the spiritual sentence which was promulgated by his court was known to and enforceable by the secular arm. Some of the oddest points about our existing law of libel may be traced to the existence of this forgotten jurisdiction. For instance, words imputing unchastity to a woman are, generally speaking, not actionable, however base and false the accusation may be. This is because by the old law such topics were matter of spiritual cognizance. There would have been a remedy for such a wrong in the spiritual court, and consequently the temporal court refused to notice it. The shadow of this jurisdiction survived till our own days. In the year 1849 or 1850, a clergyman near Cambridge thought fit to prosecute one of his parishioners in the court of the Bishop of Ely for talking scandal about him and one of his servants. The suit ended in the condemnation of the defendant, who was in a very poor position in life, to do penance in the church of the clergyman whom he had defamed. He was, that is, to make his appearance in a white sheet in front of the pulpit, and there to read a recantation of his words. The man took it as an excellent joke, and announced his intention of getting drunk and blacking his face to heighten the effect. Whether he exactly kept his word we do not know, but he did appear, surrounded by admiring and sympathizing friends, in a most disgraceful state. The consequence was that the church became the scene of a riot. The clergyman was pelted with hassocks, and had to take refuge in his parsonage from the indignation of the public. The jurisdiction of the ecclesiastical court over suits for defamation was abolished by the 18 & 19 Vict. c. 41.

The next great step in the history of proceedings against cases committed by writing or word of mouth, is to be found in the well-known history of the Star Chamber. To punish all offences which were committed by offenders too powerful to be dealt with by the common law, or which concerned the interests of the Government and the peace of the whole kingdom, was the object of that court, and of its ecclesiastical twin, the Court of High Commission. These two courts, which followed the course of the civil law, and in which, accordingly, people were put to their trial, not on the motion of private prosecutors, nor by the presentment of a grand jury, but directly by the highest officers of the Crown acting as public 'prosecutors, form a sort of parenthesis in the history of the law of libel and analogous offences. As they and their procedure were swept away by the Long Parliament, they left but small traces behind them in the law as at present administered. The nature of the supervision which they exercised over the press-the strongest illustration of which is to be found in the famous case of Prynne, Bastwick, and Burton-and the terrible severity of the punishments which they inflicted both on the purses and on the persons of those who fell under their power, are too well-known to require more than a passing allusion. The effect of their existence upon the common law turned out, singularly enough, to be in the long run rather beneficial than otherwise. Whilst the Star Chamber and the Court of High Commission were in full operation, there was no necessity for any other legal

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 does 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