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England itself. We are not now called upon to state the particular nature and precise extent of the reforms which we deem desirable; our opinions, indeed, on this point, may be partly gathered from the list of evils which we have given; but the main object at present to be accomplished, is to draw the public attention to the state of the Church, and to show to every man's understanding that it ought not to be left as it is. Above all, we wish to dispel that cloud of prejudice which, on this question, besets the minds of so large a portion, not of the clergy only, but of the gentlemen of England, -o expose some of those parrot-like phrases, which, to the disgrace of human reason, so often bind men's minds with a secret and sovereign charm. Such are the expressions which we so often hear of the “ Constitution in Church and State,” of “ils venerable Establishment,' of its “ heroic Martyrs,” its “ pious and learned Reformers,” and of mild and tolerant spirit of its Doctrines and its Ministers." We call these parrot-like phrases, because, as they are commonly used, they are all either untrue or irrelevant. “ The Constitution in Church and State!" Why it is like the feet of the image in Nebuchadnezzar's dream, which were made part of iron, part of miry clay :-the State strong and sound, gradually perfected by the care of successive generations, carefully watched, and continually repaired ;--the Church patched up in a hurry three hundred years ago, out of elements confessedly corrupted, and ever since allowed to subsist, unlooked to and unmended, as if, like the water of the Thámes, it would grow pure by the mere lapse of time. We would ask, who would wish to live under our Political Government, such as it was when our Church Government was established ? And if the former has required, since that time, a series of improvemenls, can we believe that the experience and added light of threc hundred years could now add nothing to the persect excellence of the laller? “ The venerable Establishment!" Wo would ask, whether the venerable Cathedral Churches of that establishment bave sustained injury from the cleaning, repairing, and removing of deformities, to which the taste and liberality of so many of our Deans and Chapters have been of late years so happily directed ? or whether the ornamenis added in the reigns of Elizabeth and James the First were all so pure and so judicious, that it would have been barbarism and folly to meddle with them? The Church of England has no doubt had its“ heroic martyrs ;" but so has the Church of Pome; and so have all Christian communions; and besides, is it not a little preposterous to invoke the names of those who died in the cause of reformation, in aid of an argument that their example of reform should never be followed again? It has had too“ its pious and learned Reformers," and we wish that it would produce some more-equal in piety, and superior in judgment and enlightened views, to those of the sixteenth century.
A real knowledge of those times—not such a mere heap of prejudices as so many pick up from Izaac Walton, and other such sources would enable us to appreciate their excellences and their defects; would show us that we may admire them far more safely than imitate them; that though no period has produced a great display of ability, yet that our additional experience of two hundred and fifty years gives us the same superiority of judgment over them, that many an ordinary schoolmaster possesses over a very clever boy, who, if he were as old as his master, would in all poinis surpass him.
Such a knowledge, too, would enable us justly to appreciaie the panegyrics which have been passed on the “mild and tolerant
spirit" of the Church of England; it would tell us of the continued persecutions which disgraced the reign of Elizabeth, and of those which added an additional brand of infamy to that dark period between the Restoration and the Revolution ; it would show us, above all, that in the sixteenth century a comprehensive spirit of Christian charity was unknown to all parties, and that the judgment even of the best men of that age, as to the number and nature of the points to be insisted on as terms of communion, is of very little value.
Thus, when the merits of the Church of England are reduced to their just proportions, and no longer magnified to our eyes by the mists of our own ignorance, the faults of its institutions will appear in their true colours
, and we shall wonder by what strange infatuation they can have been so long mistaken for excellences. Then it will be time to discuss more parlicularly the exact nature of the reforms best adapted to the state of the case ; -with what limitations the two grand principles of rendering the constition of the Church more popular and more effective, and of making its terms of communion more comprehensive, should be followed up in praelice. So slowly does truth force its way in opposition to existing prejudices and interests, that we dare not indulge the hope of seeing such a reform accomplished in our days. Yet a little impulse is sometimes sullicient to set in motion the stream of public opinion, which, gathering force year after year, from continual accessions of experience and reflexion, swells al last into an irresistible current, and sweeps away the stubbornest mudbanks of corruption and error.*
LIBERTY OF THE PRESS.
ABUSES OF THE PRESS-LAW OF LIBEL. +
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 lask we have undertaken. The 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 defective, varying only between the opposite and almost equally pernicious extremes of strict prohibition and unrestrained license; nor has any altempt been made, as far as we know, even in the codes fashioned by speculative men for new communities, lo
* The subject of Church Reform is at the present crisis of peculiar importance. It has invariably found in the Edinburgh Review a firm, z-alous, but temperate advocate. However welltined its past efforts may have been, more benefit inay be derived froin iis future services, particularly at this critical juncture, when public attention is powerfully attracted to the abuses of the Church Establishment, and measures for their mitigation or removal will be speedily forced upok the attention of the present enlightened ministry. `In addition to the articles I have selected, ile reader may consult Vol. xxxvi. pp. 350, 433.
+ 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 Libeis, from the earliest 10 the present Time. By Francis Ludlow Boll, Esq of the Middle Temple, Barrister-at-Law.--Vol. xxvii. p. 102. September, ISIG,
reconcile the two great objects of protecting free discussion, and checking allacks 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 parly 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 altempt the calm and dispassionate investigation of a question beset with so many dilliculties 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 it 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 wilh 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 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 slavery which is almost every where sought to be re-established, by the admirers of the dark ages, rests its sole hope upon the destruction 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 character. Besides, the very circumstance of there being so few stale 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 lime; for all greal 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, lo 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 ils abuse to any of the offences known by the name of Libel-that 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 thai 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 malter, 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 wrillen, or printed, or painted composition, tending to disturb the public peace, by vilifying the Government, or otherwise exciting the subject to revolt
, which may be termed a public libel ; or by traducing privale character, which is commonly termed a private libel ; --but both offences are of the samo nature 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 tho 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 produco 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 courls 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 Revolution, there were instances of len years' imprisonment. During the last half century, public 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 objecl lo,)-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 acling 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 por 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 maller 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, -lhe 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 unimus—the guit 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, ihis was declared by the Legislature not to be the law,* or rather the law was altered, and rendered consistent with common sense in this imporlant 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 informed whether they are wholly true or utterly false ; and no proof is allowed to be adduced in elucidation of this point. In somewhat of the same spirit, if the publication was made by the servant generally employed managing the defendant's business, he is not suffered to prove his entire ignorance of the act, but is held responsible for the criminal conduct of the agent, though he never authorized the proceeding; nay, though he was beyond seas when the wriling was composed, and never heard of its conlents until the day of his accusation. The general agency of the servant is
* 32 Geo. Il.