was made in the due execution of their order: and that the mode of executing that warrant in this case, by breaking the house, after due notification and demand of admittance without effect, is justifiable, upon the ground of its being an execution for a process of contempt, to which the personal privilege of the individual in respect to his door must give way for the public good. Under these circumstances, without the least particle of doubt upon my mind, I am clearly of opinion that there must be a judgement for the defendant.

(From Lord Ellenborough's judgment, East's Reports, xiv. 132 et seq.)

XXV

THE CASE OF SIR FRANCIS BURDETT

60 George III., 1820.

[This was a trial for seditious libel. On August 22, 1819, Sir F. Burdett, M.P., addressed a letter from Leicestershire to the electors of Westminster, whom he represented in Parliament, commenting with great severity on the conduct of the authorities in dispersing a meeting held on August 19, in S. Peter's Field, Manchester, and the government prosecuted him for the expressions used in that letter. The case was tried at the Spring Assizes at Leicester before Best, J., on March 20, 1820, when the jury found Burdett guilty. Subsequently a motion was made in the King's Bench before Abbot, C.J., and Best, Holroyd, and Bayley, JJ., for a new trial, but the court, after elaborate judgments, refused to grant it, and Burdett was sentenced to a fine of £2,000 and imprisonment for three months. The excerpts are intended to illustrate the interpretation of seditious libel given by the judges, particularly with reference to "Fox' Libel Act." See for the whole trial S.T. (N.S.) i. 1-170.]

The question is not, nor ever can be (if the liberty of the press is to be supported), whether that which has been written be true or false; because then a man meaning honestly might be convicted for stating an untruth. It is not the truth or falsehood that makes a libel, but the temper with which it is published; and another ground on which the truth or falsehood cannot be inquired into is this because whether it be true or false no man ought to charge another with crime. That would make the liberty of the press inconsistent with another liberty equally dear to an Englishman-his character. No man's character is to be taken from him by attacks in newspapers or any publication whatever. If they do what is

wrong, you were properly told by the learned counsel in the outset, the courts of justice are open to bring them to punishment. It is on these grounds I refused the evidence,1 because according to the law of the land it is not admissible. Gentlemen, there is another point touched on, and that is the question of intention. Gentlemen, intention is undoubtedly a matter of importance in the inquiry; but whether a man intends to publish a libel or not is not to be collected from declarations and acts of another time, but from the paper itself, unless the defendant is in a condition to repel by evidence the inference immediately arising from the paper. The defendant has given you in his speech his notions of how that might be done. Suppose the paper libellous; yet if he had shown after he had written it he endeavoured to stop the publication, that would repel the libellous intention. Or suppose, as in the other case, the case of the Seven Bishops, where it was charged to be a malicious libel, the defendant could prove it was not published by a man intruding his opinions upon the public, but it was a petition addressed by him to his Sovereign on a subject on which he was called on to advise. This is the way intention is to be inquired into. It is to be collected from facts connected with the publication, and not by what the defendant is proved to have said at another time. . .

Gentlemen, with respect to Locke I quite agree with the observation that has been made; and if when you come by-and-by to attend to this libel, you think this paper was written with the same pure spirit and intention with which the invaluable and immortal works of that writer were written, it is no libel, because they are protected by the true liberty of the press, which is nothing more than this— it is said without the liberty of the press a free Government cannot be supported-the liberty of the press is this, that you may communicate any information that you think proper to communicate by print; that you may point out to the Government their errors, and endeavour to convince them their system of policy is wrong, and attended with disadvantage to the country, and that another system of politics would be attended with benefit. It is from such writings that the religion of this country has been purified; it is by writings of that spirit the Constitution has been brought to the perfection it now has. And, therefore, God forbid that I should utter a sentence to show that a man, speaking with that respect which he ought to speak with of established institutions, may not show some reform may be necessary, or that the military ought not to be used in the manner in which they are.

1i.e. relating to what had taken place at the Manchester meeting.

Gentlemen, here (in a passage quoted from the alleged libel) there is nothing directly charged, but there is a great deal insinuated.

""Tis true James could not inflict the torture on his soldierscould not tear the living flesh from their bones with a cat-o'-ninetails-could not flay them alive."

Insinuating, undoubtedly, that it may and can be done now. Will any man tell me that is temperate discussion? Will any man tell me that a thing more pregnant with mischief could be published? Do not suppose I think the Government rests on the army,-it rests on the affections of the people. And I believe it will be a long time before any set of persons can so far detach the people from the Government as to render it insecure. But, although the Government is secure, when insurrections take place, the soldiers are wanted to assist the magistrates. Therefore, at a moment like this, to put them in mind of circumstances likely to paralyse them in the discharge of their duty, is the most dangerous libel that could be circulated. It was published-it would find its way into the hands of the soldiers as well as into the hands of gentlemen; and to-day we are told that the same soldiers that fought for Cæsar abroad destroyed the liberties of their country. They fought abroad to establish a domination in a foreign land. The British army has been used for no such purpose. It has fought for the establishment of our nation, and on all these occasions it is known that the discipline which exists in that army has not destroyed its spirit. It is, thank God, what it was, still; and they will meet again with the same spirit when called on on a future occasion, and I hope and trust, whether men mean it or not, no man will be able to render a British soldier other than he is, one of the most respectable. The passage concludes with a profanation of the words used by Nelson immediately before the battle of Trafalgar, "Be this as it may, our duty is to meet, and England expects every man to do his duty." Gentlemen, I have no hesitation in declaring this a libel. Is it a calm appeal to the judgement of the people, or a most inflammatory paper addressed to the passions of those whose passions are most likely to be acted upon १

(From the charge of Best, J., to the jury in the first trial.)

Another point on which the motion for a new trial was made was, that I took upon myself to lay down the law to the jury as to the libel, and that since the statute 32 Geo. 3. c. 60.1 I was not warranted in so doing. I told the jury that they were to consider

1 "Fox' Libel Act" (see p. 156).

whether the paper was published with the intent charged in the information; and that if they thought it was published with that intent, I was of opinion that it was a libel. I, however, added that they were to decide whether they would adopt my opinion. In forming their opinion on the question of libel, I told the jury that they were to consider whether the paper contained a sober address to the reason of mankind, or whether it was an appeal to their passions, calculated to incite them to acts of violence and outrage. If it was of the former description, it was not a libel; if of the latter description, it was. It must not be supposed that the statute of George the Third made the question of libel a question of fact. If it had, instead of removing an anomaly it would have created one. Libel is a question of law, and the judge is the judge of the law in libel as in all other cases, the jury having the power of acting agreeably to his statement of the law or not. All that the statute does is to prevent the question from being left to the jury in the narrow way in which it was left before that time. The jury were then only to find the fact of the publication, and the truth of the innuendoes; for the judges used to tell them that the intent was an inference of law, to be drawn from the paper, with which the jury had nothing to do. The Legislature has said that that is not so, but that the whole case is to be left to the jury. But the judges are in express terms directed to lay down the law as in other cases. In all cases the jury may find a general verdict; they do so in cases of murder and treason, but there the judge tells them what is the law, though they may find against him; unless they are satisfied with his opinion. And this is plain from the words of the statute.1

My opinion of the liberty of the press is, that every man ought to be permitted to instruct his fellow subjects; that every man may fearlessly advance any new doctrines, provided he does so with proper respect to the religion and Government of the country; that he may point out errors in the measures of public men; but he must not impute criminal conduct to them. The liberty of the press cannot be carried to this extent without violating another equally sacred right, namely, the right of character. This right can only be attacked in a court of justice, where the party attacked has a fair opportunity of defending himself. Where vituperation begins, the liberty of the press ends. This maxim was acted upon by the greatest states of antiquity. In our country, the liberty of the press allows us to persuade men to use their constitutional influence over their representatives to obtain in the regular parliamentary manner a redress of real

1 "Fox' Libel Act" (see p. 156).

or supposed grievances. But this must be done with temper and moderation, otherwise instead of setting the Government in motion for the people, the people may be set in motion against the Government. . .

(From the judgment of Best, J., in the application for a new trial.)

With respect to the objection of the learned Judge's refusing to receive evidence of the truth of the facts alleged, or rather assumed in the libel, there is, I think, not the least doubt upon the point. Although the objection was made, it was not even attempted to be supported by argument at the trial. Whatever might be the result of a due inquiry into those facts elsewhere, it is clear that that was not the proper place or occasion for inquiring into them, nor would the writing be otherwise than in law a libel. It assumes as true a statement most highly calumnious on individuals, and on the Government, merely from a statement in a public newspaper, and without the knowledge, whether it were true or not, to any or to what extent, and indulges in the highest strain of invective, for the purpose of inflaming the public, and raising in their minds the greatest discontent, disaffection, and alarm. That is, in itself, a seditious libel, and the question for the jury was, whether what the defendant had written and published, with the intent stated in the information, was a libel or not, and not to what extent it was so; even supposing that the result of that inquiry would have any palliation of the libel. With respect to the objections taken to the learned Judge's having given his opinion and directions to the jury upon the question, whether the writing was a libel or not, it seems to me that he left it to them to consider, whether they would adopt his opinion in that respect or not; and he is expressly directed, by the statute of the 32d of the late King, according to his discretion, to give his opinion and directions to the jury on the matter in issue, in like manner as in other criminal cases. And with respect to the objections to his summing up, I do not, upon an attentive consideration of it, find any reason to disagree with his observations in that respect.

(From the judgment of Holroyd, J., in the application for a new trial.) I also entirely agree that the learned judge did right in intimating to the jury his opinion on the question, whether this was or was not a libel, and in telling them that they were to take the law from him, unless they were satisfied he was wrong. The old rule of law is, ad quæstionem juris respondent judices, ad quæstionem facti respondent juratores; and I take it to be the bounden duty of the judge to lay down the law as it strikes him, and that of the jury to accede to it,