libels, and as the authors, (whoever they were,) of the maxim that libel is punishable as tending to a breach of the peace, did not appear to have had in view the operation of an obscene book, or to have contemplated such a book as a libel, it was not necessary to at tempt to bring the case within the maxim. The prosecutors of the obscene book were at liberty to look round them for other pernicious consequences of the publishing of such a book, besides the tendency to a breach of the peace; and it would have carried to the full as strong a conviction that the book was properly punishable, if it had been held to be punishable as being destructive of morality, as it could do by endeavouring to make it appear that what is against morality is a breach of the peace, and that the book shall be punishable for this last accident. In my mind, to have rested the public offence, in the particular case, on this ground, would have been more satisfactory; inasmuch as it is hard to conceive, that what is against morality can be perfectly innocent; while, if we look only to the fact of tendency or no tendency to a breach of the peace, it may safely be advanced, that many actions which plainly have a direct tendency to a breach of the peace, may nevertheless be not only innocent, but necessary and laudable: as for example, the attempt to apprehend a felon.'

Referring to the authorities under this head of the law, the author asserts that

No correct, no logical definition of a libel has ever been given. There are, however, to be found in various books, passages, of which, though they all fail to present us with a logical definition of a libel, some nevertheless serve very well to give us such a general conception of what is meant by a libel, as is sufficient for many occasions, and such as, perhaps, would have sufficed for all occasions, provided other doctrines which have been advanced, concerning the same subject-matter, were not in some degree at variance with them, and provided the unqualified assertion that libels have a tendency to a breach of the peace, and the maxim that they shall be punishable on that account, had not been superadded.'

It is here allowed that the doctrine, that on an indictment the truth is no justification, stands on high authority, but Mr. George denies that in its universality this doctrine is law. He states particular cases in which the truth is not and ought not to be a justification: but he contends that in other cases it has been and ought to have been ruled to be a justification. Yet still he acknowleges that he never met with any description of case, in which a defendant was expressly held to be no libeller because his writing was true. It would seem, from the ensuing passage, that he does not admit that the well known adage, the greater the truth the greater the libel, is law. The above doctrine, that it is not material whether the writing be true, seems to have served as a hint to some men of a dogmatical cast of mind, and perhaps little anxious about the consequences which might ensue to public freedom, to go still

farther,

farther, and to promulgate as a maxim, in the like broad and unqualified way, that "the greater the truth, the greater the libel."

As to the limits within which Mr. G. confines the doctrine that the truth is no justification, he observes, in referring to the authorities on the subject,

I feel myself warranted in expressing the opinion that they lead to this conclusion; namely, that all such writings as deny to a man the possession of some such worthy quality as every man is a priori to be taken to possess, or such as an individual in the situation of the person to whom the particular writing relates, is to be taken to possess; or such writings as impute to an individual the commission of some vicious or unworthy act, fall within the description of writ ings which in the language of law-books are currently termed libels; and that, whether the writing be true or false; and without stopping to inquire what in point of fact were, or may reasonably be supposed to have been, the motives of the publisher. For the mischievous intention, which is always allowed arguendo to form an ingredient of the offence, is held to be an inference of law; and that no evidence of intention is necessary.'

We fully agree with the author that it should be deemed libellous to publish to the world those vices of individuals which are considered as more common and less odious, and which bring with them punishment equal to the transgression: but, although it is dévoutly to be wished that all men, who are guilty of other offences, such as Mr. G. enumerates, should feel the ill consequences of them, yet we hesitate to sanction the public exposure of them by means of the press. Such a practice appears to us to closely resemble the licence of the old Greek comedy, which was endured only in a rude age. If the interference of the press in these matters may be deemed proper, and even salutary, still it should not be allowed, we think, to pour forth naked charges, and to apply them to individuals it should be restricted to the disguise of satire. Were the press permitted to act in any other way, we should dread the consequences; the public peace might suffer, and a wide door be opened to abuses.

Mr. George thus recapitulates his objections to this head of the law:

The cases which have been put, are enough to shew, that there are numerous occasions in which men may, in the eye of reason and justice, innocently publish of other persons, matters which, in the books, are commonly termed libels. Here then, as it seems to me, lie some of the objections to the doctrines concerning what is a libel, and the other doctrines above mentioned and connected therewith. First, that by the doctrine so broadly advanced, concerning what is a libel, and that it is not material whether the writing be true, many descriptions

M 4

descriptions of writings, which are not only innocent but, it may be, meritorious, are nevertheless a priori, called libels. This being the case, it follows, secondly, that the maxim, which says the mischievous intention of the publisher is an inference of law, naturally operates, more or less, against inquiring into the true merits of any particular writing. Thirdly, The maxim that libels shall be punishable (if they have no other pernicious consequence, yet) as tending to a breach of the peace, being in like manner advanced without qualification or restriction, it is made to apply to writings which, as is before said, come within the general description of libels, but which are nevertheless innocent, or, it may be, meritorious. Fourthly, The last-mentioned maxim being so broadly advanced, and taking no notice of the circumstances in which the breach of the peace is to be excited, as whether by the just exposure of such profligate conduct as the interests of the public required to be exposed, inciting the profligate to revenge himself on the publisher, or by the unjust aspersion of a worthy man inciting him to the same course of proceeding, the maxim implies a consciousness of weakness in the law itself. For our natural sense of right and wrong would much rather lead us to infer, that he who has already performed the part of a noxious member of society, should be exemplarily punished for daring to maintain and justify, as it were, his former misconduct, by committing a breach of the peace on the person of him who has ventured, for the general good, to expose that misconduct, than that the latter should be held a criminal for having exposed it; and above all, for the very reason, that in so doing he might incite the vicious subject of his publication to commit a breach of the peace upon him. Fifthly, It is clear, that the law, in being made so to speak, affords indirect encouragement to vice, by sheltering the vicious, as much as in it lies, from the strong argument of public infamy. Lastly, In practice, the courts must in numerous instances, and in fact do, substantially contradict the before-mentioned doctrines, by holding that to be no libel, which according to the general doctrine is a libel, and by disregarding the tendency to a breach of the peace in such cases, notwithstanding the particular writings may in fact have as strong a tendency to a breach of the peace, as the general run of publications which are punished as libels: - The cases of criticisms of an author or an actor are in point to this.

For all these reasons, it appears to me that the generally received notions concerning what is a libel, stand in need of correction; and that, if the maxim that libels shall be punishable as tending to a breach of the peace be to be had recourse to, as in some descriptions of writings it very properly may and seems to be necessary, the due protection of the people from the danger of suffering injustice under it, requires that the particular cases in which the maxim is to apply should be specified; by explaining what writings, containing what meanings, published of what objects, and under what circumstances, shall be deemed criminal, because such writings containing such meanings published of such objects and under such cir cumstances tend in fact to a breach of the peace.'

Although

Although the learning on this subject is almost generally known, it may not be unadvisable to quote the following passages from the volume before us :

• Where a libel is directed against particular individuals, it subjects the libeller to a civil action for damages at the suit of the party libelled. Now in an action at the suit of the party libelled, though not on a criminal prosecution, the defendant may justify the publi cation, by proving that the matters charged by the writing are true. The same writing, therefore, may be a libel in a criminal point of view, but no libel when considered in the light of a civil injury. On the other hand, I have met with no decision or dictum, that any writing in respect of which an action may be maintained as for a libel, may not also be prosecuted as a libel criminally. There is another distinction between libels considered civilly and criminally; namely, that to support an action, the libel must have been published to a third person, whereas in a criminal prosecution the sending or delivering of the libel to the person libelled is a sufficient act of publication.

For the information of the general reader, it may be added, that the mode of proceeding against a libeller criminally, may be by indictment, or by information; but the latter mode of proceeding must be understood with leave of the court. It is to be observed, however, that the King's attorney-general exercises the privilege of filing informations ex officio in cases of public libel.

The punishment of libellers is commonly by fine and imprisonment, and in being bound with sureties for good behaviour." If the case be exorbitant, the defendant may be punished by pillory and the loss of ears." But in every particular case of libel, the court, as in other cases of misdemeanor, is to exercise its own discretion in determining the quantity and kind of punishment, taking care that the punishment be not of a kind which the law does not allow of in cases of mere misdemeanor.'

In resolving the question, What is a libel? the author considers the form and shape of the subject-matter of the offence, its meaning, and the object of it. On the first point, he states

that

It is laid down, that "saying a libel is made of such a one, though he speaks it with malice, without repeating any part of it, is not punishable." And again, "A libel consists not in words and scandalous matter only; for that is not of itself sufficient, though spoken with never so much malice; but it is the putting in writing, or procuring to be put in writing; for if the words are not written, he is not guilty of the libel." In another book we find the following passage on the same subject:-" It has been already observed, that a libel may be expressed not only by printing or writing, but also by signs or pictures; but it seems that some of these ways are essentially necessary." The extracts given seem to lead to the following conclusion; that, in order to constitute a libel, the subject-matter complained of, must be an object of visible perception. But provided

only

only it be an object of visible perception, a libel does not appear to be confined to any particular form or shape.

Thus, a libel may be either in writing, which is technically called libel in scriptis, or without writing, technically called libel sine scriptis. Libel in writing may be effected by every mode of submitting to the eye a meaning through the medium of words; whether this be done by manual writing, or printing, or by any other method. Libel without writing may be either by emblematical pictures; as, to represent a man playing at cudgels with his wife; or by other emblematical devices, as, " to fix a gallows at a man's door or elsewhere ;" to expose him by what is vulgarly termed a skimmington riding; "to carry a fellow about with horns bowing at his door." So, to send a licence to keep a public house to a peer. As a libel, so far as respects its form, may be either by writing solely, or altogether by symbolical device, so may it be compounded of both.

It does not seem, therefore, too general a proposition to advance, that provided only the thing complained of be an object of visible perception, any mode whatever of conveying a libellous meaning is sufficient to constitute a libel in respect of outward form.

By the requisite, which is essential to the existence of a libel, that it be an object of visible perception, libel is distinguished from what is technically called defamation, or spoken slander.'

As to the second point:

We are not to understand by the term meaning, the meaning actually expressed by the words of the libel in the language in which it is couched; for, besides that in libel sine scriptis the meaning is not conveyed by the medium of words, the literal sense of the words of the libel is commonly imperfect; and, if perfect, it may be, indeed, the very opposite to that meaning, in respect of which a party to the libel may be punishable.

Nor by the term meaning are we to understand, what the defendant intended to express; for he may have designedly written that, which in its literal sense should be imperfect. But we are to understand the meaning which he intended others should believe him to have, the sense in which he designed his production should be received by others.

It is, therefore, immaterial, whether a paper alledged to contain, or, rather, perhaps, to be published with a libellous meaning, expresses a meaning in full and direct terms; or the sense of what is written be imperfect; or in what style the writing be sent forth; whether, for example, the author puts a thing interrogatively, or by way of exclamation, or ironically, or clothes his meaning in allegory, or uses any figurative language whatever; provided only it appear, that the party intended to be understood to have such a libellous meaning.'

The relation which libel bears to the qualities of things is much discussed by Mr. George. Pursuing this view of his subject, he is led to an ingenious and original train of reason