having so many difficulties both moral and physical to contend with, should have produced such a body of scientific results, is, we believe, quite unexampled; and it is to point out the means of judging of their accuracy, that we have ventured on this brief analysis. If we have not leisure to do justice ourselves to the astronomical labours of this illustrious traveller, we have at least endeavoured to point out to others the means of doing so.

ART. VI. The Law of Libel, in which is contained a General History of this Law in the Ancient Codes, and of its Introduction and successive Alterations in the Law of England: Comprehending a Digest of all the leading Cases upon Libels, from the earliest to the present Time. By THOMAS LUDLOW HOLT, Esq. of the Middle Temple, Barrister-at-Law. Second Edition, with considerable Additions. London, 1816. pp. 302.

THE great subject which we are now about to discuss, presents so many difficulties to the view, that we frankly acknowledge the boldness of the task we have undertaken.


works of former writers afford but slender assistance, consisting generally of vague declamation or sweeping theory, in which the grand object of practical utility has been lost sight of. The labours of legislators have been still more defect ve, varying only between the opposite and almost equally pernicious extremes of strict prohibition and unrestrained license; nor has any attempt been made, as far as we know, even in the codes fashioned by speculative men for new communities, to reconcile the two great objects of protecting free discussion, and checking at tacks upon character. But the chief obstacle to the successful conduct of the inquiry, arises out of the important modifications which the letter of the law, touching the press, has always received in practice, partly from the influence of other laws, but chiefly from the habits and feelings of the community;-insomuch, that there is hardly any one subject to which a lawgiver can turn his mind, where he will find himself so frequently stopt by the necessity of referring to practice for the correction of deductions, apparently the most simple from admitted principles: And he will even find instances, where, contrary to every preconceived notion, beneficial effects prove not inconsistent with an order of things apparently the most vicious, and founded in a plain departure from the most acknowledged principles of practice. Add to these things, the inauspicious influence of party feelings, upon a question which is wont to excite their utmost violence, and to place the passions of the multitude, and the prejudices of the ignorant, and the interests of the powerful in the most acrimonious conflict. To attempt the calm and dispassionate investigation of a question beset with so many dif ficulties, would be extremely unwise, were its paramount importance not a sufficient inducement to overlook every obstacle.

We shall, however, be told, that the press is in no danger, at least in England; that the discussion is unnecessary; that whatever defects may appear to exist in the system of our laws with regard to it, there are none in practice sufficient to require any material change; and that, at all events, there is nothing urgent in the question, so as to require its being pressed upon our attention peculiarly at the present moment. We purpose to begin by showing how extremely ill founded the two former observations are; and with regard to the others, our whole inquiries will have a strict reference to practical evils; and we only desire the attention of the public to them, and its favour to their results, in so far as they proceed upon plain matters of fact, of daily and familiar occurrence. With respect to the time, we certainly choose it purposely; for, not only will the attention of Parliament be turned towards this subject in its next session, in consequence of the bill lately introduced, but it is at this moment the topic

to which the regards of legislators and politicians in every part of Europe are most eagerly and anxiously directed. The sla very which is almost every where sought to be reestablished, by the admirers of the dark ages, rests its sole hope upon the de struction of the press; while the only chance of placing the general tranquillity upon a sure basis, is sought by enlightened men all over the world, in a judicious extension of its freedom. The problem, then, which they are seeking to solve, is the one which we are about to investigate, namely, to find the quantity of liberty, and the species of restraint, which will secure to the press the greatest amount of free discussion, consistent with the tranquillity of the community, and the safety of private cha Besides, the very circumstance of there being so few. state trials connected with the subject for the last two or three years, even if it proved that no attacks were now likely to be made upon the press, would form an additional inducement to undertake the inquiry at the present time; for all great questions of jurisprudence, and especially of constitutional law, are most advantageously examined at a distance from the actual commission of the offences, or the exercise or the abuse of the powers to which they relate. We shall begin by stating precisely the most material provisions of the law of England, as now. carried into practice, upon the subject of Discussion,-under which term may be comprehended every thing that can give rise in its abuse to any of the offences known by the name of Libelthat is, written defamation, whether against the State or against individuals; or of seditious words, and slander-that is, spoken defamation against the State and against individuals.

The offence of Libel is as well known as any other in the law; and those persons either show much ignorance, or are guilty of extreme bad faith, who would mislead the multitude into a belief that the word is a novelty, without any known legal meaning, because it signifies, originally and in its etymology, a little book. It means, indeed, no such thing, and never did; for it comes not from Libellus, but from Libellus famosus, that is, a defamatory writing; and from hence has been derived libel, by one of those ellipses so frequent in all technical language. It would be just as reasonable to say, that robbery was no crime, or a modern invention, because it meant originally a 'taking;' or that there was no such thing as tyranny, because tyrant once meant king. Whether the offence in question be well defined in the law is another matter, and of which we are soon to speak: We only contend at present, that they who refer to its etymon, give no sort of proof that the offence is unknown to the law of England.

According to that law, the offence consists in publishing a

written, or printed, or painted composition, tending to disturb the publick peace, by vilifying the Government, or otherwise exciting the subject to revolt, which may be termed a publick libel; or by traducing private character, which is commonly termed a private libel;-but both offences are of the same na ture in the eye of law, and are punishable upon the same grounds namely, their tendency to a breach of the peace.Such, at least, is the strict theory of the law; though we shall in the sequel find, that this principle is, like many others, upheld, and cited as inflexible, when it is of any use in the argument against improving our jurisprudence, while it is in practice constantly departed from; as, indeed, the maintenance of it would produce the most absurd consequences.

Libel, of whatever kind, then, is punishable as a misdemeanour, by fine and imprisonment. It used to be punishable also with the pillory, until Mr Taylor's bill most wisely and happily abolished that punishment, except in the case of perjury; and instances are not wanting, of the courts showing such judgment in the infliction of it, that the criminal, instead of enduring obloquy or derision, stood triumphant amidst the universal plaudits of the multitude. Still the amount of fine or imprisonment is wholly in the discretion of the court. Before the Revolation, there were instances of ten years' imprisonment. During the last half century, publick libellers have been sentenced to one year, eighteen months, and two years' confinement, in such prisons as the court thought proper to appoint; for the law allows the Judges to transport him from Northumberland to Cornwall.

The libeller may be put upon his trial, either by information ex officio, which the Crown Lawyers have a right to file of their own mere motion; and upon filing which, they may imprison or hold to bail, (by virtue of a recent statute-48. Geo. III.—one of those innovations which the lovers of ancient institutions never object to) or by criminal information obtained upon an application to the court and after hearing both sides-or by indictment in the ordinary way. In modern practice, public libels are almost always proceeded against by the first mode; libels against men acting in a public capacity, or tending to produce a duel, by the second mode; and libels against private individuals by the third mode. When an ex officio information is filed, no oath is required; the Crown officer merely informs the Court, that the defendant has published a certain libel; and this puts him upon his trial, which he has, however, no means of forcing on; the Crown Officer may hang the prosecution over his head for years; and having done so, he may at any moment bring it to

trial. Whether the defendant is convicted, or acquitted, or never tried at all, he has to pay the costs himself; it being one of the maxims most revered in our law, that the Crown neither receives nor pays costs,-a maxim, too, which we shall presently find deviated from in some instances, and strained in others beyond all resemblance to its original signification. Moreover, in all trials of this description, the Crown has another privilege, by no means unimportant, that of being always heard a second time in reply to whatever may be urged for the defendant.

In whichever of these three ways the proceedings are commenced, two points must be made apparent to the Jury before the defendant can be lawfully convicted, the act of publishing the libel,—and the malice of that act. The first is matter of evidence; the second is frequently shown by the nature of the writing merely; but it is often also proved by certain facts connected with the writing. In every case, however, it is considered as a matter of fact also, and within the peculiar province of the Jury-the Judge having only the right to give his opinion upon this, as he may upon every other question of fact. Formerly, the law was otherwise; and it was held by all the Judges, that the publication being proved, the malice was to be gathered from the tenor and tendency of the writing, not by the Jury, but by the Judge; in other words, that, in this offence alone, the motive-the malus animus-the guilt of the defendant, is a question of law, and not of fact; and that if he is charged with publishing a libel, the prosecutor has only to prove that he published something, whether libellous or not. At length, this was declared by the Legislature not to be the law, † or rather the law was altered, and rendered consistent with common sense in this important particular.

If, then, the publication is proved, the only question for the Jury, is the guilt or innocence of the act; that is, the guilt or the purity of the motives which led to it. But how clear soever this may be, the law takes a very extraordinary mode of enabling the Jury to conduct the inquiry. It allows no question whatever to be made of the truth or falsehood of the matters contained in the writing alleged to be libellous. If the defendant has published, that a gross abuse exists in the management of public affairs; that a minister has been guilty of corruption in his office-or that a private individual has committed a particular crime, the law says, that the Jury must pronounce upon the malice or the purity of his assertions, without being inform

32. Geo. III.

« PoprzedniaDalej »