LAW OF LIBEL.
TO THE EDITOR OF THE SPECTATOR.
SIR—In reference to the Committee appointed on the motion of Lord CAMPBELL for the consideration of the Law of Libel, it is essential that the public mind should be directed, not only to certain specific and crying griev- ances resulting from the present state of the law, but also and chiefly to the general principles of that law, and the general rules of its application. I shall therefore call the attention of your readers to two points, which I will endea- vour to place before them as concisely as possible, although necessarily requiring some development. First. The principle on which the law of England for the punishment of libel is founded is the protection of the public peace. " The chief cause," says HAWKINS, for which the law so severely punishes all offences of this nature, is the direct tendency of them to provoke a breach of public peace." If this be the chief cause for punishment, it is at least singular that no other system of jurisprudence in the world appears to have admitted it, except our own and those which are its immediate outgrowth. Surely the injury done to the re- putation of another is a specific crime, without reference to the chance whether, in direct opposition to the positive command of that religion which is em- phatically declared to be " part and parcel of the law of England," the injured person will forthwith resort to force to avenge his injury. Rightly-, methinks, does the Roman law declare by the mouth of its Prwtor, " Whatsoever a man shall do or say to render another infamous, the injured party shall have his action, (quodcumque quis fecerit vel dixerit ut simm infamit, erit actio in- juriarum.) In the French, in the Bavarian, in the Austrian, in the Prussian codes, as quoted in the Appendix to the Sixth Report of the Criminal Law Commissioners, 1841, not a word of this mere English cause of offence. The idea is clearly one sprung from the necessities of a rude and lawless state of society, when every one, who bad the power, took at once the law into his own hands, and inflicted summary punishment on his ag- griever. At present—except in certain exceptional classes of cases, having for their probable or possible results the fashionable summary punishments of duelling or horsewhipping—the direct mischief of a libel is not in the tendency to provoke a breach of the peace, but in the injury to reputation. Mr. Thompson writes Mr. Jackson down a thief: the mischief is, not that he has provoked the latter to thrash him, if stout enough so to do, but that he has done a thing tending to injure Mr. Jackson's reputation, which is as much that gentleman's property as his watch or his pocket-handkerchief, the de- stroying or abstracting which might equally arouse his thrashing propensities. This is well put in Mr. MecauLer's Indian Penal Code : " It appears to us evident, that between the offence of defaming and the offence of provoking a breach of the peace there is a distinction as broad as that which separates theft and murder. Defamatory imputations of the went kind may have no tendency to cause acts of violence ; words which convey no discreditable imputation whatever may have that tendency in the highest degree," &c. And he puts the case of an attack in writing upon a fnendless woman ; one in which the tendency to a breach of the peace could not be alleged without exciting the risible faculties of every one, however mischievous and criminal the act might be in itself. The late Mr. Lisensceroe, one of the greatest jurists of the age, has distinctly expressed, in his Louisiana Penal Code, the view which I have taken : Theoffence," says he, " consists in the injury offered to reputation, not in any probable breach of the peace or other consequence that may result from it."
Second. Although the foregoing question may seem at first to be one of mere scientific jurisprudence, yet it will be seen to have great influence on the solution of the next point, the very Gordian knot of the law—i.e. Should truth justify the libel? On this head I do not think a satisfactory conclusion has ever been attained; and it is with great diffidence that I submit the sug- gestion of a principle hitherto unrecognized in this branch of criminal le- gislation.
It is well known that our law does not admit in proof the truth of the libel ; as, on its own principle, that a libel is punishable as provoking the libelled in- dividual to break the peace in the person of his libeller, "the greater the truth the greater the libel." Thus BAWKINS—" It is far from being a jostification of a libel that the contents thereof are true, or that the person on whom it is made had a bad reputation, since the greater appearance there is of truth in any malicious invective, so much the more provoking it is." The consequences of this, strictly carried out, are monstrous : as one of them, an end is put to that legitimate satire which avenges public opinion on the unpunished wrongdoer ; and BOILEAU would have deserved to rot in the Bastile for throwing off his sar- castic line,
rappelle un chat on chat, et Rolet no fripou."
Take again the case mentioned by Lord BROUGHAM in his evidence before a Select Committee of the House of Commons (6th Report Cr. L. C., p. 57) of the publisher of a newspaper convicted of libel for having stated the fact of a teacher having committed forgery in France, although the exemplification of the record of conviction was actually produced in court, the man being a com- mon foreat : surely, if this be " summum jus," it is also "summit injuria." The contrary principle to that of the law of England—namely, that crimina- tory matter is not a subject of prosecution unless false—has therefore been em- braced by all those who have been overwhelmed, as it were, by the enormity of protecting the wrongdoer at the expense of the community, and have followed out to its full extent the Stoic maxim of making every one bear the consequences of his own wrong. This view is tersely expressed by the great Roman jurist Peuzlis : "To condemn him that hath rendered a wrongdoer infamous, is not good nor right ; that the guilt of wrongdoer° be known, is both necessary and expedient (cum, qui nocentem infamarit, non esse bonum dignurn condem- nari; peccata enim nocentium nota ease, et opertere, et expedire.) Accord- ingly, the Austrian and Bavarian codes require that the criminatory imputa- tions should be untrue to be libellous; and, in the sphere of our own jurispru- dence, the Indian Penal Code boldly lays down, that " it is not defamation to cause any thing which is true to be believed in any quarter concerning any person." (Horrid slipslop, by the way : it would almost imply that the be- lief of other persons is necessary to constitute a libeL) On the other hand, the French code agrees with our own in denying the proof of the truth in all cages of personal libel, while this is admitted in those which concern the con- duct of any public functionary. This distinction, though grossly insufficient, is at least a step towards the real solution. For practical experience tells us, that the truth of the libel should not in all cases be ajostification. It is wrong that a repentant criminal should be for ever taunted with his crime ; it is wrong that faults atoned for towards society by con- dign punishment, and retrieved by long habits of virtue, should be raked up and cast in the teeth of the now useful and honourable member of society, more ex- emplary in his restoration to virtue than others in their perseverance in it. Take the affecting case mentioned by Lord COTTENHAM (6th Report Cr. L. C., p. 59,) of a young woman seduced by a man of title, restored to virtue and re- spectability by her own persevering will, attaining a responsible situation in a public establishment, then discovered by her seducer, who, after soliciting her in vain to sin a second time, basely revenges himself by blazoning forth her tormer shame and reducing her to misery thereby : should such a wretch not be subject to punishment, although his libel were truth itself? This conaideration, then, introduces the third system of legislation on the subject of libel, which endeavours to blend the punishment of the false libel in all cases with that of the t--ue in certain specified cases only. To this class of laws belong the provisions of the French code, already referred to, so far as relates to libels on public officers; those of the Prussian, which require not only proof of the truth, but of the absence of a design to hurt reputation, in the case of a faLse libel imposing private satisfaction on the libeller, from which he is exempt in the case of a true one, although he may still be liable to punish- ment for the intentional insult ; those of the Louisiana code, which declare de- famation to exist in all cases " in which the defendant cannot show that be was actuated by some motive of public good or private duty in making the allegation." The same feeling has also led to the distinction in our own law between the remedies of libel and criminal information, in the former of which
--proof of the truth is not admitted, while in the latter the plaintiff is required to deny upon oath the whole of the facts alleged in the libel against him, and consequently to let in the proof of their truth by his opponent ; thereby ex- emplitSing, in the most singular manner, the anomalous nature of our legis- lation, in which opposite principles are constantly found at work side by side, 'without any effort being made to reconcile them with one another. The Criminal Law Commissioners, in considering the Law of Libel, of which they have made a laborious and praiseworthy digest, appear fully aware of the defects of the law, and propose what they consider a remedy for them—viz. that there should be two classes of actions for personal libels, one "founded on the general principle of protection to private reputation against such defama- tory imputations as are false as well as malicious," and in which the truth of the matter published should be a bar to the prosecution ; the other, in which the truth should in no case be a defence, "founded on the principle already
kfestablished, of protection to the public peace by preventing the publication of libels on private persons tending to the disturbance of the peace."
Now, with all deference to these learned gentlemen, this appears very little 'more in effect than the present state of the law with reference to the two seve- ral modes of remedy, by libel and criminal information. Call a thief a thief, and you will still be liable to be convicted of libel. On the other hand, give the prosecutor the choice between the two remedies, and who will have the courage to bring an action for a libel generally, i. e. thereby implying that he was guilty of the act imputed to him ? This prosecution for general libel, if we may so term it, would therefore fall to the lot of abandoned scoundrels who choose to prevent all the world from giving them their due meed of infamy, and would be gradually abandoned;by honest men, who, however deserving of the protection of the law, will not be able to bear the sneer and stigma of prose- cuting another for having told the truth.
Next, as to the justice of the proposed enactments : and herein will appear the importance of the principle we have endeavoured to lay down, that the crime of libel consists in an injury to reputation, and nowise in its tendency to provoke a breach of the peace. I calls thief a thief 5—thereby provoking him to knock me down, says "old father antic the law ": now, if he knocks me down, it is surely he who does wrong, and not 1? An action is supposed to be founded in right : now here, on the above principle, it is clearly founded in wrong ; he has no right to knock me down for aught I may say of him ; yet what is this action of libel against me, but a substitute for that supposed right ?
Take, on the contrary, the principle we have contended for, of the injury to reputation. I call you a thief: you bring action of libel against me, as da- maged in your reputation : I deny the injury ; and in proof produce half-a- /linen police-constables, who declare that you are a notorious thief, and have been sentenced so many times to such and such penalties. A verdict of ac- quittal clearly follows, as no injury was done to your reputation, you having none to injure. But suppose I can only produce evidence of your having committed one solitary theft twenty years ago ; you, on the other hand, showing that since that time you have borne an exemplary character. Here an injury was corn- nutted, as you have such a reputation as the law should protect : should con- viction follow thereupon ? Yes, I think, unless the libeller should be able to prove that it was expedient to publish the libel. It may be expedient, for instance, if the person libelled, although guilty but of one solitary offence, is about to be appointed to some high and responsible office, that his whole character and past life should be ransacked in order that the public may know precisely whom they trust. But in all cases it must lie on the libeller to prove the expediency of the libel. It should he observed, that this plea of expediency would also seem to cover the first case adverted to. It is expedient that notorious evil-doers should be known and branded with infamy. But the actual absence of injury is in such cases a better and more special plea. Let there, then, be two pleas in bar to an action of libel,—first, that no injury could be sustained by the libelled person; second, that the publishing of the libel was expedient. I do not think it right to deny the defendant the exhibition of the truth, unless when admitted by the plaintiff, as might be done in the declaration itself. Generally, when real injury is sustained, the party injured can but profit by the whole state of the facts being exposed, as in such case the axiom really holds good that the greater the truth the greater the libel. In the above case of the poor girl libelled by her seducer, the truth of the fact aggra- vated the libeller's guilt a hundredfold, and its non-exhibition would have left her but half vindicated.
The nearest approach to the system I here advocate is in Mr. LIVINGSTON'S code, which calls upon the defendant to show that he was actuated by some motive of public good or private duty in making the allegation. But this is going too far. The law should, as far as possible, avoid searching into motives; the nature of an act, rather than its motive, is the scope of its action. In the heat of passion, or even actuated by the basest motives, the accomplice of a guilty public officer may make some deeply criminatory disclosures, yet highly expedient in a public point of view, and therefore, as I conceive, not in anywise punishable by law. On the other hand, a man may, actuated by a rigid sense of private duty, publish facts against another which are in nowise expedient to be publicly known. But I freely admit that the purity of the motive, or the absence of malice, generally, although not a bar to an action of libel, should always act as a powerful plea in mitigation of the penalty attached to it. This subject, however, would lead us too far, and involve us in the consideration of the difficult cases of excusable libel in general, and excusable false libel in particular. An action for malicious libel specially, or a special allegation or counter-plea of malice in the action generally, may be advocated by some. But such a pro- position would originate in the obnoxious system of looking to the motives rather than to the nature of the act, and has all the disadvantages of that system. Crimes are constantly detected in consequence of information given under the influence of the most malignant motives; yet, however public opi- nion may reprobate the informer, it is cerfldnly not expedient that he should be punishable as for a malicious libel. Besides, for aught we can see, it is un- necessary,. and arises in a misconception of the nature of the act itself. To impute guilt to another, is prima' facie an injury to that person ; and it lies on the person making the imputation to prove that he had a right to make it, or at least, if he cannot do this, that he was excusable in making it.
• In wr:ting, be it understood, or by any other symbol, so as it be not by mere words.
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