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the legislature; it being obvious that much nicety will often occur in ascertaining, especially with regard to words, what was the deliberate intention of the party, and whether" they were uttered in contemplation of some traitorous purpose actually on foot or intended, and in prosecution of it," as Sir M. Foster lays it down. Relative to insurrections that may amount to a levying of war, and some of the decisions which judges have arrived at on these points, we shall quote some paragraphs from the Report. The Commissioners observe that
66 According to the doctrine laid down by the judges in the cases cited, the insurrection, to be constructively treasonable, must extend to the throwing down all inclosures, or the enhancing the price of all labour, or to open all prisons. This must either mean that the intention shall be absolutely universal, or that it shall be general in respect of number or place, or that an intention indefinite in point of extent shall be deemed to be sufficient. It will, we believe, be found upon inquiry that no one of these predicaments can consistently be established as an adequate measure and test to be applied to the crime of treason. If proof were required to be given of such an universal intention to effect the mischief, it would rarely, if ever, happen that offenders could justly be convicted of having formed so extensive a project, such offences being usually committed without premeditation, upon some sudden excitement; and were it otherwise, the bringing the offence within the scope of the law on the principle of universality, to the exclusion of all cases where the intention, though not confined to particulars, was yet not universal, would be quite inconsistent with the real nature of the offence supposed to be constituted, viz., a levying of war against the king's crown and royal dignity; for if the rising to throw down all inclosures throughout the realm was a levying of war, so also must a rising for the purpose of doing the like in a particular portion of the realm, e. g. in that part of England which lies north of Trent; it is no more possible, in any legal view of the case, to consider the larger attempt to be treason, and the more limited one a misdemeanor, than it would be to regard an actual levying of war in the one case to be treason, and in the latter to be an offence of lower quality. Whatever may be the danger or injury to the crown or royal dignity which constitutes treason in the one case, must also constitute an offence of the like nature in the other; for the crime of treason in levying war must depend, as the act of levying war itself must, not on the scale of preparation made, or force used, or extent of territory seized or laid under contribution, but on the nature and quality of the act done; the occupation of a single acre of ground, or single castle or fort, may be as unequivocal an act of levying war as if a whole county had been occupied."
The above is one of the passages to be found in the Report, which forcibly shows that untenable and dangerous constructions down to the present time have been put upon the Statute with regard to what constitutes levying war against the king. The rules which the principal decisions have established on this subject of construction
in the case of riotous assemblages for instance, the Commissioners maintain, are so indefinite that they cannot satisfactorily be applied in practice. They therefore suggest that all constructive treasons should be superseded or rendered useless by positive enactments and provisions; making use, at the same time, of this striking observation,
that the important distinction has been overlooked, which ought to be drawn between the nature and the consequences of the offence; the erroneous practice being to make the latter instead of the former the test. If the views of the authors of the Report should be adopted the law will come to provide against all enlargements or extensions of the clause which speaks of a levying of war, but which has hitherto been so interpreted as to bring within its scope many offences and acts" which no man of plain reason and understanding, whose mind has not been sharpened to some considerable degree of artificial and technical subtlety, would regard as a levying of war against the crown, and which are even recognized by the law as offences of a known and inferior degree." We shall next quote some of the Articles on this subject of levying war, to be found in the Digest proposed by the Commissioners.
"Art. 11.-The terms 'levying,'' war,' contained in Article 1, as regards the manner of it, may consist not only in the assembling of men armed and arrayed in a warlike manner, the enlisting, drilling, or marching of men, the using drums, colours, or any other of the ordinary pageantry, ensigns, or outward circumstances indicative of war; but also in any rising or assembling of people, whether armed and arrayed in a warlike manner or not, in order, by dint of numbers or superior force, to execute such treasonable purpose as is hereafter specified.
"Art. 12.-A levying of war shall be deemed to be a levying of war against the king where it is levied against the person of the king, or against any army or force appointed by him, in opposition to his authority, or with intent to do him any bodily harm, or impose any restraint upon his person, or to depose him, or to dispossess or deprive him of any portion of his dominions or regal authority, or with intent by force or constraint to compel him to change his measures or counsels, or to put any force or constraint upon, or to intimidate or overawe both houses or either house of Parliament.
"Art. 13.-Provided that no assembling or rising of people shall, by reason of any illegality or generality of purpose, be deemed to amount to a levying of war against the king, unless such assembling or rising be with one or other of the several intentions specified in the last preceding Article."
We have already slightly alluded to the law relative to open deeds or overt acts. The following are some of the Articles in the proposed Digest on this subject:
"Art. 17.-The terms open deed,' and 'overt act or deed,' as used in Article 1, and elsewhere under this head, shall be deemed to include any
act of conspiring, or conferring or consulting with, or advising, persuading, counselling, commanding, or inciting any person, or any other act, measures or means whatsoever, done, taken, used, or assented to, towards and for the purpose of effecting the traitorous intention or act charged.
"Art. 18.-An act laid to be an overt act done for the effecting any alleged treason shall not be deemed to be insufficient to support the charge, by reason that such act either constitutes or may properly be alleged to be an overt act of any other kind or branch of treason; provided it be in its nature and circumstances a sufficient overt act to support the charge of treason so charged.
"Art. 19.-Words spoken shall not be deemed to constitute an overt act of any treason, unless they be words of advice, direction, or persuasion tending to effectuate some traitorous act or design; provided that nothing in this Article contained shall be deemed applicable to any consultation for any traitorous purpose.
"Art. 20.-No writing which shall not have been published in contemplation or prosecution of some traitorous act or design shall be deemed to be an overt act of treason.
"Art. 21.-Provided that where the overt act or overt acts of compassing or imagining the death of the King shall be the assassination or killing of the King, or any direct attempt against his life, or against his person, whereby his life may be endangered, or his person may suffer bodily harm, the person or persons charged with such offence shall be indicted, arraigned, tried, and attainted, in the same manner, and according to the same course and order of trial in every respect, and upon the like evidence, as if such person or persons stood charged with murder, but upon conviction shall incur the penalties of the class."
It is not easy, when coming to the subject of libel, to convey to the general reader, by any mode of procedure short of copying the whole of the Report relative to it, an idea of the law as it exists, or as the Commissioners would make it. They themselves have felt that, while the law of libel is one of the most important parts of penal legislation, it is one of the most difficult to deal with, in consequence of the conflicting interests which must be adjusted before its legitimate objects can be attained. They say, "To reconcile freedom of writing with the right of all men of unblemished character to keep inviolate the esteem and consideration of their fellow-men,-to secure the character of citizens from malicious calumny, and at the same time to respect the right of every man to express the truth when he does so without hatred or malice -to induce individuals to refer the cognizance and reparation of injuries and insults committed against them to the law, instead of making themselves the avengers of attacks upon their characters,the attainment of all these ends is the proper object of the penal law respecting libel; and the discovery of the best means of attaining them constitutes a problem which has been found to be extremely
difficult of solution in all civilized countries where attempts have been made to legislate upon the subject."
The Commissioners then profess to proceed with great diffidence in the prosecution of the duty confided to them, to state the principles on which this branch of the criminal law depends; to refer to such rules of the law of England as are necessary with a view to the suggestions afterwards made; and, lastly, to make some suggestions concerning the rules of the present law, which appears to them to be susceptible of improvement. They accordingly discuss libel in all its branches, personal and political. We shall now quote two distinct passages; the former containing certain conclusions, the latter a string of recommendations. They say,
"In reference to one principal object in restraining defamatory communications, viz., the preservation of the public peace, the rule may with perfect consistency and correctness be adopted, that the truth or falsity of the statement shall be deemed to be indifferent, punishment being inflicted in respect of the mischief and danger to the public peace, and that only. But that if the law interferes, as we think it ought, on a distinct ground, viz., for protecting private reputation from defamatory injuries, then it would be inconsistent with the principle thus adopted to regard the truth or falsity of the statement as indifferent: for upon that question must the right to expect protection from the criminal law, as well as the right to a remedy in damages, essentially depend. For these reasons we also conclude that the offence, as regards the public, ought to be regarded as distinct from that which concerns the injury to private reputation; and the treating them in this manner would, we think, tend to remove difficulties and anomalies with which the English law of libel is at present encumbered."
Now for specimens of their recommendations, our extracts and few observations being intended as evidences of the great pains which the Commissioners have bestowed on this perplexing branch of penal law; and also to show that there are hopes held out by such recommendations that a subject upon which popular opinion has been much opposed to the existing law, is likely ere long to be subjected to a process of legislative adjustment and reform.
"We recommend that in respect of personal libels, two distinct classes of offences should be constituted. That one of these should be founded on the general principle of protection to private reputation against such defamatory imputations as are false as well as malicious. That the second should be founded on the principle already established, of protection to the public peace by preventing the publication of libels on private persons tending to the disturbance of the peace.
"That in respect of the former class, the truth of the matter published, when it either directly or by implication contained a charge of misconduct, should be a bar to the prosecution. That in cases within the latter class,
the truth of the matter published should in no case be available by way of defence to the publisher of the libel.
"But that in either case, and generally, evidence of the truth or falsity of the matter published should be admissible where the occasion of the publication was a privileged case, such as legally to raise the question as to the actual intention of the defendant, whether he acted bona fide in reference to the particular occasion, or with an actually malicious intention independently of the occasion.
"That none but a party defamed, or some other person with his consent, should be allowed to prosecute for the publication of a libel alleged to be false.
"The grounds for these suggestions have already been adverted to. As regards the first, it has already been observed that the present avowed foundation of the criminal law in the case of personal libels is too narrow, as being confined in its object, practically, if not solely, to the protection of the public peace; we think that it ought to be extended to the protection of reputation as a valuable private possession against a malicious injury, the remedy afforded by a civil action to recover damages being wholly inadequate to afford the protection which is necessary.
"The natural consequence of such an extension of the law is the commensurate admission of the truth of the alleged libel by way of justification; the extension is founded on the notion of injury to private character, and no such injury exists, at least none such as requires restraint by the criminal law with a view to protect character, where the imputation is true, although it may still be necessary that such libels should be restrained, sub modo, for a different purpose, viz., the protection of the public peace. The truth of the matter published ought therefore to be a bar where the publication within the first of the above classes is alleged to be false as well as malicious. A different rule in respect of libels held to be criminal on the principle of protection to reputation, would be inconsistent with the law which provides a civil remedy for such an injury; that law denies the remedy where the imputation is true, either because no injury is sustained, or because it would be contrary to sound policy to award a remedy in such instances, according to the celebrated response, Peccata nocentium nota esse et oportere et expedire. These principles, whether they ought to prevail separately or conjunctively, apply equally to protection through the medium of penal restraint.
"We see no objection in such cases, and so far as concerns personal libels, to allow the truth to be a bar, as in the case of a civil action.
"Where the contents of the libel are not alleged to be false, but it is written with intent to provoke another to commit a breach of the peace, or where its terms are such as naturally and immediately tend to a breach of the public peace, it seems to us that the truth of the contents of the libel ought not to constitute a bar to the indictment. This stands on the principle recognized by the present law, it is essential to public peace and tranquillity to prevent their disturbance by the unnecessary publication even of that which is true; truth itself ought not to be made use of as a colour and pretence for wreaking private malice and producing public discord.
VOL. III. (1841.) No. I.