question; libel intended to vilify the house of commons, he was able to win from Lord Kenyon, who tried the case, something like a Lord Kenyon's concession. He contended that in applying the innuendoes concession the jury, in order to ascertain whether or no the publication in on a minor question was really intended as an aspersion upon the house of commons, should look not only to the isolated passages selected and put together in the information by the attorneygeneral, but to the entire context of the publication for its true meaning. After obtaining an instruction sustaining that contention, a verdict of not guilty was rendered, based no doubt upon the idea that the innuendo, as to the house of commons, was not made out. But upon the main question, Erskine was never able to win from the judges any concession the main whatever. The law of libel, as they had found it, was judge- question. made law, and that was for them an unanswerable reason why it should never be altered. no conces sion upon made in the commons Fortunately, however, for the cause of public liberty, the Rights of juries in English people took a different view of the matter, and their libel cases outcry against the judges became so loud as to be heard even discussed in parliament; in the halls of parliament itself. The moment that Lord Mansfield, in the trials of Woodfall and Almond, emphasized the fact that trial by jury, the only security for the freedom of the press, really had no place in the law of the land, his doctrines were sharply questioned in both houses. In December, motion 1770, a motion was made in the commons for an inquiry into the administration of criminal justice and into the constitu- in 1770; tional powers of juries, specially in cases touching the liberty of the press; 2 and in reply to an assault made upon him in the upper house by Lords Chatham and Camden, Lord Mans- Mansfield field considered it necessary to leave a copy of his judgment the lords; in Woodfall's case for the consideration of that body. And in the next year Mr. Dowdeswell, anticipating Mr. Fox by twenty defeat of years, moved for a bill to settle all questions of doubt as to well's bill; 1 Lord Kenyon said to the jury: "In forming your opinion you are not bound to confine your inquiry to those detached passages which the attorneygeneral has selected as offensive matter, and the subject of prosecution." 2 Parl. Hist., vol. xvi. p. 1211; Cavendish Deb., vol. ii. p. 80; Campbell, Chief Justices, pp. 480-490. 8 Lord Camden then submitted a series of questions, based upon the judgment deposited with the clerk of the house of lords, which Lord Mansfield refused to answer; "he said he would not answer interrogations." See Sir J. F. Stephen, Hist. of the Crim. Law, vol. ii. p. 325; Parl. Hist., vol. xvi. p. 1321. attacked in Dowdes libel act of 1791; 4 the rights of juries in libel cases.1 Although that motion was supported by Sir G. Savile and Mr. Burke, and encouraged by Lord Rockingham, it was defeated, and the old law of libel continued to be administered with all its severity down to the trial of Stockdale in 1789.3 Then it was that Mr. Fox, aroused from his original indifference by the eloquence of Erskine, undertook to induce parliament to abolish the doctrines as announced by Mansfield, and to establish in their stead the more liberal principles for which the peerless advoMr. Fox's cate had so long and so brilliantly contended. With that end in view he introduced in May, 1791, his famous act, "to remove doubts respecting the functions of juries in cases of libel," in which it was "declared and enacted . . . that on every such trial the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment and information; and shall not be required or directed by the court or judge before whom such indictment or information shall be tried to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information." When the bill reached the upper house, Lord Thurlow succeeded in delaying it until the end of the session; and when it was again sent up from the commons he again insisted that it should await the answers of the judges to seven questions submitted to them as to the existing questions; state of the law. Their unanimous responses, reiterating and even expanding the dangerous principles against which Erskine had contended, emphasized the necessity for the act, which was rapidly passed, despite the protest of Thurlow and five other lords that it would bring about "the confusion and destruction of the law of England." 8 The growth of freedom of discussion thus fixed upon a secure legal basis was soon checked, however, by the reactionary spirit excited in England Thurlow delayed it in the lords until the judges could answer seven passed despite their adverse responses; 1 Rockingham, Memoirs, vol. ii. p. 198, seq. 2 Parl. Hist., vol. xvii. p. 43; Burke's 8 State Trials, vol. xxii. p. 237. 5 Parl. Hist., vol. xxix. pp. 726-742. Ibid., p. 1293; State Trials, vol. xxii. pp. 296–304. 7 For their substance, see Sir J. F. Stephen, Hist. of the Crim. Law, vol. ii. pp. 343, 344. 8 Parl. Hist., vol. xix. pp. 1404, 15341538; Campbell, Lives of the Chancellors, vol. v. p. 346. the truth could free of the acts by the excesses of the French Revolution, which prompted the government during a long period of time to subject the press to a series of political prosecutions that did not entirely cease until the passing of the Reform Bill in 1832.1 Not, however, until 1843 was the legislative work, begun by Mr. Fox, completed by the passage of Lord Campbell's Libel Act 2 of that Lord Campbell's year, which abolished (1) the old rule that the truth was no Libel Act defence to a criminal prosecution for libel, by providing that of 1843 providing defendants in such cases could plead the truth of the matters that charged, and that "it was for the public benefit that the said could be matters charged should be published;" (2) the hard rule laid pleaded; down in Almond's case, as to the criminal liability of pub- publishers lishers for the acts of their servants, by allowing them to themselves prove that the publication in question was made without their of their knowledge, consent, or authority, and without the lack of due servants; care or caution upon their part. The English law of libel, as thus finally settled, has been summed up by two competent authorities as follows: "Our present law permits any one to the law of say, write, and publish what he pleases; but if he make a bad use of this liberty, he must be punished. If he unjustly attack an individual, the person defamed may sue for damages; if, on the other hand, the words be written or printed, or if treason or immorality be thereby inculcated, the offender can be tried for the misdemeanor either by information or indictment." 8 "Freedom of discussion is, then, in England little else than "the right the right to write or say anything which a jury, consisting of to write or twelve shopkeepers, think it expedient should be said or writ- thing which ten." From a constitutional point of view the all-important consisting fact to be borne in mind is that the right to consider and pass shopupon the character of any writing charged to be a criminal libel belongs neither to the crown nor to the legislature. The expedient right to pass upon such questions pertains exclusively to the said or courts of law; and there the right of judgment is vested not in the judges, but in juries alone. 1 Not until then was fully recognized the truth of Lord Bacon's maxim, that "the punishing of wits enhances their authority; and a forbidden writing is thought to be a certain spark of truth, that flies up in the faces of them that seek to tread it out." 2 6 & 7 Vict. c. 96; Hans. Deb., 3d ser. vol. lvi. p. 395, et seq. As to the legal difficulties that grew out of the 8 Odgers, Libel and Slander, Introd. 4 Dicey, The Law of the Const., p. 234, citing Rex v. Cutbill, State Trials, vol. xxxii. pp. 642, 675. libel as it now exists; say any a jury, of twelve keepers, think it should be written." the press as Freedom of The only restraints upon the freedom of the press that have restrained not so far been noticed are those that arose out of the imposi by taxation; tion of stamp, advertisement, and paper duties, the first two of stamp duty, which originated in the reign of Anne, rather as a means of imposed in the reign restraining the circulation of the press than as a fiscal expeof Anne, dient. The stamp duty thus imposed was finally raised to four pence, and by one of the Six Acts 2 it was extended to tracts and other unstamped periodicals filled with political news and discussions that had freely circulated among the poor upon the ground that they were not newspapers. Cheap publications were thus forced into an attempt to evade the law, and the contraband traffic then carried on by unstamped newspapers continued in full force until the stamp was reduced in 1836 to one penny, and then abolished altogether in 1855. Two years before, the advertisement duty, that had been reduced in 1833, was swept away as one of the results of a movement directed by Mr. Gibson, whose watchword was the repeal of all "taxes on knowledge." As a fitting consummation of that movement the duty on paper, for a long time a stumbling-block in the path of popular education, fell after a memorable parliamentary contest recorded in the debates of 1861.3 first reduced and then abolished in 1855; advertise ment and paper duties also removed. Right of public meeting; not the creation of positive law; 3. Wilkes, who by his publication of the famous No. 45 of "The North Briton" began the contest that ended at last in the freedom of the press, organized and developed during his electoral struggle with the house of commons a still more imperious influence, through which parliament and the crown could be forced to bow to the mandates of public opinion. The right of Englishmen to assemble in public meetings is not the creation of positive law; it is the result of the immemorial natural right of each individual to meet with his fellows in the open air for a lawful purpose. It is one of the forms 1 10 Anne, c. 19, §§ 101, 118; Parl. Hist., vol. vi. p. 1141. As such legis lation limited the circulation of cheap papers, it was extended in the two following reigns. II Geo. I. c. 8; 30 Geo. II. c. 19. the newspaper stamp duty to cheap political literature. 8 For all details, see May, Const. Hist., vol. ii. pp. 108, 245, 327, 380383. 4 "The right of assembling is nothing 2 60 Geo. III. and I Geo. IV. cc. I, more than a result of the view taken 2, 4, 6, 8, 9, a group of repressive by the courts as to individual liberty measures passed by the government in of person and individual liberty of 1819, on account of the disturbed state The Law of the of the country. The sixth extended Const., p. 258. law made it unlawful Edward VI. assemblies; opponents 1733; in which may be exercised the right of freedom of discussion without previous license, but subject to the consequences of law. The common law, while recognizing the right of any common number of persons to hold a lawful assembly, made it a crime a crime to to hold an unlawful one;1 and the penalty was extended to those who, lawfully assembled, so conducted themselves there- assembly; after with a common purpose as to render their meeting unlawful. By an act passed in the reign of Edward VI. against act of unlawful assemblies, it was declared to be treason for twelve against or more persons to meet together on any matter of state, and such felony if the purpose of the meeting was to destroy inclosures. Despite, however, such limitations imposed by the common. and statute law upon political "agitation," the government of Sir Robert Walpole, when, in 1733, it proposed an obnoxious meetings of Excise Bill, was forced by popular demonstrations and riots to of Excise abandon it. More violent and more extensive still was the Bill in demonstration made by the Spitalfields silk-weavers, who in of Spital1765 ventured to parade in front of St. James Palace, to sur- weavers in round the houses at Westminster, and to question the peers as they came forth as to the votes by which a bill for the protection of their trade had been rejected by the upper house. Although this riotous attempt to overawe the deliberations of parliament had to be dispersed by the military, it was nevertheless successful, inasmuch as a bill was passed in the following year conceding what the rioters had demanded. But it is from the persistent and organized agitation of the Middlesex agitation of electors in 1769 that can be dated distinctly the beginnings electors in of such public meetings as have since been recognized as a 1769; legitimate means of constitutional influence in the institutions. of the country. The attempt then made by the lower house to take away by means of its disqualifying resolution the right of the populous county of Middlesex, itself a great organ of public opinion, to choose representatives struck at the very root of the representative system; and the result was such an 1 For the earliest definition of an unlawful assembly, see Year-Book, 21 Hen. VII. 29. 2 Sir J. F. Stephen, Hist. of the Crim. Law, vol. ii. p. 386. 8 3 & Edw. VI. c. IO. See above, p. 125. 4 See above, p. 460. 5 Grenville Papers, vol. iii. pp. 168- A bill restraining the importation fields silk Middlesex |