THE TYRANNY AND THE PRESS

Otago Witness, Issue 3005, 18 October 1911, Page 88

THE TYRANNY AND THE PRESS

(B.Y JURYMAN.)

WARD GOVERNMENT INDICTED. AS AN ENEMY OF POPULAR LIBERTY. 11.

It is on the goodness of criminal laws that the liberty of the subject principally depends. —Mom.tesqua»u. The price of one hour's English liberty none but an English jury could estimate. —'Lord Camden. The liiherty of the press—it is as the air we breathe—if we have it not, we die. — Old Whig- political toast. In the preceding article, I pointed out that clause 11 of "The Law of Libel Amendment Act, 1910 " —a clause- inserted at the instance of the Attorney-general for the avowed purpose of mooting the case of Sir Joseph Ward—was, for two reasons, highly objectionable: (1) It takes awiay the right of trial by jury.

(2) It inverts the proper order of the defence.

I have dealt with the first of these points. Now for the second. Let us have another good look at the clause:

_ 11. (I) The indictable offence of publishing a defamatory libel or of criminal defamation within the meaning of " The Crime® Act, 1908," shall also be an offence punishable on suimriiary conviction before a magistrate by a fin© of £IOO or by imprisoramenit for three months. (2) In any such sumimary proceedings it sbaH be a good defence that the declamatory matter published by the defendant was true, and that the publication hereof was for the public benefit; but no evidence of the truth of suctii matter shall be admitted until and unless the defendant proves that, assuming the matter so published to be true, the publication thereof was for the public benefit. . • '.' (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 l shall be cornmerioed without the order of a magistrate;- and-notice.of the intention to apply for such "an order shall be given, to the jdefendant, who shall - have an opportunity of being heard. > The point to be noticed just now is that this clause makes it impossible for the defendant to attempt to prove the truth of an alleged libel until and unless he * has proved; tbait, assuming it to be true, it is for 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, arid that its truth could not be pleaded; or given in evidence, or even urged in mitigation of punishment. . PUNISHMENT FOR OPINIONS.

This doctrine was strongly condemned by Burke, and those who were ■ with him in the eighteenth century struggle for liberty of the press, and it has since been wholly abandoned. It was doubtless ; founds that juries could not be prevented from considearing the question of truth—which>, indeed, to ordinary people must seem the most important' question of all. Certainly, of the two branches of defence set out in subsection 2, this is in many cases tlie only one which is. capable of proof.,'" Public benefit"" is often a matter of opinion. Suppose the defendant has published defamatory statements concerning a Minister of the Crown. Suppose those 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 in such, a case would. not be a matter of opinion? Yet if the defendant cannot induce the magistrate to adept his view of national welfare; he must be fined or go to £"aol. Thus a man might be punished, not for publishing a libel (for the question of libel is not really determined if the truth is not investigated), but simply for not holding the same political opinions as the magistrate. And so long as the magistrates know that the executive has the power to reward them or dismiss them, it is needless to say in what direction, if any,. they will be biased.. WORDS OF A GREAT - Now, it is sometimes necessary that the decisions of a oourt of justice, especially in libel actions, shall be founded in part upon opinions as to the public interest. Accordingly, there is in.the judicial system which wo owe to the wisdom and experience of our ancestors one tribunal—and only one—which is competent to dtecide upon such opinions. That tribunal is the public itself, as represented by a common jury—the very authority which, as we have already seen, the prosecutor under clause 11 is enabled to evade. Thus that branch of the defence which is made the first, and would prob ably be the only one, for the magistrate is a question which he is totally unfitted to determine; and this limitation of the magistrate's jurisdiction is a part-and parcel of the Eng'ish constitution Said Erskiiie, in his great speech on the rights of juries (Dean of St. Asaph's motion for retrial, lT6i): However safe we might bo or might think ourselves, the constitution never intended to invest judges with a discretion which cannot be tried and measured by the plain and palpable standard ol law. ... The jury can do ] what (as I observed before) your Lordships cannot do. . . . If it knows that the subject _ of the paper is the topic that agitates the country around it—if it sees danger _ in that agitation, and have reason to think that the publisher must have intended it, it says he is guilty. If, on the other hand they consider the paper to be legal and enlightened in. principle, likely to promote a spirit of activity and liberty in Tnr.cs when the activity of such a Dpirit is essential to the public safety, and has reason to believe it to be written and published in that spirit, it as it \ought to do, that the writer or" the publisher is not guilty. Whereas jour Lordship's judgment upon' the language of the record must ever be in the pure abstract; operating blindly and indiscriminately upon all times, circumstances, and intentions; making no distinctions between the glorious attempts of a Sidney or a Russell, struggling against the terrors of despotism under the Stuarts, and those desperate adventurers of the year '45, who libelled the

person and excited, sedition against the mild a.nd gracious government of our late excellent Sovereign King George 11.

Ersbine also siaid, as truly as picturesquely, that the judge must look upon the alleged libelous document as he would upon a manuscript dug out of the ruins of Herculaneum. The speech from which these extracts are taken was circulated as a pamphlet, and was One of the- strongest influences in establishing, by act of Parliament, the constitutional, though longdenied, right of the jury to decide the whole question of criminal libel. Looking back in his old age, after, he had. been Lord CbanceJilo'r, and retired on pension, Erskine said that his speeches l on this question expressed the law as he 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 the only question for him to consider; Parliament (under Ministerial domination) has not only done a gross injustice to future defendants, but has offered a direct insult to the public. Jurymen axe the deputies and agents of every man, woman, and child in the community. To shut them out of their proper jurisdiction is to destroy one of the most valuable of popular right©. If the tendency of this measure is not yet sufficiently clear, a question from Blackstone may make it so. That great legal and constitutional classic, after speaking of the propriety of trial by jury in oivil actions, proceeds:— But it holds much stronger in criminal

cases simice, in times of ; difficulty and dan'ger, more is to be apprehended: from the "vmoleaicie and partiality of judges appointed by the Drawn, in" suite between the King and the 'subject, than in disputes between one individual and another, to settle the boundaries of private property. Our law' has, therefore, wieedy placed ■ this strong and twofold barrier of a presentment and trial by jury between the -liberties of the people and Uhe pnerroga.tive of the Crown. Without this barrier, justices of oyer and terminer named by the Orown might, as in Franco cor in- Turkey, imprison, despatch, or exiOe any man that was obnoxious to government, by an instant declaration that sixah w-as their will and pleasure. So that the liberties' of England cannot but subsist so long as this palladium remains ■ saored and iirwiolate, not only from all open; ; attacks, whaoh hone will be so "hairdy a® to make, but also from all secret machinations whidh' inay sap and, undermine Commentaries, "Vol. IV.)

The Ward Government, as We have seen, has bad the hardihood to make just such an open attack as B'Lackstone thought impossible. The great jurist, with all his 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 the clause we have just been discussing. On October 19, 1905, the Hon. JM'Go wen,'Minister of'Justice in the Seddon Government? moved- the second reading of the Criminal Code Amendment Bill. No. 2. This measure was short, simple—and abominable.- : Ite operative clause was as - ,'

All the provisions of the Criminal Code Amendment Act. 1901 (relating to defamatory libel), shall hereafter extend and apply to words spoken'.

Mr M'Gow&h expkiah&cT quite correctly (Hansard, Vol 135, p. 867) that under the English law and our law as it then. stood, spoken slander could hot be made the subject -of a criminal prosecution. The injured person had Only a civil remedy; the accused., if convicted, coiikj.only be fined. The bill would make slander a criminal offence, 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 unable to pay a fine, would be immune from all punishment, "although he might be in the pay of some wealthy • person whost identity was concealed. THE LATE 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, arid any other man in the Dominion Who dares to say a word about the Administration. '

The late Mr Taylor's explanation of the bill was confirmed by no less an authority than Sir Joseph Ward. Referring to a meeting addressed by Mr Braund, he said that he had already told certain people that, if he could, mnder 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 the position of the law at that time, he would already have done so. Here, then, was a case like that of Section 11 of the Libel Act'of last year. The Black punishment clause had its precedent in the Braund Suppression Bill. THE BILL AS PASSED. The bill was fought in the 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 person to hatred, ridicule, or contempt, or to injure him in his profession or trade,, is guilty of "criminal defamation," which is hereby declared to be an offence. Provided that the speaking of such words shall not constitute or be deemed to constitue an offence, unless spoken within the hearing of not less than 20 persons at a meeting to which the public are invited to attend or have access. This was called a "compromise," and in so far as it confines the new crime to public meetings, and deprives the eavesdroppers and spies, of the . tempting: opportunity that would otherwise have ooen eo fully open to them, it: is less objectionable than the 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 .v:ped out the distinction between crime and civil injury. TO CONVICT THE INNOCENT.

That distinction exists in the law of libel, and the bill, as introduced, would have extended it to spoken slander. A libel may be accidental—due, say, to a misprint, or a mistaken spelling of a name, or the innocent acceptance of false information —and in such oases the law will not treat it as a crime, though, if substantial injury is proved, damages wUI be awarded. All I have said above on trials for iibel ' applies to the criminal side. Sir James Mackintosh said, in Ms. magnificent defence of Peltier (1803): The essence of the crime of libel consists in the malignant mind which the publication proves, or from which it flows. A jury must be convinced before it finds a man guilty of libel that his intention -\vas to libel, not to state facts which he believed to be true, or reason-

ings which he thought just. But the Braund Suppression Act wipes out * that distinction. The only question left is whether the words used are "likely to injure" the reputation of the prosecutor. The speaker may have intended nothing but the public good. He may have spoke in the heat of the moment, carried away by the l excitement of the audience; he may not have known the full significance of what he said: he may have 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 guilty. 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" he must be convicted. # That special province of a jury—the intention that underlies the deed—it is just what the jury is forbidden to enter upon. The defence of "fair comment" is excluded. This was pointed out, and in the Upper House the Hon. Mr.Rigg (who put up a lonelv and splendid fight against the bill) sought so to amend it as to allow of that defence. He 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 whose benefit it was brought into existence are reckless enough to make use of it.

" THE SPIRIT OF LAWS.", The principle which this legislation violates is deeply based upon jurisprudence and human nature. Montesquieu says: The laws do not take upon them to punish any other than overt acts. .. . . Words (spoken) do not constitute an overt act; they remain only in idea. When considered by themselves, they have generally no determinate sign ificlat ion; for this depends on the tone in which they are uttered. It often happens that in repeating the same words they have not the same meaning; this depends on their connection with'orher things, and 'sometimes more is signified by silence than by any expression whatever. Since there can be nothing so equivocal and ambiguous a? all this, how is it possible to convert it into a. crime of high treason ? Wher-ever-.this k>w,.is ; established -there is an. end not only of liberty, but even of its very shadow, —("Spirit of Laws," Book 12, chaß. xi, : 12.) Montesquieu, I admit, was speaking of slander takinsr the special form of treason. But has not Sir Joseph Ward described his financial critics as traitors? THE FINAL COURT.

And when on© considers this Ward slander law as an interference with the right of public meeting —which it is,—one sees that, so far as any worthy purpose is concerned 1 , it is wholly unnecessary. A public meeting, 1 need hardly state, consists of other people besides the speaker. Their number shows what the citizens think of him. Their cheers or hisses show whether they approve or disapprove of what he says. As he 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 great Court of Public Opinion. The judgment of that court is all that matters. Nobody cares for the vapourings of a "man of straw." Justice in that most ancient and authoritative 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 juKy ; the true public man, whether as accuser or accused, should gladly go. Tyrants and their tempters in all have studied to avoid it. But from its jurisdiction even they cannot in the end escape. .