ever prosecuted by this method. The plain truth then is, that the Crown is fearful of Grand Juries throwing out the bills. Is this apprehension well founded? Observe here a most important particular. Grand Juries are generally composed of the same individuals who compose the Special Juries, and to whom alone the Crown ever trusts the trial of a libel. Why, then, should not the samne men find the bill, who are thought most likely to find the verdict? We conceive the reason to be plain. As long as the defendant is precluded from proving the truth of his statement, a Jury, when left to themselves, will be slow to put him on his trial; though, very possibly, the same men, under the direction of the Judge, and when required to pronounce upon a man already on his trial, may feel it difficult to avoid convicting him. Were such proof competent, Grand Juries would be less prone to quash the proceeding in the outset; and the only pretext for leaving the ex officio power to the Crown would be done away. The oppressive nature of this prerogative requires no proof. It enables the Government to subject every obnoxious writer to a great expense, and to the still more harassing anxiety of a trial hanging over his head, without the power of bringing it to a determination. That the prerogative has been abused, no one can doubt who has attended to the history of the late times. We speak not now of the English reign of Terror, when, by a cry of Jacobinism, and the compliance of corrupt or frightened majorities, the ministers obtained a suspension of the Constitution, and, not satisfied with imprisoning their adversaries, attempted to take their lives. In those times, libel was not the favourite charge; it was much too mild a punishment to keep a man in anxiety for his liberty, or to shut him up in a distant gaol; stronger measures were required, and the experiment of a proscription was almost begun. But we refer to a quieter period; to the last ten years, long after all general panic had subsided; when no mortal pretended that the monarchy was in danger, and the idea of a French party had become as ridiculous as it always was groundless. The er officio power was, during this time, exercised as a mere party engine, to keep the press in order, to protect weak or corrupt servants of the publick from public censure, and to gratify the spleen of bigotted or sour-tempered individuals. Within the space of three years of as profound internal tranquillity as England ever enjoyed since the Conquest, no less than forty-two informations were filed. In a single day, above twenty political writers were placed in jeopardy. At one time above half the public papers were under prosecution. Informations were filed against them; they were subjected to serious expense; and no one was ever brought to trial. The proceedings were not dropt, but suspended. The writers continued their labours with the sword hanging over their heads. They went on exposing the measures of the Government and the oppressions of the Crown lawyers, with what freedom they might, under such circumstances. Many of them have been seriously injured; none of them have received any compensation; and, at this day, there is nothing in the law to prevent the proceedings being revived against them. We may give an example or two of the actual exercise of this oppressive privilege, in order to show that it is a grand practical evil. The only information filed by that eminently learned and virtuous person, Sir Arthur Piggott, while he held the office of Attorney-general, was against a newspaper which had published a statement full of malignity and falsehood, and the immediate tendency of which was to excite a mutiny, namely, that the Government was about to send a body of troops in ships not seaworthy. The printer applied to him to waive proceedings, and offering to give up the author. The answer was that which is always given in such cases, that no bargain could be made; but that he might give up the author, and trust to the candour of the prosecutor, in case the real writer was found to have been named. general went out of office with his friends. The Attorneysucceeded, and brought their own Attorney with them. To A new ministry him the printer renewed his application. A Nolle Prosequi was forthwith entered; the only one, we will venture to say, ever entered in such a case. The author was given up; that is, a name was given of some one said to be abroad, and who never yet has been heard of; and no further proceedings have been had in the matter. The facts which we have stated were mentioned in the House of Lords in 1811, and in the Commons, both then and last Session, without any contradiction. The newspaper was the Morning Post, notoriously the adherent of the ministry which showed it such favour. The other instance to which we shall refer, happened in 1810. A paragraph appeared in a Sunday paper, and was considered libellous by the Crown lawyers. Informations were filed against the author and the publisher, and another against the editor of a daily paper which had reprinted it. The last of these was tried first, although his offence was evidently much smaller than that of the original author and printer. He was acquitted, the Judge himself directing the Jury most favourably; and the two other informa 1816. tions which stood next for trial were never further proceed- Sensible of the extent of the evil, statesmen of enlightened views and known attachment to the principles of civil liberty, have, Of this description at different times, proposed remedies; of which some are rather to be considered as palliatives than cures. would be, a limitation of the time within which an information should be in force, or a power given to the defendant to force on his trial. The former is exceptionable, inasmuch as it would only oblige the Crown to file a new information, and subject the defendant to additional expense; the latter would hardly produce any practical good: For, in how few cases would a defendant venture to force on his trial, when uncertain of the ultimate intentions of the prosecutor? To compel the Crown to pay costs, when an information was abandoned, that is, after a certain time had elapsed without a trial, might have a better effect; but it would only remedy a small part of the mischief: And, to give the defendant his costs upon an acquittal, would be thought too great a deviation from established and general principles; besides that, even then, a large portion of the evil would remain without a palliative. It has also been suggested, that the extraordinary power should not be exercised in term-time, when the Court of King's Bench can grant the information; but the Crown would then easily pitch upon an act of ublication committed in the vacation, not to mention the very trifling limitation of the abuse which such an exception would provide, if effectual as far as it is intended to go. There is, in truth, but one remedy ;-and that is, the entire removal of the evil, by taking away at once this extraordinary power from the Crown, and placing libel upon the same footing with every other ffence, from high treason down to a common assault. The prosecution of these in practice, is left to the ordinary method, by indictment; and there can be no reason for adopting a different course in cases of libel. The privilege of reply ought to be abolished at the same time. There is not even a shadow of ground for the Crown being preferred in this respect. All ordinary prosecutions by indictment, except for high treason, are conducted without it. Why should the trial of libel be put on a different footing from that of murder or robbery, or any of the various misdemeanors which are prosecuted by bills of indictment preferred by private parties? "Sept. kundet once a most paipable blundera de ayers of criminal justice. Why reves as the prosecutor over the deThe merest of the pubic is not, that the be convicted, but that he should be convicted Du be stout be Lampered in his defence, but A De stolid te vided in making the trath appear; not LANE SULL be incaned in favour of the accusation, SOCIAL be huid perfectly even between the two sides. Deng I question tends, nay it is expressly intended, to de the cation, without regard to the guilt of the deJERZLING AT DONTruck him in his defence, in order that the truth BAY DUC ATTORN; to make the scales preponderate in the proseenors wout, that equal justice may not be done. It presup the ocendant's gain, and seeks to ensure his conviction. 1:a rennart of the oud and exploded laws, which prevented No laudas witnesses from being examined upon oath, and, mia ks, refused him the benefit of any defence masera or beside the charge, as that he was a våre if x 2e time of committing the offence. The by travels at the Brose of Commons last Session by X-Belaguan me dhe karther discussion of which was deferred to PN, MORÒ LA the principies now developed. It first at diacet de xower of ting er oficio informations in » Id erties werds; it next abolishes the power es where the defendant has adduced evidenceCowa Prosecations on the same footing with all her prevenis 177 such trisi from being by Special uzete ex-thas placing the offence in de size wong with all crimes of the highest exa de duas, and with all misdemeanors, vr when do not come from the Crown office. 62 away the Èstinction between written and at de table latter may be prosecutla we next pince, it allows the defendrle, øred tous or defamatory words, le sa yment in evidence, after due notice Na i grovides that the Jury may, notwith2000, hat de defendant guilty—and that the 877 1768 137 consicer such proof either in Nagsuot aid may so consider the giving AND DAGEN, in aggravation. The next 44 12 2 de Créan prove that the publi- 4 26 NOKAT, and they to convict, notwith standing such evidence. It further takes away the distinction between words imputing an indictable offence, and words generally defamatory, declaring both to be actionable, and thus removing also the distinction in this respect between written and spoken slander. Lastly, it prohibits the truth of the statement from being pleaded in justification to an action, whether for libel or for words; but enables the defendant, upon due notice to the plaintiff, to give it in evidence under the general issue, and the Jury to take such evidence into their consideration, but to find a verdict for the plaintiff notwithstanding, if they shall think fit. Such are the provisions of this bill, omitting some matters of technical arrangement; and if there be any truth in the opinions maintained above, it comes within the description given by the preamble, and may be deemed a measure for the more effectually securing the Liberty of the Press, which hath 'been the chief safeguard of the Constitution of these Realms, ⚫ and for the better preventing of abuses in exercising the said liberty, and in using the privilege of public discussion, which, of undoubted right, belongeth to the subject. We have now brought this inquiry to a close; and we cannot dismiss it, without remarking, that after all the arguments which have been offered, there is one short method of reason much more likely to prove successful against any change in the law, how deeply soever it may have its foundations in sound reason. It is a change-an innovation-and that is enough. And yet changes, innovations in the law, are matters of daily occurrence, nor ever objected to when they operate against the liberty of the press, against the ancient rights of the people. In 1799 a new law was passed, to oblige all printers to furnish evidence against themselves. In 1808 a power was, for the first time, given to the Crown lawyers, of sending to prison, or holding to bail, any person against whom an information was filed. In 1807, by a more comprehensive and far wiser innovation, the whole system of civil proceedings in Scotland was altered by one bill; and in 1815, Trial by Jury in civil cases was for the first time introduced, with a new tribunal erected for the purpose. In 1813, the ancient constitution of the Court of Chancery was subverted, and a new court and a new great officer of justice called into existence. The history of the Revenue is the story of inroads upon the Trial by Jury, of new powers conferred upon creatures of the Crown, of innovations upon the old common-law rights of the subject, and the established practice of criminal jurisprudence. The political annals of the last twenty years have been filled with novel acts of legislation |
