THE TYRANNY AND THE PRESS.

Dominion, Volume 4, Issue 1236, 19 September 1911, Page 6

THE TYRANNY AND THE PRESS.

4 WARD GOVERNMENT INDICTED. AS AN ENEMY OF TOPULAR LIBERTY. [By Jurv.man.] 11. Libel Act, Clause 11, further considered—Reversal of order of proofPosition of Stipendiary MagistratesMatter of opinion should bo decided by jury alone—What Erskinc said— The public insulted—Blackstono on Trial by Jury—Another suppression law—Monstrous attack on free speech and right of public meeting—The fear of public opinion. It is on the goodness of criminal laws that the liborty of the subject principally depends.—ilontesgivcn. The price of one hour's English liberty none but an English jury could estimate.—Lord Camden. The liberty of the prc3S—it is as tho air we breathe—if wo have it not. we (lie.—Old Whig political toast. In tho preceding article, I pointed out that Clause 11 of the Law of Libel Amendment Act, 1910—a clause inserted at the instance of tho Attorney-General for the special and avowed purpose of meeting the case of Sir Joseph Ward and similar cases —was, for. two reasons, highly objectionable. (1) It takes away the right of trial by ■jury. / (2) It inverts tho proper order of the defence. ' I havo dealt with the first- of these points. Now for the second. , Let us have another good look at the clause: 11. (1) The indictable oll'ence of publishing a defamatory libel or of trim- • inai defamation within tho meaning 1 of tho Crimes Act, 1908, 6hall also be an oll'onco punishable ,on summary conviction 'beiofo.' a magistrate by a i fiiio of £100 or by imprisonment for s throo months. ; • , _ (2) In any' such summary proceedings, it shall be a good deicnce that : the defamatory matter, published by '■ tho defendant, was true, .'and that tho • publication thereof was.for tho public benefit; but no evidence, of the truth of such matter shall be admitted until and unless the deiendant proves that assuming tho matter so'; published to , bo. true, the publication . thereof was 'for the public , baneiit. (3) An information for any offence punishable on summary conviction under this section shall be taken and ; heard before a magistrate only; and '.' no such prosecution shall be commenced without tho order' of a magistrate; and notice of the intention to apply for such an order shall be given ' to the defendant, who shall have an ' opportunity of being heard. Tim point lo be noticed just now is that this .clause makes it impossible for a deiendant .to attempt to prove the truth of an alleged libel until and unless he has proved that, assuming it to.be true, it is lor the public benefit. It is easily seen that this is very closely akin to the doctrine of Lord Mansfield and other eighteenth century judges that 'falsehood was not essential to the guilt of a libel, and that its truth could not bo pleaded, or given in.evidence, or even urged in mitigation of punishment. Punishment for Opinions. This doctrine was strongly , condemned b,y Mr. Burke, and thoso who vote with him in tho eighteenth century struggle for liberty of tho press; and it has smco been wholly abandoned. It was doubtless found that juries could not bo prevented from considering the question of truth—which, indeed, to ordinary peoplo must seem the most important question of all. Certainly, of the two branches of defence sot out in Sub-Scction 2, this is in many cases the only one which is capablo of proof. 'Public benefit" is often a matter of opinion. Suppose the defendant has published defamatory' statements concerning a Minister of the Crown. Suppose thoso allegations are so grave that if the electors believed them and realised their import they would turn him and his party out of office. Who will say that

"public benefit" in such a case would not be a matter of opinion? Yet if tho defendant cannot. indueo tho magistrate to adopt- his view of national welfare, he must bo fined or go to gaol. Thus a man might bo punished, not for publishing libel (for tho question of libel is not really determined if the truth is not investigated). but simply for not holding the same political opinions as tho magistrate. And So long as the magistrates know that tho Executive has the power to reward theni or dismiss them, it is needless to say in what directions, if any, they will bo biased. Words of a Great Lawyer. Now it is sometimes necessary that the decisions of a Court of Justice, especially in libel actions, shall be founded in port upon opinions as to tho public interest. Accordingly, there is iu the judicial system .which we owo to the wisdom and experience of our ancestors one tribunal —and only one—which is competent to decide upon such opinions. That tribunal is tho public itself, as represented by a common jury—t.he very authority which, as wo have alrendy seen, the prosecutor under Clause 11 is enabled to evade. Thus that branch of the defence which is mado the first, and would probably be tho only one, for the magistrate is a question which he < w totally unfitted to determine; and this limitation of tho magistrate's jurisdiction is part and parcel of the English Constitution.

i Said Erskine, in his great speech on tho rights of juries (Dean 'of St. Asaph's motion for retrial, 1784):

However safe we might be or might think ourselves, ; the Constitution never intended to invest Judges with a discretion which cannot be tried and measured by . the plain and palpablo 'standard of law. . . .

Tho jury can do what (as I observed before) your Lordships cannot do. . . . If they know that tho subject of. tjio paper is tho topic that agitates tho country around them—if they see danger in that agitation, and have reason to think that tho pub-' lisher must have intended it, they say ho is guilty. If. on tho other hand, they consider the paper to bo legal and enlightened in- principle, Molv to promote a' spirit; 'of activity and liberty in times whon (he activity of such a spirit is essential to the public safety, and liavo reason to believe it Jo be written and published in that spirit, they say, as they ought to do, that tho writer or the publisher is not guilty. Whereas your lordship's judgment upon the language of tho recorcl must ever ba in the ]>uro abstract; ' operating blindly and indiscriminately upon all times, circumstances, and intentions; making no distinctions between the glorious attempts of a Sidney or a. liu;tell, struggling against tiie terrors of despotism under the Stuarts, and those desperate adventurers of (ho year of forty-five, who libelled the person and excited sedition against tho mild and gracious government of our late' excellent Sovereign King Goorgo 11.

Erskine also 'said, 03 truly as picturesquely, that the Judge must look upon the alleged libellous document as ha would on a manuscript dug out on the ruins of IlcrcuJancum. The speech from which theso extracts aro taken was circulated as a pamphlet, and was one of the strongest influences in establishing, by Act of Parliament, th'j constitutional, though lone-donied, right ot' the jury to decide tiro whole question of criminal libel. Looking back in his old age, after ho had been Lord Chancellor, ami retired on pension, Erskiue said that his speeches on this question expressed tho lav/ as ho still understood it. An Insult to the Public. It follows from the above incontrovertible position, that in taking the question of "public benefit" from the jury, giving it to the magistrate, and making it the first and probably tho only question for him to consider, Parliament (under Ministerial domination) has not only done a gross injustice to future defendants, hut has offered a direct insult to tho public. Jurymen arc the doputies and agents of every man, women, and child in tho community. To shut thorn out of their pro.

per jurisdiction is to destroy one of the most valuable of popular rights.

If the tendency of this measure is not yet sufficiently clear, a quotation from Blackstono may make it so. That grant legal ami constitutional classic, after speaking of the propriety of trial by jury in civil actions, proceeds:—

But it holds much stronger in eriin-- , inal eases, since, in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by (tie Crown, in .suits between the King arid the subject, than in disputes Ik>twecn one individual and another, to settle the boundaries of private , property. Our law ha?, therefore, wisely placed this strong and twofold barrier of a presentment and trial by jury between the liberties of the. people and the prerogative pi tho ! Crown. Without this barrier, justices of oyer and terminer named by the Crown might, as in France or in Turkey, imprison, dispatch, or exile any man that was obnoxious to government, by an instant declaration ! that such was their will and pleasure. ■ So that the liberties of England cannot but subsist so long as this palla- , (lium remains sacred and inviolate, not only from all open attacks, which none will be m hardy as to nuike, but ■ also from all Ferret machinations which may fan and undermine it. . (Blackstone's Commentaries, Vol. IV.) : The Ward Government, as we have, seen, has had the hardihood to make just such an open attack as Blackstone thought impossible. The great jurist, with all liis sagacity, could not foresee that such a tyranny as now rules New Zealand could ever arise in a British community. Another Suppression Act. • Before passing on to speak of another objectionable clause of the' Law of Libel Amendment Act, 1910, I want to draw attention to an enactment of six years ago which has a strong resemblance to tho clause we have just been discussing. : On October 19, 1905, . the Hon. J. M'Gowan, Minister for Justice in tho Seddon Government, moved tho second reading* of the Criminal Code Amendment Bill, No.. 2. This measure was short, simple—and abominable. Its operatible clause was as follows:— All the provisions of the Criminal Code Amendment Act, 1901 (relating to defamatory libel) shall hereafter extend and apply to words spoken. Mr. M'Gowan explained quite correctly (Hansard, Vol. 135, p. BGT) that under the English law and our law as it then stood, spoken slander could not be made the subject of a criminal prosecution. The injured person had only a civil remedy, the accused, if oonvicted, could only.be fined. The Bill would make slander a criminal olfence, so that anyone found guilty of speaking words which, if printed and published would be a libel, could be sent to gaol. The reason given for this remarkable departure from established principle was that a "man of straw" might slander a public man, and, being unaule to pay a fine, would be immune from all punishment, although lie might be in the pay of some wealthy person whoso identity was concealed. Mr. Taylor and Sir Joseph Ward. The Bill was a. great surprise to members, but its true inwardness was soon apparent: Mr. Taylor (Christchurch City): This is an extraordinary Bill to bring down. Why did not the Minister give it its proper title, and' call it "The Meikle and Braund Suppression Bill"? . An Hon. Member: And Taylor.. Mr.,Taylor: Yes, "and Taylor"; and Massey, and any other man in tho colony who dares to say a word about • the Administration. Mr. Taylor's explanation of the Bill was connrmfcd by no less an authority than Sir Joseph Ward. Referring to a meeting addressed by Mr. Braund, ho said- that lie had already told certain people that, if ho could, under the criminal law, get at him, he would do so, as sure as his name was Joseph Ward; and he went' on to say (in the House) that but for tho position of the law at that time, he would already havo dono so. Here, then, was. a case liko that of Section 11 of tho. Libel Act of Inst year. Tho Black punishment clause had its precedent in the Braund Suppression Bill. The Bill as Passed. The Bill was fought in tho House for 30 hours, and was finally remodelled and passed in the following form:—

Every person who, without legal justification or excuse, speaks any words which are likely to injure the reputation of any other person by exposing such last-mentioned persons to hatred, ridicule, or contempt, or to injure him in his profession or trade, is guilty of "criminal defamation," w ; hich is hereby declared to bo an offence. Provided that the speaking of such words shall not' constitute or be deemed to constitute an offence, unless spoken within the hearing of not less than 20 persons at a_ meeting to which tho public are invited to attend or have access.

This was called a "compromise," and in. so far as it confines tho new crime to public meetings and deprives the eavesdroppers and spies of tho tempting opportunities that would otherwise have been so' fully .open to them, it is less objectionable than tho original proposition. The Bill, as Mr. M'Gowan introduced it, would have made every- afternoon tea party a dangerous occupation. In another respect the change was for the worse, for it wiped out tho distinction between crime and civil injury. To Convict the Innoccnt. That distinction exists in the law of libel, and tho Bill, as introduced, would have extended it to spoken slander. A libel may be accidental—due, say,. to a misprint, or a mistake.! spelling of a name, or tho innocent acceptance of false information—and in such cases the law will not treat it as a crime, though, if substantial injury is proved, damages will I>9 awarded. All I have said above on trials for libel applies to tho criminal side. Sir James Mackintosh, said, in his magnificent defence of Peltier (1803): Tho essence of the crime of libel consists in the malignant mind which the publication proves, or from which it flows. A jury must bo convinced before tlicy find a man guiltv of libel 1 that his intention was to libel, not to state facts which he believed to be true, or reasonings which ho thought just. But the Braund Suppression Bill wipes out that distinction. Tho only question left is whether the words used are "likely to injure" the reputatwn of the prosecutor. Tho speaker may have intended nothing but tho public good. Ho may have spoken in tho heat of the moment, carried away by tlio excitement of the audience; he may not have known tho full significance of what he said; he may hayo been misunderstood by the witnesses. No matter. If the jury (for juries are not shut out by this Act)- think the words given in evidence were "likely to injure," they must find him guilts'. Proof of actual injury, it seems, need not be attempted. The accused may have had only the most innocent intentions, and he may not have caused any appreciable hurt to anybody, but if his words were "likely to injure" lie must be convicted. That special province of a. jury—tho intention that underlies the. deed—is just what the jury is forbidden to enter upon. The defence of "fair comment" is excluded. This was nointed out. and in tho Upner House the Hon. Mr. Itigg (who put up a lonely and splendid fight against the Bill) sought to so amend it a.s to allow of that, defence. Ho failed. The Bill became law, and is now embedded in the Crimes Act, Consolidated • Statutes, 1908. It is waiting there until the sort of people ■for whoso benefit it was brought into existenco aro Teckless enough to make uso of it. "The Spirit of Laws." The principle which this legislation violates is deeply based upon jurisprudence and human nature. Montesjuieu says: — The laws do not take upon them to punisli any other than overt acts . . . Words (spoken) do not constitute an overt act; they remain only in idea. AVhen considered by themselves, they have generally no determinate signification; for this depends on the tone ill which they arc uttered. It oftoa happens that in repeating tho fame words I hey have not (lie same meaning; this depends on their connection with other things and sometimes more is signified by silence tlm.'i by any expression whatever. Since there can be nothing equivocal and ambigiious as' nil this, now is it possible to convert it into a crime of high trea-

.sou? Wherever this law is established, there is an end not only of liberty, but even nf its very shadow. (Spirit of Laws, Book 12, Chap. 11, 12.) Monlesquiou. I admit,. was speaking of slander taking the special form of treason. But has not Sir .Joseph Ward described his financial critics as traitors? The Final Court. And when one considers this Ward slander law as an interference with the right of public meeting—whirh it is— one sees that, so far as any worthy purpose is concerned, it is wholly unnecessary. ' A public, mooting, I need hardly stafe, consists of other people besides tho speaker. Their number shows what the citizen* think of him. Their cheers or hisses show whether they approve or disapprove of what he says. As ho has the right of speech, they have the right of interruption. The person criticised or his friends can make their sentiments known there and then, or, if they so prefer, at a later meeting. In fact, public meetings are a sort of informal trial and testing of men and things in the groat Court of Public Opinion. The judgment of that Court is all that matters. Nobody' cares for the vapour.ings of a "man of straw." Justice in that most, ancient and authoritativo Court may be. long delayed, but it comes at last. Into that Court, which is always sitting, and where Public Opinion is both judge and jury, tho truo public man, whether as accuser or accused, should gladly go. Tyrants and their tempters in all agos have studied to avoid it. But from its jurisdiction even they cannot in the end escape. (To be Continued.)