protection for the Government against literary assaults, and they flourished just at the time when such assaults were beginning to be formidable. Hence their existence during the whole of that period superseded the necessity of the introduction, by judicial legislation, of despotic principles upon this subject into the courts of common law; and when they fell, the additions which otherwise might, and probably would, have been made to the common law for the protection of the Government, by the judges, had not been effected. The excessive exercise of the prerogative through the Star Chamber may thus be said to have protected the principles of the common law much as a frost will sometimes protect seeds from the cold.

There is, however, one branch of the law of libel considered as a crime which is probably transmitted directly from the Star Chamber, and which still exists, though it is of no great practical importance. This is the law relating to blasphemous libels, and attacks on morality and religion in general. After the Star Chamber had been abolished, and after the Restoration, the Court of Queen's Bench in one or two cases assumed the character of a "Custos morum," and in that capacity punished acts which it considered as gross outrages on the elementary principles of religion and morals. This was justified principally on the ground that, though the Star Chamber had ceased to exist, such offences must not be allowed to go unpunished. Upon this ground a variety of prosecutions for blasphemy, indecency, and blasphemous and indecent publications, have at different times been successfully prosecuted. At present, however, this branch of the law is of little importance. Indecency is dealt with by special laws provided for that purpose; and it appears to be pretty well recognized, though it may be doubted whether the principle is honestly acted upon in all cases, that the offence of blasphemy or blasphemous libel consists not in the sin of denying or arguing against the fundamental principles of religion, but in the crime of wounding the feelings of others by abusing the principle they consider sacred. If the law thus understood were administered with complete impartiality, mere abuse of an unpopular creed would be punished, whilst the most eager and sharply-expressed invectives against the fundamental doctrines of Christianity would be left unpunished so long as they were honestly intended to have an effect as arguments.

From the Restoration to the Revolution the crime of libel was taken cognizance of exclusively by the courts of common law, and though abundant proof might be given of the excessive severity with which the crime was punished, and of the wide interpretation which was put upon the generalities of the law relating to it, it is remarkable, and indeed it is characteristic of the coarseness of the age, that the great question as to the bearing of the truth upon the criminality of a defamatory writing or speaking does not appear to have been decided during the reign of Charles II. and James II. in a manner hostile to our present views on the subject. There was so much partisanship in the political trials which occurred, and there were so many special penal laws for the repression of particular

topics obnoxious to the Government, that there was no occasion to invent and lay down as law a despotic theory on the subject. The famous case of the seven bishops is one which it is not very easy to turn into a precedent according to the modern fashion; but throughout the whole of it the judges appear to have assumed that there was some connection between the truth of the matter published and the innocence of its publication. Each judge expressed his opinion separately, and the opinions themselves are very discordant; but no one of them lays down in broad terms the doctrines as to the irrelevance of the question, whether the matter published was true or not, which would have been laid down on such an occasion a hundred years later.

During the 18th century the law relating to libel considered as a crime assumed a degree of importance altogether different from anything which had belonged to it before. Pamphleteering first, and by degrees journalism, were rapidly growing towards their present dimensions, and of course they were regarded with the greatest jealousy by all constituted authorities, and by none more than the judges. There is a good deal of the judge about the journalist, for he has the power of inflicting upon those of whose conduct he disapproves the punishment of as much public indignation as his skill and power enable him to direct against them. His paper, as far as its influence extends, is a kind of open court of an irregular kind, in which all manner of persons may be called upon to justify themselves upon every sort of charge affecting any part of their conduct. For sufficiently obvious reasons the judges have always felt the greatest possible jealousy of this power, and it is to be owned that a great deal is to be said for the judicial view of the subject, though it was certainly carried during the last century to a most pernicious extent.

There were three main theories-perfectly independent of each other in reality, though they were in practice closely connected-by which the judges proposed to bridle, and, to a certain extent, actually succeeded in bridling, the continually increasing power of the press. These theories or principles were

First-Maliciously to impute blame to a man publicly is criminal, and especially it is criminal maliciously to find fault with the Government, or to dispute the truth of the established religion, or to express dissatisfaction with any public measures or established institutions whatever.

Secondly-The court, and not the jury, are to determine in each particular case whether the matter complained of did impute blame or express dissatisfaction, and whether such expressions were or were not malicious. The jury are to decide whether the matter was published and what it meant.

Thirdly-Whether the matter is true or not makes no difference, except indeed that either the truth or the falsehood of the accusation may have an effect upon the punishment.

This was the spirit of the law of libel as administered and interpreted throughout the whole of the eighteenth century, and till it was modified

by the famous Act passed at the instance of Lord Erskine. To our modern notions of things, it certainly does appear about as harsh a view of the law of libel as it would be possible to frame; yet there is a good deal more to be said for it than would appear at first sight, and it still forms the foundation of the law, and far more of it survives as a legal theory to the present day than most persons are aware.

If we take in succession the different propositions of which the theory is composed, it will be found that the first of the three is pretty nearly the only one which can be laid down upon the subject. The only difficulty about it lies in defining what is meant by the word "maliciously," that is, in specifying the occasions upon which the public censure of one person by another ought to be permitted. The great struggle between Lord Erskine when at the bar, and the various judges before whom he pleaded on different occasions, was to secure to the jury the right of saying generally whether or not the publication was malicious (other abusive adjectives, "false," "scandalous," &c., were introduced into indictments, but one is enough for our purpose). The judges stoutly resisted, and for many years deferred the admission of the claim, but at last it was declared by Parliament (32 Geo. 3. c. 6.,) that the jury might give a general verdict "on the whole matter put in issue," including of course the averment of malice. There is a good deal of slovenliness and confusion about this matter. "Malice" is the vaguest of all vague words, and nothing shows the unscientific popular character of one of the most important parts of the law of England than the fact that such a word should have entered into the definition of two such crimes as murder and libel. Murder is a "malicious" killing, and libel is a "malicious" attack on reputation. "Malicious" really means no more than wicked, so that unless we know what malice is, this definition is in reality no definition at all. In the case of murder the term "malice” has by degrees been reduced to a certainty. It means all intentional killing, with certain specified exceptions, such as killing under the recent provocation of considerable personal violence; and besides this general provision it has been specifically determined that certain cases of killing are to be considered as murder-for instance, killing a constable in the execution of his duty, and so forth. If, therefore, the analogy of the law of murder had been followed in the case of libel, the judges would have devised a variety of specific rules as to the cases in which attacks on reputation were or were not "malicious," and the jury would have had to find whether the particular case at issue fell under any one of those rules or not. Something more than this, however, was claimed for the judges on the one hand, and for the juries on the other. The judges claimed a right not merely to lay down subordinate general rules as to the nature of malice, but to say in general whether the particular publication in question was or was not malicious. On the other hand, a right was claimed for the jury of saying not merely whether the case fell under any of the particular rules as to the nature of malice laid down by the judge, but generally whether the publication was "malicious" or not. There was no disposition on either

side to define clearly what constituted a libel. The struggle was between the arbitrary power of the judges and the arbitrary power of the juries to label any publication with the word "malicious," and so convert it into a crime. In this contest the juries were at last successful, the victory being secured to them by the declaratory Act above referred to. No law ever defined what occasions or causes render it legal to blame a man publicly in writing, and under Lord Erskine's Act all that could be said was, that a libel was any writing for which a jury might think that a man ought to be sent to prison. At one time their thoughts upon this subject were apt to run into most tyrannical shapes. Mr. Reeves, for instance, the author of the only history of English law which is even now in existence, was all but convicted of libel in 1796 for having written a pamphlet in which the royal power was compared to the trunk, and the powers of Parliament and of juries to the branches of a tree: a comparison which was said to tend "to raise and excite jealousies and divisions amongst the liege subjects of our lord the king, and to alienate the affections of the liege subjects of our lord the king, from the government by king, lords, and commons now happily established."

The only point in the whole matter which was well established was, that in a criminal prosecution the truth of the libel was no defence. As regarded public establishments, it seems to have been considered that it was altogether improper for a private person to question their advantages or to criticize the manner in which they were conducted. As regarded private persons, it was said that libels tended to produce a breach of the peace, and that this tendency was rather increased than diminished by their truth, if they were true. Apart from this, which obviously was a mere excuse, it was urged that to sanction the bringing of true charges against people by means of the public press would amount to the erection of a new set of volunteer tribunals for the trial of offences of every description. If a man has committed a crime, it was said, prosecute him as the law directs. If the law docs not punish his conduct you shall not punish it by public exposure. That the law was and always must be a most imperfect instrument for the protection of society against various kinds of dangerous and improper conduct, was a view against which all lawyers revolted with the natural jealousy of those who watch. the encroachments of a rival power upon their own dominions. By maintaining this principle inflexibly (notwithstanding the rule that the jury were to judge of the existence of malice), a considerable degree of strictness was still maintained; for though the whole matter was left to the jury, the judge always directed them that they must not consider the truth of the matter alleged, and excluded all evidence tending to establish it. Thus the matter stood till the passing of Lord Campbell's Act (6 & 7 Vict. c. 96), which provided that on the trial of any indictment or information for a defamatory libel (this has been held not to apply to seditious or blasphemous libels) the defendant might plead that the matters charged in the libel were true, and that their publication was for the public benefit; and

this put the right of the press to act as a volunteer tribunal for the trial of all offences upon a legal footing-subject of course to the opinion of a jury that the matters alleged by the writer were true, and that their publication was beneficial to the public. It is upon this footing that the writer now rests, except as regards libels of a seditious or blasphemous character. With respect to them, it seems that even in the present day truth would be no justification, but the old rule would apply.

Thus much for libel regarded as a crime. There is not much difference between the crime and the civil injury, except on the point of the effect of the truth of the matter complained of in respect to the right to recover damages. There are, however, one or two other points which may be noticed before we come to this. The law of verbal slander, regarded as a civil injury, is very singular at first sight. Yet, though open to just exception in one or two points, its peculiarities are due rather to the real difficulty of the question than to any defect on the part of the legislator. It is obvious, on the one hand, that mere abuse ought not to be the subject of an action, and on the other, that serious slanders should; and to draw the line between the two definitely enough for practical purposes is no easy matter. In early times the judges fluctuated between the fear of encouraging litigation and that of encouraging slander, till they produced a set of precedents as astonishing as any to be met with in the whole range of the law. One of the curious entertainments in the nature of high jinks which took place in old times at the Northern Circuit bar mess was an Amabæan dialogue between two learned gentlemen, in language which had been held to be not actionable. Considerable parts of it were not exactly fit for republication. We will try to give a specimen of the less offensive parts.

"A. You poisoned C. I don't say he is dead.

"B. You ran away from your captain. I don't say you were pressed. "A. I charge you with felony.

"B. You were in Newgate for a highwayman.

"A. You smell of the robbery of C. You are a cheat, and stole two bonds from me.

"B. You stole my corn.

"A. You stole the iron bars out of my window.

"B. You stole Lord Derby's deer.

"A. You are forsworn.

"B. You, being a justice of the peace, are a bloodsucker, and will take a couple of capons.

"A. You, being a justice of the peace, are a rascally villain, and keep a company of thieves and traitors to do mischief.

"B. You are a beetle-headed justice, an ass, a coxcomb, &c. "A. And you are a vermin, a corrupt man, and a hypocrite."

The dialogue might be continued almost ad infinitum by any two gentlemen who chose to refer to Comyn's Digest, and great part of it would be very much more picturesque than decent.