or not. jury as to amount to a public outrage-it necessarily follows, that, in the view of the criminal code, the truth or falsehood of what is published is immaterial to the question whether the writing is a libel Truth may be, and often is, the most effective instrument of malice and animosity; and, as far as the disturbance to society and the inroad on public tranquillity are concerned, it is, at least, as likely as any falsehood to produce noxious consequences. On the other hand, the civil action being a mere mode of compensation to the private party for the damage done to his fame-which the law protects as a part of his property-if the statement is proved to be true, the party's claim to compensation fails; hence it follows that a party suffering from a private libel, and anxious at once to punish the offender, and to clear himself from the aspersion, can only attain these ends by applying to the court of King's Bench for a criminal information, in doing which he must stand rectus in curia, and purge himself, on oath, of all the offences imputed to him; or by instituting a civil action against the publisher, in which case he defies the accuser to substantiate the calumny by legal proof. Accordingly one or other of these proceedings is commonly adopted in cases of libel on individual character-the proceeding by indictment being comparatively rare in such cases, from its total inefficiency either in clearing up the reputation of the individual, or in indemnifying him against the expense of proceeding. We come now to a point on which we desire to make some observations. That the remedy by a reparation in damages should be confined to cases of aspersions on an innocent party is so obviously consonant to common sense and justice, that the stoutest enemy to the licentiousness of the press never was found to assert that it ought to be extended further. No rational man could contend that a knave should pocket money for the injury sustained by the exposure of his knavery. But the other proposition of our law, that libel is a public outrage and crime, whether its statements be true or false-or, to state it technically, that the truth of the libel is no bar, and not even evidence, in defence of an indictment or information, has often been attacked, and made the subject of plausible-we think, unsubstantial-objections. These objections have been principally urged by two classes of reasoners. By the first it is contended that our law is wrong, not in saying that truth may be libel as well as falsehood, and, consequently, that the veritas convicii shall never be conclusive evidence in favour of the defendant; but in saying that truth is immaterial to the question, and consequently not receivable in evidence at all. The other class of objectors go further; they boldly affirm that all truth ought to be legally published in all, or in nearly all, cases-that the person putting forth a statement, whether respecting the government or individuals, ought, ought, if the statement be true, no more to incur liability to a public prosecution than he does at present to a civil action for damages. We have no desire to impute views or motives to either class of objectors, beyond the object of rendering the law, according to their respective notions, more effective and beneficial. But whatever may be their views, we apprehend that the effect of the different alterations, which the two parties, or sects in question, wish to see adopted in our law, would be nearly, if not quite, identical; in short, that though the objectors of the former kind hold a more moderate language than the others, and profess by no means to contend for the free publication of all truth, yet, if even their milder innovation were adopted, the result would be, that all truth in effect would be published, and we should see an end to all practical responsibility of the press, except for the publishing of falsehood. Whether the truth be given in evidence as a conclusive bar, or only as one among many circumstances,—if the libeller is to possess in every case the power of coming into court and reiterating his libel by production of solemn proofs of his imputations, we apprehend there can be no sort of doubt that indictments for libels of all sorts will be most materially checked, and that proceedings for libels of truth would soon entirely cease. Prosecutors would naturally be deterred from a proceeding fraught with so much inconvenience and annoyance; and particularly when it is considered that a criminal prosecution, while it really benefits the public, does no service whatever, personally, to the individual : it neither compensates him in damages, nor clears his aspersed character, nor would it have this effect completely, even if the truth or falsehood were admitted in evidence on the trial-unless, indeed, it were admitted as conclusive. To expect, therefore, that prosecutors would be induced from mere patriotic motives, and without personal advantage, to come forward in courts of justice to front a battery charged with legal evidence of the frailties or crimes, by the mere statement of which they are goaded into prosecution, and that they would do this merely for the precarious chance of making out a case of malice against the defendant, so as to convict him, notwithstanding the truth of his libel, seems to us to be nothing less than to suppose men at once sensitive and shameless,-shrinking from exposure, and yet volunteering to face its confirmation by legal testimony. Any admission, therefore, of truth as evidence at all would, we think, have all, or very nearly all, the effect of admitting it as conclusive evidence; it would drive prosecutors from the courts,render the proceeding by indictment a dead letter, as to libels of truth, VOL. XXXV. NO. LXX. 2 P truth,—in a word, proclaim a virtual impunity for the publication of everything not false, however useless, however defamatory. But, in sound reasoning, is this evidence material to the question in issue, in a prosecution for libel? Those who contend for its reception assert, that though truth may not be conclusive against the malice of the statement-and though it clearly proves nothing as to its inoffensiveness-still, it is a circumstance which, as far as it goes, ought to be allowed to weigh with the jury, and assist them in deciding on the malice or innocence of the publication;-that it stands in the same relation to the question of libel, or not libel, which other evidence indisputably admissible bears, such as evidence of the manner of publication-as, whether in answer to inquiries bona fide as to character, in petitions to parliament, or reports of judicial proceedings, &c. &c., and the other instances which have been before mentioned; and that to exclude evidence of truth really shuts out that which tends to throw light on the question before the court. Now, if the evidence of truth or falsehood really did stand in the same bearing to the issue as these other species of admitted evidence,—if it did materially affect the question of libel or not libel, -we allow the law would be not only inconsistent with itself, but highly irrational, in excluding it. But in what way does the truth or falsehood really affect the question, rightly understood and accurately stated? That it may, in a vague, lax, and popular sense, be connected with the question, we do not deny. It may be a fact that would be inquired about, on such a discussion arising in society. But the point is,-does it tend to its legal determination and solution one way or the other? The only questions which arise on a criminal prosecution for libel are-first, whether the writing is of so offensive and defamatory a character as to have a tendency to provoke dissensions, and lead to breaches of the public tranquillity; and secondly, whether the intent of the publisher was wanton and malicious.—(The latter, strictly speaking, is a question before the court, though we are aware that, in general, the malice or innocence of motive is a mere inference from the character of the writing itself, since every one is presumed to intend the natural consequences of his own acts.)-Now, the former of these questions is obviously independent of the truth or falsehood of the writing, since a true writing is at least as likely to lead to the apprehended consequences as a false one. He who is covered with true imputations is clearly not less likely to take a turbulent revenge than one of whom lies are printed. The latter, the question of malice, is as manifestly unaffected by the fact of truth or falsehood,—since not only the truest statement may be sent forth from from a malicious motive, but a false statement may be published cases, But it is said, why not receive evidence of the truth as one of the attendant circumstantial facts, while, in other cases, (such as cases of pedigree, boundary, &c.) the slightest and most trivial circumstances, though they in themselves prove almost nothing, are admitted to add to an aggregate of probabilities, which in the sum may not a bit the less turn the scale? The answer is-in all these the evidence admitted bears directly, however slightly, on the point in discussion. They are, therefore, evidence, to be left to their due weight with the jury. The slightest ancient acts of ownership by a claimant's ancestor tend to raise a slight inference in favour of the claimant's case: they are at least more consistent with his right than with the But the truth contrary, in the absence of opposite circumstances. stands neuter in questions of libel; it is equally reconcileable with the hypothesis of malice or of innocence in the motive of the publication, and of injury or of harmlessness in its tendency. The reading of another paragraph of opposite and innocent effect in the same publication, is obviously very material to the question :—whether the author of the paragraph accused were or were not actuated by malice when he penned it? It tends to show the animus of the writer pervading the composition, which proof of its truth or falsehood does not. So also, proving that the libel is a fair and accurate account of what took place in a court of justice strictly tends to negative any malicious motive, and shows the honest and legal intention of reporting, for the benefit of the public, what the law allows, within certain limits, to be reported. And the cases of servants' characters, conscientious cautions, and information respecting individuals, all stand on the same footing. There is, in fact, no instance, in the law of evidence, of the admission of slight circumstances, which do not (when unencountered by other 2 P 2 proofs proofs or presumptions) become conclusive circumstances on the side on which they are produced. Not so with the evidence of truth of a libel. Let it be admitted for the defendant, and let not a single counter-testimony be opposed to it-the balance still remains in equilibrio. The point of guilt or innocence of malicious motive is still to be made out-the evidence offered being quite as consistent with wicked as with honest intention. If, indeed, the evidence, supposing it to point one way, either to the truth or to the falsehood of the story, would be decisive of the issue, though, pointing the other way, it might leave it doubtful, the law certainly ought not to reject it. But it is clear that, pointing either way, it is equally inconclusive. If the evidence proves the truth, it is clearly not conclusive of the innocent motive. But suppose it shows that the statement is false, is the question of malice in the publication concluded, or even touched? Assuredly not. It is easy to imagine many cases in which a false statement may be put forth from an honest or excusable motive, such as the instances, before mentioned, of the advertisement to ascertain if the husband had been guilty of marrying two wives; or of the stranger conscientiously writing to the Bishop of Durham, informing him of supposed malpractices of his steward. If, therefore, the prosecutor advances not one step in reason and sense towards making out a case of malice, by proving the statement false, while the defendant does exactly nothing towards establishing an honest motive, by proving its truth,-if this be the state of the case, for what purpose should the truth or falsehood be discussed at all, unless it be to give to the libeller the opportunity of revenge, at least, if not of escape, by repeating the offensive charges in the face of a court, with additional details, greater solemnity, and the certainty of tenfold publicity in the shape of a report of the proceedings? These would be the infallible effects of a departure from the wholesome strictness of the law in excluding evidence which really does not bear upon the questions involved in a prosecution. We are aware that this reasoning is technical, and that it may be objected, if the real question in a libel prosecution be such, that the truth or falsehood is indifferent to it, the law ought to be altered so as to admit their bearing upon it, since, it may be argued, they do and ought to bear upon it in common sense. But we have hitherto only been discussing a question of evidence-we have merely been replying to those who agree with us, that the law is right in saying that truth may be a prosecutable libel as well as falsehood, and yet strangely insist that truth or falsehood ought to be given in evidence on the trial. This, we confess, appears to us the height of inconsistency-and to proceed from an erroneous view of the relation in which the evi dence |