THE TYRANNY AND THE PRESS.

Dominion, Volume 4, Issue 1235, 18 September 1911, Page 6

THE TYRANNY AND THE PRESS.

Whifher Arc Wc Tending?

WARD GOVERNMENT INDICTED,

AS AN ENEMY OF POPULAR

LIBERTY.

[By JurYMJuN'J

Loading the Scales of Justice. The Ministry dislikes a free pressLibel Act of last year— Right of trial by jury taken away—Sir .lehn Findlay's idea —Law altered to suit the Prime Minister—An appeal to history—Back to the Stir Chamber—Strange Remarks of a N?w Zealand ex-editor—Whither aro we tending?

■If you tako away the liberty of \ the press, tho foundation or your freedom is gono —C. J. Fox. The liberties of the press and tlio liberties of tho pcoplo must stand or fall together-Hume. 'The barren negative thing cailca British liberty .-Sir J. 0. Findlay, cabled from London, June 30, 1911. This cry and fetich of liberty of tho press.—Hon. Dr. Findlay (Hansard, Vol. 145, p. 60). .

The object of this article and of others which aro to follow, is to,expose tho attitude of tho Ward Government towai'ds

the press. I shall show, by means of records which aro available to all, that , th 6 present Administration dislikes and mistrusts the newspapers; that is has made 6tronuons, and, in some instances, partially successful : offorts, to prevent them doing their duty to the public j that it has attempted to silence them, to corxupt them, and to degrade them. ' I shall prove that these sinister ■ actions, though consciously directed for tho most part against those journals •which have ventured to express opinions distasteful to the possessors of power, have struck at the dignity, the usefulness, and, abovo all. the liberty of the press •s a wholo. It will, I hope, not bo nooessa'ry to insist that the liberty of tlio press is bound '• up with the liberty of tho people, hut I shall make it clear -that our presont Administration, by its policy towards the newspapers, has placed itself in the same class with those arbitrary monarcbs of past ages, whose tyrannical actions goaded . Englishmen to revolution. I shall point to constitutional maxims and fundamental rights, which, after being assorted by our • ancestors through sufferings amounting even to martyrdom, were confined at length by the wisdom of the greatest statesmen in British history and aro now at last openly flouted or surreptitiously undermined by politicians who call themselves progressive, democratic, and Liberal. And I trust 1 slunl leave my readers under no misapprohonjions as to tho Liberalism of the boycott, the democracy of tho gag, and tho progressiveness of tho' ; Star Chamber.

An Act Passsd Last Year,

In December, 1910, tho New Zealand Parliament passed tho Law of Libel Amendment Act, which purported to enlarge the freedom of the press. In sonio directions it actually and substantially did- so, and to that extent the Government which introduced the Bill deserves the thanks of tho people. But, unfortunately, tho Act, as passed, contains tho following clause:—

11. (1) Tho indietablo offence of publishing a defamatory libel or of criminal defamation within tho meaning of the Crimes Act, 11)03, shall also be an ; offence punishable on summary conviction before' a magistrate by "a fine of .£IOO or by imprisonment for three (2)' In any such summary proceedings, it shall be a good defence that tho defamatory mat-tor published by thp defendant -was true, and that the publication thereof was for.,the. public benefit; but -no/evidence of the truth of such matter' shall be admitted until and unless tho defendant provos that assuming the matter so published to be true, the publication thereof was for tho public benefit. (3)', An.information for any offence punishable on summary conviction under, this section shall bo taken and

heard before a magistrate only; and no such prosecution shall bo comi mcnccd without the oroer of a magistrate; and notico of the intention to apply ,for such an order shall' be

given to tho defendant', who shall have an opportunity of being heard This clause contains two highly objectionable features—(l) It enables a charge of criminal-libel to be tried-without a jury, and (2) it-makes it necessary for the defence to prove that th© statements complained of were for the public benefit, if •true, before he can attempt to prove that they are true.

Tho Right of Trial by Jury,

* -First,'as to the right of trial by jury. This is a right at least as old as Magna Charta. Tho document in which King 1 Jcrhn agreed that no man should bo fined or- imprisoned except by the judgment of his equals or by the law 'of tho land has enabled any Englishman accused of a serious offence to claim that the question of his guilt or ; innocence shall be settled by the verdict of tu-elve men of hi 3 own neighbourhood. \\ hsri during periods of tyranny this right has been partially and temporarily taken away, Englishmen have struggled heroically to regain it, and they haro always' succeeded. Thov have seen in tho common jury one of the Strongest bulwarks of the liberty of the subject. Tho clause I have just\quoted takes away from printers, publishers, and journalists the nght of trial by jury. Tho person who thinks himself libelled may, under Clause 11, ask a stipendiary magistrate to fake tho case and deal with it summarily—that is-to pay,. without a jury ami without-the possibility of' appeal. The accused cannot claim trial by jury as a right. -Ho can onlv try to per- • suade the magistrate not to tako tho ca=" the plaintiff being thus left to seek satisfaction- in tho higher Court. Tho defendant must show the magistrate special reasons why ho should be allowed something which until now no reason wonld have been strong enough to tako away from him. If you are charged .with assaulting fl man with your lists or shooting at him nobody can question your right'to go beforo a jury but if you attack him with words, or discharge facts and arguments at him, you must sue and plead for your jury trial as a favour, although tho punishment, if you are convicted, may be three months' imprisonment.

Alone Ho Did It,

The special circumstances to which New Zealand owes this deplorable addition to ks laws are apparent from the words in Which the Attorney-General (Hon. Dr Jnndla.y) introduced it to the Legislative Council on December 2, 1910:

Now, I drafted, a clause, and I subraitted it to tho Prime Minister for insertion in this Bill when it was before another place, and I impressed upon Sir Joseph Ward that it was his duty to liavo it inserted in this Bill. The Prime Minister, however, felt that, as lie is tho one who had Buffered rnoro than any other man in this country from mercenary defamation, it might bo suggested that he was responsible for this clause, and so he declined to insert it thsre. Now I respect, a3 evcryono present will respect, tho sense of delicacy which tho Prirao Minister"eTincod in' connection with this matter, but I feel it is the duty of Parliament—it is the duty of this Council—to see that public men, including the Prime Minister of the day, whoever ho may happen to be, nro protected from this kind of foul attack and brutal persecution; and although I havo in no way consulted the Cabinet abont it, I am going to ask tho Council to insert this clauso in this Bill.

Tho obedient Council passed tho clause without a division.

Tho Houso Disgraces Itself. The Hon. J. A. Millar had tho task of uriving it in tho House of Representati .os. Tliere also it was adopted without amendment. The excitement of tho tiine, ; tho suddenness with which tho schemo was spruny upon a dragooned and jaded House, still palpitating from the excitement of tho "Black" pamphlet debate, may palliate, but cannot justify, the impropriety committed by tho roprcscntathe right of trial by jury. Yet the Houso stultified itself a3 a Eoproseata-

tivo Chamber in assenting to this monstrous proposal. Jlr. Massoy, as soon as tho Minister had sat down, .demanded . timo to cxamino the new clause. Mr. .Wright pointed to tho impossibility of •proving "public benefit," and Jlr. Herdmnn protested against tho destruction of trial by jury; but tho House passed tho clause—and did so, apparently, on liho assumption that it.« vote would thus procure for its master a tribunal and a procedure through which he could, without fail, inflict upon personal enemies Jiko the publisher of the notorious pamphlet a punishment which tho established system of justice might possibly refuse. Parliament, of course, did not fully realise what' it was doing. If it thought that the Primo Minister wished lor special power to deal with a particular person, then its action really amounted to this: It prejudiced the issue after hearing only 0110 of tho parti.es and thou created a jurisdiction supposed to bo favourable to that party. However, tho llouso may only havo supposed that tho elauso was for uso against future libellers, or (what is more probable) tho majority of the members only cared to know that tho Government desired them to say "Ay." Clause 31 lias not yet' been used, and perhaps not even a Minister of tho Crown would dare to invoke it, but there it stands, for tho present—a; blot on tho Statute Book.

An Appeal to History,

Tho right which the Now Zealand Parliament so lightly destroyed was the subject of a long and bitter struggle in England during the eighteenth century. Even then thero was no proposal t'o wholly deny the right of trial by jury in libel cases.' The controversy merely concerned the respective powers of the jury and tho Judge. Tho Government and most of the Judges held that the jury could only concern itself with the facts of writing and publication, together with tho identity of the things and persons to which t'lie alleged libel referred, while the question as to whether it was a libel or not was exclusively tho province of tho Judge. On tho other hand some of the greatest men of that age—such men as Burke, Fox, Camden, and Erskine—took the more popular viewthat tlio whole issue of libel or no libel was one for the jury. Thoso were tho days of frequent Government prosecutions for libel, and it is proper to notico that political libei actions appear to bo now coming into vogue again. Burke, speaking in the House of Commons in 1717,. said:

"If juries are confined to the fact, no writing which censures, however jnstly or however temperately, the conduct of administration can bo un-

punished. Therefore, if the intent' and tendency bo left to the Judge as legal conclusions growing from , tlio fact, you may depend upon it you can have no public discussion of a public measure; which is a point that even those who aio most offended with the licentiousness of the press (and it is very exorbitant, very provoking) will hardly contend for.

It should, of'' course, bo remembered that independence of the judiciary' had not at that timo been fully secured, but it must also bo remarked that the Ward Governmont's enactment now undar consideration confers jurisdiction in' libel actions upon magistrates, whose tenure of office ancf amount of salary depend upon the will of tho Ministers in power.

Baek to the Star Chamber,

The arguments of Burke did not prevail with Parliament until twenty years alter , tho spcech I have quoted. jl''ox's Libel Act, of 1792, declared the principle —never since attacked except in tnia country, and by the Ward Government— that it was the function of tho jury to find a general verdict upon the whole matter. .During tho forty years preceding Pox's Act, juries had repeatedly, in spita of tho directions of the Judges, exercised that function.

: The chief honours of that long struggle against 'tyranny rest with Thomas Lrskine, barrister, member of Parliament, and afterwards Lord Chancellor. . His speeches on the rights of juries and the freedom of tho press are classics, and deserve to.be more generally known. Lord Campbell, the author of "Lives of tho Lord Chancellors," "wrote-that "without the invaluailo assistance of Erskine, 'the Star Chamber might have been re-estab-lished in this country." And it is indeed a fact that apart from proceedings in Parliament against its own members and against those who were alleged to have insulted .its dignity we must go back to the Star Chamber, if we would, find a tribunal which exerciscd a criminal jurisdiction in charges of libel without so much as the presence of a jury. It was in the year 1041 that the Long Parliament abolished that notorious court which had caused William Prynn to have his ears cut off, stand in tho pillory, pay a fine oi iCSOOO, and undergo a long imprisonment, all for writing a Puritanical book against the stage. It was that same Court -of Star. Chamber- ..which a few years later condemned Prynn, Bastwick, and B\trton',"to lose their ears in' the Palace yard at Westminister; to be fined .£SOOO a man to his Majesty; and to perpetual imprisonment in threo remote placos of tho kingdom." Prynn was also to .be branded on the cheeks with tho letters "S" and "L" (seditious libeller).These three men had published certain political and theological books and papers, which nowadays would be thought altogether innocent. Tho Star Chamber also had young John Lilburne whipped through London streets, pilloried, fined, and imprisoned.' His crime was bringing over somo books of religious controversy from Holland. Of course, I am not suggesting that such savago sentences can ever l>e repeated, but I say there is no British precedent for trial of criminal libel casc3 without a jury, except it bo in tho hated, unconstitutional, and longsince abolished Court of Star Chamber.

What Mr. Loughnan Wants,

In thus making out a connection between a clause of last year's Act and the oppressions of tho past, I can quoto in my support no less a personage than tho Hon. U. A. Loughnan. Speaking on this very point during the Upper Houso debate on tho Law of Libel Amendment Bill (Hansard, DecmnbeT 2, 1910) Mr. Loughnan said:—

I only ask the Council to go back

over tho centuries for two or three hundred years, and they will remember how the writers of pamphlets in the age of pamphleteers used to bo treated. Thoro is a famous line which

hits off the situation of those days:—

"Earless on high stood unabash'd Defoe."

Honest men were thus punished, and they fought on until their constancy obtained perfect freedom'for the r«ss which they honoured.

For the benefit of any of my readers ivho happen, to lack Mr. Lonclnian's literary culture, I havo ascertained that in the year 17(12, Daniel Defoe, author of

"Robinson Crusoe," was put in tho pillory, heavily lined and imprisoned for writing a pamphlet satirising the intolerance of the then High Churclr party. Popo is found to havo been wrong in supposing that his ears were cut off.

Mr. Loughnan seems to approve of a reversion to the old law, for, after calling Clause 11 the best in the Bill, he went on:—

The freedom thus granted has been abused by unscrupulous ruffians for evil purposes. It is nccessary, therefore, to revert to the control of earlier times. That control was suggested by a sense of .justice, but was generally atpplied with marked injustice. "Wo a.re reverting to it in a spirit of justice without any danger of tho unjust applications of tho old times. And then, instead of explaining why a system that mado for injustice in tho sixteenth, seventeenth, and eighteenth centuries conld not havo any such tendency in the- twentieth, the Hon. Mr. Lough'nan sat down. Mr. Longhnan was successively editor for many years of the "Lyttclton Times" and tho "Sew Zealand Times." His elevation to the Legislative Council in 1907 was spoken of as a compliment to journalism. liatcr on, I slinll havo something to say about the effect of Go*srnment patronago and Ministerial tion" upon the status of the journalistic profession.

Curran, defending Hamilton Rowan, in a speech which Lord Brougham declared to bo tho most eloquent over delivered in a Court of Law, exclaimed: Tho liberty of tho press—that sacred palladium, which no power, no Minister, no Government—which nothing but the depravity, or folly, or corruption o£ a jury—call ever destroy. Apparently the Ward Government was jiot wholly blind to this truth. Instead.

of planning to deprave or corrupt a jury, it provided for excluding it altogether. It was the opinion of Burke that if the doctrine which gave lo the Judges exclusively the real power of deciding prosecutions for libel were allowed to stand, the practice would extend to all sorts of ca«?s, until juries Iwcamo "a dead letter in the eonstitntion." That is tho prospect now opened up in tliis country by the Libel Act of Sir Joseph Ward and •Si"' John Ti'indlay.

What I liavo" to say about tho new method of "defence" in libel trials under Clauso 11 must be reserved for a second article.