the question of publication, and of the meaning of the CHAP. IV. inuendos. It was conceded that the jury might and ought to look at the whole libel and its context, for the purpose of ascertaining whether (maliciously or otherwise) it did in fact relate to the king, the government, or to the other person "of and concerning" whom it was charged to be written, and it was also undisputed that the truth or falsehood of the libellous matter was irrelevant. Indeed the maxim, the greater the truth the greater the libel, still obtains, subject to the important restrictions contained in Lord Campbell's act. Mans It appears to me that, as a merely legal question, the Lord judges were right and Lord Erskine wrong. Every analogy field's on the subject points to the conclusion that it is for the views most analogous legislator and not for the judge to decide what classes of to the reft actions are and what are not criminal; and when a class of of the law. actions is decided by the legislator to be criminal, it is virtually decided by the same authority that the states of mind which lead to such actions are wicked or malicious. Hence, when the legislator forbids a class of actions in general terms, it falls in general to the judges, as subordinate legislators, to reduce that generality to the degree of certainty which is required for practical purposes, and to specify both the classes of actions and the classes of motives which the legislator meant to forbid by his general prohibition. The greatest confusion would be introduced into the administration of justice, if the jury, as judges of the fact, decided upon the special circumstances of every offence, whether or no it was malicious. In all other parts of the law the judges have legislated, under the fiction of declaring the law with authority. Judicial decisions determined what killings were malicious and what not, what takings were felonious and what not, and by the same rule it was natural that they should determine what writings were libellous and what not. The legislature saw fit to prevent them from assuming this power, and they did wisely. It is singular that in this instance the general theory of the law should fail. As the law is now administered, it is a system of ex post facto legislation, applied by the jury to Lord Erskine's view most expedient, and why. CHAP. IV. each particular case. A libel considered as a crime has been well described as anything for having written which a jury thinks a man ought to be punished. The explanation of this peculiarity is, that libels are punished not as immoral (though they often are so), but as insubordinate acts, and if the legislator were allowed to put down all acts of insubordination without reference to the wisdom and goodness, or otherwise, of his own commands and his own character, he would be despotic. Hence, in order to give to the law that moral sanction which in this particular case could not be secured by any definition, the power of judicial legislation is transferred from men who have, by their position, the strongest sympathy with authority, to the representatives of those who have everything to dread from its abuse. Truth of libellous matter. Law of The question, What is a libel? is independent of the question ^ow ^ar *^e *ruth of tne libellous matter is a justification. The matter is now settled by Lord Campbell's Act, which permits a defendant in a criminal prosecution for libel to plead that the matter objected to is true, and that it was for the public benefit that it should be published. This puts the matter on a plain and reasonable footing, and renders the greater part of the old law merely matter of curiosity, for the defendant's success or failure on this issue substantially disposes of the question of malicious intent. The law of conspiracy might, in the hands of encroaching conspiracy. judges, be made at least as dangerous to liberty as the law of libel ever was. A conspiracy is "a combination to do an unlawful act, or to do a lawful act by unlawful means." Lord Denman in one case observed that he did not think the antithesis correct,* and it obviously is not really an antithesis at all. The real definition would be a combination to do an unlawful act whether that act is or is not the final object of the combination. In a preceding chapter I have given a sketch of the history of this branch of the law. Upon the definition as it stands at present, I may observe that the word "unlawful" is taken in so wide a sense that it might include almost any form of immoral, unpatriotic, disloyal, or otherwise objectionable, conduct which involves a plan concerted • K. v. Peck, 8 A. & E. 69. veniences between two or more persons. It is not altogether incon- Chap. IV. venient to have a branch of the law which enables the courts, Conby a sort of ostracism, to punish people who make themselves and dandangerous or obnoxious to society at large, and the necessity sers °f the law of confor quoting precedents—the publicity of the proceedings—and spiracy. the general integrity of the judges are probably sufficient safeguards against its abuse, but it would be idle to deny that the. power is dangerous and ought to be watched with jealousy. The law of nuisance is in terms even wider than the law of Law of nuisance. conspiracy, but it is in practice the narrowest of the common law misdemeanors. The "common mischiefs" to which the name of nuisances emphatically belongs, are, for the most part, encroachments on highways or rivers, offensive trades, disorderly houses, and other matters which fall under the head of police. Happily it did not occur to those by whom the criminal law was moulded into shape to hit upon the device of treating libels and conspiracies as nuisances. Had they done so they might probably have extended the sphere of the criminal law far beyond its present limits, and have found means to punish almost any kind of conduct which the Government disliked. law of se dition. The enormous practical importance of a well-chosen vitu- Scotch perative epithet, used to denote a crime, and chosen because it connotes blame, is well illustrated by the Scotch law of sedition. As expounded in many of the cases tried in Edinburgh in 1793, it enabled the government to punish any political opponent by transportation for life. In the indictment against Thomas Muir, one of the charges was, that he "did wickedly and feloniously advise and exhort" certain persons to read Paine's Rights of Man,* and for this, amongst other things, he was transported for fourteen years. In this country he might probably have been punished for a conspiracy if he had combined with others to set up a shop for the sale of Paine's works, or for libel if he had distributed and so published them; but by a little stretching of the law of nuisance, the same effect might be produced without the difficulty of proving a publication or a combination. Thus, indictments might have been framed, charging that A. B. being an evil • 23 S. T. 169. CHAP. IV. disposed person, habitually recommended and advised other persons to read Paine's Rights of Man, to the common nuisance of the subjects of the realm, &c. There is little danger in these days that the law should be perverted to such purposes; but it is well to know which parts of it are capable of such a perversion. Having thus gone through the leading definitions of crime known to the law of England, I shall conclude by some general observations on their character. General character omen glish definitions of crimes. Codifica. tion. Consolida tion actshow far a code. Much has been said of late years on the importance of codifying the law, especially the criminal law; and, in answer to the obvious arguments in favour of such a measure, it has generally been urged that the codification of the statute law is either effected, or nearly effected, by consolidation acts; and that the codification of the common law would be undesirable, because it would deprive it of a quality which its admirers call elasticity," by which they probably mean that degree of vagueness which gives the judge or jury, as the case may be, the power of moulding it to suit circumstances as they arise. The general subject of judicial legislation I shall discuss elsewhere; but the foregoing illustrations will enable the reader to judge of the merits of this controversy, as far as relates to the definition of crimes. I agree with the opponents of codification in the opinion that the six acts passed in the summer of 1861 form a criminal code complete enough, as far as their extent goes, for most practical purposes. It would be simply impossible to collect the whole of the criminal law into a compact form, because, in a sense already assigned, the whole law is criminal. Every command issued by the legislator, upon every subject whatever, is guaranteed by a punishment in case of disobedience. Even if we take the more restricted sense of crime—an act subjected by law to definite punishment the same consequence follows. Almost every act of parliament adds to the criminal law. For instance, the Merchant Shipping Act and the Bankruptcy Act create numerous special offences. If by criminal law we mean, as is generally the case in popular language, that part of the criminal law which is in every-day use, and applies to the common run of offences, *Post. ch. iv. which are at once repugnant to all law and to all morals, the Chap. IV. six acts of 1861 correspond very nearly to this sense of the phrase. The gist of the whole may be summed up in four commandments. Thou shalt honour and obey the king. Thou shalt not kill nor hurt. Thou shalt not steal, especially by forged instruments or bad money. Thou shalt not maliciously injure property. A criminal code in the popular sense of the word, means no more than a reduction of these generalities to a form sufficiently definite for legal purposes. I think that the crimes not included under those acts—though some, as treason, are highly important, and others, as libel, are both important and common—ought to be left as they are. I would leave untouched the law of treason, because symmetry in a definition is a matter of little importance where the law is so seldom acted upon; whilst it is a matter of great importance not to run the risk of extending the limits of offences which are always viewed with just suspicion. I would leave untouched the law of libel and the other common law misdemeanors, because it is their essence to be indefinite. As they stand at present they confer upon judges and juries a qualified legislative discretion, which experience shows to be, on the whole, beneficial. Discontent, reform, and the spirit of criticising and resisting the government, are good things in their way; but it is desirable that certain checks should be imposed upon them, and no check is likely to do less harm and more good than a vague power on the part of judges and juries to say, this writing is a libel, that meeting is a conspiracy, and you must go to prison for it. The law of conspiracy broke down O'Connell's agitation in a manner as effective as it was constitutional; and by doing so, it probably prevented a civil war, mad and horrible beyond example. If, however, the opponents of codification mean to assert How susthat the six acts of 1861, together with the common law ceptible of improvedefinitions of crime, assumed or imbedded in them, admit ment. of no improvement, I disagree with them for the reasons given in detail in the former part of this chapter. They are |