Cornell University Law Library 
 
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 The School of Law of Cornell Universitj 
 
 And Presented February 14, 1893 
 IN nenoRY of 
 JUDGE DOUQLASS BOARDMAN 
 
 FIRST OEAN OF THE SCHOOU 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
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 The ibertv of the press speech, and pu 
 
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Cornell University 
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THE LIBERTY OF THE PRESS, 
 SPEECH, AND PUBLIC WORSHIP. 
 
 BEING 
 
 CFommeitiatus on tfie libErtji of. tlje Subject 
 
 AND THE 
 
 Hafas of lEnglanln. 
 
THE LIBERTY OF THE PRESS, 
 
 SPEECH, AND PUBLIC WORSHIP. 
 
 BEING 
 
 Commmtarif^ on tbt Hilbcrtg of tl)f Subject 
 
 AND THE 
 
 EaiDg of (0iiglattt!. 
 
 JAMES PATERSON, M.A., 
 
 BAR RISTER-AT-LAW, 
 iMETIME •COMMISSIONER OF ENGLISH AND IRISH FISHERIES. 
 
 MACMILLAN AND CO. 
 1880. 
 
 TA( Right of Translation and Reproduction is Reserved 
 
LONDON ■ 
 
 R, Clay, Soss, and Taylob, 
 
 BREAD STREET HILL, E.G. 
 
PREFACE. 
 
 The introduction to these Commentaries contained a 
 classification of the law under ten divisions, one of which 
 was entitled "The Security of Public Worship," and 
 another was entitled "The Security of Thought, Speech, 
 and Character." It was also pointed outi that these two 
 divisions naight well be treated as substantially one, see- 
 ing that the Security of Public "Worship was only another 
 name for the Security of Thought a,nd Speech, when 
 applied to one prominent subject-matter. But, neverthe- 
 less, it was deemed advisable to treat them as separate 
 divisions, and even to give precedence to that which was 
 specific, over that which was generic. The reason was, 
 that in all countries, ages, and conditions of mankind — ■ 
 even in the savage state — something has always been 
 recognised as Public Eeligious Worship, which, moreover, 
 has always been a settled and conspicuous practice; 
 whereas, until the invention of printing, the Freedom 
 of Thought and Speech was scarcely dreamt of as a 
 branch of human government, and the minds of legis- 
 lators had been almost blank with regard to it. Moreover, 
 the degi'ee of toleration accorded in the one case seemed 
 to differ from that accorded in the other, and at least, both 
 
 ' 1 Pat. Com. (Pers.) 66. 
 
PREFACE. 
 
 rights have seldom been treated as based on the same 
 fundamental principle. The one had an unknown begin- 
 ning, and has descended to us incumbered with incidents 
 and involved in details now difficult to reconcile and 
 harmonize ; while the other sprang four centuries ago out 
 of chaos, and has more of the simplicity of aU modern 
 creations. But now that the convenience of this publica- 
 tion admits of both divisions being treated in one volume, 
 the more scientific classification has been adopted; and 
 while the security of Thought and Speech is the generic 
 right, the Security of Public Worship is here treated as 
 holding the secorid place, being only one of its species. 
 While the minds of governors before the invention of 
 printing were blank as to the Security of Thought and 
 Speech, it was otherwise with the Security of Public 
 Worship. With regard to this there was no blank, but 
 on the contrary, there was in its place an active and 
 virulent maxim at work. This maxim led all govern- 
 ments to take up a false position, which, after a long 
 series of uncandid confessions and ill-disguised retreats, 
 has at length been all but finally abandoned. This was 
 the maxim, that there was only one true form of religious 
 worship,' that each governor had already discovered it, 
 
 ' " I would only ask why the civil state should be purged and 
 restored by good and wholesome laws made every third or fourth 
 year in Parliament assembled, devising remedies as fast as time 
 breedeth mischief, and contrariwise, the ecclesiastical state should 
 still continue upon the dregs of time and receive no alteration now 
 for these five-and-forty years and more. . . I for my part do con- 
 fess, that, in revolving the Scriptures, I could never find any such 
 thing as that there should be but one form of discipline in all 
 Churches ; but that God had left the like liberty to the Church 
 government as he had done to the civil government, to be varied 
 according to time, and place, and accidents, which nevertheless his 
 
PREFACE. 
 
 that he was its only prophet, and that as such he felt 
 bound to torture, or in some way to punish the body of 
 any citizen who was suspected to entertain, even in his 
 secret thoughts, the slightest hesitation about believing 
 and obeying.i The cijes and groans of the victims of this 
 treatment ascended to Heaven, and in due time drew down 
 a deliverance at first tardy and only half understood. 
 The chafing of a monk in his solitary cell against first one 
 and then another of the sore points of so arbitrary a regimen, 
 created sympathy and gave voice and body to the general 
 misgivings, and finally led to the Eeformation. This 
 grand rebellion of the human intellect against the arro- 
 gance of all existing governments in their dealings with 
 the mind and conscience, cleared the air of malignant 
 vapours, and revealed glimpses of a more natural way of 
 regulating the highest functions of man in the social 
 state. And yet so deeply had this accepted maxim of 
 government become engrained in the heart and soul of 
 every governor, that when one tyranny was overthrown, 
 the successor became infected with the same vice as his 
 predecessor. They differed only in this, that the relations 
 of victim and oppressor were sometimes reversed, and it 
 took many generations to unlearn those arts of habitual 
 intolerance which clogged' the machinery of- legislation. 
 
 The art of government nevertheless took a new start- 
 ing point from the era of the Eeformation, or rather, from 
 the time wheii the smoke and tumult of that upheaving 
 
 high and divine Providence doth order and disTpoae."— Bacon, 
 Pacif. Ch. 
 
 1 Philosophers have counted fifty-five distinct sects between the 
 year 264 and 1843, each professing to teach the true doctrine of 
 Christianity, and all with some modifications. — Wikoff, Cwiliz. 
 
PEEFACE. 
 
 cleared away.i TJie great thinkers of the world soon 
 taught Kings, Parliaments, Cabinets, Statesmen one by 
 one, and each with gradually abating reluctance, to re- 
 nounce, and even to reverse, the first principles they had 
 imbibed on taking up their traditionary power. The 
 lingering echoes of these exploded fallacies have, it is 
 true, been heard now and then, even too recently. But 
 we have reached an epoch when the dogmas once gravely 
 avowed and acted upon by the oracles of government, 
 and sometimes also of the law, as living maxims, have 
 become the scoff of schoolboys. 
 
 It never occurred to any government prior to the Ee- 
 formation, and probably for a century or two later, that it 
 was possible that the best form of religious worship, as well 
 as the best form of human government (of which the former 
 is merely a branch), might have been intended by Provi- 
 dence to be discovered by the scrutiny of Eeason, each 
 nation following the best guides of the time, yet following 
 without blindly bowing the knee.^ The dignity of thought 
 
 ' " The Reformation was a great undertaking for the .enfranchise- 
 ment of human thought, and to call things by their proper names, 
 a rebellion of the human understanding against power in spiritual 
 matters." — Guizot, Civ. Eur. c. 12. "But while labouring for the 
 destruction of absolute power in spiritual matters, the religious re- 
 volution of the sixteenth century was ignorant of the true principles 
 of intellectual liberty. It neither knew nor respected all the rights 
 of human thought ; at the moment when it clamoured for them 
 for its own liberty, it violated them with others. Still it caused 
 religious doctrines to re-enter into general circulation and re-opened 
 the field of faith to believers, and banished religion fi-om politics. At 
 the very moment that religion re-entered, so to speak, into the posses- 
 sion of the faithful, it parted from the government of society." — Ihid. 
 
 ^ " For my part I am certain that God hath given us our reason 
 to discover between truth and falsehood, and he that makes not 
 this use of it, but believes things he knows not why, I say it 
 is by chance that he believes the truth, and not by choice, and 
 
PEEFACE. 
 
 and speech is at last vindicated by showing how small a 
 part of it can be really made subject to the control of any 
 government or any laws. The old Philosopher taught, that 
 every man has it in his power to prepare an impregnable 
 rampart for his own thoughts.i Dissent, after having long 
 been an unquestionable crime, has ended by becoming 
 almost a corner-stone of the glory of civilisation. The art 
 of agreeing to differ seems at last to have been all but 
 mastered. The members of an Established Church are 
 now contented to take their proper place in the social 
 contract, and view with equanimity large numbers of their 
 fellow men who, having " the same faculties, organs, di- 
 mensions, senses, affections, passions," insist on thinking 
 
 I cannot but fear that God will not accept this sacrifice of 
 fools." — Chillingwortli Relig. Prot 133. " Religion is not believed 
 because the laws have established it, but it is established because 
 the leading part of the community have previously believed it to 
 be true." — Burke, Tracts Pop. "Shall we say that of so many 
 paths, pursued by so many contending sects, there is one, and only 
 one, which is trodden by the honest, the candid, and the upright, 
 and that all that deviate from that one path are the victims of their 
 own levity, or prejudice, or insincerity ?" — 2 Stephen, Eccl. Biog. 467. 
 Bishop Buknet said he had long looked on liberty of conscience as 
 one of the rights of human nature antecedent to society, which no 
 man could give up, because it was not in his own power. — 2 Burnet, 
 Hist. Own Times, 216. Bishop Waebueton said, "My opinion is, 
 and ever was, that the state has nothing to do with errors in religion, 
 nor the least right so much as to attempt to repress them." — 2 
 Chatham Gorresp. 184. 
 
 1 Diog. Antisth. "The conscience of man is eternal, invisible, 
 and not in the power of the greatest monarch, in any limits to be 
 straightened, in any bounds to be contained, nor with any policy of 
 man, if once decayed, to be again raised. Neither Jew nor Turk 
 required more than the submission to the outward observance and a 
 convenient silence."—! Pari. Hist. 763. " I may safely say there 
 are scarcely three considering men who are in their opinions through- 
 out of the same mind."— 6 Loche's Wks. 372. 
 
PREFACE. 
 
 out their own best thoughts, on every subject touching 
 their life, property and reputation, as well as touching 
 their relations to their' Maker. The synods of Christen- 
 dom no longer burn to stifle inquiry. To echo and adopt 
 the thoughts of others, who had no better materials of 
 judging than their successors, and certainly had shorter 
 experience to guide them, is less and less an accepted ofHce 
 of the modern teacher.^ 
 
 All these considerations only show, that the law relating 
 to the security of Public Worship has now become settled 
 (in this country at least) on principles as nearly as possible 
 the reverse of those once accepted by all the governments 
 of the world. No branches of the law have undergone so 
 many important and yet late bestowed changes as those 
 relating to Freedom of Speech and of Worship, which 
 form the subject of this volume. 
 
 According to the method of treatment illustrated and 
 explained in the former part 'of these Commentaries, the 
 present volume exhibits those two great divisions of the 
 law where the freedom of thought, of speculation, of 
 social and political activity, essential to a self-governing 
 community, may be said chiefly to reside, and where the 
 highest functions of civilised beings are best displayed 
 at work in daily life. It will be seen how few are the 
 restrictions now found necessary to regulate the free play 
 
 1 Luther well said, that heretics must be vanquished by the pen, 
 as the Fathers vanquished them, and not by fire. If to conquer 
 heretics by fire were an art, the executioners would be the most 
 learned doctors on the earth. There would be no more need of 
 study, but the man who subdued his opponent by force would be 
 entitled to burn him. Heresy was something spiritual that could 
 not be cut out with steel, nor burned with fire, nor drowned with 
 water.— ffe/cien's Ch. & State, 305. 
 
PREFACE. 
 
 of all that the mind and tongue of man can find to do, so 
 far, at least, as their united efforts tend materially to inter- 
 fere with human occupations ; for this protection against 
 such interference has already been shown to be the 
 beginning and end of the law. 
 
 The natural tendency to think and speak of others as 
 well as of ourselves, and especially of those superior to our- 
 selves, is best found developed in the primary right of 
 public meetings, and of a free press, the only restrictions 
 being such as are imposed in order to guard against 
 blasphemy, immorality, sedition, breach of the privilege 
 of Parliament, contempt of court, on the one hand, and 
 agaiast defamation, on the other hand. 
 
 Again, the same faculty of thought and speech will be 
 found protected as a species of property called copyright, 
 inherent in, and created by, the person who thinks and 
 speaks and publishes; and as akin to copyright, the 
 cognate rights of patent and trade mark will here find 
 their most proper place. 
 
 Lastly, the faculty of Free Thought and Speech is 
 equally found developed as the rights of conscience under 
 the form of Public Worship. Those rights which once 
 overshadowed and were interwoven with the whole 
 machinery of government and covered nearly all human 
 conduct, became, centred in the Established Church, which 
 at first was national, or embraced the whole population. 
 This gave rise to a great number of detailed laws relating 
 to the clergy, their duties, rights, and privileges towards 
 the public, and as between themselves, and above all, their 
 powers of compulsion over the laity, which in the earliest 
 times were extreme and all-embracing, but which have in 
 course of centuries dwindled down to something almost 
 
PREFACE. 
 
 nominal. The representatives of the clergy once formed 
 a large portion of one branch of the legislature, and 
 supplied the leading maxims of government to all 
 countries, and were deemed so puissant as to form by 
 themselves a rival power to Kings, Emperors, and Parlia- 
 ments. The memory of this greatness still lingers in the 
 familiar watchwords, " Church and State." But after 
 centuries marked by voluminous details of protective 
 legislation, the clergy now contentedly fill the place of 
 one of the professions ; and the laws once peculiar to them 
 are all cut down merely to those restrictions, which that 
 part of the laity under their care, sometimes, not un- 
 willingly, enforce against them. The rest of the com- 
 munity under the description of Dissenters now enjoy 
 similar and even greater rights and liberties, in nearly all 
 respects, and as regards the modes of public worship of 
 their own choice, except in so far as a few traces of 
 priestly privilege are not yet wholly effaced. While the 
 substantial rights, duties, and possessions of Dissenters, 
 now, to a great extent, coincide with those of the Estab- 
 lished Church, the laws peculiar to the former make up 
 but a small chapter compared to the voluminous details of 
 the latter. How the one chapter decreased by degrees, 
 and how the other never required to grow owing to certain 
 inherent powers of self-government, will be seen through- 
 out the latter part of this volume. The objects and 
 purposes of Churchmen and Dissenters are now, or ought 
 to be, the same ; their methods are not, and need not be 
 entirely the same. The main differences are merely a 
 history of the steps by which they arrived from opposite 
 quarters at the same goal. 
 
 The Liberty of the Press and the Liberty of Public 
 
PREFACE. 
 
 Worship have now long been household words, and it 
 stands confessed, that if Englishmen understand anything, 
 they understand the general bearings of these two cardinal 
 laws and know how to live under them. Yet they reached 
 their settled state only after a long series of experiments. 
 As popular cries they serve as a key to attune the 
 thoughts. But popular cries are often misleading; and 
 reasonable accuracy of knowledge is not attainable with- 
 out attending to the details, qualifications, and intricate 
 ramifications of the doctrines that make up the general 
 result.^ He who thinks he knows enough of the outlines 
 to keep himself right, and to be a trusty counsellor to his 
 neighbours in matters of great pith and moment, has often 
 to recur to recondite principles, and draw many distinc- 
 tions of detail once conspicuous but now forgotten. Of 
 all' the subjects that most closely touch the individual 
 citizen and come home to his business and bosom, none 
 can be compared to the Liberty of Speech both in public 
 and private, and the Liberty of Worshipping in peace 
 
 ^ "The reason of the law is the life of the law, for though a 
 man can tell the law, yet if he know not the reason thereof, he 
 shall soon forget his superficial knowledge." — Co. Lift 183b. 
 " General laws are indeed very comprehensive, soon learned, and 
 easily digested into method ; but when they come to particular ap- 
 plication, they are of little service, and leave a great latitude to 
 partiality, interest and variety of apprehensions to misapply them ; 
 not unlike the common notions in the moralist, which, .when both 
 the contesting Grecian captains most perfectly agree, yet 
 from them each deduced conclusions in the particular case in 
 controversy suitable to their several desires and ends though ex- 
 tremely contradictory each to other. It hath therefore always 
 been the wisdom and happiness of the English Goverament not to 
 rest in generals, but to prevent arbitrariness and uncertainty by 
 particular laws fitted almost to all particular occasions." — Hale, 
 C. J., Pre/. Boll. Air. 
 
PREFACE. 
 
 according to his own conscience. All restrictions on these 
 primary rights are vexatious and often futile, unless 
 they are shown to be absolutely essential to enable 
 each to attain the maximum of positive enjoyment with a 
 minimum of risk and deprivation. All admit that the 
 Press is the sentinel of the constitution, and, with its 
 hundred eyes, promptly detects when the functions of 
 self-government are not kept in their proper bearings, 
 and in the highest state of efficiency. It is part of the 
 people's prerogative, "broad and general as the casing 
 air" which each citizen breathes, and Englishmen can- 
 not contemplate in the distant future a period of time 
 when this great organ, which thinks aloud for them all, 
 shall be stifled.^ 
 
 The present volume, exhibiting in detail these two 
 divisions of the law in which English liberty is nearly at 
 its best, and has long acquired most of its renown, will 
 set forth how far the law has been allowed to go in its 
 restrictions, or rather, how far the law has been cut down 
 in laying its impediments on Eree Speech and Thought, 
 and on a Free Press, and on the Freedom of Public 
 "Worship. It M'ill show how far each individual is pro- 
 tected in his own personal enjoyment of those rights, and 
 to what extent he can be punished for violating the equal 
 rights of his neighbours. Everything of importance re- 
 lating to Public Meetings, Sedition, Liberty of the Press, 
 
 ^ " To prevent men thinking and acting for themselves by restraints 
 on the press is Hke the exploits of that gallant man who thought to 
 pound up the crows by shutting his park gates." — Milton's Areop. 
 " If our boasted Liberty of the Press were to consist only in the 
 liberty to write in the praise of the Constitution, this is a liberty 
 enjoyed under many arbitrary governments." — L. Stanhope, cited 
 Ersh. Sp, (R. V Paine). 
 
PREFACE. 
 
 Libel, Privilege of Parliament, Contempt of Court, Copy- 
 right and Patent right, the rights and duties as well as the 
 position and property of the Clergy and of Dissenters, and 
 their mutual Toleration is here treated ; and the treatment 
 of these subjects makes a group complete in itself. 
 
 J. P. 
 
 Goldsmith Building, TEMrLE, 
 May, 1880. 
 
CONCISE OUTLINE OF SUBJECTS. 
 
 DIVISION OF THE LAW RELATING TO THE SECURITY 
 OF THOUGHT, SPEECH, AND CHABAGTEB. 
 
 CHAP. PAGE 
 
 I. INTRODUCTION TO THIS DIVISION OP THE LAW .... 1 
 
 II. FREEDOM OF PUBLIC MEETINGS, ADDRESSES, AND PETI- 
 TIONS 19 
 
 III. FREEDOM OF THE PRESS, AND OF CORRESPONDENCE BY 
 
 POST 38 
 
 IV. RESTRICTION ON THE PRESS AND SPEECH AS REGARDS 
 
 BLASPHEMY AND IMMORALITY 61 
 
 V. ABUSE OF FREE SPEECH BY SEDITIOUS WORDS AND 
 
 WRITINGS 73 
 
 VI. LIBELS ON PARLIAMENT AND RIGHT TO PUBLISH PARLIA- 
 MENTARY DEBATES 105 
 
 VII. LIBELS AND COMMENTS ON COURTS OF JUSTICE, REPORTS 
 
 OF TRIALS, AND COMMENTS ON PUBLIC MATTERS . . 121 
 
 VIII. ABUSE OF SPEECH AND WRITING BY DEFAMATION . . . 141 
 
 IX. THE CHARACTERISTICS OF LIBELS AND EXCUSABLE 
 
 LIBELS 163 
 
 X. THE REMEDIES FOR LIBEL BY CRIMINAL AND CIVIL PRO- 
 CEEDINGS . . ■ 207 
 
 Xl. COPYRIGHT 
 
 241 
 
 XIL PATENT RIGHT AND TRADE MARK 318 
 
 h 
 
CONCISE OUTLINE OP SUBJECTS. 
 
 DIVISION OF THE LAW RELATING TO THE 
 SECURITY OF PUBLIC WORSHIP. 
 
 CHAP. • I'AGE 
 
 I. THE TENDENCY TO PUBLIC WORSHIP " AND THE LAWS AS 
 
 TO SITNDAT PROFANE SWEARINft AND WITCHCRAFT . 349 
 
 II. MEANING OF WORDS AND PHRASES RELATING TO THE 
 
 CHURCH AND CONVOCATION 370 
 
 ni. PARISHES, BENEFICES, ADVOWSONS, AND SIMONY . . . 389 
 
 IV. ORDERS OF BISHOPS, PRIESTS, AND DEACONS, AND INSTI- 
 TUTION INTO BENEFICES 406 
 
 V. THE PROPERTY OF THE PARISH CHURCH AND INCUMBENT'S 
 
 RESIDENCE 427 
 
 VI. MAINTENANCE OF THE CLERGY AND THEIR TITHES . . 447 
 
 VII. THE DUTIES, DISABILITIES, EXEMPTIONS, AND PRIVI- 
 LEGES OF THE CLERGY 470 
 
 VIII. OFFENCES AND PUNISHMENTS OF THE CLERGY .... 491 
 
 IX. TOLERATION AND DISSENTERS 515 
 
CONTENTS. 
 
 DIVISION" OF THE LA.W AS TO THE SECUEITY 
 OP THOUGHT, SPEECH AND CHARACTER. 
 
 CHAPTER T. 
 
 INTEODTTCTION TO THIS DIVISION OF TfiE LAW. 
 
 Natural tendency to indulge in free speech 
 
 Essential restraints to free, speech on public grounds . . 
 Restraints on free speech on ground of defamation . . 
 Natural tendency to acquire character and reputation 
 Personal character likened to a species of property . . 
 Security of character and reputation protected by law . 
 When protection of character is preferred to free speech 
 Chief medium of thought is speech and writing . . . 
 Double aspect of the exercise of free speech .... 
 Freedom of thought as developed in public meetings . . 
 Freedom of thought in lecturing and addressing audiences 
 Freedom of petitioning the Crown and Parliament . . 
 Liberty of the press restricted like free speech .... 
 Freedom of thought viewed as a property and as copyright 
 Freedom of thought viewed as patent right and trade mark 
 Arrangements of chapters in this division 
 
 PAOB 
 
 5 
 6 
 6 
 7 
 8 
 9 
 
 10 
 11 
 12 
 13 
 13 
 14 
 14 
 16 
 17 
 
 CHAPTER II. 
 
 FEEBDOM OF PUBLIC MEETINGS AND ADDRESSES AND PETITIONS. 
 
 Freedom of public meetings 19 
 
 Places of public meeting how far restricted 21 
 
 Right to hold public meetings in public parks 22 
 
 Restrictions on public meetings according to subject matter . 23 
 
 Public meetings within a mile of Houses of Parliament ... 24 
 
 Societies and clubs having unlawful objects and oaths ... 24 
 
 Debating societies 26 
 
 Protection of public meetings against disturbance .... 27 
 
 6 2 
 
CONTENTS. 
 
 PAOa 
 
 Restrictions on places for lectures and addresses 29 
 
 Right to petition Grown and Parliament 30 
 
 Statute relating to meetings to petition Crown and Parliament 32_ 
 
 Subject matter of petitions to Parliament 32 
 
 Petitions to Crown and Parliament must be respectful ... 34 
 
 CHAPTER III. 
 
 FREEDOM or THE PKESS AND OP COKRESPONDENCB BY POST. 
 
 Liberty of the press .and its defipitiop 38 
 
 Liberty of the press the greatest of all liberties 41 
 
 The ancients on free speech and thought 42 
 
 Early restrictions as to number of printers 43 
 
 Restrictions on printers as to keeping copies and putting their 
 
 names on papers 45 
 
 Printers' contracts and custom of trade 48 
 
 Registration of printing presses 49 
 
 Early practice as to censorship of the press 50 
 
 Early doctrines as to the publication of news 52 
 
 Oldest statute laws as to fe,lse news 53 
 
 Right to publish news generally 54 
 
 Maliciously publishing what is known to be false 56 
 
 Special laws as to newspapers . . . . , 56 
 
 Freedom to publish newspapers, and how far they are ciipable 
 
 of suppression 57 
 
 Postage facilities for newspapers 58 
 
 Advertisements to recover stolen property 69 
 
 Security of post-office letters 59 
 
 Post letters may be opened by Secretary of State ...... 60 
 
 CHAPTER IV. 
 
 EESTKICTIONS ON THE PRESS A2JD SPEECH AS REGARDS BLASPHEMY 
 AND IMMORALITY. 
 
 Blasphemous words and publications 61 
 
 Apostasy as a crime 62 
 
 Early statutes against blasphemy 63 
 
 The existing statute against blasphemy .64 
 
 Statute does not repeal common law against blasplicmy ... 65 
 
 Remedy against blasphemies 67 
 
 Punishment of blasphemy 68 
 
 Immoral and obscene publications 69 
 
 Attempted definition of immoral and obscene writing ... 70 
 
 Seizure and destruction of obscene publications 70 
 
 Punishment for immoral or obscsne libels 71 
 
CONTENTS. 
 
 CHAPTER V. 
 
 ABUSE OE FREE SPEECH BY SEDITIOUS IVOEDS AND WRITINGS. 
 
 PAGE 
 
 Sedition generally , . 73 
 
 Eight of the subject to comment on public affairs ..... 75 
 
 Views of the ancients about public opinion . 76 
 
 Early views as to comments on public afiairs ....... 77 
 
 How far a seditious libel can be defined 80 
 
 What is the essence of seditious libel 81 
 
 Importance of juries in deiining seditious libels 83 
 
 Proclamations of the Crown as to seditious meetings .... 84 
 
 Sedition at public meetings 85 
 
 Libels on the Sovereign 86 
 
 The older doctrines as to speaking against the Sovereign . . 87 
 
 Modern cases as to seditious writings against the Sovereign . 89 
 
 Recent statutes against intimidating the Sovereign .... 91 
 
 Libels on Ministers of State 92 
 
 Libels on the constitution 95 
 
 Som« examples of libelfe against the constitution ..... 96 
 
 Arresting publishers of seditious aiid blasphemous libel ... 97 
 
 Remedy by ex officio information of Attorney- General for sedition 99 
 
 Procedure in the ex officio information 101 
 
 Policy of ex officio informations , 102 
 
 punishment for seditious libel 103 
 
 CHAPTER VI. 
 
 LIBELS ON PARLIAMENT AND RIGHT TO PUBLISH PARLIAMENTARY 
 DEBATES. 
 
 Peculiarity of libels on Parliament 105 
 
 The privilege of Parliament 106 
 
 Jurisdiction of Parliament and courts of law contrasted . . • 107 
 
 Early instances of Parliament exercising its privileges . . . 109 
 
 The powet of committal for breach of privilege 110 
 
 Instances of libellous comments being breaches of privilege . 112 
 
 Other modes of punishing a breach of privilege 114 
 
 Publishing Parliamentary debates at first treated as breach of 
 
 privilege 115 
 
 Newspaper reports of debates now permitted by Parliament . 117 
 
 Punishment for breach of privilege .......... 119 
 
CONTENTS. 
 
 CHAPTER VII. 
 
 LIBELS AND COMMENTS ON GOHRTS OF JUSTICE, BEPOETS 01" TRIALS, 
 AND COMMENTS ON PUBLIC MATTERS. 
 
 PAGE 
 
 Contempt of court by interfering with the business .... 121 
 
 Fair comments on the judgments and conduct of judges . . 124 
 
 The right of the public to enter courts of justice 125 
 
 Eight to publish reports of courts of justice 126 
 
 When published reports of trials are treated as contempts . . 127 
 
 ■ Publishing reports of a trial which occupies many days . . . 129 
 
 What is a court of justice 130 
 
 Eeports of exparte proceedings in courts of law 130 
 
 Eeports of applications to courts which have no jurisdiction to 
 
 entertain them 131 
 
 Reports of trials must be fair and without comments 
 
 interspersed , 131 
 
 How far the report must be verbatim or abridged 132 
 
 How far contempt punishable if act is done out of court . . 133 
 
 What courts can commit for this contempt , 134 
 
 Punishment for contempt 135 
 
 Contempt of inferior judges and courts 136 
 
 Comments on conduct of public officers 136 
 
 Comments on private persons who challenge or invite public 
 
 notice 137 
 
 Comments and criticisms of books, pictures, &c 138 
 
 CHAPTER VIII. 
 
 ABUSE OF FREE SPEECH BY DEFAMATION. 
 
 Libels on personal reputation 141 
 
 Difficulties in defining personal libel and slander 142 
 
 Definition of libel and slander of individuals , 144 
 
 Distinction between libel and slander 144 
 
 Practical efEect of distinction between libel and slander. . . 146 
 
 Distinction between slandering and scolding 147 
 
 Threait to publish a libel 148 
 
 Libel viewed as constructive breach of peace ...... 148 
 
 How far malice is an ingredient in libel 149 
 
 Construction of the libel or slander 161 
 
 The medium of the libellous act 162 
 
 Libelling classes of persons, corporations, and firms .... 158 
 
 Libels on the dead 164 
 
 What kind of publication necessary for slander and libel . . 166 
 
 Whether publication is per se the crime of libel 167 
 
 Mode of proving publication of libel 168 
 
CONTENTS. 
 
 PAGE 
 
 Liability of bookseller and shopkeeper for libel 159 
 
 Liability of proprietor of newspaper for libel 160 
 
 Publishers and booksellers of defamatory libels may in some 
 
 cases escape liability 161 
 
 Liability of third party for causing libel to be published . . 162 
 
 CHAPTER IX. 
 
 THE CHAEACTBEISTIOS OF LIBEL AND EXCUSABLE LIBEL. 
 
 Contents'of a slander or libel 163 
 
 Libel or slander imputing a crime 163 
 
 If the ofience imputed is past and punished 165 
 
 Imputation of what was once an offence but not now one . . 166 
 
 Libel imputing impossible crime 166 
 
 Imputation of attempt to commit crime 167 
 
 Words not clearly imputing definite crime 167 
 
 Libel calling scurrilous names 168 
 
 Libels exposing to hatred, contempt> or ridicule 169 
 
 Slander imputing immorality or unchastity 172 
 
 The kind of special damage following a charge of immorality 173 
 
 Slander of chastity causing special damage 174 
 
 If words imputing unchastity are written then' they are 
 
 actionable . . . . 175 
 
 Slander and libel of professional misconduct or incompetency 175 
 
 Rival tradesmen libelling each other 178 
 
 Befaming one holding public or honorary office 179 
 
 Defaming one holding ofBce of profit 180 
 
 Action of scandalum magnatum 180 
 
 Liability for repeating a slander or libel 182 
 
 Excusable libels on privileged occasions . 184 
 
 Misuse of words " privileged occasion," "privileged commu- 
 nication" 184 
 
 Excuse of libel in giving servant's character 186 
 
 Excuse of slander and libel as between those confidentially 
 
 related 189 
 
 Excuse of libel in protecting pecuniary interests 191 
 
 A privileged occasion must not be abused to cloak malice . . 192 
 
 Libellous complaints to official superiors of a party .... 193 
 
 Excuse of slander and libel in judicial proceedings . . . . 195, 
 
 Excusable slander by justices of the peace and others . . . 197 
 
 Excuse of libel in publishing speech delivered in Parliament . 197 
 
 Excuse of libel in publishing Parliamentary papers .... 199 
 Mode in which Parliament protects against courts of law its 
 
 publication of official papers 200 
 
 Conflict of courts of law and Parliament ended by statute . . 203 
 
 Excuse of .libel in publishing reports of legal proceedings . . 203 
 
 Excuse of libel in publishing reports of public meetings . . 204 
 
 Slandering from the pulpit 206 
 
contents: 
 
 CHAPTBE X. 
 
 ■ THE EEMEDIES FOE LIBEL BY CEIMINAL AND CIVIL PROCEEDINGS. 
 
 PAGE 
 
 Remedies for libel 207 
 
 Old remedy in ecclesiastical court 208 
 
 The remedy by criminal information 208 
 
 Conditions of granting criminal informations 208 
 
 Indictment for libel and charge before justices 210 
 
 Preliminary hearing before justices 211 
 
 , Arrest of libeller by judge's -warrant '212 
 
 Form of trial of indictment or information for libel .... '213 
 How far truth of libel is defence in criminal proceedings . . 213 
 Defence of publication by reason of public benefit .... 215 
 Effect of not contradicting promptly or prosecuting for de- 
 famation 216 
 
 Functions of juries in deciding on libel cases 217 
 
 Nature of contentions as to judges' ruling before Fox's Act. . 217 
 
 Unsatisfactory state of law before Fox's Act 219 
 
 Modern practice since Fox's Act as to functions of juries in 
 
 libel cases 220 
 
 Functions of judge in criminal trial for libel 222 
 
 Finality of verdict of jury on indictment 222 
 
 The punishment of libel ., 223 
 
 Mitigation of punishment for libel 226 
 
 Security for good behaviour part of punishment 226 
 
 Seizing and destroying blasphemous and seditious libels . . 228 
 
 Ordering libel to be burnt 228 
 
 No summary remedy or injunction for libel 230 
 
 Costs in criminal prosecutions for libel 230 
 
 Remedy for slander or libel by action of damages 232 
 
 The pleadings in actions for libel 233 
 
 The defence to action that libel is true 234 
 
 When libel is said to be substantially true 236 
 
 Interrogatories and evidence in cases of libel 237 
 
 Defence for libels in newspapers 237 
 
 Functions of the judge in trials of actions for libel .... 238 
 
 Damages in actions for libel 239 
 
 Limitation of time for bringing actions for libel 239 
 
 Costs in actions for libel and slander 240 
 
 CHAPTER XI. 
 
 COPyEIGHT. 
 
 First notions of copyright in English law 241 
 
 First Copyright Act of Anne in 1709 243 
 
 Practical effect of the Copyright Acts on authors 245 
 
 Progress of early decisions as to common law copyright. . . 246 
 
CONTENTS. XXV 
 
 PAGH 
 
 Reasons why copyright does not differ from other rights . . 248 
 
 Reasons alleged for confiscating author's copyright .... 249 
 
 What is meant by perpetual copyright at common law . . . 251 
 
 Copyright as easily identified as other property 252 
 
 Chief causes of the differences between early judges as to 
 
 copyright 254 
 
 False analogies in early treatment of copyright 255 
 
 .Nature of copyright in MS. -frorks 268 
 
 Lending copies of MS. works to friends 258 
 
 Copyright in MS. assignable 260 
 
 If there can be dedication of MS. to public 261 
 
 Publishing MS. against owner' s will 262 
 
 Benkruptcy of owner of MS. . . 4 263 
 
 Copyright in lectures and addresses 265 
 
 Right of property in unpublished letters 266 
 
 Whether letters are joint property of writer and correspondent 268 
 
 Publishing letters without writer's consent . 270 
 
 Copyright in letters to newspapers, oflScials,&c 270 
 
 Who is an author and what is literature 271 
 
 First publication in United Kingdom 272 
 
 International copyright Acts 272 
 
 Fixing price of book and compelling re-publication .... 274 
 
 What is a book under copyright Acts 274 
 
 ■Copyright in newspapers 275 
 
 If MS. or book is immoral, blasphemous, or seditious . . . 276 
 
 The date of publication 277 
 
 Registering book under copyright Acts 278 
 
 Assignment of copyright in printed books 279 
 
 When author has not the radical copyright 281 
 
 Crown copyrights 281 
 
 University copyrights 283 
 
 Crown copyright in translation of Bible 284 
 
 Crown copyright in statutes and proclamations 285 
 
 Copyright in law books 285 
 
 . Copyright in reports of cases in courts of justice 286 
 
 ' Infringement of copyright generally 287 
 
 Copyright in directories and quasi mechanical books .... 289 
 
 Infringement of copjTight by books on same subject. . . . 290 
 
 Infringement by copying title of book 290 
 
 Infringement of copyright by way of a review 291 
 
 Infringement of copyright by adding notes 291 
 
 Infringement by way of abridgment 292 
 
 Infringement by importation of pirated copies 293 
 
 Interference of copyright by reciting or dramatizing. . . . 294 
 
 Remedy by action for infringement of copyright 295 
 
 Remedy by way of penalties for infringement 297 
 
 Injunction as a remedy for infringement 297 
 
 . Copyright in periodicals and contributions thereto 299 
 
 Peculiarities in contracts with authors 300 
 
 Copyright in dramas . . ' 301 
 
 Assignment of right of representing dramas 303 
 
CONTENTS. 
 
 FAOE 
 
 Infringement of right of representing dramas 304 
 
 Censorship of plays still retained 305 
 
 Regulations as to places where plays are performed .... 307 
 
 Licenses to keep theatres 309 
 
 Right of public to applaud and hiss plays 310 
 
 Copyright in engravings "... 312 
 
 Copyright in paintings, drawings, and photographs .... 316 
 
 Copyright in sculptures . 316 
 
 Copyright in designs for ornament and utility 317 
 
 CHAPTER XII. 
 
 PATENT EIGHT AND TRADE MABK. 
 
 Patent right generally 318 
 
 Distinction between copyright and patent right 319 
 
 Confusion in early ideas of patent right 321 
 
 Definition of subject-matter of patent 323 
 
 Patent implies something corporeal and material 324 
 
 Novelty as an element of patent 325 
 
 Utility as an ingredient of patent 327 
 
 Prior publication, or user of patent 327 
 
 Defence that patentee not first inventor 329 
 
 Patent including several distinct things 329 
 
 Patent as a joint invention 330 
 
 Patent for a principle or process 330 
 
 Requirements of the specification of patent 331 
 
 Registration of patents- 334 
 
 Assignment of patent rights ... 334 
 
 Distinction between assignment and license to use 335 
 
 Relation between patentee and his licensee ... ... 335 
 
 Infringement of patent 336 
 
 Injunction against infringement of patent 337 
 
 Questions for jury on trial of patent cases .... . . 338 
 
 Extending, altering and repealing patent .... ... 339 
 
 Object and origin of trade mark 340 
 
 Trade mark distinguished fi'om patent 341 
 
 Use of trade mark is to identify maker of goods 341 
 
 Infringement of trade mark not necessarily fraudulent . . . 342 
 
 Registration of trade marks 343 
 
 Usual characteristics of trade mark 344 
 
 Trade mark part of good will ' 344 
 
 Trade mark usually protected by injunction 344 
 
 OfEences as to trade marks 345 
 
CONTENTS. 
 
 DIVISION OF THE LAW AS TO THE SECURITY OF 
 PUBLIC WORSHIP. 
 
 CHAPTER I. 
 
 THE TENDENCY TO PUBLIC WORSHIP AND THE LAWS AS TO SUNDAY, 
 PBOFANE SWEARINO AND WITCHCRAFT. 
 
 PAGE 
 
 Tendency to public worship 349 
 
 Ecclesiastical laws subject to amendment 350 
 
 Laws of God and Christianity as part of the law 351 
 
 Profanation of the Sabbath generally 362 
 
 Early English laws relating to Sunday 354 
 
 General work and selling of goods on Sunday 356 
 
 Work of one's ordinary calling 356 
 
 Travelling on Sunday 358 
 
 Sports and games on Sunday , 369 
 
 Legal business on Sunday 360 
 
 Houses of entertainment and debating societies on Sunday . . 361 
 
 Opening of public houses on Sunday 363 
 
 Offence of profane swearing 364 
 
 Extent of punishment for swearing 365 
 
 Witchcraft and fortune telling 367 
 
 CHAPTER II. 
 
 MEANING OF WORDS AND PHRASES RELATING TO THE CHURCH 
 AND CONVOCATION. 
 
 Early confusion about Papal jurisdiction 370 
 
 Meaning of words " Church and State " 371 
 
 Supposed alliance between Church and State 372 
 
 Alleged submission of the clergy 372 
 
 Royal supremacy in Church affairs 374 
 
 Meaning of words ''Church" and "Protestant Episcopal 
 
 Church" 376 
 
 Doctrines of Church, how far protected by law 378 
 
 Alleged divine origin of canon law 379 
 
 Meetings of clergy in councOs'and convocations 380 
 
 Power of convocation as to canons . 382 
 
 Power of convocation to make new canons 384 
 
 Convocation as a means of checking heresy 386 
 
 General control of Church property and Ecclesiastical Com- 
 missioners 387 
 
CONTENTS. 
 
 CHAPTEE III. 
 
 PABISHIS, BENEFICES,, ADVOWSONS AND SIMONY. 
 
 PAGE 
 
 Origin of parishes 389 
 
 Origin of advowsons or right of presentation to benefices . . 390 
 
 Advowson as an appurtenant to land 391 
 
 Alienation and sale of advowsons 392 
 
 Death of owner of advowson or presentation 393 
 
 Advowsons of Corporations, the Crown, and Papists .... 395 
 
 Advowsons as donatives .397 
 
 OfEence of simony as to presentations ^ 398 
 
 Statutes prohibiting and punishing simony 399 
 
 Sale of advowson or presentation while incumbent in dying 
 
 state ' 400 
 
 Practice of resignation bonds 401 
 
 Remedy in case of simony 403 
 
 Vacancy and exchange of benefices < . v . 404 
 
 CHAPTEE IVj 
 
 f — 
 
 OBDEKS^OF BISHOPS, PRIESTS, AND DEACONS, AJfD INSTITnTION INTO 
 BENEFICES. 
 
 A separate order of priests 406 
 
 Bishops and their original mode of appointment 407 
 
 Form of appointment by cong6 d'^lire 409 
 
 Bishops as Peers of Parliament 410 
 
 Powers and duties of bishops 411 
 
 Deans and chapters, prebendaries, &c 414 
 
 Archdeacons and rural deans 415 
 
 Perpetual curates and chapels of ease 416 
 
 Compulsory employment of curates 417 
 
 Lecturers 419 
 
 Qualifications of priests .•...■... 420 
 
 Presentation of priests to a beneffice .• . . . 421 
 
 ritness of presentee for institution 422 
 
 Ordination of priests and their learning v . . 423 
 
 Institution and induction of presentee 425 
 
CONTENTS. 
 
 CHAPTER V, 
 
 THE PEOPEBTT IN THE PARISH CHUROH AND INCUMBENT'S EESIDENCE. 
 
 PAGB 
 
 Parson's freehold estate in the church 427 
 
 Consecration of churches 428 
 
 Repairs of church and church rates 429 
 
 Church bells, organ, and holy table 430 
 
 Ornaments in churches 431 
 
 Monuments and tombs in church and churchyard 432 
 
 Sacrilege 434 
 
 Duties of churchwardens as to fabric of church 434 
 
 Churchwarden's duty as to pews .... 435 
 
 Miscellaneous functions of parishes and vestries 437 
 
 Residence of clergy and repairs thereof 438 
 
 Governors of Queen Anne's Bounty 439 
 
 License for new residence 440 
 
 Dilapidations in ecclesiastical property 441 
 
 ©bligation to keep in repair clergy house 441 
 
 Modern remedy for dilapidations 448 
 
 Letting and alienation of clergy houses 443 
 
 Pluralities in ecclesiastical livings 444 
 
 Union of benefices 445 
 
 CHAPTER VI. 
 
 MAINTENANCE OF THE CLEBGT AND THEIR TITHES. 
 
 Origin of tithe and its development as a tax 447 
 
 Tithes as a tax enforced by legislative power 448 
 
 Origin of the appropriation of tithes 460 
 
 Distinction of parsons into rectors and vicars as regards tithes 451 
 
 Common law relating to tithe . 453 
 
 Presumption of common law in favour of tithe 455 
 
 ' Different classes of tithes 456 
 
 Difficulties in applying law of tithes 456 
 
 What are tithable things and profits of land 466 
 
 Mode of recovery of tithe 468 
 
 Mode of setting out and delivery of tithe 468 
 
 Difficulties as to tithe of milk 460 
 
 Difficulties as to personal tithes [ 461 
 
 Modus substituted for tithe 461 
 
 Tithe Commutation Acts and rent charge 462 
 
 Finality of settlement of tithe rent charge . 463 
 
 Recovery of tithe rent charge by distress 465 
 
 Pensions, Easter dues, and fees as maintenance 466 
 
 Quakers and recovery of tities 467 
 
 Collecting alms in church 468 
 
CONTENTS. 
 
 CHAPTER VII. - 
 
 THE DUTIES, DISABILITIES, EXEMPTIONS AND PEIVILEGES OF 
 THE CLEEGY. 
 
 ■ PAGE 
 
 Duties of clergy towards the public 470 
 
 Uniformity in ceremonies of public worship 472 
 
 Mode .of worship fixed by statute 473 
 
 Sources of the law as to public worship 474 
 
 Details of public. worship how settled 475 
 
 Leading ceremonies in public worship .... . . . 476 
 
 Position of minister during worship 478 
 
 Vestments of the clergy 479 
 
 Clergy engaging in trade 480 
 
 Clergymen entering Parliament 481 
 
 Celiljacy of the clergy 482 
 
 Celibacy of clergy in England 484 
 
 Some recreations of the clergy restrained 486 
 
 Privileges and exemptions of clergy from taxes and duties. . 487 
 
 Offence of disturbing divine service 489 
 
 Eesignation of office of priest 489 
 
 CHAPTER VIII. 
 
 OFFENCES AND PUNISHMENTS OF THE CLERGY. 
 
 Jurisdiction of Ecclesiastical Courts generally 491 
 
 Ecclesiastical Courts watched by temporal courts ... . 494 
 
 Excesses of Ecclesiastical iurisdictions 495 
 
 Remedy under Church Discipline Act against clergy . . . 497 
 
 Clerical offence of schism. 498 
 
 Heresy 499 
 
 The punishment of heretics 501 
 
 OfEence of contravening thirty-nine articles 502 
 
 Duty of Courts in interpreting articles and Prayer-book. . . 503 
 
 Ofiences of immorality and drunkenness in clergy 504 
 
 Celebrating public worship in another parish or another chapel 505 
 
 Preaching in private houses and buildings 607 
 
 Various punishments of clergy 507 
 
 Excommunication as punishment 608 
 
 Suspension as punishment 609 
 
 Sequestration as punishment 610 
 
 Deprivation as a punishment 611 
 
 Punishment for contempt of Ecclesiastical Courts 611 
 
 Penance as a punishment 612 
 
 Peculiarities in ofEences of clergy 614 
 
CONTENTS. xxii 
 
 CHAPTER IX. 
 
 TOLERATION AND DISSENTERS. 
 
 FAOE 
 
 Intolerance is a law of nature 515 
 
 The ancients on toleration 516 
 
 The early Christians on toleration 517 
 
 English Statutes of Intolerance before William III 519 
 
 The Toleration Act of 1688 . . . . , 521 
 
 Progress of legislative toleration after William III 524 
 
 Progress of public opinion after Toleration Act 527 
 
 Dissenters' trust property and mode of preserving it . . . 529 
 
 Mode of interpreting dissenters' trust deeds 529 ■ 
 
 Dissenting congregations and their pastors 531 
 
 Dissenting congregations changing their creed or mode of 
 
 worship 532 
 
 Civil and religious freedom of dissenters and Churchmen . . 534 
 
 Quakers and Unitarians as dissenters 635 
 
 Eoman Catholics as dissenters . . 536 
 
 Popish recusants refusing to attend church . . .... 538 
 
 Romish priests and teachers 538 
 
 Oaths required from Roman Catholics 540 
 
 Roman Catholics holding property 540 
 
 Relief to Roman Catholics by degrees 541 
 
 Jesuits .... 543 
 
 Jews and their religion 545 
 
 Early expulsion of Jews from England 546 
 
 Contracts and property of the Jews ... 547 
 
 Civil and religious liberty of Jews ..." 548 
 
 Street preaching 549 
 
OF THE SECURITY OF 
 THOUGHT, SPEECH, AND CHARACTER. 
 
 H 
 
CHAPTEE I. 
 
 INTRODUCTION TO THIS DIVISION OF THE LAW ENTITULED 
 "THE SECURITY OF THOUGHT, SPEECH, AND CHAKACTEE." 
 
 Natural tendency to indulge in free speech. — 
 The faculty of rational speech, wliich distinguishes man 
 from the lower animals, keeps society together, and en- 
 ables the individual to work out the purposes of life 
 through all its varied circumstances and occupations. 
 While speech is the medium of the thoughts, the manner 
 in which the mlind works, and in which the various pas- 
 sions, affections, and desires are , communicated from one 
 to another, lies altogether beyond the domain of the law. 
 Governments in all stages of barbarism have feared and pro- 
 hibited speech, because it is the vehicle of combination and 
 resistance ; but while life endures, no physical contrivance 
 short of continuous torture has been found able to suppress 
 it. Thought is too subtle a power to be bafSed or invaded. 
 How language grows from the rude signs and noises of 
 savage life into a complex and varied scheme of sounds, 
 indicative of all the phases of refined sentiment and emo- 
 tion, may be a proper inquiry for philosophers. But by 
 the time society has advanced to the stage when human 
 occupations have become sufficiently subdivided to require 
 the protection of the law, language has been gradually 
 formed into a settled system of expression. The law ac-* 
 cordingly, when it confronts tlxis irrepressible tendency of 
 mankind to give expression to all their sentiments, desires, 
 and passions, finds it inevitable to search out some first 
 pi'inciple, and that principle is none other than this, that 
 Thought must, or ought to be, free, and Speech, being only 
 
 B 2 
 
4 LIBERTY OP PRESS AND SPEECH. [en. i. 
 
 the vehicle of thought, must equally he free. It is seen to 
 "^require no restriction, except in so far as its use may in 
 certain times and situations interfere with the equal 
 freedom of others in pursuing their varied avocations. 
 
 And yet this simple proposition, that thought and speech 
 are free has heen arrived at only after the painful experi- 
 ence of ages. Emperors, kings, parliaments, popes, and 
 synods all began with the barbarous notion, that somehow 
 free speech was a gift of their own to their subjects, and 
 so must be accepted on their own conditions. Their first 
 assumption was, that nobody should take the liberty to 
 have any thoughts or opinions of his own, but must wait 
 till some wise men of the time, or of the old time before 
 them, should dictate to him the right thing to say, and 
 even to think. The stubbornness of mankind constantly 
 surged and resurged against this treatment, and innumer- 
 able martyrs were obliged to have their hands or tongues 
 cut off, their bodies mangled and sawn asunder, or burnt 
 alive, before the experiment was worked out, as to which 
 of these two opposing forces was the master. Whether 
 this conflict is yet at an end everywhere, some govern- 
 ments at least have long ago surrendered, being satisfied 
 that they have met with a force which they can neither 
 conquer nor annihilate; and that at most they can only 
 regulate its exercise to a very small extent. They have 
 learnt that it is idle, impotent, and vain to continue the 
 conflict longer on the old basis ; and therefore they admit 
 that the primary right of all men is to think and say what 
 they like both about themselves and everybody else, and 
 for this simple and all-sufScient reason, that no power 
 known to mankind has been discovered strong enough to 
 \_compel them to abstain. All that remains is therefore to 
 see, in what directions and on what conditions the feeble 
 restraints left available can be brought to bear. And these 
 will be found varied, circuitous, manifold and cumulative.^ 
 
 ' Phillip II. of Spain said that a king was never more secure 
 from the malice,, of his people than when their discontents were 
 suffered to evaporate in complaint.— 1 WraxaU's Fr. 96. Socrates 
 said the sun could as easily be spared from the universe as free 
 speech from the liberal institutions of sooiaiy. —Apud Stoh. Eth. xiii. 
 TiMOLEON said the end of all his achievements against tyrants was 
 to secure free speech to the meanest citizen.— Corn. Nep. xx. 5, 23. 
 
CH. I.] EESTEAINTS ON FREE SPEECH. 6 
 
 Essential restraints to free speech on public grounds. 
 — The restraints which confine the natural liberty of 
 speech will be found ranged under four great heads of 
 blasphemy, immorality, sedition, and defamation. There 
 are bounds to be set to the expression of thoughts and 
 opinions, and these must rest on the fundamental prin- 
 ciples on which aU societies are founded. It is assumed 
 that there is a God in whom all citizens in their gravest 
 moods are so interested, that it becomes offensive to all the 
 rest if any one speaks of Him publicly in a scurrilous and 
 contemptuous tone, such as would in a subject provoke a 
 breach of the peace. Hence the first limit to free speech 
 is Blasphemy. There are also rules of morality which are 
 so universal, and so underlie the conscience of every indi- 
 vidual, that speeches and writings which treat these rules 
 with, public contempt, and sap and mine the simple faith 
 in all that is good, noble, and worthy, are also deemed a 
 species of constructive breach of the peace too irritating 
 to be allowed. Hence another limit to free speech and 
 writing is Immorality. Again, there are rules of good con- 
 duct founded on the general duty of all citizens to support 
 the government under which they live, and if possible to 
 insure due respect and fair treatment to its leading admin- 
 istrators. Hence gross contempt of all laws and violent 
 menaces of revolt against such guardians must not be 
 allowed, for these necessarily discompose every citizen, and 
 perplex him with fear of change or fear of public disaster 
 and anarchy. And when this last head is still further 
 examined, it will appear that the great factors of Govern- 
 ment, consisting' of the Sovereign, the Parliament, the 
 Ministers of state, the Courts of Justice, must all be recog- 
 nised as holding functions founded on sound principles, 
 and to be defended and treated with an established and 
 well-nigh unalterable respect. Each of these great insti- 
 tutions has peculiar virtues and peculiar weaknesses ; but 
 whether at any one time the virtue or the weakness 
 predominates, there must be a certain standard of decorum 
 reserved for all. Each guarded remonstrance, each fiery 
 invective, each burst of indignation must rest on some 
 basis of respect and deference towards the depository for 
 the time being of every great constitutional function. 
 Hence another limit to free speech and writing is Sedition. 
 
6 LIBERTY dF PRESS AND SPEECH. [ch. r. 
 
 And yet within that limit there is ample room and 
 verge enough for the, freest use of the tongue and pen in 
 passing strictures on the judgment and conduct of every 
 constituted authority. 
 
 Restraints of free speech on grownd of defama- 
 tion. — While the restrictions already mentioned, which 
 are founded on blasphemy, immorality, and sedition, show 
 the boundaries of free speech and thought as affecting the 
 public generally, there is a fourth limit on the other side 
 as affecting individuals, known under the head of Libel, or 
 the invasion of the reputation of private persons. . This 
 last limit involves the necessity of at once tracing the 
 origin of that tendency of the individual to acquire such 
 reputation and the value it possesses in his eyes, for it is 
 here that the exercise of one natural right clashes directly 
 with the exercise of another, and both are equally natural 
 and equally inevitable. 
 
 Natural tendency to acquire character a/nd reputa- 
 tion. — A survey of the worldly career of each individual 
 from youth to age makes it fully apparent that all the 
 keenest aspirations and desires of the individual are best 
 attained in proportion to the greater influence he acquires 
 over his fellow men. The mode in which this iiifluence is 
 acquired and its presence felt is by creating in others a 
 belief that he is possessed of integrity,- truthfulness, and 
 other virtues of social life. These are usually denoted by 
 one compendious word — the character or reputation of 
 the individual — the possession of which character is a self- 
 satisfying and legitimate source of happiness . in itself, an 
 essential feature of existence in all phases of civilisation.^ 
 
 ' " It never can or -will be disputed that a man is entitled to that 
 tranquillitj', liappiness, and peace of mind which is the result of an 
 honourable reputation, provided his conduct in life entitles him to 
 it. There is implanted in every man's bosom an invincible sensibility 
 to the opinion of his fellow creatures, which nothing can destroy. 
 It is the foundation of all patriotism, the sentiment which rears 
 ■states from infancy to maturity —tlie principle that makes men 
 struggle for distinction and keeps them in the straight paths of 
 their duty when called to the high offices of magistracy. The laws 
 of society therefore protect mankind in this dearest of all human 
 blessings ; and if any man writes of another that which is injurious 
 to him in his trade, profession, or character, or which tends to ex- 
 pose him to penalties, or brings him into contempt, it is libellous, 
 
OH. I.] CHARACTER HOW ACQUIRED. 7 
 
 Personal character likened to a species of property 
 — The law, which so often looks upon the acquisition and 
 retention of the power of dealing with property as the 
 great object and business of life, and of its own primary- 
 care, is never so well satisfied with its solution of a ditfi- 
 culty as when it can liken all other objects of its regard to 
 a species of property, which can be seen, and handled, and 
 weighed. Hence it is a familiar expression, that a man 
 has a species of property in his own body and limbs, or in 
 the health of his constitution, or in the thoughts of hia 
 brain. In the same sense he is said also to have a species 
 of property in his own character and reputation, and it is 
 because this consciousness is a valuable possession that the 
 law will encourage and protect it against attacks.^ These 
 figures of speech assist in explaining what is unknown by 
 some analogy to what is known and familiar. As a man 
 in the course of his life accumulates property or a stock 
 'in trade, which is the source of his satisfaction, so in the 
 course of his conduct he displays a certain combination of 
 habitual qualities which give third parties the means of 
 forming an estimate of his mind and the extent of his 
 power. This estimate is nothing else than his character or 
 reputation. So long as a definite character is ascribed by 
 common observation to his name and person, it acts upon 
 the rest of the world as a means of happiness to him, with 
 the same certainty and regularity]as a stock of material and 
 visible property always does in increasing one's business 
 and wealth. The consciousness of possessing, or, which 
 is the same thing, of conducting himself in such a manner 
 as to retain, this character, is a fund of positive social 
 enjoyment which the law gives credit to every individual 
 for possessing or desiring to possess— a primary element of 
 human nature incapable of being analysed into anything 
 simpler. In short, eveiy man as a good citizen is presumed 
 by the law to be anxious to acquire and keep such character, 
 
 and the law deems it an object of penal animadversion." — Ershvne; 
 (arg.) R. v. Cobbett, 29 St. Tr. 6.S. 
 
 " The individual, by the combination of opinion and the force of 
 charauter, begets in his own reputation a property more valuable 
 than the brute materials to which the crude notions of property are 
 first applied."— £. Ahinger {arg.) Mem. 284. 
 
 1 De Crespigny v. Wellesley, 5 Bing. 392. 
 
8 LIBERTY OF PRESS AND SPEECH. [ch. i 
 
 and even the appearance of it. The constituents of a 
 good character are various, and include every oombinatiou 
 of virtues which a human being is capable of attaining. 
 Integrity, veracity, generosity, charity, industry, patriotism 
 and religious zeal may enhance the character of individuals 
 in actual life, but these qualities are too ethereal and re- 
 fined to be either created, retained, or enforced by the law. 
 The law can neither give nor take away these and other 
 high attainments which go to the composition of the 
 worthiest citizens. The law sets to itself a much coarser 
 standard. It views the character of an individual as just 
 good enough, and no more than suffices, for acquiring or 
 retaining property, or influence over others, and (which is 
 generally the same thing) as a means of livelihood. It 
 gives credit to every individual for a desire to avoid break- 
 ing its own injunctions — more especially the leading rules 
 against treason, murder, larceny, and other indictable 
 offences, for no well-affected citizen would associate with 
 those who break primary laws, and who are, or ought to 
 be, on that account his natural enemies. In addition to 
 this negative virtue, the law also takes notice of other 
 virtues which are involved in ordinary social life. In 
 short, it gives credit to each individual for a desire to 
 retain the good opinion of his fellow men, and to practise 
 the common virtues, for in this lies the source of all his 
 influence over others for the furtherance of his own objects, 
 and every man must have personal objects of some kind, 
 worthy or less worthy. 
 
 Security of cha/racter and reputation protected hy 
 law. — Hence, if any one imputes to another the commis- 
 sion of an act which would amount to an indictable 
 offence, or which implies the absence of some every-day 
 virtue, and so tends to cause one to be shunned by good 
 citizens in matters of business or pleasure, these are all 
 viewed by the law as attacks on the funded reputation of 
 the individual, and as a despoiling him of something 
 valuable, which, the law will assist in checking by its 
 usual machinery of informations, indictments, and actions. 
 When a man is shunned and distrusted in the leading 
 affairs of life, he loses the means by which he acquires 
 and retains influence, wealth, and happiness. And yet 
 mistakes may be made on both sides. Hypocrisy and 
 
r,H. I.] REPUTATION PROTECTED BY LAW. 9 
 
 fraud may be covered with a show of virtue, while 
 malignity; envy, and unscrupulousness, as often as a 
 wholesome zeal for honesty, may seek to tear off the mask 
 and denounce the pretender. It is honourable to enjoy and 
 defend reputation, as it is also honourable and pleasant 
 to denounce hypocrisy and imposture. Both are honour- 
 able, but when they cannot both be had at one and the 
 same moment, on one and the same subject matter, the 
 law is bound to make a choice, and it naturally prefers 
 him who defends his possession of reputation- against him 
 who at most • is only indulging his freedom of speech 
 about somebody else. The one right lies closer to one's 
 thoughts and has more of the positive ; the other is mostly 
 only a negative deprivation. Hence, whenever reputation 
 is attacked, the law sides with its possessor against the 
 mere exercLse of free speech. But when it can be shown 
 that he who- exercised this free speech was in reality in 
 the pursuit of his own immediate b-usiness and interest, 
 which to him was all in all, and as valuable as any other 
 person's reputation, then the law again changes sides, and 
 holds that he, whois lawfully pursuing his own immediate 
 interests, and to whom freedom of speech is essential to 
 suable those interests to be maintained and advanced, 
 shall be protected in that freedom of speech, whatever be 
 the consequence. Such are the views on which the law 
 acts sometimes on one side and sometimes on the other. 
 Those occasions on which the law protects freedom of 
 speech are often called privileged occasions, and the kind 
 of lawful business so protected is that of exchanging con- 
 fidential views about one''s private business and friends, 
 and about the nation's business, which is eveiy man's 
 private business within certain limits. 
 
 When protection of character is preferred to free 
 speech. — As a general rule, therefore, the protection of 
 one's character and reputation comes home to each more 
 closely than any exercise of the right of censure, denun- 
 ciation, and criticism of third parties ; and hence free 
 speech, if nothing more is involved, must give way to the 
 desire of maintaining reputation. It is in every way more 
 salutary, that he whose character is libelled should be 
 protected, than that he who libels should be able to speak 
 his mind freely. Both are good ; but if they clash and 
 
10 LIBERTY OF PRESS AND SPEECH. [ch. i. 
 
 become incompatible, tbe better must be preferred. And 
 hence arise all tbe rules and qualifications of the law of 
 libel, which is nothing else than a summary of those 
 instances in which tbe law prefers one's reputation to 
 another's free speech, and in which the prosecution of 
 one's personal interests, and of the public interest as part 
 of that personal interest, will be protected in the exercise 
 of free speech, in preference to the reputation of a third 
 person. The details of all these distinctions, which are at 
 first somewhat bewildering, will be shown in a later page 
 in their natural order and mutual relations. 
 
 Chief mediwai of thought is, speech and mriting. — 
 And further, before the law can properly deal with those 
 who attack the reputation of others, some notice must be 
 taken of the medium through which this is done. The 
 two leading vehicles of thought are, first and above all 
 others, the faculty of writing or speech ; and secondly, 
 printing ; but there are other less important means of the 
 same general character, namely, painting or drawing, and 
 any signs and symbols of thought ; and even gestures may 
 be employed with like effects. Speech is transitory, and 
 operates only within the range of a Emited audience, and 
 perishes with the memory of those who listened. 
 
 Writing, as a vehicle of thought, is more durable in its 
 effects, and may circulate beyond the -range of the speaker 
 and the hearers ; and its influence may be communicated 
 over a wider area. It exists in a stereotyped form, and 
 may be referred to and comprehended by an indefinite 
 number of individuals. Again, printing is only a higher 
 degree of the same mode of publicit;y, and in its nature, 
 owing to the perfection the art has attained, and the 
 extension of education, tends to circulate over a still 
 wider area — an area which can only be limited by the 
 living generations of man, and not even by these. Paint- 
 ing or drawing in some respects resembles the vehicle of 
 writing and printing, and it may be incorporated in both, 
 or may be circulated by itself in an independent shape, and 
 even a gesture or an attitude may in certain circumstances 
 be as expressive as any speech. As a general rule, the 
 wider the imputation spreads, the greater is -the damage 
 and injury to the character assailed. 
 
 All these vehicles of thought and expression, therefore, 
 
CH. I.] EEPUTATION AND FREE SPEECH. 11 
 
 differ from each other chiefly in degree, according as they 
 are calculated to reach a greater or less number of in- 
 dividuals, and as a general rule, the greater the number of 
 people to whom a false or unlawful accusation is commu- 
 nicated, the greater is the blow to one's character and 
 reputation, and therefore the greater the punishment 
 needed to correct it. 
 
 Double aspect of the exercise of free speech. — 'Fxova. 
 all that has preceded it will be seen, how necessary it is, 
 especially in an age when civilisation has restored to the 
 utmost the natural freedom of thought and speech, and at 
 the same time has carried to so high a pitch the arts of 
 printing and publishing, that there should be some check 
 put upon envious, passionate, or malicious representations 
 which create a false impression of a neighbour's character, 
 and thereby weaken its natural influence over others. 
 Constituted as human nature is, and with tendencies of 
 good and evil, consideration must be given to the mischief 
 that may be done by marring the advancement of virtue 
 and intellect, which are the dominant forces governing 
 reasonable men, and on whose free development the hap- 
 piness of the world mainly depends. To think and speak 
 as every man inclines is indeed one of, the primary ten- 
 dencies which the law encourages, simply because it is 
 natural and irrepressible. But as our conscience informs us 
 that while there are those who seek to think and speak 
 well, there are others who from base motives or blind 
 passion seek for unworthy ends to ihwart the legitimate 
 influence of another's character, the latter must be re- 
 strained and punisbed, in order that that other might be 
 let alone, and in order that high character may work out 
 its own reward. The law takes for granted, that the 
 universal conscience of mankind recognises the one course 
 as good and the other course as evil, and that all that is 
 necessary is merely to restrain so much of the evil as 
 unduly checks the progress and development ^f the good. 
 It is the object of the law to methodise and define the 
 clear practical rules by which the perversion of speech or 
 writing may be punished. Except in so far as the law, 
 whether common law or statute law, has put some restraint, 
 thought and speech are free, whether in public assemblies 
 or private conversations. 
 
12 LIBERTY OF PEESS AND SPEECH. [ch. i. 
 
 The highest faculties of man, and those by which every- 
 thing good is promoted in the world, and by which society 
 is elevated in its tone, mainly depend on speech and 
 writing. It is therefore of the last importance in all well- 
 regulated communities that as few restrictions as possible 
 should be put by the law on the free play of thought — ^ 
 that the satirist, the preacher, the patriot, the moralist, or 
 the politician should be allowed to circulate his thoughts 
 to the full extent, for it is by free discussion that public 
 opinion is educated, and the public good promoted, by 
 which bad laws are altered, and pain and suffering 
 diminished among mankind ; and as this can usually be 
 done without misrepresenting or libelling individuals and 
 unduly crippling their influence, the restraints of the law 
 are framed only to check abuses of this primary freedom 
 of thought and speech. 
 
 Freedom of thought as developed in public meet- 
 ings. — The most prominent of all the manifestations of 
 freedom is that of public meeting. By this is meant not 
 the liberty of corporations to meet in large numbers, or the 
 liberty of mayors, lords lieutenant of counties,, or sheriffs or 
 justices of the peace in their official capacity to invite 
 together as many of the public as choose to attend and 
 hear a discussion of any grievance or matter of interest, 
 which the official head thinks reasonable and proper to 
 discuss. But a public meeting is an assemblage of large 
 numbers called together by any member of the public as a 
 volunteer, whenever he thinks that his neighbours will be 
 sufficiently interested to join with him in discussing some 
 topic of the hour,, and who does so without any licence of 
 any official — without notice to any official — and without 
 any official whatever being present, or having any partici- 
 pation in or power over the proceeding. So long as such 
 public meeting can be held at the ca,ll of any voice from 
 the crowd, and the people can, meet in any numbers with- 
 out let or hindrance and discuss and exchange their 
 
 1 Besides the right which nature has given to every man to his 
 property, his freedom, and his hfe, she has also conferred on him a 
 fourth right, that of defending the former three ; and government 
 is nothing more thaii a systematic mode of carrying this fourth 
 right into convenient and complete effect.— ^JSeau/ow, M.P. 28 Pari. 
 H. 420. 
 
CH. I.] PUBLIC MEETINGS AND PETITIONING. 13 
 
 sentiments on anything and everything that concerns them 
 — that touches their interests or their feelings — this is as 
 near the enjoyment of perfect liberty as is attainable. No 
 limit can be assigned to the variety of the subject matter 
 which may thus call the public together. The only re- 
 strictions possible are those which arise out of the danger 
 of saying something blasphemous or grossly immoral or 
 seditious, something amounting to a contempt of Parlia- 
 ment or of a court of justice, or defamatory of some 
 individual, as to each of which excesses the speaker may 
 afterwards be called to an account. The liberty of express- 
 ing to large meetings without let or hindrance every 
 thought as it occurs, whether wise or unwise, so long as 
 the limits here indicated are not reached, is the charac- 
 teristic of a public meeting; and the holding of public 
 meetings is one of the most important exercises of free 
 speech known to mankind. 
 
 Freedom of thought in lecturing or addressing 
 audiences. — It is only another form of the liberty of 
 public meeting, when any person takes upon himself after 
 previous notice or otherwise to deliver a lecture to many 
 persons or make a speech or address to them on any sub- 
 ject to which they will consent to listen. If no previous 
 permission or consent of any official is required, and the 
 only limits to be observed by the lecturer or orator are 
 those akeady set forth in reference to public meetings, this 
 also is an element of public freedom which comes home to 
 every citizen. 
 
 Freedom of petitioning the Crown amd Parliament. 
 — Akin to the right of public meeting and the right of 
 lecturing, though not necessarily involving the formality 
 of any large meeting of persons, is the right of petitioning 
 the Crown or Parliament on any matter which is deemed 
 to affect the interests of large numbers. It will be seen 
 that this is an important mode of exercising freedom of > 
 speech and highly prized, inasmuch as it often influences 
 the course of action of those who are in positions of the 
 highest authority. It is to some small extent a participa- 
 tion in the very government of the country, for to use 
 argument with, or even to obtain an audience of those 
 who have in hand important issues affecting the public 
 business, and to be able to make representations which 
 
14 LIBERTY OF PEESS AND SPEECH. [ch. i. 
 
 may or may not be accepted and acted upon is a ma.rk of 
 consideration, and at least a conspicuous exercise of free 
 speech which relieves the mind and satisfies the under- 
 standing of those who are governed. 
 
 Liberty of the press restricted like free speech. — 
 While the liberty of speech is coveted by the people as in- 
 dispensable to their living under any well-balanced system 
 of government, much , more so is the liberty of the press, 
 which is nothing more than the expansion of the other 
 by mechanical means, thereby intensifying and making 
 universal what might otherwise be spent on a small and 
 isolated group of listeners. When any person is free to 
 publish whatever he deems interesting or valuable either 
 as a mode of procuring profit to liimself or as a means of 
 influencing the minds and will of his fellow-citizens on 
 matters on which union and combination can effect great 
 results, this is the highest mark of freedom, and when 
 once enjoyed by a people will not easily be relinquished, and 
 any attempt to tamper with it wiU provoke unappeasable 
 clamour and resistance. 
 
 The fteedom of the press, though exceedingly simple in 
 its working when thoroughly attained and practised, has, 
 like the great discoveries of science, been arrived at by 
 .painful steps and slow. AU governments at first feared 
 this new power as fuU of danger and charged with the 
 seeds of anarchy, until, like the steam-engine, familiarity 
 and skill of handling have made it thoroughly docile, and 
 all-powerful for good. The limits imposed on the freedom 
 of the press are precisely the same as those imposed on 
 ~ freedom of speech, with a slight difference as to the remedy, 
 as wiU be afterwards explained. . Wo power exists which 
 can dictate to any author or publisher the subject matter 
 of the publication ; and the only limits to be observed are 
 those of blasphemy, immorality, and sedition as affecting 
 the public, and libel as affecting the individual. But in 
 course of steering clear of those extremes there a^e 
 numerous details and distinctions to be noticed, and until 
 these are well surveyed the subject cannot be appreciated 
 in its whole bearings on the affairs of practical life. 
 
 Freedom of thought viewed as a property and as 
 copyright.— The right of free speech, as exhibited in 
 public meetings, lectures, and addresses, and in petitions 
 
CH. I.] COPYRIGHT PART OF FREE THOUGHT. , 15 
 
 to the government, and tlie liberty of the press as exhi- 
 bited in the newspapers, and journals and books which 
 any one is free to publish, do not represent the whole of 
 this subject. There still remains an important right, 
 namely, that of the authors or originators of all these 
 publications. The person who creates a work is usually 
 impelled to do so not merely by the hope of benefiting 
 others and influencing the action of those who control the 
 government or destinies of mankind, but by the hope of 
 personal profit and reward for the labour involved in ob- 
 taining the power and skill to pro'duce such results. The 
 motives of authors are thus chiefly threefold — either purely 
 philanthropic or purely mercenary, or partly composed of 
 both the others. Those who address public audiences with 
 a view to publication, especially on political affairs, may be 
 said to be mainly philanthropic or patriotic : they are satis- 
 fied with the publicity given or acquired, and have no care 
 about any personal profit. They throw their thoughts 
 among the crowd, careless who may pick them up. On 
 the other hand, authors who publish works involving 
 continuous labour, skill, and thought, have usually some 
 prospect of reward and personal profit as the main in- 
 ducement, like all other persons who pursue a definite 
 occupation or business. The labour involved in creating 
 a book differs in no respect whatever from the labour 
 employed on any other matter, and hence it would re- 
 quire very singular circumstances to make it manifest how 
 the labourer in the one case should not have the, same 
 means of preserving and perpetuating his accumulations 
 as the labourer in the other cases. Yet, singular to say, 
 the conduct of the legislature and courts even up to very 
 recent times has been so confused and void of all insight 
 into the nature and origin of this simple and natural right, 
 that they have sometimes misapprehended its position, 
 have all but questioned its existence, and have ended by 
 confiscating it for the alleged good of mankind, without 
 rendering a reason. This singular mode of treatment will 
 be made manifest in the whole history of copyright, both 
 in parliament and in courts of justice. It is confessedly a 
 right of some kind, and the various circumstances in which 
 it originates, and the modes of dealing with and- protecting 
 it, involve many details which will be afterwards set forth. 
 
16 , LIBERTY OF PEESS AND SPEECH.' [ch. i. 
 
 And here again, while no constituted authority any longer 
 dictates to authors what subjects they shall treat, or how 
 they shall treat thein, the same limits confine copyright 
 as confine free speech. So long as the author shall not 
 circulate any blasphemous, immoral, or seditious words, or 
 any libel on an individual, there is no subject which he 
 may not discuss almost at discretion, and the whole field 
 of knowledge lies open to him. 
 
 Freedom of thought viewed as patent right and 
 trade marh. — While copyright denotes that species of 
 right which an author has in the book which he creates, 
 so a right closely related to it is that which an inventor 
 has in some mechanical adaptation, namely, the exclusive 
 right of manufacturing copies or reproductions of things 
 mechanical. The distinctions which exist between these 
 two rights will be found to be considerable. The- chief char- 
 acteristic of both is this, that the mind of the author and 
 inventor is that which creates or brings the subject matter 
 into existence, while the other consideration, namely, the 
 best mode of protecting and perpetuating the right as a 
 species of property, necessarily varies with the individual 
 instance. It is on account of this primary quality that 
 patent is properly arranged under the head of free thought, 
 because the ingenuity of man is boundless, and it is 
 capable of embracing nearly every kind of matter which 
 can be made useful to facilitate human occupations and 
 human comforts. And there is an inherent right of every 
 man to turn his faculties to the best advantage and acqxiire 
 as much profit out of any exercise of these and outof any- 
 thing he does as the subject matter will admit. Patent 
 right is nothing but the right to make the most of one's 
 own originality and insight into common mechanical 
 articles, and is as much an exercise of free thought as the 
 production of any book can be. 
 
 And, lastly, the right to a trade mark, though in some 
 respects identified with the modes of selUng goods, is more 
 closely allied to patent right, for the same kind of ingenuity 
 which distinguishes the inventor often belongs to the 
 originator of a trade mark, inasmuch as it is only in refer- 
 ence to some ingenious manufacture that trade marks were 
 at first invented, though also capable of being extended 
 to things which do not involve any original merit whatever. 
 
CH. I.] OUTLINE OF CHAPTERS. 17 
 
 Arrangement of chapters in this division. — Having 
 thus traced in outline the several heads which make up 
 that positive and substantial right called the liberty of 
 speech and of the press, or, in other words, the security of 
 thought, speech and character — one of the most valuable 
 of all the rights possessed by man in any country and 
 under any system of government, the mode in which these 
 heads may be most systematically arranged will be as 
 foUows : — The liberty to think and speak about everything 
 in public, which is the primary right, will be first con- 
 sidered. This, when more amply surveyed, consists of 
 speaking and exchanging thoughts with numbers of fellow- 
 citizens in public meetings, subject to no other restriction 
 than the avoiding of any blasphemous, immoral, or sediti- 
 ous words. Treasonable matter may at present be left 
 out of account as being too closely connected with the 
 protection of the Sovereign, and therefore with that other 
 division of the law entitled " Government. '' Free speech 
 is exercised accordingly in public meetings, in lectures or 
 addresses, and in petitioning the Crown and Parliament. 
 Next comes the liberty of the press, that is to say, the re- 
 ducing of speech or thought into writing or printing. It will 
 be seen that the primary rule is here also the same, namely, 
 that the press is free to all comers and on all topics. The 
 subjects that may be discussed embrace everything that is 
 of interest to mankind. But both free speech and a free 
 press must not be abused to the extent of speaking or 
 publishing what is blasphemous, immoral or seditious. 
 Of these three limits, the more difficult and important is 
 sedition, for that is the extreme limit about which a free 
 press is most likely to go into excess, owing to the passions 
 excited by the current politics of the day. The right of 
 comment on all the great functionaries of the State being 
 the life and soul of a free press, this tendency to sedition 
 assumes frequently the form of libels on the Sovereign, 
 on Ministers of State, on the Constitution or the Parlia- 
 rrient, or Courts of Justice. And in dealing with libels ou 
 Parliament the subject of Breach of Privilege to some 
 extent brings on a collision between the jurisdiction of 
 Parliament, and Courts of Law in certain vital points. The 
 liberty of the press also includes the publishing of the 
 debates of Parliament and the reports of trials and pro- 
 ceedings in Courts of Justice, as well as comments on all 
 
 c 
 
18 LIBERTY OP PEBSS AND SPEECH., [ch. i. 
 
 matters of public interest. And, lastly, the right of the 
 public to communicate with each other by means of posted 
 letters, and to protection against interference is a part of 
 freedom. These are the main heads which make up the 
 positive right of free speech and thought, and the corre- 
 lative excesses to which it is subject in relation to the 
 public at large. 
 
 But while the above are the more public portions of the 
 right of free speech and thought, the abuse caused by the 
 invasions of the character and reputation of individuals 
 in the form of defamation creates many subdivisions and 
 distinctions, and touches on a great variety of matters. 
 After libel and its punishments, the next form which the 
 right of free speech and thopght assumes is that of a 
 valuable property in the hands of the author who com- 
 poses and publishes his thoughts. The subject of copyright 
 embraces a great variety of details. And, lastly, the right 
 of patent and trade mark is closely connected with the 
 subject of copyright. When these topics are dealt with 
 in their order, the details of this division of the law will 
 be fully comprehended in all its completeness. 
 
 This first part of that division of the law entitled the 
 security of thought, speech, and character, therefore, will 
 consist of the following chapters : — 
 
 Chap. II. — Freedom of speech in public meetings, 
 lectures, and petitions. 
 „ III. — Freedom of the press and correspondence. 
 „ IV. — Abuse of free speech and the press by 
 
 blasphemy and immorality. 
 „ V. — Abuse of free speech and the press by 
 
 seditious words and writings. 
 „ VI. — Riglit to publish debates of Parliament. 
 „ VII. — Right to publish proceedings of courts of 
 justice and reports of trials, and to com- 
 ment on all public matters. 
 „ VIII. — Abuse of speech by libelling another's 
 
 character. 
 „ IX. — The characteristics of libel and of excusable 
 
 libels. 
 „ X. — The remedies for libel by criminal and civil 
 proceedings. 
 XL— Copyright. 
 
 „ XII. Paten*' '■ifli*^ o-nA frorlo Tyiorlr 
 
cu. 11.] FREEDOM OF PUBLIC MEETINGS. 19 
 
 CHAPTEE II. 
 
 FREEDOM OF PUBLIC MEETINGS AND ADDEESSES AND 
 PETITIONS. 
 
 Freedom of public meetings. — The ancient tyrants 
 always feared any large congregation of men in towns, and 
 endeavoured to find rustic occupations for them, so as to 
 separate them and divert their minds ; and it is said 
 Peisistratus commenced the building of the Temple of 
 Jupiter for some reason of this kind. ' The knowledge of 
 Imman nature shown by Peisistratus has often been imitated 
 by succeeding governors. 
 
 In this country before public meetings were resorted to 
 as an ordinary exercise of self-government, great looseness 
 prevailed in the law, the theory apparently being, that free 
 speech was a species of gift by the Sovereign to the people. 
 In the time of Charles II. the judges were consulted 
 whether the king could by proclamation shut up the 
 coffee-houses, which at that time were the great centres of 
 conversation, though they existed under licenses from 
 Quarter Sessions then current ; and it is said the judges 
 were by no means agreed.^ At that period and long after- 
 wards the common law was indefinite, but nevertheless the 
 courts never went the length of laying down a positive 
 rule of that law, that a public meeting could not be 
 
 1 2 Thirlw. Gr. 71. 
 
 2 North's Exam. 139 ; Kennett, 337 ; Ealph, 297. The position 
 of these liouses at that era was said to be, that they were in the 
 nature of a common assembly to discourse of matters of state, news, 
 and great persons — " and as they were nurseries of idleness and prag- 
 maticalness, and hindered the expense of our native provisions, they 
 might be thought common nuisances." — North. Ex. 3 40. 
 
 c 2 
 
20 ' LIBERTY OP PRESS AND SPEECH. [ch. ii. 
 
 held without the license of some public functionary. 
 The very first instance of a modern public meeting was 
 said to be one held by the electors of Westminster in 
 Westminster Hall on August 29, 1769, to adopt a petition 
 for redress of grievances. The practice of holding such 
 meetings for discussing public grievances seems to have 
 been largely developed by the excitement consequent on 
 the expulsion of Wilkes from the House of Commons in 
 1770. ' A law officer near the close of last century told 
 the House of Commons, that England was the only country 
 in the world where meetings to discuss grievances were 
 allowed without the attendance of a magistrate, and that 
 Ancient Rome, in the zenith of its liberty, never allovsred 
 the people to meet except in a regular body under official 
 controul.^ And the Government of that day came to the 
 conclusion, that the right of public meeting had been abused, 
 and that no meeting should thereafter be allowed except it 
 should be called by the lord lieutenant, sheriff or other 
 official, and that a magistrate should be able to put an end 
 to it at once if he thought it riotous.^ It was pointed out . 
 in answer to such a proposal, on the other hand, that 
 public meetings ought not to he restricted ; that they, and 
 they alone, had contributed to put an end to the Ameiican 
 War.* Moreover, that it was mocking the understanding 
 aad feelings of mankind to tell them they were free out of 
 the Houses of Parliament, so long as they could not meet 
 for the purpose of expressing their sense of the public 
 administration of the country, or of the calamities occa- 
 sioned by a particular war then waged, and so long as any 
 grievance or sentiment could not be declared without a 
 magistrate considering it seditious and subjecting them to 
 penalties.^ The proposal of the Government was carried out 
 to a large extent about twenty years later.^ The Six Acts 
 of 1819 were passed, only a few parts of which still are 
 
 1 2 Albemarle's Rooldngli. 93; Lord Harrowby, H. L., 41 Pari, 
 Deb. 1264 ; 3 Cooke's Hist. Party, 187. 2 Mitford, S. G A D 
 
 1795, 32 Pari. Hist. 308. 3 Hijd. 4 c. J. Tox, M P , Ibid 344 
 6 C. J. Fox, M.P., 32 Pari. H. 279. 
 
 6 In tlint year persons presumed to hold a convention and assume 
 all the functions of Parliament. The Crown was advised to arrest 
 tliem as conspirators.— A. D. 1795, 35 Pari. Deb. 1230. The 
 culminating point was in 1819 when the long delay in the reform 
 of Parliament began to irritate the people, and the Manchester 
 
CH. II.] PLACES FOE PUBLIC MEETINGS. 21 
 
 in force, and one of them required, that no meeting of 
 more than fifty persons should be held without a previous 
 six days notice to a justice of the peace, and forbidding all 
 but inhabitants of the county or parish to attend.' This 
 last enactment was, however, limited to five years, and has 
 not since been renewed. 
 
 And now there is no restriction on the holding of public 
 meetings at the call of any person whatever, subject only 
 to this, that whoever utters blasphemy, gross immorality, 
 or sedition, may be called to account.^ And if the as- 
 sembly is turned into one which is illegal and riotous, that 
 is a separate ground of punishment, owing to the terror 
 caused, according to the turn taken in its progress.^ 
 
 Places of pvblic meeting, how far restricted. — One 
 great obstacle to the right of public meetings has always 
 been the finding of a place of meeting large enough, and 
 not too large, for the purpose of hearing and being heard. 
 This, indeed, is a difficulty which more peculiarly affects 
 the poorest portion of the community, it being always with- 
 in the power of the wealthy to obtain by purchase or some 
 valuable consideration access to a convenient place if they 
 choose to undertake such preliminary expense. Tor those 
 who are not provided with this ready raeans of access, and 
 who are mere members of the public, there is no appointed 
 or legal place of meeting provided by the common law or 
 by statute, and hence the risk of an action of trespass or 
 some cause of action accruing to an individual owner 
 arises, if they invade his property for the purpose of 
 
 meetings were held. In 1820 what was most complained of against 
 Hunt was, that he, a stranger, convened a mob, but not under any 
 constituted authority, to discuss public affairs. The magistrates of 
 Manchester had circulated printed notices, that the meeting would be 
 illegal, and they stationed constables in a line to be ready to put it 
 down ; but the mob chose a place of meeting, which they closed in 
 against the constables, and used exciting banners and large sticks., 
 Hunt, with others, was indicted for an unlawful meeting to excite 
 discontent and disaffection to the Government, "and was found guilty. 
 —L. Abinger, Mem. 249 ; li. v Hunt, 3 B. & Aid. 666. 
 
 In that year, in conse<)uence of these meetings, Lord Sidmouth, 
 premier, complained that, according to the law up to that time, any- 
 body could issue a mandate, summoning all the idle and curious 
 part of the population to attend with martial music, flags, and 
 banners. ^ 60 Geo. III. c. 6. 
 
 * See post as to these limits. ^ See 1 Pat. Com. (Pars.) 224. 
 
22 LIBERTY OP PRESS AND speech; [ch. ii. 
 
 holding such meetings. Neither the public nor even the 
 parishioners can claim the use of a vestry or vestry hall, for 
 the controul of these buildings is vested in the parson, or 
 the guardians, or overseers of the poor, according as it is 
 part of the parish church or a separate building. They 
 cannot claim the use of the town hall or other room, 
 because that is the property, not of the public at large, but 
 of a municipal corporation, and under the controul of the 
 mayor. Nor can they claim the use of any large building, 
 or even the use of a viraste or common, for the freehold as 
 well as the exclusive occupation of such place is always 
 vested in one or a few select individuals. Nor can the 
 public, qua public, claim the use of the highway to hold 
 a public meeting, for the soU of the highway is not their 
 property, nor has any portion of them exclusive possession 
 of it. The utmost interest they have in it is merely the 
 right to go and come upon it for purposes of travelling and 
 conveyance of goods, and such minor rights as are inci- 
 dental thereto. But they cannot claim to stand and meet 
 together there in large numbers, and for a length of time, 
 discussing their grievances, however important these may 
 be deemed. The use of a highway is confined, both by 
 statute and by common law, strictly to the one primary 
 use of a place of passage, and is not for stationary emploj-- 
 ments.' All other uses than that of travelling are deemed 
 abuses, and are usually punishable with a penalty as being 
 wilful obstructions to this right of public passage.^ 
 
 Right to hold public meetings in public parks. — 
 This difficulty of the public to meet in a public place and 
 discuss what interests them, has been sometimes attempted 
 to be overcome in the metropolis, by resorting to the royal 
 or public parks. But the primary object of these parks, 
 so far as set apart for any definite object, being the recrea- 
 tion of all who choose to resort to them, inasmuch as the 
 holding of public meetings could not be deemed incidental 
 
 1 E. V Carlile, 6 C. & P. 637 ; E. v Moore, 3 B. & Ad. 184 ; E. » 
 Cross, 3 Camp. 226. 
 
 2 5 & 6 Will. IV. c. 50, § 72. It is not, however, competent for 
 any constable summarily to arrest persons if they choose to meet to 
 discuss public afiEairs on a highway or street ; the mode of procedure 
 is by summons before justices of the peace, unless some local act 
 gives larger powers of summary arrest in that particular district. 
 
CH. ii:] SUBJECT MATTER OP PUBLIC MEETING. 23 
 
 to recreation, and as the freehold of these parks, as well as 
 the controul of their possession and use, is vestc-d in 
 the Crown, no public meeting could be held there unless 
 with the permission of the Crown. At the same time, 
 inasmuch as the Crown has for a length of time suffered, 
 and thereby impliedly invited all comers to enter, such 
 as have entered could not be turned out except by iirst 
 requesting each individual to leave. In this way alone 
 could the license to enter and remain in a park be re- 
 voked, and the licensee be turned into the position of a 
 trespasser, and so lawfully ejected. Thus the difficulty of 
 preventing masses of the public from availing themselves 
 of these parks as convenient places for holding pubhc 
 meetings, and thereby abusing the hospitality afforded to 
 them, became conspicuous.^ They had no legal right to 
 enter, and yet it was all but impracticable without a riot 
 to prevent them. A statute was at last passed in 1872 
 which recognised the necessity of the public having some 
 portion of a park set aside for such meetings, and for 
 hearing addresses, and thus it succeeded in supplying the 
 want that had been felt.^ 
 
 Restrictions on public meetings according to subject 
 matter. — While therefore the general rule is, that there is 
 no restriction on the holding of public meetings at any 
 time and place, yet there are one or two exceptions in 
 both these respects caused by the subject matter of such 
 meeting. The occasion and the purpose indeed can 
 neither be dictated nor defined by statute, nor by any 
 public authority, for this reason, that no one can predict 
 
 1 In 1866 the law officers advised the (lovernment that the people 
 could not be turned out of the public park except after notice given 
 to each, ond then only sufficient force and no more must be used to 
 expel them. In 1856, also, the Crown was advised, that the parks 
 were in the same position as a private property is, and that the Crown 
 had the same and no greater rights of excluding trespassers. — 187 
 Pari. Deh. (3) 215. As to those rights see 1 Pat. Com. (Pers.) 304. 
 
 2 The Parks Regulation Act, 35 & 36 Vic. c. 15. This Act iipplies 
 to most of the public parks in and adjacent to London. By that Act 
 no person shall deliver or invite others to deliver a public address 
 except in accordance with the rules of the park ; and the rules of 
 Hyde Park dehne convenient places for public meetings. And any 
 person violating the rules, and whose name or residence cannot be 
 ascertained by the park keeper, may be sumujaiily arrested and 
 charged with the offence. — Ihid. § 5. 
 
24 LIBERTY OF PRESS AND SPEECH. [en. ii. 
 
 what subject may or may not become of public interest 
 or importance at any given time, according to the events 
 of that time. Hence, as no rule has been laid down, there 
 is practically no prohibition on account of the subject 
 matter, except for blasphemy, immorality, or sedition, to 
 which may be added, as already noticed, that, if any as- 
 sembly whatever become riotous or unlawful in the sense 
 of pursuing some unlawful conduct and causing terror to 
 bystanders, there is a mode of putting a summary termina- 
 tion to it.^ Some other grounds, however, of a more special 
 kind must also be noticed. 
 
 Public meeting within a mile of Houses of Par- 
 liament. — One restriction as to time and place is due to 
 the influence of such meetings on Parliament and Courts 
 of Justice. Thus it was declared by statute in 1817 that 
 no meeting exceeding fifty persons shall be called or held 
 within one mile from the gate of Westminster Hall (except 
 St. Paul's parish, Covent Garden) on any day when Parlia- 
 ment sits, or when a judge of the High Court sits in West- 
 minster Hall, provided such meeting is held for the purpose 
 of petitioning the Crown or Parliament " for alteration of 
 matters in Church or State." If such meeting is called, 
 it is an unlawful assembly. This description, however, 
 vague and sweeping as it seems, does not cover a variety 
 of purposes for which public meetings may still be lawfully 
 called on such days within the prohibited area, and hence 
 all depends on the object of the meeting in question as to 
 how far the statute is violated.^ And meetings to elect 
 members of Parliament, or of persons attending on the 
 business of the Courts, were expressly excepted.' 
 
 Societies and clubs having wnlawful objects and 
 oaths. — While such is the law relating to public meetings 
 
 1 1 Pat. Com. (Pers.) 224. ^ 57 (jeo. HI. c. 19, § 23. 
 
 ' Id 1830, when a large multitude, with a tri-coloured flag and 
 banners, accompanied their leaders on the occasion of presenting a 
 petition to William IV. at a lev^e in the Palace of St. James's, the 
 Lord Chancellor (Brougham) told the House of Lords that there was 
 nothing illegal in this, there being on the occasion no probability of 
 any breach of the peace. — 1 Pari. Deb. (3) 824. In the House of 
 Commons it was urged by Sir R. Peel to be contrary to 13 Chas. II. 
 St. 1, c. 5. But Lord J. Russell said it was not a petition in the 
 ordinary sense, but only an address of loyalty. — 1 Pari. Debj (3) 
 990. See L. Mannfield O.J. re Gordon liots, 1 Pat. Com (Pers.) 237, 
 239. As to meetings to poation Parliament Beepost, p. 30. 
 
en. n.] UNLAWFUL SOCIETIES AND CLUBS. 25 
 
 held, to which all the public are invited, it is here neces- 
 sary to notice that modification of public meetings which 
 consists in considerable numbers of persons meeting, not in 
 public, but rather in secret, though in the exercise of free 
 speech and mutual deliberation. In 1797 all members of 
 societies and clubs whicli were so constituted, that mem- 
 bers required to take an oath or engagement binding them 
 to engage in any seditious purpose, or to disturb the public 
 peace, were declared guilty of felony. And if a member 
 were compelled to take such oath, he was declared to be 
 not free from guilt, unless within four days afterwards he 
 revealed the same to a justice of the peace. ■^ And those 
 who take oaths to commit murder or felony are also guilty 
 of felony.^ Again in 1799, owing to the number of un- 
 lawful confederacies, stimulated by the contagion of the 
 Prench Eevolution, then existing under the name o,f United 
 Englishmen, Scotsmen, and Irishmen, the London Corre- 
 sponding Society, and other names, all such societies 
 framed on the principle of taking unlawful oaths of the 
 above description were declared unlawful combinations 
 and confederacies.* Moreover this statute included all so- 
 cieties whatever having branches or divisions acting under 
 separate presidents and officers. If, however, a society 
 disclose to two justices of the peace the declaration which 
 is required by their members, and this is approved and 
 subscribed by such justices of the peace, this will protect 
 the society against molestation.* And the Act was declared 
 not to affect lodges of Freemasons held according, to the 
 rules of their society and registered with the clerk of the 
 peace. ^ Those who are guilty of joining these unlawful 
 combinations may, upon a summary proceeding within 
 three months after the offence, be committed by justices 
 of the peace to three months imprisonment, or fined 201. 
 And the person who permits such meetings in his house is 
 liable to a fine of 51., and on a second offence to the same 
 punishment as those who actually belong to the society.* 
 And a publican who does the same forfeits his license 
 besides.' 
 Again, in 1817 the legislature thought fit to declare 
 
 I 37 Geo. in. c. 123. ^ 52 Geo. IIL c. 104. 3 39 Geo. IIL 
 c. 79, § 2. * Ibid. § 3. ■■> Ibid. §§ 6, 7. « 39 Qeo. IIL 
 
 c. 79. ^ 57 Geo. III. c. 19, § 29. 
 
26 LIBERTY OF PRESS AND SPEECH. [en. ii. 
 
 illegal other combinations, societies, and clabs supposed 
 to 1)6 secretly at war with the established government, 
 laws, and constitution of the kingdom, and the members 
 of which take unlawful oaths of secrecy. Such were the 
 Spenceans in 1817, a society whose professed objects were 
 the confiscation and division of the lands and the extinc- 
 tion of the funded property of the kingdom. Such society 
 was declared illegal, as well as all other societies or clubs 
 by whatever name known, which profess the same objects 
 and doctrines.^ All the societies and clubs of the descrip- 
 tion first above mentioned were again declared unlawful 
 combinations and confederacies, and those who paid money 
 in aid of them shared their guilt. Nevertheless the socie- 
 ties of Freemasons and Quakers still escaped all liability 
 on being registered.^ And societies which assembled only 
 for charitable purposes, and having no other business, were 
 exempted even from this registration.^ 
 
 Though these laws are still in force, nevertheless, lest 
 proceedings for punishment under them might be abused, 
 a short limitation of time, namely three monchs, is allowed 
 for commencing proceedings, and no prosecution can be 
 commenced without the leave of the Attorney or Solicitor- 
 General.* 
 
 Debating societies. — Another form of meeting not quite 
 public, and yet partaking to some extent of the exercise of 
 free speech, is that which is known as a debating society. 
 In 1795 and 1799, the epoch of the French devolution, it 
 was thought these societies had been used to serve the ends 
 of factious and seditious persons, and stir up hatred and 
 contempt of the Constitution, and a statute forbade every 
 house, field, or place, being kept, where lectures or discourses 
 should be delivered, or public debates had on any subject 
 whatever, also any room for reading books or newspapers, 
 or other publications, to which persons were admitted by 
 payment of money, or by tickets sold for money, unless 
 they were first licensed by Quarter Sessions ; and unless so 
 licensed the house or place so kept was deemed disorderly, 
 and every person concerned forfeited 1001. Any justice 
 could demand admittance, and even if it were licensed 
 he could also demand admittance, and on refusal could 
 
 1 57 Geo. III. 0. 19, § 24. 2 ibid. § 26. 3 Ibid. 8 27. 
 
 4 Ibid. § 30 ; 9 & 10 Vic. c. 33, § 1. 
 
CH. n.] DISTUEBANCB OF PUBLIC MEETINGS. 27 
 
 read a proclamation, and disperse the meeting, and declare 
 the license forfeited.'^ This continued to be the law until 
 1868, when such, restrictions were utterly abolished.^ So 
 that now there is nothing to prevent debating societies 
 being freely held in any locality. 
 
 Protection of public meeting against disturb- 
 ance. — While the power of calling together a public 
 meeting to consider any subject is open to any promoter 
 who chooses to incur what expense may be incidental to 
 the hiring of a room for that purpose, nevertheless such 
 meeting when called is subject to the same controul on the 
 part of the promoter, as if he were entertaining them in 
 his own house. It is only called public, because large 
 numbers are usually invited, or if conditions are annexed, 
 these conditions are at most easily complied with, such as 
 by payment of a small sum of money ; and no further disr 
 crimination of persons is made except such as fulfils the 
 description of the invitation. But when the meeting is 
 called, and the business is going on, the public, or those of 
 them who attend, have no rights as against the promoter 
 who hired the room, and who is master of the situation, 
 and can dictate the proper mode of managing the business. 
 The chairman is nothing but a person elected to be either 
 the mouthpiece of the manager or who by his consent is 
 accepted as such on the nomination of the meeting, and is 
 presumed to act in accordance with the object in view. In 
 that sense, and so long as he is the accepted referee and 
 agent of the promoters, whatever course he takes must be 
 submitted to by the audience, subject to such comment as 
 he may allow. The public have been merely invited, and 
 to that extent have a lawful right to attend ; but this gives 
 them no absolute right of any kind, either to speak or take 
 part in the business, unless invited by the chairman to do 
 so. If any person insist on speaking, or on speaking too 
 long, it is always in the power of the chairman, as the 
 agent of the promoters,, who are the legal occupiers of the 
 room for the time being, to request such person to desist, 
 or to leave the room ; and if after request such person 
 refuse to leave, then he may be ejected with just enough 
 of force and no more to overcome his resistance. And if 
 
 1 36 Geo. III. c. 8, § 12 ; 39 Geo. III. c. 79, § 15. ^ 32 & 33 
 
 Vic. c. 24. As to Sundays, see post. 
 
28 LIBERTY OF PRESS AND SPEECH. [ce. ii. 
 
 in course of this procegs an assault be committed, the 
 mutual rights of parties to push or to resist must be ad- 
 justed on the footing, that the chairman as the agent of the 
 promoters was entitled at any moment, and without stating 
 any reasons, to request any person present to leave the 
 room, and if that person refuse to leave, he becomes there- 
 after a trespasser. It is true that even a trespasser cannot 
 be assaulted : he must first be requested to withdraw, and 
 such force as may be necessary to put him out must then 
 be used, not by way of punishment, but simply and solely 
 to carry out with the least possible violence the design to 
 get rid of him. And for a like reason, inasmuch as the 
 promoter, by means of the chairman, is entitled to the 
 exclusive occupation of the room, even though he acted 
 with gross unfairness, or in breach of the common un- 
 derstanding of the invitation, he is nevertheless equally 
 entitled to enforce his will, for as the whole business was 
 based on a mere invitation and hospitality, and not on any 
 contract, there can be no breach and no cause of action. 
 The only remedy of those who are dissatisfied is to hold 
 a meeting of their own at another time and place, and 
 under a management niore to their liking.^ 
 
 Thus at a temperance meeting of about 200 persons, of 
 which the defendant was chairman, while an orator was 
 telling the audience that, if a man drank water his nerves 
 would be as hard as iron, and he would be as strong as an 
 elephant, the plaintiff, one of the members, shouted out, 
 " Yes, as a dead elephant," which sally created laughter 
 and some disturbance. The defendant called in a police- 
 constable and gave the plaintiff in charge for disturbing 
 the meeting, and insisted on the constable taking the 
 plaintiff to prison and then before a magistrate, who dis- 
 missed the charge. For this false imprisonment the plain- 
 tiff recovered 51. damages, because the defendant ought to 
 have merely ejected the plaintiff, and done nothing more, 
 seeing that the disturbing of a meeting is no criminal 
 offence such as authorises arrest or imprisonment of any 
 kind.^ In another case the plaintiff, being at a meetint^ 
 
 1 Howell V Jackson, 6 C. & P. V23. 
 
 2 Wooding V Oxley, 9 C. & P. i; If the plaintiff had struck any 
 one, then he might have been given into custody to a constable who 
 saw such a breach of the peace. 
 
CH. II.] PLACES FOR LKCTURES AND ADDRESSES. 29 
 
 of the Church Liberation Association, and a disturbance 
 arising near him, was suddenly seized by a man with a 
 white ribbon in his coat, and two constables, and dragged 
 over some benches to where the defendant, who was chair- 
 man, sat. The plaintiff, who had received injuries by this 
 treatment, sued the defendant for damages ; but at the trial 
 there was no evidence, that the three who arrested the 
 plaintiff stood in the- r^ation of servants to the. defendant, 
 or received any particular instructions fro in- the defendant 
 to make the arrest. All that the defendant had said was, 
 " I shall be obliged to bring those men toi the front who 
 are making the disturbance. Bring; those men. to the 
 front." These words were construed not to amount 'to a 
 definite order to seize the plaintiff, nor was there evidence 
 of any instructions equivalent to this ; and so the plaintifi 
 was nonsuited. The plaintifi' had obviously sued the wrong 
 person, or had failed to procure sufficient evidence of pre- 
 vious instructions, so as to connect the defendant with the 
 injurious act committed by those assisting in keeping 
 order.^ In another case varioxrs persons had conspired to 
 disturb a meeting held by the Magna Charta Association 
 to hear a lecture on a disputable question, and had been 
 guilty of turbulent conduct both during and after the 
 meeting'.. An application was afterwards made to the 
 justices-: for a summons charging them with conspiracy ; 
 but tbe justices, without denying that the evidence of the 
 disturhance was credible, declined to hear the case. The 
 court held that they were bound as justices to hear the 
 application, and though they had a discretion as to issuing 
 the summons, yet they must at least hear the witnesses, in 
 order to be able to exercise that discretion rightly.^ 
 
 Restrictions on places for lectures and addresses. — 
 Closely connected with the right of holding public meet- 
 ings is that which may be called the right of lecturing 
 and addressing large Audiences ; for this is always a power- 
 ful and rapid mode of influencing public opinion. As, in 
 the case of public meetings, any person from the crowd 
 may take on himself the office of promoter, and thereby 
 be the manager of the meeting, so any one from the crowd, 
 if he believes that people will listen to him, may take on 
 1 Lucas V Mason, L. R. 10 Exch. 251. ^ jj_ y Adamson, 
 
 1 Q. B. D. 201. 
 
30 LIBERTY OF PRESS AND SPEECH. [ce. ii. 
 
 himself the office of delivering to them an address, and he 
 may prescribe his own terms and dictate his own invita- 
 tion. There was a restriction on this right imposed in 
 1789 as already noticed, in consequence of the tendency 
 of such meeting to spread sedition and immorality. That 
 restriction, indeed, applied only when admittance was 
 not free, and the house and the subject required the pre- 
 vious license of two justices of the peace, who had also 
 power to demand admittance and interfere.^ These enact- 
 ments were, however, repealed in 1869,^ and now, subject 
 to the law of trespass, there is no restriction whatever so 
 far as time or place or any preliminary license is con-^ 
 cerned, except so far as the limits of all free speech and 
 thought, defined under the heads of blaspheipy, immorality, 
 and sedition are concerned, to which sometimes also 
 slander may be added, and occasionally even a riot may 
 be apprehended as a not improbable accompaniment.' 
 
 Right to petition Grown and Parliament. — When a 
 legislature is recognised in any civilised country, all the 
 citizens, for whose benefit that legislature exists, are neces- 
 sarily interested in making it acquainted with the grievances 
 which from time to time are discovered, so that it may 
 exercise the fullest judgment as to the appropriate remedy. 
 In the best governed countries of the world the law is 
 perpetually undergoing a process of decay and reconstruc- 
 tion. The sooner much of it is recast the better, for it is 
 always in arrear of the standard of excellence which the 
 most experienced and wisest see in prospect ; but there is 
 often great difficulty in fixing on the best amendment or 
 the best substitute, and this last can only be divined by 
 first attaining a complete knowledge of the evils to be 
 confronted and overcome. This knowledge can usually 
 
 1 39 Geo. III. c. 79, §§ 16, 18. 2 32 & 33 Vic. c. 24, sched. i. 
 
 3 Sometimes the subject chosen by the lecturer is such as to excite 
 the audience and lead to riot or disorderly conduct ; but this appre- 
 liension can seldom be used so as to prevent the lecture being held. 
 Where, for example, a noted lecturer who was likely to create dis- 
 turbance by violent language, as he had done at previous meetings, 
 had advertised a lecture, it was found that there was no means 
 of preventing him on that account holding his lecture, though it 
 might be prudent that the military should be kept in readiness by 
 the municipal authorities, in order to secure protection against 
 probable contingencies.— 198 Pari. Deb. (3) 618. 
 
CH. II.] MEETINGS FOR PETITIONS. 31 
 
 come only from those who have been actually aggrieved, 
 and who can impart to their physicians a precise descrip- 
 tion of their malady. Hence it arises, that the right of 
 petitioning the Crown and Parliament, who preside over 
 the springs of action, and so making both fully acquainted 
 with the desired redress, is an essential part of liberty. It 
 implies mutual confidence and alacrity in the desire to 
 perfect the law, which is the great working machine of 
 government, and the efficiency of which ought to bespeak 
 perpetual interest and vigilance on the part of all alike. 
 It would be singular if in England it had not been early 
 discovered, that this right of petitioning was sO valuable 
 that no obstruction to it could be tolerated. At every stage 
 of progress it must have been a leading desir^ that the 
 governed, unless they were accustomed to abject slavery and 
 blind obedience, should ardently seek for every opportunity 
 of reaching the ear of their governors ; and though the 
 same want must be felt under every government in the 
 world, how much more so must it be felt under one which 
 has been the fruit of original contract, or which at least, 
 in the best epochs of its history, bears the mark of 
 mutual and intelligent assent on the part of governors and 
 governed alike — which is based on the accepted axiom, that 
 it is the duty of the one to hear quite as much as it is the 
 duty of the other to obey. 
 
 A glimmering of the value of this right of petitioning 
 was visible in early times.^ In 1647 molDS of apprentices 
 
 1 One of the crimes for which the De Spencers were banished in 
 1321 was their hindering King Edward II. from receiving and 
 answering petitions, and preventing good counsellors advising and 
 speaking with him. — 15 Ed. II. And one of the articles against 
 Lord Strafford was, that he issued a proclamation restraining the sub^ 
 jeots from carrying their complaints of wrongs and oppression to 
 the fountain head. In the time of the three Edwards, however, the 
 right of petitioning the Crown was recognised as the usual mode of 
 redress for private injuries, there being at that period nothing but 
 the loosest notions of jurisdiction.— Mo^n. Ch. (Joh.) c. 44 ; Ibid. 
 (Hen. III.) c. 29; Hot. Pari. temp. Ed. I.; Ed. III. Petitions to 
 Parliament were also early adopted, though till the end of the reign 
 of Richard II. it is said none were addressed separately to the House 
 of Commons. These petitions embraced every variety of grievance. 
 And to enable a selection to be made of those petitions, which were 
 properly submitted, certain Receivers and Triers of Petitions were 
 appointed. — Parry's Pari. 66. And this practice is still continued 
 
32 LIBERTY OF PRESS AND SPEECH. [ra. ii. 
 
 invaded the lobbies of the House of Commons in a dis- 
 orderly way, while presenting their petitions, hustling 
 the Speaker, and forcing him back into his chair. ^ And 
 this showed that the law was not sufficiently defined in 
 this particular -respect. 
 
 Statute relating to meetings to petition Crown and 
 Parliament. — The evils of tumultuous petitioning in- 
 creased, and a statute was required to check it. The Act 
 of 1661 enacts that none shall solicit the consent of more 
 than twenty persons to a petition to the King or either 
 House of Parliament for alteration of matters established 
 by law in Church or State, unless the matter thereof 
 have been first consented to or ordered by three justices 
 of the peace, or the grand jury at Assizes or Quarter 
 Sessions, or in London by the Common Council, and 
 no person shall present any petition accompanied by 
 more than ten persons under a penalty of £100 and three 
 months imprisonment. Provided that this Act shall not 
 hinder any number of persons, not exceeding ten, from 
 presenting any public or private complaint to any members 
 of Parliament, or to the king, for any remedy to be therein 
 had.2 
 
 Subject matter of petitions to Parliament. — So much 
 did the House of Commons encourage petitions of grievance 
 that at the beginning of every new parliament they ap- 
 pointed one grand committee for grievances and another 
 for courts of justice, and both were appointed to sit in the 
 House once a week.^ But this practice was discontinued in 
 1832. In the " Case of Jurisdiction 1666 " it was solemnly 
 
 in tlie House of Lords in point of form. — Hales' Jurisd. H. L. c. 12 ; 
 Mm/s Pari. (8 ed.) 560. Each House, however, now dispenses with 
 any select classification of petitions. The practice of petitioning 
 on political or general subjects did not become usual till the time of 
 the Great Rebellion, and the three reigns following. — 2 Clar Hist 
 Reh. 225, 348; 5 Rushv}. Coll. 459. 
 
 1 3 Pari. Hist. 718, 722. 
 
 2 13 Ch. IL St. 1, 0. 5. The words "solicit the consent" have 
 been understood to mean soliciting the signature. The words 
 " alteration of matters in Church and State" are loose, and lead to an 
 absurdity, for in strictness nearly every possible petition must solicit 
 one or other of these things, and Parhament is constantly altering 
 matters in Church and State, and it must always be right to ask 
 Parliament to alter these. 
 
 3 Com. Journ. 13 Nov. 1731. 
 
CH. II.] RIGHT TO PETITION PARLIAMENT. 33 
 
 resolved, that "it is the inherent right of every Commoner 
 to present petitions to the House of Commons in case of 
 grievance, and of that House to receive them. That it is the 
 right of that House to determine how far such petitions 
 are fit or unfit to be received, and that no court has 
 power to censure a petition to the House of Commons 
 unless transmitted from thence." ^ Again, in 1680 the 
 House of Commons resolved, that "it is and ever hath 
 been the undoubted right of the subjects of England to 
 petition the king for the calling and sitting of Parlia- 
 ment and redressing of grievances. To traduce such 
 petitioning is a violation of duty, and to represent it to 
 his majesty as tumultuous and seditious, is to betray the 
 liberty of the subject, and contribute to the design of sub- 
 verting the ancient legal constitiition of this kingdom and 
 introducing arbitrary power." ^ And a member was expelled 
 for presenting an address to the Crown expressing an 
 abhorrency to petition for the calling and sitting of Parlia- 
 ment. In the same year the House of Commons com- 
 mitted two foremen of grand juries and ordered to be 
 impeached three judges, for expressing detestation or con- 
 tempt of the right of petitioning.^ The Bill of Eights 
 deemed it of sufficient importance to reiterate an express 
 declaration, that " it is the right of the subject to petition 
 the king, and that all commitments and prosecutions for 
 such petitioning are illegal." * In the case of Lord George 
 Gordon it was contended, that the statute of Charles II., so 
 far as imposing restrictions upon petitioners going to Par- 
 liament, was repealed by the Bill of Eights,^ and that the 
 right was by the later Act made absolute and without im- 
 ' pediment ; but the court held that the former act was not 
 so repealed.^ The court also said the questions for a jury in 
 
 1 Skinner's Case, 6 St. Tr. 765. 2 4 Pari. Hist. 1174. 
 
 3 5 Pari. Hist. Apx. No. 18. Yet the form of a petition to the 
 king must not be allowed to cloke a scandalous censure of a judge 
 or court as was the case of Wrenham, who slandered Lord Chancellor 
 Bacon for making a decree against him. — Wrenham's Case, Hob. 
 220. And the Star Chamber fined him 1,OOOZ. The seven bishops 
 were tried and acquitted on an information for a like offence, namely, 
 imder the guise of a petition to King James II., publishing a seditious 
 libel by questioning the dispensing power. — B. v Seven Bishops, 
 12 St. Tr. 183. ■* 1 W. & M. Sess. 2, c. 2. 
 
 5 Ibid. 6 E. V Gordon, Dougl. 592 ; 21 St. Tr. 485 
 
 D 
 
34 LIBERTY OF PRESS AND SPEECH. [ch. ti. 
 
 all cases of any violation of this right were (1) whether the 
 multitude did assemble and commit acts of violence with 
 intent to terrify, and compel the legislature to repeal an 
 act, and (2) whether the prisoner incited, encouraged, or 
 assisted in the insurrection.^ The result, therefore, is, that 
 the act of Charles II. being in force, though it prohibits the 
 soliciting of more than twenty signatures to a petition, yet 
 does not punish those above that number who actually 
 sign, and no sound reason could be shown against the 
 greatest possible number of signatures. Though petitioners 
 actually present, exceeding ten, might appear intimidating, 
 yet the same objection is not applicable to signatures, which 
 in any number cannot practically be prevented or punished. 
 Such a restriction would obviously infringe upon natural 
 liberty, and must be strictly construed.^ 
 
 Petitions to the Crown cmd Parliament must he 
 respectful. — But while the right of petitioning either 
 House of Parliament or the Crown is undoubted, it is 
 equally the rule, that such petition must be respectful, and 
 moderately expressed. As to what will be construed as an in- 
 sulting or disrespectful address, the opinions of one age may 
 differ widely from those of another ; and the tendency of 
 modem times has generally been to allow the fullest lati- 
 tude to every honest expression of opinion on any subject, 
 so long as the words are not libellous or abusive.^ It is 
 difficult to prescribe a limit to the subject matter of these 
 petitions. It is not likely that the people will often abuse 
 the right of petitioning, so much as they did in Charles 
 II.'s time, by praying, that no more Parliaments may be 
 assembled.* The Kentish petition of 1701 was a notable 
 example of using language too bold or overbearing for any 
 Parliament to receive with equanimity, and some of the 
 
 ' R. V Gordon, Dougl. 592 ; 21 St. Tr. 485. 
 
 2 As Beskinb remarked, "in the Bill of Rights the right of 
 assembling and petitioning had been a right claimed with such firm- 
 ness, and contended with so much glorious struggle, that it was not 
 to be exercised only with the permission of magistrates or even of 
 the king himself."— 32 Pari. H. 312. 
 
 3 In 1830, when a man Carlisle presented a petition in favour 
 of emancipation of the Jews, and ofEered to prove at the bar what 
 he therein stated, namely, that the Jews did not murder our Saviour, 
 it was rejected.— 25 Pari. Deb. (2) 412. 
 
 ■• 16 Pari. Deb. 811. Lord North, in 1799, asserted that a petition 
 for a dissolution of Parliament was unconstitutional. — Ihid. 
 
CH. II.] TUMULTUOUS PETITIONING. 35 
 
 signatories to it were committed ; and yet on that occasion 
 it was experienced, how seldom it is politic in P'arliament 
 to be fastidious in scrutinizing the language Of any people 
 suffering under a grievance, even if it be imaginary;^ 
 
 The petition of Lord George Gordon in 1780 wais too 
 rudely presented, and was accompanied with violence.^ In 
 1848 a great Chartist meeting in London was declared by 
 proclamation to be illegal, but the meeting was held peace- 
 ably, and as its fruit a petition was presented with 
 1,900,000 signatures.^ In 1866 a great meeting of the 
 Reform League in Hyde Park was declared by the Govern- 
 
 1 The Kentish Petition of 1701 stated : " "Whatever power is 
 above law is burdensome and tyrannical, and ifiay be reduced by 
 extra judicial nlethods. You are not above the people's resentments ; 
 they that made you members may reduce you to the same rank from 
 whence they chose you, and may give you a taste of their abused 
 Idndness in terms you may not be pleased with. Voting a petition 
 from the gentlemen of Kent insolent is ridiculous and impertinent, 
 because the freeholders of England are your superiors. Suffering 
 saucy, indecent reproaches upon his Majesty's person to be publicly 
 made in your house, particularly that impudent scandal df Parlia' 
 meuts, John How, without showing such resentments as you ought 
 to do. This is making a Billingsgate of the House, and setting up 
 to bully your sovereign."-^5 Pari. Hist. 1254. The petition was 
 presented 6th May. The House ordered five of the signatories to be 
 arrested, and they we're imprisoned with harshness by the sergeant- 
 at-arms. The prorogation took place on 23rd June, when they were ■ 
 .discharged. They were afterwards entertained at a bailcjuet by the 
 Mercers of London ; and when they went home to Kent 500 horse- 
 men welcomed them. The people scattered flowers before them, 
 lighted bonfires, and rang the church bells. 
 
 2 Lord George Gordon called a public meeting to petition against 
 a supposed Popish Bill. Ten thousand met, and though he preached 
 peace and order, they insisted on attending him to the House of 
 Commons, where they resorted to acts of violence. — Lord Abinger, 
 Mem. 267. They swarmed in the lobbies and interrupted the House 
 of Commons by loud knocks at the door, and they seemed on the 
 point of bursting in, so that members were preparing to cut their 
 Way out with their swords. During the motion to entertain the 
 petition Lord George frequently left the House to report the pro- 
 gress of the debate to the mob, thereby exciting them. The king, on 
 the advice of Wedderburn, A.G., took the responsibility of issuing a 
 proclamation, irrespective of the Riot Act, and ordering 10,000 troops 
 to act, and they acted within a few hours on the fifth day of the riots. 
 Lord George Gordon was tried for treason but acquitted. Nearly 
 three hundred lives were lost, in the process of the Life Guards 
 dispersing the mob. — 2 Massm/'s Hist. Eng. 458. 
 . 3 H. 0. 10 Ap. 1848. 
 
 D 2 
 
36 .LIBERTY OF PRESS AND SPEECH. [ch. ii. 
 
 ment to be illegal ; but a mob nevertheless met riotously, 
 and were only dispersed by the military ; and ultimately a 
 part of the park was by statute assigned for the holding of 
 such meetings peaceably.' The Houses of Parliament have 
 often shown great displeasure at receiving petitions aimed 
 against their own constitution, and representing it as 
 corrupt or faulty.^ 
 
 1 23 July, 1866 ; 6 May, 1867. See ante. p. 23. 
 
 '' When Sir F. Burdett, in 1810, was sent to the Tower by the 
 House of Commons for libelling the House in the form of a legal 
 argument against the power of the House to imprison persons not 
 members for libels, a Middlesex petition was presented reminding 
 the House of its having grossly vidlated the rights of the country 
 in the case of Wilkes, and afterwards expunging all its resolutions 
 as subversive qf the rights of electors ; and the petitioners, protesting 
 against this e:^ercise of power, asked the House to expunge all its 
 resolutions ^s to Biirdett. The House went into debate as to whether 
 the petition was not too disrespectful, insulting, and dictatorial to 
 be received, a^id resolved by 139 to 58 not to receive it.^ — 16 Pari. 
 Deb. 818. A petition from the Livery of London was also rejected, 
 owing to its insulting tenor, though couched in the form of " humbly 
 observing.and declaring." — Ibid. 943. On the other hand, a petition 
 from Westminster, which city.Sir F. Burdett represented, and praying 
 the House to reconsider the censure of their representative and re- 
 store him as their representative, and take the state of the repre- 
 sentation of the people into serious consideration, was also objected 
 to by some, but admitted by the House. — 16 Pari. Deb. 728. 
 
 A petition had once before been presented praying to be allowed 
 to prove that seats for legislation in the House of Commons were as 
 notoriously rented and bought as the standings for cattle at a fair, 
 and the petitioner was .threatened with punishment for this scandalous 
 libel.— 16 Pari. H. 887. 
 
 On «ne occasion a petition was presented to the House of Lords, 
 praying — in consequence of the course taken on several then recent 
 occasions, when the bishops had shown such utter forgetfulness of 
 the spirit of their religion — that the Act of Charles II. may be re- 
 pealed, whereby the bishops were restored to the exercise of legis- 
 lative functions. The Lord Chancellor said, that any petition if 
 respectfully worded, should be received ; but the only valid objection 
 to ihis petition was that it assumed a knowledge of how the bishops 
 had voted, which could only be attained by breach of privilege. 
 Another lord objected, that no petition should be received, prajdng 
 that the spiritual peers should be excluded, as the next petition 
 might pray that all the other peers should be excluded, and a third 
 petition that the Grown should be taken from the sovereign's head. 
 The petition was withdrawn. — A.D. 1833 ; 19 Pari. Deb. (3rd) 
 1083. In one case, in 1821, a man tried for blasphemy presented a 
 petition to the House complaining that he had been fined three times 
 in the course of defending himself, and the fines amounted to 100/. 
 
CH. 11.] PETITIONS TO PARLIAMENT. 37 
 
 It is also difficult to guard against fraudulent practices 
 used in procuring, or even forging signatures, in order to 
 enhance the importance of the petition ; but' each House 
 of Parliament treats as a breach of privilege the act of those 
 .who set down without authority the name of any other 
 person to a petition, and has sometimes committed the 
 perpetrators of the fraud to prison.^ 
 
 The petitioner had prepared a long written defence on his trial, 
 and, when stopped, once or twice used insolent words to the judge ; 
 and in his petition insinuated that the judge had imposed the fines 
 to obtain a conviction. The House refused to receive his petition, 
 but a large minority urged that the right of petitioning ought not to 
 be discouraged, however strong may be the language used by the 
 petitioner when defending his interests. — lie Davison, 4 Pari. Deb. 
 ^2nd Ser.) 931 ; 4 B. and Aid. 329. 
 
 1 May's Pari. (8th ed.) 564. A petition to the House of Lords 
 was once rejected for omitting the. word "humbly." — 40 Pari. 
 Deb. 1270. 
 
CHAPTER III. 
 
 FREEDOM OF THE PEESS AND OF COEEESPONDENCE BY POST. 
 
 Liberty of the press, omd its definition. — The liberty 
 of the press means the liberty of publishing whatever any 
 member of the public thinks fit on any subject without 
 any preliminary license or qualification whatsoever, and 
 subject only to this restriction, that if he goes to an ex- 
 treme in making blasphemous, immoral, seditious, or de- 
 famatory statements, then he may be punished afterwards 
 by indictment, information, or by action for such excess. 
 Hence it is obvious that until one knows what are the 
 excesses which the law deems blasphemy, immorality, 
 sedition, or libel, he cannot fully comprehend the extent 
 of liberty he may enjoy.' These are but the mere negative 
 
 1 " Thougli the liberty of the press is in everybody's mouth I am 
 afraid there is nothing less understood than the nature of that liberty. 
 It is by most people taken for a liberty to publish every indecency 
 of any kind against the most respectable persons and the highest 
 characters ; and so strongly does this notion prevail, that a libeller 
 is no sooner prosecuted than a cry is immediately set up that the 
 liberty of the press is endangered. But if the liberty of the press 
 consists in defamation, it were much better we were without any 
 such liberty. The laws and institutions of England know of no 
 liberty peculiar to the press of publishing to the world any de- 
 famatory matter to the prejudice of superior, inferior, or equal. 
 That would be a liberty destructive of all laws and all constitutions. 
 The liberty of the press is the liberty to communicate at an easy ex- 
 pense one's labours and thoughts upon any subject to the whole 
 world ; but it can 'never be understood as any liberty which the 
 press acquired and which was unknown before thf discovery of 
 printing. Whoever attempts to attack any man's character, by 
 writing or publishing defamatory libels, is guilty of a trespass, and 
 can plead no mitigation of his crime either from the nature of our 
 
CH. III.] LIBERTY OP PRESS DEFINED. 39 
 
 restrictions, indicating like finger-posts the forbidden corners 
 beyond which he cannot travel with impunity. But a very 
 little reflection will at the same time teach him,'that every- 
 thing that is interesting to man, every kind of speculation 
 on matters of religion, politics, science, philosophy, or prac- 
 tical hfe can be discussed with perfect freedom, without the 
 writer being either blasphemous, immoral, seditious, or libel- 
 lous. To steer clear of these rocks and quicksands requires 
 the same experience and kuowl_edge which pilots and all other 
 'Skilled workmen require in their daily avocations. Yet the 
 vast range of ocean open to the navigator is so great in 
 proportion to the spaces shiit out, that the positive enjoy- 
 ment represented by the liberty of the press is not only 
 the most intense and sensitive of which a citizen is ca- 
 pable, giving scope to his noblest faculties, and bringing 
 within range his most far-reaching powers, but the restric- 
 tions fall into insignificance, and are altogether inappre- 
 ciable.^ These restrictions, as will be seen, are necessary 
 for the protection of all other fellow citizens who claim 
 equal rights, and have their own affairs to further and pro- 
 tect, and who would otherwise be molested in their own 
 separate pursuits. And hence the liberty of the press in 
 its history and its results is the best of all illustrations of 
 
 constitution or the tenor of our laws, because a great part of our 
 laws are intended for the relief of any person who is injured by 
 another." — Lord Hardwiche, L. C. IQ Pari. Hist. 1330. 
 
 1 " The greatest enjoyment that rational and sociable creatures are 
 capable of is to employ their thoughts on what subject they please, 
 and to communicate them to one another as freely as they think 
 thera ; and herein consists the dignity and freedom of human nature, 
 without which no other liberty can be secure. For what is it that 
 enables a few tyrants to keep almost all mankind in slavery, but 
 their narrow and wrong notions of government, which is owing to 
 the discouragement they lie under of mutually communicating, and 
 consequently of employing, their thoughts on political matters, 
 which did they do, it is impossible that the bulk of mankind should 
 have suffered themselves to be enslaved from generation to genera- 
 tion. But the arts of state, in most countries, being to enslave the 
 people or to keep them in slavery, it became a crime to talk, much 
 more to write, about political matters ; and ever since printing has 
 been invented there have been in most places state licensers, to 
 hinder men from freely writing about government, for which there 
 can be no other reason but to prevent the defects of either the 
 government or the management of it from being discovered and 
 amended."— 5 Pari. Eist. Apx. No. 13. 
 
40 LIBERTY OP PRESS AND SPEECH. [ch. hi. 
 
 the definition of the law already given, namely, " the sum 
 of the varied restrictions on the actions of each individual 
 ■which the supreme power of the state enforces in order 
 that all its members may follow their occupations with 
 greater security." 
 
 The civilisation of one country differs from that of 
 another in so far as it dispenses with any preliminary 
 license, and narrows and makes more definite, clear, and 
 reasonable the restrictions that require in some form or 
 other to be maintained. It cannot be denied that like 
 restrictions are necessary in all countries, for there are 
 times when an envenomed scurrility against everything 
 sacred and civil, public and private, rages throughout the i 
 kingdom with a furious and unbridled license.^ These hurri- 
 canes may, it is true, after a time clear the air. And this 
 whole chapter of the law is founded on the fundamental 
 truth, settled after centuries of misguided zeal and energy, 
 that thought and speech are beyond the reach of all govern- 
 ments and laws, and cannot be extinguished or dictated to 
 except at the expense of life itself — that therefore it is 
 idle, impotent, and vain for the law to attempt to do what 
 is impossible, and that it is the highest wisdom to confine 
 itself to the narrower province, of regulating by the smallest 
 number of restrictions the enjoyment and exercise of this 
 natural illimitable force. 
 
 The basis of the liberty of the press is thus what a 
 master of the subject has well pointed out : — " Every man 
 not intending to mislead, but seeking to enlighten others 
 with what his own reason and conscience, however erro- 
 roneously, have dictated to him as truth, may address him- 
 self to the universal intelligence of a whole nation, either 
 upon the subject of governments in general, or upon that 
 of his own individual country. He may analyse the prin- 
 ciples of its constitution — point out its errors and defects — 
 examine and publish its corruptions — warn his fellow- 
 citizens against their ruinous consequences, and exert his 
 whole faculties in pointing out the most advantageous 
 changes in establishments which he considers to be ra- 
 dically defective or sliding from their object by abuse. 
 All this every subject of this country has a right to do, if 
 he contemplates only what he thinks would be for its 
 1 1 Pat. Com. (Pers.) 27. 2 Burke, Pres. Discont. 
 
CH. III.] LIBERTY OP PRESS. 41 
 
 advantage, and but seeks to change the public mind by 
 the conviction ■which flows from reasonings dictated by 
 conscience."! 
 
 Liberty of the press ths greatest of all liberties. — The 
 liberty of the press as thus understood has been described 
 as the palladium of the constitution, and as that which 
 ■will command an audience when every honest man in the 
 kingdom is excluded ; ^ as Lord Camden said, it is the 
 greatest engine of public safety;* and to which, as Fox 
 said, the modern improvement in the science of govern- 
 ment was entirely owing,* and indeed to which it is owing 
 in a great measure that we CDJoy any liberty at all.^ The 
 freedom, with which skilful writers can animadvert on the 
 conduct of all public men and public measures, acts as a 
 check on every kind of misgovernment, and baffles most of 
 such attempts sooner or later. It gives dignity and a sense 
 of security to the whole people when they know that some 
 champion will be forthcoming or is ever on the alert, able 
 to meet all comers, whenever an abuse is discovered, a 
 grievance felt, or an evil is to be redressed, and that there 
 is no machinery by which any interested party can be sure 
 of enforcing absolute silence. Though Parliament at first 
 misunderstood the power of the press, and like other 
 powers, feared some new rival, yet when these great engines 
 are allied, it is seen how they are the complement of each 
 other, and that neither could put forth half its strength 
 without the other being ready to second it. The power of 
 
 1 Ershine, arg., R. v Paine, 22 St. Tr. 357. " There is one country 
 (England) where man can ifreely exercise his reason on the most 
 important concerns of society, where he can holdly publish his 
 judgment on the acts of the proudest and most powerful tyrants." — 
 Sir J. Mackintosh, E. v Peltier, 28 St. Tr. 529. "The liberty of tho 
 press — that sacred palladium which no influence, which no power, 
 no minister, no government — which nothing but the depravity, or 
 folly, or corruption of a jury can ever destroy." — Cim'an, arg., E. v : 
 
 . Rowan, 22 St. Tr. 1087. 
 
 2 Junius, Pref. ^ l_ Camden, 29 Pari. Hist. 731. ■» C. J. 
 Fox, 29 Pari. Hist. 553. 
 
 = L. Talbot, 10 Pari. Hist. 1333. See also eulogies of Milton, 
 Areop. ; 1 Macaulay, Hist. c. 10, quoted 1 Pat. Com. (Pers.) 62. 
 QuETELET (" Sur I'homme," 289) said, that the press tends to 
 deprive revolutions of their violence by hastening the period of 
 reaction. 
 
42 LIBERTY OP PRESS AND SPEECH. [ch. hi. 
 
 eacli is at least immeasurably enhanced by calling in aid 
 the other as its natural ally.^ 
 
 The ancients on free speech and thought. — The liberty 
 to speak and think was confined in early times within 
 narrow limits by the mere mechanical conditions incident 
 to the small audiences on which any one human voice 
 was necessarily spent ; and by the difficulties attend- 
 ing the circulation of writings as articles of property .^ 
 
 1 " English freedom," as Fox observed, " does not depend upon 
 the executive government nor upon the administration of justice, 
 nor upon any one particular or distinct part, nor even upon 
 forms, so much as it does on the general freedom of speech and 
 of writing. Speech ought to be completely free. The press ought 
 to be completely, fiee, when any man may write and print what 
 he pleased, th6ugh he is liable to be punished if he abused 
 that freedom. This is perfect freedom. If this is necessary with 
 regard to the press, it is still more so with regard to speech." " I 
 have never heard of any danger arising to a free state from the 
 freedom of the press or freedom of speech : so far from it I am per- 
 fectly clear, that a free state cannot exist without both. It is not 
 the law that is to be found in books that constitutes — that has con- 
 stituted the true principle of freedom in any country at any time. 
 No, it is the energy, the boldness of a man's inind which prompts 
 him to speak not in private, but in large and popular assemblies, 
 that constitutes, that creates in a state the spirit of freedom. This 
 is the principle which gives life to liberty; without it the human 
 character is a stranger to freedom. As a tree that is injured at the 
 root, with the bark taken ofB the branches, may live for a while, and 
 some sort of blossom may stiE remain, but it will soon wither, 
 decay, and perish, so take away the freedom of speech or of 
 writing, and the foundation of all your freedom is gone. You will 
 then fall and be degraded and despised by all the world for your 
 weakness and your folly in not taking care of that which conducted 
 you to all your fame, your greatness, your opulence, and prosperity." 
 —0. J. Fox. S. G. 1796, 32 Farl. Mist. 419. 
 
 " Give me but the liberty of the press, and I will give to the 
 minister a venal House of Peers. I will give him a corrupt and 
 servile House of Commons. I will give him the fuU swing of the 
 patronage of office. I will give him the whole host of ministerial 
 influence. I will give him all the power that place can confer upon 
 him, to purchase up submission, and overawe resistance ; and yet, 
 armed with the liberty of the press, I will go forth to meet him un- 
 dismayed — I will attack the mighty fabric he has raised with that 
 mightier engine. I will shake down from its height corruption, and 
 bury it beneath the ruins of the abuses it was meant to shelter." — 
 Sheridan, H. G. (1810), 15 Pari. Deb. 341. 
 
 ^ The mode in which Atticus used to collect books was by em- 
 ploying his slaves to go and copy them ; and copies were thus made 
 also for sale, for the common profit both of the slave and the master. 
 
CH. in.] RESTRICTIONS ON PRINTERS. 43 
 
 But when the art of printing was discovered, and it then 
 became apparent, that the audience grew from hundreds to 
 thousands, and the voice penetrated to the market, the 
 barracks, the cloister, the plough, and the loom, and every 
 abode from the palace to the hut, and covered continents 
 instead of one small chamber, governments became per- 
 plexed how to deal with this new force, the mischiefs of 
 which were at first only discerned, and these in exaggerated 
 proportions. Even the ancients indulged in some maxims 
 which had an air of liberality and foresight. But this 
 was chiefly because the difficulty to be confronted had not 
 then really arisen.^ Their thoughts, therefore, on all that 
 concerns the liberty of the press are trifling and inadequate. 
 They had a vague notion that people might think and 
 speak very much as they liked, but this was coupled with 
 the certain knowledge, that the audiences must be always 
 small, and incapable of leading to combination and resist- 
 ance without their beginnings and stages being visible and 
 easily checked. Their practice as to blasphemy will be 
 found quite as intolerant as those of any of their successors, 
 and their false gods were protected as jealously as if they 
 were true. 
 
 Early restrictions as to number of printers. — At 
 first printing was treated, like the making of sal ammoniac, 
 and apprentices were cautioned not to lay open the prin- 
 ciples to the ujifaithful.^ After the invention of printing 
 came to be understood and practised, governments at first 
 bethought themselves of the expedients in their power 
 wherewith to controul it ; and two things at first seemed 
 wise and indispensable. The first was to limit the num- 
 ber of printers ; and the second was to see, that nobody 
 
 —Middleim's Cicero, 136. In the time of our Henry II. a like office 
 was done by monks, scribes, and illuminators. 
 
 1 It was remarked that Augustus was the first to keep his eye on 
 defamatory libels, owing to Cassius Severus being accustouied under 
 feigned names to deal freely with public characters. Yet Tiberius 
 used to say that in free states both the tongue and the mind must 
 be fiee.— Suet. Tib. It was said that in Trajan's time, as his highest 
 praise, every man might think what he pleased, speak what he 
 thought, and that the only persons who were hanged were the spies 
 and informers, who used in former reigns to make it their trade to 
 discover crimes. — Tacit. Hist. b. i. 
 
 2 Becket v Denison, 17 Pari. Hist. 958. 
 
44 LIBERTY OF PRESS AND SPEECH. [ch. iir. 
 
 presumed to publish anything, until an archbishop or high 
 functionary first satisfied himself that the foundations of 
 the terrestrial economy would not be shaken to their 
 centre by the explosion. ^ And these crude and barbarous 
 notions were mixed up with a still more confused and half 
 understood theory of copyright. The period of the Eefor- 
 mation opened up men's minds and made them think, and 
 after thinking they published their thoughts plentifully. The 
 statute of 1633 recited that a marvellous number of printed 
 books had been brought into the realm since the statute 
 allowed aliens to print them as well as import them, 
 and to encourage native industry foreign bound books 
 were thenceforth prohibited to be imported or bought from 
 foreigners ; and the Lord Chancellor, Lord Treasurer, and 
 two Chief Justices were to regulate the price of books, as 
 well as of the binding of them.^ The Crown seemed to 
 assume as a matter of course, that no subject had any 
 business to think or publish his thoughts without its 
 license. Hence Edward VI. appointed by patent a printer 
 who was to print and sell all Latin, Greek, and Hebrew 
 books, as well as all others that might be commanded, and 
 penalties were denounced against infringers.^ In Queen 
 Elizabeth's time there was still a complaint of the excessive 
 number of presses.* In 1637 the Star Chamber, which 
 
 1 " The press being introduced into this country by Henry VII., an 
 opinion prevailed that it was part of the prerogative of the king to 
 govern it, and that opinion was not eradicated for many ages. This 
 was perhaps not unnatural, the press being introduced by the king 
 and the art of printing being by his munificence communicated to 
 his subjects, and he having at first licensed certain persons only to 
 print." — Scarlett, arg., R. » Burdett, L. Abing. Mem. 297. 
 
 2 1 Rich. 3 c. 9 ; 26 Hen. VIII. o. 15. This latter statute was sup- 
 posed to be really aimed at keeping out the Lutheran books. In 
 France also, in 1533, the Sorbonne petitioned Francis I. that to save 
 religion it was necessary to abolish for ever, by a stern edict, the 
 art of ^imtmg.— Rapport, Lib. de la Presse, 1879. 
 
 ^ 4 Herbert and Ames, 1 (Dibd. ed.) 
 
 ^ In 1585 Whitgift obtained an order of the Queen that there 
 should be no printing-press except in London and the two Univer- 
 sities ; and no book should be printed that had not been read by the 
 Archbishop or Bishop of London or their chaplain. — 1 NeaVs Purit. 
 369 ; Strype's Whitgift, 223. And yet private and travelling presses 
 Vere not unknown at that time, as was obvious from the trial of 
 Knightley, who favoured the Puritan party in attacking the Church 
 of England.— 2 Camden, Eliii. 550 ; 1 St. Tr. 1271. It was near the 
 
CH. III.] THE LICENSING ACT^. 45 
 
 never hesitated to assume the most preposterous powers, 
 issued a decree to regulate the press. Those who printed 
 books, not being qualified, were to be sentenced to whipping, 
 the pilloiy, and imprisonment. Books imported were first 
 to be examined by the archbishop and bishop, who had 
 power to seize all seditious, schismatical, or offensive 
 productions. The Long Parliament, in 1645, following in 
 the same track, passed a most tyrannical ordinance to 
 repress disorders in printing, and they authorised doors to 
 be broken open day or night to search for unlicensed 
 printing-presses, authors, and binders. At last all this 
 floating extravagance and confusion of ideas came to a 
 head not long afterwards. The Licensing Act of 1662 was 
 an elaborate exposition of the views of the legislature with 
 regard to the position of the press, and nearly eveiy point 
 of its crude details has since been reversed.^ This Act was 
 
 middle of the eighteenth century before printing,' which had pre- 
 viously been confined chiefly to London, became generally practised 
 in country towns. — Genfs Life, 20. 
 
 ^ The Licensing Act of 1662 prohibited the publication of seditious 
 and heretical books, pamphlets, and papers. No person was to print 
 any book, unless it was first entered with the Stationers' Company, 
 and unless duly licensed and authorised. And this license, if the 
 book was concerning the laws, was to be granted by the Lord Chan- 
 cellor or a chief justice : if concerning history, by a Secretary of 
 State : if concerning divinity, physio, philosophy, or science, by the 
 Archbishop of Canterbury or Bishop of London, with a saving in 
 favour of the Universities for their own publications. The license 
 was to be printed at the beginning of the book. , No book was to be 
 imported without episcopal license. No person was to print or im- 
 port books without the consent of the person who, by virtue of 
 letters patent granted or assigned, or by virtue of an entry in the 
 Stationers' Company's books, or in the University register book, has 
 the right solely to print. No person was to print a book without 
 putting his name thereto, and being liable to declare the name of 
 the author also. No one was to sell books without a license of the 
 bishop, and without serving an apprenticeship. No one was to keep 
 a printing-press, or even to make one, or to make type, without first 
 giving notice to the Stationers' Company. There were to be no 
 mord than twenty master printers, and these were to be licensed by 
 the archbishop or bishop, and each was to be bound in a recog- 
 nisance of 3001. None was to keep more than two printing-presses 
 without license. The master printers were bound to employ all 
 journeymen printers, except foreigners, on application ; and if the 
 latter refused to work, they were to have three months imprison- 
 ment. A king's messenger, under a warrant of a Secretary of State 
 or Master of the Stationers' Company, might, with a constable, at 
 
46 LIBERTY OF PEESS AND SPEECH. [oh. hi. 
 
 continued by various Acts, tlie last of which, 1 James II. 
 c. ] 7, § 15, continued it for seven years, from 24th June, 
 1685, and to the end of the next session of Parliament; 
 and accordingly in 1692 it finally expired.^ 
 
 The rule meanwhile was boldly laid down and acted 
 on, that the king at common law^ad a prerogative to 
 govern the printing-press, and that this was necessary to 
 religion and the conservation of the public peace, and that 
 no author could publish any book without first getting his 
 license ; the doctrine being, that the printing of a book 
 was like building a castle, and no man could make sea- 
 marks or beacons without license,^ and " a book might 
 rouse as great a dust and alarm as a beacon."' And it 
 was solemnly declared, that matters of state, and things 
 that concern the government, could not safely be left to 
 any man's liberty to print. In 1666 an Order in Council 
 directed the Stationers' Company to seize and deliver up 
 to the Secretary of State all copies of Buchanan's History 
 of Scotland as pernicious to monarchy and injurious to 
 his Majesty's blessed progenitors.* 
 
 Restrictions on printers as to Tcee/ping copies wnd 
 putting their names on papers. — It thus appears that , 
 when printing came to be first practised in this country, 
 
 any time he thought fit, search all houses and shops, except the 
 houses of peers, where they suspected books to be printed and 
 bound, or presses to be kept without license, and seize books and 
 offenders, and put the latter in prison till trial. And if the searchers 
 found a book which they thought contrary to the doctrine of the 
 Church of England, or against the Government, such book was to 
 be taken to the Bishop or a Secretary of State. — 14 Ch. II. c. 33. 
 
 By one of these Licensing Acts of 1665 every printer was bound 
 to present three copies to the Stationers' Company, one for the king, 
 and one for each of the two Universities. — 17 Ch. II. c. 4. . 
 
 1 It took half a century after the Licensing Act expired before 
 legal authors and judges outgrew the practice of soliciting and giving 
 this license. Thus in case of Viner's Abridgement, published in 
 1746 (24 vols.) there are thirteen judges who formally sign a certifi- 
 cate allowing the printing and publishing. 
 
 In France the ideas of the legislature were similar. M. Sabot 
 found in his statistical researches that from 1660 to 1756 no less 
 than 869 authors, printers, and booksellers had been arrested and 
 confined in the Bastille for publishing works against the king, 
 government, religion, and morals. — Rapport, Lib. de la Presse, 1879. 
 
 2 Carter, 89 ; 18 Ch. IL (1666). s i Mod. 268. * Kennett's 
 Register, 176. 
 
CH. III.] PRINTEES TO KEEP COPIES. 47 
 
 the Crown and the Star Chamher assumed jurisdiction 
 over it by way of limiting the number of presses, and 
 requiring a license to use them. And this mode of con- 
 troul sufficed during the extraordinary activity developed 
 by the Long Parliament and the contest between it and 
 the Crown as to the first principles of government. The 
 licensing act of Charles II. continued a like controul. But 
 the epoch of the French Ee volution and' the contagion 
 of the doctrines then prevalent in that country led to 
 some minute details as to printers being again prescribed. 
 In 1799 it was enacted, and is still law, that every person 
 printing for hire shall keep for six months one copy of 
 every paper printed by him, and shall write thereon the 
 "ntime and place of abode of the person who employed 
 him so to print ; and if he fail in either of these parti- 
 culars, or fail within six months thereafter to produce to 
 a justice of the peace a copy so marked when demanded, 
 Jie iflturs a penalty of £20.' Another obligation incum- 
 HDent on printers was, and still is, that they shall print 
 their own names and places of business either on the firont 
 or on the first or last leaf of all papers or books intended 
 K>r circulation or publication, and of which they require 
 Ho keep a copy. The penalty for omitting this is forfeiture 
 of five pounds for every copy so printed.^ And not only 
 the printer, but the publisher and every person who shall 
 assist in dispersing papers, not having the printer's name 
 thereon, incurs this penalty. Though any volunteer in- 
 former was, until 1846, entitled to half the penalty for 
 prosecuting this offence,* now no prosecution is allowed 
 unless it is in the name of the law officers.* And the 
 prosecution cannot be instituted a;fter three months from 
 the time when the penalty was incurred.^ The object of 
 
 1 39 Geo. III. c. 79, § 29 ; S2 & 33 Vic. c. 24. This obligation 
 does not, indeed, apply to mere trade circulars, bank notes or 
 securities, deeds, and transfers of stock, or to engravings. — 39 
 Geo. III. c. 79, § 31 ; 51 Geo. III. c. 65, § 3. The Act 32 & 33 
 Vic. c. 24, specifies various mercantile documents on which the 
 printer's name need not appear. 
 
 2 39 Geo. III. c. 79 ; 2 & 3 Vic. c. 12, § 2. The words " University 
 Press " and " Pitt Press " are sufBcient.— Ibid. § 3. ^ 39 Geo. III. 
 c, 79, § 36. 1 9 & 10 Vic. c. 33, § 1. 
 
 5 39 Geo. III. c. 79, §§ 34, 35 ; 32 & 33 Vict. c. 24. In 1811 the 
 printers petitioned the House of Commons to relieve them from the 
 
48 LIBERTY OF PRESS AND SPEECH. [ch. in. 
 
 this enactment' is to discover the printer of every puhlica- 
 tion, and through him th6 author. And such is the effect 
 of the direction, and of the penalty for omitting to obey 
 it, that a printer who has neglected it cannot recover the 
 stipulated price, for no one can recover for work and 
 labour done in direct violation of law.^ But a piratical 
 publisher cannot take advantage of the omission. Thus, 
 where a publisher was infringing the author's copyright, 
 by selling copies printed without the author's consent, it 
 was held no defence for him when sued that the printer's 
 name was not on the copies printed and sold, as required 
 by the statute.* 
 
 Printers' contracts and custom of trade. — The con- 
 tract of a printer to print a work is not classed under tie' 
 head of contracts for the sale of goods, and hence does not, 
 in order to be binding on the author or publisher, require to 
 be in writing pursuant to the Statute of Frauds. It is 
 merely a contract to do work and labour and supplf ma» 
 terials, and can be proved by word of mouth.* And hence, 
 when a printer after printing part of a work .stopped on 
 discovering that it was libellous, and sued the author for 
 work and labour so far as he had gone, he was held eiffl 
 titled to recover his charges.^ But when both printer and* 
 author engage in printing a work which is immoral, such as 
 the adventures of a prostitute, neither can sue the other, as 
 the whole foundation of their contract is bad.^ And, like 
 other contractors, the printer has a lien on the printed 
 
 -risk of putting their names to printed papers, for, by a moment's 
 f orgetfulness, they might forfeit 100,000^. At that period a man 
 went about pretending that he wanted title-pages to an Elzevir 
 edition of Cicero. It was a trap, and one printer, omitting to put 
 his name to the page, incurred the above penalties. Another omitted 
 to add " London " after Paternoster Row. The petitioners accord- 
 ingly, warned by these risks, sought an amendment of the Act, 39 
 Geo. III. c. 79.— 19 Pari. Deb. 181, 441. And the penalties were 
 accordingly reduced to a small maximum by an Act of 61 Geo. III. 
 c. 65 (repealed in 1868). And now, as the prosecution is allowed 
 only by the law officers, this last requirement will usually protect 
 printers against the penalties still in force, moderate as they are 
 
 1 39 Geo. in. c. 79, § 29. , 
 
 2 Bensley v Bignold, 5 B. & Aid. 335 ; Houston v Mills, 1 M. & 
 Rob. 325. 3 2 & 3 V. c. 12, § 2 ; Chappell v Davidson, 18 C. B. 
 194. < Clay v Yates, 1 H. & N. 73. 6 ibid. 6 Poplett 
 V Stockdale, 2 C. & P. 198. 
 
CH. III.] REGISTERING PRINTING PRESSES. 49 
 
 copies not delivered for the general balance of account in 
 printing former parts of the same work, just as a tailor who 
 makes a suit of clothes has a lien for the whole price on 
 any part of such clothes.^ And by the custom of the trade 
 a printer cannot recover the price of printing a work be- 
 fore the whole is delivered.^ And hence, when a fire broke 
 out on his premises before the whole number of copies were 
 printed, he was held not entitled-to recover anything, though 
 one third of the copies had actually been delivered.' But 
 tliere is no custom of the trade, by which &■ printer is 
 bound, at his own expense, to insure for the benefit of the 
 bookseller, the paper which he has on hand for the purpose 
 ^f printing his books.* 
 
 Registration of printing presses. — The registration of 
 printing presses was practically enforced from the time of 
 Henry VIII. and Edward VI., for the earlier laws and or- 
 1 dinances all required the presses to be in a small number- 
 l^f hatids, and these well known to the authorities. The 
 licensing Act of 1662, as has been seen, expressly required 
 notice of the keeping of a press to be given to ■ the Sta- 
 tioners' Company.. After that Act expired the former re- 
 Htiirement was soon again demanded. In 171-S, Queen- 
 Anne having noticed in her message the increase of libels, 
 the House of Commons resolved, that all printing presses- 
 should be registered, along with the names and places of 
 abode of owners, and that the name and place- of abode of 
 all authors, printers, and publishers, should be set to each 
 book.^ This design of registering printing presses and 
 type 'makers seems- however not to have been carried out 
 
 1 Blake w Nicholson, 3-M. & S.. 167. But a printer who has stereo- 
 type plates put into his hand for printing from them has no such 
 lien, unless he can prove an express contract to that efEeot, or a 
 custom of trade.— Bleaden v Hancock, 4 C. & P. 152 ; M. & M. 465. 
 
 2 Gillett V Mawman, 1 Taunt. 137. ' Adlard v Booth, 7 C. & 
 P. 108. 
 
 < Mawman v Gillett, 2 Taunt. 325. Any person who prints a 
 copy of a proclamation, order, or regulation which falsely purports 
 to have been printed by the Government printer, or under the 
 authority of the legislature of a British colony or possession, or 
 knowingly tenders in evidence such document, is guilty of forgery. 
 ■—31 & 32 Vic. c. 37, §§ 4, 5 (five years' penal servitude or two years' 
 imprisonment). 
 * 6 Pari. Hist. 1125. 
 
 E 
 
50 LIBERTY OP PRESS AND SPEECH. [ch. hi. 
 
 till 1799,1 and the law was altogether repealed in 1869,^ 
 so that now registration is no longer required. 
 
 Early practice of a censorship of the press. — Besides 
 the device of restricting the number of printers, which the 
 mere growth of business soon rendered impracticable, all 
 Oovernments at first thought it absolutely necessary to 
 appoint a censor, in order to watch over the beginning of 
 all writings and permit such only to be published as he 
 sh<3uld think proper. This notion was founded on the 
 simple faith that books were like gunpowder or poison, 
 which if once made, the mischief might be irreparable. 
 And in working this principle oiit, as the clergy were more 
 distinguished for learning than any other class, this ap- 
 pointed function of censorship seemed naturally to be 
 devolved chiefly upon them. Even Plato thought that a 
 censorship was the only way of preventing lewdness in 
 authors.^ The early Christians soon thought it was also a 
 matter on which they should lay down rules. By the 
 Council of Carthage in 400, bishops were prohibited from 
 reading the books of the Gentiles, though the primitive 
 councils up to that time had left the reading of such books 
 to the conscience of each. The dread of heresy grew more 
 and more urgent. The Popes after 800 began to be more 
 and more intolerant, and Martin Vibart, 1420, was said to 
 be the first who excommunicated those who read prohibited 
 books.* A bull of Leo X., in 1515, required bishops and 
 inquisitors to examine all books before printing, and to 
 suppress heretical opinions. 
 
 In England the same views prevailed. A statute of 
 Henry VIII. prohibited womfen and artificers from reading 
 the Kew Testament in English, though noblewomen were 
 excepted ; and the Lord Chancellor and the King's Justices 
 were also excepted, for it was then deemed not improbable 
 they might not only read but expound a chapter with 
 proper safeguards.^ In Queen Elizabeth's injunctions about 
 the clergy in 1559, she recited the abuse of printer's books, 
 and commanded that no person shall print any paper except 
 first licensed by her Majesty or six of her Privy Council or 
 the archbishops, bishops, and the archdeacon, and the name 
 
 1 39 Geo. TIT. c. 79. 2 32 & 33 Vic. p. 24. 3 Plat, de Leg. 
 
 b. vii. '' Blount's Vindic. Lib. Press, 5 ; Bayle's Diet. Maccbiavelli 
 says it was Leo X. » 34 & 35 Hen VIIL c. 1. 
 
CH. Ill ] CENSORSHIP OF THE PRESS. 51 
 
 of the licenser was to be added, and no pamphlets, ballads, 
 or plays, were to be printed without the license of three 
 Commissioners appointed to execute statutes for uniformity 
 in London. But profane authors and school books were 
 excepted.^ The decree of the Star Chamber in 1637, as 
 already stated, also ordered all books to be licensed by the 
 Archbishop of Canterbury or the Bishop of London, or 
 their substitutes. The Long Parliament, imbued with the 
 same notions and fears, passed several acts for the regula- 
 tion of printing, whereby they enforced a previous license 
 of books and the printing of the printer's name, as well as 
 a license for printing presses, and also gave power to seize 
 those that were unlicensed, and also power to enter houses 
 and apprehend the authors or sellers.^ In 1662 the Licen- 
 sing Act, ^ as elsewhere stated, prohibited the printing of a 
 book until it was first licensed and registered at Stationers' 
 Hall ; also until the consent of the author was obtained. 
 That Act was continued several times, and during William 
 and Mary, till it came to an end in 1692.* The immediate 
 cause of the abolition of the office of censor was the strik- 
 ing incapacity of one of its holders, if indeed the greatest 
 of intellects could, in any age or time, be equal to the task 
 of drawing the line in so delicate a busiaess.B 
 
 1 1 Somers' Tracts, 72. ^ Scobell's Acts, 1643, 1647, 1649 ; 
 
 H. L. Journ. 16 Sep. 1647.. 3 13 ch. II. c. 33, ante, p. 45. 
 
 * 1 Jas. II. c. 7 ; 4 W. & M. c. 24. It was strange that in the 
 Declaration of Rights no one thought of expressly repealing the 
 statute which then subjected the press to a censorship ; and this 
 showed, as a great authority has remarked, " how little it was as yet 
 understood that the liberty of discussion is the chief safeguard 
 of all other liberties." — 1 Macaulay, Hist. c. 10. 
 
 5 The censor of the press in 1692 had, in his zeal for divine right, 
 refused his sanction to a History of the Bloody Assizes. Blount 
 attacked the principle of a censorship. One Bohun had, while 
 censor, licensed unawares a book which the House of Commons 
 resolved ought to be burnt by the common hangman, and he was 
 ordered to be dismissed and committed to prison. This event opened 
 the eyes of men to the worthlessness of the function of a censor, 
 and the booksellers and printers joined in the complaints. The Act 
 was not renewed after 1692. Newspapers were commenced alnvost 
 immediately thereafter, and increased rapidly. — Macaulay, Hist. 
 c. 19. 
 
 In France Lewis XV., in 1724, by a decree, made it compulsory 
 for all printers to get a license from the parish priest, that they were 
 sound in the iaxth..— Rapport, Lib. de la Presse, 1879. 
 
 E 2 
 
52 LIBERTY OF PRESS AND SPEECH. [ch. hi. 
 
 The vocation of the censor, after existing more or less 
 since the introduction Of printing and for more than two 
 centuries, has thus been abolished for 1 88 years, for all 
 writings ; and the only vestige of anything akin to it 
 which is left outstanding is found in the practice of 
 licensing plays, which is noticed in another place.^ The 
 extraordinary powers vested in the Attorney-General of 
 filing criminal informations have sometimes been repre- 
 sented as the nearest approach to a censorship, though this 
 last remedy merely follows swiftly instead of preceding 
 the development of the danger.^ 
 
 Early doctrines as to publication of news. — While 
 a censorship was more or less shadowed forth by the com- 
 mon law, or at least was early taken up by the statute- law, 
 as inevitable for all publications, and that office was legalised 
 by means of the Licensing Act, yet when that Act expired 
 the fetters fell off for ever, without the prospect of renewal. 
 It was not to be wondered, that newspapers should have 
 met with a like experience. Though at first unknown and 
 long obscure, these have gradually developed into the most 
 powerful of all the forms of publication, and the most 
 transcendent of all the means of free thought, and so have 
 attracted the vigilant care of the legislature and the law. 
 The judges at first rigorously applied to them the maxim, 
 either derived from common law or involved in statute law, 
 that to publish news of any kind, especially such as related 
 to Government and to the public generally, required a 
 license of some kind from the Sovereign. Britton seems 
 to treat it as in his time an indictable offence to invent 
 and report rumours and falsehoods concerning the king.* 
 Coke thought that it was the common law, founded 
 on the law of God, that the author of false news was 
 punishable.* The common law, indeed, according to the 
 dicta of early judges seems to have treated circulation of 
 news as the same as the circulation of lies, and which it could 
 scarcely be an honest employment to collect and publish. 
 But subsequent experience has reversed these crude notions, 
 and shown, that much of the interest of mankind is attracted 
 by the reading of narratives of contemporary circumstances 
 and events which may or may not be true, and the truth 
 
 1 See post, chap. xi. " See post, chap. v. * jjpitt. b. i. c 21. 
 * 2 Inst. 228. 
 
CH. III.] STATUTES AGAINST FALSE NEWS. 53 
 
 of which is either taken for granted, or their verification 
 willingly postponed till the accidents of the future confirm 
 or falsify, them. The business of collecting news, whether 
 true, or merely probable and as near the truth as is attain- 
 able for the moment, is thus viewed as a creditable employ- 
 ment, and is at least entitled to the equal protection of the 
 law. And when the collection of news is accompanied 
 with the comments of intelligent editors, this form of 
 publication has assumed the most commanding influence 
 over mankind, and is now almost pant of -daily life and 
 education, and insensibly moulds the minds of all citizens. 
 Oldest statute lavf as to false news. — The old law on 
 the subject of false news is founded on the statute of West. 
 I. in 1275, which commanded, that "none be so hardy as 
 to tell or publish any false news or tales, whereby discord or 
 occasion of discord or slander may grow between the king 
 and his people or the great mem of the realm, and he that 
 doth so shall be taken to prison till he has brought into 
 court him who did speak the same." ^ And Coke gives as 
 instances of the mischief caused by false bruits and 
 rumours the battles of Lewes and Evesham ; and says the 
 statute leduced the punishment to the milder form of im- 
 prisonment, which formerly was cutting out the tongue, 
 unless the whole head could be redeemed. The next 
 statute, of 1378, as to Scandolum magnatum., narrating the 
 horrible and false lies of great men (specifying most of the 
 high functionaries and peers), again forbids " any one to be 
 so hardy as to devise, speak, or tell any false news, lies, or 
 other false things of such great men," and repeated the 
 same punishment.' The next statute, of 1388, went a little 
 
 1 Stat. West L, 3 Ed. I. c. 34; 2 Inst 225; K. w Derby, 
 Fortescue, 140. 
 
 ^ 2 Kich. II. St. 1, c. 5. The first statute was said to be suggested 
 by the Duke of Lancaster, who was unpopular with the villeins of his 
 time, and yet it was said no action had been brought on that statute 
 for lOQ years.— 3 Reeves' Hist. 211 ; 1 Pari. Bist. 160 ; 1 Mod. 233 ; 
 2 Mod. 164-6. Wickham had slandered John of Gaunt with ille- 
 gitimacy. — ilnsi. 51. A man was put in the pillory with a whetstone 
 round his neck by the aldermen of London for circulating false 
 reports about a murder having taken place in the city, and reflecting 
 on the insufficiency of the watchmen. — Riley, Mem. Land. 454 
 (a.d. 1381). And in 1382 another who went about in the city 
 saying, "The Lord Mayor had been committed to the Tower of 
 London, there to be imprisoned in the Blackhole," was treated in the 
 
54 LIBERTY OF PRESS AND SPEECH. [oh. hi. 
 
 further, and enacted, that if the author of the lies and false 
 news cannot be found, then he who repeats them shall be 
 punished by the advice of the conocil, notwithstanding the 
 statutes.! Statutes of a like kind followed in the reign of 
 Edward VI. and Elizabeth.^ There seemed to be soon after 
 the Eeformation an abuse of propliesying, for a statute of 
 1549 punished with imprisonment and fine whoever set forth 
 in speaking, singing, writing, printing, or publishing any 
 fantastical or false prophecy on the occasion of any arms, 
 fields, letters, &c., with intent to raise insurrection or 
 disturbance. And Coke says lamentable and fatal events 
 had fallen out upon vain prophecies carried out of the in- 
 ventions of wicked men ; and that predictions either of the 
 time or end of the world were not lawful, and are contrary 
 to Scripture.' 
 
 Right to publish news generaEy. — These statutes show 
 how feeble and imperfect was the wisdom of Parliament as 
 regards what is now the leading work of free thought and 
 speech. The only aspect of the business was at first, the 
 effect of news on great men and the probability of their 
 being libelled. The public rights were as yet undreamt of. 
 The statutes however did not go the length of punishing 
 or restraining the mere publication or circulation of news 
 in the modern acceptation of the term, far less of treating it 
 as a constructive breach of the peace. All that they did was 
 to declare that if false news relating to great men were 
 published, then some punishment of a vague kind would 
 
 same ■waj.—lh'd. 460. A statute of Henry VIII. also made it felony 
 to declare any false prophecy on the occasion of arms, fields, or 
 letters.— 33 Hen. VIII. c. 14. A Chancellor of Edward VI. issued a 
 proclamation enjoining all justices to arrest all tellers of vain and 
 forged lies, and commit them to the galleys to remain during 
 pleasure. — 2 Campb. Ch. 39. And a statute of 1554 gave justices 
 of the peace power to inquire into this offence, and put those early 
 statutes in force.— 1 & 2 Ph. & M. c. 3. This statute of 1564 was 
 the first to punish specially the devising or spreading of false news 
 and tales against the king and queen. The first ofEence was 
 punished with pillory and loss of one ear. And those who printed 
 and set forth ballads or writings to stir up insurrection were punished 
 with the loss of the right hand, and on subsequent offences with 
 imprisonment for life and loss of goods. — 1 & 2 Ph & M c 3 ; 
 1 Eliz. c. 6. 
 
 1 12 Rich. 11. c. 11. 2 3 & 4 Ed, VI. c. 15: 5 Eliz. c. 15. 
 
 8 3 Inst. 1.8. 
 
CH. III.] BIGHT TO PUBLISH NEWS. 56 
 
 result. But there was no enactment, express or implied, 
 which subjected the mere publication of general news to 
 any punishment or to the necessity of a preliminary licen e 
 except so far as was common to all other publications. Yet 
 the judges adopted decided views to the contrary, and these 
 assumed the form of a first principle, namely, that news- 
 papers were,p«r se, unlawful, and were constructive breaches 
 of the peace, and savoured of sedition. W hen the Licensing 
 Act was about to expire in the time of Charles II., the 
 twelve judges were assembled to discover, whether the press 
 might not be as effectually restrained by the common law ; 
 they no doubt thought aU mischiefs had or ought to have a 
 remedy, and they had a notion, that the publication of any 
 news whatever without the king's authority was dangerous. 
 They came to the resolution, that it was criminal not 
 only to write seditious papers and false news, but like- 
 wise to publish any news without a license from the king, 
 though such news were true and innocent.' 
 
 This doctrine, alleged to be laid down by the judges of 
 
 1 E. V Harris, 7 St. Tr. 929 ; Entinck v Carrington, 19 St. Tr. 1070. 
 ScEOGGS, C. J. laid down the law to this effect, that " all the judges 
 met at the king's command, and held that all persons that do write, 
 or print, or sell any pamphlet that is either scandalous to public or 
 private persons, such books may be seized and the person psnished 
 by law. And all writers of news, though not scandalous, seditious, 
 nor reflective upon the Government or the State, yet iJE they are 
 writers (as there are few others) of false news, they are indictable 
 and punishable upon that accomit." The jury found one Harris 
 "guilty of selling a book," but Scroggs, C. J., told them that was 
 not their business ; they were only to say guilty or not guilty. And 
 Harris was fined 5001., put in the pillory an hour, and ordered to 
 find sureties for good behaviour for three years. — E. v Harris, 7 St. 
 Tr. 930. Jeffreys, C. J., also told juries that " it was the opinion 
 of all the judges of England that it is the law of the land that no 
 person should offer or expose to public knowledge anything that 
 concerns the Government without the king's immediate license." — 
 E. V Carr, 7 St. Tr. 1115. 
 
 ScBOGGS, G. J. , repeated his doctrine on another occasion, thus : — 
 " When by the king' s command we were to give in our opinion, what 
 was to be done in point of the regulation of the press, we did all 
 subscribe, that to print or publish any newsbooks or pamphlets of 
 news whatsoever is illegal ; that it is a manifest intent to the breach 
 of the peace, and that they may be proceeded against by law for an 
 illegal thing. Though the thing is not scandalous, yet it is illicit 
 and without authority, and the author ought to be corrected for it." 
 — E. V Carr, 7 t,t. Tr. 1127. 
 
56 LIBERTY OF PRESS AND SPEECH., , [oh. in. 
 
 Charles II., that the publication of news was per se illegal, 
 unless licensed by the Crown, whencesoever derived, ha;d 
 some encouragement from the earlier statutes ; neverthe- 
 less, there was nothing in the common law to warrant 
 it, for at no epoch of histoiy could it ever be reasonably- 
 assumed, that the business of collecting and dispersing 
 news required the license of the Crown or of Parliament, 
 or of any functionary, any more than the liberty to think 
 and speak, or to use any of the faculties with which man- 
 kind are endowed. The doctrine, after haunting the courts, 
 and even apparently lingering in the mind of Holt, van- 
 ished out of sight without the necessity of being either 
 solemnly repealed or reversed or repudiated, unless we 
 suppose that it died with the Licensing Act in 1692. This 
 last collection 'of false views of all kinds relating to the 
 freedom of thought happily was itself dispersed by the 
 Eevolution of 1688 and its immediate consequences. 
 
 Maliciously publishing what is known to be false. — 
 But while no liability is now incurred by publishing news 
 in the ordinary sense, except they are libellous, there is 
 now a distinct offence declared in modern times as to some 
 of these, namely, when they are known to be false. While 
 malice is usually matter of inference from the conduct and 
 subject matter, this criminal offence is expressly declared 
 by statute, whenever one maliciously publishes a defama- 
 tory libel knowing it to be false.^ 
 
 Special laws as to newspapers. — Though the doctrine 
 as to a license of the Crown being necessary in order to 
 publish a newspaper was never thoroughly settled, and 
 soon was abandoned, there were other exceptional laws 
 from time to time passed with respect to these periodicals. 
 The whole doctrine of the common law must have origi- 
 nated in the sixteenth century, for previously even the 
 mechanical means of circulating news had scarcely come 
 into existence.^ One of the first definite restrictions put 
 
 1 6 & 7 Vic. c. 96, § 4. Imprisonment for two years and a fine 
 at discretion. As to the usual defence, see post, chaps, ix. and x. 
 
 2 The first gazette is said to have been published at Venice in 
 1536, but it was not allowed to-be printed, being only circulated in 
 manuscript.— C%aZjrecr'« Ruddiman, 105; 2 Lodge, III. Brit. Hist. 
 414. The first French newspaper was the French Mercury in 1611, 
 founded by Jean Richer and Etienne.— ifajipoW, Lib. de la Presse, 
 
CH. III.] LAWS AS TO NEWSPAPERS. 67 
 
 upon newspapers was the Stamp Act of 10 Anne, c. 19, 
 in 1711, which, to the dismay of authors, for the first 
 time imposed a duty.^ The duty was increased in 
 1820, and so continued till 1855, when it was abolished."^ 
 The epoch of the French Revolution caused further re- 
 strictions. In 1798 before any person could publish a 
 newspaper he was bound to deliver an affidavit at the 
 Stamp Office, setting; forth the true proprietors, or at least 
 two proprietors besides the printers, and their places of 
 abode. But tlia.t statute was repealed by another Act of 
 1836, or rather it was then re-enacted with alterations; 
 and this last Act in turn was repealed in 1870, and now 
 nothing remains of any such requirement.^ Another re- 
 quirement of 1819 was, that a recognizance of 300^. with 
 sureties should be entered into by publishers of newspapers. 
 The object of this recognizance was to provide a fund for 
 securing payment of fines that might be imposed on con- 
 victions for libel.* And in 1830 the amount was raised 
 to 400^. in order to provide for the damages that might be 
 found by juries in actions for libel.^ These enactments 
 were, however, also altogether repealed in 1869.° 
 
 Freedom to publish newspapers, and how far they 
 are capable of suppression. — All the restrictions on the 
 publishing of newspapers caused by stamp duties, adver- 
 tisement duties, and affidavits, and recognizances being 
 thus swept away, the occupation of newspaper proprietor, 
 with his mode of investing capital, is as free as other occu- 
 pations, and there are few peculiarities left except by way 
 of facilitating the discovery of proprietorship when that 
 
 1879. The first in America, The Boston Newsletter, in 1704. The 
 first in Germany in 1715. It was said, that in the year of the Armada, 
 when the excitement of the people was intense, Queen Elizabeth 
 caused to be printed the first Gazette that ever appeared in England. 
 — Sir J. Macintosh, R. v Peltier, 28 St. Tr. 529. But this has been 
 said to be a forgery. It is said that the influence of newspapers 
 on politics began to be felt noticeably in 1738. — Danvers, M.P., 
 10 Pari. Hist. 448. 
 
 1 Addison, Spect. No. 445. An advertisement duty was also im- 
 posed in 1711, and repealed in 1853. The paper duty which was 
 common to all publications was repealed in 1861. — 137 Hans. Deb. 
 (3) 1110. 
 
 2 18 & 19 Vic. 0. 27. 3 38 Geo. III. c. 78 ; 6 & 7 Will. IV. 
 c. 76 ; 33 & 34 Vic. c. 99. " 60 Geo. III. c. 9. ^ a Qeo. IV. 
 & 1 Will. IV. c. 73. « 32 & 33 Vic. e. 24. 
 
58 LIBBETY OF PRESS AND SPEECH. [ch. hi. 
 
 is needful. There is no court or functionary which has 
 any power whatever to suppress, with or without reason, 
 any newspaper, the puWisliers of which are liable for 
 libels to the same extent as the publishers of other books, 
 but not to a greater extent ; and the punishment does not 
 directly affect the continuance of the periodical. News- 
 papers may entail punishment on their proprietors and 
 publishers on each occasion of offence, but cannot on any 
 pretext be suppressed.'- 
 
 In continuance of the legislation of 1798, in order to 
 facilitate the remedy against proprietors of newspapers 
 for libellous matter,- any person, in order to bring or carry 
 on an action on that ground, may proceed for a discovery 
 of the name of any one concerned as printer, publisher, or 
 proprietor, or of any matters relative to the printing and 
 publishing ; and the defendant is bound to make the dis- 
 covery required before he can' make any defence.^ But 
 this discovery is not to be used in any proceeding except 
 in that particular action. And the discovery may be 
 enforced against the publisher, in order to ascertain the 
 name of a proprietor, wiiom the plaintiff wishes to sue 
 in preference to the other.^ 
 
 Postage facilities for newspapers. — Facilities for cir- 
 culating newspapers through the post-office are allowed on 
 registration by the proprietor or publisher at the General 
 Post-Office, according to a form there required.* For the 
 purpose of this Act a newspaper is defined to be a publi- 
 cation consisting wholly or m great part of political or 
 other news, or of articles relating thereto, or to other 
 current topics, published weekly or oftener, and printed 
 on sheets unstitched, and bearing the full title and date 
 
 ^ In one case the Queen's Bench made a rule absolute, forbidding 
 the publication, in future, of a certain newspaper by any person 
 whomsoever; but that precedent, which belongs to the time of 
 Scroggs, 0. J., seemed never to be followed, and that judge was 
 afterwards impeached, partly on this account. — B. v Oarr, 7 St. Tr. 
 1111 ; i at. Tr. 198. It seems quite enough to punish by imprison- 
 ment or fine newspaper publishers when they offend ; but to sup- 
 press the newspaper is an interference with the liberty of trade, 
 and is in no way essential to protect any court or Government, and 
 it never even punishes the real offender. And the immortal secret 
 of Junius shows how difficult it is even to trace the real author 
 
 2 6 & 7 Will. IV. c. 76, § 19. 3 D.xun v Enoch, L. K. 13 Eq. 
 
 400. ■> 3a & 34 Vic. c. 79. 
 
CH. Ill;] SEOUKITY OF LETTERS BY POST. S9 
 
 of publication.! And to prevent circulation of indecent 
 and obscene prints, books, engravings, or post-cards, power 
 is given to the Postmaster General, with consent of the 
 Treasury, to make regulations to prevent such papers being 
 sent by post.^ 
 
 Advertisements to recover stolen property. — One pecu- 
 liarity remains as to the contents of a newspaper. Whoever 
 publicly advertises a reward for the return of stolen or lost 
 property, and uses words purporting that no questions will 
 be asked or no inquiry made after the person producing 
 such property, and whoever prints or publishes such ad- 
 vertisement, shall forfeit 50^, to whoever sues for the same.^ 
 Yet the action for these penalties cannot, be brought with- 
 out the written assent of the Attorney or Solicitor General 
 being first obtained. And the action must be commenced 
 within six months after the forfeiture is incurred.* 
 
 Security of Post-Office letters. — The right of free speech 
 and writing can scarcely exist in perfection without mecha- 
 nical facilities for exchanging letters between correspond- 
 ents ; but whether this function is best performed by 
 private enterprise or by the State can be of little import- 
 ance except so far as safety, regularity, and economy are 
 concerned. What is desired by each and every citizen is, 
 that he shall be entitled to send and receive all communi- 
 cations which he thinks material to his own interest, and 
 that no third party shgill be allowed to tamper or interfere 
 with this operation — so that a message sent in writing 
 shall be secret and inviolable from the moment it is 
 despatched till the moment it is delivered. This has for 
 two centuries been more or less attained. The great 
 medium for this communication between the subjects 
 began in 1635, on a small scale, at the suggestion of the 
 Crown, but Parliament soon saw its importance, and in 
 1649 passed a resolution, that the office of postmaster ought 
 to be in the sole disposal of Parliament. In 1710 a statute 
 laid down the chief rules, and one of these, continuing as 
 it did the first, sketch of plan projected under Charles I., 
 
 1 33 & 34 Vic. c. 79, § 6. A supplement of a newspaper is also 
 defined. — Ibid. In case of dispute the Postmaster-G-eneral, subject 
 to an appeal to the Treasury, shall conclusively decide what is a 
 newspaper.— Ibid. § 14. 2 33 & 34 Vic. c. 79, § 20. 
 
 3 24 & 25 Vic. c. 96, § 102. * 33 & 34 Vic. c. 66, § 3. 
 
60 LIBERTY OF PRESS AND SPEECH. [oh. hi. 
 
 forbade all other persons to carry and deliver letters for hire.^ 
 The naachinery by which this great institution has beea 
 maintained involves the same details as all other businesses, 
 and its main importance is now as regards the security of 
 private comiuunications. Severe punishments attend all 
 the servants of the Post- Office for stealiog or tampering 
 with letters. Even to delay or detain wilfully a post 
 letter is in them a misdemeanour.^ And every other 
 person to whom a post letter has been delivered even 
 by mistake, and who wilfully secretes or detains it, also 
 commits a misdemeanour.* 
 
 Post letters may be opened by Secreta/ry of State.-^ 
 But though the servants of the Post-Office and third parties 
 are punishable for opening or tampering with letters while 
 in th-e custody of the Post-Office, an exception has always 
 been maintained. This exception is, that any letter may 
 be opened, detained, or delayed in obedience to an express 
 warrant in writing under the hand of a Secretary of State.* 
 From the first the Government had exercised its discretion 
 in this matter, and retained in its hands the power of 
 opening any private letter at any time. And it appears to 
 have beea a century ago the common complaint of leading 
 statesmen, that their political opponents made a practice of 
 opening their letters when they had the power.^ And 
 however arbitrary this may seem, still on full investigation 
 it has been deemed safer to leave an uncontrouled discre- 
 tion, as iu many other instances is done, confided to a 
 functionary not likely to abuse it, rather than abandon 
 what on some great emergency may prove a slight assist- 
 ance in thwarting seditious or illegal machinations.^ 
 
 1 9 Anne, c. 10, § 17. 2 7 Will. IV. & 1 Vic. c. 36, § 25. 
 
 ' 1 Vic. c. 35, § 31. 4 Ibid. § 25. 6 3 May's Const. Hist. 45. 
 
 5 In 1822 complaint was made by a member of Parliament, that 
 a letter sent to him by a prisoner had been opei.ed. And though 
 the GoverniHent claimed the right to do so for precaution, yet many 
 urged that it should be deemed a breach of privilege ; this step how- 
 ever was not taken.— 6 Pari. Deb. (2d) 282, 646. Again, in 1844, 
 instances of private letters being opened vvrere complained of, and 
 Parliamentary committees investigated the practice, and found suffi- 
 cient confirmation of the suspicion, that such a practice was not un- 
 frequent, especially in connexion with foreign refugees. — 75 Pari. 
 Deb. (3) 1264 ; 76 lUd. 212, 296. Sir R. Peel said, that no rule 
 could be laid down on such a subject, and successive Secretaries of 
 State of all parties had been in the habit of exercising this power at 
 discretion.— iJe^j. of Secret Com. 1845. 
 
CH. IV.] BLASPHEMY. 61 
 
 CHAPTER IV. 
 
 RESTRICTIONS ON THE PRESS AND SPEECH AS REGARDS 
 BLASPHEMY AND IMMORALITY. 
 
 Blasphemous words and publications.— One of the 
 
 restrictions on the freedom of speech and writing is, as 
 already stated, that the writing shall not he blasphemous, 
 or rather those who sj^eak and write must take care not to 
 transgress the limit which the law calls by that name. 
 Some confusion of thought has been .displayed in assign- 
 ing the precise ground on which the law ecforces this re- 
 striction, which perhaps is not to be wondered at, seeing 
 that in every country and age there have been laws of 
 some kind, and these more or less severe, against the 
 offence which now corresponds to blasphemy.' In its 
 earlier stages, since the Christian era, it was always difficult 
 to distinguish it from heresy and schism, though now the 
 two last are mere ecclesiastical offences peculiar to the 
 clergy, while blasphemy has long been taken out of the 
 charge of the Church and cared for by the general law. At 
 first the common law courts professed that it was not com- 
 petent for them to entertain an indictment or information 
 for blasphemy. And in a case in 1617, when a man was 
 
 ^ The ancient Jews treated blasphemy as a capital offence, the 
 punishment for which was stoning. — L_ev. xxiv. 16 ; v. 15 ; Bxod. 
 xxii. 28 ; Acts, vi. 14. And the Greeks and Eomans were equally 
 severe in their views, but as these more strictly belong to the subject 
 of heresy and so part of the law relating to the Church, or what cor- 
 responded to the standard Church of the time being, that division 
 of the law will more properly be resorted to for the treatment of 
 this subject. — See^osi. The Romans thought it impious to under- 
 take a battle in opposition to the sacred birds. — Suet. Nero, c. 2. 
 
62 LIBERTY OF PRESS AND SPEECH. [ch. iv. 
 
 charged with saying that " preaching was but prating, and 
 hearing of service was more edifying than two hours 
 preaching," the whole court held that it was a question only 
 for the High Commissioners.' By blasphemy is now meant 
 not the repudiation of any particular definite creed such as 
 heresy implies, but a public and scurrilous denunciation of 
 all creeds and beliefs which are founded on the existence 
 of a God as revealed in the Holy Scriptures. ^ And the 
 expression " the existence of a God " was in the statute of 
 William III. treated by the legislature as including the 
 existence of the Trinity, according to the standard belief 
 of the leading Churches of all countries where the Bible is 
 the accepted basis of our knowledge. Blasphemy is not 
 now an offence subject to the remedy provided by the 
 Church Discipline Act or by any Ecclesiastical Court, being 
 punishable by common and statutory law.* For though, 
 when the practice of burning heretics was abolished in 
 1678, the other ecclesiastical punishments of blasphemy by 
 excommunication, deprivation, degradation, and other ec- 
 clesiastical censures were excepted,* yet no crime of that 
 name can now be committed which is not as applicable to 
 ecclesiastics as to laymen.^ 
 
 Apostasy as a crime. — There is one species of blasphemy 
 which, though once prominent, is scarcely now distinguish- 
 able or recognised. The civil law treated any departure 
 from the settled faith of the Christian Church, especially 
 if he once professed it, as worse than heresy, and a cause 
 of forfeiture of property, unless the apostate had children 
 and kindred. He was declared infamous and incapable of 
 succession or making a testament, and suffered other dis- 
 abilities.® Under the laws against the Manicheeans such 
 offenders were banished.^ And if they seduced or per- 
 verted others they were punished with death.^ And Brac- 
 ton treated this as also part of our law.^ And though no 
 
 1 R. ■« Attwopd, Cro. Jas. 421. 
 
 2 A statute of Jas. I. c. 21, punished with a fine all players who 
 "jestingly or profanely spoke" of the persons of the Trinity. 
 
 3 3 & 4 Vic. c. 86. * 29 Ch. II. c. 9. 
 
 5 9 & 10 Will. III. 0. 35. This Act impliedly repealed all juris- 
 diction of the Ecclesiastical Courts for that offence. 
 
 6 Code, 1. 7. 1, 4. 7 Ibid. 1, 7, 6. 8 jbid. 1, 7, 5. 9 Bract, 
 b. iii. 0. 9. 
 
CH. IV.] STATUTES AGAINST BLASPHEMY. 63 
 
 law or statute now punishes any change of faith, yet this 
 ancient view of apostasy is obviously the main foundation 
 of our only existing statute against blasphemy, passed in 
 the time of William III. 
 
 Early statutes against blasphemy. — Tn the earlier 
 centuries there was no doubt great difficulty in defining 
 what things were deemed blasphemous, though the punish- 
 ment might be uniform and unfailing. By a statute of 
 1539 any person who by word or writing should publish or 
 hold opinions contrary to five specified articles of religion 
 was to be punished, for a first offence with loss of land and 
 goods for life, and with imprisonment for life ; and on a 
 second offence be adjudged a felon and capitally executed.^ 
 And of those five articles made of such vital moment, one 
 was, that " the bread used in the communion is changed into 
 the body of Christ," and another was, that " it is unlawful 
 for priests to marry." Later statutes protected other tenets 
 of the established religion of the time.^ Sometimes the 
 House of Commons went out of its \y^ay to advance the 
 remedy against the same offence, as in 1697, when it re- 
 solved, that a tract against the Trinity was a blasphemous 
 libel, and ordered it to be burned by the hangman. At 
 that time, indeed, one Firmin, a rich citizen, having circu- 
 lated Unitarian pamphlets, which alarmed the clergy, the 
 House of Commons presented an address to the Crown, 
 
 1 31 Hen. VIII. c. 14. 
 ^ By a statute of 1542 if any one wHo taught, preached, or main- 
 tained any matter contrary to his Majesty's godly instructions and 
 the articles of faith set forth in 1540, was a priest, and refused to 
 abjure, he was, on a third oiience, to be burned as a heretic ; and if 
 . a layman he was, on a third offence, to be perpetually imprisoned, 
 and to forfeit his goods.— 34 & 35 Hen. VIII. c. 1. 
 
 By a statute of 1547, repealed by Mary and revived by Elizabeth, 
 whoever by words depraved, despised, or reviled, the blessed sacra- 
 ment was liable to imprisonment and fine. — 1 Ed. VI. c. 1 ; 1 Eliz. 
 0. 1. But that statute directed the offence to be tried by the bishop 
 or his chancellor, and the modern Church Discipline Act has impliedly 
 repealed any such mode of trial for the offence.— 3 & 4 Vic. 
 c. 86 
 
 The Long Parliament also passed severe acts against blasphemous 
 and atheistical books, as well as against profane swearing ; making 
 a second offence punishable by banishment. — a.d. 1650, ScoheU's 
 Acts. The statutes against profane swearing are treated under the 
 head of " Public Worship " post. 
 
64 LIBERTY OF PRESS AND SPEECH. [oh. iv. 
 
 suggesting the suppression of these detestable crimes. ' And 
 the Act of 9 "William III. c. 35, was thereupon passed, which 
 was said to be an imitation of the edict of the Emperor 
 Marcian in the sixth century against the Eutychians and 
 the Apdllonarists, whereby they were d^eclared incapable of 
 inheriting or of making a will; but it allowed retractation 
 and recantation within four months.^ 
 
 The existing statute against blasphemy. — This statute 
 of 9 "William III. c. 35, in 1697, which is still in force, 
 enacted, that if any person educated in or having made pro- 
 fession of the Christian religion deny any one of the Persons 
 in the Holy Trinity to be God, or assert or maintain that 
 there are more Gods than one, or deny the Christian religion 
 to be true, or the Holy Scriptures to be of divine authority, 
 he is on indictment or information, for the first offence liable 
 to be declared incapable to hold any office or employment, 
 civil or military, and if he hold such office it shall be void. 
 On a second offence he will be subject to three years' im- 
 prisonment. "Whoever is convicted of a first offijnce will, 
 however, escape penalties and disabilities by renouncing 
 his error in open court. And information of the offence, 
 for words spoken, must be given within four days after the 
 offence was committed, and the prosecution for such words 
 must be within three months after such information.^ This 
 statute, so far as it included the denial of the Trinity, was 
 repealed at the suggestion of the Unitarians in 1813.* In 
 other respects it remains in full force. But as it in 
 express terms applies only to those who had made profes- 
 sion of the Christian religion, and this language is now not 
 capable of any^ precise meaning, since the Test and Corpo- 
 ration Acts are repealed, it is practically inoperative except 
 against the clergy. The statute was obviously framed on 
 the old models, and had little regard to modern modes of 
 thought. The words " assert and maintain " point to times 
 when courts assumed too easily, that they could dictate to 
 every man, not only what he should say, but what he should 
 think. Notwithstanding that statute, the law is clear, that 
 honest argument and belief, if reasonably maintained and 
 temperately expressed without offence to any third person, 
 cannot be punished, whatever result such argument leads 
 
 1 Toulmin's Diss. 123. ^ Furneaux's Lett. 28. ^ 'i &\0 
 
 Will. in. c. 35, " 53 Geo. III. c. 160, § 2. 
 
CH. IV.] BLASPHEMY AT COMMON LAW. 65 
 
 to. The jury of the day, moreover, having the greatest 
 interest in protecting the liberty of thought, for it is their 
 own liberty which is in question, must always in the end be 
 those who apply and enforce, and so confine within proper 
 limits a law so widely and comprehensively writteil and 
 capable of being used oppressively against honest doubters. 
 The statute therefore may now be treated as doing little 
 more than cautioning men to adbpt a temperate mode of 
 expressing religious opinion, and to give due attention to 
 the rights of others who hold and maintain with equal 
 honesty the opposing opinion. It may usefully punish 
 those of the clergy, if such there be, who assert, without 
 thinking or reasoning, rather to irritate their neighbours 
 than quiet their own consciences; but it cannot otherwise 
 fetter fi-ee thought in whatever form that thought may be 
 published. Moreover the kind of punishment and the 
 shortness of time allowed to the remedy alike tend to 
 make such a statute all but inoperative in that case,- where 
 the words have merely been spoken and not published.^ 
 
 Statute does not repeal common law against blas- 
 phemy. — The statute of William III. and its amending 
 Act, 53 George III., c. 160, it is true, do not extinguish or 
 supersede the common law doctrine as to blasphemy and 
 immorality ; at most it furnished merely a collateral and 
 alternative remedy.^ But the common law could never be 
 pushed to the extreme length which the language of the 
 
 1 The statute has also been said to operate only against those 
 who are in possession of offices or in expectation of them, the object 
 being supposed to be to prevent infidels getting into places of trust. — 
 Per Best, J.,'Si.v Carlile, b B. il; Aid. 166. 
 
 " Every man has a right to investigate with decency controversial 
 points of the Christian religion ; but no man, consistently with a 
 law which only exists under its sanctions, has a right to deny its 
 very existence, and to pour forth such shocking and insulting in- 
 vectives as the lowest establishments in the gradations of civil 
 authority ought not to be subjected to, and which soon would be 
 borne down by insolence and disobedience if they were." — Erskine, 
 Speech re" Age of Reason." 
 
 In 1831 Lord Althorp, D. O'Connell, and Sir R. Peel all agreed, that 
 it was contrary to the spirit of our law that there should be any pro- 
 secution against a man for any religious opinion except where gross 
 ridicule or insult are resorted to, or where the young are affected. — 8 
 Farl. Deb. (3) 6. 
 
 2 B. V Woolston, 2 Str. 834 ; Fitzg. 66 ; Barnard. 162 ; R. v 
 Carlile, 5 B. & Aid. 161., 
 
 F 
 
66 LIBEBTY OF PRESS AND SPEECH. [ch. iv. 
 
 legislature taken by itself describes as its limit. And in 
 all the cases the prosecutions have been those, where the 
 defendant adopted mere abuse and scurrility, and never 
 resorted to anything resembling argument or reasbning.i 
 The trial of Hone was a singular example of the power of 
 juries and the adjustment of the common law to circum- 
 stances. Hone was tried three times in succession for 
 blasphemous libels, being parodies on the Catechism, Lord's 
 Prayer, Ten Commandments, and the Athanasian Creed. 
 The judges told the jury, in plain terms, that they were 
 blasphemous libels. But the defendant, without any as- 
 sistance of counsel, persuaded the jury, that the object was 
 not profane, but political, namely, to destroy the flagrant 
 abuse of sinecxires and other like corrupt practices; and 
 moreover he contended, that even if the parodies were 
 somewhat profane, yet many illustrious and pious persons 
 before him had thought fit to use parodies also quite as 
 bad. And each of the three juries in succession, after a 
 few minutes' retirement, gave a verdict of not guilty.^ 
 
 1 In one case the defendant published, that the Bible was a history 
 of the grossest vices and a collection of the most contemptible and 
 paltry tales, and he was found guilty and sentenced to a year's im- 
 prisonment. — R. V Williams, 26 St. Tr. 719. So it was in another 
 case, where the defendant alleged, that the Scriptures were mere 
 fables from beginning to end, and the authors of them were liars 
 and deceivers. — R. w Eaton, 31 St. Tr. 927. It was held to be a 
 blasphemous libel to publish a work which represented Jesus Christ 
 as an impostor, or a murderer in principle, and a fanatic. — R. v 
 Waddington, \ B. &C. 26. And so it was, to say that Jesus Christ 
 was a bastard and Christianity was a chieat. — R. v Taylor, Ventr. 293. 
 So a buffooning discourse about the Trinity was treated as indictable. 
 — B. V Hall, 1 Sir. 416. And the turning of the miracles of our 
 Saviour into contempt and ridicule. — B. v Woolston, 2 Str. 834 ; 
 Fitgz. 64 ; Barnard. 162. And the ridiculing and denouncing Moses 
 and the Pentateuch as impositions. — R. v Annett, 1 W. Bl. 395. 
 
 2 Hone's Trials, a.d. 1818. A publisher of Shelley's poems was 
 indicted, in 1841, for publishing Queen Mab as a profane and 
 malicious libel concerning the Christian religion ; and the judge left 
 it to ihe jury with a suggestion, that at least one passage was in- 
 sulting to Christian minds. It was, however, part of a complete 
 collection of poems that hsid been long before published, and poems 
 are by the common understanding of mankind unlikely to influence 
 conduct in the same manner as some other writings. The jury 
 found the publisher guilty, but succeeding juries would probably 
 entirely differ in the general efEect of such publication, the time 
 and occasion and object suggesting a totally different motive from 
 
CH. IV.] PUNISHMENT OF BLASPHEMY. 67 
 
 One of the results of a writing or speech being blasphem- 
 ous is, that no action cain be brought by either party to 
 enforce any contract involving the committing of such an 
 offence. And hence, where a lecturer hires a room to deliver 
 lectures which seem to have for their object the dissemi- 
 nation of blasphemous doctrines, either party may break 
 the contract with"impunity, and the court will not be nice in 
 deciding, whether the basis was blasphemy at common law 
 or by statute, or something very near to the offence.^ 
 
 Remedy against blasphemies. — The mode of proceed- 
 ing at common law against a person for blasphemy was by 
 indictment or criminal information. The defence usually 
 set up is, that the words are only the results of independent 
 thought, and that the expression of them is the affair of 
 the individual, and does not concern the public. But 
 whether the case is one of temperate reasoning or offen- 
 sive and scurrilous abuse, intended merely to insult the 
 orthodox, is necessarily the main question for a jury. There 
 can be no justification, in the ordinary sense, as in the case 
 of a defamatory libel, that it was for the public good that 
 the libel should be published, for in no circumstances can 
 it be for the public benefit, if it be once established that it 
 is seditious or blasphemous.^ And yet any considerations 
 arising out of the public good, if these are fairly pertinent, 
 can generally be brought to bear on the main point, whether 
 the defendant, in his honest endeavours, was or was not 
 prosecuting the public good at the time even if he were 
 
 that held to be proved.— E. v Moxon, 2 Mod. St. Tr. 362 ; Pari. Deh. 
 ff. L. 13 July, 1857. And the judge appositely remarked on the 
 same trial, that such publications would be more effectually sup- 
 pressed by confuting the sentiments than by prosecuting the authors 
 or publishers. — 2 L. Denman's Life, 129. Moxon was convicted, but 
 never called up for judgment. 
 
 The law relating to blasphemy at common law is based partly on 
 the maxim once prevalent, that Christianity was part of the law of 
 England, as to which see 1 Pat. Com. (Pers.) 111. It must be recol- 
 lected on this subject, that it was the doctrine of Coke, and even so 
 late as Holt, 0. J., and Treby, that any law, that is, any statute made 
 against any point of the Christian religion, or what they thought was 
 the Christian religion, was void. — 10 St. Tr. 376. This showed a very 
 imperfect notion of the scope of municipal law, and of the action 
 and power of Parliament. 
 
 1 Cowan V Milburn, L. R. 2 Bxch. 230. ' E. v Duffy, 2 Cox, 
 
 C. C. 45. 
 
 F 2 . 
 
68 LIBERTY OF PRESS AND SPEECH. [ch. iv. 
 
 somewhat mistaken in his mode of doing so. Whenever 
 verdict or judgment lias been given to the effect, that a 
 publication is blasphemous or seditious, the judge may 
 forthwith order all copies in the defendant's possession, or 
 any other person's possession for his use, to be seized, and if 
 there is no appeal tlaen to be destroyed.^ And any justice of 
 the peace may grant a warrant to search for the same. 
 
 Pwnishment ofhlasphsmy. — The old modes of punishing 
 blasphemy have, as in other cases, been always cruel and 
 excessive. Plato thought blasphemies should be punished 
 with imprisonment for life or a shorter period ; and also 
 with denial of turial.^ The Wisigoths ordered a blas- 
 phemer's head to be shaved and his body punished with 
 100 stripes and perpetual imprisonment.^ In countries 
 adopting the civil law, Menochius said the punishment so 
 late as the seventeenth century was boring the tongue or 
 cutting it out, and sometimes it was death.* The Franks 
 punished the offence with death, and at later dates with 
 imprisonment and public penance.' In England so late as 
 1656 Parliament ordered Naylor the Quaker, who personated 
 the Saviour and was obviously a lunatic, to be punished 
 by having his tongue bored with a red-hot iron, by being 
 burned in the forehead with the letter " E," and whipped 
 and pilloried.^ One mode of punishment, which nearly all 
 barbarous nations have thought to be most appropriate 
 for blasphemy, was exposure in the pillory, and this mode 
 was adopted in most of the earlier cases in this country.'' 
 But that mode of punishment for this offence was wholly 
 abolished in 1837.^ The only mode of punishment now 
 
 1 60 Geo. III. & 1 Geo. IV. c. 8. 2 Plato, Leg. b. x. » Leg. 
 Wisig. b. xii. pt. 3. ■* Henoch, de arb. 375. 
 
 5 Baluz. L col. 650, 940, 1172. The ancient Soots treated blasphemy 
 against God or the head of the clan as punishable with cutting out 
 the tongue, and at later stages with excommunication and some dis- 
 abilities.— fleet Boet. b. X. And up to the year 1813 there was a 
 punishment by public atonement in sackcloth. — Stat. 1661 c 21 • 
 1695, c. 11 ; 53 Geo. IIL c. 160, § 3. ' • > 
 
 6 R. « Naylor, 5 St. Tr. 819. The Paterines, who were a sect of 
 freethinkers who scoffed at sacraments, baptism, and matrimony 
 were in the twelfth century dealt with by .searing their foreheads 
 with a hot iron and whipping them half -naked through the streets 
 and sending them into the country in winter to starve. — 1 Pihe on 
 Crime, 156. ^ R. « Taylor, Vent. 293. 
 
 8 1 Vic. c. 23 ; 2 Pat. Com. (Pers.) 282. 
 
CH. IV.] IMMORAL PUBLICATIONS. 69 
 
 left is fine or imprisonment, and neither of these is defined 
 as regards the amount or extent.^ 
 
 Immoral and obscene ^^t6Z^ca•i^oms.— While Wasphemy 
 in a speech or published document is an offenoei however 
 rare and difiicult to deal with, unless of a gross and scan- 
 dalous kind, obscenity or immorality in published docu- 
 ments is another ground, and is viewed in much the same 
 light. And it is well to keep in vi«w, that the I'eason why 
 these are deemed offences is not because it is either the 
 duty or province of the law to promote religion or morality 
 by any direct means or punishments, but because the line 
 must be drawn between what is and is not the aver-age 
 tone of morality which each person is entitled to expect at 
 the hands of his neighbour as the basis of their mutual 
 dealings. As the punishment of immorality was once so 
 ambitiously undertaken by all •ecclesiastioal courts, it is 
 not to be wondered, that it was in comparatively modern 
 times, that the temporal courts became cognisant of the 
 bounds of their own jurisdiction in this direction. The Star 
 Chamber, which was mostly ecclesiastical in its constitution 
 and views, claimed indeed the power of redressing all wrongs 
 and injuries in some arbitrary and monstrous fashion of its 
 own.^ And Burke said the disembodied spirit of the Star 
 Chamber had migrated iato Westminster Hall, and haunted 
 the courts there also with strange views about libels. * The 
 Court of Queen's Bench long seemed inclined to follow in 
 the same track by calling itself the custos morum} And 
 Lord Chancellor Jefireys seemed to think this function was 
 part of its main work.^ So late as 1706, when one Eead 
 was indicted for publishing an obscene libel, Holt, C.J. , 
 
 1 2 Pat. Com. (Pera.) 222. " 1 Ibid. 23. » 17 Pari. Hist. 47. 
 ' Sedley's Case, 1 Sid. 168. 
 
 * Perhaps the doctrine of the Court of Queen's Bench being custos 
 morum was never more strongly put than by L. Jeffkbys, L. C, in 
 Westminster Hal!, coram populo, on inaugurating his successor, 
 Herbert, C. J., in that court in 1686 : " Go on ; be prosperous : be un- 
 daimted and courageous ; encourage all virtue and morality, suppress 
 all vice and iniquity : be sure to execute the law to the utmost of its 
 vengeance upon those that are now known — and we have reason to 
 remember them — by the name of Whiggs ! and you are likewise to 
 remember the Snivelling Trimmers : for you know what our Saviour 
 Jesus Christ says in the Gospel, that ' they that are not for us are 
 against us.' " — 2 Collect. Jurid. 406. This address was overlooked 
 by Lord Campbell, the biographer. 
 
70 LIBERTY OF PRESS AND SPEECH. [ch. iv. 
 
 doubted, whether the punishment ought not to be left to 
 the ecclesiastical court.' On further inquiry, however, when 
 the court was satisfied, that to destroy morality was only 
 another way of destroying the peace and public order of 
 society, it was held, that to publish an obscene libel was an 
 indictable offence, and Curll was punished and put in the 
 pillory in 1714 on this account.^ L. Eaymond, C.J., went 
 the length of saying, that any immorality was indictable if 
 it disturbed the civil order of society.^ And half a century 
 later Wilkes was indicted, convicted, and fined for his 
 libellous Essay on Woman, it being deemed scandalously 
 indecent and an offence at common law.* And the' 
 publisher of obscene poems of Lord Eochester was also 
 indicted.^ 
 
 Attempted definition of imimoral and ohscene writ- 
 ing. — It is impossible to define what is an immoral or 
 obscene publication. To say that it necessarily tends to 
 corrupt or deprave the morals of readers supplies no definite 
 test. Fortunately there is seldom any difference as to where 
 the line is to be drawn in singling out the offence. It is 
 instinctively perceived by all, and in cases of doubt the 
 decision must be left to the jury of the day, who can seldom 
 go wrong on this matter.^ 
 
 Seizwre and destruction of obscene publications. — It 
 has been found in modern times, that it is no sufficient 
 remedy to punish those who publish libels, for the mis- 
 chief may already have been done, and that mischief must 
 always be indefinite. Hence attempts have been made 
 to intercept the evil at an earlier stage, namely, when the 
 libellous publications are in the hands of the person who 
 is engaged in the business of circulating them. The 
 seizing of these before circulation is the only effectual 
 securitj', though it is seldom easily carried out in practice. 
 This extension of the remedy was not effected till 1857, 
 
 1 Read's Case, Port. 98. 
 
 » 16 St. Tr. 154 ; 1 Barn. 29 ; R. ■« Curll, 2 Str. 789. Curll, when 
 in the pillory, told the mob that he was punished for vindicating 
 the memory of Queen Anne, and was at once popular with them 
 
 3 17 St. Tr. 159. * R. v Wilkes, 4 Burr. 2527, 2630. 5 R v Hill 
 3 Str. 790.. 
 
 6 See^ as to analogous cases, relating to indecent exposure, 2 Pat. 
 Cem. (Pars. ) 362. 
 
CH. lY.] OBSCENE LIBELS. 71 
 
 when Lord Campteirs Act was passed, having this as its 
 object.' In case of indecent libels, no defence on the 
 ground that it is useful to the public to know and read 
 such matters can be entertained. And hence, where a 
 pamphlet was published professing to expose the inde- 
 cencies of the confessional, and by way of doing so 
 repeating many obscene passages, the court held that 
 the ulterior object, however good, did not form any 
 defence, and that the publication was indecent.^ And 
 for a like reason a like defence of a report of a trial in a 
 court of law, which involved obscene and indecent details, 
 was overruled.^ 
 
 Punishment for immoral or obscene libels. — The 
 punishment of a person who publicly sells, or exposes for 
 sale, obscene books or prints, is fine or imprisonment, and 
 that imprisonment may be for any term now warranted 
 by law, and also be accompanied with hard labour during 
 all, or any part of such term of imprisonment.* This being 
 an offence at common law, the time of imprisonment is at 
 the discretion of the court, and so is the amount of fine ; 
 and the addition may be made of surety of the peace for 
 a reasonable time.° While the law now punishes those 
 who not only publish or sell, but who keep a stock of 
 such publications ready for sale, it is not to be forgotten, 
 that the mere possession by a private person is not 
 interfered with, for in order to carry out such law the 
 inquisition into private houses and interference with 
 liberty would be intolerable. And even the keeping of 
 these publications with intention to sell, taken by itself, 
 is not an offence, so long as no overt act is done to carry 
 out that intention.* But the moment a person goes 
 further, and obtains and procures obscene publications 
 for the purpose of sale, then an offence begins, for the 
 active part he takes indicates an intention to circulate 
 them, and so to corrupt morals.^ And as it would be 
 futile to punish the obtaining and procuring of obscene 
 
 1 2 Pat. Com. (Pers.) 366. ^ E. v Hicklin, L. R., 3 Q. B. 37L 
 
 5 Steele v Brannan, L. E., 7 C. P. 261. M4 & 15 Vic. c. 100, 
 
 6 29. 6 E. V Hart, 30 St. Tr. 1344 ; E. v Dunn, 12 Q. B. 1026. 
 ^ Dugdale's Case, 1 Dearsl. 64. ' Ibid. 
 
72 LIBERTY OF PRESS AND SPEECH. [cH. iv. 
 
 libels for sale, unless a seiarcli warrant could be issued 
 to authorise them to be seized, this power was given in 
 1857 to justices of the peace, subject to certain conditions, 
 namely the oath of the informant and the inspection or 
 a satisfactory account of the libel, so as to show its true 
 nature.^ 
 
 1 20 & 21 Vic. c. 83, § 1 ; 2 Pat. Com. (Pers.) 366. 
 
CH. v.] SEDITION. 73 
 
 CHAPTEE V. 
 
 ABUSE OF FREE SPEECH BY SEDITIOUS •WOEDS AND 
 WEITINGS. 
 
 Sedition generally. — While blasphemy and immorality 
 indicate two of the extreme limits at which discussion, 
 comment, and speculation must stop, and whicli surround 
 with a barrier the thoughts and speeches exhibited in 
 public meetings and in the public press, the third and 
 most conspicuous limit of the same kind may be described 
 under the general head of Sedition. The two former point 
 to dangers and restrictioaas which are somewhat abstract, 
 occasional and remote ; 'they are seldom touched upon 
 by the educated, the prudent, and the prosperous, and at 
 best close in the horLzon of free thought with shadowy 
 outlines. The distance of the extreme boundary in these 
 two cases prevents any prohibition to approach them from 
 being felt as a serious loss. But it is otherwise with 
 sedition, under which head are included all those libels 
 which are aimed at our most conspicuous rulers, in which 
 we exercise our powers of observation and give voice to 
 our complaints, in which we discuss and animadvert upon 
 the conduct of all tlaose who play a part in the government 
 of the country, and therefore in that which comes home 
 most closely to our own business and bosoms. 
 
 The citizens of a free country differ from those of a 
 country less free, most of all in this one characteristic, 
 that the former are constantly animated with the con- 
 sciousness that each and every part of the government — 
 both what is imperial and what is local — exists for the 
 good, not of the governors, but of the governed, and that 
 the governed take an 'active and personal part in its whole 
 machinery by virtue of their representatives in Parliament, 
 
74 LIBERTY OF PRESS AND SPEECH. [ch. t. 
 
 who preside over the springs of action and who both act 
 and react on each other. The public business is the 
 business of every intelligent citizen; in which he takes 
 almost as close an interest as in his own personal affairs. 
 The power, glory, and influence of his country are felt to 
 be his own; he watches the movements of fleets and 
 armies — the feints and protests of ambassadors — the rise 
 and fall of ministers, as if they all drew their inspiration 
 from his own thoughts, and as if they were doiug his own 
 business and contributing only their fair share to the 
 common fund, in the disposal of which he has an equal 
 voice. There is no longer recognised any divine right 
 of government confined to any one class. Hence all the 
 great officers of state, who take their turn of care and of 
 temporary authority, are viewed as within his call, and 
 as deserving well or ill, according as they divine his own 
 mind, or ought to have divined it. Comment, criticism, 
 censure, and praise on all public men and public affairs 
 are thus part of his every-day thoughts, which give variety 
 and freshness to life, and lift him above the narrow round 
 of his own immediate occupations. He thus becomes 
 part of the management in the greatest enterprises, 
 and takes much of his daily pleasure in dispensing 
 praise to his faithful stewards, and blame to those who 
 mistook his secret instructions.' 
 
 In a free country, or one aspiring to the highest freedom, 
 
 1 " I should be heartily glad if some able lawyers would prescribe 
 the limits, how far a private man may venture in delivering his 
 thoughts upon public matters, because a true lover of his country may 
 think it hard to be a quiet stander-by and an indolent looker-on while 
 a public error prevails by which a whole nation may be ruined. Every 
 man who enjoys property has some share in the public ; and there- 
 fore the care of the public is, in some degree, every such man's 
 concern." — Swift's Drapier. 
 
 "All men may, nay, all men must, if they possess the faculty of 
 thinking, reason upon everything which sufficiently interests them 
 to become objects of their attention, and among the objects of the 
 attention of free men the principles of government, the constitution 
 of particular governments, and, above all, the constitution of the 
 government under which they live, will naturally engage attention 
 and provoke speculation. The power of communication of thoughts 
 and opinions is the gift of God, and the freedom of it is the source 
 of all science, the first fruits and the ultimate happiness of society ; 
 and therefore it seems to follow, that hiuiian laws ought not to 
 
CH. v.] COMMENTS ON PUBLIC AFFAIRS. 75 
 
 it is thus indispensable, that the general rule should be, that 
 each citizen shall have all but the widest scope and en- 
 couragement to make his country's business his own, and 
 to circulate his opinion on every detail of its multifarious 
 affairs and on every several officer in charge of them. Yet 
 in the exercise of this imperial faculty he must needs often 
 touch on dehcate ground. His free handling of reputa- 
 tions may often lead to excess of indignation, scorn, con- 
 tempt, reckless personal abuse, and relentless malignant 
 hatred. All this paper shot is but the homage paid by the 
 ministers of a free country for the certainty of retaining 
 in the citizens' own hands their controul over their own 
 affairs. And as the vocation of ministers and patriots 
 deserves the same protection, as free speech requires full 
 play, collisions must occur and certain limits must often 
 be touched upon and overpassed. Thus the fiercest light 
 of freedom surrounds all that part of the liberty of speech, 
 thought, and reputation, which is shut in by the fear of 
 seditious libels. Voices from the crowd accompany every 
 conspicuous step in the government. In the war of words 
 few can hope to escape without committing some excess. 
 It is thus of the highest importance to try and trace out 
 the bounds where freedom ends and where the firm hand 
 of irresistible authority commands absolute silence.^ 
 
 Right of the subject to comment on public affairs. — 
 This right of comment on public affairs will thus be seen 
 to be, not as it is often loosely described, a privilege, but an 
 absolute right, like the right of the public to go on the 
 highway. And the sole question always comes to be, 
 whether that right has been abused, it being a cardinal rule, 
 that while a public man cannot in a free country choose 
 but be liable to have his conduct discussed without stint, 
 yet he, as well as his critics, is entitled to the preservation of 
 
 interpose, nay, cannot interpose, to prevent the communication of 
 sentiments and opinions in voluntary assemblies of men." — L. Mans- 
 field, 0. J., quoted 32 Pari. Hist. 318. 
 
 1 " To inform the public on the conduct of those who administer 
 public afBuirs requires courage and conscious security. It is always 
 an invidious and obnoxious ofiSce, but it is often the most necessary 
 of all public duties. If it is not done boldly, it cannot be done 
 effectually, and it is not from writers trembling under the uplifted 
 scourge that we are to hope for it." — Sir J. Mackintosh, R. v Peltier, 
 28 St. Tr. 529. 
 
76 LIBERTY OF PRESS AND SPEECH. [ch. v. 
 
 his good name and reputation from wrong. If the critic 
 wantonly or even by mistake of his own judgment actually 
 injures the reputation of any public man, then that critic is 
 liable to an action and an indictment for defamation, if not 
 to the more public remedy appropriate to seditious libels.-' 
 A great master of the art of explaining and vindicating 
 this right has well observed, that the questions as to the 
 liberty of the press have always arisen on the application 
 of the principle to particular cases. That principle is this, 
 that every subject has a clear right freely to discuss the 
 principles and forms of the government— to argue upon 
 their imperfections and to propose remedies — to arraign 
 with fair argument the responsible ministers and magis- 
 trates of the country, though not to hold them up to 
 general indiscriminating execration and contempt. It is 
 the ofSce of the jury to say within which of the two 
 
 \ descriptions any political writing is to be classed.^ It is 
 thus almost self evident that it is not only the right, but the 
 duty of every citizen to speak his mind freely on each 
 and every department of the state, and above all on the 
 mode in which the main functions of the government are 
 discharged. Each of the great functionaries has at best only 
 a limited portion of the management under his immediate 
 controul, and his duty is mostly to watch and restrain other 
 functionaries, so as to prevent encroachment on each other's 
 domain. But the combined result of aU this watching, 
 this zeal and patriotism, is not for the benefit of any one 
 person or class, but for each and every individual of every 
 class. No single individual has a greater interest than any 
 other in maintaining in the highest efittciency the whole of 
 the functions of government, and if it is not everybody's 
 business, then it is nobody's business to watch with 
 jealous care the common inheritance — to dispense praise 
 here or blame there — to encourage, to warn, to detect, to 
 disparage, and even to get rid of any public servant, who 
 
 U falls short in his public duties. 
 
 Views of the Ancients about public opinion. — Though 
 this absolute right of free comment on public affairs 
 may now seem an elementary principle, it was long far 
 from being deemed so. We are told that in Solon's time 
 the Athenians had made a decree, that it was a capital 
 1 Ersk. arg. R. v Cuthell, 27 St. Tr. 665. 
 
en. v.] COMiviENTS ON PUBLIC AFFAIRS. 77 
 
 crime for any one to persuade the city to assert its right 
 to the isle of Salamis, and Solon was thought to do a 
 bold thing in obtaining a repeal of that law." And 
 Socrates was charged with contempt of the law for saying 
 how foolish it was to elect their magistrates by beans ; 
 when they would never think of so electing a pilot or an 
 architect.^ And Phidias the sculptor was imprisoned for 
 representing on Minerva's shield something that detracted 
 from the fabulous importance of Athens.^ A Eoman 
 matron, Vilia, was accused of treason for doing no more 
 than lamenting at her son's funeral. And Cremutius 
 Oordus was punished for treason in calling Brutus and 
 Cassius the last of the Eomans.^ 
 
 Early views as to comments on pvMic affairs. — 
 In our own country it was Jong deemed impertinent for 
 any citizen to criticise the Government or the laws. A 
 statute of Henry VIII. made it high treason even to believe, 
 that his marriage with Anne of Cleves was valid.^ In the 
 time of Elizabeth any book which professed to dispute the 
 details of Church government was without argument 
 assumed to be an attempt to overthrow all Government.^ 
 Cromwell indeed acted differently, and magnanimously 
 conceded, when urged to interfere with Harrington's Oceana, 
 that if a Government was fit to stand it ought to be above 
 the fear of that kind of paper shof^ The courts as well as 
 
 1 Plut. Solon. 2 Xen. Mem. b. i., c. 2. » Plut. Pericl. 
 
 * 19 Pari. Deb. 600. 632 Hen. VIII. c. 25. 6 R. ^ udall, 1 St Tr. 1291. 
 f 7 In 1629 the Star Chamber tried Mr. Chambers, a merchant whose 
 goods had been seized, as he thought unjustly, and who in the heat of 
 his resentment had said, upon an inquiry about customs before the 
 Privy Council, "that the merchants are in no part of the world so 
 screwed and wrung as in England ; in Turkey they have more en- 
 couragement." The court of twenty-four persons, including chief jus- 
 tices, and earls, and bishops, had no doubt whatever, that these words 
 tended to the dishonour of the king by comparing his Government 
 with that of the Turks, and so to create discord between him and his 
 good people. And they fined him 2000Z., and committed him to the 
 Fleet prison till he signed an abject submission, which he resolutely 
 refused to do. — R. v Chambers, 3 St. Tr. 374. And Floyd was fined, 
 whipped, and imprisoned for saying, that he was glad the Elector 
 was driven out of Prague. — a.d. 1621. 
 
 In a book criticising the policy of the stage, which was then 
 patronised by the Queen of Charles I., the author said " dancing was 
 the devil's profession, and fiddlers were the minstrels of the devil." 
 The judge said this was a seditious libel, which made his blood boil. 
 
78 LIBERTY OF PRESS AND SPEECH. [ch. v. 
 
 the legislature long indulged in the narrowest views of the 
 relations between the governed and their governors. The 
 Seven Bishops were indicted for publishing a libel, namely, 
 a petition to the king, when all that was proved was, that 
 they merely refused to read and publish during divine 
 service a declaration which was believed by them to be 
 illegal, and that by reading it they would become parties 
 to it. One of the judges held, that for a private man to 
 write anything against the Government was a scandalous 
 libel.^ In 1706 a country rector was too glad to go on 
 
 The author was sentenced to lose his ears, to be pilloried, to be fined 
 5000Z., and be imprisoned for life — R. v Prynne, ?> St. Tr. 561. 
 
 In 1630 Leightonwas prosecuted in the Star Chamber for slander- 
 ing prelacy, and was sentenced to imprisonment for life, the 
 pillory, branding, slitting of the nose, and cutting ofE ears. — R. v 
 Leighton, 3 St. Tr. 385. Richard Baxter was charged before 
 JefEreys, 0. J., with sedition and reflecting on the prelates of the 
 Church in his Commentary on the New Testament, and was fined, 
 imprisoned, and bound over to good behaviour. — 11 St. Tr. 494. 
 He was, it is true, afterwards pardoned, and the fine remitted. — 
 3 Mod. 63. The holding of a conventicle, that is to say, a peaceable 
 meeting of people to join in public worship, was deemed seditious ; 
 and the attendance of adults at such a meeting was declared by 
 statute punishable with three months' imprisonment. — (a.d. 1644), 
 15 Ch. II. 0. 4. And the courts were expressly directed by a later 
 act to construe all clauses of that Act most largely and beneficially, 
 for suppression of conventicles. — 22 Ch. II. c. 1. 
 
 ^ R. V Seven Bishops, 12 St. Tr. 183. In this case the law officers 
 had informed James II. that the honestest paper relating to matters 
 of civil government might be a seditious libel when presented by 
 persons who had nothing to do with such matters, as the bishops 
 had nothing to do with it but in time of Parliament. — Clarendon's 
 St. Jjett. 317. The same Justice Allybonb, one of the judges at 
 the trial of the Seven Bishops in 1688, thus discoursed to a jury on 
 this topic ; " No private man can take upon him to write concerning 
 the Government at all, for what has any private man to do with the 
 Government, if his interest be not stirred or shaken? It is the 
 business of the Government to manage matters relating to the 
 Government — it is the business of subjects to mind only their own 
 properties and interests. If my interest is not shaken, what have I 
 to do with matters of Government ? They are not within my sphere. 
 If the Government does come to shake my particular interest, the 
 law is open for me, and I may redress myself by law. And when 
 I intrude myself into other men's business, that does not concern 
 my particular interest, I am a libeller. If every private man shall 
 come and interpose his advice, I think there can "never be an end of 
 advising the Government." — 12 St. Tr. 429. 
 
 And 110 years after the Seven Bishops' Case, another bishop told 
 
CH. v.] COMMENTS ON PUBLIC AFFAIRS. 79 
 
 his knees to a Secretary of State, and beg pardon for having 
 criticised the Duke of Marlborough's campaigns.^ And so 
 late as 1808, when a publisher of a newspaper was indicted 
 for a severe article on military flogging, the judge told 
 the jury, it injured the military establishment of the 
 country to have such a subject discussed, " and it was not 
 to be permitted to any man to make the people dissatisfied 
 with the Government under which he lives. " ^ And even 
 Lord EUenborough told the House of Lords, that he saw no 
 possible good to be derived to the country from having 
 statesmen at the loom and politicians at the spinning- 
 jenny.3 
 
 One great advantage of a free press is, that it tends to 
 disperse the dangers that culminate in sedition. Bacon 
 said that the surest way to prevent seditions, if the times do 
 bear it, is to take away the matter of them.* A great writer 
 has also observed, that " Violence exerted towards opinions, 
 which falls short of extermination, serves no other purpose 
 than to render them more known, and ultimately to increase 
 the zeal and number of their abettors. When public dis- 
 contents are allowed to vent themselves in reasoning and 
 discourse, they subside iato a calm ; but their confinement 
 in the bosom is apt to give them a fierce and deadly tinc- 
 ture. The reason of this is obvious. As men are seldom 
 disposed to complain till they at least imagine themselves 
 
 the House of Lords, that " he did not know what the mass of the 
 people in any country had to do with any laws but to obey them, 
 with the reserve of their undoubted right to petition against any 
 particular la w."— 32 ParZ. Hist. 258. 
 
 1 2 D. Manchester Court & Soc. 210. ^ -Wood, B. , R. v 
 
 Drakard, 31 St. Tr. 535. 
 
 3 41 Pari. Deb. 1591. In France those who wrote on public 
 affairs had been long so harassed, with prosecutions that in 1799 
 DucLOS said: "Gentlemen, let us speak of the elephant; it is the 
 only rather important animal, of which we may speak without 
 danger. "^ — Rapport Lib. de la Presse, 1879. 
 
 * Bac. Ess. 15. Burke, with more discrimination, said : " It is 
 right, that there should be a clamour whenever there is an abuse. 
 The fire-bell at midnight disturbs your sleep, but it keeps you from 
 being burned in your bed. The hue and cry alarms the country, 
 but it preserves all the property of the province. But a clamour 
 made merely for the purpose of rendering the people discontented 
 with their situation, without an endeavour to give them a practical 
 remedy, is, indeed, one of the worst acts of sedition." — 17 Pari. 
 Hist. 54. 
 
80 IJBERTY OF PRESS AND SPEECH. [ch. v. 
 
 injured, so there is no injury which they will remember 
 so long, or resent so deeply, as that of being threatened into 
 silence. This seenis like adding triumph to oppression and 
 insult to injury. The apparent tranquillity which may 
 ensue is delusive and ominous ; it is that awful stillness, 
 which nature feels while she is awaiting the discharge of 
 the gathered tempest. There is a buoyancy in the public 
 mind, which, the moment an unnatural pressure is removed, 
 seldom fails to rise up with an irresistible force and a terrible 
 majesty." ' Sedition often borders closely upon high treason. 
 Lord Mansfield said, that any meeting or insurrection by 
 force and violence to open prisons, destroy meeting-houses, 
 raise the price of wages, alter the established religion, or 
 to compel the legislature to repeal a law, was high treason * 
 But while sedition treads sometimes closely on the heels 
 of treason, in modern times words are not construed 
 as overt acts of treason, and so are not indictable as such.^ 
 How far a seditious libel can be defined. — The diffi- 
 culty of defining a seditious libel has often been felt and 
 pointed out as a weakness in this part of the law. Lord 
 EUenborough, when the peers were complaining of the 
 impossibility of defining a blasphemous or seditious libel, 
 volunteered to define it thus — " A libel calculated to bring 
 his Majesty's person or the Government and constitution 
 or either House of Parliament into hatred or contempt, or 
 calculated to excite his Majesty's subjects to attempt any 
 alteration of any matter in Church or State, as by law es- 
 tablished, otherwise than by la.wful means." * Lord Camden 
 also said, he had long endeavoured to define what a seditious 
 libel was, but had not been able to find any definition 
 which either met the approbation of his own mind or could 
 be deemed satisfactory to others. Some would have every 
 censure on the measures of Government considered as 
 a libel. If this was the case, every channel of public 
 
 1 R. Hall, Apol. Press, Sect. 2. ^ K v Lord G. Gordon, 21 St 
 Tr. 646. 3 Kelyng, Treas. 29 ; Foster, Or. L. 200. 
 
 ■* 41 Pari. Deb. 966. Mackintosh and others complained of this 
 as a confused definition, and ended by saying it was impossible to 
 give any definition.— 41 Ihid. 1540. " Those who slowly built up 
 the fabric of our law never attempted anything so nbsurd as to 
 define by any precise rule the obscure and shifting boundary which 
 divides libel from history or discussion."— S^r J. Mackintosh, R v 
 Peltier, 28 St. Tr. 529. ' 
 
CH. v.] ESSENCE OP SEDITIOUS LIBEL. 81 
 
 information would be converted into a mere vehicle of 
 panegyric. The voice of truth would cease to be heard 
 amidst the notes of adulation. Others again would have 
 only groundless calumnies on Government regarded as 
 libels. But who were then to decide ? To whom was it 
 left to pronounce, whether what was called calumny was 
 well or ill founded ? It was of consequence that this 
 power should be placed in hands, where it was neither 
 liable to abuse nor open to corruption. By being placed 
 in the hands of juries, it afforded the most probable means 
 of safety, and became the best instrument of justice.^ 
 Hence Lord Kenyon observed, that practically all that 
 could be said was, that whatever twelve of his countrymen 
 thought blamable was libellous, and what they, thought 
 not blamable was not libellous.^ 
 
 What is the essenee of seditious libel. — From what has 
 preceded it will be obvious, that sedition is more than a 
 vague general discontent with the mode of government 
 
 1 29 Pari. Hist. 732. 
 
 2 " After all, the truth of the matter as to the liberty of the press is 
 very simple when stripped of all the ornaments of speech, and a 
 man of plain common sense may easily understand it. It is neither 
 more nor less than this, that a man may publish anything' which 
 twelve of his countrymen think is not blamable, but that he ought 
 to be punished if he publishes what is blamable. This, in plain 
 common sense, is the substance of all that has been said upon the 
 subject."— i. Kenyon, C. J.,K v Cuthell, 27 St. Tr. 675. 
 
 Another experienced statesman also observed: "The most eminent 
 judges had been able to give no clearer definition of a seditious libel 
 than that it comprehended whatever was calculated to bring the 
 Government into hatred and contempt. Such a description, it was 
 obvious, would be thought to apply or not to any particular writing, 
 according to the different views and various reasonings of various 
 minds ; and where such various judgments might be formed it was 
 evident, that jurymen would exercise their judgments and modify 
 their sentence by a reference to the consequences which should 
 attach to it". — M. Lansdowne, H. L., 41 Part. Deb. 715. 
 
 A Protest of the Peers in 1819 well stated, that the " offence of 
 publishing a libel is, more than any other that is known to our law, 
 undefined and uncertain. Publications which at one time may be 
 considered innocent and even laudable may at another, according to 
 circumstances and the different views of public accusers, cf judges, 
 and of juries, be thought deserving of punishment, and thus the author 
 or publisher of any writing dictated by the ptirest intentions on a 
 matter of public interest, without any example to warn, any definition 
 to instruct, or any authority to guide him, may expose himself 
 to a long imprisonment and a heavy fine." — 41 Pari. Deb. 747. 
 
 G ' 
 
82 LIBERTY OF PRESS AND SPEECH. [ch. v. 
 
 existing. The essence of seditious libel may be said to be 
 its immediate tendency to stir up general discontent to 
 the pitch of illegal courses, that is to say, to induce people 
 to resort to illegal methods other than those provided by 
 the Constitution, in order to redress the evils which press 
 upon their minds. If laws are unjust, the legal method is 
 to petition Parliament to amend them. If a minister is 
 obnoxious, the legal method is to petition the Crown to 
 remove him, and failing that to dismiss at the next op- 
 portunity those members of Parliament who support him. 
 Whenever a writing is so framed as to urge strongly the 
 people, and especially the ignorant and turbulent portion of 
 the people, to take some shorter and illegal method, not at 
 a future 'time, but at once, of attaining the end in view, then 
 it may be said to be a seditious libel. And hence the con- 
 struction to be put on the language, unlike the general rule 
 in most other cases, is not what reasonable men would un- 
 derstand by it, but rather what the ignorant and excited 
 people of the day would be likely to do after hearing or 
 reading it. The difficulty of defining a seditious libel -is 
 thus inherent in the subject matter, for no limit can be set 
 to the topics, the men, and the measures that may be spoken 
 of and commented upon. The utmost certainty attainable 
 is to say, that whenever a speech or writing imputes per- 
 sonal corruption or scandalous misconduct or ignorance in 
 such terms as to incite others to get rid of the obnoxious 
 person by other and speedier methods than the ordinary 
 remedies prescribed by the law, then to that extent and no 
 further it is a seditious libel. This effect of the libel on 
 others in stirring their passions and leading them to violent 
 courses is sometimes deemed the gist of the offence.^ But 
 any excess in the degree, the adequacy, the justification of 
 the language must always remain to be settled by means 
 of a jury. He who, as Erskine observed, wishes to avoid 
 sedition, must not excite individuals to withdraw from their 
 subjection to the law, by which the whole nation consents 
 to be governed. He must not strike at the security of 
 property, or hint, that anything less than the whole nation 
 can constitute the law, or that the law, be it what it may, 
 is not the inexorable rule of action for every individual.^ 
 
 1 E. ■» Sullivan, 11 Cox, C. C. 47. = Erskine, arq. R. v Paine 
 
 22 St. Tr. 357. ' 
 
CH. v.] JURIES ON SEDITIOUS LIBELS. 83 
 
 A seditious libel therefore in its shortest definition con- 
 sists in " any words which tend to incite people imme- 
 diately to take other than legal courses to alter what the 
 Government has in charge." 
 
 Thus it was once said, that whenever a paper has a direct 
 tendency to cause unlawful meetings and disturbances and 
 to lead to a violation of the laws, that is sufficient to bring 
 it within the terms of an indictment, and it is a seditious 
 libel.' Thus also where a public meeting held at Birming- 
 ham once passed a resolution, that " a flagrant outrage 
 had been made upon the people of Birmingham by a blood- 
 thirsty force from London (of constables) " and that " the 
 people of Birmingham are the best judges of their own 
 power and resources to obtain justice," the jury were told 
 to consider, whether this resolution contained no more than 
 a calm and quiet disciission, allowing something for a little 
 feeling in men's minds (for persons in an excited state do 
 not discuss subjects calmly). If so, it would be no libel. 
 And the jury were to consider " whether the resolutions 
 meant the regular mode of proceeding by presenting peti- 
 tions to the Crown or either House of Parliament, or by 
 publishing a declaration of grievances, or whether they 
 meant, that the people should make use of physical force 
 as their own resource to obtain justice, and meant to ex- 
 cite them to tumult and disorder." The jury found the 
 defendant guilty.^ 
 
 Importance of juries in defining seditious libels. — 
 Such being the difficulty of defining seditious libels, the 
 law restraining them — the law that teaches how to fore- 
 see and avoid them — would often be inscrutable, if it were 
 not, that in all cases it rests with the jury, that is to say, 
 with a certain number of fellow citizens fairly selected and 
 
 » Littledale, J., R. v Lovett, 9 C. & P. 466. 
 
 2 Littledale, J., E. v Collins, 9 C. & P. 461. In one cage, in 1797, 
 the prisoner was charged with seditious words at a meeting in 
 favour of annual parliaments and universal suffrage. He said that 
 " it was their object to obtain reform by every peaceable means in 
 their power, for it would be shocking to shed the blood of their 
 fellow creatures ; but if the Government continued obstinate, and 
 force was necessary, he hoped there was not a citizen in the room 
 but would shed his last drop of blood either in the field or on the 
 scaffold." And the jury found him not guilty, obviously thinking 
 that force was not recommended. — R. v Binns, 26 St. Tr. 5ft5 
 
 G 2 
 
84 LIBEETY OF PRESS AND SPEECH. [ch. v. 
 
 capable of estimating the dangers of license on the one 
 hand and of tyranny on the other hand, to decide not only 
 what is the fact, but what is the law. And no man can 
 be declared guilty of transgressing the limit of free 
 speech or writing without their consent and acquiescence 
 in some form or another. Words which were formerly 
 deemed seditious would now be deemed mere expressions 
 of abstract opinion as to the best forms of government, and 
 such are now tolerated both within and without the walls 
 of Parliament as the inevitable result of freedom of 
 thought. And all men of moderate education can scarcely 
 fail to acquire an instinctive appreciation of the standard of 
 hcense and decorum,^ 
 
 Proclamations of the Crown as to seditious meetitigs. 
 — The difficulty of putting an end to a general and syste- 
 matic excess in free speaking and writing bordering on 
 sedition has sometimes induced the Government of the day 
 to resort to the good advice of the Crown as a means of 
 allaying a feverish excitement. In 1792 the Crown issued 
 a proclama)>ion as to seditious writings, the bad effects of 
 which were described, and it charged all magistrates to 
 make diligent inquiry to discover the authors and printers. 
 But Mr. Grey complained of this as defamatory, malicious, 
 and impolitic, and one of the lords denounced it as most 
 malignant and . impotent, fot if there were offenders, the 
 proper course was to prosecute them, and not urge magis- 
 trates to become spies and informers.^ And opinions 
 have generally been divided as to the policy of such a 
 step, while it is admitted that it supplies nothing in 
 the form of a legal remedy. As will be seen here- 
 after, it sometimes also happens, that Parliament itself, 
 
 1 " Comments on Government, on ministers and oiEoers of state, on 
 members of both Houses of Parliament, on judges and other public 
 functionaries, are now made every day, which half a century ago 
 would have been the subjects of actions or ex officio informations, 
 and would have brought down iihe and imprisonment on pubUshers 
 and authors. Yet who can doubt the public are gainers by the 
 change, and that though injustice may often be done, and though 
 public men may often have to smart under the keen sense of wrong 
 inflicted by hostile criticism, the nation profits by public opinion 
 being thus freely brought to bear on the discharge of public duties." 
 
 , — "Waeon v Walter, L. K, 4 Q. B. 94. 
 
 See further as to juries deciding the fact as well as the law, vost 
 
 2 29 Pari. Hist. 1480. 
 
CH. v.] SEDITIOUS PUBLIC MEETINGS. 85 
 
 intervenes^ and by its own authority takes iiotice of libels, 
 even though not aimed specially at itself, declaring them 
 to be libels, but, nevertheless, not dealing further with the 
 libeller. This also little advances the remedy. In one 
 noted case the House of Commons had resolved, that a par- 
 ticular publication was a seditious libel, but this resolution 
 was held nowise conclusive, when an indictment for the 
 same publication came to be tried ; and it was left to the 
 jury to find whether they thdtight it to be so, and the jury 
 held it was no libel.' 
 
 'Sedition at public meetings. — Thereis nothing peculiar 
 to sedition which is written and published which does not 
 extend to seditious speeches ; and the limits are the same 
 in both cases, except that as the effect of speaking is 
 usually ephemeral and transitory depending on the occa- 
 sion and the numbers, and above all the conduct of the 
 audience, a remedy might be resorted to in one case which 
 would be deemed superfluous in the other. A seditious 
 speech, if it have any effect at all, usually operates instan- 
 taneously, and the extent of the evil can usually be esti- 
 mated from the conduct of the day ; while published libel 
 is far reaching, and may become more obnoxious as time 
 advances. Public meetings held for discussion of public 
 affairs are sometimes used only as a cloak for demon- 
 strations of physical force, and with the secret intent of 
 overawing the Government and concussing it. Lord 
 Abinger, C.B., is said to have charged the jury at a trial of 
 Chartists, that to summon a meeting of 3000 or 4000 people 
 to discuss things, or form a deliberative assembly, was a 
 farce ; and if an assembly was such as to render all notion 
 of serious debate impossible, and if the only object was to 
 hear one side, then it could not be viewed as anything but 
 illegal.^ Yet great allowances must be made in times of 
 excitement as to what is legitimate to be considered and put 
 forward at public meetings. As Erskine observed, " It was 
 often said, that bold language was held at public meetings ; 
 it was certainly bold to say, that the people had a right to 
 resist and that they ought to rise, but there were some occa- 
 sions which rendered the boldest language warrantable."^ 
 
 > R. V Reeves, 2 Peaks, N.P.C. 84 ; R. u Stockdale, lb. 86. 
 
 2 66 Pari. Deb. (3) 1060. 
 
 ' 32 Pari. Hist. 313. Lord Chatham, on a great occasion, said : 
 
86 LIBERTY OP PRESS AND SPEECH. [ch. v." 
 
 Unpublished seditious writing. — Such was the dis- 
 regard of principle by the judges of a former time, that 
 Peacham, a clergyman, was found guilty of treason for 
 certain words in a sermon found in his study, which had 
 never been published, nor was ever intended to be preached.' 
 And the same was held as to an unpublished paper on the 
 rationale of Government found in Algernon Sidney's study, 
 and never published, Judge Jeffreys holding that the writing 
 was per se an act of treason.^ But while mere words or 
 mere unpublished writings cannot be construed into an 
 offence against the government in the nature of seditious 
 libel, yet when the writing is published and can be construed 
 into a compassing the death of the Sovereign, then it is 
 nothing less than an overt act of treason.^ 
 
 Libels on the Sovereign. — In the free play of speech 
 and writing, whenever a seditious tendency was indulged, 
 it was in former times inevitable, that the conduct qf the 
 Sovereign should be marked out for comment. In any cir- 
 cumstances great delicacy of treatment is here imperative. 
 In a constitutional country the whole streilgth of blame 
 can be sufficiently directed against the ministers and ad- 
 visers, who are deemed responsible for all the great issues 
 of affairs. In this view it is a maxim of law, that the 
 Sovereign can do no wrong, and hence whatever grievance 
 
 "If the king's servants will not pennit a constitutional question to 
 be decided on, according to the forms and on the principles of the 
 Constitution, it must then be decided in some other manner; and 
 rather than that it should be given up — rather than the nation shall 
 surrender their birthright to a despotic minister, I hope, old as I 
 am, I shall see the question brought to issue and fairly tried between 
 tlie people and the Government." — 16 Pari. Hist. 747. 
 
 To which Ebskine added : " I was born a free man, and I will 
 never die a slave."— 32 Pari. Hist. 313. 
 
 Fox also observed : " When the power of public speaking was 
 taken away, what was there left but the patience of implicit sub- 
 mission : what hopes could be entertained that grievances would be 
 removed, when those who felt them dared not complain ? " — 32 Pari 
 Hist. 352. 
 
 1 Peacham's Case, Cro. Ch. 125 ; Foster, 199. 
 
 2 Sidney's trial, 9 St. Tr. 889, 893 ; Foster, 198. An Act of 
 Parliament afterwards was passed, in 1689, to reverse that judgment. 
 — 9 St. Tr. 996. And see further, post, as to the effect of 
 publication and its evidence. 
 
 3 25 Ed. III. c. 2; Hale, P. C. 118; Foster, 198: Williams' Case, 
 2 Roll. Rep. 88 ; 3 Inst. 121. See^osi, p. 91. 
 
CH. v.] IIBELS ON THE SOVEREIGN. 87 
 
 exists to engage the public mind, the nature of the redress 
 being entrusted to some responsible ministers, the matter 
 can always be exhausted, without requiring to deal with the 
 conduct of more than a few constitutional advisers. In the 
 minds of all good citizens the character of the Sovereign is 
 sacred, and little embarrassment in modern times has arisen 
 in separating topics that are in no way necessarily con- 
 nected with each other. All such difficulties are rather 
 things of thie past. Moreover seditious speeches and 
 writings are to be distinguished from those which are 
 treasonable, for treason, being an offence personal to the 
 Sovereign, all that relates to it falls more properly under 
 that division of the law treating of " Government." 
 
 The older doctrines as to speaking against the Sove- 
 reign. — In ancient times-libels on the Sovereign were not so 
 easily disposed of, and occasioned great difficulty. When 
 the Emperor Augustus was called to power, it was made 
 a penal offence to call him a boy.i And it is said that 
 he was once disposed to punish severely a historian who 
 passed some stinging jests on him and his family, but 
 Maecenas advised him that the best policy was to let these 
 pass and be forgotten.^ Csesar said that to retaliate was 
 only to contend with impudence and put oneself on the 
 same level.* And even Tiberius acted on the same view.* 
 The Theodosian Code also made this the law, and expressly 
 declared, that slanderers of majesty should be unpunished, 
 for if this proceeded from levity, it was to be despised ; if 
 from madness, it was to be pitied ; and if from malice it 
 was to be forgiven ; for all such sayings were to be regarded 
 according to the weight thej bore..^ In our own country 
 statutes, were often passed to protect the sovereign. The 
 statute of Edward I. described it as an offence to publish 
 false news or tales, whereby discord might grow between 
 the king and his people.* To say that the king was not the 
 
 1 32 Pari. Hist. 518. 2 Suet. Aug. ; Dion Cass. b. lii. ^ Aul. 
 Gell. b. vi. c. 11. 
 
 * Suet. Tib. It has been said that slanders are very much to be 
 feared, when they are expressed in witty sayings, for people delight 
 to repeat them. — Ghev. de Mere, Disc, de la Convers. 
 
 5 Theod. Code, Si quis Imper. And it is related in modern times, 
 that Catherine de Medicis and Francis I. allowed themselves and 
 their ministers to be satirized in comedies without stint. — Babac, 
 Epist. « 3 Ed. I. c. 34 ; Britt. b. i. c. 21, ante, p. 63. 
 
88 LIBERTY OF PRESS AND SPEECH. [ch. v. 
 
 rightful king, or that another was so, was deemed treason 
 in the time of Edward IV.^ And the same decision was re- 
 peated in the time of George II., when an allegorical de- 
 scription was given in Mist's Journal.^ A Welsh bard was 
 executed in 1541 for singing prophecies against the king. 
 The statute of 1554 punished the inventing and repeating of 
 false news aboiit the king or queen with the pillory and loss 
 of both ears, and the publication of the same inventions 
 with the loss of the right hand.* In the time of Queen 
 Elizabeth it was made an offence to make pretended con- 
 juration of the queen's death.* And for writing about her 
 marriage with the Duke of Anjou, Stubbes was sentenced 
 to have his right hand cut off.* Even in the time of James 
 I. a barrister was convicted of high treason and executed 
 for uttering a prediction, that the king would die in a certain 
 year, which he specified.^ And a statute of Anne made it 
 high treason to maintain in writing or print, that the king 
 and Parliament could not regulate the succession to the 
 crown.'' When Wraynham said of King James I., " He is 
 but a man, and so may err," the judge said it was scandal- 
 ous, for it implied error in the king; and the defendant 
 was fined 1,000Z., was made to ride with his head to the 
 horse's tail, and had his ears lopped.* Yet the judges held, 
 that to speak words stating that the king was the greatest 
 drunkard in the kingdom was no treason.* In 1605 the 
 I^ord Chancellor took the opinion of the judges as to certain 
 petitions of the Puritans, and they and all the Star Chamber 
 held that a petition to the king which intimated, that " if he 
 denied their suit many thousands of his subjects would be 
 discontented," was an offence very near to treason, and it was 
 finable by discretion, for it tended to raise sedition, rebel- 
 lion, and discontent among the people.^" And the judges 
 also held it was finable to say of the king, that he intended 
 to grant toleration to Papists, especially as the king had 
 protested that " before he would do such a thing he would 
 spend the last drop of blood in his body." ^^ In Peacham's 
 
 ■•■ Genm9,me's Casei 2 Ed. IV. 3 St. Tr. 362. 2 Holt's Libel, 96. 
 
 " 1 & 2 Ph. & M. c. 3, ante, p. 54. * 5 Eliz. c. 15. 6 i Hallani, 
 Const. Hist. 0. 5. « R. v Williams, 2 Roll. Rep. 88. ^ i & 6 
 
 Anne, c. 20, § 1. » 6 L. Bacon's Lett. Sit. » E. v Williams, 
 
 Cro. Ch. 126 ; 3 St. Tr. 368. i" 8 Somers' Tracts, 122. " Cro. 
 Jas. 38. 
 
OH. v.] SEDITION AGAINST THE SOVEREIGN. 89 
 
 ease the judges held, that to charge the king in a writing 
 which was never published, that " the king might be stricken 
 with death, and that the peoJ)le will rise against him foj 
 taxes and oppressions," was treason, though many of tlSe 
 judges thought it was nof In 1628 one Pine said, of 
 Charles I., that " he was as unwise a king as ever was : he . 
 was carried as a man would carry a child with an ^appTe : 
 and that he was no more fit to be king than Hiekwright 
 (an old simple fellow who was Pine's shepherd)." All the 
 judges met and considered, whether this amounted to high 
 treason or what else, and they resolved that these words, 
 wicked as they might be, were not treason.^ And to protect 
 Charles II. against being called a heretic or Papist, a 
 special statute was passed, limited to his life.^ A solicitor 
 in a coffee-house, when provoked by some impertinent 
 questions, once hastily said, " I am for equality and no 
 king." He was prosecuted and found guilty, imprisoned, 
 pilloried, and struck off the rolls.* 
 
 Modern cases as to seditious writings against the 
 Sovereign. — The more modern cases show- greater and 
 greater difficulty, owiug to the feelings of juries, who are 
 difficult to controul. In the case of Wilkes, who in the 
 North Briton, 'No. 45, substantially attacked the personal 
 honour and veracity of the king and his Government, 
 and thereby, as was alleged, tended to excite tumults and 
 
 1 Peaoham's Case, Cro. Ch. 126; 3 St. Tr. 870. ^ pij^'s Case, 
 3 St. Tr. 368. 
 
 3 13 Ch. II. 0. 1 ; 32 Pari. Hist. 518; It was held not treason for 
 a defendant to publish, that King Charles II. had abused, his power 
 to the overthrow of rehgion, laws, and liberties, and that the people 
 ought to resist. — R. v Brewster, Bolt, Lib. 87. In 1660 one 
 Lenthall was reprehended for saying in the House of Commons, that, 
 he who drew his sword against the king committed as high an 
 offence as he that cut off the binge's head. — 4 Pari. Hist. 42. 
 Whitelocke, for giving a private legal opinion that a certain com- 
 mission of the Crown was illegal, was charged before the Star 
 Chamber with contempt of the prerogative, and he was only dis- 
 charged after his submission. — 1 Hallam, Const. Hist. c. 6. A 
 publisher of Mist's Weekly Journal was found guilty of publishing, 
 that the king's legitimacy and title to the Crown were called in 
 question under the form of an allegory. — R. v Clarke (a.d. 1729), 
 Barnard. 304. To publish, that the late sovereign misapplied, 
 wasted, and dissipated the treasure of the kingdom, was held a 
 seditious libel. — R. » Shebbeare, Holt, Lib. 89. 
 
 * R. V Frost, 22 St. Tr. 471. 
 
90 LIBERTY OF PRESS AND SPEECH. [ch. v. 
 
 insurrections, he, as being the author, and also those who were 
 the printers and publishers of the libel, was found guilty.^ 
 The case of Junius' letter to the king, in which, as the 
 Attorney-General urged, every bad quality was imputed to 
 the king, and every good quality was denied to him, was a 
 strildng example of the difficulty of foreseeing how juries 
 might deal with circumstances supposed to be so near the 
 dividing line between lawful public comment and seditious 
 excess. In the first of several trials for publishing that 
 memorable letter, the jury found the publisher guilty.^ In 
 the two other trials for the same publication the jury, after 
 deliberating seven and ten hours respectively, gave a verdict 
 in favour of the publishers- of not guilty.^ The other pro- 
 secutions in respect of the same libel were then abandoned 
 by the advisers of the Crown without a trial, as not likely 
 to be successful. In the case of Perry, who said " the king 
 was not popular," this was deemed no libel.* In one case 
 the author of a pamphlet set forth as a doctrine of the 
 Constitution, that " the kingly office may go on in all its 
 functions without Lords or Commons; from the king 
 alone we unceasingly derive the protection of the law ; " the 
 House of Commons resolved, that this was a high breach of 
 the privileges of that House, and ordered the Attorney- 
 General to prosecute. The jury, however, found the author 
 not guilty.^ 
 
 To say that " it would be well if there was a total change 
 of system, and that the successor of the present Sovereign 
 would have the finest opportunity of becoming nobly 
 popular," may, when taken with the context, mean little 
 more than that the Sovereign had erred honestly and 
 been misled by his counsellors, without implying any 
 corrupt motive or intention to oppress or favour any class 
 of men. And it need not be construed to imply any 
 thing which necessarily tends to bring the Sovereign into 
 
 1 R. V Wilkes,. Holt, Libel, 97. 2 R. v Almon, 20 St. Tr. 839. 
 » R. V Woodfall, 20 St. Tr. 903 ; R. v Miller, 20 St. Tr. 895. i 38 
 Pari. Deb. (3) 479. 
 
 ^ B..V Reeves, 26 St. Tr. 530. In another case, where the defendant 
 published in his newspaper th^t the Emperor of Russia was a tyrant 
 to his own subjects and ridiculous in the face of Europe, and hiid 
 prohibited the exportation of timber, the jury found him guilty. — 
 R. V Vint, 27 St. Tr. 642. 
 
en. v.] INTIMIDATING THE SOVEREIGN. 91 
 
 contempt and hatred. If so, then it is no libel, and cannot be 
 interfered with.' In that case Lord Ellenboroiigh, C. J., said, 
 that " if a person who admits the wisdom and virtues of his 
 Majesty laments, that in the exercise of these he has taken 
 an unfortunate and erroneous view of the interests of his 
 dominions, he was not prepared to say that this tends to 
 degrade his Majesty or to alienate the affections of his sub- 
 jects. He was not prepared to say that this is libellous ; 
 but it must be with perfect decency and respect, and 
 without any imputation of bad motives. If the writer were 
 to go one step further and say or insinuate, that his Majesty 
 acts from any partial or corrupt view, or with an intention 
 to favour or oppress any individual or class of men, then it 
 would become most libellous." ^ In another case a news- 
 paper published the following: "It is with the deepest 
 concern we have to state, that the malady under which his 
 Majesty labours is of an alarming description, and may be 
 considered hereditary. It is from authority we speak." A 
 criminal information having been filed, and a trial had, it 
 appeared that the publisher had no authority for the state- 
 ment. The judge told the jury it was a criminal act to 
 publish of any man that he was insane, and as the defendant- 
 admitted it was false, this was a libel. The court held this 
 was a right direction, and it was also right to tell the jury, 
 that he who publishes matter calculated to defame must be 
 presumed to have intended to defame, unless he shows the 
 contrary ; in other words, that mahce was implied.* 
 
 Recent statutes against intimidating the Sovereign. — 
 In the time of Edward III. any person compassing the 
 death of the Sovereign being guilty of treason, much ditli- 
 culty existed as to what was an overt act amounting to 
 such compassing.* In 1796 and 1817 any compassing of 
 personal injury to the Sovereign or of levying war in order 
 to compel by force or constraint the Sovereign or his suc- 
 cessors to change his measures or counsels, or to intimidate 
 either House of Parliament, and when , put in writing and 
 published, was declared to amount to treason.^ 
 
 1 E. i; Lambert, 2 Camp. 402. The jury returned a verdict of not 
 guilty in this case, which was an indictment of the publisher of the 
 Morning Chronicle in 1809. 
 
 2 E. V Lambert, 2 Campb. 402 ; 22 St. Tr. 95.8. ' E. v Harvey, 2 B. 
 & C. 257. * 25 Ed. III. c. 2. ^ 35 Qeo. III. c. 7 ; 57 Geo. III. 0. 6. 
 
92 LIBERTY OF PRESS AND SPEECH. [ch. v. 
 
 And the statute of 1796 made any writing, speaking, or 
 preaching, whicli incited to a hatred or contempt of majesty 
 or the Government, a high misdemeanour.^ And that law- 
 continued until 1848, when it was repealed and superseded 
 by another enactment, which is now in force. By this later • 
 Act, whoever intends to levy war against her Majesty in 
 order by force to compel her to change her measures or 
 counsels, or in order to intimidate either House of Parlia- 
 ment, or move foreigners to invade the kingdom, if such 
 intention be expressed by printing or open and advised 
 speaking, or by any overt act, then he is guilty of felony.^ 
 
 Libels on ministers of state. — The same consideration 
 which protects the Sovereign from libels extends in a large 
 degree to the ministers of state, as part of the executive 
 Government. There must be ministers, and there must be 
 credit given to these ministers that they know their duties, 
 rights, and powers, and that they give to these their best 
 attention, free from corruption and the vices incident to the 
 exercise of all but absolute authority.^ Holt, C. J. said, that 
 
 1 36 Geo. III. c. 7, § 2. The words were : " Whoever maliciously 
 and advisedly, by printing, preaching, or speaking, uses words to 
 incite or stir up the people to hatred or contempt of his Majesty, 
 his heirs or successors, or the Government and Constitution as by 
 law established, commits a misdemeanour, punishable as in other 
 cases, and on a second offence is punishable with seven years' trans- 
 portation." Pox said under that Act freedom becarne a mockery. — 
 32 Pari. Hist. 272. 
 
 2 11 & 12 Vic. c. 12 ; Stat. L. Rev. Acts, 1871, 1875 ; 20 & 21 Vic. 
 c. 3 ; 27 & 28 Vic. c. 47. The punishment is imprisonment for two 
 years, or penal servitude for life or seven years. The remedy for 
 spoken words must be prosecuted in six days, and no costs are to be 
 allowed to the prosecutor. Two witnesses are required. 
 
 ' " It is for the interests of society, that the public conduct of men 
 should be criticised without any other limit than that the writer 
 should have an honest belief that what he writes is true. But the 
 public have an equal interest in the maintenance of the public 
 character of public men ; and public affairs could not be conducted 
 by men of honour with a view to the welfare of the country, if we 
 were to sanction attacks on them destructive of their honour and 
 character and made without any foundation. The true position is 
 this.. Where the public conduct of a public man is open to animad- 
 version, and the writer who is commenting upon it makes imputations 
 on his motives, which arise fairly and legitimately out of his con- 
 duct, so that a jury shall say, that the criticism was not only honest 
 but also well founded, an action is not maintainable. But it is not 
 because a public writer fancies, that the conduct of a public man is 
 
CH. v.] LIBELLING MINISTERS OF STATE. 93 
 
 to assert, that corrupt officers are appointed to administer 
 affairs is a reflection on the Government, and tends to beget 
 an ill opinion of the administration of the Government.^ 
 Criticisms which make no fair allowances to these public 
 servants as being honestly desirous to do their work well, 
 and imputing corruption or dishonesty, or any other personal 
 vice incompatible with a high sense of duty, are thus treated 
 as libels. J!fearly all the questions arising out of libels on 
 ministers of state turn on this point, whether some gross 
 personal vice or moral defect is attributed to individual 
 members of the Government. This is sometimes described 
 as bringing Government into contempt, or exciting sedition, 
 the.se being the necessary consequences of such imputations. 
 But the modern practice is to disregard many imputations 
 which formerly were made matter of prosecution as sedi- 
 tious. To charge folly, or imbecility, or incapacity to a 
 member of the Government may be quite compatible, with 
 avoiding undue license or the imputation of malice ot 
 corruption, and this is said to be, because honest,, well- 
 meaning men do as great public mischief as those who are 
 able but unprincipled. If therefore the drift of the public 
 writer is not to discuss the matter in its bearings on public 
 interests, but to impute dishonesty to the individual minis- 
 ter, the writing is a libel. And it is not the less libellous 
 because any one individual of the Government may not be 
 specified or indicated, if the whole, that is to say, several 
 of the high officials are clearly included, as was the case 
 where Tutchin alluded to " the influence of French gold on 
 the conduct of affairs, and accused those who had the 
 management of the navy of ignorance and incapacity." ^ 
 
 open to the suspicion of dishonesty, he is therefore justified in 
 assa,iling his character as dishonest." — Per Coekbum, C. J., Campbell 
 V Spottiswoode, S B. & S. 777. 
 
 » Tutchin's Case, 14 St. Tr. 1128. 
 
 2 E. V Tutchin, 14 St. Tr. 1095. In R. v Luxford, in 1791, a pub- 
 lisher of a newspaper was found guilty of a libel for arguing, that 
 the real object of a certain naval expedition was not what it pro- 
 fessed to be — "that the ministry had deluded the people, and acted 
 without policy, prudence, or spirit." — 29 Pari. Hist. 658. It was 
 also once held, that to charge a Cfovernment witli intending to violate 
 a public treaty with a foreign Government, and with being enemies 
 to the public good, was libellous, according to the mode of treating 
 the subject and the circumstances of the time. — K. v Francklin, 17 
 
94 LIBKRTY OF PRESS AND SPEECH. [ch. v. 
 
 Cobbett, in 1804, published a letter charged with in- 
 vective, and among other things spoke of Lord Hardwicke, 
 Lord Lieutenant of Ireland, and Lord Eedesdale, Lord 
 Chancellor of Ireland, as "a very eminent sheep feeder 
 from Cambridgeshire, assisted by a very able and strong- 
 built chancery pleader from Lincoln's Inn." The prose- 
 cution urged, that this letter had for its purpose to degrade 
 and vilify the whole administration of government in 
 Ireland, and to expose it to the scorn and execration of 
 the Irish people. His counsel defended it as fair ridicule 
 and good English humour, having the object of " support- 
 ing the good Government of Ireland and the removal of 
 the present inefficient administration." Lord Ellen borough, 
 C.J., told the jury, that "if a publication be calculated 
 to alienate the affections of the people by bringing the 
 Government into disesteem, whether the expedient be by 
 ridicule or obloquy, the person so conducting himself is 
 exposed to the inflictions of the law. It is a crime." And 
 ■ in commenting on passages the judge suggested, that it 
 was instigating the people to rebellion. The jury found 
 Cobbett guilty.i And in 1820 Sir F. Burdett was con- 
 victed of a seditious libel for publishing, that " divers liege 
 subjects were inhumanly cut down and killed by his 
 Majesty's troops " at a certain place in a riot.^ Hunt was 
 prosecuted for an article in the Examiner newspaper 
 commenting on the excess of flogging in the army, a 
 sentence of one thousand lashes having been ordered 
 in one case ; and though the judge, Lord EUenborough, 
 told the jury, that it was a libel and intended to excite 
 disaffection in the army, the jury found a verdict of 
 not guilty.^ 
 
 "When ministers of the day are charged with some 
 personal dishonesty or corruption, they have the same 
 
 St. Tr. 626. To publish a writing that his Majesty's troops in- 
 humanly murdered innocent subjects on an occasion specified was 
 held to be a seditious libel.— R. v Home, 20 St. Tr. 651 ; Cmop. 672. 
 
 1 R. V Cobbett, 29 St. Tr. 54. Mr. Justice Johnson, an Irish judge, 
 was known to the author, and Cobbett was never called upon to 
 receive sentence. 
 
 2 R. V Burdett, 4 B. & Aid. 95. 
 
 ^ R. V Hunt, 31 St. Tr. 367. In another case, however, relating 
 to the same libel, thp jury found the publisher guilty. — R. ■wDrakard, 
 31 St. Tr. 495. 
 
CH. v.] • LIBELLING THE CONSTITUTION. 95 
 
 'remedies as others, apart from a state prosecution. Thus 
 in 1786, when Pitt, the frime Minister, was charged 
 by the Morning Herald with gambling in the funds 
 and fraudulently availing himself of official information 
 to make money on the Stock Exchange, and that "his 
 friends were deeply grieved by the discovery, but were 
 trying to palliate his misconduct," he sued the publisher 
 for damages. Erskine, for the defendant, admitted there 
 was no justification, and Lord Mansfield told the jury 
 to remember, this was a very serious question, in which 
 all the public were concerned, namely, whether there 
 shall be any protection to the reputation of honourable 
 men in public or private life. The jury gave a verdict 
 of 250Z. damages.^ 
 
 Libels on the Constitution. — It has sometimes been 
 said that besides speeches and libels charged with sedi- 
 tion by way of exciting the people against the Sovereign 
 or the ministers, there may be also a libel which defames 
 and wantonly attacks the Constitution itself. But as the 
 Constitution is at best an abstraction, it may well seem 
 idle and hypercritical to interfere with any one for 
 commenting on such a subject.. And judges in former 
 times have sometimes used sweeping language such as 
 would utterly suppress free speech or thought on almost 
 any political subject, for most people are constantly 
 finding fault with the Constitution in one respect or 
 another, and without allowing free scope to such fault- 
 finding there would never be reformation or amendment 
 in anything. AU those indictments and informations 
 for what are called libels on the Constitution really 
 resolve themselves into one or other of the specific 
 libels already mentioned, and to go further is usually 
 to interfere with the inherent rights of freedom. It is 
 true, that in certain states of public feeling what may 
 otherwise be innocent language is viewed as an incentive 
 to public disorder and tumult, and hence the surround- 
 ing circumstances cannot but enter largely into the con- 
 struction of all libellous writings and speeches, when 
 charged with promoting sedition. And this part of such 
 busiaess, it will be seen, is well confided to a jury. 
 Political writers cannot be tied down closely to the 
 1 1 Polit. Anecd. 360. 
 
96 LIBEETY OF PRESS AND SPEECH. [oh. v. 
 
 subject matter of their animadversions, and all attempts 
 of courts to define the limits of this kind of discussion 
 have as already stated been unsuccessful. Parliaments 
 as well as the courts have in recent times become much 
 more liberal in dealing with political libels, for, as Cobbett 
 s^id, there is always an appeal from the tellers of the 
 Houses of Parliament to the tellers of the nation.^ As 
 a great master has observed : — " If in the march of the 
 human mind no man could have gone before the establish- 
 ments of the time he lived in, how could our establish- 
 ment by reiterated changes have become what it is ? 
 If no man could have awakened the public mind to 
 errors and abuses in our government, how could it have 
 passed on from stage to stage, through reformation and 
 revolution, so as to have arrived from barbarism to its 
 modern pitch of happiness and perfection ? " ^ " Government 
 has at all times been in its own estimation a system 
 of perfection ; but a free press has examined and de- 
 tected its errors, and the people have from time to time 
 reformed it." ^ 
 
 Some examples of libels against the Constitution. — 
 Arguments and discussions now perfectly innocent and al- 
 most part of common knowledge, or at least admitted to be 
 open questions, formerly had serious consequences. There 
 have been in former times instances of these libels against 
 what may be called the existing form of government, where 
 courts and juries have found the author of the libel guilty. 
 Thus to argue, that, in case of the Sovereign abusing his 
 powers, the subjects may and ought to resist with force of 
 arms, was once punished.* In another case the writer, 
 after justifying the regicides, said, that a rebellion against 
 one estate of the realm is not properly rebeUion at all, for 
 that there could only be rebeUion against the three estates 
 collectively. And he was found guilty.^ Again, it was 
 equally a crime to argue, that the revolution settlement was 
 the destruction of the laws of England.® In one case the 
 author of a treatise on hereditary right was held guilty, 
 though he made no reflection on any part of the existing 
 
 1 R. V Cobbett, 29 St. Tr. 69. 2 Ersldne, arg. E. v Paine, 22 
 
 St. Tr. 357. ' Ibid. ■" E. v Brewster, 15 Ch. II. Holt, Lib. 
 
 87. 5 E. „ Harrison, 3 Keb. 841 : Vent. 324. e R. v Brown, 
 
 Holt, Lib. 87. 
 
CH. v.] ABRESTING SEDITIOUS LIBELLERS. 97 
 
 government.' And Sacheverell was impeached for in- 
 veighing too much in the abstract against the Revolution 
 settlement, though his prosecutors in turn suffered from the 
 reaction, after he was found guilty and was suspended from 
 preaching for three years. So late as 1754 Nutt was con- 
 victed of a seditious lihel for publishing, that the Eevolution 
 was "an unjustifiable and unconstitutional proceeding." ^ Dr. 
 Shebbeare was convicted and sent to the pillory for writing 
 that " the calamities of the nation were due to the influence 
 of Hanover, aud that the Eevolution was the foundation of 
 aU our evils and calamities." ^ Few can now rise to such a 
 pitch of enthusiasm as led Fox in 1774, proud of " the hero 
 without vanity or passion," to denounce " a libel on the 
 glorious Eevolution," Tox said " that was one of the vilest 
 Ubels on the Constitution of this country that ever was 
 published; it was not an abuse of this person or that 
 person, but of the Constitution of this kingdom ; it was a 
 libel upon the glorious Eevolution in 1688, and it terms 
 expressly that revolution a rebellion against King James." * 
 And the House ordered the Attorney General to prosecute 
 the author and publisher. And Paine, in 1792, was convicted 
 of a seditious libel for vilifying the Eevolution, the BOl of 
 Eights, the Legislature, and the Government generally.^ 
 
 Arresting publishers of seditious or hlasphemous 
 libel. — A century ago, owing to the dangerous conse- 
 quences of seditious libels, it was thought that any Secre- 
 tary of State might issue his general warrant to authorise 
 the unknown author and printer to be searched for and 
 arrested, and their houses to be examined and papers to be 
 seized ; but in the notable instance of "Wilkes that notion 
 
 1 R. V Bedford, 2 Str. 789. ^ r. „ Nutt, Holt, Lib. 88. = r. 
 V Shebbeare, A.D. 1758, Holt, Lib. 89. ■• 17 Pari. Hist. 1055. 
 
 5 R. « Paine, 22 St. Tr. 367. In 1842 Mason, a Chartist lecturer, 
 ■was haranguing the audience and telling them that the laws were 
 made by the aristocracy, and' that the people had no voice in the 
 election of their representatives, &c.', when a constable interfereji 
 and took Mason into custody. Mason was afterwards convicted 
 at Quarter Sessions of aiding in an illegal assembly, and he was 
 sentenced to six months' imprisonment. The Home Sicbitaet and 
 Attorney-General Pollock said, that a constable on hearing seditious 
 language may, at his own risk, apprehend the party using it ; and 
 that a constable hearing language which had an immediate tendency 
 to produce a breach of the peace was entitled to interfere as he did. 
 —65 Pcurl. Deb. (3d) 600. 
 
 H 
 
98 LIBERTY OP PRESS AXD SPEECH. [ch. v. 
 
 was for ever dispelled.^ It is true that, under the general 
 law relating to all criminal offences, a person who publishes 
 or prints a seditious libel may be summoned before a justice 
 of the peace, and the charge against him, with a view to in- 
 dictment, regularly inquired into. But there is no such 
 practice competent as a summary arrest, unless in course of 
 such inquiry a warrant, should be issued, in which case it 
 must name the person who has been charged.* Before the 
 Act of 1848 passed, which authorized justices of the peace 
 to inquire, the Secretary of State in 1817 sent a circular 
 to recommend the justices in all cases of blasphemous and 
 seditious pamphlets to issue a warrant to arrest the indi- 
 viduals found selling or publishing these, and to hold them 
 to bail to answer the charge. And this circular was sup- 
 ported by the opinion of the law officers of the Crown.^ 
 But blasphemous and seditious libels differ from other 
 criminal offences in this, that not only justices of the 
 peace may issue a warrant to arrest the individual libeller, 
 but also the Secretary of State may do so. The origin of 
 this power is obscure, and may be traceable, as Lord 
 Camden suggested, to some confused notion that part of 
 the royal prerogative had been delegated to this high officer 
 for a purpose closely connected with the preservation of the 
 public peace.* Still it is settled by authority, that, though 
 the Secretary of State can neither administer an oath nor 
 hold to bail, yet he can issue a legal warrant to arrest one 
 who has published a blasphemous or seditious libel.* The 
 
 1 See 2 Pat. Com. (Pers.) 129. The mistake in issuing the general 
 warrant in Wilkes' case cost the Government 100,0002. — Rae^s 
 Wilkes, 45. 
 
 2 See the requisites set forth. — 2 Pat. Com. (Pers. ) 150, 152. 
 
 s 36 Pari. Deb. 450. * Per L. Camden, Entinck v Carrington, 
 
 19 St. Tr. 1045 ; 2 Wils. 275 ; Butt v Conant, 1 B. & B. 566. 
 
 5 E. V Derby, Fort. 140 ; B. v Easbury, 8 Mod. 177 ; R. v Kendal, 
 Salk. 347 ; 5 Mod. 78 ; R. i» Shuckburgh, 1 Wils. 29. In the case 
 of Derby, the printer of a seditious libel in the Observator, a Secretary 
 of State issued a warrant to arrest him as the publisher, and no time 
 for examination being stated, the court held it a good warrant, and 
 said it had been so settled in the time of Queen Elizabeth. — R. v 
 Derby, Fortesc. 140. The protesting peers, in 1763, put this point, 
 .80 far as it bore on members of Parliament as well as the general 
 public, strongly : " By this doctrine (that privilege of Parliament 
 does not apply to seditious libels) every man' s liberty, privileged 
 as well as unprivileged, is surrendered into the hands of a Secretary 
 
CH. v.] EX OFFICIO INFORMATIONS. 99 
 
 rest of the proceeding against the party so arrested belongs 
 to the ordinary procedure. And not only justices of the 
 Peace and the Secretary of State may issue a warrant 
 to arrest the publisher of a blasphemous or seditious libel, 
 but a judge of the High Court of Justice may also do 
 so whenever an information has been filed against an 
 individual for such offence.^ 
 
 Remedy by ex officio information of Attorney-General 
 for sedition. — While at most a Secretary of State can only 
 arrest and commit for trial one charged with a seditious 
 or blasphemous libel, and while there is no means of sum- 
 marily arresting seditious and blasphemous persons until 
 a charge has been duly made and entertained by justices, 
 or an indictment has been found, there is one rapid and 
 exceptional mode of proceeding often adopted. And it 
 is now at least a remedy almost peculiar to seditious 
 and blasphemous libels, so that it may properly be noticed 
 here, leaving other modes of procedure to be stated at a 
 later page as applicable to all libels generally. This ex- 
 ceptional and expeditious mode is a criminal information 
 filed ex officio by the Attorney-General, or in his absence 
 by the Solicitor-General. So great a power vested in any 
 officer of the Crown has been denounced again and again 
 as dangerous to liberty, and sometimes abused, or at least 
 likely to be so for unworthy purposes. But the rule has 
 long been recognised, that an Attorney-General can always 
 of his own mere motion file a criminal information for any 
 misdemeanour, libel included, without notice and without 
 the leave of any court or any functionary; and this he 
 may do at any moment.^ In a report of a Committee of 
 
 of State. He is by this means empowered, in the first instance, tp 
 pronounce the paper to be a seditious libel, a matter of such difficulty, 
 that some have pretended it is too high to be intrusted to a special 
 jury of the first rank and condition. He is to understand and decide 
 by himself the meaning of every inuendo. He is to determine the 
 tendency thereof and brand it with his own epithets. He is to ad- 
 judge the party guilty, and make him author or publisher as he sees 
 good ; and, lastly, he is to give sentence by committing the party. 
 All these authorities are given to one single magistrate, unassisted 
 by counsel, evidence, or jury, in a case where the law says no action 
 will lie against him, because he acts in the capacity of a judge." — 
 E. V Wilkes, 19 St. Tr. 997. 
 1 48 Geo. III. c. 58. ^ Prvnne's Case, 5 Mod. 459 ; Show. IOC. 
 
 H 2 
 
100 LIBERTY OF PRESS AND SPEECH. [ch. v. 
 
 the House of Commons it was stated, that the records 
 of such informations were traced to Edward I., and that 
 they were very frequent in the time of Henry VII. and 
 Henry VIII. ; but another account traced them no higher 
 than Henry VII., when Empson and Dudley were at work, 
 and that they originated in a statute which gave power 
 to courts of Assize to inquire without grand juries, and 
 which was soon afterwards repealed,^ In short Holt, C J., 
 said they were part of the common law.^ All agree, that 
 this information ex officio was brought into prominence 
 by the Star Chamber, and when that court was abolished, 
 this proceeding was not abolished also, being at that time 
 overlooked. Hale, C. J., thought it an illegal practice. 
 And in 1688 the House of Commons resolved, that in- 
 formations in the King's Bench should be taken away, 
 except leave of the court was first obtained. But an 
 express clause in the Bill of Eights to that effect was 
 objected to by the House of Lords, and so the matter was 
 left untouched.' Subsequent attempts have occasionally 
 been made to put an end to these informations, but 
 without effect.* The whole process was complained of at 
 
 1 3 Hen. VII. c. 1 ; 11 Hen. VII. c. 3 ; 2 Inst. 51. See R. v 
 Earberry, 20 St. Tr. 861. 
 
 2 Prynne's Case, 5 Mod. 459. The practice of the Attorney- 
 General issuing these informations was traced by some to the Star 
 Chamber, and it first became conspicuous in the early part of 
 Charles I. ; and its use in support of the prerogative was said to 
 have largely contributed to the general resentment of the nation 
 and the end of that king. — 16 Pari. Hist. 45. 
 
 3 13 St. Tr. 1370. 
 
 < 16 Pari. Hist. 45, 1175 ; 23 Pari. Deb. 1070. It is thought 
 the real author of ex officio informations was Augustus, who watched 
 the defamatory libels which were issued by Cassius Severus under 
 feigned names. — Suet. Aug. And Tiberius was equally vigilant in 
 the same matter.' — Suet. Tib. 
 
 " I am fully convinced, that were it not for such writings as have 
 been prosecuted by Attorney-Generals for libels, we should never 
 have had a Revolution nor his present Majesty a regal crown. Nor 
 should we now enjoy a Protestant religion or one jot of civil liberty. 
 Kings can hardly receive any intelligence but what their ministers 
 give them ; and these gentlemen, being guided by avarice and 
 ambition, endeavour to represent every man who strives to get them 
 dismissed .from their employs, as one who is about to attack the 
 throne itself, call him traitor directly, and then exert the power of 
 the Crown to demolish him. The use of the word treasonable is 
 generally to give them a pretence for disregarding the common rules 
 
CH. v.] EX OFFICIO INFOEMATIONS. 101 
 
 great length by Home Tooke as a grievous wrong.^ And 
 so unfair has it appeared that some judges in modem 
 times have refused to allow one of its privileges, that 
 of reply, when the Attorney-General or Solicitor-General 
 does not conduct the prosecution himself, but delegates 
 the of&ce to another counsel.^ 
 
 Procedure in the ex officio information, — This right is 
 vested in the Attorney-General or in the Solicitor-General 
 as an officer and servant of the Crown ; and he must 
 exercise it on his own responsibility. Lord Mansfield ■ 
 more than once refused to allow him to apply to the 
 King's Bench Division for the sanction of the court, 
 so as thereby to devolve the duty and responsibility on 
 the court instead of taking it upon himself. ^ If however 
 the Attorney- General hesitates, he may summon the de- 
 fendant to show cause why the information should not 
 issue.* The Attorney-General may also demand a trial 
 at bar instead of before a single judge ^ ; and he has the 
 privilege of a reply though the defendant call no witnesses.^ 
 The Attorney-General has also the benefit of a special jury, 
 and this has sometimes been complained of when any 
 humble individual has been the defendant, though this 
 
 of justice."— ieifer on Libels (1764) 49. " It must, and it ever would 
 be the bias of men, entrusted with power, to confound successful 
 but lawful opposition with treasonable resistance, and a powerful 
 exposure of the follies or wickedness of ministers and men in power 
 with seditious libels and calumny. The ingenuity of man could not 
 devise a system of law, where in cases of this nature he would not 
 say the prejudice, but the inclination of those who were to execute 
 the laws' was not generally to convict men accused of having trans- 
 gressed them ; and in libel it should further be observed, that, con- 
 trary to all other crimes, that which approached the confines of 
 guilt was not only innocent, but meritorious and useful." — L. Holland, 
 H. L. (1811), 19 Pari. Deb. 134. 
 
 ' 20 St. Tr. 660. The bare putting in force of this power m&y 
 subject a defendant to an expense varying from 60Z. to 200Z. 
 without any hope of indemnity. It is, as was said, a species of 
 arbitrary' fine hanging over every writer, publisher, editor, printer, 
 and seller of a libellous writing. — 19 JParl. Deb. 143; 23 Pari. 
 Deb. 1081. 
 
 2 E. V Toakley,10 Cox, C. C. 406 ; E. v Barrow, 10 Cox, C. C. 
 407 ; E. V Christie, 1 F. & F. 75, 535. = j{_ „ Phillips, 3 Burr. 
 
 1565 ; 4 Burr. 2090 ; E. v Wilkes, 4 Burr. 2577 ; 4 Burr. 2090 ; 
 Wilkes « E., 4 Bro. P. C. 360; Wilmot, Op. 322. *■ Ibid. 
 
 5 E. V Johnson, 1 Str. 644. 6 g. ^ Home, 20 St. Tr. 660 ; 
 
 Cowp. 672. 
 
102 LIBERTY OF PRESS AND SPEECH. [en. v. 
 
 can seldom be done with justice, seeing that libel is not 
 the offence of the illiterate. Besides a special jury was 
 said to be not peculiar to civil or criminal proceedings,^ 
 aaid the official who had charge of the special jury was 
 as independent of the Crown as the judge could be. One 
 grievous abuse long complained of was, that when the 
 information was filed there was no means of compelling 
 the prosecution to be promptly followed up.^ At last 
 however, by a statute of 1819, if the trial be not brought 
 on by the prosecutor within twelve months the defendant 
 is allowed to bring it on himself*; and the same statute 
 compels the prosecutor to give a copy of the information 
 to the defendant.* 
 
 Policy of ex officio informations. — ^The policy of this 
 mode of prosecuting libels has had its opponents and de- 
 fenders, though it is now in' point of practice confined to 
 seditious and blasphemous libels. It has been often com- 
 plained of in Parliament as in its secresy and swiftness and 
 overwhelming force too nearly akin to despotism, and some- 
 what out of harmony with a land of liberty, where prosecu- 
 tions are subject to fixed and well understood laws, and 
 where a man can defend himself against all antagonists on 
 equal terms.^ On the other hand it has been urged, that the 
 press often acts like an assassin, and must be coped with 
 by weapons which may be nearly as suddenly and energeti- 
 cally used ; and that this cannot be done except by confiding 
 a discretion to one, who is bound over to prudence and 
 moderation by all the circumstances of his of&ce, and is too 
 well watched to be likely to abuse it. And it is added that 
 though the power has been used since the time of Edward 
 III., no great abuses have been discovered in it. Like the 
 sword of Goliath, it is reserved for great occasions, s And 
 
 1 Att.-Gen. 34 Pari. Deb. 314 ; Ersk. Speeches, R. v Perry, 22 St. 
 Tr. 953. 
 
 2 The Judges however said, in 1770, that if the Attomay-Greneral 
 unduly delayed to bring the defendant to trial, the court had power 
 to order a trial.— R. v Almon, 20 St. Tr.' 856. ^ 60 Geo III & 
 1 Geo. IV. c. 4, § 9. ■> Ibid. § 8. M6 Parl.Hist. 1127. 
 
 ^ Burke, indeed, urged, that so dangerous a power should be cut 
 off from the Constitution as a rotten limb, and that it had only 
 escaped the notice of our forefathers in the hurry and precipitation 
 fif the Revolution. — 16 Pari. Hist. 1162. As Wedderbuen urged : 
 " When reason and sound principles dictate reformation, must we be 
 
CH. v.] PUNISHING SEDITIOUS LIBEL. 103 
 
 what now makes less important the existence of any 
 weapon so secret and deadly in the hands of Government, 
 is the knowledge, that whUe there is no censorship and no 
 registry of printing presses or of newspapers, while educa- 
 tion prepares its millions of readers and writers, a champion 
 will never fail to come forth on any great emergency. Even 
 in the midst of legions of spies and informers a hand will 
 issue from the crowd and write on the wall in letters of 
 fire immortal slanders — a hand without a name, which 
 cannot be traced, but will leave many things well spoken 
 and wholesome to be remembered in all future time.^ 
 
 Punishment for seditious libd. — The punishment for 
 seditious libel did not differ from the punishment as to 
 blasphemous and immoral libels. The pillory was often 
 selected as peculiarly appropriate, as well as ordering the 
 defendant to appear at the assizes with a paper denoting 
 his offence. This was done in 1699 in a case at Exeter.^ In 
 another case he was ordered to go into all the courts of 
 Westminster with this paper in his hat, and it is said that 
 in Chancery he behaved himself insolently, so that the 
 court increased his punishment by imprisonment. ^ Some- 
 times whipping was added.* The pillory was abolished in 
 
 deterred by mere names ? What might have been proper 400 years 
 ago may be now quite absurd and pernicious." — 16 Pari. Hist. 1148. 
 But LoED North defended the power as a wholesome terror to 
 restrain the virulence of the press. Speaking in the age of Wilkes, 
 he said : " Our eyes open on libels ; our eyes close upon libels. In 
 short, libels, lampoons, and satires constitute all the writing, printing, 
 and reading of our time." — 16 Pari. Hist. 1166. 
 
 1 Re Junius, ante p. 90. An ex-Att. Gen. has said : " In considering 
 whether a criminal information should be issued, the Att.-Gen. has to 
 consider various matters. The public jealousy is vigilant in all that 
 concerns the freedom of the press. Juries have learned the secret 
 of covering with their indulgence nearly every kind of expression 
 of opinion honestly put forward. What injury recoils on a Govern- 
 ment when defeated by an acquital, or even if not defeated, by the risk 
 of forcing into notice and enhancing the importance of mock martyrs \ 
 The injustice of punishing one who may be a mere instrument of 
 publication, and ignorant of the evil he creates, while the real author 
 or practised libeller may contrive still to write with more than bitter- 
 ness without risk of legal visitation 1 " — 1 Lord Denman, Mem. 370. 
 
 LoED Mansfield said a court prosecution should never be in- 
 stituted without certainty of success. — 1 Butler's Bern. 125. 
 
 2 R. « Beare, 12 Mod. 221 ; L. Eaym. 418. ' E. v Fitzgerald 
 (1702), Salk. 401 ; R. v Bedford, Holt. Lib. 107. ■* R. v Walker, 
 2 Geo. IL, Holt, Lib. 108. 
 
104 LIBERTY OF PRESS AND SPEECH. [ch. t. 
 
 1837,^ and whipping for this offence has long been abolished 
 also.^ The punishment at common law consists of fine or 
 imprisonment or both, tp which may be added surety of the 
 peace.* And these last are the only punishments now left. 
 And if there are several libels, a series of terms of 
 imprisonment may be added one to the other.* 
 
 1 1 Vic. c. 23 ; 2 Pat. Com. (Pers.) 282. 
 
 2 2 Pat. Com. (Pers.) 271. Leighton, in 1630, was fined, im- 
 prisoned, whipped, pilloried, slit in the nose, branded in the face, 
 and lopt of his ears. — 3 St. Tr. 387. Prynne was punished with 
 several of the same pains. — 3 St. Tr. 575. And Bastrick had the 
 like punishment for a libel against the hierarchy. — 3 St. Tr. 711. 
 And Dangerfield was, in addition, whipped from Aldgate to Newgate, 
 and Newgate to Tyburn. — 11 St. Tr. 503. And a woman was also 
 fined and pilloried in 1680. — E. v Cellier, Dig. L. Lib. 117. 
 
 3 E. V Dunn, 12 Q. B. 1062. 
 
 ■* Gregory » E. 15 Q. B. 974. See further as to punishment 
 generally for libel, post. 
 
CH. VI.] LIBELLING PARLIAMENT. 105 
 
 CHAPTEE VI. 
 
 LIBELS ON PARLIAMENT AND EIGHT TO PUBLISH 
 PAELIAMENTAKY DEBATES. 
 
 Peeulia/rity of libels on Parlia/ment. — Of all the subjects 
 on which the tongue and pen of free citizens can be en- 
 gaged, none is to be compared to the powers and duties of 
 the legislature. Parliament is at once the centre of all 
 those threads of discussion — the mainspring of all that 
 complicated machinery, which reduces speculation, argu- 
 ment, and remonstrance into practice. Whatever can be 
 done to influence Parliament is the first step in all practical 
 reforms. Whoever can advocate, advise, warn, or entreat, 
 looks to this as the great sum of his efforts. Hence 
 the points of contact and collision are as numerous as the 
 variety of topics which are always in course of discussion. 
 While there is the same freedom in public speakers and 
 writers to comment on the work and conduct of Parlia- 
 ment, and all its members, as on all other parts of the 
 Constitution, there is this striking difference, that Parlia- 
 ment can redress its own wrongs, avenge its own insults, 
 and dictate the bounds beyond which its critics must be 
 content to be silent. Each and every member of Parlia- 
 ment has duties to perform^ and duties which are expected, 
 and the tongue of slander may be too free with iiis 
 reputation, and thwart his best efforts. It is therefore 
 one of the chief heads of this chapter on Sedition to trace 
 out how far the free handling of critics and commentators 
 can go in interfering with the labours, the dignity, and 
 reputation of that great power in the state, which has done 
 so much and has still constant arrears of work to overtake. 
 To watch or predict the course, to advance the intelligence, 
 and promote the objects of Parliament engross a large 
 
106 LIBBRTy OF PEESS AND SPEECH. [ch. vi. 
 
 share of every citizen's daily life, and he cannot choose to 
 shut his eyes to the sequel of all these hopes and feats. 
 How far and on what occasions he is likely to provoke the 
 indignation of Parliament, and at what cost, ought now to 
 be set forth. 
 
 The privilege of Parlia/ment. — The privilege of Par- 
 liament, by which is meant the exclusive right of either 
 House to decide for itself on each occasion what is or is 
 not an interference with its own independence, dignity, 
 and duties, and with those of each of its members, is so 
 obvious an accompaniment of its exalted position in the 
 economy of government, that if it had not existed by a 
 long course of usage it would have required to be invented. 
 The function of legislation being the highest exercise of 
 reason and power known to mankind, it would have been 
 a degradation to be obliged to resort to any other court in 
 order to vindicate each obstruction of that function. And 
 though courts of law, when in their highest stat6 of 
 efficiency, are able satisfactorily to administer justice 
 between man and man in all other respects, yet their whole 
 practice and principles are based on a fixed and certain 
 order of things, and definite rules foreordained for their 
 guidance, and which they have no power to change, how- 
 ever inadequate and defective as a means of highest 
 justice. This necessarily implies, that there must be some 
 other tribunal and some other source of power which can 
 adapt its processes to a higher standard of justice, and can 
 emancipate itself from technicalities which are inevitable 
 in all ordinary courts, and which are felt even by 
 judges themselves to be impediments, and often a cause 
 of humiliation on that very account. Where wisdom is 
 allied to power, and that power, at least in the case of the 
 House of Commons, is so great, that it can safely withstand 
 all other powers known to the Constitution, there is no 
 reason why it should not execute the office of self-vindica- 
 tion.i And this is the more necessary, seeing that it is entirely 
 identified at all times with the community, for whose 
 benefit it exists and in which it constantly lives and moves. 
 Its very constitution, its means of knowledge, its intimate 
 
 1 " The House of Commons, by reason of its power to refuse mutiny 
 hills -and supplies, is a power in the Constitution, which no other 
 body could resist."— iord J. lius^eU. H. C, 161 Pari. Deb. t3il_1380. 
 
OH. VI.] PARLIAMENT AND COURTS OP LAW. 107 
 
 contact with the average intelligence of the nation in all 
 its varied interests — the number of its members, who them- 
 selves are part of the general public, selected from a wide 
 constituency, is such, that all the safeguards against usual 
 error are here concentrated.^ A body so composed can with 
 difficulty go wrong, or at least for any great length of time, 
 and if it does so, the same may be said of all, other bodies 
 and all courts, whichhave fewer members;and less abundance 
 of counsellors. The privilege of Parliament is. a prominent 
 and settled part of the Constitution, and it is brought to 
 bear with irresistible effect at all times where these high 
 functions are impeded by third parties. 
 
 Privilege has usually been conceded to be essential to the 
 supreme branch of the legislature — the ' grand inquest of 
 the nation (as Coke called it), which has to defend itself 
 against the encroachments of the Crown on the one hand 
 and the injudicious or ill-intentioned attacks of individuals 
 on the other hand.^ Burke said, " People remain quiet, 
 they sleep secure, when they imagine that the vigilant eye 
 of a censorial magistrate watches over all the proceedings 
 of judicature, and that the sacred fire of an eternal consti- 
 tutional jealousy, which is the guardian of liberty, law, and 
 justice, is alive night and day, and burning in the House ot 
 Commons."^ 
 
 Jv/risdiction of Parlia/ment and courts of law 
 contrasted. — While it is said that Parliament is the exclu- 
 sive judge of its own privileges, or 'rather of the limits of 
 its own jurisdiction, it is not meant, as is sometimes sup- 
 posed, that it claims to be omnipotent, and can at will arro- 
 gate to itself the whole powers of courts of justice and a 
 great deal more. On the contrary, courts of justice have 
 precisely the same difficulties as Parliament in determining 
 the bounds of their power and authority, and this is always 
 the most delicate of the subjects that can engage their 
 
 1 "The greatest security a people can have for their liberty is 
 when the legislative power is in the hands of persons so happily 
 distinguished, that by providing for the particular interests of their 
 several ranks they are providing for the whole body of the people, 
 or, in other words, where there is no part of the people that has not 
 a common interest with at least one part of the legislators. " — A ddison, 
 Sped. No. 287. 
 
 2 16 Pari. Deb. 502; 38 Pari. Deb. (3) 1270. ' 17 Pari. 
 Hist. 49. 
 
108 LIBERTY OF PRESS AND SPEECH. [oh. vi. 
 
 attention, and the latest chapter of the law that can be com- 
 prehended aright. What is meant is, that Parliament has 
 the same power to determine for itself what it can or can- 
 not do — what is and what is not its proper business — as the 
 High Court of Justice itself, and each is indeed the sole 
 exclusive judge on that point. Each is credited by the 
 Constitution with sufficient intelligence, zeal, conscientious- 
 ness, and self-restraint to know what it is caUed upon and 
 expected to do — how far to advance in any given direction, 
 and when to stop ; and no other power known to the Con- 
 stitution can question their respective decisions. To say, 
 that Parliament would ever be so foolish or ignorant as to 
 undertake to recover debts or decide questions of title to 
 land or goods is no greater and no less than to say, that the 
 High Court of Justice will be so lost to reason as to sub- 
 stitute for a statute or an axiom of common law as its rule 
 of conduct some other new and unheard of rule of its 
 own devising.^ Each power has of necessity a wisdom of 
 its own inherent in it, which operates like an infallible in- 
 stinct.^ But the general work of Parliament lies altogether 
 away from the general work of courts of law. The latter 
 have, or are assumed to have, certain pre-ordained rules to 
 guide them, and of which they are always vigilant and tena- 
 cious, while the former is incessantly occupied in amending 
 the defects and oversights which are to be found in the best 
 
 ^ " The House of Commons is a part of the High Court of Parlia- 
 ment, which is, without question, not merely a superior, hut the 
 supreme court in this country, and higher than the ordinary courts 
 of law." {Lord Camden, Entinck v Carrington, 19 St. Tr. 1047.) 
 " And if we give^credit to the courts of common law, that they will 
 not issue writs of attachment except in due course, and in accord- 
 ance with the powers which the law gives them, and that notwith- 
 standing the possihle abuse of the liberty of the subject, to which 
 this principle may give rise, by enabling a court to imprison for 
 any cause, why should we not equally give credit to both branches 
 of the High Court of Parliament, that they also will duly execute 
 their powers in obedience to the law from which they derive them, 
 and to which, in common with all other courts, they are subject, 
 though this course may also possibly lead to the same consequences 
 — the abuse of the liberty of the subject by their imprisoning any 
 one at their mere will and pleasure ? The possibility of abuse, 
 which is urged as an objection to the power of either House to issue 
 its mandate in such a form, is no valid argument against its existence " 
 —Howard v Gossett, 10 Q. B. 457. 
 
 2 Per De Grey, C. J., re Crosby, 3 Wils. 202. 
 
CH. VI.] EARLY BREACHES OP PRIVILEGE. 109 
 
 of those very rules. Parliament collects aU kinds of evi- 
 dence and knowledge useful to guide it in this elevated 
 research. And no human employment can rank higher, for 
 it assumes, that a definite law already has been tried and 
 been found by the highest available wisdom to be wanting. 
 The pursuit of a higher and still higher standard of laws 
 than any yet found is the beginning and end of the vocation 
 of Parliament — the most transcendent work of human 
 intelligence and power. And yet in the exercise of their 
 respective functions a court of law sometimes, as will 
 shortly be seen, comes in conflict with Parliament, each in 
 course of its proper business being, to a certain extent, seised 
 naturally and legitimately of a particular subject matter, 
 yet where it is impossible for each to have its way. These 
 occasions are few and far between, but when they do occur 
 it is absolutely necessary for one of the two to dispose exclu- 
 sively of the subject. Both having equal wisdom, the test 
 of precedence must depend entirely on which of them has 
 the greater power allied to this equal wisdom, and Parlia- 
 ment, being acknowledged to be irresistible in its command 
 of resources, is confessed, on that account alone, to hold the 
 key of the situation. 
 
 Early instamces of Parlia/ment exercising its pri- 
 vileges. — That there was some special laW corresponding to 
 what is now known as privilege of Parliament, was recog- 
 nised at least as early as the reign of Eichard 11.^ and a 
 series of precedents since that time.^ At first confused 
 ideas of the connection of one thing with another pervaded 
 the practice of Parliament, as they pervaded courts of 
 justice sometimes for like reasons. Thus no one can now 
 see, that any breach of privilege need be committed by a 
 trespasser who took some ore from the mine of one of the 
 members,^ or who broke his fences,* or who poached his 
 rabbits ; * and yet these acts, which the ordinary courts 
 could satisfactorily punish, and which involved no reason- 
 ably close interference with the discharge of a member's 
 duties, were punished as breaches of privilege.® The occa- 
 sions in which any conflict arises between Parliament and 
 
 1 11 Rich. II., 3 Rot. Pari. 244 ; 32 Hen. VI., 5 Rot. Pari. 239. 
 2 Thompson's Case, 8 St. Tr. 50. = Grosvenor's Case, 2 Ap. 1733. 
 * Lord IJarrymore's Case, 19 Jan. 1840. * Admiral Griffin's Case, 
 16 Mar. 1759. ^ 51 parl. Deb. (3) 97. 
 
110 LIBERTY OP PEESS AND SPEECH. [ch. vi. 
 
 courts of law will, however, be found more conveniently 
 noticed "on a subsequent page under the head of excusable 
 libels — namely, where publications issued by the House are 
 protected against all comers — though the courts were once 
 disinclined to allow such protection.^ It is enough to say, 
 that the commitment by the House of Commons on the 
 Speaker's warrant is deemed conclusive ' evidence in every 
 court of law, that the commitment is legal, if it merely 
 state that it is for a breach of the privileges of the House 
 without any further details.^ And it follows that its ofl&cers, 
 who execute the warrant of commitment, are also free from 
 punishment or liability.^ It is enough here to say, that it 
 is no business of courts of law to inquire, whether the 
 contempt or breach of privilege on which Parliament acts 
 was really committed.* And when a person so committed 
 seeks at the hands of the court a release by habeas corpus, 
 the courts can give no redress.'' 
 
 The pow&f of commdttal for breach of privilege. — 
 A statute of 4 Henry VIII. c. 8, enacted, that all aceuse- 
 ments, executions, fines, and punishments, and condemna- 
 tions of members of Parliament should be utterly void. 
 It is, however, unnecessary here to advert to all the privi- 
 leges, as that which protects them from the abuses of free 
 speech and thought in others is alone in question. The 
 above statute was, it is true, said by Hale to be merely 
 declaratory of the common law.^ This peculiar power, 
 
 1 See^o«i, chap. ix. ^ Burdett v Abbot, 14 East, 1. ^ Burdett 
 « Colman, U East, 163 ; Howards Gossett, 10 Q. B. 359. ■• Stock- 
 dale V Hansard, 9 A. & E, 169, 195 ; Beaumont v Barret, 1 Moore, 
 P. C. 76. 
 
 * See 2 Pat. Com. (PerS.) 251. When a person was committed 
 by Parliament for contempt of court, it was long frequently at- 
 tempted to obtain his release by habeas corpus on application to a 
 court of law, some illegality being put forward as a ground. Lord 
 Kenton said, in 1799, that such attempts had been made every 
 seven or eight years for the half century preceding that date. In 
 a case of that kind, where the House of Lords had committed and 
 fined a country editor, his release on habeas corpus was urged on 
 three grounds : — 1. That the House of Lords had no power of im- 
 prisoning beyond the duration of the session, which the House of 
 Commons clearly had not. 2. That the House of Lords had no 
 power to imppse a fine. 3. That it had no power to commit for a 
 contempt committed out of the House. But all these points were 
 overruled.— iie Flower, 27 St. Tr. 986. 
 
 ^ Hale's Juris. Parit. He said that it is "the lex et consuetude 
 
RH. Ti.] BREACH OF PRIVILEGE. Ill 
 
 therefore, which is incident to the House of Commons, of 
 punishing for contempt, though the Hous_e has no ordinary 
 judicial powers, is said to rest on no other basis than the 
 lex et consuetudo Parliamenti, which is as much part of 
 the Constitution as any of the powers and privileges of 
 the highest courts of justice.^ Thus if a serjeant of the 
 House were sued for excess in executing its warrant, his 
 conduct would he decided according to the law of Parlia- 
 ment and not according to common law rules. ^ The power 
 of the House of Commons, is. not, however, exercised with 
 respect to libels on 'the -(rovernment generally, or on the 
 state, but is confined to libels upon itself and its members.^ 
 And yet, like ordinary courts of justice, its jurisdiction in 
 early times sometimes extended beyond the just limits now 
 settled. The first instance of a member being expelled 
 from the House of Commons for libelling another member 
 is said to have been that of Arthur Hall, in 1581, who was 
 also fined and imprisoned as part of the same punishment* 
 This right of the House of Commons to commit strangers 
 for contempt of Parliament or for breach of privilege, 
 — which is usually in the form of libel on the House or a 
 member — was exercised in the time of Charles I.* The 
 House also asserted the right in the case of the Kentish 
 Petition.* Between 1701 and 1774 there were thirty in- 
 stances of such commitments.'^ In the cases of Oliver 
 and Crosby in 1771, two courts of common law recognised 
 
 parliamenti that all weighty matters arising in Parliament concerning 
 the Peers or Cgmmons in Parliament should be discussed, determined, 
 and adjudged by the Court of Parliament, and not by any other law 
 used in any inferior court. Moreover, the king cannot take notice 
 of anything said or done in the House of Commons but by report of 
 the House of Commons ; and every member in Parliament has a 
 judicial place, and can be no witness. Every offence committed in 
 any court, punishable by thut court, must be punished in the same 
 court or in some higher, and the Court of Parliament has no higher." 
 —Ibid. 
 
 1 Kielley v Carson, 4 Moore, P. C. 63 ; Fenton v Hampton, 1 1 
 Moore, P. C. 347; Dill v Murphy, 1 Moore, P. C, N. S. 487. 
 2 Wilde, Serjt. H. C. 1843, 67 Pari. Deb. (3) 40. ^ ig Pari. 
 
 Deb. 500. 
 
 * D'Ewes, 291 ; Hatsell, 93 ; 1 Com. J. 125 ; Hall. Const. H. c. 5. 
 In 1680 the House of Commons ordered a clergyman to be im- 
 peached for a seditious sermon, and all the precedents as to the 
 power of the House to commit were then collected. — See 8 St. Tr. 1. 
 
 5 4 Inst. 23. 6 See ante, p. 35. ^ 16 Pari. Deb. 291. 
 
112 LIBERTY OF PRESS AND SPEECH. [ch. vi. 
 
 this right.i And in the case of Flower, who was in 1799 
 committed by the House of Lords, the court acted in like 
 manner.^ It has heen said that, as the law of Parliament 
 was only known to Parliament men, the public could not 
 justly be answerable for any breach of it ; but the same 
 may be said of courts of law, as the court itself pointed 
 out.^ 
 
 Instxinces of libellous comments being breaches of 
 privilege. — The instances in which the House has exer- 
 cised the power of committing those who libel it have 
 varied with the circumstances of the time, and no certain 
 result has followed when a jury intervened. When the 
 Oracle published, that "party rancour had deprived the 
 king and country of the great abilities of Lord Melville, 
 that he had fallen a victim to confidence misplaced and to 
 prejudice misjudged, and had been condemned without a 
 trial ; " this was held by Parliament to be libellous.* Owen, 
 on the other hand, was charged with vilifying the House of 
 Commons by calling their conduct as to Alexander Murray 
 " violent, oppressive, and wanton," and comparing the House 
 to a Turkish Divan and to the Inquisition; but the defendant, 
 being tried by a jury, was found not guilty.^ The Morning 
 Chronicle said, in 1798, that " some lords had determined to 
 vindicate their importance by regulating the dresses of our 
 opera dancers, and that one of the Eoman Emperors re- 
 commended his senate, when they were good for nothing 
 else, to discuss what was the best sauce for a turbot." The 
 House resolved, that this was a scandalous libel, and 
 ordered the proprietor and editor to be committed for 
 three months unless they paid each a fine of 50^.^ An 
 editor wrote of a bishop, in 1799, that " for some time the 
 bishop was an opposer of Mr. Pitt, but suddenly finding 
 that was not the way to preferment, he suddenly became 
 an alarmist, then applied to Mr. Pitt for further preferment, 
 and had since supported his measures. But that the minister 
 
 1 Be Crosby, 3 Wils. 188. ^ e_ ^ Flower, 8 T. R. 314. s Per 
 De Grey, C. J., 3 "Wils. 200, and see ante, p. 108. * 4 Pari. Deb 
 382. 5 E. „ Q^en, 18 St. Tr. 1203. 
 
 6 A.D. 1798, 33 Pari. Hist. 1312 ; 27 St. Tr. 1070. Again, in 
 1804, Cobbett was found by a Jury guilty of a libel for, amongst 
 other things, calling Lord Hardwicke a sheep fanner, and Lord 
 Eedesdale a stout built special pleader. — R. v Cobbett, 29 St. Tr. 
 54. See ante, p. 94. 
 
PH. VI.] BREACH OF PRIVILEGE. 113 
 
 had not yet thought the right reverend time-server and ap- 
 ostate worth paying." The House held this was a scandalous 
 libel on the Bishop of Llandaff, and imprisoned the libeller 
 for six months and fined him 1001.^ In 1810 Sir F. 
 Burdett delivered a speech in the House of Commons, in 
 which he denied its power to imprison strangers for con- 
 tempt in this way, and urged that the only remedy was 
 au action or indictment. And he published an enlarged 
 edition of his speech for the benefit of his constituents, 
 which was in its turn complained of as a contempt, and he 
 was committed.^ In later times it was sometimes said of 
 this case, that the House was not well advised as to the right 
 mode of acting, and was involved in difficulties, owing to 
 an action brought by Sir P. Burdett against officers of the 
 House on the occasion.^ In 1819 Mr. Hobhouse was on 
 similar grounds committed to Newgate,* while D. O'Connell 
 was at a later date reprimanded in his place by the Speaker.* 
 The publisher of the Times in 1831 was committed for 
 calling Lord Limerick " a thing with human pretensions, 
 who treated the Irish poor with brutal ridicule or impious 
 scorn." ® And a libel on the Lord Chancellor, in the course 
 
 1 Re Flower, 27 St. Tr. 986. 
 
 2 65 Com. J. 262. Sie S. Romillt said: "Any man Las a 
 right to discuss every great constitutional question, whether of 
 original power or of constituted authority. He might show his 
 folly in arguing a point in which no other man would agree with 
 him, but still he had a right to do so. There might be inflammatory 
 language in the paper in question, but at the same time it was 
 reasoned with great ability, and all the great authorities and pre- 
 cedents on the subject were given and argued upon with much 
 learning. This was a grave argument, and God forbid that any 
 man should be precluded from discussing such a subject." — 16 Pari. 
 Deb. 282. The House, however (by a majority of 271 to 80), held 
 that the mode and tenor of Sir F. Burdett's speech was to advocate 
 resistance by force, to impute corrupt practices to most of the mem- 
 bers — ^that the House had encroached on the liberties of the people 
 and enoimously abused its powers, and set itself up above both king 
 and people. And Sir F. Burdett was committed to the Tower, 
 though influential members thought a reprimand suflBcient. Sir F. 
 Burdett afterwards brought an action against the Speaker. — ^Burdett 
 V Abbott, 14 East, 1. ' 
 
 3 Eolfe, S. G. 51 Pari. Deb. (3d) 1138. '' 75 Com. J. 57. 
 6 93 Com. J. 207, 312, 316. 
 
 6 3 Pari. Deb. (3) 1751. In 1832 a solicitor having published a 
 letter reflecting on members for their vote in a committee on a 
 private bill, was summoned to the bar and admonished by the 
 
 I 
 
114 LIBERTY OP PRESS AND SPEECH. [ch. vi. 
 
 of his duties in deciding appeals from courts of law, is 
 treated as breach of privilege, as was the case when the 
 Morning Post, in 1854, wrote a libellous article against 
 Lord Brougham.^ 
 
 Other modes of punishing a breach of privilege. — 
 But while Parliament has thus the means of punishing a 
 breach of privilege by an order of committal, sometimes to 
 the custody of the Black Eod, and sometimes to Newgate, 
 or the Tower, it does not always exercise this right, and is 
 content to devolve the adjudication and the punishment 
 on the ordinary courts of law. Either House of Parlia- 
 ment, instead of punishing the party itself, may pray the 
 crown to direct the Attorney-General to prosecute by 
 indictment or criminal information. When this is done, 
 however, so great is the power of juries, that they have the 
 uncontrollable right of acquitting the defendant, and some- 
 times in sympathy take this course, as was done in the case 
 of Bushell the Quaker, the Seven Bishops, Owen, and 
 Eeeyes, Woodfall, Stockdale, Dean of St. Asaph, and other 
 cases.2 The House had often on such occasions been urged 
 not to allow itself to be trampled on and go begging to 
 courts of law for protection, seeing that its privileges are 
 part of the Constitution ; but to commit the parties by its 
 own authority.^ Burke said, that after Stockdale's case he 
 never would again consent to the House of Commons 
 ordering the Attorney- General to prosecute for libel. The 
 House should not delegate that power to any court what- 
 ever.* In Eeeves' case. Fox strongly advised the House 
 
 Speaker. — 87 Com. J. 278, 294. While an editor was committed to 
 custody for imputing corrupt motives to a chairman of a committee 
 on a private bill.— 113 Com. J. 189, 192, 203. 
 
 1 66 Lords J. 704, 737, 743, 764. 
 
 2 R. V Owen, 18 St. Tr. 1203 ; R. v Stockdale, 22 St. Tr. 291 ; R. 
 V Reeves, 26 St. Tr. 530. In such cases it has been urged by a 
 Peer, that whenever a libel is published on a peer and can be tried 
 equally well in the inferior courts this eourse ought to be taken, 
 because the prpcess of attachment for contempt involved peculiar 
 hardship, and was a violation of the most general maxims of English 
 law. The party was not tried by his peers, the guilt of the libel 
 was previously declared, witnesses were examined in his absence, 
 the court was a close court, and, above all, the House was accuser, 
 judge, jury, and the injured party. But the House disregarded 
 these remonstrances. — L. Holland., re Flower, 27 St. Tr. 1015. 
 
 3 16 Pari. Deb. 491. < 30 Parl. Hist. 986. 
 
CH. VI.] PARLIAMENTARY DEBATES. 115 
 
 not to order a prosecution, but to take the punishment into 
 its own hands ; but the House ordered a prosecution, and 
 Eeeves was acquitted.^ 
 
 Publishing of Parliamentary debates at first treated 
 as breach of privilege. — The freedom of speech allowable in 
 the interior of Parliament, how far each member can speak 
 his mind oq any subject, relevant or irrelevant, with entire 
 immunity either from his fellow members on the one hand 
 or the people and the Crown outside on the other hand, 
 belongs properly to that division of tbe law entitled " the 
 Legislature." What can be done to a member for any 
 abuse" of this freedom of speech, and what restrictions if 
 any can be put upon him, must therefore be, noticed in 
 another place, and only a small part of it belongs to that 
 chapter of the law of libel, which treats of excuses arising 
 from privilege of Parliament. But at present it is ne- 
 cessary to see how far freedom of speech and comment 
 is allowed to those of the public outside, who choose to look 
 into this interior. Such a right of comment is a vital part 
 of the liberty of the subject, and no people can be deemed 
 free, who cannot discuss anything and everything that is 
 done by their representatives as well as by their hereditary 
 legislators in the great council "room, provided such dis- 
 cussion is conducted with average decorum.^ However 
 conspicuously the parliament is now identified with the 
 fortunes of the press, it for a long time looked askance on 
 this publicity, and even affected open hostility. While each 
 House admitted strangers as a matter of courtesy, it was 
 averse to sanctioning any stranger committing to writing 
 notes of its proceedings and publishing these for the in- 
 formation of the public. There was thus for a long time 
 an imperfect appreciation of the reciprocal relations existing 
 between Parliament and the public. 
 
 It has long been a general resolution of the House of 
 
 1 32 Pari. Hist. 650, 681. 
 
 ^ " The publicity gi>eri in modern times to what passes in Parlia- 
 ment is essential to the maintenance of the relations subsisting 
 between the Government, the legislature, and the country at large. 
 Every member of the educated portion of the community, from the 
 highest to the lowest, looks with eager interest to the debates of 
 either House, and considers it a part of the duty of the public journals 
 to furnish an account of what passes there." — Per Cockburn, C. J., 
 Wason V Walter, L. E. 4 Q. B, 90. 
 
 I 'A 
 
116 LIBERTY OF PEESS AND SPEECH. [oh. vi. 
 
 Commons, that whoever publishes or writes anything 
 reflecting on a member and misrepresents his proceedings 
 in Parliament commits a breach of privilege.^ And it is 
 the same in reference to any report of the impeachments 
 or prosecutions in which the House is engaged.^ So late 
 as Lord Melville's impeachment, the House directed one 
 person only to publish a report.* The policy which led 
 both Houses of Parliament to make this order against pub- 
 lication of their debates has been vindicated on the ground, 
 that the Crown used to attempt to punish members for free 
 speaking, or sought to prevent them altogether speaking by 
 an immediate dissolution.* And it is said the first com- 
 mittal of a printer of debates for a distinct contempt on that 
 ground was in 1694.^ And even so late as 1728 the House 
 of Commons laid down the wide proposition by way of 
 resolution, " That it is an indignity to and a breach of 
 privilege for any person to presume to give in a written or 
 printed newspaper any account of the debates or other 
 proceedings of the House oi- of any committee thereof; 
 and on discovery of the authors, printers, or publishers of 
 any such written or printed newspaper, this House will 
 proceed against the offenders with the utmost severity. " ^ 
 
 In 1738 a solemn debate began by a suggestion of the 
 Speaker, that he saw a practice prevailing, which a little 
 reflected on the dignity of the House ; he meant the insert- 
 ing an account of their proceedings in the printed news- 
 papers, by which means these proceedings were liable to very 
 great misrepresentation.' One speaker urged, that, if the 
 speeches of the House were every day printed, " they should 
 be looked upon as the most contemptible assembly on the 
 
 1 1642, H. C. 2 Com. J. 220 ; 27 Eeb. 1698, H. L. ; ad 1699 12 
 Com. J. 661 ; A.D. 1701, 13 Com. J. 767. ' 
 
 2 45 Com. J. 508. 3 g Camp. L. Chs. 575 
 
 < Lord Campbell, H. L. 149 Pari. Deb. (3) 953. " The secrecy of 
 Parliamentary debates — a secrecy which would now be thought a 
 grievance more intolerable than ship money or the Star Chamber 
 was at the time of the Revolution inseparably associated even in 
 the most honest and intelligent minds with constitutional freedom 
 Those precautions which had been originally devised for the purl 
 pose of protecting patriots against the displeasure of the court' 
 now served only to protect sycophants against the displeasure of 
 the nation." — Macaulay, Mist. o. 19. 
 
 5 A.D. 27 Deo. 1694. 6 21 Com. J. 238. ^ 10 Pari. H. 801 
 
CH. VI.] PAELIAMENTARY DEBATES. 117 
 
 face of the earth." It was said " Parliament, when they did 
 amiss, would be talked of with the same freedom as any 
 other set of men whatsoever." Sir Eobert "Walpole com- 
 plained, that he had read professed debates of the House, 
 wherein all the wit, the learning, and the argument had 
 been thrown into one side, and on the other nothing but 
 what was low, mean, and ridiculous ; and yet when it came 
 to the question, the division had gone against the side which 
 upon the face of the debate had reason and justice to 
 support it.i Each speaker assumed, that the practice must 
 be stopped, but all were unconscious, that the time was 
 coming, when it would be impossible to do so. And the 
 House relieved its misgivings by resolving, "that it is a. 
 high indignity to and a notorious breach of the privileges 
 of the House for the printer of any newspaper to presume 
 to give any account of the proceedings of the House as well, 
 during the recess as the sitting of Parliament." ^ 
 
 Newspaper reports of debates now permitted by 
 Fa/rlia/ment. — By degrees newspaper reports of Parlia- 
 mentary debates became more and more frequent and less 
 and less odious to the members of the legislature, though 
 no express leave has yet been given, nor even the order 
 yet been cancelled which treats these as contempts. The 
 reason usually given, why Parliament has refused to em- 
 body in some statute this right ^ of all men to publish 
 
 1 10 Pari. Hist. 285. 
 
 2 10' Pari. Hist. 812. To such shifts were reporters reduced for 
 veracious materials, that De. Johnson said he had composed the 
 famous report of a speech of Pitt in answer to Horace Walpole in v. 
 garret near the Strand ; and in his Parliamentary reports generally 
 he took care, that the Whig dogs should not have the best of it in 
 the arguments. — Boswell's Johnson; Hawking Johnson. And Loed 
 Kenyon said (temp. 1778) Johnson had composed the famous speech 
 of L. Chesterfield against the Dramatic Licensing Act. — See post, 
 chap. xi. When the votes were first printed a formal motion for 
 leave was moved for every day. 
 
 ' A faithful report, published in a newspaper or by any volunteer, 
 of a debate in either House of Parliament, though it contain matter 
 which is per se libellous to an individual who is mentioned therein, 
 is a right which belongs to the public ; and the individual so libelled 
 has no remedy against the publisher or any other person. The 
 reason is, that all the public have an equal interest in the subjects 
 debated in Parliament by the representatives of the nation, and 
 such interest could not be made real and effectual unless the right 
 
US LIBERTY OF PRESS AND SPEECH. [en. vt. 
 
 reports of Parliamentary proceedings is, that in practice 
 Parliament has ceased to punish the^ publications as 
 breaches of privilege.^ But a better reason is, that the 
 ext/reme remedy is, like some other remedies of the Consti- 
 tution, kept in hand, solely to meet some rare emergency 
 which may or may never arise ; yet, should it ever arise, no 
 other remedy will be equally effective. No practical evil 
 has flowed from the freedom allowed to reporters and 
 publishers in this respect. Since the regular publication 
 of the debates has been encouraged, the chief complaint 
 on the part of members of each House of Parliament at first 
 was occasional unfairness or rather one-sidedness, either by 
 igiving a misleading abstract or entirely omitting speeches ; 
 but even this cause of complaint has ceased, for the press is 
 many-sided, and it can seldom be prudent in any one journal 
 to do otherwise than aim at correctness and completeness.^ 
 Moreover, though a standing order is maintained, which in 
 terms prohibits strangers from publishing the debates, this 
 can practically do no injury, because it is at most a remedy 
 and a restriction which can only be enforced by Parliament 
 itself. It is not open to informers or any member of the 
 public. Being under the exclusive control of the legislature, 
 it would require the collective wisdom of Parliament to be 
 combined, in order to crush any individual offender. And 
 this cannot be reasonably anticipated . and need no longer 
 be dreaded, since all the habits of life, all the instincts of 
 an intelligent and self-governing community conspire to 
 make the familiar knowledge of Parliamentary proceedings 
 free as the air we breathe.^ 
 
 of publication attached to each and every person who volunteered 
 to publish it— Wason v Walter, L. B. 4 Q. B. 73. 
 
 In 1831 a gallery was for the first time erected in the House of 
 Lords for reporters.— 8 Pari. Deb. (3) 813. 
 
 1 70 Pari. Deb. (3) 1225, 1254 ; 149 lb. 947. 2 105 Parf. Deb. 
 (3) 190. 
 
 3 Whenever one member used to move to exclude strangers, and 
 so made it necessary for- the order to be enforced, it was equally 
 competent for the House thereupon to resolve at once to suspend 
 the standing order, and this has often been urged as the all-sufiicient 
 remedy and check. — 224 Pari. Deb. (3) 90. In modern times an 
 improvement has taken place in the procedure. Under an order 
 made in H. C. 31 May 1875, whenever a member calls the attention 
 of the Speaker to the presence of strangers, the motion is put iit 
 oiioe to the House without any debate, so as to see whether the 
 
OH. VI.] PUNISHMENT BY PARLIAMENT. 119' 
 
 Punishment for breach of privilege. — The pillory was 
 the usual punishment for breach of privilege till 1716. In 
 1620 two persons were ordered, for contemptuous speeches 
 against the power of Parliament, to be set on horseback 
 without cloak or hat, to wear papers on their breasts and 
 backs, and so to pass to the Fleet prison, where they were 
 immured.1 For a slander of the Lord Keeper in 1626 the 
 culprit was ordered to stand in the pillory at Westminster, 
 then ride backward to Cheapside, then stand there in the 
 pillory, and then ride back to the Fleet.^ In 1716 Parlia- 
 ment began only to fine, and sometimes to reprimand the 
 offender.^ One of the difficulties attending any punishment 
 arose out of the practice, whereby a person charged at the 
 bar and reprimanded was expected to receive the reprimand 
 on his bended knees, and also to express some kind of 
 penitence before he was discharged. At last the inevit- 
 able hour arrived, in 1770, when one prisoner was found 
 who would not kneel ; and the House seeing the difficulty, 
 abolished this as a condition of such a discharge.* 
 
 opinion of one member meets with the general concurrence. — Ibid. 
 1176. Moreover the Speaker, and also the chairman of a committee, 
 can at any time order strangers to withdraw. 
 
 1 8 Pari. Hist. 410, 
 
 2 Ibid. 411. While the pillory was one of the regular punish- 
 ments, and formed part of the lex et consuetudo parliamenti, that 
 punishment has never been repealed by any order of the House, and 
 therefore to this day it would be in accordance with Parliamentary 
 usage still to resort to it. But inasmuch as in 1837 a statute was 
 passed, which utterly abolished it as a punishment upon any con- 
 viction in the ordinary courts (though not in terms applicable to 
 the orders of Parliament), it would be singular, if Parliament, after 
 laying down an inflexible rule for all other tribunals, should continue 
 to use this barbarous punishment itself. (1 Vic. c. 23.) And for 
 that reason the pillory may be deemed practically abolished in all 
 ciises of breach of privilege. ' Ibid. 414. 
 
 * Re Murray, 14 Pari. Hist. 894; 1 Pat. Com. (Pers.) 38. As L. 
 Camden (when junior counsel on a trial about this matter) explained 
 it to a jury : " The defendunt merely refused to throw himself into 
 that attitude of humility, which he reserved for the occasion of 
 acknowledging his sins and praying for pardon before the throne 
 of the Supreme Governor of the Universe." — 5 Camph. L. Chrs. 320. 
 
 The minority of the House of Commons in defending the early 
 printers of the debates in vain urged, that if the printer be sum- 
 moned, he ouglit not to be ordered to go on his knees to be repri- 
 manded by the Speaker. But the majority prevailed. And Mr. 
 Baldwin, printer of St. James' Chronicle, and an'other printer, on 
 
120 LIBERTY OP PRESS AND SPEECH. [rn. vi. 
 
 Another difficulty has been raised as to the cognate 
 practice of the House of Commons — not to discharge a 
 prisoner till he had expressed due ' contrition for his of- 
 fence. In the case of Gale Jones in 1810, who placarded 
 London with the programme of a debating society, which 
 the House deemed libellous, he was committed and ordered 
 to be kept in prison, till he submitted himself to the mercy 
 of the House, which he refused to do. The Speaker told 
 the House it was usual, not to release offenders till they had 
 acknowledged their offence and expressed sorrow. Some 
 members thought this did not amount to requiring the 
 prisoner to recant, which Whitbread said was the real 
 meaning ; and that many men would rather rot in prison 
 than submit to such humiliation. Nevertheless the House 
 refused to release Jones without a petition and some 
 apology.i 
 
 14 March, 1771, went on their kneee and were reprimanded accord- 
 ingly, and then discharged. These were the last printers who 
 kneeled at the bar of the House, the practice of prisoners kneeling 
 being discontinued in 1772 by a standing order then made. — 33 Com. 
 J. 694; 11 Pari. Hist. 311. 
 
 1 16 Pari. Deb. 726 ; 17 Pari. Deb. 658. Sik S. Romillt said in 
 reference to this practice, that it was asking too much to require a 
 man to humiliate himself by a formal abjuration of opinion before 
 he was discharged ; and such was not necessary in any civil court, 
 though abjuration might be required in a spiritual court. — H. C. 16 
 Pari. Deb. 486. 
 
 In another case, shortly before that of Gale Jones, an editor of a 
 newspaper, having published a draft report of a select committee 
 on a topic of great excitement, and made it appear to be the final 
 decision of Parliament, he was summoned to the bar, and refused to 
 give any information as to the way in which he procured the paper. 
 He was committed to the custody of the serjeant-at-arms, and after- 
 wards, on petition, to the effect, that he was not aware of his 
 offending, was discharged at once with a reprimand.— ^jBe Sheehau, 
 13ParZ. Z)e&. (3rt)3l9. 
 
CH. VII.] CONTEMPT OF COURT. 121 
 
 1. 
 
 CHAPTER VII. 
 
 LIBELS AND COMMENTS ON COURTS OF JUSTICE, EEPOETS 
 OF TRIALS, AND COMMENTS ON PUBLIC MATTERS. 
 
 Contempt of Court by interfering with the business. — 
 In a country where free speech is the rule, and the fewest 
 possible restrictions to it exist, it would be singular, if the 
 proceedings of courts of justice did not supply a large 
 portion of the material for daily comment. As in the case 
 of proceedings in Parliament, the business transacted in 
 courts of justice comes home to every one, and there is no 
 reason why all that is done there should not be open to 
 every kind of observation both in speech and in the press. 
 To watch and sometimes take part in the business is always 
 a ready means of knowledge as to the working of the Consti- 
 tution, and to read an account of what is done there gives 
 the most reliable information to all as to the security of 
 their own persons and property, which no other reading 
 so well supplies.^ And courts, as may be supposed, are 
 sometimes well spoken of, and sometimes the reverse. And __/ 
 as the administration of justice is of equal importance to the 
 making and reforming of the law, and is entitled to be sur- 
 rounded with a dignity appropriate to its place in the Con- 
 stitution, the same occasions for collision arise, where free 
 comments are made on the exercise of so high a function. 
 Courts of law must therefore, as in the case of Parlia- 
 ment, be credited with sufQcient power to vindicate and 
 protect their procedure against attacks, for as courts are th'e 
 
 1 BuEKE has said, nothing better could be devised by human 
 wisdom than argued judgments, publicly delivered, for preserving 
 unbroken the great traddtionary body of the law. — Burke, Com. to 
 inspect Journals. 
 
12-2 LIBERTY OP PRESS AND SPEECH. [ch. tii. 
 
 appointed means of, adjudicating on all disputes, and for 
 discovering all sufficient materials to that end, their 
 labours would be often futile, if irresponsible volunteers 
 intruded crude opinions and speculations, founded, as they 
 must usually be, on defective data. The first requisite of a 
 court of justice is, that its machinery be left undisturbed; 
 and this cannot be effected, unless cominents be all but 
 excluded till the court has discharged its function. The 
 same power to commit summarily for contempt all persons 
 who intrude into the judicial function, and profess to have 
 better and superior m^ans of knowledge, or who suggest 
 partial or corrupt conduct, is thus deemed inherent in all 
 courts of record, though the occasion and extent of this 
 summary jurisdiction have given rise to nice distinctions. It 
 is said to be a necessary incident to every court of justice, 
 whether of record or not, to fine and imprison for a con- 
 tempt acted in the face of it. ^ This exercise of power is 
 as ancient as any other part of the common law. If the 
 course of justice is obstructed, that obstruction must be 
 violently removed. When men's allegiance to the laws 
 is fundamentally shaken, this is a dangerous obstruction. 
 That the judges should be credited with impartiality is abso- 
 lutely necessary.^ Therefore to libel or slander the adminis- 
 tration of, the law by imputing misconduct to the judge or 
 jury is of itself an indictable offence.* Judges are also pro- 
 tected in other ways. To kill a judge in the performance of 
 his duties is no less than high treason.* Coke says that 
 to draw a weapon at a judge sitting in court was a great 
 
 . 1 1 Vent. 1. 
 
 2 JR. 1) Almon, Wilmot, 270. Chief Justice Wilmot, who put 
 this doctrine as high as it could be put, and examined the authorities, 
 ended by saying, that the object of courts having the power of 
 punishing by attachment for contempt was "to keep a blaze of 
 glory round the judges, and to deter people from attempting-to 
 render them contemptible in the eyes of the public." — Wilmof, 
 Notes, 270. 
 
 The same judge descanted on the fatal risk of allowing "the 
 authority of courts to be trampled on by pamphleteers and news- 
 writers." This contempt of newswriters — a power not then dreamt 
 of in their period — seems to have been heartily shared by Lord 
 Camden, both as yet unconscious of the hereafter of this Fourth 
 Estate in the realm. 
 
 3 Fuller's Case, 12 Rep. 42 ; E. v Lord G. Gordon, 22 St. Tr. 175 ; 
 E. c Hart, 30 St. Tr. 1131. * JJ6 Ed. lU. stat. 5. 
 
CH. vii.] CONTEMPT OF COURT. 123 
 
 misprision, for which the right hand was cut off and the goods 
 were forfeited.^ To utter threats or reproaches to a judge 
 sitting in court is always an indictable misdemeanour.^ In' 
 the time of Edward III. an attorney was committed for 
 ■writing a letter merely stating, that " none of the judges 
 ■would do any great thing by the commandment of the King 
 or the Queen, any more than of any other of the realm."* 
 Wraynliam was convicted of libelling Lord Chancellor 
 Bacon by saying, that he had done unjustly and was worse 
 than a murderer.* Harrison, for saying to Judge Hutton, 
 "I accuse you of high treason," was fined 5000^. and im- 
 pi'isoued, and made to wear papers ; leave was given to the 
 judge to bring an action, and such action was afterwards 
 brought and 10,000^. damages recovered with ease,^ In 
 another case Lord George Gordon published a libel on the 
 judges, which said, among other things, " How long shall 
 tliose whited walls of counsel command us to be hanged 
 contrary to the law ? They make .long charges to the 
 juries with a show of justice and religion. They shed our 
 innocent blood for expiable trespasses."* And he was found 
 guilty by a jury.' A municipal corporation in 1788 made 
 and entered in their books a resolution, by which they 
 awarded a person 2,300L on account of his being actuated 
 by motives of public justice and preserving the corporation 
 rights in defending an action brought against him for 
 malicious -prosecution, and against whom a verdict for 
 3000Z. had passed. The court ordered a criminal informa- 
 tion against each of the members of this corporation, for 
 thereby imputing, that the judgment of the court, which 
 was in opposition to the resolution, was wrong. The court 
 
 1 3 Inst. 140 ; E. « E. Thanet, 27 St. Tr. 821. 2 Cro. Car. 503 ; 
 Hutton, R. 131. = 3 Inst. 174. * 2 St. Tr. 1071. * k. v 
 
 Harrison, 3 St. Tr. 1375 ; Hutton, R. 131 ; Cro. Ch. 503. 
 
 s When the Letter on Libels, usually supposed, at the time, to be 
 ■written by Lord Ashburton or Lord Camden, was published, the 
 court construed the drift of one passage into an explicit charge, that 
 the Court of Queen's Bench intended to defeat the Habeas Corpus 
 Act by introducing a circuitous form of proceeding, and thereby 
 preventing a man obtaining his liberty for two years. Wilmot, 
 C. J., was. prepared to hold this a contempt.— R. v Almon, Wilmot's 
 Notes, 249. The case was never decided, but the judge had pre- 
 pared his judgment for the occasion. 
 
 7 R. « L. G. Gordon, 22 St. Tr. 207. 
 
124 LIBERTY OF PRESS AND SPEECH. [oh. vii. 
 
 said, that if judge and jury are mistaken, there is a legal 
 remedy, and a party ought to pursue that, and not assert 
 that a prosecutor was actuated by public justice, when the 
 verdict conclusively proved that he was not so actuated.^ 
 A public writer commenting on a recent trial of a captain 
 for murdering a poor boy on board, and on the verdict of 
 acquittal, said, " The principles laid down by the judge 
 would renider it impossible hereafter to convict a murderer 
 or assassin." And commenting on the jury, he said, " They 
 seemingly had set at defiance the clamorous calls of justice 
 and humanity ; but public indignation could not be alto- 
 gether overwhelmed by the impetuous torrent of judicial 
 corruption." This was held libellous against both judge 
 and jury, though the defendant's coixnsel endeavoured to 
 show, it was only the just comment of an impartial writer 
 on the brutal details of the trial. And in another case a 
 writer, commenting on a trial of an action against a captain 
 who had put a passenger in irons for refusing to help him 
 in fighting an enemj'^, said " the judge's observations had 
 filled liim with horror and indignation, and the judge 
 must be regarded with an eye of suspicion and alarm." 
 This also was held to be a libel.^ 
 
 Fair comments on the judgments and conduct of 
 judges. — But as there is a wrong way of commenting on 
 judges, so there is a right way. The mode in which judges 
 or justices of the peace perform their duty, and the natui-e 
 of the judgment given, as well as the conclusions of the jury, 
 if any, are all matters of public interest, and after the con- 
 clusion of the judgment can be freely commented on, and 
 whatever the court has treated as facts the critic may treat 
 also as facts. But if the writer profess to have facts and 
 knowledge of his own, then he must take the risk of their 
 amounting to an imputation of libel.^ The conduct and 
 evidence of a witness may also be discussed, though an 
 imputation of perjury must be avoided as wholly unjusti- 
 f fiable.* The qualifications of a person appointed as a judge, 
 and even the circumstances under which he was appointed, 
 and his private character, may be commented upon for the 
 
 1 E. V Watson, 2 T. R. 199. ^ j{_ „ Hart, 30 St. Tr. 1131. See 
 also post as to acts of contempt done out of court. ^ Woodgate 
 
 V Ridout, 4 F. & F. 216 ; Hibbins v Lee, 4 F. & F. 243. ^ Hedley 
 
 V Barlow, 4 F. & F. 224. 
 
OH. VII.] RIGHT TO ENTER COURTS OF LAW. 125 
 
 purpose of estinQating, whether the judge is a man of honour 
 and integrity. And if the judge himself have published 
 his own views, this is a legitimate challenge to public writers 
 to give their opinions, also taking care, however, to adhere 
 to the established facts.^ 
 
 The right of the public to enter Courts of Justice. — ; 
 The relation in which courts and judges stand towards the 
 public is altogether different from that contemplated by 
 some of the ancients. The court of Areopagus sat in the 
 dark for the very purpose of preventing the inquisitive 
 spectator watching too closely the demeanour of parties or 
 even the faces of the judges.^ But with us judges are 
 easily accustomed to sit in a fierce light, and are always 
 before the observation of all. A court of justice is open 
 to the public ; and any person whatever, whether interested 
 or not by reason of inhabitancy or otherwise, is entitled to 
 enter, if there is room for him to be there. All the superior 
 courts are therefore free to the visitation of any one who 
 chooses to attend. This right has never been questioned. 
 Nevertheless it is not an absolute right for any person to go, 
 and insist on choosing his own position, for the regulation 
 of places must neoessarily reside in the judge, otherwise 
 his own seat might be taken possession of by the first 
 comer.* Thus it follows, that the presiding officer, whether 
 he be judge, coroner, justice, or sheriff, has the controul of 
 the proceedings and the power of admission or exclusion 
 according to his own discretion.* In all courts of justice 
 there are occasions, when matters are or ought to be con- 
 ducted in privacy and to avoid scandal ; and it rests with 
 the judge of the court, exclusively and without appeal, to 
 determine when such an occasion has arisen. The pro- 
 priety of his decision cannot be questioned in any action; 
 for this being a matter within his jurisdiction, and no judge 
 being amenable to an action for anything done in the exe- 
 cution of his office, it follows, that no one has a remedy by 
 way of damages for any mistake. And this is the rule ap- 
 plicable to all courts great and small. But there has some- 
 times arisen a question, which of the inferior courts is or is 
 not a public court at the time, and so is open to the public. 
 In one case G-., a reporter for the press entered and took notes 
 
 1 Seymour v Butterworth. 3 F. & P. ■676. ' ^ Athen. b. vi. 
 3 G unett V Ferrand, 6 B. & C. 627. * Ibid. 
 
126 LIBERTY OF PRESS AND SPEECPl. [ch. vu. 
 
 at a coroner's inquest which excited great interest, and the 
 coroner requested him to leave, and on refusal, with the aid 
 of his servant, turned G. out, who afterwards brought an 
 action of trespass for the assault. And the court held, that 
 the power of exclusion was necessary to be confided to every 
 judge for the due administration of justice, and there was 
 no remedy by action against him for any apparent arbitrary 
 conduct.^ It is true, that, though the public are admitted to 
 witness trials in courts of justice, yet they are not thereby 
 authorised to express any opinion whatever on the proceed- 
 ings, for this would lead to disturbances incompatible with 
 the severe impartiality aimed at by all tribunals ; and there- 
 fore to indulg3 in any outburst of joy or pity is itself a 
 contempt of authority.^ 
 
 Right to publish reports of courts of justice. — That 
 the proceedings of courts of justice should be open to the 
 newspaper reporter or any volunteer has always been held 
 a first principle, requiring no argument, the public advan- 
 tage outwaying the inconvenience to those whose affairs 
 are the subject of litigation. In short, to publish these 
 reports is merely to extend the audience and enable those 
 who are not present to hear and see what took place as if 
 they were present.* Courts of law seem never to have gone 
 the length which Parliament went, and which in form it 
 still maintains, in treating the publication of their pro- 
 ceedings as per se a contempt ; and yet some traces of a 
 like jealousy and suspicion are found in former times. In 
 the time of Edward III. it is said, that a notary public was 
 committed to the Tower for merely taking a note in court 
 of the proceedings.* And Scroggs, C. J., in 1679, appointed 
 a particular printer to publish a report of a trial, and he 
 prohibited all other persons from presuming to print the 
 same,^ 
 
 One ground on which reports of legal proceedings are 
 
 1 Garnett v PeiTand, 6 B. & C. 628. 
 
 2 Holt, as counsel in a trial for assault, complained of the 
 gnectators hissing. — R. v Bether, 8 St. Tr. 769. 
 
 * 3 Popham V Pickburn, 7 H. & N. 89. " See Flint v Piie, 4 B. 
 
 & C. 473. 
 
 5 7 St. Tr. 765. The practice of newspapers introducing reports 
 of proceedings in courts of justice is said to have begun about the 
 end of the reign of George 11.^-5 Camp. L. Qirs. 52 ; 6 Ibid. 54. 
 
CH. VII. 1 PUBLISHING LAW REPORTS. 127 
 
 sometimes said to be open to all is, that the primary object is 
 to convey useful knowledge. But whether such knowledge 
 is useful or entertaining or merely mijiisters to the lower 
 passions of revenge, envy, and the keen desire to sympa- 
 thise with the misfortunes of one's neighbour can be of little 
 consequence, and cannot be inquired into. It is enough 
 that, as courts and judges exist solely for the good of the 
 public, and every one has as much interest as another in 
 knowing what courts say and do in discharging their duties, 
 no reason can be shown, why their proceedings should be 
 kept in the dark. The only way, by which the equal 
 interests of all the subjects in this department of public 
 business can be maintained and given effect to, is by allow- 
 ing any volunteer to publish and circulate amongst the 
 many what can only be witnessed by very few. But inas- 
 much as legal proceedings include details of evidence which 
 are indecent or blasphemous, the publisher is bound at his 
 peril to abstain from publishing these, as they cannot in any 
 view benefit society ; and however accurate his account 
 may be, he will, according to circumstances, be as much 
 liable for the indecency and blasphemy as if he himself 
 invented it. A publisher or reporter is bound to know, 
 that no privilege or immunity will protect him in such 
 cases.^ 
 
 When published reports of trials are treated as 
 contempts.— The publication of legal proceedings is, as 
 already stated, often treated as a contempt, because the 
 publication if premature interferes with the proper func- 
 tion of the court by disturbing the minds of judges as 
 well as of juries and bystanders. This is a doctrine which 
 by no means conflicts with the most ample liberty on the 
 part of each member of the public to exercise his own 
 right of comment after the decision has been given, and 
 after the matter is past and ended. The writers in news- 
 papers have an unbounded latitude in expressmg opinions 
 on every view of a case, and, if they please, of showing the 
 public how they themselves would have decided it in a 
 more satisfactory way ; nevertheless, by the law of the 
 Constitution, it being assigned to judges and courts alone 
 to dispose of this kind of business, and they being treated 
 
 ' E. V Carlile, 3 B. & Aid. 167. 
 
128 LIBERTY OF PEESS AND SPEECH. [ce. vii. 
 
 as the sole depositories of the means of justice, and the 
 accredited oracles as to everything that is doubtful, all 
 the materials that it is possible to accumulate are laid 
 before them for this sole end, and on this very account these 
 materials are, or ought to be, the best accessible in the cir- 
 cumstances. Ic would cause endless confusion and disturb 
 the functions of the courts, if volunteers were to be al- 
 lowed, in the middle of the business, to rush in and, without 
 having equal or indeed reasonably good opportunities, were 
 to presume on their superior iatuitive sagacity or know- 
 ledge, or pretend to a better judgment than the Constitution 
 has provided for the disposal of each case. And this 
 interference is not the less prejudicial, because the court 
 may not have known of the interference, or, if it had known, 
 would have risen superior to the misleading iniluence of 
 any of the proffered suggestions. 
 
 While therefore it might weU. be deemed, on account of 
 the public interest affected, an indictable offence for 
 any person to interfere by publishing comments, or even 
 publishing ex parte statements of accounts of pending 
 causes, calculated to mislead the public and embarrass the 
 courts and juries engaged in deciding the cause, yet it has 
 not been the practice to prefer an indictment, because a ' 
 summary process is much more effectual, namely, an 
 application to the judge or court to commit the offender 
 for contempt. The usual ground of contempt on these 
 occasions was the publication of a trial or hearing before it 
 was concluded. Lord Hardwicke, in 1742, said " one object 
 of courts committing for contempt was in order to keep the 
 public from being prejudiced against persons before the 
 cause is heard." And that seems the main object so far as 
 printers are concerned. Another object is " to prevent the 
 judges being scandalised and depreciated." He accordingly 
 committed a party for publishing his brief, before the cause 
 came on to be heard, and so prejudicing the public mind.^ 
 And to publish an affidavit filed in some preliminary stage 
 of the cause with comments upon it, suggesting more or 
 less, and anticipating a certain decision, is also ground of 
 contempt.^ So where a solicitor of one of the parties 
 
 1 Roach V Gowsn, 2 Atk. 469. ' Tichbome v Tichbome, L E 
 7 Bq 65 n. 
 
CH. VII.] REPORTS OP LONCi TRIALS. 125 
 
 published in a newspaper his version of the facts, this was 
 held a contempt.i 
 
 Publishing reports of a trial which occupies many 
 days. — It is true that, when a trial takes place from day to 
 day, there is some inconvenience in allowing daily reports 
 of what takes place. But inasmuch as this publication is 
 in reality a communication of what has already been heard 
 in court by those of the public who were present, to the 
 larger audience outside, and so putting a greater part of the 
 public in the position of auditors, no reason exists for 
 preventing such a daily report being published or for re- 
 straining any account being given till the whole trial is over, 
 so long as in these daily reports comments and all remarks 
 tending to partisanship are avoided. In 1821, on the trial 
 of Thistlewood, Abbott, C. J., at the commencement of the 
 trial stated, that as there were several prisoners included in 
 that indictment who had severed in their defences and 
 whose trials would take place one after the other, the 
 court deemed it improper that any report of the first trials 
 should appear till the last had concluded. And one news- 
 paper proprietor having on the seventh day published 
 without comment a report of two of the cases which had 
 up to that date ended, with the result of the verdict, but 
 a third case was still untried, he was committed for con- 
 tempt; and the whole court held, that to do this was within 
 the powers of the judge.^ But siuce that time this view has 
 seldom been acted on, and benefit has been found to result 
 from daily reports of trials, by inducing witnesses to come 
 forward, who may be able to advance the interests ' of 
 justice. And for a like reason, namely, any obstruction of 
 the free course of justice, if a party were to advertise a 
 reward for witnesses to prove certain facts, this would be 
 treated as necessarily leading to partiality, corruption, and 
 perjury, and so a contempt of court.^ So though no con- 
 tempt nor anything disrespectful may be intended, it is 
 a serious obstruction of justice for any one to publish 
 in a public newspaper or book part of the pleadings or 
 
 » Daw V Eley, L. E. 7 Eq. 49. 
 
 2 E. V Clement, 4 B. & Aid. 218 ; 11 Price, 68. Lokd Campbell 
 thought this was, at least, an injudicious decision, and contrary to 
 the later practice. — 3 Camp. C. J. J. p. 308. 
 
 3 Be Farley, 2 Ves. Sr. 520. 
 
130 LIBERTY OF PEESS AND SPEECH. [oh. vii. 
 
 proceedings before the cause has been heard in court, or even 
 to publish an account calculated to prejudice the hearing, 
 for thereby public opinion may be grievously misled and 
 trifled with ; as, for example, by threatening to indict 
 witnesses for perjury ; ^ or by publishing a petition for 
 winding up a company before the hearing of the case.'' 
 When however a suit or proceeding in court has quite 
 ended, and comments are published to the effect that 
 justice has not been done, or otherwise, the courts are no 
 longer under the duty of interfering, and the subsequent 
 remedies may be left to other courts in the ordinary way. 
 Yet where final judgment has been given, but has not been 
 drawn up, the matter is treated as still pending, and the 
 courts have asserted a right to protect litigant parties when 
 they are abusing or slandering or libelling each other after 
 the court has discharged its function of adjudication.* 
 
 p Wliat is a ccmrt of justice. — The question often arises 
 on such occasions. What is a court of justice ? and here some 
 distinctions require to be made. One of the main tests is, 
 whether the particular court or place is at the time open to 
 the public, for if so then all parties interested being likely 
 to be present, or at least to have the opportunity of being 
 so, it is for the time being a final and concluded proceed- 
 ing. Hence the sitting of a registrar in bankruptcy held in 
 a prison to take the examination of a debtor therein con- 
 fined was held to be a court of justice, because notice was 
 given to the parties interested to attend, and it is of public 
 interest to know how any prisoner is dealt with.* So was 
 a sitting of examiners in an election petition to inquire in- 
 to the sufficiency of sureties.^ And the interest attending 
 decisions of a court of justice extends to the contents of 
 public documents made accessible to the public under 
 statutory authority and having the effect of a decree of 
 a court, as, for example, the list of protested bills of 
 
 I exchange.® 
 
 Reports of ex parte proceedings in courts of law. — 
 
 ■1 Littler v Thompson, 2 Beav. 129 ; Tichborne v Mostyn, L. R 
 7 Eq. 65. 2 jjg Cheltenham Co., L. R. 8 Eq. 680 ; Daw v 
 
 Eley, L. B. 7 Eq. 49. 3 g^p Turner, 3 M. D. & De • 
 
 G. 544 * Byalls v Leader, L. E. 1 Exch. 296. s Cooper 
 
 V Lawson, 8 A. & E. 746. 6 Fleming v Newton, 1 H. L 
 
 0. 363. 
 
CH. VII.] EEPORTS OF LEGAL TRIALS. 131 
 
 A report of the proceedings that take place in any court 
 of justice, where both sides are heard and a decision given, 
 though involving defamatory matter, can seldom give rise 
 to an action. But the case of ex parte proceedings and of 
 proceedings which are beyond the jurisdiction of the 
 court, but nevertheless have been to some extent enter- 
 tained in a public manner, long- caused a difiSculty. If an 
 ex 'parte proceeding such as a charge made of an indictable 
 offence before justices be dismissed, a report of such case 
 stating the result cannot be a cause of action.' And though 
 at first some judges doubted whether a report of an ex parte 
 proceeding such as a preliminary examination of an ac- 
 cused person before a justice of the peace was always justifi- 
 able, it has been recently established, that a correct and fair 
 report of these proceedings is as lawful and unexception- 
 able as of final judgments in any court.^ 
 
 Reports of applications to cowrts which have no 
 jmrisdiclion to entertain them. — Again still another dis- 
 tinction was drawn between reports of matters coming 
 within the jurisdiction of courts, and those which do not. 
 If, for example, a volunteer makes an application to a court 
 and founds upon it some claim for redress, and in course 
 of doing so makes statements which are slanderous, it has 
 been held nevertheless that the publisher of a correct and 
 fair report is not liable to any action, because all courts are 
 liable to have applications made to them which turn out 
 on examination to be beyond the jurisdiction ; and the 
 conclusion of the court on any preliminary application 
 cannot be arrived a.t till after some details are stated. And 
 it cannot be reasonably expected, that reporters and 
 bystanders can judge when a matter is or is not within 
 the jurisdiction of courts.^ 
 
 Reports of trials must he fair and vnthout com- 
 ments interspersed. — WhUe therefore it is lawful for any 
 one to publish a report of a proceeding in a court of justice, 
 still this must be a fair and authentic report of what 
 happened. If the report is mixed up with comments 
 showing an animus against a party, and giving an un- 
 fair impression, the publisher then ceases to have the 
 
 I Lewis V Levy, E. B. & E. 637. ^ -Wason v Walter, 8 B. & S., 
 730 ; L. E. 4 Q. B. 94.- 3 Usill « Hales, 1 C. P. D. 319 ; Ryalls, 
 
 V Leader, L. B. 1 Bxch. 300. 
 
 K 2 
 
132 LIBERTY OF PRESS AND SPEECH. [ch. vii. 
 
 benefit of this absolute right of publication.1 And this is 
 still more so if the comment involves some new fact.2 
 Hence one who reports or publishes an account manifestly 
 one-sided should take care to let it clearly appear, that one 
 side only was heard ; and no comments of the reporter 
 should be interlarded or added, tending to suggest a 
 partisan view of the case. Eeport and comment should 
 always be kept separate, and it should be recollected, that 
 the conclusions, drawn by a bystander are in general wholly 
 immaterial and misleading, for the judge or jury alone are 
 to decide the proper inferences to be drawn for the time 
 being.3 And a sensational heading to the report is deemed 
 a comment in the above sense.* And for like reasons a 
 party is not justified in publishing . without discrimination 
 everything that falls from the mouth of counsel.^ Every- 
 body knows, that the statement of a counsel is ex parte, and 
 that he is often instructed to make allegations. which it is 
 afterwards impossible to support in proof. And though it 
 be lawful for counsel thus to' utter matter injurious to 
 individuals, the subsequent publication of this has no such 
 protection, and may be actionable.^ For example, to in- 
 sinuate that a witness had committed perjury is wholly 
 beyond the province of the reporter, for it is for the judge 
 and jury alone to deal with that conclusion ; and every 
 witness on his oath is entitled at least from bystanders to 
 have his statement taken and fairly represented as he gave 
 it, it being exclusively the business and main function of 
 the court to estimate and weigh it. 
 
 How far the report must he verbatim or abridged. — 
 With regard to the accuracy of the report of proceedings 
 in courts of justice, it is not meant, that there should be 
 a verbatim report. Any summary of various length may 
 be as accurate as a verbatim report, and in general is the 
 only practicable kind of report. All that a reporter usually 
 requires to do is to give such account of what he has heard 
 as an intelligent bystander would give when relating it 
 
 1 R. V Fleet, 1 B. & Aid. 379. 2 Cooper v Lawson, 8 A. & B. 
 
 746. 3 Lewis v Levy, E. B. E. 544 ; Stiles v Nokes, 7 East, 453. 
 
 ■> Lewis B Clement, 3 B. & Aid. 702. ' Saunders v Mills, 6 Bing. 
 213 ; Lewis v Walter, 4 B. & Aid. 605 ; Roberts v Brown, 10 Bing. 
 525. 6 Flint v Pike, 4 B. & C. 473. 7 Roberts v Brown, 10 
 
 Bing. 519 ; Cooper v Lawson, 8 A. & E. 746. 
 
CH. VII.] CONTEMPT OF COURT. l.'^S, 
 
 afterwards, the reporter's function teing merely that of 
 giving eyes and ears to the absent.^ And some discretion 
 is required as to the parts of a case which should be reported 
 and the proper proportions of those parts. If, for example, 
 the statement of facts made by one counsel should alone 
 be given, that is to say, his version of the facts which he 
 intended or expected to prove, and an account of ihe facts 
 actually proved thereafter was omitted or slurred over, an 
 unfair report might be the result, seeing that counsel often 
 without any fault of theirs make allegations, which it is 
 afterwards impossible to support in proof.a 
 
 How far contempt pwnishable if act is done out of 
 court. — The contempt of a court may be committed by 
 words used in presence of the court itself, if these words 
 imply either from their meaning or the gesture and manner 
 accompanying them, that an insult is intended and under- 
 stood. Por the bystanders of the moment may from the 
 use of such language conceive a contemptuous opinion of 
 its authority, if no remedy be available.* Each court is 
 presumed to know its own law and to put the right inter- 
 pretation on the character of the act donej so far as it is 
 contemptuous, for if the contempt is by a gesture none 
 but the court can judge of it.* On this subject a useful 
 distinction was drawn, when it was held, that, if the words 
 used are spoken in presence of the judge himself, this 
 may be punished summarily by attachment for contempt ; 
 but if the words were used elsewhere than in court, the 
 proceeding should be by way of indictment, as no great 
 urgency is then required. And this may be said to be the 
 rule as to inferior courts. In 1743 a court-martial passed 
 a resolution reflecting on certain comments made by a 
 Chief Justice, who had tried an action against the president 
 for an illegal sentence on a prior occasion, and this resolu- 
 tion was sent to the king. The Chief Justice committed 
 all the members of the court-martial, whereupon they 
 wrote a contrite submission to be read" in court, after 
 which they were released.^ In 1808, after the trial and • 
 acquittal of a ship's captain charged with murdering one 
 
 ■ 1 Andrews » Chapman, 3 C. & K. 289. ^ pijut v Pike, 4 B. & 
 
 C. 473 ; Saunders v Mills, 6 Bing. 218. » Wilson's Case, 7 Q. B. 
 
 1015. 4 Be Pater, 5 B. & S. 299, ^ Willes, 0. J., Holt, 
 L. Lib. 158. 
 
134 LIBERTY OF PEESS AND SPEECH. [ch. vii. 
 
 of the crew, a newspaper writer wrote an article, insisting 
 that the prisoner had been guilty, and censuring the judge 
 and jury for acquitting him. The article was a mere 
 declamatory invective, and without any fair and temperate 
 discussion of evidence ; and the writer was indicted and 
 convicted, and sentenced to three years' imprisonment* 
 And where the writer in commenting on a recent trial 
 and execution for murder imputed corruption to the judge, 
 Ihe defendant was found guilty of a seditious libel.^ 
 
 The libels for which a superior court may commit are 
 thus not merely those published in the court or the 
 immediate neighbourhood, "but include those which are 
 published at a considerable distance, and though the 
 court was not sitting at the time of publication.* And 
 a solicitor, who published a pamphlet relating to a recent 
 judgment, describing it as whoDy beside the merits of the 
 case, and as having as its only object to deter solicitors 
 from exposing abuses in the court, was committed for 
 contempt.* And in another case, where an unsuccessful 
 applicant wrote a letter to the judge using a threat, 
 tending to induce him to alter the decision, that was 
 deemed a contempt for which an attachment issued.^ A 
 letter offering money to the judge is also treated as a 
 gross contempt.® It is equally a contempt to send a 
 letter, threatening a party or witness if he attend the 
 court, or publishing insinuations that they are perjured.'^ 
 And where a judge had cleared his court of the public 
 owing to excessive noise, and the high sheriff resisted 
 this, and told his officers to admit the public, as it was 
 an unlawful proceeding to exclude them, the latter was 
 fined 500/. for this as a contempt.* 
 
 What courts can commit for this contem,pt. — This 
 power to commit for contempt was said to be a necessary 
 incident to every court of Justice, whether of record or 
 not.^ Wilmot, C. J., insisted, that not only could a judge 
 
 1 E. V White, 1 Camp. 359. ^ e_ „ Sullivan, 11 Cox, C. C. 57. 
 
 3 Crawford's Case, 13 Q. B. 613 ; Charlton's Case, 2 My. & Cr. 316 ; 
 E. v Onslow, L. B. 9 Q. B. 219. ■> Exp. Turner, 3 M. D. & De G. 
 523 ; Exp. Jones, 13 Ves. 237. ^ He Charlton, 2 My. & C. 316: 
 
 *i Martin's Case, 2 R. & My. 674. '' Smith v Lakeman, 26 L. J. Ch. 
 305 ; Shaw v Shaw, 2 Sw. & T. 615 ; Re Mulock, 33 L. J. Prob. 20& 
 8 Re Sheria of Surrey, 2 F. & P. 237. 9 1 Vent. 1. 
 
cii. vii.] PUNISHMENT FOE CONTEMPT. 135 
 
 of a court of record commit for contempt when he was 
 sitting in the Court, but he had the same powers when doing 
 any judicial business, even in his private chamber, or in 
 the judge's chamber auxiliary to the court. But this 
 has on further examination been deemed to be too wide, 
 and the Ime has been drawn between a judge sitting in 
 open court and sitting in camerd, in which latter case 
 no power of committal for contempt is inherent.' 
 
 Courts of record are usually divided into those of a 
 superior and of an inferior kind. And the superior courts 
 have been held to include all the highest courts, the 
 House of Lords, the Judicial Committee of the ]?rivy 
 Council, the Supreme Court and High Court of Justice. 
 This class also includes courts of assize and judges 
 sitting at nisi prius and the Central Criminal Court.^ 
 And the Court of Quarter Sessions is also classed among 
 the superior courts in this respect.^ With regard to all 
 these courts the important characteristic is, that the com- 
 mitment need only mention, that the party committed a 
 contempt of court, without stating further particulars, it 
 being deemed conclusive, and as if the court could not go 
 wrong in such a matter.* 
 
 Ptmishment for contempt. — The mode of punishment 
 for a contempt of court is fine or imprisonment, and 
 neither the extent of the one nor the, duration of the 
 other is settled. In one old case, the party committed, 
 being a barrister — for tampering with a witness in the 
 Popish Plot — besides being fined and imprisoned, had 
 his gown pulled over his ears by the tipstaff.^ It is 
 however a general rule' on this subject, that when a com- 
 mitment is in the nature of a punishment, and not like 
 a commitment of a party till he answer, which is rather 
 in the nature of process, it ought to be certain as a 
 sentence. No English court, if their attention were 
 called to the point, would commit by way of punishment 
 except for a time certain.® 
 
 1 R « Faulkner, 2 Mont. & A. 338, 344. 2 yjg Fernandez, 10 
 
 C. B., N. a 3 ; 6 H. & N.. 717. s R. v Clements, 4 B. & Aid. 223 ; 
 Re Pater, 5 B. & S. 300. ■* Crawford, re, 13 Q. B. 613, Re. Pater, 
 5 B. & S. 299. 6 Bac. Abr. Court E. 
 
 6 Re Crawford, 13 g. B. 628. In the case of Bingley, a book- 
 seller who was charged with contempt of the Court of Queen's 
 
136 LIBERTY OF PRESS AND SPEECH. [ch. vii. 
 
 Contempt of inferior judges tmd eowts. — Sometimes 
 this kind of disrespectful language is used towards justices 
 of the peace, as by calling them fools, knaves, and rascals. 
 And some of the older authorities seem to assume, that 
 a justice of the peace may for words of contempt uttered 
 in his presence commit the party to prison ; ' though 
 perhaps these powers were understood to apply only to 
 binding over the party to keep the peace. For words con- 
 temptuous of a justice of the peace uttered in his presence 
 seem not even to be indictable, far less to be matter for 
 which the speaker may be committed.^ At least where 
 the words are spoken of a justice, but not in his presence, 
 the words are not indictable.^ And though the older 
 authorities are confused and contradictory as to whether 
 a justice acting as such can commit a party for contempt 
 in his presence, at all events he must at the very least 
 make out a warrant of commitment specifying the term 
 of imprisonment.* And it would probably require a 
 masterly hand to draw such a warrant of imprisonment 
 as would withstand the remedy of habeas corpus.^ 
 
 A county court is classed among inferior courts, and 
 though it has power given by statute to commit for a 
 contempt done in the face of the court, its power does 
 not extend to contempts committed elsewhere.^ And as 
 regards the ecclesiastical courts, the mode of procedure 
 is limited to this, that the judge must certify the contempt, 
 whether committed in the face of the court or not to the 
 Lord Chancellor, who thereupon issues a writ de contumace 
 capiendo to arrest the party.' 
 
 Comments on conduct of public officers. — While it is 
 open to any member of the public to comment either in 
 
 Bench, he was, on refusing to answer interrogatories, committed to 
 prison, where he was detained two years, still refusing during all 
 that time to submit to the jurisdiction of the court. At last the 
 Attorney-General moved for his discharge, on the ground that his 
 imprisonment had been of longer duration than he might have 
 Buffered if he had received judgment for the original ofEence. — 16 
 Pari. Deb. 469. 
 
 1 Cro. Eliz. 78 ; Kv Revell, 1 Str. 420 ; R. v Langley, 2 L. Raym. 
 1030. 2 R, „ Pocock, 2 Str. 1157 ; Ex p. Chapman, 4 A. & E. 778. 
 3 R. V Woltje, 2 Camp. 142. < Mayhew v Locke, 7 Taunt. 62 ; 
 
 R. V James, 5 B. & Aid. 894. ^ Howard v Gossett, 10 Q B. 452 • 
 
 See 2 Pat. Com. (Pars ) 212. » R. « Lefroy, L. R., 8 Q. B 134. 
 
 •7 2&3 Will. IV. c. 93, §1. 
 
CH. Yii.] COMMENTS ON PUBLIC MATTERS. 137 
 
 words or in print on the conduct of Parliament, of courts, 
 and all the high officers of state, it equally follows, that 
 every kind of public officer of inferior degree is also sub- 
 ject to a like treatment, whenever he fills some office 
 which is maintained at the public expense, or performs 
 duties which are essentially public even at his own ex- 
 pense, as for example justices of the peace and some officials 
 in Government offices. The clergy of the Church of 
 England in their mode of conducting public worship are 
 also in the performance of a public duty, for by virtue of 
 statutes the Church service is ordered and can be com- 
 pelled to be rendered for the benefit of the whole people 
 and not merely of the parishioners. And hence any com- 
 ments made in the public press or otherwise on the mode 
 of dispharging this duty may be made as freely, as is the case 
 with rfespect to other public officers performing their duty.' 
 At the same time the sermons of dissenting clergy, who are 
 under no public duty to deliver them, cannot be deemed 
 public in the same sense, though their chapels come under 
 the category of places to which the public are invited, and 
 so on another ground are fairly open to a like treatment. 
 The conduct of a parish priest in managing a charity 
 subscribed by a few of his parishioners may be in no sense 
 a public act, and does not lie open to public comment ; ^ 
 and yet those who manage an hospital for assisting poor 
 inhabitants fill a public situation.^ 
 
 Comments on private persons who challenge or invite 
 public notice. — J^ot only is the right of comment applic- 
 able to all kinds of public officials, high and low, but there 
 are also great numbers of private persons carrying on 
 businesses and pursuing occupations, who openly invite 
 and challenge this public comment. Thus persons selling 
 goods in shops, though usually avoiding publicity on a 
 large scale, sometimes go out of their way to attract 
 public notice by advertisements magnifying the value of 
 their wares. In one case a marine store dealer issued a 
 
 1 Kelly V Tinling, L. R., 1 Q. B. 699 ; Gathercole v Miall, 15 M. & 
 W. 319. It does not follow that all things done by a clergyman 
 are public acts, as, e.g., his acting as trustee in a private charity. — 
 Ibid. 
 
 ^ Gathercole v Miall, 15 M. & W. 319. * Cos v Feeny, 4 P. & 
 F. 13. 
 
138 LIBERTY OF PRESS AND SPEECH. [ch. vii. 
 
 handbiR, stating the prices he gave for kitchen stuff of 
 various kinds. A daily newspaper published an article 
 commenting on the handbill and treating it as of a nature 
 to encourage servants to rob their masters ; but there was 
 no imputation on the personal honesty or integrity of the 
 individual shopkeeper. This was held not only legitimate 
 but salutary criticism, not exceeding the Mmits of dis- 
 cussing such matters as challenge the attention of the 
 public; and the jury rightly found their verdict for the 
 defendant.' And where comments were made on a pub- 
 lished correspondence relative to the abuse of a parish 
 church by the incumbent allowing books to be sold during 
 divine service and a,llowing cooking operations in the 
 vestry room, this was deemed fair subject for reprehending 
 the incumbent's conduct.^ So it is with one who pre- 
 sents petitions to Parliament imputing disgraceful conduct 
 to public men ; ^ also those who as medical men advertise 
 a new mode of curing disease hitherto deemed incurable.* 
 The performances at theatres and their conformity with 
 advertisements may also fairly be criticised.^ When 
 the Queen's printer published reports made by the Ad- 
 miralty as to the merits of building turret ships for the 
 public service, this was also deemed pre-eminently a public 
 matter ; and though the plaintiff's plans had been repre- 
 sented as worthless, he had no right of action against 
 anybody.^ And where a public writer in commenting on 
 the conduct of a person, at a public meeting held to 
 promote the election of a member of Parliament, insinuated 
 that the plaintiff persisted in interrupting the meeting as 
 a headstrong supporter of an opponent, this was deemed 
 fair matter of public interest, for which no liability was 
 incurred.'' 
 
 Comments and criticisms of books, pictures, &c. — The 
 books published by authors, and which the public are in- 
 vited to buy, have always been treated as matters of public 
 interest ; and so are pictures offered on exhibition to the 
 public, or drawings of new architectural works. To allow 
 criticism tends to secure purity of taste and of morals, and 
 
 I Paris V Levy, 9 C. B., N. S. 362. "" Kellv v Tinling, L. R., 
 
 1 Q. B. 699. 3 WaaonvWalter, L. R.,4Q. B. 73. * Hunter 
 
 V Sharp, 4 F. & F. 983. 5 Dibdin v Swan, 1 Esp. 28. 6 Henwood 
 
 V Harrison, L. R., 7 U. P. 606. ^ Davis v Duncan, L. K., 9 0. P. 6U6. 
 
CH. vii.] CRITICISM OF BOOKS. 139 
 
 a higher standard of knowledge and competency in all 
 authors ; and therefore a free handling by critics is always 
 to be desired, and has a wholesome effect, by commending 
 good workmanship on the one hand, and chastising dunces 
 on the other hand for venturing to deal with matters for 
 which they are unfitted.' It is true that some judges 
 often draw the line at a point, where personal ridicule 
 is resorted to, and say that that is an abuse and cannot 
 be permitted ; but others think, that ridicule is only 
 another name for fair criticism, and much must depend 
 on the degree and on the surrounding circumstances. 
 As Lord Ellenborough, C. J. said, every person who pub- 
 lishes a book commits himself to the judgment of the 
 public; and any one may comment on his performance. 
 If the commentator does not step aside from the work 
 or introduce fiction for the purpose of condemnation, he 
 exercises a fair and legitimate right.^ In one case an 
 author of a book on travels was caricatured , in a drawing 
 as standing in a ridiculous attitude, bending under the 
 .weight of two copies, and with all his wardrobe tied up 
 in a pocket-handkerchief, and Lord Ellenborough ruled, 
 that this was not unfair ridicule- of the bad taste and 
 inanity of the author ; and if, as the author alleged, his 
 book had become unsalable and he had lost a publisher 
 for another forthcoming work of the same kind, this was 
 deemed merely damnum absque injurid — as an unavoidable 
 incident for which no legal remedy exists.^ No limit 
 can therefore be set to the contempt and ridicule, that 
 may be awarded ; it is only when the critic deviates from 
 his own stricft function, and seeks without any reasonable 
 cause to impute fraud, or immorality, or corruption, or 
 some base motive bordering on crime, that he becomes 
 amenable to an action of libel. And the more irrelevant 
 the charge, the more easy is it for a jury to infer an in- 
 tention to injure the author rather than a fair discharge 
 of his own special business.* Thus rival editors may 
 
 1 Tabart v Tipper, 1 Camp. 351 ; Carr v Hood, 1 Camp. 358 ; 
 Thompson v Shackell, 4 M. & M. 187 ; Soane v Knight, 1 M. & M. 
 76. 2 ff abart v Tipper, 1 Camp. 357. s Carr v Hood, 1 Camp. 
 
 358. ^ Ibid. Macleod v Wakley, 3 C. & P. 313 ; Strauss v Francis, 
 4 F. & F. 1113 ; Campbell v Spottiswoode, 3 B. & S. 769 ; Stuart v 
 LoveU, 2 Stark. 97. 
 
140 LIBERTY OF PRESS AND SPEECH. [ch. vii. 
 
 fairly comment on each other's performances, though one 
 may go to excess by inserting a warning to advertisers 
 as to the low circulation of the adversary. '■ So one editor 
 was held to exceed, by imputing to another editor of a 
 religious paper who advocated missionary enterprise, that 
 he was an impostor and was using fictitious names to draw 
 contributors to his newspaper and fiU his own pockets.^ 
 
 With regard to all these comments upon those who 
 are proper subjects of comment, it must be borne in mind 
 that the mere honest belief in the writer that he is doing a 
 just and spirited thing is no defence, and does not preclude 
 a remedy to the victim of his attack. An author's character 
 is more entitled to protection than the writer's display of 
 his perverted talent and reckless invective before the eyes 
 of anonymous readers.^ The reputation is a known, sub- 
 stantial, and clearly-defined property; the right of free 
 speech in such circumstances is somewhat shadowy at 
 best, and its effects are unknown and unascertainable. 
 And examples of this will appear in a subsequent chapter. 
 
 1 Heriot v Stuart, 1 Esp. 436. " Campbell v Spottiswoode, 
 
 3 B. & S. 769. 3 Wason v Walter, L. R., 4 Q. B. 96 ; Hunter 
 V Sharp, 4 F. & F. 10(i5 ; Campbell v Spottiswoode, 3 B. & S. 769. 
 
CH. VIII.] DEFAMATION. 141 
 
 CHAPTEE VIII. 
 
 ABUSE OF SPEECH AND WEITING BY DEFAMATION. 
 
 Libels on personal reputation. — In the preceding part 
 of this volume those rights of thought and speech have 
 been dealt with, which are enjoyed in their most positive 
 form, yet the exercise of which seldom affects individuals. 
 Those excesses only were considered, which had an effect on 
 the public generally, and on the Government which repre- 
 sents the public. Blasphemy, immorality, and sedition 
 touch only the highest representatives of order, such as the 
 Sovereign, the ministers, the Parliament, and the judges and 
 public officers and officials of lower degree. Those may 
 well be called public libels. Last of all, we now come to 
 examine more closely those excesses in the exercise of the 
 same free thought and speech, which involve collisions be- 
 tween man and man, and where the result is chiefly a 
 question between one individual and another individual. 
 These are properly called defamatory or personal libels. 
 
 The character or reputation which, as already explained,' 
 cannot fail to be acquired by each individual in the course 
 of life — which is often the fruit of sedulous care and long 
 self-restraint, and which is the means of power and often the 
 sole means of livelihood of the great majority of mankind — 
 is liable to be assailed by imputations which detract from 
 the weight and value of these good qualities. While the free 
 tongue and pen of others must have scope, these, neverthe- 
 less, may impute, either designedly or accidentally, either 
 maliciously or falsely, or even truly, something which has 
 an immediate evil effect on the reputation of another, and 
 
 1 See ante, p. 6. 
 
142 LIBERTY OF PRESS AND SPEECH. [en. viii. 
 
 thus is usually a gTound for some legal remedy. But it is 
 not every injury to reputation which can be redressed, any 
 more than every free speech which can be punished or 
 visited with damages. There are bounds descried on both 
 sides to the injury as well as to the redress. Free speech 
 has a large arena to discourse in, and character may suffer 
 much from the lighter attacks which no law can restrain 
 or vindicate. The shafts of ridicule and wit, the silent 
 sneer, the studied whisper, and the ready shrug may make 
 havoc of reputations, and yet there may be no redress. 
 Some things are too frivolous for the law to notice, too 
 transitory to be transfixed, too subtle to be detected, too 
 delicate for its coarse tests and processes. Nice distinctions 
 must be drawn, so as neither to silence indignation, censure, 
 or detraction where these are justifiable, nor to extinguish 
 reputation where there is no adequate advantage to be 
 gained and no other person's interest or happiness is 
 thereby enhanced. To comprehend all these occasions of 
 collision considerable detail is now necessary. 
 
 Difficulties in defining personal libel or slander. — 
 It has been already seen how difficult it was to define a 
 blasphemous, immoral, or seditious libel. The difference 
 between these and a defamatory libel or a libel on indivi- 
 duals is so great, that they can scarcely be classed together, 
 and the characteristics of the one cannot be compared with 
 those of the other, except that they both in some way qualify 
 the primary right of free speech. The same difficulty has 
 attended most of the attempts to define a defamatory libel, 
 and numerous varieties of phrase have been resorted to, but 
 without much success. Nearly the whole dijfficulty has 
 arisen from two words which tend to mislead, and which 
 are constantly used with little attention to precision or 
 logical sequence ; these are the words " malice " and 
 "privileged occasion or privileged communication." The 
 exception is often mistaken for the rule ; as, for example, by 
 starting with the assumption, that all libels are malicious 
 and actionable, except a few which are called privileged. 
 But this rather inverts the order of things, as a little con- 
 sideration will show. The great primary right of each is 
 to speak and write of all other persons, as his interest leads 
 him. It is self-evident, that the vast majority of mankind 
 go through the world without perpetrating either slander or 
 
CH. viii.] DEFAMATION. 143 
 
 . libel. They find a way of exercising their faculties to the 
 fullest extent, and filling all the situations of life creditably, 
 ■without committing either the one excess or the other. They 
 can express " of and concerning" their neighbours everything 
 useful or interesting to themselves and needful for their 
 occasions without coming into collision with these neigh- 
 bours, and for this reason, that most people instinctively 
 confine themselves to their own immediate business without 
 interfering with that of others ; and the secret of acquiring 
 this masterly evasion of all the points of collision is the 
 same in this department of the law as in most others. It 
 is only, after seeing that the reputation of third parties 
 suffers from the exercise of this primary right of free speech 
 that it becomes necessary to examine, whether at the moment 
 of the alleged slander or libel the person uttering it was in 
 the pursuit of such part of his own lawful business as the 
 law protects. If he was so employed, then the law says, 
 that this lawful business is to be allowed free course, re- 
 gardless of the effect upon another's character, the latter 
 result being in that case unavoidable, and therefore ex- 
 cusable. But if the libeller was not in the prosecution of 
 any such lawful or rational interest of his own,, then the • 
 reputation of the third person must be protected. It is 
 properly presumed in that case, that the libel was a mere 
 voluntary, reckless, studied attack, having for its object to 
 cause pain, and mischief, and loss of influence to his neigh- 
 bour, because by the law every man's property is to be 
 protected against all officious interference. Hence all the 
 law ranges round two great centres. One is to define, when 
 it can be said, that the alleged libeller is in pursuit of this 
 lawful business of his own, which is to be first of all pro- 
 tected, regardless of the effect on third parties. The other 
 centre is to define, what is the kind of attack upon another's 
 reputation which is to be punished or restrained at the ex- 
 pense of the attacking party. The former class of circum- 
 stances are somewhat unaptly called "the privileged oc- 
 casions," and the latter class of circumstances are called 
 the characteristics of libel in its effects on a third party's 
 reputation. As elsewhere stated, it would have been more 
 methodical to call the former " excusable libels," and 
 the latter the restrictions on the freedom of comment 
 on our neighbours. But it matters little which words 
 
144 LIBERTY OP PEESS AND SPEECH. [oh. viir. 
 
 are used, if they are used with something approaching to 
 precision. 
 
 2 he definition of libel and slander of individuals. 
 -r-Slander is usually confined to words spoken, while libel 
 is applied to words written or printed, or some picture or 
 sign of a durable kind. A libel has been defined to be " a 
 malicious defamation expressed either in printing or writing, 
 or by signs, pictures, &c., tending either to blacken the 
 memory of one who is dead, or the reputation of one who 
 is alive, and thereby exposing him to public hatred, con- 
 tempt, and ridicule." ^ This is the definition usually em- 
 ployed, and particularly the last words, which describe the 
 effects of the attack on reputation which the law will 
 punish. But having regard to what has been already ex- 
 plained, a more orderly definition of defamation seems to be 
 this, " An attack made upon another's reputation by one who 
 is not at the time engaged in any business of his own which 
 the law protects." In order to comprehend this, it is only 
 necessary to explain, what is meant by an attack on another's 
 reputation and the medium by which it is done, and 
 secondly, what is that lawful business of one's own, which 
 the law protects. When these two phrases have been 
 enlarged upon, the constituent elements of defamatory libel 
 are known.^ 
 
 Distinction between sla/nder and libel. — But before 
 proceeding further it is well to state more clearly the dis- 
 tinction between slander and libel, which both agree in 
 this, that each involves a wrong, or an attack on the charac- 
 ter and reputation of another. Although each wrong works 
 its evil effect by producing in the minds of third parties a 
 reduced estimate of the worth and value of the character 
 assailed, yet different considerations at once arise according 
 as the medium of attack is speech or writing ; and writing 
 is used to include printing. The Eomans marked the dis- 
 tinction also, calling slander injuria verbalis, and libel 
 
 1 Dig. L. Lib. 1. 
 
 2 The following definitions may be added. " A libel is a contumely 
 or reproach published to the defamation of a private person." — ■ 
 Com. Dig. " A publication injurious to private character or credit of 
 another." — Addison on Torts. Numerous miscellaneous definitions 
 are collected in Tovmshend on Libel and Blander, and in Morgan's 
 Laws of Literature. 
 
CH. VIII.] SLANDER AND LTBEL. 145. 
 
 libellus famosus, though as printing was then unknown, 
 the distinction was far less notable and emphatic than it 
 is with us. This distinction, more or less fundamental, is 
 founded on tlie degree of publicity which the slander 
 acquires, for the law naturally and properly attributes 
 greater importance to it, according to the extent of the 
 mischief which is presumably done. If a slander against 
 A is uttered to A, and there is no bystander but one, the 
 worst that can happen is that A's character will be gone 
 or will suffer eclipse in the estimation of that one by- 
 stander. But if the same slander is uttered in presence 
 of a hundred bystanders, or a thousand, or if it is put in 
 writing, and then through the medium of a newspaper 
 or pamphlet, thereby reach thousands of minds, one can 
 see at a glance, how greatly the mischief is intensified in 
 the latter cases. This is a distinction which is real and not 
 nominal, and requires different treatment to be dealt out 
 to spoken and written slander, and different remedies and 
 punishments assigned. And hence not a few writers have 
 wondered, that this difference should exist, and especially 
 that it should depend as they have thought only on the 
 circumstance, that the defamation in one case is spoken, 
 and in the other case is committed to writing. The real 
 distinction does not turn on the mere act of speaking or 
 writing, but on the •circumstance whether the vehicle of 
 slander is such as will naturally or probably carry the 
 slander farther. Words, as Holt, 0. J., said, were transient, 
 and vanished in the air as soon as spoken, and there can be 
 no terror of them.^ It is because spoken slander is usually 
 confined only to a few bystanders, and written slander 
 reaches a wider and illimitable circle, that the law has 
 drawn this well-settled distinction between spoken and 
 written defamation, and which runs through a variety of 
 details, as will be afterwards seen. The distinction is not 
 in all cases sound and just, for a slander may be spoken to 
 an audience of a thousand, and a written slander may 
 reach only a select circle of two, or ten, or one hundred. 
 This is only one of many illustrations of the law, for the 
 sake of its more easy application, laying down and adhering 
 to a rough and ready test rather than wasting time over 
 
 1 3 Salk. 225. 
 
140 LIBERTY OF PRESS AND SPEECH. [ch. viii. 
 
 the minutiae of injustice, inasmuch as it is more easy to 
 prove whether a matter is spoken or written than whether 
 it reaches ten or ten thousand listeners. This is the sole 
 reason why the distinction is, upon the whole, just and 
 unassailable, and at all events more easily applied than 
 any other distinction that can be suggested. And more- 
 over, as a jury is always intrusted with the ultimate 
 assessment of damages, the theoretical inequalities are 
 easily adjusted by its own inherent power of adaptation to 
 ever-varying details. 
 
 Practical effect of distinction between sj,a/nder a/nd 
 libel. — This distinction between spoken and written 
 defamation has puzzled many and has even called forth 
 censure from some who have overlooked both the source 
 and the reason of the distinction. Mansfield, C. J., after 
 prominently noticing the distinction and asserting that the 
 spoken word was often more malignant and widespread 
 in its efi'ects than the written word, would gladly have 
 abolished and repudiated any distinction between them, 
 either in the remedy or the punishment, but, as Hale and 
 Holt and Hardwicke had adopted and endorsed the dis- 
 tinction, it was too late for him to interfere.^ And he 
 observed, that the tendency of the words to provoke a 
 breach of the peace or the degree of malignity involved 
 has nothing to do with the question. And other judges 
 have from time to time reverted to it as an old and stubborn 
 anomaly, but without tracing its origin with sufficient 
 closeness.^ The chief distiuctions that result from slander 
 or spoken words, and libel or written and printed words, are, 
 first, that spoken words will sometimes not be actionable, 
 while the same words written or printed wiU be so ; but 
 if the same spoken words are followed by special damage, 
 
 1 Thorley v Kerry, 4 Taunt. 304. 
 
 2 Per Best, C. J., Tuam v Robeson, 5 Bing. 21. "Words are 
 transient and fleeting as the wind, the poison they scatter is, at the 
 worst, confined to the narrow circle of a few hearers. They are 
 frequently the effect of a sudden transport, easily misunderstood, 
 and often misreported." — Bolt, C. J., 3 Salk. 226; Foster, Cr. L. 
 In one case the plaintiff wrote of a peer, that he " under the cloak 
 of religious reform hypocritically, and with the grossest impurity, 
 dealt out malice and falsehoods." Though if spoken those words 
 would not be actionable, yet when written they were held to be so. 
 — Thorley v Kerry, 4 Taunt. 364. 
 
CH. vni.} ■ SLANDEEING AND SaOLDING. 147 
 
 then they will he as much actionable as if they had 
 been written, and the effect will be the same. Another 
 distinction is, that though in case of public libels an 
 indictment lies when spoken words are blasphemous 
 seditious or treasonable, including in the latter category 
 such as amount to contempt of court or Parliament,^ yet 
 when spoken words are defamatory only of personal 
 character, they are not indictable, it being conceived that 
 an action for the damage done is remedy sufficient, whereas 
 if the words be written or printed, there is a criminajl 
 remedy also either by information or indictment. In all 
 other respects slander and libel are practically one and the 
 same cause of action. 
 
 Distinction between slcmdering and scolding. — 
 Another distinction may here be noticed arising out of the 
 last. To slander an individual is to make a definite attack 
 upon reputation in such a way that some legal,remedy is 
 available by action at the suit of the individual injured. 
 But where no such definite attack can be discerned at any 
 one point, and yet abuse upon abuse is heaped on a person, 
 which neither singly nor collectively amount to an action- 
 able wrong, this is called more properly railing or scolding 
 than slandering. It is a species of indeterminate slander 
 carried on with mechanical vehemence, and explodes in the 
 air with sound and fury, rather than causes any appreciable 
 injury to the individual aimed at. And yet this noise, 
 which constantly threatens and only sometimes reaches 
 the point of slander, is deemed by the law a nuisance, and 
 so punishable in another form. Scolding is an indictable 
 offence.^ It is peculiarly a female's offence, and the 
 common law punishment was ducking, or, as Coke ex- 
 plained, the female was put in a cucking-stool and soused 
 in water.' In one case in 1705 the scold after conviction 
 wanted to argue her writ of error in person, and Holt, C. J., 
 gave her time to do so, for he added, that " perhaps duck- 
 ing would rather harden than cure her, and if she 
 were once ducked she would scold on aU the days of her 
 life."* She afterwards succeeded in setting aside the 
 judgment on the ground, that she had been called rixa and 
 not rixatrix, that is to say, she had been called, in bad 
 
 1 R. V Langley, Gas. t. Holt, 654. 2 R. v Foxby, 6 Mod. 145 ; 
 
 1 T. R. 748. 3 3 Inst. 219. " 6 Mod. 213. 
 
 L 2 
 
148 LIBERTY OF PEESS AND SPEECH. (en. viii. 
 
 Latin, the wrong word fol' female." The indictment soon 
 afterwards was expressed in English, and the same error 
 was thus not likely again to occur.^ Another flaw in that 
 indictment was said to be, that it ought to have been 
 alleged, that her scolding was a common nuisance to the 
 neighbours, for " that all scolding was not indictable, but 
 only such as was intolerable to neighbours." Scolding of 
 this last kind is thus indictable as a nuisance, but not 
 actionable like a slander.^ 
 
 Threat to publish a libel. — In the exercise of free- 
 dom of speech, not only is a libel published, but some- 
 times the tendency stops short at the preliminary threat. 
 This is often a mere form of speech, and amounts to 
 nothing which courts can take notice of, for the law 
 usually deals only with the overt acts, and with accom- 
 plished facts. Though therefore an intention or even 
 threat to publish some libel is not punishable, yet in one 
 form it is so, namely, where the object is to extort money 
 or some equivalent This was expressly declared in 1843 
 to be a criminal offence, being equivalent to a threat of 
 violence to the person, or an attempt to break the peace. 
 Accordingly, whoever threatens to publish or proposes to 
 abstain from publishing-something touching a person, with 
 intent to extort money or valuable thing from such person, 
 or with intent to procure some appointment or office of 
 trust, commits a misdemeanour.* In order to commit this 
 offence, it is not necessary that the thing to be or not to be 
 published should be actually defamatory. It may be some- 
 thing indifferent. It is enough that it have such an effect 
 on the mind of the person as to induce money to be paid, 
 or an office given. 
 
 ^ Libel viewed as constructive breach of peace. — An- 
 other peculiarity which once distinguished libel was, that 
 it was said to be punishable by a criminal remedy, because 
 
 1 6 Mod. 239. 2 L. Eaym. 1094. 
 
 3 A historian relates, that a scold was soused in the Thames by- 
 sentence of some court in 1745, from Kingston Bridge, in presence 
 of 2,000 people. — 1 Lyson's Environs of Land. 283. The offence 
 remains, and this form of punishment has not been expressly re- 
 pealed; yet future scolds -will probably satisfy any court, that the 
 cuoking-stool is now illegal for various reasons. 
 
 * 6 & 7 Vic. c. 96, § 4. Imprisonment for three years with hard 
 ■ labour. 
 
CH. VIII.] MALICE IN LIBELS. 149 
 
 it tended to provoke a breach of the peace, and it was on 
 this ground, that for a long time the courts so liberally and 
 indiscriminately allowed, and indeed compelled, a libeller 
 to enter into recognisances to keep the peace.^ And ap- 
 parently the same assumption will be seen to have led the 
 j udges, before Fox's Act corrected it, into the anomaly of 
 holding the guilt of libel an inference of law and not of 
 fact. This mode of viewing libel was founded on the 
 assumption, that libels were more than other wrongs, or 
 indeed more than many breaches of contract, equivalent 
 to a breach of the peace. In a rude state of society all 
 things that are now illegal acts and give rise to actions 
 more or less tempted to a breach of the peace. The man 
 who could not get his money from an evasive debtor would 
 strike a blow as readily and with as much propriety as he 
 who had been accused of theft would strike his accuser. 
 This notion, that the tendency of a libel to cause a breach 
 of the peace is greater than the tendency of other wrong- 
 ful acts, or even of a spoken slander, is obviously founded 
 on misapprehension, and is no longer tenable.^ 
 
 How far malice, is an ingredient in libels. — The word 
 malice is constantly resorted to in dealing with libels. As 
 in the crime of murder malice is said to be an essential 
 ingredient, and must be inferred from the circumstances 
 and the conduct of the accused, so it is said, in the wrong 
 of libel, malice is deemed an ingredient, and even in the 
 face of facts which tend to prove an honest belief in the 
 truth of what is stated, the law will imply this malicious 
 ingredient from the nature of the wrong actually done. 
 In short, as libels consist of words, and words have certain 
 definite meanings known and read of all men, it is not so 
 much what the person who used the words did in the 
 secrecy of his own mind intend, as what those words when 
 told to third parties will naturally mean, that the essence 
 of the wrong consists. Certain reports will ruin a third 
 person's character equally, whether used with the purest 
 and almost benevolent wishes, or the most malicious and. 
 revengeful intentions. But in spite of the absence of any 
 intention to injure, if words be used which in their 
 natural meaning are libellous, and are damaging to private 
 
 1 See 1 Pat. Com. (Pers.) 191. 
 
 ^ See further as to this, post, " Remedy by Indictment." 
 
150 LIBEETY OF PRESS AND SPEECH. [ch. viii. 
 
 reputation, then the malice •will he implied ; for it is the 
 business of all men so to act and so to speak, that the 
 character and reputation of others, and which are the same 
 as property, and a valuable possession, should not be 
 wantonly, carelessly, or even inadvertently assailed. When 
 the libel is uttered, not in the course of any honest and 
 lawful business, which it will be seen the law protects, but 
 without adequate cause or ground of self-defence, and by 
 the person going as it were out of his way to say it, then 
 malice is necessarily implied, and the cause of action is 
 sufficiently established. Thus it may be said, that libel in 
 fact is libel in law, whatever be the motive avowed or 
 concealed, for the damage to the plaintiff is the real cause 
 of action.^ And so entirely is it irrelevant in the ordinary 
 action for libel, what was the motive or intention of the 
 defendant, that a judge who told a jury to consider, 
 whether the defendant intended to injure the plaintiff, was 
 held to have misdirected them, it being necessarily pre- 
 sumed, that every man intends the natural and ordinary 
 consequences of his own act; and if a third party is 
 injured, it cannot matter to him, whether malice existed in 
 the wrongdoer or not. ^ 
 
 The inquiry into the existence of malice is only material, 
 or rather is a short mode of expression in those somewhat 
 
 1 Bromage v Prosser, 4 B. & C. 255. " Malice, in its legal accepta- 
 tion, means not personal spite, but conscious violation of the law, 
 taken along with the maxim, that every one must be taken to intend 
 the necessary consequence of his deliberate acts." — L. Campbell, 
 Ferguson v Kinnoul, 9 CI. & F. 321. 
 
 " Everything written or printed which reflects on the character of 
 another, and is published without lawful justification or excuse, is a 
 libel, whatever the intention may have been." — Parke, B., O'Brien v 
 Clement, 15 M. & W. 437. 
 
 " An act unlawful in itself and injurious to another is considered, 
 both in law and reason, to be done malo animo toward the person 
 injured, and this is all that is meant by a charge of malice in a 
 declaration, which is introduced rather to exclude the supposition 
 that the publication may have been made on some innocent occasion 
 than for any other purpose." — Duncan v Thwaites, 3 B. d; C. 556. 
 
 LoBD Mansfield told a jury that it was not necessary to prove 
 •an actual intent, which is the private operation of a man's mind, 
 but they were to exercise their judgment from the nature of the act 
 as to the intent with which it was done. — B. v Tooke, 20 St. Tr. 762. 
 
 2 Haire v Wilson, 9 B. & C. 643 ; Fisher v Clement, 10 B. & 
 C. 472, 
 
CH. 7III,] CONSTRUCTION OP LIBELS. 151 
 
 ambiguous cases where the person uttering the libel was 
 honestly acting in self-defence or in furtherance or protec- 
 tion of his lawful rights, and these two rights clash — the 
 right of the libelled person to have his character and repu- 
 tation intact, and the right of the libeller to speak his 
 mind if he is thereby pursuing his lawful business in the 
 way which he thinks best fitted to promote his own in- 
 terest. This class of cases are often indiscriminately classed 
 under the head of privileged communications, though they 
 would more properly, following by analogy the distinctions 
 in manslaughter, be called excusable libels. 
 
 Construction of the libel or slander. — Another im- 
 portant matter with regard to all libels and slanders is the 
 construction to be given to the words. The rule is, that 
 it is for the jury to consider, whether injury to character is 
 the necessary consequence of the whole libel taken as one 
 document. They are to construe the libel, for this purpose, 
 and to see, whether the effect of one part is not neutralised 
 by another part; for if so, the bane and antidote must be 
 taken together, and the result may be no libel at all.^ Or 
 as Coke said, a man's words are not to be taken by parcels.^ 
 "When the libellous words are ambiguous, as they often 
 are, it was once thought to be the duty of courts to construe 
 them in the most favourable sense to the person using 
 them. But that view has long been repudiated, and now 
 there is only one just way of construing language, whether 
 libellous or not libellous, namely, in the sense which it 
 naturally bears; in other words, in the sense which the 
 majority of people hearing or reading the language would 
 attribute to it.* As Lord Mansfield, C. J., said, " Where 
 words from their general import appear to have been 
 spoken with a view to defame a party, the court ought not 
 to be industrious in putting a construction upon them 
 
 I Chalmers « Payne, 2 C. M. & R. 156. 2 4 Rep. 18. 
 
 8 Harrison » Thornborough, 10 Mod. 197 ; Roberts v Camden, 9 
 East, 96 ; Hawkinson v Bilby, 16 M. & W. 442. Lord Haedwicke 
 snid, that in earlier times judges used their utmost endeavour to 
 explain away opprobrious words, but that this was wrong, for the 
 characters of men had the same claim on the protection of the law 
 as their estates, and the sole question was, in each case, what the 
 words meant. — Carpenter v Tarrant, Cas. t. Hardw. i339. 
 
152 LIBERTY OF PRESS AND SPEECH. [oh. viir. 
 
 different from what they bear in the common acceptation 
 and meaning of them." ' 
 
 The mediwm of the libellous act. — The medium by 
 which the libellous act is committed is not confined to any 
 one description of writing, printing, painting, gesture, or 
 pantomime ; all depends on the efTect produced by the 
 instrument or ipedium used on the public or the bystanders. 
 The language may be ironical or metaphorical ; ^ as, for ex- 
 ample, to call one " an honest lawyer." ^ Hence it is idle to 
 set up as a defence that the words were misspelled ; * or were 
 in the form of a question put to third parties ; ^ or that the 
 defendants were only singing a song in front of a father's 
 house (imputing dishonesty and immorality to two of his 
 children) ; ^ or that no individual was named, though a class 
 was described (under which that individual was understood 
 by everybody to be included), such as "some of the Irish 
 factories "; '' or that the initial letter only was printed ; * or 
 that it was only a fancy picture of " Beauty and the Beast " 
 (though the figures resembled a well-known man of fash- 
 ion and his wife).* And the libellous act may consist in 
 mere gestures or condxict ; as fixing a gallows before a 
 man's door Or somewhere near, which Coke said was an 
 example of libel by signs.^" Holt, C. J., held that painting 
 a man playing at cudgels with his wife was a libel •}'^ and 
 so was putting up and burning a certain lamp at another's 
 door, like that commonly used before disorderly houses ; ^^ 
 
 1 Peake v Oldham, Cowp. 275. "" Hob. 215; 11 Mod. 86; 
 
 Hoare v Silverlock, 12 Q. B. 624 ; Fisher v Clement, 10 B. & C. 472. 
 ' Boydell v Jobes, 4 M. & W. 446. * B. « Edgar, 2 Sess. C. 29. 
 
 ^ Gatheroole's Case, 2 Lew. C. 0. 255. " E. v Benfield, 2 Burr. 
 
 984. ^ Le Fanu v Malcolmson, 1 H. L. C. 664. s Read v 
 
 Huggonson, 2 Atk. 470. 
 
 ' DuBost « Beresford, 2 Camp., 511. In one case Parson Prick 
 in his sermon told a story out of Foxe's Martyrology, that one Green- 
 wood, a justice and great persecutor, had great plagues inflicted on 
 him and was killed, by the hand of God. But it turned out that 
 Greenwood was present listening to the sermon, and sued for 
 damages. Weat, C. J., however, told the jury, it was only delivered 
 as a story with no intention to injure, and judgment was entered for 
 defendant '; and Popham said it was good law, and Coke also quoted 
 the case as sound sense. — Oro. Jos., 91. 
 
 1° 5 Rep. 125. " 11 Mod'. 99. 12 JefEries v Duncombo, 
 
 11 East, 226. 
 
CH. VIII.] LIBELLING CLASSES OF PERSONS. 153 
 
 also carrying a man about dressed with horns and bowing 
 at plaintiff's door.' 
 
 Libelling classes of persons, corporations, and firms. 
 — Holt, C. J., said that a libel that points at nobody 
 is like a shot at random, that seldom does any mis- 
 chief.^ A defamatory libel is necessarily personal, yet it 
 may be aimed ostensibly at individuals united in part- 
 nership, or described under the more general name of a 
 class of persons. It is true that some descriptions are too 
 wide to amount to libel, as where " men of the gown " are 
 abused.^ But it is libellous to describe persons spoken 
 of, though no more definitely than as partners of a firm ;* 
 or a society which manages a nunnery.^ A chairman of a 
 life assurance company was held entitled to sue on behalf 
 of the shareholders of the company for a libel importing 
 that their policies were insecure.® And a shareholder in a 
 company is not so identified with his fellow-shareholders, 
 that he may not be sued for libelling the company to which 
 they both belong.'^ ' And on the other hand the managers 
 of a company or voluntary society may so act as to make 
 the company or society liable for libels issued under their 
 authority, as where a telegraph company publish a telegram 
 that a bank has stopped payment.* The court on one 
 occasion granted a criminal information for a libel on " the 
 clergy residing in and near the city of Durham," and the 
 verdict of guilty was in the same terms ; though the point 
 .was raised afterwards, but never decided, whether this was 
 not too vague and general a description of the persons 
 libelled.' And in a case where the libel was on " the Portu- 
 guese Jews," accusing them of burning a bastard child, the 
 court granted a rule for a criminal information.^" And in a 
 
 1 Bolton v Deane, 2 Show., 314. But riding Skimmington, a mode 
 of insinuating that'a man's wife had beaten him, and though injuring 
 the plaintiff (a hackney coachman) in his business,waa held not action- 
 able. — Mason v Jennings, T. Raym., 401. It was said that the 
 Greeks had no punishment for defamation by words and gestures, 
 for it was pusillanimity not to resent it on the spot. — Hobbes' Leuiath., 
 c. 27. See Diog. Laert. Anach. 
 
 2 E. V Tutchin 14 St. Tr. 1118.' ' Shower, 314 ; 3 Salk. 224. 
 * Haythorn v Lawson, 3 C. & P. 196 ; Le Fanu v Malcolmson, 1 H. 
 L. C. 637. 6 B. V Gathercole, 2 Lewin, C. 237. 6 Williams v 
 Beaumont, 10 Bing.. 260. '' Metropolitan Co. « Hawkins, 4 H. & 
 N. 87. 8 Whitfield v S. B. R. Co., E. B. & E. 115. " Brougham's 
 Speeches. ^° Osborne, 2 Barn. 138. 
 
154 LIBERTY OF PRESS AND SPEECH. [ch. viir. 
 
 case where the management of " some of the Irish fac- 
 tories " was attacked as "practising great cruelties," the 
 owner of one of these was held entitled to sue as being 
 included in those aimed at.' So where a newspaper article 
 charged libellous acts specially against, but without naming 
 " an aide-de-camp of the governor of a colony," and there 
 were eight of them, it was held, that the libel affected each 
 and all those eight.^ 
 
 On the other hand, if the jury are satisfied, that the im- 
 putations were impersonal, and were aimed rather at a gene- 
 ral source of mischief, the plaintiff will fail ; as where a 
 person declared the tanks for supplying water to ships at St. 
 Helena contained water unfit to drink, and an owner of a 
 ship trading to that place was held to be not involved per- 
 sonally, and not entitled to sue.^ And where a newspaper 
 writer, writing about an arehseologieal meeting, cautioned 
 all antiquaries against the figures sold as " pilgrim's signs," 
 which were said to be of recent publication and a gross 
 attempt at extortion — but not mentioning any names — the 
 plaintiff, who dealt in such articles, was held not to be 
 entitled to sue, for nothing was pointed at him specially.* 
 
 Libels on the dead. — The injury to character or repu- 
 tation contained in a defamatory libel, necessarily means 
 an injury to the reputation of a living person, who is in a 
 position to suffer and to vindicate his claim to redress by 
 action or indictment ; for if there is nobody to claim redress, 
 then no injury can be done, and no rights and no wrongs 
 can exist. History is said to swarm with libels on the 
 dead and the living. Nevertheless, that expression is 
 sometimes used in the law as if the same kind of injury 
 were possible towards the dead as towards the living, and 
 as if the former were not yet beyond the reach of detrac- 
 tion and could still cry aloud for redress. This was never 
 more than a figure of speech indicating that sometimes the 
 relatives of a person recently dead were treated as identi- 
 fied with their predecessor, and as if the inanimate clay 
 could be deemed on such occasions to glow with anger, 
 pride, or revenge.^ By the Eoman law the heir was bound 
 
 1 Le Fanu v Malcolrason, 1 H. L. C. 637. 2 R. v Hatchard, 
 
 32 St. Tr. 752. ^ Solomon v Lawson, 8 Q. B. 823. ■• Eastwood 
 V Holmes, 1 F. & F. 347. 
 
 5 The ancient Egyptians surpassed all natibns inthe liberal manner 
 
QH., Yin.] LTBEr.S ON THE DEAD. 155 
 
 to protect the good name of the deceased, and any insult 
 offered to the dead body was deemed offered to himself, and 
 a good cause of action.^ Hence, when a father's statue was 
 struck with a stone, this was an injury to the son and heir, 
 and could be redressed by action.^ Our law has never gone 
 so far as to give damages, and yet there are traces of the 
 same right and the same wrong. The ancient notion 
 seemed to be, that such libels were so irritating to the 
 surviving family, that they stirred them to a breach of the 
 peace, and so there was a good ground for indictment at 
 common law. Coke several times repeats it as if he had 
 discovered an excellent reason for punishing libels on dead 
 magistrates ; this reason was, that these were " reflections 
 on the Government, and the Government never dies." * And 
 he says, that the Star Chamber punished such an offence, 
 as, for example, the case of the dead Archbishop Whitgift 
 being slandered.* In one case, in 1791, a newspaper writer 
 published a notice of the recent death of Earl Gowper, 
 adding that he had been addicted to unmanly vices and 
 debaucheries ; and though on trial of an indictment the 
 jury found the defendant guilty, still judgment was aiTested 
 because it had not been alleged, that the libel tended to stir 
 up the family of the deceased to a breach of the peace. 
 As L. Kenyon, C. J., remarked, it was preposterous to hold, 
 that at no time can the conduct of a dead man be can- 
 vassed, or the conduct of bad men contrasted with that 
 of good men. Therefore, the tendency to provoke a breach 
 
 in which they disposed of this difficulty ; for after the death of a 
 person, a tribunal of forty judges sat in solemn inquest to try his 
 character for good and evil, and cast up the balance. If upon the 
 whole the accusations were not proved, then his body was allowed 
 to be buried ; but if the verdict was against him the corpse was 
 refused burial, and was kept as a chattel, remaining in the house .of 
 his descendants till the judgment could be reversed. — Diod. i. 92 ; 
 Herod, b. ii. ; .1 Kenricli^s Egypt, 500; 2 Ihid. 59. Solon was thought 
 to make a, just law, that no man should be allowed to speak ill of the 
 dead. — Plut. Sol. 
 
 1 mg. 47, 10, 27 ; Gaius, Inst. iii. § 221, 2 Dig. 47, 10, 27, 
 
 s Wraynham's Case, 2 St. Tr. 1076. 
 
 * 2 St. Tr. 1074. The Star Chamber's view of this matter was 
 put thus : " As a scandal to' him that is dead in the public service, it 
 hath been adjudged, that- words of imputation against a great judge 
 after his death should not be examined, lest the public justice mig-ht 
 receive prejudice when he is gone, that should make it appear to be 
 
156 LIBERTY OF PRESS AND SPEECH. [oh. viii. 
 
 of the peace was an essential ingredient of this offence.' 
 In another case about the same time a Knight of the Bath 
 had died, and the newspaper said of him, that he " had 
 changed his principles for a red ribbon, and voted for that 
 pernicious project, the excise, and had acted corruptly." 
 It was alleged in the criminal information, and the court 
 allowed it, that all this was said, in order to stir up the 
 hatred of the subjects against the family of the deceased.^ 
 
 The law therefore may still be said to treat it as an 
 indictable offence to write of the dead what will stir the 
 living descendants to a breach of the peace. But the 
 court would no doubt confine the remedy to descendants, 
 and would require to see, that the words are such that 
 no person of reasonable sense and firmness could well re- 
 strain himself in the circumstances — conditions not usually 
 easy of fulfilment in modern times, when ample means of 
 vindication and defence exist by publication or otherwise.* 
 
 WJmt hind of publication Tiecessary for slander and 
 liiel.— The essence of slander and libel consists in this, 
 that the character of one person is injured in the estima- 
 tion of "some third person other than the slanderer, and 
 hence the presence of a third person or some communi- 
 cation to a third person is essential to the offence. If 
 two persons sit in private, and one uses towards the other 
 the strongest of language, there is no legal wrong done, 
 and the person wronged is at most angered, and yet 
 his reputation in his own eye is left without a stain^ 
 because it is still in his own keeping. It is only when 
 some third person is introduced, who is capable of acting 
 on the slander and communicating his feeling to others, 
 
 false and scandalous, ■which was the judges' opinion in Stroud's 
 case." — Hudson's Star Ch. c. 11, 
 
 1 R. V Topham, 4 T. R. 129. 2 Ibid. 
 f^ As to excuses for breach of the peace generally, see 1 Pat. Com. 
 (Pers. ) 189. A like danger which beset the dead from the perils of 
 biographers and publishers induced Parliament to take some step 
 in self-defence. In 7 Geo. I. the House of Lords, on the occa- 
 sion of Curll advertising a life of the Duke of Buckingham, went 
 the length of making an order that it was a breach of privilege to 
 write the life of a deceased peer.— 82 Pari. Deb. (3)446, 1134. This 
 order of the House was in full force till Lord Campbell, C. J., with 
 an eye to his own protection, prevailed on the House to rescind it. 
 Curll the publisher, by his unscrupulous and hasty biographies of 
 illustrious men, was said by Arbuthnot to add a new terror to death. 
 
CH. viii.] PUBLICATION OF THE LIBEL. 157 
 
 that the origin of the action or of the crime begins. And 
 there is no material difference in this case between spoken 
 and written or printed words, for both must reach a third 
 person. If it were held otherwise, a man would be pun- 
 ished for his thoughts, and not for his overt acts. The 
 law however cares nothing for the secrets of the mind, so 
 long as they bear no outward fruit in the conduct. Much 
 therefore depends on what is the kind of publication used 
 in each case.' It is true that the publication required in 
 a letter which provokes a breach of the peace is suf&cient, 
 if the letter is sent to the party intended, though nobody 
 else knew of it.^ The reason in that case has been sug- 
 gested to be, that the person becomes so uneasy, that he 
 cannot help showing it to others, and so it becomes 
 published in effect. But the great majority of libels 
 have little to do with provoking a breach of the peace, 
 any more than other illegal acts. A common mode of 
 circulating libels in the time of Henry VIII., before 
 printing became a settled occupation, was to scatter the 
 written or printed leaves amid crowds and processions 
 on public occasions.^ And Coke says the duty of persons 
 who found these things was to deliver them to the 
 magistrate.* When therefore a libel about A is sent direct 
 to A alone, it is not published, and so is not actionable.* 
 Yet if the libellous letter, though addressed to A, would in 
 ordinary course be opened by A's clerk or servant, and if it 
 is so opened, and this practice was known to L, the libeller 
 who sent it, this is some evidence of publication by L.* 
 And if a libel is sent to A's wife about A, this is also 
 a sufficient publication, for a third party has been reached.' 
 Whether publication is per se the crime of libel. — 
 It was laid down by the Star Chamber, that every one 
 
 . 1 " The noble, dignified, and humane policy of the law soars above 
 the little irregularities of our lives, and disdains to enter our closets 
 without a warrant founded upon complaint. Constructed by man to 
 regulate human infirmities, and not by God to guard the purity of 
 angels, it leaves to us our thoughts, our opinions, and our conversa- 
 tions, and punishes only overt acts of contempt and disobedience to 
 her authority." — Ersh. Speeches. 
 
 2 R. V Wegener, 2 Stark. 245. . 3 Daroy v Markham, Hob. ]20 
 Cro. Ch. 121. * Haliwood's Case, 6 Co. 125. * Phillips v 
 
 Jansen, 1 ,Esp. 625. ^ Delacroix v Thevenot, 2 Stark. 63. 
 
 ^ Wenman v Ash, 1.3 C. B. -842. 
 
158 LIBERTY OF PRESS AND SPEECH. [ch. viii. 
 
 who shall be convicted ought to be a contriver of the 
 libel, or a procurer of the contriving of it, or a malicious 
 publisher of it, knowing it to be a libel. If he writes a 
 copy of it and does not publish it to others, or if he hears, 
 or reads, or laughs, at it, this is said by Coke to be no publi- 
 cation of it.' Holt, C. J., seemed to go the length of holding, 
 that the mere committing of libellous words to writing was 
 per se the offence, and hence he held, that if a jury found 
 the fact of writing or even copying libellous words, this was 
 equivalent to a verdict of guilty.^ Thus the judge said, 
 " The mere having of such writings in his custody is highly 
 criminal, for notwithstanding he might design to keep 
 them private, they might after his death fall into such 
 hands as might be injurious to Government." And hence 
 the collecting and transcribing of libels for the purpose of 
 publishing them' was deemed criminal, though no publica- 
 tion should ever take place, since men ought not to have 
 such evil instruments in their keeping. In one case it 
 was proved, that the defendant, a clergyman, wrote down 
 a libel against King William and Mary, while a person 
 unknown dictated the words to him, and so the clergyman 
 acted only as penman. And the court decided, that this 
 differed from the case of an amanuensis — that the real 
 author did not make the libel, because he did not write it ; 
 and that unless this clergyman could be punished, then no- 
 body could. So the clergyman was held guilty of writing 
 and publishing.^ In 1792, when the judges' opinions were 
 asked at the time of Fox's Bill being considered, ten judges 
 treated the crime as practically consisting in the mechanical 
 act of publication of the libel. And on the point being again 
 solemnly argued in Sir F. Burdett's case in 1820, the court 
 held an intermediate opinion, namely, that when a man puts 
 his libellous letter into the post, this is equivalent to pub- 
 lication, for it is the first and irreversible step of the 
 mechanical process.* 
 Mode of proving publication of libd. — While more 
 
 1 Lamb's case, 9 Co., 59 b. Hudson differs from Coke, and says 
 the Star ChambeK used to hold it settled, that to hear a libel sung or 
 read, and to laugh at it and make merriment with it, was a publication 
 in law. — Hudson'' s Star Ch., c. 11. 
 
 2 R. vBeare, 12 Mod. 221 ; 2 Salk. 419 ; 1 L. Raym. 414. 3 R v 
 Paine, Carth. 405. ^ R. v Burdett, 4 B. &. Aid. 95. 
 
CH. viii.] SELLERS OF LIBELS. 159 
 
 than mere authorship is necessary in order to prove 
 publication, and while the libel is still in the desk of the 
 writer, it is not published, yet cases have occurred where 
 something is deemed 'equivalent to delivery by the au- 
 thor to a third party. Thus proof that a libel has been 
 published by B, and that in B's house a manuscript in 
 L's handwriting is found nearly identical with the pub- 
 lished copy, is admissible evidence that L published it.i 
 And the mode of proving handwriting in these cases 
 does not differ from that in other cases.^ But it is no 
 •prima facie evidence of publication that B, having a 
 printed copy, on request shows such copy of the libel to 
 another.* Nor is it any evidence of publication by B 
 that the libel is in the handwriting of B's clerk or 
 amanuensis.* 
 
 Liability of hoohsdler a/nd shopheeper for libels 
 sold. — The bookseller is a publisher as well as the author 
 and printer. With regard to selling a libellous book or 
 paper, if in the ordinary course of business any servant 
 sells it in a shop, this is deemed an act of publication by 
 him who keeps the shop, whether he knew anything per- 
 sonally about the subject matter or not, unless he can 
 prove that he expressly ordered the contrary, or that there 
 was some trick or collusion against him.^ Erskine urged, 
 in such a case, that if without the knowledge of the shop- 
 keeper his servant sold a copy, the shopkeeper could at 
 
 1 Tarpley v Blabey, 2 Bing. N. C. 437 ; E. v Lovett, 9 C. & P. 463. 
 
 ^ Where the only evidence that the defendant J. S. was the pub- 
 lisher of a newspaper was, that some one bought a copy in the office, 
 and that his name was in the footnote at the end described as that 
 of publisher, this was held no legal evidence of J. S. having pub- 
 lished it.— R. V Stanger, L. R., 62 B., 362. 
 
 s Smith V Wood, 3 Camp. 323. 
 
 * Harding v Greening, 1 Moore, 479. Nothing could surpass the 
 skill with which the Star Chamber obtained evidence of the author- 
 ' ship of a libel. Hudson says that " In a case, 7 Hen. VIII., for the 
 discovery of the handwriting of a libel, the books of all the trades- 
 men in London were to be viewed with two aldermen and a knight 
 appointed by the Privy Council, to confer the hands and manner of 
 writings at the Guildhall, whither they were to be brought, sealed 
 for that purpose only. This was done for the discovery of the 
 author." — Hudson's Star Ch.. c. 11. 
 
 ' 5 R. « Tutchin, 14 St. Tr. ill2 ; E. I; Almon, 20 St. Tr. 838. And 
 see 16 Pari. Hist. 1156. 
 
160 LIBERTY OF PRESS AND SPEECH. [ca. viir. 
 
 most be guilby only of negligence, and ought not to be 
 deemed guilty of maliciously publishing. And he referred 
 to the analoo;ous case of homicide, being murder or man- 
 slaughter according to the circumstances. But Lord Ken- 
 yon, C. J., said there was ample evidence of publication, 
 and therefore of malice.^ Erskine urged in vain, that 
 this was an exception to the general- rule, that there is 
 no criminal liability for the act of a servant without some 
 participation of the master. At one time the mere fact of 
 publishing a seditious libel, or even mechanically printing 
 it, as a compositor does in the service of a master printer, 
 without being cogjiisant of the libel, was indiscriminately 
 held a criminal offence, irrespective altogether of the ques- 
 tion of intention in the printer.^ And though counsel 
 urged, that if this were so, then the postboy who carried 
 the bag of letters would be equally liable, the judge said the 
 case of the postboy must be considered when it arose, but 
 the compositor was liable. At a later date it was conceded, 
 that, though no trick had been shown, there may be such 
 a thing as an unintentional or inadvertent publication in 
 some cases, however much, the law lean^ against any such 
 lenient inference.* And it was still later allowed, that a 
 porter from a coach office, who merely carries a parcel of 
 libels, of the contents of which he knew nothing, might 
 escape the guilt, if a jury on the evidence thought he 
 knew nothing about them.* And the judges, in 1820, 
 were satisfied, that the boy who carries a letter to the post 
 is not the person who publishes, but only the person who 
 sent the boy and gave it to him.^ 
 
 Liability of proprietor of newspaper for libel 
 therein. — Again, Lord Kenyon, C. J., said the proprietor of 
 a newspaper was answerable criminally as well as civilly 
 for the acts or misconduct of his servants or agents in 
 conducting such newspaper. That, he said, was the opinion 
 of Lord Hale, Powell, J., and Foster, J., and all the liigh 
 authorities had acted on it for a century.^ And when the 
 
 1 E. V Cuthell, 27 St. Tr. 662 ; 6 Camp. L. Gh. 518. » R d 
 
 Clerk, 1 Barn. 304 ; R. v Nutt, Ibid. 306 ; Fitz. 47. « R. v 
 Topham, 4 T. R. 127. * Day v Bream, 2 M. & Rob. 65. » Best, 
 J., R. ■« Bmdett, 4 B. & AM. 126. 
 
 6 R. V Walter, 3 Esp. 21. Lord Tenterdbn, C. J., defended this 
 doctrine thus : "This was not a different principle from that which 
 
CH. viii.] NEWSPAPER LIBELS. 161 
 
 libel is published in a newspaper, the sale of every copy 
 of the paper is deemed a fresh publication and a fresh 
 cause of action.^ And though the party libelled sent an 
 agent to the newspaper oi!Ece to buy a copy and it was 
 bought, this was deemed a publication, for, as far as 
 regarded the libeller, the injurious act was complete on 
 delivery to such agent.^ Any person who sends the 
 newspaper to a third party is also a person who publishes 
 it.^ Indeed one judge said, that " not only the party who 
 originally prints, but every party who utters, sells, gives, 
 or lends a copy of an offensive publication is liable to be 
 prosecuted as a publisher."* 
 
 Publishers and sellers of defamatory libels may, 
 in some cases, escape liahUity. — The harshness of this 
 rule of the law by which indiscriminate liability is im- 
 puted to the nominal publisher, or printer, or bookseller, 
 whether he personally knew anything of the contents of 
 the paper sold or printed, has been modified in criminal 
 prosecutions by the Statute of 1843. Whenever on a 
 trial of an indictment or information a presumptive case 
 against the defendant is made out owing to a publication 
 through another person by his authority, the defendant 
 may prove, that such publication was made without his 
 authority, consent, or knowledge, and not from any want 
 of due care or caution on his part.^ And therefore where 
 a proprietor of a newspaper took charge only of one 
 department, but left the editing to a paid editor, who 
 inserted a libel when such proprietor was absent and 
 knew nothing of the matter, it was held, that the latter was 
 
 prevails in all other criminal cases. The rule is conformable to 
 principle and to common sense. Surely a person who derives profit 
 from and who furnishes means for carrying on the concern and 
 entrusts the conduct of the publication to one whom he selects, and 
 in whom he confides, may be said to cause to be published what 
 actually appears ; and he ought to be answerable, although it cannot 
 be shown, that he was individually concerned in the particular pub- 
 lication. It would be exceedingly dangerous to hold otherwise, 
 for then an irresponsible person might be put forward, and the 
 person really producing the publication, and without whom it could 
 not be published, might remain behind and escape altogether."- — 
 E. V Gutch, 1 M.&M., 437. 
 
 1 D. Brunswick v Banner, 14 Q. B. 189. "^ Ibid. » E. » 
 
 Burdett, 4 B. & Aid. 126. " Bayley, J., R. v Carlile, 3 B. & 
 
 Aid 169. 5 6 & 7 Vic. c. 96, § 7. 
 
 M 
 
162 LIBERTY OF PEESS AND SPEECH. ;tcH. viir. 
 
 at liberty, under the statute, to prove this fact, and so 
 escape liability by showing, that the libel was not inserted 
 with his authority or knowledge, and that -he had not been 
 guilty of any want of due care or caiition. ^ But the 
 rule, as thus modified, exists only in criminal cases, and 
 the law, as before stated, is unmodified in civil actions. 
 
 Liability of third party for causing libel to be 
 published in a newspaper.— Tiird parties may also incur 
 liability as well as the publisher. Thus where the defendant 
 told to a reporter of a newspaper a story, which he said 
 would mnke a good case for his newspaper, and the reporter 
 published it in the newspaper much as it was told him, the 
 relator was deemed the person who published the story, 
 and so was liable for it if it was libellous.^ It was said 
 to be a good practical rule in such circumstances, that if 
 one request another to write a libel for him, the former is 
 answerable and must take his chance of the article being 
 stronger than was contemplated.* And in like manner if 
 a person about to speak at a public or private meeting 
 request the newspaper reporters to publish his speech, this 
 will make the speaker liable for the published libel, 
 though it 1)6 imperfectly condensed and made thereby 
 worse against the party libelled.* In such cases it is for 
 a jury to say, whether the speaker merely expressed a hope 
 that the speech would be published, or was more definite, 
 and said what amounted to a request, and so directly 
 authorised it to be published.* 
 
 ' R. « Holbrook, 3 Q. B. D. 60. " Adams v Kelly, 1 Ry. & M. 
 
 157. 3 E. V Cooper, 8 Q. B. 533. * Parkes v Prescott, L. E. 
 
 4 Exch. 1G9. 5 Ibid. 
 
en. IX.] LIBEL IMPUTING CRIME. 163 
 
 CHAPTEE IX. 
 
 THE CHAEACTEKISTICS OF LIBEL AND OF EXCUSABLE LIBELS. 
 
 Contents of a slander or libd. — ^We now come to 
 that part of the definition of a defamatory lihel or slander 
 which consists in its being " an attack upon another's 
 character." The mode in which the libel operates on the 
 character of the person libelled is illustrated under several 
 heads or situations, according to the contents of the libel 
 and the kind of imputation involved. It may mean, that 
 the libelled person had committed some criminal act, or 
 something not quite amounting to that, yet very near it ; 
 or it may mean, that the libelled person has done some- 
 thing which shows, that he is unfit to carry on some busi- 
 ness which he professes. These different classes of libel 
 require some explanation. 
 
 Libel or slander imputing a crime. — One of the most 
 serious of all libels or slanders consists in imputing to an- 
 other the actual commission of some crime or indictable 
 offence, for this so unmistakably detracts from any man's 
 character and reputation, that to say, or write, or publish 
 such imputation is a cause of action, whether or not the plain- 
 tiff has thereby suffered any loss or valuable consideration 
 that can be estimated in money. And, as may be sup- 
 posed, this imputation is seldom made in direct terms, but 
 usually is to be implied out of some circuitous description 
 more or less cogent. But whether it is express and direct, 
 or circuitous and constructive, is merely a matter of evi- 
 dence for courts and juries, and the result, however 
 arrived at, is precisely the same. Such, for example, are 
 the following imputations : Of robbing John White ; ^ 
 1 EowolifEe « Edmonds, 7 M. & W. 12. 
 
 M 2 
 
164 LIBERTY OF PRESS AND, SPEECH. [oh. ix. 
 
 of bigamy ; ^ of sending a threatening letter ; ^ of receiving 
 stolen goods knowingly ; * of swindling. * To the same 
 effect also are such imputations as that he murdered his 
 first wife by giving her wrong drugs ; ^ he had done an act 
 for which defendant could transport him ; ^ if he had his 
 deserts he had been hanged before now ; ' he was a re- 
 turned convict (though the term of punishment was over);* 
 the Attorney-General had ordered him to be indicted for 
 perjury. ® The words " I am convinced you are guilty of 
 the death of Daniel Dolly, and rather than you should go 
 without a hangman I will hang you," were held to mean 
 the crime of murder, i" And to the like effect are the 
 words, that the defendant would not trust the plaintiff 
 with 51. of his property ; " that the plaintiff fraudulently 
 took his horse out of the race Ust;^^ that one is sure to 
 pay for it, if one dines and plays at cards with him ; ^^ that 
 the plaintiff is a libellous journalist. ^* 
 
 On the other hand the words sometimes do not amount 
 to more than scurrility, and so are not actionable as im- 
 puting a definite crime ; as that his house is as bad as a 
 bawdy house ; ^^ that the defendant (a physician) " made 
 up the medicines wrong for the child through jealousy," 
 a child having died, and the words not being spoken of an 
 apothecary in his trade ; ^® that the plaintiff was foresworn, v- 
 for this does not necessarily mean perjury ; ^^ that the plain-'> 
 tiff was a thief, and his father before him ;^® that " I have 
 a suspicion that you and A robbed my house, and therefore 
 I take you into custody." ^^ The word "thief" is often 
 used as the climax of other opprobrious terms vrithout 
 seriously implying a charge of felony, but a jury should 
 be called on to say how this is.^"* Twysden, J., said, 
 
 1 Heming v Power, 10 M. & W. 570. " Harvey v French 1 
 
 Or. & M. 11. 3 Alfred v Farlow, 8 Q. B. 854. * Janson v Stuart, 
 1 T. R. 748. 6 Ford v Primrose, 5 D. & R. 287. s Cnrtis v 
 Curtis, 10 Bing. 477. ^ Donne's case, Cro. Eliz. 62. 8 Fowler 
 V Dowdney, 2 M. & Rob. 119. 9 Roberts v Camden, 9 East, 93. 
 
 1° Pealte v Oldham, Cowp. 275. " Cheese v Scales, 10 M & "W 
 
 488. 12 Greville v Chapman, 5 Q. B. 731. is Digby v Thom- 
 son, 4 B. & Ad. 821 . " Waldey v Cooke, 4 Ex. 518. ^ Brayne 
 1! Cooper, 5 M. & W. 249; see Huckle v Reynolds, 7 C. B., N S 
 114. 16 E,]gall V Russell, 5 Scott, N. R. 801. " Holt v Scholefield 
 6 T. R. 691. 18 Thompson v Bernard, 1 Camp. 47. » Tozer v 
 Mashford, 6 Ejieh. 539. ^^ Penfold v Westoote, 2 N. R. 335. 
 
CH. IX.] LIBEL IMPUTING CRIME. Ifi5 
 
 there was once an action for defendant saying, that he heard 
 A was hanged fpr stealing a horse, whereas it appeared the 
 words were only spoken in sorrow for the news.^ 
 
 If the, offence imputed is past and pimished. — It has 
 been usually said, that the reason why words imputing an 
 indictable offence are actionable is, because, if true, they 
 would render the person libelled liable to indictment, and 
 that somebody hearing them might make a charge on them.^ 
 But this is a narrow view, and the better reason is, that 
 it is the scandal and turpitude of mind that it implies, 
 and which has the effect of depreciating the present 
 character of the party. And hence it is equally action- 
 able if the words impute an offence that is past and has 
 been punished.^ All who have been convicted of felony 
 and have suffered the punishment are now put by statute in 
 the same position as if they had received a pardon from 
 the Crown.* And, as was well said, to call one a thief after 
 a pardon is "neither necessary nor advanceth nor, tends to 
 justice." 5 Therefore in all such cases a slanderer must take 
 care at all events to be within the truth. If he calls one 
 who has been convicted of felony, and has suffered the 
 punishment, a " convicted felon," this may merely mean 
 that he was once convicted, and if so, the defendant may, 
 on proving the conviction, justify and escape a verdict in 
 an action for damages against him. But if he call one 
 " a felon editor," this plainly implies, that the latter is a 
 felon still, and at least is or was actually guilty of felony. 
 And hence, in a plea to an action, justifying the truth of 
 such an epithet, the defendant will be bound to prove not 
 merely that the plaintiff was convicted and punished, but 
 that he was actually guilty, and the record of conviction 
 win be no evidence of the fact of guilt* And where a 
 somewhat ambiguous name, such as " felon editor," is used, 
 it is for a jury to say, whether it means merely to impute, 
 that the plaintiff was once convicted, or that he is still 
 
 1 Crauford v Middleton, 1 Lev. 82. « Parke, B., Heming v 
 Power, 10 M. & W. 569. ' Gainford v Tuke, Cro. Jas. 586 ; 
 
 Carpenter v Tarrant, Gas. Hardw. .S39 ; Beaver v Hides, 2 Wils. 
 300 ; Showell v Haman, Cro. Jas! 153 ; Boston v Tatham, Cro. Jas. 
 6-22. ■" 9 Geo. IV. c. 32, § 3. ^ -Cuddington v Wilkins, 
 
 -Hob. 82. . s Leyman v Latimer, 3 Ex. D. 356 ; 2 Taylor, Evid. 
 (7 ed.) 1416. 
 
1B6" LIBEKTY OF PEESS AND SPEECH. [ch: ix. 
 
 a felon, and if the latter, the justification must be proved 
 accordingly.^ 
 
 Imputatimi of what was once an offence, hut not now 
 one. — As any criminal offence may be the subject matter 
 of such libellous imputations, some regard is to be had in 
 judging of the reported cases to those acts which were 
 once crimes, but are no longer so, and vice versd. Thus it 
 was once held, that to impute to a spinster that she had 
 had a bastard, when there was a statute called the Act of 
 Pornication, was actionable per .se: but no such statute 
 now makes it any offence.^ And the same may be said as to 
 being a witch or sorcerer, for Gawdey, J. , said " if he witcheth 
 men so as they die, it is felony ; and if he use witchcraft 
 in any other manner, he shall stand upon the pillory; so 
 in every respect it is a slander and a good cause of action." ® 
 All those fine distinctions are at an end. And so when one 
 man said to another " The devU appears to thee every night 
 in the likeness of a black horse, and' thou conferrest with 
 him," this was clearly actionable in the time of Coke.* But 
 now these imputations are no longer actionable, and to call 
 one a witch is only a fiourish of humour. The words about 
 bastardy, it is true, may sometimes be actionable still, in 
 connection with the special circumstances of one's profession 
 or duty, as will be afterwards noticed. 
 
 Libel imputing impossible crime. — It was once treated 
 as a nice question, whether an action lay for saying that 
 A murdered B, when it was the fact that B was alive, 
 and therefore the offence was impossible. But the court 
 held, that no action lay for such an imputation, as where 
 the defendant had said, " Thou bast murdered my wife," she 
 being alive.* ■ And at one time it was held not enough to 
 sue tor a libel such as, " Thou hast poisoned Smith," unless 
 it was also alleged, that Smith had died ; yet, as Twisden, J., 
 
 ^ Ibid. It is not unusual for railway companies to publish hand- 
 bills, setting forth that a person was convicted for violating some 
 bye-law, and. generally overstating the ofEence, and they usually set 
 up the defence, that the handbill was true, that is, that the party had 
 been convicted of such ofEence, This has been held a good defence 
 in an action, where the libel was substantially though not literally 
 true.— Alexander w N. B. H. Co., 6 B. c6 S.,340 ; Biggs v G. E. E. Co., 
 18 L. T..N. S., 482 ; Gwyn v S. E. E. Co., Ibid. 738. 
 
 2 Anon. 2 Sid. 21. » Rogers v Gravat, Oro. Eliz. 571. * Hob. 
 15y, 172. 5 Snag v Gee, 4 Hep. 16. 
 
CH. IX.] LIBEL NOT IMPUTING CRIME. 167 
 
 said, the later opinions had been, that it was not necessary 
 to allege the death, for that would be understood.^ 
 
 Imputation of an attempt to wmtnit crime,. — But 
 where the imputation was, not that a crime had been com- 
 mitted, but that an attempt had been made to commit one, 
 this was held actionable, as to say, " He lay in wait to rob 
 Smith the goldsmith ;" ^ or that he sent a letter wishing A 
 to poison A's wife ; * or that he persuaded A to rob his 
 master ; * or that he persuaded a woman to kill her child 
 because it was somebody's bastard.^ And this is only in 
 accordance with the general rule, for an attempt to commit 
 a crime is indictable as much as the actual commission of 
 the crime itself. 
 
 Words not clearly imputing definite crifne. — There 
 is thus no difficulty in applying this rule where the words 
 defamatoiy are precise, and definitely point out the crime 
 imputed. But when the words are somewhat ambiguous; 
 or are accompanied with some comment or context which 
 qualify their generality, it then becomes important to ascer- 
 tain, whether the effect of the whole language is to impute 
 a crime or only some conduct approaching but not reaching 
 a definite crime. It is here that the distinction between 
 words and writing or print comes into play, for in these 
 somewhat loose imputations of things nearly approaching 
 crime the words, if written or printed, will be actionable, 
 though if only spoken they will not be so, unless accom- 
 panied with special damage. And the reason why writing 
 made aU the difference in such cases was, as already ex- 
 plained, nothing but this, that written words endure, and 
 are capable of reaching great numbers of readers ; while 
 spoken words have but a transient and limited audience. 
 The only clue to a test as to actionable words given by 
 Holt, C. J., was, wh&,t he said was also Hale and Twisden's 
 test, namely, that the words " sound to the disreputation of 
 the person of whom they were spoken." ^ And this is but 
 a vague description, and indeed is only a use of one word 
 for another. The distinction can only be learned from a 
 variety of examples. Thus it is libellous to publish in 
 writing, though not so in spoken words, that the plaintiff 
 
 1 Phillips V Kingston, 1 Vent. 117. ^ Cro. Ch. 140. ' Cro. 
 Bliz. 747. * Ibid. 710. * Qro. Bliz, 49. « Button v Heywood, 
 « Mod. 24. 
 
168 LIBERTY OF PRESS AND SPEECH. [en. ix. 
 
 under the cloak of religious reform, hypocritically and with 
 grossest impurity dealt out his malice and falsehoods ; ^ 
 that he had preferred unworthy claims upon a charitable 
 society and squandered its money ;^ that the defendant, 
 claiming a debt from A, who denied it, wrote that A 
 attempted to defraud him.* In one case wheEe words were 
 written of a man, that he had grossly misconducted himself 
 and insulted two females, this was held actionable because 
 it was said to be calculated to bring the defendant into 
 contempt by some and hatred by others.* Where F was a 
 candidate for Parliament and published that C was most 
 ungrateful in what he had said of F, for F had once ad- 
 vanced to C money when he was in great straits, this was 
 held actionable as regards the publisher, for it imputed all 
 but insolvency.^ 
 
 Libel in calling scurrilous na/mes. — Sometimes, the 
 words being ambiguous, no clear imputation of a crime can 
 be fairly inferred, as by the use of such epithets as scoun- 
 drel, rascal, rogue, cheat, swindler, or blackleg ; neverthe- 
 less if special damage result, this will make a good cause of 
 action for slander, and if 'they are written or in print no 
 special damage need be alleged to support the action.* Thus 
 the following words (when not uttered with special refer- 
 ence to trades or business) have been held to be not per se 
 actionable ; rogue who cheated and robbed his brother-ia- 
 law -J young woman who gets her living by prostitution ; ^ 
 woman who was all but seduced by a notorious libertine ; ^ 
 he or she has committed adultery.** "Where words of this 
 vague kind are used, an attempt is often made to give a 
 coiistruction imputing crime, owing to some special circum- 
 stances in the plaintiff's case, or some peculiar profession or 
 business. In such ambiguous cases evidence is admissible 
 to enable a jury to decide, what was the precise meaning 
 of the words uaed.ii Thus to call a lawyer a daf&downdilly 
 
 1 Thoiley v Kerry, 4 Taunt. 355. ^ Hoare v Silverlock, 12 Q. 
 B. 624. 3 Tuson v Evans, 12 A. & E. 733. '' Clement v 
 
 Chivis, 9 B. & 0. 172. 5 Cox v Lee, L. R. 4 Exch. 284. 
 
 6 Bamett v Allen 3 H. & N. 376; Saville v Jardine, 2 H. Bl. 531. 
 
 7 Hopwood V Thorn, 8 C. B. 313. 8 Wilby v Elston, 8 C. B. 142. 
 9 Lynch v Knight, 9 H. L. C. 593. w Wilby v Elston, 8 C. B. 
 142 ; Ayre v Craven, 2 A & E. 7. " Daines v Hartley, 3 Exch. 
 200 ; Hawkinson v Bilby, 16 M. & W. 442. 
 
CH. IX.] LIBEL -EXPOSING TO RIDICULE. 169 
 
 was once held actionable, because that was said to imply 
 that he was ambidexterous.^ So it was to call a game- 
 keeper, whose vocation is to preserve foxes, the person who 
 trapped the foxes.^ To say in spoken words of a member 
 of Parliament "that he never keeps his word except 
 where his own interest is concerned," might be actionable 
 without alleging any special damage ; but to say of him, 
 " as to instructing our member to obtain redress, we might 
 as well instruct the winds, and should he promise us his 
 assistance I should not expect him to give it to us," was 
 clearly not actionable.^ Where a newspaper writer pub- 
 lished, that a young nobleman by furious driving caused 
 the death of a lady, and that he, on the very evening of the 
 catastrophe, attended a public ball, this was held libellous 
 because it was printed.* But where a public advertise- 
 ment stated, that A's connection with a certain estab- 
 lishment had ceased, and he was no longer authorised to 
 receive subscriptions on its behalf, this was held to be not 
 capable of any defamatory sense, being merely a business 
 advertisement.* 
 
 Libel exposing to hatred and contempt and ridicule. 
 — ^Again, some words, when written, are said to be libellous 
 whenever they expose one to hatred or contempt, or rather 
 to ridicule. Many libels, however, have neither of these 
 ingredients. The injury that is done by ridicule is too 
 subtle for the law to redress ; and it is so wholesome and 
 just a style of treatment for a great variety of people, that 
 society would be unendurable 2" the law were so severe in 
 repressing it as is often currently asserted. The world 
 abounds with characters so constantly hovering on the 
 confines of actionable injury to others, yet so careful to 
 avoid the technical conditions which would enable legal 
 • redress to be obtained, that if the aid of ridicule and con- 
 tempt and hatred were not available, much more mischief 
 than is now done would overwhelm many innocent and 
 helpless persons who suffer wrong. Eidicule, wit, and 
 every form of satire form the natural armoury by which 
 these odious characters are most effectively assailed, and 
 by which alone virtue and innocence can sometimes be 
 
 1 Roll. Abr. 35. 2 Foulger v Newoomb, L. R. 2 Ezoh. 327. 
 
 3 Onslow V Home, 3 Wils. 177, * Churchill v Hunt, 1 Chitt. R. 
 
 480. 5 MuUigan v Cole, L. R. 10 Q. B. 649. 
 
170 LIBERTY OF PRESS AND SPEECH. [ch: ix. 
 
 protected. They are also the natural scourge of incompe- 
 tence and folly in persons of station and high office. The 
 law, therefore, which is adapted only to restrain the coarsest 
 minds, has no occasion to check the use of these delicate 
 weapons. And many vague and inconclusive precedents^- 
 chiefly of ancient date, founded on the changing manners of 
 the time, are now little regarded, seeing that the courts of 
 the present day are more just and capable of weighing the 
 reasons of the law. Though in many of- the reported cases 
 ridicule is assumed to be a cause of action, yet it is never- 
 theless usually coupled with something approaching the 
 criminal, as if mere ridicule was not enough. ' Lord Holt 
 was one who had more than once thrown out as a dictum, 
 that to make one ridiculous is actionable. And other 
 judges, from time to time, followed without any attempt 
 at discrimination.^ And when a newspaper paragraph 
 jocosely suggested, that " the painters were much perplexed 
 about the likeness of the devil, but to obviate the difficulty 
 Peter Pindar had recominended the countenance of Lord 
 Lonsdale," that peer applied for a criminal information. 
 Though Erskine gave good reasons for laughing such a case 
 out of court, Lord Kenyon said he must abide by the rules 
 the court had laid down, and allowed the information to 
 be issued.^ And when Cobbett's newspaper ridiculed the 
 Lord Lieutenant of Ireland as a very eminent feeder of 
 sheep in Cambridgeshire, Lord Ellenborough, C. J., said 
 no man had a right to render the person and abilities of 
 another ridiculous in publications.* But in another case 
 
 I In one case the plaintiff had told a ludicrous story of his going 
 to an inn soon adEter the trial of a murderer in the district, and, 
 being mistaken by the people for the hangman, he was afterwards,- 
 by a certain kindred allusion, nicknamed Jack Ketch at a public 
 meeting amid roars of laughter. He sued a newspaper proprietor for 
 publishing the original story about him, though it was only as he him- 
 self narrated it to some friends at an alehouse. The court held, that, 
 if the plaintiff had authorised the publication of the story no action 
 would lie, but there was a great difference between a man's telling 
 a ludicrous story of himself to a circle of his own acquaintance, and a 
 publication of it to all the world through tlie medium of a newspaper. 
 Therefore, though no special damage was proved, yet the verdict 
 in his favour was held to be right— Cook v Ward, 6 Bing., 409. 
 
 « Villars u Mousley, 2 Wils. 403, " 3 Campb. C. JJ. 74. 
 
 * E. V Cobbett, 29 St.,Tr. 50. 
 
OH. IX.] LIBEL EXPOSING TO RIDICULE. 171 
 
 the same judge, still more decisively, rather commended a 
 critic for making ridiculous an author, who published dull 
 and trifling works. He said, that " One writer in exposing 
 the follies and errors of another may make use of ridicule, 
 however poignant. Eidicule is often the fittest weapon 
 that can he employed for such a purpose. If the reputa- 
 tion or pecuniary interest of a person suffer, it is damnum 
 absque injurid. Where is the liberty of the press, if an 
 action can be maintained on such principles ? If the critic 
 do not travel into the domestic life to point his slanders, 
 and confine himself to criticisms proper, he performs laud- 
 able work." ^ lu another case scarcely now intelligible a 
 mayor of Northampton once sent Lord Halifax a present 
 of a license to keep an alehouse, and this was deemed 
 so offensive towards a peer (at a time when peers did 
 not engage in trade), that the court granted a criminal 
 
 1 Carr" v Hood, 1 Campb. 367 ; Tabart v Tipper, Ibii The 
 Roman law went into greater niceties of this Itind than our 
 own, chiefly because society was differently constituted. Thus 
 to call one who was a freeman a slave, 'or even to call his grand- 
 mother a slave, was a good cause of action. — Code 9, 35, 9-lOy 
 And to call one an informer was also actionable. — Code 9, 35, 3 ; or 
 even to refuse to accept a man's security for his debt, if the ob- 
 ject was thereby to defame him. — Code 2, 8, 51. And it was action- 
 able to call a man a coward. — Gams, Inst, iii., § 221 ; and in general 
 to throw insult or lontumely and contempt on any one, or his wife, 
 children, or servants, was also actionable. — Heinec. pt. 7, § 118. 
 Cordus was accused for calling Cassius the last of the Eomans. — 
 Montesq. h. 12, c. 14. In Athens it was actionable to say one belonged 
 to a trade. There was also at Athens a law, that no comic poet 
 should ridicule a living person by bringing him on the stage, 
 (B.C. 440). And that no Areopagite should write comedies (B.C. 
 440), this last being presumed to be an ilifallible test of a vicious 
 mind. And yet Alcibiades by his powers of ridicule and contempt 
 put down the practice of young men playing on the flute. — Plut. 
 Alcih. By the law of the Burgundians it was an offence punishable 
 by a fine to call one a fox or a hare, as cunning or flight were viewed 
 as infamous. — Barr. Penal Stat. 
 
 In the Gentoo code it was a criminar offence to accuse one of 
 giving up his time to dancing, singing, or playing, or of refusing to 
 eat with a descendant of the same grandfather, or of being found 
 smelling at garlic or onions. — Gentoo Code, e. 15. And with a sin- 
 gular delicacy of feeling not traceable in any European laws, the 
 same code made it punishable by a fine to reproach a lame or one- 
 eyed man with his bodily defects. — Ibid. Jolly's Inst. Navada, ' 
 e. 15. And the Institutes of Menu had the same law. — Just, 
 Menu, c. 8. 
 
172 LIBERTY OF PRESS AND SPEECH. [oh. ix. 
 
 information.^ N"o court however seems since to iiave acted 
 on this ^precedent. 
 
 Slander imputing immorality or wnchastity. — Though 
 the law has long ceased to be considered a means of en- 
 forcing or even protecting general morality, stiU morality 
 enters so largely into the composition of the higher 
 standards of character, that to say or write of a thir4 
 person, that he or she violates morality, either habitually 
 or in some isolated act of conduct, might well be thought 
 to be equivalent to attacking the reputation in a vital 
 particular. But this is by no means the view of the law. 
 The law at best is contented with a very coarse standard 
 of conduct in this respect, and to impute immorality by 
 spoken words is not like imputing an indictable offence or 
 conduct savouring of fraud, for immorality per se is often 
 neither an offence nor an actionable wrong. Yet to some 
 professions this imputation is such an attack on character 
 as will support an action for slander, and when made on 
 the female sex will, when coupled with special damage, 
 also be treated as slanderous or libellous. Under the head 
 of imputations of professional misconduct on men or women 
 an illustration will be found of such actionable wrong. As 
 regards the spoken imputation of immorality or unchastity 
 in the female character, the law does not regard this as 
 actionable per se, however fatal it may be to the reputation 
 of the female attacked, whether married or unmarried. 
 Therefore to say, however falsely, of a woman that she is 
 unchaste is not actionable, unless the words are written, or 
 there is what is called special damage flowing from such 
 imputation.^ 
 
 De Grey, G. J., said, that for imputation of ignorance to 
 one in a profession or an ofiice of profit an action will 
 certainly lie, though perhaps for imputation of ignorance 
 to a justice of the peace, being only an ofiice of credit, an 
 action will not lie. But to impute by words to any man 
 the mere defect or want of moral virtue, moral duties, or 
 obligations which render a man obnoxious to mankind, is 
 not actionable.^ And hence, to say of a physician, that 
 he had committed adultery with a married woman was not 
 
 1 1 St. Tr, 422. ^ Wilby v Elston, 8 C. B. 142. ^ Onslow v 
 Home, 3 Wils. 187. 
 
en. IX.] SLANDER AND SPECIAL DAMAGE. 173 
 
 actionable, because it was not spoken of his relations with 
 one of his patients.^ 
 
 The hind of special damage following a charge of 
 immorality. — The nature of .this special damage, which 
 makes all the difference whether spoken words imputing 
 immorality are actionable or not, is difficult to be deiined 
 beyond this, that it is some species of pecuniary loss re- 
 sulting naturally, and not merely accidentally, from the 
 depreciation of character involved in the slander. It has 
 been said, that if some such special damage arose from 
 laudatory words it would give rise to no action, for the 
 words must be more or less by themselves sounding in 
 detraction.^ Moreover the special damage must not be 
 too remote. Thus, where an actress- had been libelled 
 as immoral, and was so shaken in her nerves that she 
 could not do her part well, the proprietor of the theatre 
 sued the libeller; but Lord Kenyon said the damage 
 was not sufficiently shown to be an immediate result so 
 as to found an action.* 
 
 The only kind of special damage required to be proved 
 in order to sustain an action for such spoken words is 
 usually this, that some person declined to marry the female 
 in consequence of the slander.* And it is true she must 
 do more than say, she lost her reputation and several 
 •suitors, for she must name these suitors.^ And a man 
 may sue also for loss of marriage with a specified female 
 in consequence of a like slander of his morality.^ Thus 
 a widower clergyman was seeking in marriage a lady " by 
 whom he was likely to have had a good preferment, and 
 -was in possibility to obtain her," when he was met with the 
 following strictures : " He is a sharking fellow and getteth 
 his living by deceit, and used himself violently to his 
 former wife and denied her necessaries; and is a needy 
 fellow, and his conditions are wicked ; and for his religion, 
 he is a Brownist." He lost the lady and sued the slanderer. 
 The -defendant could not prove anything to justify the 
 slander, and the .court held the special damage made it a 
 
 1 Ayre v Craven, 2 A. & B. 2. ^ Littledale, J., Kelly ii 
 
 Partington, 5 B. & Ad. 645. ^ Astley v HarriBon, Peake, 266 ; 
 
 2 Camp. C. JJs. 65. * Davis v Gardiner, 4 Eep. 16 ; Reston v 
 
 iPomJEret, Cro. Eliz. 639. ^ Barnes v Prudlin, 1 Vent. 4. 
 
 ^ Mathew v Crass, Cro. Jas. 323. 
 
174 LIBERTY OP PRESS AND SPEECH. {ch. ix; 
 
 good cause of action.^ In one case an innkeeper, in con- 
 sequence of an imputation of gallantry with a married 
 woman, alleged, that he lost his customers, or what is 
 equivalent, lost his trade,, and this was held sufficient 
 special damage, though he did not specify the names of 
 the customers lost.^ So where it was said of a shop- 
 ieeper's wife, that she had committed adultery on the 
 premises.* And for a like reason a dissenting minister 
 suffered special damage by a like slander, whereby persons 
 ceased to frequent his chapel, for he could not be expected 
 to name all those who so left him.* 
 
 But the mere loss of the society of friends by itself is 
 not deemed this description of special damage, which the 
 law takes notice of. And hence also the mere loss of be- 
 coming a member of some society or congregation of dis- 
 senters, which refused admittance to a candidate on account 
 of a slander on her chastity, was held no substantial special 
 damage.^ So, as already observed, the mere loss of suitors 
 without naming them will not amount to special damage.^ 
 
 A slcmder of chastity camifig special damage. — But 
 if the loss of society is accompanied with some substantial 
 temporal loss of meat and drink supplied by the hospitality 
 of friends, then the law wUl recognise it, and enable the 
 slandered female to sue the slanderer. In one case a 
 spinster lady sued M for saying of her that she was in- 
 continent, whereby, as she alleged, she had lost the society 
 and hospitality of friends who used to invite her to their 
 houses and to entertain her with meat and drink, and 
 thereby enabled her to live more cheaply than she could 
 do without such help ; and the court held, this was a sub- 
 stantial pecuniary loss, and being proved, she was entitled 
 to sue and recover damages.'' And a married woman may 
 sue on the same ground, if she allege and prove the same 
 loss.® But except a married woman has lost meat and 
 drink in the houses of her friends, she has no claim to any 
 redress for spoken words imputing unchastity to her. In 
 
 • Wicks V Shepherd, Cro. Ch. 155 ; Southold v Daunceston, Ibid. 
 269. ^ Collins v Mathews, 3 Keb. 242. ' Riding v. Smith, 
 
 1 Bxch. D. 91. * Hartley v Herring, 8 T. R. 130. 5 Roberts 
 
 V Roberts, 5 B. & S. 384. « Barnes v Prudlin, 1 Sid. 396. 
 
 ' Moore V Meagher, 1 Taunt. 139. » Davies v Solomon, L. R., 
 
 9 Q. B., 114. 
 
ai. 1?:.] SLANDERS ON CHASTITY. 175 
 
 one case, owing to a slander against a wife that she had 
 been before her marriage all but seduced by B (a third 
 person) and asserting, that the husband should not allow 
 B to visit his house, the husband in consequence of this 
 slander sent her home to her parents. The wife (adding 
 the name of the husband) sued the slanderer, alleging the 
 loss of the husband's society as the special damage ; but 
 the court doubted whether an action would lie for such 
 loss of society by a wife ; and at all events in this case the 
 special damage was not the natural consequence of the 
 slander, because a prudent husband would not on account 
 of it have acted so unreasonably as to separate from the 
 wife, for all that he would have done would be to watch 
 her conduct a little more carefully.^ And as a wife could 
 not lose her maintenance from the husband, owing to a 
 mere slander of that kind, she was thus practically with- 
 out any redress. And for a like reason the increased 
 expense caused to a husband in medical attendance re- 
 quired by a wife, whose health suffers from a false slander 
 in her chastity, is deemed no special damage, being too 
 fanciful and remote.^ 
 
 If words imputing unchastity are written, then they 
 are actionable. — But while spoken slanders on the chastity 
 of women are thus only actionable when pecuniary loss 
 foUows, it is altogether different when one puts the words 
 in writing or in print. Thus when a newspaper about 
 :1792 published of a young girl, a daughter of a peer, that 
 " she had made &favxpas with a gentleman of the shoulder- 
 knot," for which imputation she sued the publisher, and 
 no justification of the truth of such libel was offered. 
 Lord Kenyon told the jury, that the cause of injured in- 
 nocence was in their hands, and that they should teach by 
 their verdict that class of publishers who traded in scandal 
 the peril of their vocation. And the jury at once gave a 
 verdict of AOQOl? 
 
 Slamder and libel of professional miseonduet or in- 
 competency.— Anothex head of slander as well as libel is 
 where the professional or business character of a person is 
 involved. In order to make this kind of imputation 
 actionable, whether the words are spoken or written, no 
 
 1 Lynch v Knight, 9 H. L. C. 599 ; Parkins v Scott, 1 H. & C. 153. 
 ? Alsop V Alsop, 5 H. & N. 534. « 3 Camp, C. JJs. 66. 
 
176 LIBEETY OF PEESS AND SPEECH. [ch. ix. 
 
 special damage need be shown, for indeed the livelihood 
 of any man is thereby directly attacked, and hence damage 
 is presumed to follow naturally and inevitably. Words 
 therefore, imputing misconduct or gross ignorance con- 
 nected with some trade or business which is exercised 
 with profit or capable of being so, are actionable without 
 alleging special damage, though the same words might not 
 be actionable if not used in connection with such trade or 
 business. Such are words of the following tenor : imputing 
 that he (a tradesman) constantly cheats his customers ; ^ or 
 sells articles he knows to be bad ; ^ or uses false weights ; ' 
 or is bankrupt or insolvent, or can be made so ; * or that he 
 (a physician) is a quack ;^ that he (an apothecary) killed 
 a patient with physic ; ® that he (a physician) is so wanting 
 in skill or character that other physicians refuse to meet 
 him ; ' that he (a counsel) gives corrupt and deceitful 
 advice only to fill his own pocket, or disclosed his case to 
 the adversary ; ^ that he (a solicitor) is no lawyer, no more 
 lawyer than the devil is ; * or is well known to be corrupt ; ^'' 
 or that he hath no more law than C's bull, or than a 
 goose ;^^ or cheats his clients ; ^^ or had been reprimanded for 
 sharp practice. ^^ So if it is said of a clergyman beneficed, 
 that his conduct in paying a curate so savoured of fraud 
 that he ought to be degraded ; ^* or of a beneficed clergyman 
 that he was the father of a bastard child, and yet if the 
 clergyman was not beneficed this would not be actionable 
 per se ^^ ; or that he performed divine service in a towering 
 passion, and his conduct made infidels of his congrega- 
 tion. 1^ So it is to say of a Eoman Catholic bishop, that he 
 converted a priest by offers ' of money and preferment ;i^ 
 that a captain has an unseaworthy ship ; ^^ that an exhibitor 
 of flowers at exhibitions secures prizes by tricks and dirty 
 
 1 Eeeve v Holgate, 2 Lev. 62. = Evans v Harlow, 5 Q. B. 633. 
 5 GrifSths V Lewis, 7 Q. B. 65. * Brown v Smith, 13 C. B. 599 ; 
 
 EobinsoD v Marchant, 7 Q. B. 918; Shepheard v Whitaker, 4 E., 
 10 0. P. 502. 5 Goddart v Haselfoot, 1 Eol. Ab. 54. 6 Xutty v 
 Alewin, 11 Mod. 221. f Southee v Denny, 1 Exch. 196. 8 gngg 
 
 V Gray, 1 Eol. Ab. 57 ; King v Lake, 2 Ventr. 28. 9 Day v Buller, 
 
 3 Wils. 59. w Birchley's Case, 4 Eep. 16a. " Baker v Morfue 
 Sid. 327. 12 Alleeton v Moor, Het. 167. " Boydell v Jones, 
 
 4 M. & W. 446. " Pemberton v Colls, 11 Q. B. 461. w Gallway 
 
 V Marshall, 9 Exch. 294. « Walker v Brogden, 19 C. B., N. S. 65. 
 17 Tuam ■y.Eobeson, 5 Bing. 21. ^ Ingram v Lawson, 8 Scott, 478., 
 
CH. IX.-] SLANDERING ONE IN BUSINESS. 177 
 
 work.^ So to say that A had poisoned the foxes and 
 that his efiBgy had been burned in consequence;^ and that B 
 had systematically annoyed the plaintiff for years, and 
 dragged him unnecessarily into Chancery ; ^ that an article 
 sold by plaintiff had a silly, slangy, and vulgar name, 
 and had been forced on the notice of the public aA 
 nauseam.^ 
 
 In considering such cases it is to be recollected, that 
 certain qualities are more important to some professions 
 than to others. In one case the plaintiff, a public 
 prosecutor in high of&ce, was described as a " yiper-whom 
 my father nourished, who had once instilled principles of 
 rebellion into the prisoner (whom he prosecuted); and 
 then with a speech to evidence lashed him who was the 
 pupil of his own sedition." The judge held this was 
 libellous, because it implied that the plaintiff was in his 
 office forgetful of every principle of justice.^ Another 
 plaintiff, a Eoman Catholic archbishop, was described in 
 print by an editor as one " who published exhortations from 
 the pulpit to the people to be peaceful, when he knew all 
 the time of an impending insurrection, and though well 
 treated by the Government, yet treacheroiisly failed to 
 give notice of it to the authorities." This was . held 
 actionable because destructive of clerical character.^ And 
 so where an under-secretary of state was charged with 
 "dark and cowardly malignity, and stabbing an ofiicer 
 behind the back."' 
 
 Such words however must be used in connection with 
 the trade or business, and impute something prejudicial 
 to its useful and profitable exercise. Hence they are not 
 actionable if the business has entirely ceased to be carried 
 on or exercised ; * or if the words are mere general abuse 
 not affecting the special business ; ^ or if the matter 
 imputed is not essentially destructive of professional 
 character, as imputing to a medical man adultery, but not 
 with a patient.^" The older judges once said, that you may 
 
 1 Green v Chapman, 4 Bing. N. C. 92. « R. « Cooper, 8 Q. B. 
 533. 3 Fray v Pray, 17 C. B., N. S. 603, < Jenner v A'Beokett, 
 L. R.,7Q. B. 11. 5 piunket « Cobbett, 29 St. Tr. 80. « Troy 
 V Symonds, 29 St. Tr. 503. ? r. „ Drakard, 30 St Tr. 1025. 
 
 s Bellamy v Burch, 16 M. & W. 590. » Pemberton v Colls, 
 
 10 Q. B. 473. i» Ayre v Craven, 2 A., & E. 2. 
 
178 LIBERTY OF PEESS AND SPEECH. [en. ix. 
 
 " call a watchmaker a bungler, and that he does not know- 
 how to make a good piece of work, but, if you say he 
 don't know how to make a good watch," it is actionable.^ 
 At that time the judges were very jealous of these actions, 
 and construed everything as literally as possible against 
 the plaintiff. And so they said " You may call a merchant 
 a beggarly fellow and not worth a groat ; but if you add 
 that he is not able to pay his debts, this last assertion 
 wUl be actionable."^ And you may call an attorney " a 
 cheating knave," but if you say he cheated his clients, 
 that would be actionable.* 
 
 Rival tradesmen libelling each other. — There is still 
 one difficult class of cases, where one tradesman, by hand- 
 bills and circulars, in comparing his own wares with 
 another's of a like kind, uses words disparaging them as 
 unfit for the purpose. It is difficult here to draw the line 
 and say, when he transgresses the limits of free comment. An 
 action may lie for falsely asserting that goods are inferior, 
 though no imputation- is made on the person selling, especi- 
 ally if special damage result. But if details are given and 
 reasons for preferring one manufacture to another, there 
 is nothing actionable in this kicd of comment.* A trades- 
 man offering goods for sale exposes himself to observations, 
 and it is not by averring words to be false, scandalous, 
 malicious, and defamatory, that the plaintiff can found a 
 charge of libel upon them. To decide so would open a 
 very wide door to litigation, and might expose every man 
 who said his goods were better than another's to the risk 
 of an action. In one such case the defendant did not 
 caution people against any fraud in the plaintiff, but only 
 said, " He sells defective goods ; " any on'e selling the same 
 
 1 Redman v Payne, 1 Mod. 19. 2 3 Salk. 326. 
 
 s Hetley, 167. Lawkence, J., said, " Many of the old cases 
 on slander went a very absurd length. There is one, Gro. Jas. 
 184, where the charge was that the plaintiff had struck his cook 
 on the head with a cleaver, and cleaved his head ; the one part 
 lay on one shoulder and another part on the other; and yet the 
 judgment was arrested after verdict, because it was not directly 
 averred, that the cook was killed, but only argumentatively. All 
 these cases have been long set at rest."- — Woolnoth v Meadows, 
 5 East, 468. 
 
 •• Young V Macrae, 3 B. & S. 264; Western Co. v Lawes, L. E., 
 9 Exch. 218. 
 
CH. IX.] LIBELLING PUBLIC OFFICEBS. 179 
 
 articles would have as good a right to complain, as the 
 maker of them.^ 
 
 Defaming one who holds public or honorary office.— 
 While one who pursues a profession, trade, or business as 
 a means of livelihood may maintain an action, as already- 
 stated, there is an amplification of the same rule when 
 the office is merely honorary, such as that of a justice of 
 the peace, municipal officer, or a member of Parliament. 
 With respect to honorary offices, though pecuniary loss 
 may not be caused by the use of libellous words, yet the 
 holders of such offices are entitled to the protection of 
 such character and reputation as naturally belong to such 
 offices. Great mental capacity is not deemed a vital 
 essential : but perfect integrity, freedom from any flagrant 
 iminorality, and freedom from corrupt practices are 
 essential to the due discharge of such office. A justice of 
 the peace was once told to his face, that he was " a fool, 
 an ass, and a beetle-headed justice," and three out of 
 four judges of the High Court after argument held, that 
 these epithets were at the worst only an imputation of 
 defective mental acuteness, or " sounded in disability only," 
 and were not actionable as imputing anything corrupt or 
 dishonest or disaffected to the Government.^ Accordingly 
 it was actionable to say, that a justice was a Jacobite, for 
 that word was at the time synonymous with criminal 
 
 1 Evans v Harlow, 5 Q. B. 624. The Prince of Wales's gunsmith 
 was once held to have good cause of action against a man for saying 
 ". his guns were not good, that he was no artist, and was afraid to try 
 experiments with them ; " as these assertions were said to discredit 
 him in his business as a manufacturer.- — Harman v Dunsany, 1 
 Sir. 899. 
 
 Words imputing that an individual is afSicted with a contagious 
 disease, which causes his company to be shunned, are also action- 
 able without special damage.— Bloodworth v Gray, 7 M. S Gr. 
 334 ; 8 Sc. N. B. 9. As by imputing the itch.— Villers v Moulsey, 
 2 Wils. 403. The old cases abound in phrases imputing various 
 ailments of this description.— Clifton v Wells, 12 Mod. 633. But 
 words imputing past disease are not actionable. — Carslake v Maple- 
 doram, 2 T. B. 475. 
 
 2 Bill V Neal, 1 Lev. 52. Holt, G. J., afterwards gave the true 
 and. only reason, namely, that " it is no man's fault that he is a block- 
 head, for he cannot be otherwise than his Maker made him ; and 
 though a man cannot be wiser, he may be honester than he is." — 
 How V Prin, Cas. Holt, 652 ; 2 Salh. C94. 
 
 N 2 
 
180 LIBERTY OF PEESS AND SPEECH. [CH. ix. 
 
 designs against the Government.^ And it is the same if a 
 justice is called a liar, for that imports some quality in- 
 compatible with integrity of conduct as a magistrate.^ So 
 if he is called a bribing justice, as, for example, that he ■will 
 do anything for a couple of capons. And Twisden, J., 
 added, " So if he is called a debauched man " ; ^ and so if he 
 is called a hider of felonies ; * or if he is called directly or 
 indirectly a corrupt judge.^ But where a member of 
 Parliament was said never to keep "his word except to 
 serve his own interest," the court left it doubtful, whether 
 this was actionable.* 
 
 Libelling OTieholdimg office of profit. — When the office 
 or business is one of profit, the reason for the action of 
 slander or libel is self-evident, for many imputations 
 relating to such oifice naturally tend directly to damage 
 the holder, and reduce or destroy its emoluments. An 
 epithet may be harmless as to some offices which would 
 be ruinous as to others ; and to destroy any man's means of 
 livelihood-may well be admitted to be ah actionable wrong. 
 And such is the rule.'^ In considering, it is true, the appli- 
 cability of the words, it must be seen whether the words 
 have a natural tendency to cause injury, aad not merely 
 that they may probably do so. In most of the decided 
 cases the words clearly impute something gross and incom- 
 patible with honour, veracity, fidelity, and refer speci- 
 fically to the office. On the other hand, mere imputations 
 of a fault of morality or want of ability are not actionable 
 without alleging special damage.® 
 
 The action of sca/ndcdum magnatv/m. — One degree of 
 slander and libel, called scandalum magnatum, was singled 
 out in rude times as peculiarly flagrant, namely, scandalising 
 men in high position. This wrong rose into prominence 
 before the law had attained a settled condition, the glory 
 of which is to defend the reputation of all classes of men 
 with impartial hand, and most of all those, whose character 
 is their daily bread and not a mere flourish of wealth and 
 power. Nevertheless this law about protecting the repu- 
 
 1 How V Piin, 2 Salk. 694. = Aston v Blagrave, 1 Str. 617. 
 
 3 Kerle v Osgood, 1 Vent. 50. * Stuckley v Bulhead, 4 Coke, 
 
 16a, 19a. ^ Parmiter v Cbupland, 6 M. & W. 109. 6 Onslow 
 
 V Home, 3 Wils. 177. ^ Onslow v Home, 3 Wils. 186 ; Lumby 
 
 V Alday, 1 Cro. J. 305. ^ Hopwood i; Thom, 8 C. B. 313. 
 
CH. IX.] SCANDALUM MAONATUM. . 181 
 
 tation of great men was the root, which, growing in a rude 
 and ignorant age, afterwards expanded till it acquired its 
 present equal and impartial character. It has sometimes 
 been the wonder of modern times, that these statutes are 
 still unrepealed, as they are now seldom acted on.^ The 
 Bishop of St. David's told the earliest Parliament, that 
 slanderous persons were dogs that eat raw flesh, and they 
 must be punished.^ And accordingly the statutes were 
 passed soon after the Blact Death and the decline of vil- 
 leinage gave freer tongues to the lower orders ; though the 
 first statute was in the time of Edward I.* The second 
 statute was passed to protect the character of John of 
 Gaunt, but it enumerated all peers, judges, and great men 
 and officers of the realm as entitled to the same protection, 
 the reason alleged being, that the defamation of such may 
 occasion disputes between the Lords and Commons.* This 
 statute was said to be remarkable for no action being 
 brought under it for 120 years, though it was also at the 
 same time said to be only a declaration of the common 
 law.® Any criminal proceeding for libel was apparently 
 unknown until the tirne of Eichard II. Before that time, 
 or at least before the statute of 3 Edward I., mere words 
 were not actionable without special damage, it being ho 
 doubt an axiom of law as well as of manners, that these 
 petty provocations could be cured by a blow. 
 
 Though the remedy for seandalum magnatum was in 
 the form of a criminal proceeding, it was soon held that it 
 was a good cause of action, on the principle that if what 
 is prohibited is done to the special injury of an individual, 
 that individual may sue by action.* And it was even held 
 that the truth of the news was no defence, the only reason 
 
 ^ LoKD Campbell, though inclined to urge the legislature to repeal 
 these statutes, found it difficult to do so, as they did a very whole- 
 some thing in forbidding the telling of lies about great people. 
 
 2 2 Mod. 161. In the Buddhist code, to speak insultingly of a 
 man of the highest caste was so heinous a crime, that a red hot style 
 was thrust into the offender's mouth, or the tongue was cut out. — 
 Jolly's Insi Navada, c. 15. The Spanish Goths made it a penal 
 offence to call a great man gouty, or to omit his proper title in 
 writing to him a letter. — Feuro Real de Esp. 209. 
 
 3 3 Ed. I. 0. 34 ; 2 Eich. II. st. 1 o. 5 ; 12 Eich, IL c. 11 ; 3 Rot. 
 Pari. 168, 186. ^ 2 Rich. II. st. 1. * L. Townsend v Hughes, 
 2 Mod. 161 ; Freem. 222. e 2 Inst. 225. 
 
182 LIBERTY OF PRESS AND SPEECH. [ch. ix. 
 
 given being, that the king was concerned, that is to say, it 
 was a public offence. ^ The courts seem to have applied 
 the rules of the common law to the enforcement of this 
 remedy somewhat more liberally than modern notions 
 would allow. Lord Dorchester, in 1660, got a verdict 
 against the defendant for saying of him "He is no more to 
 be valued than the black dog which lies there." ^ Lord 
 Pembroke was held entitled to sue a man for saying, " He was 
 a pitiful fellow, and no man would take his word for two- 
 pence," ^ It was also held actionable to say, that the Lord 
 Chief Baron was deaf of one ear, as this was apparently 
 assumed to have a deep symbolical meaning.* Lord Town- 
 send, in 1676, brought an action against Dr. Hughes for 
 saying, " He was an unworthy man, and acted against law 
 . and reason." The jury gave a verdict for ifiOOL, and the 
 court held this was no ground for a new trial, as they 
 could not set a value on the plaintiff|s honour.^ All these 
 cases were, however, thrown into the shade a few years 
 later. The Duke of York, in 1682, obtained a verdict of 
 100,000^. against Pilkington for sayiug in the Guildhall, 
 at a meeting of aldermen of the city of London, that " the 
 Duke had burned the city and was now come to cut the 
 citizens' throats." The defendant chose to have the trial 
 in Hertfordshire, and the jury, who were all gentlemen of 
 quality, in a quarter of an hour found their verdict.^ A 
 verdict for the same amount was returned in another 
 action by the Duke against Colt ;^ and even against Titus 
 Gates, who, however, made no defence, they were equally 
 liberal.^ The Earl of Macclesfield, in 1686, sued Starkey for 
 saying, that the Earl was a seditious addresser, and obtained 
 a verdict of 10,000Z. And the same in an action of Duke 
 of Ormond v Hatherington.® During the last two cen- 
 turies peers and great men have usually contented them- 
 selves with ordinary remedies, and especially with the 
 remedy of criminal information. 
 
 Liability for repeating a slander or libel. — Great 
 looseness long prevailed in our law as to the position and 
 responsibility of one who repeated a slander or libel and 
 
 1 2 Mod. 166. M Sid. 233. ^ preem. 49. « Hetley, 167. 
 5 Townsend v Hughes, 2 Mod. 166. " Bulstr. Mem. 321 ; 9 St. 
 
 Tr. 299. ' 10 St. Tr. 126. » Ibid. 127. 9 10 St. Tr. 1334. 
 
ra. IX.] EEPEATING SLANDERS. 183 
 
 gave circulation to it ; and the misconception no doubt arose 
 out of the vague manner in ■which the early statutes ahout 
 false news, as we have seen, were framed. Such statutes 
 seemed to imply, that if those who repeated a slander only 
 gave up the author's name, they would escape all liability .^ 
 Lord Ellenborough, C. J., so late as 1804, said the rule laid 
 down in Coke's time,^ which was confirmed in a later case,^ 
 was, that, in order to enable a defendant to justify slanderous 
 words upon hearsay, he must disclose at the time«f uttering 
 the slander the name of the person from whom he heard it ; 
 and it was not sufficient to name him for the first time by 
 his plea. The object of this rule was said to be to give 
 the plaintiff his action in the first instance against the 
 original author of the slander.* And yet the same judge 
 held, that repeating a libel was no defence whatever in a 
 criminal proceeding.^ And another judge added, that it 
 was a very good rule, that if a party will repeat slanderous 
 words which he hears another say, he ought to-do so in 
 such a manner as will give the person injured an oppor- 
 tunity of bringing his action against somebody.* A little 
 later, however, it was said to be no defence in general to an 
 action, that the name of the author of the libel has been 
 given up, though it might be a good defence in particular 
 circumstances.^ And the rule to the contrary, once said to 
 be adopted in the time of Coke, was not applioable at least 
 to written words.* But neither the old rule nor the above 
 modification of it has stood the test of examination, either 
 as regards a written or a spoken calumny.^ If it were held 
 any defence, that one merely repeated the slander of 
 another, the slandered person would in many cases. have 
 no remedy whatever, for the original utterer may be a 
 pauper, or a prisoner, or a man of straw.i" The result, 
 therefore, now is, that he, who repeats a slander, is equally 
 liable with the originator, and cannot get guit of liability 
 by naming the first utterer ; nor though he stated it not as 
 
 1 See those statutes, ante, p. 53. ^ Northampton's Case' 
 
 12 Eep. 133. 3 Davis v Lewis, 7 T. E. 17. • * Woolnoth v 
 
 Meadows, 5 East, 469. » r_ ^ Drakard, 30 St. Tr.vl025. « Per 
 Lawrence, J., Woolnoth v Meadows, 5 East, 472. ' Per Tmdal, 
 
 G. J., Ward v Weeks, 7 Bing. 216 ; 145 Pari. Deb.t3) 74. 
 
 8 Tidman v Ainslie, 10 Bxch. 66. ' Crespigny v Wellesley 
 
 5 Bing. 404. i" Macpherson v Danels, 10 B. &. 0. 263 ; Watkin 
 
 V Hall, 9 B. & S. 279 ; L. E., 3 Q. B..396. 
 
184 LIBERTY OF PRESS AND SPEECH. [oh. ix. 
 
 a volunteer, but in answer to a q^uestion.' If, indeed, the 
 repetition does not purport to be a statement of a fact, but 
 rather to be for inquiry, no liability may be incurred. ^ But 
 the repetition of a slander is not even deemed the natural 
 and immediate consequence of first uttering it unless in very 
 special circumstances.® And the same remedy lies against 
 the one who repeats, as against him who invents a slander 
 or libel. 
 
 Excusable libels on privileged occasions. — Such being 
 the nature of the attacks upon reputation which the law 
 punishes, it is now necessary to consider what are ex- 
 cusable libels, or libels which the law wUl not punish. 
 The rights of free speech are so constantly in exercise, and 
 directed to subjects so widely diversified, that libels are all 
 but inevitable not only from the recklessness, passion, and 
 malignity of many, but also from certain urgent occasions 
 besetting others, and which may involve no blame, but 
 rather may do much good. Some libels are excused for 
 this reason, that they are committed in the course of some 
 lawful occupation, which ranks higher in the general esti- 
 mation by being a benefit to great numbers, than the 
 injury donei which is usually confined to one person only. 
 When the two rights are incompatible, the law must make 
 a distinction and prefer one to the other; and many 
 examples will be found of this necessity. It is better 
 that one person should suffer than that all should go with- 
 out some necessary protection in the course of their own 
 lawful and urgent business affairs.* 
 
 Meaning of the words "privileged occasion, privi- 
 leged commtmication." — Though it has become an inve- 
 terate habit to use the words " privileged occasion," and 
 "privileged communication," to denote certain circum- 
 stances under which something that would be actionable 
 ^er se ceases to be so when the occasion is taken into ac- 
 count, it is a misapprehension of the meaning of words 
 to call it a privilege. What is reaEy meant is in no sense 
 a privilege, but is a right, namely, the right to carry on 
 one's business or. to take advantage of one's situation and 
 
 1 GrifSths v Lewis, 7 Q. B. 64. » Crawford v Middleton, 
 
 1 Lev. 82. 1 Vicars v Wilcooks, 8 East, 3 ; Knight v G-ibbs, 
 
 1 A. & E. 46 ; Parkins v Scott, 1 H. & 0. 153. * See also ante, 
 
 chap. i. 
 
en. IX.] PRIVILEGED OCCASIONS. 185 
 
 circumstances, and this last is only another way of saying, 
 that each is entitled to manage his own affairs for his own 
 advantage. The carrying on of business often inevitably 
 involves the necessity of slandering or libelling some third 
 party. The slander or libel in such circumstances is, 
 however, only an incident to the lawful business so carried 
 on, and feeing not invented or used for the purpose of libel 
 or slander or injury, is in precisely the same position as a 
 blow or even a hemicide committed in self-defence or 
 under some proper justification. Thus the giving of a 
 servant's character between master and master is part of 
 the legitimate business of life, and unless the truth were 
 spoken on such an occasion society could scarcely go on. 
 Therefore, whenever in the exchange of this kind of in- 
 formation something is said which would be a slander or 
 libel of the servant if no such occasion existed, it can be no 
 cause of action. I^or the law deems it more important 
 that characters should be given truly than that any one 
 servant should suffer inconvenience from such a practice. 
 The former ranks higher in the eye of the law, and the 
 latter, being an inevitable incident, is deemed damnum 
 absque injurid. Thus the use of the word "privileged 
 communication " is due to some confusion of thought, for 
 masters have no more a privilege to libel a servant than 
 any person who has to defend his life has a privilege to 
 slay the attacking party. The same expression of privilege 
 is often used as an occasion of negativing naalice, and this 
 again is only a short expression to indicate that the person 
 suspected of the malice was not doing the act or uttering 
 the slander or libel in course of any lawful business of his 
 own which the law protects. The more correct descrip- 
 tion of libels on these privileged occasions, as already stated, 
 is to call them excusable libels, and with this explana- 
 tion the two expressions are used as convertible. Most of 
 these excusable libels or privileged occasions have been 
 reduced to a few well-known g^^neijal heads, which require 
 to be noticed as exceptions to the general rule governing 
 libel and slander.^ Whenever a person not in the exercise 
 of any lawful business of his own which the law protects, or 
 not requiring so to act in self-defence, or for any reasonable 
 
 1 Wright 1} Woodgate, 2 C. M. E. 673 ; Per Erie, J., Gilpin v 
 Fowler, 9 Bxch. 615. 
 
186 LIBERTY OF PRESS AND SPEECH. [ch. is. 
 
 object, goes out of his way to attack another's character 
 and social reputation, and thereby does injury either 
 actual or reasonably probable, then it is that a defamatory 
 act is committed — the degree and the occasion and subject 
 matter furnishing the characteristic test. When one over- 
 steps the limits of this kind of lawful business and of just 
 comment on his neighbour's character, then it is that the. 
 wrong win be committed. The difficulty always lies in 
 detecting, when this line has been transgressed — when 
 lawful business ends and unlawful attack begins. 
 
 Whenever, therefore, a person is exercising those rights 
 of free speech mentioned in the previous chapters, such as 
 the right of comment on all public matters, the publishing 
 of debates of Parliament and reports of courts of justice, 
 he is in the pursuit of his own lawful business, for the 
 public business to that extent is his private business, 
 and the law will protect him at all hazards. And over 
 and above those occasions, whenever the alleged slan- 
 derer or libeller had some interest of his own in the nature 
 of business or friendship, or urgent moral duty, and acts 
 honestly in the promotion of such interest or duty, and not 
 with the sole view of injuring a third pe^rty, in these 
 circumstances also the law will protect him in his right 
 of free speech at all hazards.^ 
 
 Excuse of libel in giving servants' cha/racters- — One 
 
 1 Toogood v Spyring, 1 C. M. & R. 193. " In "general an action liea. 
 for the malicious publication of statements which are false in fact 
 and injurious to the character of another (within the well-known 
 Emits as to verbal slander). And the law considers such publication 
 as malicious, unless it is fairly made by a person in the discharge of 
 some public or private duty, wliether legal or moral, or in the con- 
 duct of his own affairs in matters where his interest is concerned. 
 In such cases the occasion prevents the inference of malice, which 
 the law draws from unauthorised, communications, and affords a 
 qualified defence, depending upon the absence of actual malice. If 
 fairly warranted by any reasonable occasion or exigency, and honestly 
 made, such communications are protected for the common conve- 
 nience and welfare of society, and the law has not restricted the right 
 to make them within any narrow limits." — Parke B., Toogood v 
 Spyring, 1 C. M. R. 181. 
 
 " Though the word ' privilege ' is used loosely in several cases as 
 applied to the right which every person has to comment on public 
 matters, the real question is whether the alleged libel is a fair com- 
 ment such as every person might make upon a public matter, and 
 if not there is no privilege." — Campbell v Spottiswoode, 3 B. & S. 779. 
 
CH. IX ] GIVING SERVANTS' CHARACTERS. J 87 
 
 of the most frequent occasions of alleged libel is where one 
 master gives to another an account of the character of a 
 servant. As the business of life could not go on, unless a 
 true account were given by one employer to another of 
 whatever faults had been experienced, it is inevitable that 
 some things stated truly should detract from the servant's 
 character. But to allow this incident to interfere with the 
 lawful business of mankind in giving and receiving these 
 honest reports would be preferring the small to the great. 
 As Lord Ellenborough said, the communications of business 
 are not to be beset with actions of slander.^ Nevertheless 
 this delicate business of giving a servant's character must 
 be done with care, and all the consideration towards the 
 servant which due regard to the primary object admits of. 
 On these necessary occasions of inquiries between masters, 
 though the master referred to is not bound to make any 
 statement in answer, and if he refuse either to answer 
 or give details of the truth of his answer, this is no 
 evidence of malice,^ yet if he do answer, whatever he says 
 must be honestly helieved to he true as to the character of 
 the servant so far as he knew the whole facts. And slight 
 circumstances will show a malicious feeling as the real 
 motive, such as the master's saying, that " He has already 
 given two characters, and begs not to be troubled again," ^ 
 Moreover the master is not excused, if he be acting as a 
 volunteer, and not in answer to questions put to him. 
 And yet if he first volunteer information, and then be 
 asked to give further particulars, this last inquiry will 
 lead the jury to say, whether the whole matter, from the 
 first to the last, was volunteered and malicious.* And the, 
 late master is still, acting in discharge of this public duty 
 when he communicates to the intending master any cre- 
 dible information he has received of misconduct of the 
 servant after leaving the situation ; ^ and it is within the 
 limits of the privilege, if he mention the character to two 
 previous masters who had recommended such servant to 
 him, though they had not asked him for his report.® And if 
 he has given what he honestly believed a correct character, 
 
 1 McDougall 1} Christie, 1 Camp. 267. " Harris v Thompson, 
 
 13 C. B. 348. 3 Fountain v Boodle, 3 Q. B. 5. * Pattison v 
 
 Jones, 8 B. & C. 578. See also Fryer v Kinnersley, 15 C. B., N.S. 
 422. 5 Child '0 Affleck, 9 B. & C. 403. « Ibid. 
 
188 LIBERTY OF PRESS AND SPEECH. [ch. it. 
 
 but -which he has since discovered to be undeserved, it is 
 part of his duty to communicate this fact, for the privilege 
 lasts as long as anything is undiscovered relating to 
 the subject matter.^ Though a master in giving a charac- 
 ter of a servant, when asked for it, is not bound in the 
 first instance to give evidence of its truth, yet if an 
 action is brought by the servant, who gives primd facie 
 evidence that the character given was not true, it is then 
 incumbent on the master to give some evidence of its 
 truth, otherwise malice may be inferred against him.^ A 
 like privilege also extends to the master when giving an 
 answer separately to two fellow servants who demand 
 each the reason for his dismissal — the answer, for example, 
 being, that both had robbed him.^ And even when a 
 master, on alluding to a dismissed servant, volunteers the 
 reason of such dismissal as a caution to the fellow servants, 
 this statement will be protected as made under a sense of 
 duty.* In one case the master dismissed S, a servant, and 
 when asked for a character replied, that he had dismissed 
 S for dishonesty. Afterwards S's brother again asked the 
 master the reason why he was so treating S, and keeping 
 him out of a situation, and the reply was " He has robbed 
 me, and I believe for years." On an action being brought 
 only one instance of robbery was proved ; but the court 
 held the whole answer was privileged, though the words 
 were put a little too strongly. ^ 
 
 And even a volunteer may in some cases honestly give 
 information to a master about malpractices of his servant, 
 if the volunteer is also interested in the subject matter of 
 these malpractices.^ As Tindal, C. J., said, a man who re- 
 ceived a letter informing him that his neighbour's house 
 would be plundered or burnt on the night following by 
 A and B, and which he himself believed and had reason 
 to believe to be true, would be justified in showing that 
 letter to the owner of the house, though it should turn out 
 to be a false accusation of A and B.'^ Any restriction on 
 such honest communications, even from a stranger, would 
 
 1 Gardiner v Slade, 13 Q. B. 801. = Rogers v Clifton, 3 B. & 
 
 P. 591 ; Fountain v Boodle, 3 Q. B. 5. » Manby v Witt, 
 
 18 0. B. 644. l-A Somerville v Hawkins, 10 C. B. 583. 6 Taylor 
 «Hawljins, 16 Q. B. 308. '' Maodougall v Claridge, 1 Camp. 267. 
 ' Coxhead v Richards, 2 C. B. 596. 
 
CH. IX.] CONFIDENTIAL STATEMENTS. .189 
 
 operate as a great restraint upon the performance of the 
 various social duties by which men are bound to each 
 other.i In all such occasions of giving a servant's charac- 
 ter, it is true, the one master should make the communi- 
 cation to the other master privately ; still there is no rule 
 that, if a third party is present, this will of itself destroy 
 the privilege as showing malice, for such nicety of conduct 
 is often impracticable.^ And where the master on giving 
 the character calls in a friend to witness what is said, this 
 will be no evidence whatever of malice in the master, but 
 is often a very prudent precaution for everyone to adopt. ^ 
 Excuse of slander and libel as between those confi- 
 dentially related. — A similar excuse for libel exists iu 
 those occasions of confidential relationship which natur- 
 ally lead one relative or friend to communicate to another 
 whatever is of value to their mutual interests. On such 
 occasion a communication with a view to prevent injury 
 to a friend, though volunteered, is privileged, if naturally 
 arising out of the duty of friendship, and if the party is 
 not using that relationship as a pretext for libel or for 
 retailing idle gossip. Such was the case of a son-in-law 
 warning his stepmother, a widow, as to the character of a 
 suitor of hers.* And when one friend consults another 
 confidentially as to a matter of business or personal in- 
 terest to himself, the answer is privileged; as when a 
 tenant on invitation tells his landlord about what he has 
 noticed as to the game on the estate ; ^ when a friend is 
 asked as to the character and charges of a solicitor about 
 to be employed ; ® or as to reputed misconduct of a third 
 person.' And the same privilege will protect future 
 
 1 Coxhead v Richards, 2 C. B. 596. ^ Toogood v Spyring, 
 
 1 0. M. E. 193. 3 Taylor v Hawkins, 16 Q. B. 308. 
 
 * Todd V Hawkins, 2 M. & Rob. 21. A mate of a ship wrote to 
 his friend D, giving a long account of the captain's drunken fits and 
 danger thus caused, and D, who had no interest in the ship, in- 
 formed the shipowner, who discharged the captain. The court was 
 equally divided as to how far this was a privileged communication 
 of D;— Coxhead v Richards, 2 C. B. 605. Aijd the same court was 
 equally divided as to whether a caution given by fA voluntarily to 
 a ti:ader not to trust one D, the reason^given being that D owed a 
 large debt to A, was a privileged coramuriication. — Bennett v 
 Deacon, 2 0. B. 628. 
 
 5 Cockayne v Hodgkinson, 5 C. & P. §43. « Macdougall v 
 
 Claridge, 1 Camp. 267. ' Hopwood v Thorn, 8 0. B. 293. 
 
190 LIBEETY OF PRESS AND SPEECH. [ch. ix. 
 
 communications between the confidential parties arising out 
 of the same matter.^ And if a comparative stranger himself 
 apply to B for information, he may create a confidential 
 relation between them which will estop him or any other 
 from treating B's answer as libellous.^ As where a shop- 
 keeper, believing A's servant had stolen something from 
 his shop, went and told A the reasons of his suspicion, 
 this was held privileged.^ But there is no confidential 
 relation or privilege between the agents of two members 
 of Parliament which would justify one of them who im- 
 putes bribery to a voter for the other.* In one case a 
 tradesman received a written order for. goods in the name 
 of S, and sent the goods ; these S returned, saying he had 
 never ordered them. Thereupon the tradesman sent for 
 inspection to S the written order itself, which S returned 
 with a letter stating, that he believed the order was written 
 by C, who afterwards sued S for libel. But the court held 
 the answer was a fair one to such an inquiry, though rather 
 going beyond it, and therefore being a privileged commu- 
 nication, S was not responsible.^ In another case the in- 
 cumbents of two parish churches corresponded about the 
 conduct of a member of one of the churches while visit- 
 ing in the other parish, and a dispute about that member 
 purchasing a horse arose, in which the one incumbent asked 
 the other to be arbitrator. The incumbent so asked to 
 arbitrate on further inquiry reported certain things to the 
 discredit of the purchaser, and the court held that this all 
 arose naturally out of the privileged communication, and 
 was not actionable.^ And so where P was asked by a sub- 
 scriber to the same charity to support one of the trustees, 
 and P in answer stated things to the discredit of that 
 trustee, the answer was held protected from liability. '^ 
 
 In written communications between parishioners and 
 the clergyman, or between members of a congregation and 
 their pastor, there is no privilege protecting the clergyman 
 qud clergyman. A clergyman has no such close interest 
 in the morals of his parishioners as to justify him in 
 
 1 Beatson v Skene, 5 H. & N. 855. ^ Hopwood v Thorn, 8 C. B. 
 316. 8 Amann v Damm, 8 0. B., N. S. 697. « Diokeson v 
 
 Billiard, L. R., 9 Exch. 79. » Oroft v Stevens, 7 H. & N 570. 
 
 6 Whiteley v Adams, 15 0. B., N.S. 392. ? Cowles v Potts, 
 
 34 L J., Q. B. 247. 
 
CH. TX.] PROTECTINa ONE'S INTEEESTS. 191 
 
 publishing a circular warning them against sending their 
 children to the school of G, a parishioner, because in the 
 opinion of such clergyman G had committed some in- 
 fringement of the precepts of Scripture.^ But a parish- 
 ioner may well mention to his own parish clergyman 
 suspicions as to the conduct of such clergyman and of 
 his solicitor, who were acting as trustees in a private 
 matter.^ And where a bishop, commenting on certain 
 charges made about his exercise of patronage, addressed 
 his clergy in convocation in self-vindication, and pub- 
 lished this charge, it was held that his interest was such 
 as to justify both the address and its publication. ^ 
 
 Excuse of libel in protecting peGuniary interest. — On 
 similar -principles to those governing friendly and confi- 
 dential relationships, where a person has a pecuniary in- 
 terest in the subject matter, and while honestly believing 
 he is protecting it, libels a third party, this also is an 
 excuse for what is done. Such cases arise where a party 
 interested communicates to a bank misconduct of their 
 solicitor ; * where a ratepayer complains to his parish 
 vestry of their parish constable's accounts ; ^ where a 
 creditor gives notice of an act of bankruptcy of his 
 debtor to an auctioneer who is employed by the debtor 
 to sell his goods ; ® where a solicitor writes in self-vindi- 
 cation to his client in answer to a proposal to dispense 
 with such solicitor's" services.'^ A subscriber to a charity 
 has no such legal interest in the charity, or such relation- 
 ship to other subscribers as to justify his slandering or 
 libelling to those others the conduct of an official of the 
 charity ; ^ but one creditor of a bankrupt has an interest 
 in writing to another creditor about the conduct of their 
 common debtor.® And one director may rightly complain 
 to his fellow-directors about their common officer.^* But 
 there is no sufficient interest in a voter at an election to 
 justify the latter publishing in a newspaper a libellous 
 statement about the Parliamentary candidate for his 
 
 1 Gilpin V Fowler, 9 Exch. 615. ^ Davis v Snead, L. R., 6 Q. B. 
 608. ' Laughton v Sodor, L. B., 4 Priv. C. 495. « Maodougall 
 V Claridge, 1 Camp. 266. ^ Spencer v Ameston, 1 M. & Rob. 470. 
 
 6 Blackham v Pugh, 2 C. B. 611. ? Wright v Woodgate, 2 0. 
 
 M. & E. 573. 8 Martin v Strong, 5 A. & E. 538. ^ Spill v 
 
 Maule, L. E., 4 Exch. 232. i" Harris v Thompson, 13 C. B. 333. 
 
192 LIBERTY OF PEESS AND SPEECH. [ch. i?.. 
 
 district, though he might comiminieate his statement to 
 other voters ; ^ nor in an officer of the navy writing to 
 Lloyd's imputing misconduct to a captain of a transport 
 ship.^ Where a wife advertised a reward for evidence of 
 a previous marriage of her husband, the inference being 
 that he was suspected of bigamy, this was held a privileged 
 publication on the part of the publisher of a newspaper as 
 being merely a mode of procuring evidence of a fact in 
 which she was interested ; ^ though subsequent judges dis- 
 credited stich a decision on the ground that a wife had no 
 such substantial interest as that suggested.* And it has 
 been held justifiable to publish an advertisement, offering 
 a reward for information enabling a sheriff's ofScer to take 
 a person into custody.^ ' 
 
 Sometimes a publication may be justified on the ground 
 of self-defence, provided the latter ground is not exceeded. 
 Thus where a shareholder had published a pamphlet in- 
 sinuating fraud in the directors, the latter were held justi- 
 fied in publishing a reply, though such reply contained 
 libellous allegations against the shareholder who attacked 
 them.^ In one case, where all that was required was simply 
 to deny the plaintiff's assertion, the defendant, not content 
 with that, went on to add, that such assertion was a mean 
 and dishonest attempt to defraud the defendant ; this was 
 held to be an abuse of the privilege.^ In short the general 
 rule which is applicable to all attacks upon others in self- 
 defence applies equally to occasions in which one has 
 libelled another in defence of his own interests and friend- 
 ships, namely, that it must be reasonably pertinent to 
 such defence, and neither exaggerated nor reckless in its 
 insinuations, though mistaken.® 
 
 A privileged occasion must not he abused to cloak 
 malice. — Thus while the law excuses a man for preferring 
 his own interest to that of his neighbour, it exacts a strict 
 account of any excessive or reckless disregard of that 
 
 1 Dunoombe v Daniel, 8 C. & P. 222. = Harwood v Green, 
 
 3 C. & P. 141. 3 Delany v Jones, 4 Esp. 191. * Lay v Lawson, 
 
 4 A. & B. 795. 6 Ibid. -^ Koenig v Eitohie, 3 F. & F. 413 ; 
 E. i; Veley, 4 F. & P. 1117; Lawless v Anglo-Egypt. Co., L, R., , 
 4 Q. B. 262. ' Tuson v Evans, 12 A. & E. 733. 8 Wright v 
 Woodgate, 2 C. M. & R. 573 ; Cooke v Wildes, 5 E. & B. 335 ; 
 Toogood V Spyring, 1 C. M. & E. 194. 
 
CH, IX.] LIBELS ON INTERIOR OFFICERS.' 193 
 
 neighbour's rights, even though selfish purposes are justly 
 deemed superior. Malice and spite are to be distinguished 
 from a sober, rational, and steady regard to one's private 
 interests ; and whenever it can be seen, that this selfish 
 object was not solely and reasonably kept in view, but 
 spite and malice were mixed up with it, then the privilege 
 is lost and the libel remains without excuse. Thus where 
 a letter or private communication might have been 
 privileged, it is otherwise when the contents are put in 
 a telegram and so published.^ But where the occasion is 
 privileged, it is for the plaintiff to make out that the 
 defendant either knowingly or from some indirect motive 
 made a false or reckless statement; and if he had an 
 honest belief, that the statements were tme, though in fact 
 he had no reasonable grounds for such belief, he wUl be 
 within the protection of the privilege.^ In such cases a 
 twofold inquiry is demanded. It is exclusively for the 
 judge to say, whether there is in the circumstances a fair 
 basis for the privilege claimed.^ And it is equally for 
 the jury exclusively to say, whether that privilege was 
 exceeded, and spite and malice governed the slanderous 
 or libellous act.* 
 
 Libellous complaints to official superiors of a party. 
 — ^When the libel relates to some public official, and is 
 contained in a letter to a Secretary of State or other high 
 officer, and so the document is privileged, an action can 
 seldom be maintained, because the libel cannot be got at. 
 The Secretary of State is not compellable to produce it, 
 nor will secondary evidence be admitted of the contents.^ 
 Nevertheless when an opportunity occurs of obtaining 
 knowledge of those communications, if there is a basis 
 of iuterest and a fair and temperate complaint, this is a 
 privileged communication. Thus it is, if one complains to 
 a proper authority for redress of some wrong suffered by 
 
 1 Williamson v Freer, L. R., 9 C. P. 393. ^ ciark v Molyneux, 
 3 Q. B. D. 237 ; Spill v Maule, L. B., 4 Bxch. 235. ^ Taylor v 
 
 Hawkins, 16 Q. B. 321 ; Whitelpy v Adams, 16 C. B., N. S. 392. 
 
 * Ibid. Cooke v Wildes, 5 E. & B. 335. The point has been raised 
 •whether, if the libel is sent to a wrong person, the privilege, if ap- 
 plying to the right person, would extend to this. — Harrison « Bush, 6 
 E. & B. 350. 
 
 5 Anderson v Hamilton, 2 B. & B. 157n ; 8 Price, 244n ; Staoe v 
 Griffith, L. R., 2 Priv. C. 428. 
 
 
 
194 ■ LIBEETY OF PRESS AND SPEECH. [ch. ix.i 
 
 the complainant.^ As where an inhabitant addressed a 
 complaint about a magistrate of his district to the Lord 
 Chancellor or Home Secretary as to the conduct of such 
 magistrate.^ A creditor of an officer in the army honestly 
 represented his misconduct as to bill transactions to the 
 Secretary at War and expecting redress ; and he was held 
 privileged.^ And so was a parishioner writing to his bishop 
 as to the incumbent's conduct.* In such a case the fact that 
 the complaining party mistook the powers of the quarter 
 addressed by him will not prevent the privilege attaching, 
 if the mistake was not unreasonable.^ In such official 
 reports by public officers to their superiors, however, a 
 libel will not be privileged, unless it be relevant to the 
 subje6t-matter, and be honestly believed to result by way 
 of fair comment on the facts ; as when a clerk of peace 
 complains to justices about the accounts relating to county 
 business.* 
 
 The cases of communications between military men in 
 course of their duty are also privileged ; and even though 
 it is alleged, that an officer has maliciously reported of 
 another officer something which was properly relating to 
 the subject matter, the report wiU give rise to no action, 
 for no action can lie against a man for maliciously doing 
 his duty. In this respect a military officer stands in the 
 same situation as a judge, and his duties are too delicate 
 and onerous to admit of his being harassed by actions. As 
 was said by Lord Mansfield C. J. and Lord Loughborough, 
 " commanders in a day of battle must act upon delicate 
 suspicions, upon the evidence of their own eyes ; they 
 must give desperate commands ; they must require in- 
 stantaneous obedience. In case of a general misbe- 
 haviour, they may be forced to suspend several officers 
 and put others in their places. A mUitary tribunal is 
 capable of feeling all these circumstances and understand- 
 ing that the iirst, second, and third part of a soldier is 
 obedience. But what condition will a commander be in, 
 if, upon the exercising of his authority, he is liable to be 
 tried by a common law judicature. If such an action 
 
 1 Woodward v Lander, 6 C. & P. 548. ' Harrison v Bush, 
 
 6 E. & B. 344. ' Fairuian v Ives, 5 B. & Aid. 644. * James 
 
 V Boston, 2 C. & K. 8. ' Fairman v Ives, 5 B. & Aid. 644 ; 
 
 Harrison v Bush, 5 E. & B. 344. « Cooke v Wildes, 6 E. & B. 340;, 
 
OH. IX.] LIBELS IN LAW COUETS. 195 
 
 is admitted every acquittal before a court martial will 
 produce one."i 
 
 Excuse of slander or libel in judicial proceeding. — 
 It has been seen, that one of the primary rights of the 
 subject is to be present in courts of justice and to publish 
 the proceedings, as having an interest, common to all, in 
 what is done in such courts. These proceedings being 
 undertaken either from a sense of public duty or strong 
 personal interest, the statements made in the ordinary 
 course of such proceedings are primd facie privileged, and 
 no action lies for slander or libel published, if it is pertinent 
 to the matter. Thus it is with a charge of felony honestly 
 made to a constable or justice,^ or a charge of perjury 
 made by a parishioner to justices against a constable about 
 to be elected by his vestry.^ And a counsel or advocate 
 conducting a cause in court is exempt from liability for 
 comments and insinuations against third parties, if these 
 are relevant. * And allegations in course of the pleadings 
 in suits or in the affidavits relating thereto, and by wit- 
 nesses, are all privileged from action,^ even though malice 
 is alleged against the witness.* If the moment the wit- 
 ness swerves from the truth an action were to lie against 
 him at the suit of the party injured, this would be 
 convicting a man of a' crime of which, he could not be 
 convicted in a court of criminal jurisdiction without the 
 concurring testimony of two. It might be different indeed, 
 if the process of the court were abused maliciously, and 
 without reasonable or probable cause.^ The great object 
 of the law is to allow witnesses to speak freely without 
 fear of consequences.^ Therefore when a witness gave an 
 answer which was not relevant yet had reference to the 
 inquiry, and was in supposed vindication of his own 
 character, it was held not actionable as slander.* 
 
 It was long thought doubtful, whether a judge might 
 not be liable for words spoken in course of his judgment 
 
 1 Sutton V Johnstone, 1 T. R. 549. Dawkins v Paulett, 9 Bi & S. 
 768 ; L. E., 5 Q. B. 904 ; L. R., 7 H. L. 744. ^ Padmore v Laurence, 
 11 A. & E. 382. ' Kershaw v Bailey, 1 Exch. 743. " Hodgson. 
 
 V Scarlett, 1 B. & Aid. 244 ; Mackay v Ford, 6 H. & N. 792. » Revis 
 
 V Smith, 18 C. B. 126. « Dawkins v Rokeby, L. R., 7 H. L. 754. 
 ' Revis V Smith, 18 C. B. 140 ' Henderson v Broomhead, 4 H. 
 & N 669. ^ Seaman v Netherclif t, 2 C. P. Div. 66. 
 
 2 
 
196 LIBERTY OF PRESS AND SPEECH. [ch. ix. 
 
 or on the hearing, which were not pertinent or were said 
 maliciously and without probable cause. Thus it was said 
 by a judge in 1842 : — " I have no doubt in my mind that 
 a magistrate, be he the highest in the land, is answerable 
 in damages for slanderous language, either not relevant to 
 the cause before him or uttered after the cause is at an end ; 
 but for words uttered in the course of his duty no magistrate 
 is answerable either civilly or criminally, unless express 
 malice and the absence of reasonable and probable cause 
 be established."^ But on further examination it was 
 made clear, that, no matter what is the allegation as to 
 motive or reasonable or probable cause, no action will lie 
 against a judge, including a county court judge, for words 
 spoken in course of his duty. The reasons given are, that 
 " the provision of the law is, that judges should be per- 
 mitted to administer that law with independence and 
 without fear of consequences. How could a judge so 
 exercise his- office, if he were in daily and hourly dread of 
 an action being brought against him, and of having the 
 question submitted to inquiry, whether a matter on which 
 he had commented judicially was or was not relevant to 
 the case before him ? Again if a question arose as to the 
 hormfdes of the judge, it would have, if the analogy of 
 similar cases is to be followed, to be submitted to a jury." ^ 
 In such cases there is no remedy but to apply to the usual 
 quarter for removing a corrupt or incompetent judge, 
 which is done by resorting to Parliament as to the judges 
 of the High Court, and to the Lord Chancellor as to county 
 court judges and justices of the peace. For though judges 
 are privileged from actions for mistakes in law and for 
 libellous words used in j adicial matters, they are not ex- 
 empt from other punishment for corruption or gross mis- 
 behaviour in their office ; as was seen in the notable cases 
 of Bacon and Macclesfield and some recent judges of 
 inferior degree.^ And for misconduct out of their office, 
 as for libel, they are amenable to the ordinary remedies.* 
 
 1 L. Denman, C. J., Kendillon vMaltby, Car. & M. 409. See also 
 per Gocichwm C. J. , in Thomas v Churton, 2 B. & S. 479. See also 
 Fray v Blackburn, 3 B. & S. 576. " Scott v Stansfield, L. R 
 
 3 Exch. 220. 3 E. ^ L. Bacon, 2 St. Tr. 1087 ; R. v L. Macclesfield' 
 16 St. Tr. 767; Exp. Ramshay, 18 Q. B. 173; R. v Badger, 
 
 4 Q. B. 468. 
 
 * Be Justice Johnson, 29 St. Tr. 81. " It is not to be supposed 
 
OB. IX.]. LIBELLOUS PAELIAMENTAEY PAPEBS. 197 
 
 Excusable slanders by justices of the peace amd others. 
 — The same rule applies for the protection of justices of the 
 peace, who, when they act in the course of their duties 
 judicially are not liable for words spoken against third 
 parties or the parties concerned, whether malicious or not. 
 But their acts may sometimes be redressed in another way, 
 at least as against a defendant, by an action on the case, 
 should their judgment be acted on, if it is done maliciously 
 and without reasonable or probable cause.^ And if the 
 judgment is without jurisdiction, as where the justice with- 
 out any evidence wilfully and maliciously convicts a person 
 brought before him, an action would lie against the justice ; ^ 
 for, when the conviction is quashed, the justice would have 
 no means of defending himself A coroner is also privi- 
 leged in his address to the jury — at least if there is reason- 
 able and probable cause for what he says.* And there 
 seems no reason why he should not have the same im- 
 munity as other judges; seeing that there is a remedy 
 also for misconduct* 
 
 Excfuse of libel in pubUshiny speech delivered in 
 Pwrlia/ment. — Notwithstanding that it is settled, as al- 
 ready stated,^ that a third party may with impunity 
 publish debates and proceedings in Parliament, though 
 these may be libellous to individuals therein described, 
 yet the question has been raised, whether a member of 
 Parliament who himself publishes a speech which he has 
 delivered in Parliament, and which contains libellous 
 matter, escapes all liability to the person libelled. In one 
 
 beforehand that thoae, who are selected for the administration of 
 justice, will make an ill use of the authority vested in them. Even 
 inferior justices and those not of record cannot be called in question 
 for an error in judgment, so long as they act within the bounds of their 
 jurisdiction. In the imperfection of human nature, it is better even 
 that an individual should occasionally sufEer a wrong, than that the 
 general course of justice should be impeded and fettered by constant 
 and perpetual restraints and apprehensions on the part of those 
 who are to administer it. Corruption is quite another matter, so 
 also are neglect of duty and misconduct in it. For these there is, 
 and always will be, some due course of punishment by public 
 prosecution." — Lord Tenterden, C. J., Gamett v Ferrand, 6 B. 
 & a 626. 
 
 1 11 & 12 Vic. c. 44, § 1. 2 Gelen v Hall, 2 H. &' N. 393. 
 
 ' Thomas v Ghurton, 2 B. & S. 475. * Garnett v Perrand, 
 
 6 B. & C. 625. 5 j^nte, p. 117. 
 
198 LIBEETY OF "PRESS AND SPEECH. [oh. ix^, 
 
 instance a peer had in the House of Lords delivered a 
 speech defamatory of a solicitor and then published such 
 speech; whereupon the solicitor sued the publisher, and 
 the judge directed a jury, that the publisher was liable, 
 if the object of the peer delivering it was merely to 
 make the speech a vehicle of the libel.^ And again, a 
 member of the House of Commons sent a copy of his 
 speech to a newspaper editor, requesting it to be published 
 on the alleged ground, that incorrect copies had already 
 appeared, and it contained libellous attacks on a third 
 party, who sought redress against the member. The court 
 held, that if a jury found the motive of publication was 
 rather to circulate the libel as a Kbel, than to promote' the 
 public good by issuing a correct version of the speech, he 
 was liable to the ordinary remedies against libel, for he 
 was acting on his own responsibility out of the course and 
 order of Parliament.^ Nevertheless, if the object of a mem- 
 ber of the House of Commons is to inform his constituents 
 correctly of what he has done, and of this speech as part 
 of his conduct, it can scarcely be doubted, that he is as 
 much exempt as a stranger would be, who made it a 
 business to publish correct reports, and who is now admit- 
 tedly exempt from legal liability, though the character of 
 individuals be thereby imavoidably injured.^ And though 
 a member of the House of Commons in one respect has 
 his constituents as interested parties to watch his conduct 
 over and above his duty to the nation, yet this last reason 
 is enough to protect him; and therefore the same rule will 
 apply to a member of the House of Lords as to a member 
 of the House of Commons. This is only in harmony with 
 the general rule, that if any person publish a report of what 
 takes place in Parliament at a time when the public are 
 admitted and the report is fair, he is not liable in an action 
 at the suit of any person who happens to be affected by 
 something libellous in such report. The reason is, such 
 reports are part of the ordinary business of Parliamentary 
 life, and whatever injury is necessarily caused by the pur- 
 suit of that business is unavoidable, and gives no cause of 
 
 1 (a.d. 1794) E. V Abingdon, 1 Esp. 226. 2 (a.d. 1813) R. v 
 
 Creevy, 1 M. & S. 273. ^ See Davidson v Duncan, 7 E. & B. 233 : 
 Wason 1) Walter, L. B., 4 Q. B. 95. 
 
CH. IX.] LIBELLOUS PARLIAMENTAEY PAPERS, 199 
 
 action, because no blame is imputable to the reporter, or to 
 the publisher, or to the author.^ 
 
 Excuse of libel in publishing Parliamentary papers. 
 — How far a parliamentary paper, that is to say, a docu- 
 ment submitted to the Parliament and ordered to be printed 
 and published for the public benefit, may be published with 
 impunity by strangers, though the contents may be libellous 
 to individuals, long caused doubt to the courts, and gave 
 rise to something approaching a conflict between them and 
 the Parliament. This question differs somewhat from that 
 which was involved in the case of insults and contempts 
 committed by third parties against Parliament, and the 
 mode of treating which, though sometimes causing diffi- 
 culty, led to no apparent direct conflict.^ In this case it is 
 the House itself which causes the act to be done by one 
 of its officers or under its direct authority, and therefore . 
 must needs protect these parties if it is able to do so. Of . 
 the exercise of this jurisdiction of Parliament to protect 
 its servants, the courts of law have occasionally shown 
 great jealousy. Holt, C. J. is reported to have said, that 
 "the House of Commons kept a hawk in the shape of their 
 sergeant whom they were obliged to gratify by flying him 
 forth to take his prey from time to time." In 1686 when 
 WiUiams, Speaker of the House of Commons, was sued 
 for libel for publishing a paper called Dangerfield's narra- 
 tive, which was part of the proceedings of the House and 
 directed by the House to be published, the court overruled 
 his defence as idle and insignificant ; and the chief justice 
 of that day observed, that no order of the House could 
 justify a scandalous, infamous, and flagitious libel. The 
 defendant was fined 10,000^.^ Such a decision as that, 
 however, later judges have treated as of no authority, and it 
 was reversed by act of Parliament.* At a later date, where 
 Wright, a volunteer, published a true copy of a report of 
 the House of Commons, which had been approved and 
 communicated to the House of Lords, it was held, that he 
 was entitled to do so, and was exempt from liability to a 
 person who conceived that such report imputed high treason 
 to him. The House, it was said, is the guardian of the 
 
 1 Wason V Walter, L. R., 4 Q. B. 73. ^ See ante, p. 109. 
 
 » H. V Williams, 13 St. Tr. 1435 ; 2 Show. 471. ^ Ibid. ; E. v 
 
 Wright, 8 T. E. 293. 
 
200 LIBERTY OF PRESS AND SPEECH. [ch. iS. 
 
 liberties of the subject, and no part of its proceedings can 
 be treated as a libel, whatever may be its consequences. If 
 the report were untruly copied it might be otherwise.^ 
 
 In one case in 1839, the printers to the House of Com- 
 mons were sued by Stockdale, the publisher of a book, 
 which book had been represented in the Parliamentary 
 report to be obscene. Thereby a libel was published 
 against him as an individual, being the pubhsher of such 
 book. The official Parliamentary printers set up as a defence 
 that the document had been ordered by Parliament to be 
 printed and published. And the Court of Queen's Bench held 
 this order of the House to be no defence.^ The judgment 
 then being entered for the plaintiff,^the sheriff levied its 
 amount with a view to enforce the judgment, when he was 
 met by two difficulties. The House of Commons ordered 
 him to repay the sum to their printer, and ordered him to 
 be committed to prison for breach of privilege until he did 
 so ; while at the same time the Court of Queen's Bench, 
 acting on the opposite view, ordered the sheriff as their 
 officer to pay over the very same money to the plaintiff, 
 and ordered the sheriff to be committed till he did so. 
 The sheriff, being first taken into custody, under orders of 
 the House, sued out a habeas corpus ; and at this stage the 
 court held, that it could not release him, since the warrant 
 purported, that the commitment was for a breach of privi- 
 lege of Parliament.^ There was thus an apparent conflict 
 between those two high courts in dealing with the same 
 subject matter. 
 
 Mode m which Parlicmimnt protects against courts of 
 law its official papers. — The jurisdiction and power of the 
 Parliament in this matter are of supreme interest and im- 
 portance. In 1837 the House of Commons passed a reso- 
 lution, which is sufficiently self-evident, namely, that the 
 publication of reports was an essential incident to the 
 constitutional functions of the House. And another reso- 
 lution was, that the House has the sole jurisdiction to 
 determine the existence and extent of its privileges^ and 
 that the institution of a suit or action is a breach of that 
 privilege.* This practice of the publication of papers 
 so deemed by the House of Commons necessary to the 
 
 1 R. V Wright, 8 T. R. 298. ^ Stockdale v Hansard, 9 A. & E. 1. 
 » Be Sheriff of Middlesex, 11 A. & E. 273. - . 
 
CH. ix.J COURTS AND PARLIAMENT. 201. 
 
 discharge of its constitutional functions, had been con- 
 tinued since 1690.^ And Sir E. Peel said, that slavery- 
 would never have been abolished, if the House had not had 
 the power in this way to print and publish the evidence 
 taken before its committees.^ Accordingly, when actions 
 are brought against the Speaker, or persons acting under the 
 authority of the House, or against witnesses for evidence 
 given before the Committees of t}\e House, the House will 
 commit the solicitor as well as the plaintiff in any action 
 for presuming to molest its ofBcers.^ The House has more- 
 over repeatedly declared^ that it wUl commit all persons 
 whatever, whether judges, counsel, solicitors, parties^ or 
 sheriff, who take part in thus interfering with the exercise 
 of so transcendent a privilege. In 1689 the House of 
 Commons resolved, that judgments given six years before 
 by the Court of Queen's Bench in a certain suit of this 
 description were illegal, and a violation of the privileges of 
 Parliament, and pernicious to the rights of Parliament. 
 Topham was then the sergeant of the House, and had been 
 sued for executiug the orders of the House. The two 
 judges who had sat in the court, Sir F. Pemberton and Sir 
 F. Jones, were ordered to attend the bar and explain the 
 reasons of their decision. Those judges did attend, but 
 did not give a satisfactory explanation, and though they 
 represented it as only an error of judgment, they were 
 imprisoned in Newgate (where they remained eight months) 
 for the breach of privilege which they had committed in 
 course of that action.* It was urged, that this doctrine of 
 Parliament enforcing its privilege woifld virtually prevent 
 any remedy in case of abuse, as when the House commits 
 a member for no real fault, or a fault that might be deemed 
 by a court of law no fault or contempt. But, as already 
 observed, the same argument may be urged against the 
 courts of law which may themselves do a wrong without a 
 remedy. The answer to such objections to both high courts 
 
 1 38 Pari. Deb. (3) 1114, 1270 ; 48 Ibid. 1192 ; 53 Ibid. 588. 
 
 2 51 Pari. Deb. (3) 326. ' 82 Pari. Deb. (3) 467. 
 
 * Jay V Topham, 12 St. Tr. 830. In one case of Bell v Grlass, ari 
 action brought in the Court of Requests by a, gentleman against an 
 ofiBcer of the House of Lords for seizing his umbrella while he at- 
 tended the debate, the House summoned both the plaintiff and 
 the judge before its bar/ but the action was abandoned without any 
 final decision. — 51 Pari. Dei. (3) 66, 
 
202 LIBERTY OF PRESS AND SPEECH. [ch. ix. 
 
 is, that each must be credited with a sense of justice, and 
 to seek a check upon either is to revert to the apophthegm — 
 quis cusiodiei leges ? i During the controversy that arose out 
 of the case of Stockdale, which had the effect of making 
 Parliament and the courts of law take up opposite sides, 
 and to act as if they were preparing for extremities, states- 
 men as well as lawyers were divided as to the correct 
 view. One party urged the committal of the judges, and 
 that nothing short of that course could terminate the issue. 
 The other party confidently predicted disgrace and loss of 
 popularity to the House of Commons, if any such course 
 were resorted to. The subject was thoroughly discussed, 
 and after many fluctuations, the happy thought at last was 
 suggested and adopted of passing a statube, which had the 
 effect of putting an end to the apparent conflict.^ 
 
 ^ See ante p. 108. See also as to mode of commitment, 2 Pat, 
 Cora. (Pers.) 251. SiE R. Peel said, if extremities were resorted 
 to, the military and the posse comitaius might be on opposite sides. 
 —67 Pari. Dei. (3) 1012. 
 
 * " There was no case so extreme, so absurd, so improbable, that 
 might not be imagined for the purpose of affording grounds for taking 
 away any power vested in the House of Commons, the House of 
 Lords, or the Crown. The Crown had the clear right of declaring 
 war against all the powers of Europe to-morrow if it thought fit ; 
 but would any one make this very improbable contingency a ground 
 for demanding, that the Crown should be deprived of its right to 
 declare war ? There are no means of the House of Commons main- 
 taining its authority, its dignity, its independence, except reserving 
 to itself entire and undiminished the power of declaring, what are 
 its direct constitutional privileges, and by taking care that such a 
 declaration on its part' shall be held final and sufficient throughout 
 the empire."— Lord J. Bussell, H. C. 48 Pari. Deb. (3) 339. 
 
 Lord Camden said "the rights of the House of Commons are 
 original and self-created — they are paramount to the jurisdiction of 
 courts of law, and are above the reach of prohibitions, injunctions, 
 or error."— Entinck v Carrington, 19 St. Tr. 1030. 
 
 Pemberton in course «f the debates maintained, that the courts of 
 law were the superior power in such a conflict. And Sdgden urged, 
 that the House of Commons could not commit the judges, owing to 
 the disgrace such a step would involve. — 51 Pari. Deb. (.3) 50. 
 
 The division of opinion between the statesmen and lawyers then 
 in Parliament seemed to be as follows. On the side of Parliament : 
 Peel, Lord J. Russell, Palmerston, Lord Stanley, Lord Howick, 
 Campbell, Rolfe, Wilde, Pollett, Lushington, O'Connell, Hume. In 
 favour df the courts of law : Pemberton, Sugden, Goulburn, Glad- 
 stone, Disraeli, Brougham. On some of the minor incidents one or 
 two of these occasionally changed sides. 
 
CH, IX.] LIBELS IN LAW EBPORTS. 203 
 
 Conflict of Courts of Law and Pa/rliament ended 
 by a Statute. — The controversy which ended in this 
 statute was happily deemed a triumph by both the con- 
 tending parties. It was even in the view of the up- 
 holders of Parliamentary privilege necessary if only to give 
 a better remedy, seeing that the House of Commons could 
 only commit during the sitting of Parliament, which was 
 too often an inadequate punishment. In future when the 
 authorised printer of Parliament is proceeded against, it is 
 sufficient, under this statute, for him to give notice to the 
 court or a judge of his authority, and to verify such 
 authority by affidavit, whereupon the proceeding must 
 be finally stayed and suspended.^ Moreover the same 
 statute entitled strangers, who publish copies of such 
 Parliamentary papers, at any stage to make an affidavit 
 verifying the paper and the correctness of the copy, and 
 the court then is bound to stay all civil and criminal 
 proceedings.^ And the statute also protected strangers 
 who published extracts or abstracts of the same papers to 
 this extent, that when proceeded against they have only 
 to show, that these were published bond fide, and without 
 malice, in which event, if the jury agree, the court is 
 bound to eater a verdict of not guilty.^ 
 
 Excuse of libel in publishing reports of legal pro- 
 ceedings. — The right of any person to publish reports of 
 the proceedings of courts of justice has been seen to be 
 well estabhshed ; from which also it foUows, that when a 
 fair report of a trial in any court of justice is published, 
 such publication is protected from any proceeding, though 
 defamatory. The conspicuous condition of this exemption 
 however is, that the report shall be a fair report. This 
 again implies, that the reporter has no business to state his 
 own or any other person's impression as to the effect of the 
 evidence of a witness, or of the whole evidence, for that 
 is the sole business of the court. Hence when a report 
 stated, " that the jury under the directions of the judge 
 were obliged to give a verdict of acquittal to the great 
 regret of a crowded court, on whom the evidence made a 
 strong impression of the prisoner's guilt," this was deemed 
 an outrageous overstepping of the reporter's function ; and 
 
 1 3 & 4 Vic. c. 9, § 1. 2 Ibid. § 2. ' Ibid. § 3. 
 
204 LIBERTY OF PRESS AND SPEECH. [oh. ix. 
 
 however just and fair such comment may be, it is Held 
 certainly libellous, when the reporter thus arrogates to 
 himself the functions of both judge and jury.i On the 
 other hand, the reporter may make mistakes without any 
 intention to do so. In such a case the main question 
 always is, whether he exercised reasonable skill and care 
 in the work of reporting, for his vocation cannot be carried 
 on without the usual admixture of error incident to all 
 employments. Honesty of intention and the absence of 
 anything like personal spite and a ready desire to rectify the 
 error are, it is true, not a sufficient defence, for these cannot 
 justify what has actually gone forth as a libellous state- 
 ment. It is for the jury however always to say, whether 
 the whole taken together is or is not libellous.^ The jury 
 have also necessarily to determine, whether it is an ex- 
 aggerated account intermixed with comments* ; and as 
 already stated, though the reporter, like the rest of the 
 community is bound to know what is or is not libellous, 
 and therefore is personally liable, yet in practice the 
 publisher or proprietor of the newspaper,, being also 
 liable, is usually selected as the party responsible. 
 
 Excuse of libd in publishing reports of public 
 meetings. — The same rule, which exists as to courts of 
 law and as to Parliament, does n<3t however extend to the 
 proceedings of public meetings or rather meetings of 
 persons who discuss topics in which great numbers are 
 interested, and who for th-e time associate themselves to 
 consider such topics at the same time and place. The 
 following distinctions obviously arise in such a compari- 
 son. In courts of law and in Parliament the speakers are 
 men of skill, accustomed to confine their attention to 
 things relevant and to know how to avoid the irrelevant ; 
 and the judges and the Speaker of the House of Commons 
 and the Peers are vigilant to repress all things irrelevant, 
 in the course of the discussions. But in pubUc meetings 
 a chairman is taken from the crowd; having often no 
 special knowledge, no special skiU in adhering to relevant 
 
 1 Lewis V Walter, 4 B. & Aid. 605. » Stookdale v Tarte; 4 A. 
 
 6 E. 1016 ; Blake v Stevens, 4 F. & P. 239 ; Chalmers v Payne, 
 5 Tyr. 766 ; Dicas v Lawson, 5 Tyr. 769. 3 stiles v Nokes, 
 
 7 Bast, 493 ; Lewis v Clement, 3 B. & Aid. 710 ; Andrews v Chapman, 
 3C. &K.286. 
 
CH. IX.] REPORTS OF PUBLIC MEETINGS. 205 
 
 topics, and above all, having by virtue of his position as 
 ichairman little or no control over the individuals assembled, 
 ■and no power of enforcing close attention to the matter in , 
 ..jhand. There is little or no self-control as to what is said 
 'on the part of each individual singly, or on the part of all 
 collectively; the dignity which sustains habitually elevated 
 functions fails to descend on men who are often biassed 
 by ignorance, passion, suspicion, and a self-delusive zeal. 
 Hence the irrelevant materials often outnumber the rele- 
 vant, and private character and reputation are the prey 
 of random attacks and of every gust of popular delusion. 
 The discipline of those accustomed to think and reason 
 closely imparts no safeguards against these attacks. And 
 hence it follows, that while the speaker at a public meeting 
 may often escape all liability, owing to the privileged oc- 
 casions on which he speaks, yet he who puts the words in 
 print and publishes them becomes as much liable as if he 
 originated the whole.^ Thus at a meeting of local improve- 
 ment commissioners dealing with ecclesiastical property 
 and the conduct of a chaplain in a cemetery, one of the 
 speakers in the heat of his complaints charged the chaplain 
 with having obtained a bishop's license by misrepresenta- 
 tion. This was published in a newspaper, and being 
 libellous, the court held, that there was no excuse attaching 
 to the publication, and no defence could be set up by the 
 newspaper proprietor.^ In like manner a meeting of in- 
 habitants to petition Parliament does not furnish any 
 privilege to publish what was there uttered.^ And no 
 privilege protects the publisher of ofecial papers of local 
 self-governing bodies, even though these are ordered by 
 statute to be kept and sold to all comers, especially if he 
 anticipates the statutory publication — as for example when 
 reports of medical officers to vestries or sanitary authorities 
 are published in a newspaper before the time when the 
 paper would have been issued officially.* The reason is, 
 that before the paper is officially published it may still 
 be corrected. After the paper however has been issued 
 under statutory authority, the privilege protects all who 
 thereafter republish it, for it is then a public document. 
 
 1 194 Pari. Deb. (3) 1600. ^ Davison v Duncan, 7 E. & B. 
 
 231. 8 Hearne v Stowell, 12 A. & E. 719. ■« Popham v 
 
 Pickbum, 7 H. & N. 891. 
 
206 LIBERTY OF PRESS AND SPEECH. [ch. ix. 
 
 And it is not enough, that a meeting is of public interest 
 and as such a fair matter of comment in a newspaper, as 
 for example a meeting of poor law guardians. For if at 
 such meeting the character of some individual is attacked, 
 and a report of such attack is published in a newspaper, 
 however accurate it may be, there is nothing to exempt 
 the publisher of the newspaper from liability for its 
 libellous character.^ 
 
 Slandering f ram the pvlpit. — The question has even 
 been raised, whether a clergyman in preaching or discharg- 
 ing his duties is in any way protected more than his 
 neighbours. The proper function of a priest, or minister 
 of religion of any sect, is to deal with vice or misconduct 
 in an impersonal manner, and therefore he has no privilege 
 while in the pulpit or out of it and is amenable to an action, 
 if he slander or libel any individual in the course of his 
 sermon, address, or circular. He may visit and remon- 
 strate privately with any of his ilock, but he exceeds his 
 duty when he takes on himself to put the finger of scorn 
 and denunciation on any individual. He runs the same 
 risk as others of being liable to an action, if he injure 
 private reputation. And , where in one case he denounced 
 by printed circular a parishioner for setting up a school 
 without his leave and warned his flock against sending 
 their children to it, an action was rightly brought.^ And 
 where in his sermon he once professed to read a pre- 
 tended sentence of excommunication against a parishioner 
 and refused to administer the sacrament till he left the 
 church, an action was held rightly brought by such par- 
 ishioner.' And yet the charge of a bishop to his clergy 
 has been deemed a privileged communication, especiaUy 
 where he replies to attacks which had been made upon 
 some of his proceedings ; it is privileged in the sense, that 
 malice will be primd facie rebutted in such a case.* 
 
 1 Puroell V Sowler, 2 C. P. Div. 215. " Gilpin v Fowler, 
 
 9 Exoh. 625. = Barnabas v Traunter, 1 Vin. Abr. 396. 
 
 * Laughton v Sodor, L. R., 4 Priv. C. 495. 
 
CH. X.] EEMEDY FOR LIBEL. 207 
 
 CHAPTEE X. 
 
 THE EEMEDIES FOE LIBEL BY CRIMINAL AND CIVIL 
 PEOCBEDINGS. 
 
 Remedies for libel. — A libel, like an assault, haa this 
 peculiarity, that either a civil or a criminal remedy may 
 he adopted. It is true that blasphemous, immoral, and 
 seditious libels seldom come home to any one individual, 
 being directed against the public generally. In this latter 
 class of cases the criminal remedy is the only one possible, 
 for no individual can show, that he is more injured than 
 his neighbours by the libellous matter. And, as has 
 already been stated, it is in reference to this class of cases, 
 that the Attorney-General usually files an ex officio informa- 
 tion.^ But where the libel is defamatory of some individual, 
 the party injured has his choice of either a criminal or a civil 
 remedy. The criminal remedy is either by way of criminal 
 information ■ or by way of indictment. And the civil 
 remedy means an action to recover damages proportioned 
 to the inj ury sustained. And there are other minor rem edies 
 incidental to each of these primary remedies. And not only 
 is a libeller subject to either of these remedies, but he is 
 liable to have both put in operation against him, for there 
 is no power to stop both being, at least, commenced con- 
 currently. Though in one sense they are brought on dis- 
 tinct grounds, and both may be pursued together, yet where 
 both are brought, the court cannot, with accuracy, 
 assign the fittest punishment or a jury the appropriate 
 damages, when the remedy is double. Hence if an action 
 has been brought, and also an indictment or criminal 
 
 1 Sefe ante, p. 99. 
 
208 LIBERTY OF PRESS AND SPEECH. [ch. x. 
 
 information, the court will not pass sentence until either 
 the action has been abandoned or concluded, and wiU 
 suspend sentence till the event be known.^ 
 
 Old remedy in Ecclesiastical Court. — It is true that 
 Ecclesiastical Courts could at one time entertain suits for 
 defamation of character in reference to spiritual matters 
 and those only ; for if the common law had jurisdiction in 
 respect of the matter, then a prohibition might be obtained 
 to prevent the Ecclesiastical Court entertaining the suit.^ 
 The Statute of circumspecte agatis recognised this jurisdic- 
 tion in the Ecclesiastical Courts to deal with defamation, 
 and to punish with penance; but Coke says, that these 
 suits must have concerned merely spiritual matters, such 
 as calling one a heretic, a schismatic, or the like. And even 
 though it was a spiritual matter, still the court could 
 only inflict penance, and could not give damages. For 
 example, to call a prior a rotten churl or a false knave, was 
 no cause for ecclesiastical suit, because it was not spiritual.* 
 All this jurisdiction of the Ecclesiastical Courts, however, 
 was utterly abolished in 1855.* 
 
 The remedy by criminal information. — The remedy 
 by ex officio information of the Attorney-General has already 
 been considered. * The ordinary remedy of criminal infor- 
 mation, though substantially the same in effect as the ex 
 officio information, and as an indictment, differs in this re- 
 spect, that it is granted by the favour of the court, and hence 
 is not granted of course, but requires a preliminary special 
 leave. The court practically confines the remedy to a 
 select class of cases of an urgent kind, the urgency being 
 determined by the character, station, and ofl&ce of the person 
 libelled, or the peculiar character of the libel itself. 
 
 Conditions of granting criminal information for 
 libel. — As to these criminal informations filed by leave of 
 the court, though it has lately been attempted to restrict 
 the exercise of the discretion of the court to a few select 
 
 1 R. V Mahon, 4 A. & E. 575. It is said, that the Greenlanders 
 used to allow an injured person to resent his injuries by giving 
 notice that on a given day he would recite to an audience a libel 
 against the wrongdoer, and then it was deemed mean-spirited not to 
 attend and answer it. — 1 Grantz Oreeiil. 178. 
 
 2 Palmer v Thorpe, 4 Rep. 315. ' 2 Inst. 492. * 18 & 19 
 Vic. c. 41. ^ See ante, p. 99. 
 
CH. X.] CRIMINAL INFORMATION. 209 
 
 cases, yet at one time no discrimination was used, and all 
 obtained leave from the clerk of the Crown almost for the 
 asking.' This led to frivolous prosecutions, causing great 
 loss and vexation; and in 1693 a Statute was passed, 
 which required leave in open court to be first obtained, 
 and the application must then be made by counsel and 
 supported by affidavits.^ One peculiarity of this remedy 
 accordingly is, that the party aggrieved cannot apply in 
 person so as to be his own advocate in such matter, for as 
 the prosecution is in the name of the Crown, only a public 
 officer, or counsel, who is also a kind of officer, is deemed 
 entitled to be heard.^ 
 
 One condition to be fulfilled by those who seek this 
 remedy is, that the party libelled must make an affidavit 
 that the libel is untrue. Hence, in 1780, when it was 
 imputed to the Duke of Richmond that he treasonably 
 sent intelligence to the French, and he applied for a 
 criminal information, he was required first to deny the 
 truth of the imputation.* In one case the libel was, that 
 the prosecutor ravished a lady by entering her room and 
 personating her husband ; and because he only swore that 
 he did not enter her room " against her will," the rule was 
 refused.^ But this condition may be dispensed with, when 
 the person libelled is abroad, and his friends move in the 
 matter, or when the libel is against a class of persons, or 
 imputes something so general as not to require contradic- 
 tion ; and it is not indispensable, that the conduct of the 
 applicant should be blameless." Another condition of this 
 special remedy is, that no unnecessary delay, after know- 
 ledge of the libel, shall take place in applying to the court ; 
 and two legal terms next following the publication of the 
 libel have been usually given for the application. '' Another 
 and important condition is, that the aggrieved party should 
 not have resorted to any other remedy, direct or indirect, as 
 by corresponding with or compounding with his adversary, 
 
 1 R. V Robinson, 1 W. Bl. 542. M & 5 W. & M. o. 18. - . 
 
 3 R. V Lancashire, 1 Chitt. 602 ; R. v Brice, 2 B. & Aid. 606. 
 
 * R. v Haswell, 1 Doug. 387. « R. v Wright, 2 Chitt. 162. 
 
 6 R. V Drakard, 30 St. Tr. 978 ; R. v Williams, 6 B. & Aid. 595 ; 
 R. V Gregory, 8 A. & E. 907. ^ R. v Jollie, 4 B. & Ad. 869 j 
 
 R. V Bishop, 5 B. & Aid. 612. 
 
 P 
 
210. LIBERTY OF PBESS AND SPEECH. [ch. x. 
 
 or writing a defence to the newspapers, or retorting in any 
 manner by way of gratifying his revenge or indignation.^ 
 
 The coxirt has sometimes tried to lay down a rule as to 
 restricting this remedy according to the subject matter of 
 the libel and the degree of public mischief; but beyond 
 saying, that every common libel is not to be redressed by 
 this special i-emedy, no precise line has ever been drawn. 
 If the remedy were open to all, the court would practically 
 take on itself the duties of juries and promote endless 
 litigations. It is, nevertheless, in practice confined to libels 
 on persons holding some public position, as magistrates, 
 judges, jurors, and high State officials, whose character and 
 reputation are matter of public concern, and deserve swift 
 and conspicuous redress and protection. When the court 
 has decided, that a criminal information may issue, the pro- 
 secutor is bound to enter into his recognisance to prosecute 
 with diligence.^ On the other hand the defendant may be 
 served with a subpcena from the Crown Office to enter ap- 
 pearance within four days, or he may be at once apprehended 
 on a judge's warrant, and bound over with sureties to appear 
 and answer the information at a time stated.^ 
 
 This remedy of criminal information, while subject to 
 some conditions, has, at the same time, some advantages in 
 bringing about an apology at an early stage, though such 
 result is not deemed a meritorious ground for the applica- 
 tion. Moreover when the defendant comes to show cause 
 against the information being filed, he may practically get 
 rid of the rule, if he can produce affidavits showing the 
 truth of the libel, for then the question can usually only 
 be satisfactorily disposed of by a jury on an ordinary in- 
 dictment, and the special remedy will be superfluous.* 
 
 Indictment for libel and charge before justices. — 
 "When the remedy chosen is an ordinary indictment for 
 libel, there is the further choice of proceeding, in the first 
 instance, by summons or warrant before a justice of the 
 peace. As a justice of the peace has jurisdiction to hear all 
 charges for indictable offences, there is no peculiarity in the 
 
 1 E. V Laweon, 1 Q. B. 486 ; E. v Marshall, 4 E. & B. 475. 
 
 2 4 & 5 W. & M. 0. 18, § 2. The security is only 20i., and the 
 court will not order higher security. — E. v Brook, 2 T. R. 190. 
 
 3 48 Geo. III. 0. 58, § 1. ■• E. v Eve, 5 A. & E. 780. 
 
CH. X.] CRIMINAL CHARGE OF LIBEL. 211 
 
 proceeding, as regards the preliminary stage in this 
 offence.^ 
 
 Preliminary hearing before Justices of the peace. — 
 A defendant charged before justices of the peace with an 
 indictable offence may usually make the same defence as if 
 lie was on his trial before a jury, unless some Statute re- 
 stricts it. Yet this amplitude is neither necessary nor 
 proper. All that the justices have to do is to see, that there 
 is aprimd fade case made out, and it is no part of their 
 business to go minutely into the evidence and weigh the 
 conflicting details, this being the function of the jury assisted 
 by the presiding judge, who alone can do it thoroughly 
 and conclusively. And the defendant is entitled to call 
 witnesses who can give evidence on his behalf.^ It is true, 
 that this initiatory stage is often the most attractive feature 
 to prosecutors when they elect a criminal remedy, for 
 they consider' the publicity and disgrace of being examined 
 before the committing justice as not only easing the smart 
 of indignation, but in some measure enhancing the punish- 
 ment. The origin of the jurisdiction of justices to arrest 
 libellers and commit them for trial is somewhat obscure, 
 but on a search made for 120 years before 1820, they had 
 exercised the power, and indeed their commission from the 
 tirst origin of their office in 34 Edward III. embraced all 
 offences connected with a breach of the peace.* In case of 
 seditious, immoral, and blasphemous libels, as there is sub- 
 stantially no mode of justifying them, witnesses for the 
 defendant can seldom be of use before the committing 
 justices, except to support the denial of publication. But 
 in case of defamatory libels, the defendant was allowed by 
 Statute to plead the truth of the libel and to call evidence 
 in support of such plea at his trial.* Nevertheless, as this 
 was only an additional plea for use at the trial, and not 
 before it, it has been held that the benefit of witnesses and 
 evidence on the defendant's behalf to support such plea 
 cannot be anticipated at this preliminary hearing; that 
 they must be reserved for the. trial alone, and that the 
 justices ought not to admit any such evidence of the 
 
 I 11 & 12 Vic. c. 42. As to justices' warrants to arrest libellers 
 see 2 Paters. Com. (Pers.) 162. 2 30 & 31 Ale. c. 35., ^ Uutt 
 V Conant, 1 B. & B. 571. ■* 6 & 7 Vic. c. 96. 
 
 P 2 
 
212 LIBERTY OF PRESS AND SPEECH. [ch. x. 
 
 defendant at all. ' Should the justices commit the defendant 
 for trial, the latter has a right to be admitted to bail, and 
 no discretion to refuse moderate bail is given to them.^ 
 
 In some very aggravated cases the justices however, 
 besides taking bail for the defendant to appear and answer 
 at the trial, or instead of committal for trial, may exact 
 sureties of the peace in the meantime. This is not a 
 matter of course, and is only justifiable if the justices are 
 satisfied, that the libel and the conduct of the defendant 
 are such, that it can be reasonably inferred, that the de- 
 fendant will assault or threaten the prosecutor in the mean- 
 time. And this will probably seldom be made out ; nor 
 indeed is any collateral restraint of this kind on the de- 
 fendant required, when he is once committed for trial, 
 seeing that such committal is itself a binding him over to 
 good behaviour till the trial.^ And justices may in some 
 cases also bind over the defendant to find sureties for good 
 behaviour for a reasonable fixed time.* 
 
 Arrest of libeller by judge's wa/rrant. — In 1808 power 
 was given to a judge of the Queen's Bench division to issue 
 his warrant to apprehend any person charged with misde- 
 meanour, including libel, and when the party is appre- 
 hended and brought before a justice of the peace, the latter 
 may commit the party, in default of two sureties, to appear 
 and answer the charge.^ And it was once keenly debated 
 how far it was lawful, before indictment found, to arrest a 
 libeller on the old theory prevalent in the time of the 
 trial of the Seven Bishops, that a libel was a constructive 
 breach of the peace.° But, as already stated, justices, in 
 the ordinary way, may now often apprehend a defendant 
 when the charge of the offence has been made before them. 
 
 1 R. V Garden, 4 Q. B. D. 1. « 11 & 12 Vic. c. 42, § 23. 
 
 3 See 1 Pat. Com. (Pers.) 192, 206. 
 
 * Haylook v Spark, 1 E. & B. 471. When the seven bishops were 
 pressed by James II. to enter into a recognisance, they answered that 
 there was no precedent for a member of the House of Peers being 
 bound in recognisance for a misdemeanour, even if their refusal was 
 a misdemeanour. The Lord Chancellor Jeffebys said there were 
 precedents for it, but being desired to name one, he named none. 
 The Archbishop thereon declared he had the advice of the best 
 counsel and they had warned him of this. — Clarend. St. Letters. 
 
 6 48 Geo. III. c. 58, § 1. « 23 Pari. Deb. 1094 ; 36 Pari. Deb. 
 1170; 2 Pat. Com. (Pers.) 152. 
 
OH. X.] INDICTMENT FOE LIBEL. 213 
 
 Form, and trial of the indictment or information 
 for libel. — One rule as to the form of indictment or 
 information has hitherto been, that the very words of 
 the libel must be set out, and not merely their purport, 
 for the court must be able to judge whether the words 
 are libellous, aud is not bound to take the prosecutor's 
 construction of them. And if the words are not so set 
 out, then, after verdict of guilty, such verdict will be set 
 aside either in arrest of judgment or on error. Thus, 
 when the defendant had been indicted for an obscene libel 
 contained in a book, but the words of the book were not all 
 set out in the indictment, the court on error reversed the 
 judgment.! ^^ indictment for libel cannot be tried at 
 quarter sessions unless the libel is obscene ; this rule being 
 laid down by statute probably because such trial frequently 
 involves questions of law of an intricate nature.^ And in 
 order to comply with the rule as to indictments requiring 
 to be preferred inthe county where the offence is committed, 
 it is held that the place of offence is either the place where 
 the libel was composed with the intent to publish it else- 
 where, or the place where it was actually published, and 
 the latter is generally chosen.^ Indeed, it was strenuously 
 urged in the prosecution of Sir F. Burdett, in 1820, that 
 there was no crime till the actual publication, and what 
 preceded that stage was no more indictable or cognisable 
 by the law than the secret thoughts of the mind; and 
 hence that the place of actual publication was the only 
 place where the offence was committed. But the Court 
 held, that the mere composing in one place with an intent 
 to publish in another place, followed up by the actual 
 publication in that other place, rendered the offence indict- 
 able in either of the two places.* In ordinary cases the 
 indictment can only be tried at the assizes or the Central 
 Criminal Court, but if a criminal information has issued, or 
 the indictment has been removed by certiorari, -then it may 
 be tried in the Queen's Bench division, and with the benefit 
 of a special jury. 
 
 How far truth of the libel is a defence in criminal 
 proceedings. — Whether the truth of the libel could for- 
 merly be proved in answer to an indictment or criminal 
 
 1 Bradlaugh » E., 3 Q. B. D. 625 ; Wright v Clements, 3 B. & Aid. 
 503. 2 5 & 6 Vic. c. 38. ^B,.v Burdett, 4 B. & Aid. 95. * Ibid., 
 
214 LIBERTY OP PRESS AND SPEECH. [ch. x. 
 
 information has long been disputed. The early statutes as 
 to scandalum, magnatum seem to have assumed that the 
 libel was false, and the epithet "false" was part of the old 
 description of the offence. The Eoman law seemed not 
 clear as to the truth of the libel being any defence. And 
 Hudson took credit for the Star Chamber having discovered 
 the important truth, that a libel is not the less a libel that 
 it is true, as if the doctrine had only been then recently 
 established.! Coke also says, that a libeller was not allowed 
 to prove the truth of the libel, because he ought not to have 
 revenged himself against the libelled party in this way, 
 which was like taking the Jaw into his own hands.^ Yet 
 Bacon blamed Coke for this doctrine about truth being an 
 inadmissible defence, showing that the doctrine had never 
 been clearly settled.* 
 
 The first clear enunciation of the rule has been ascribed 
 to Lord Eaymond, C. J. In the case of E. v Franklin, part of 
 the defence was, that the libel was not proved to be false. 
 The Attorney-General Yorke said it mattered not whether 
 it was true or false, and that it was for the judge to say if it 
 was a libel, and not for the jury. Lord Eaymond, C. J., said 
 
 I Hudson's Star Ch. g. 11. 2 5 Co_ 254. 
 
 3 Bac. Letters. The defender of the Star Chamber gave his 
 reasons for this doctrine thus : " As to the gross error that has crept 
 into the world, that it is not a libel if it be true, it hath ever been 
 agreed that it is not the matter but the manner which is punishable. 
 For libelling against a common strumpet is as great an ofEence as 
 against an honest woman, and perhaps more dangerous to the breach 
 of the peace. For as the woman said she would never grieve to 
 have been told of her red nose if she had not one indeed, neither is 
 it a ground to examine the truth or falsehood of a libel, because it 
 it is subjudice, whether it be a libel or not. For that takes away 
 subjectum qucestionis, and determines it to be no libel by admitting 
 the defendant to prove the truth, and the defendant in that case 
 ought to plead a justification and demur in law ; but if he pleads 
 not guilty, the question is gone whether it be a libel or not." — Sud- 
 song's Star Ch. p. ii. c. 11. In the Seven Bishops case, Powell, J., 
 and HoLLOWAY, J., held that falsehood was a necessary ingredient of 
 a libel ; and so Holt has said. But at the date of Fox's bill the judges 
 gave their opinion, that falsehood was not necessary to be alleged. — 
 19 Pari. Deb. 599.' Lord Mansfield, C. J., said in 1770 that the word 
 "false " had been for many years left out in the information as 
 being superfluous. R. v Almon, 20 St. Tr. 837. It was said that 
 Lord Mansfield was not quite accurate, as the word was inserted 
 at least in K. v Owen, 18 St. Tr. 1203 (a.d.) 1752. 
 
CH. X.] INDICTMENT FOR LIBEL. 215 
 
 the jury had only to be satisfied that the J)ublication was in 
 fact made, and that the inuendoes were proved ; but as to 
 the writing being a libel, it was for the judge alone, as a 
 matter of law, and if he went wrong on the law, the court 
 could correct him. The jury, in that case, found a verdict 
 of giiilty of publishing the libel.^ In a case of 1789, the 
 judges were consulted, and all held, that the truth of a libel 
 was not to be left to the jury on the trial of an indictment 
 or information ; that that doctrine was firmly settledj and 
 was essential to the good order of society. That the word 
 " false " was found in all the ancient forms of informations 
 and indictments, but that that word was applicable not to 
 the propositions contained in the paper, but to the aggregate 
 criminal result, just as the words "false traitor" were 
 always used. That the information would be good without 
 the use of the word " false," which was a merely formal 
 epithet. A criminal intention need not be proved, except 
 where a special statute requires it, for a libel is a firebrand, 
 and he who scatters it scatters death. ^ 
 
 Whatever may have been the time when truth ceased to 
 be allowed as a /defence to a criminal proceeding, its sound 
 policy, as the general rule, has been vindicated. The 
 reason given is, that if the truth of a libel were a defence, 
 it would cause the prosecutor to explain away points in 
 his former history, which had long been forgotten and 
 should not be revived, and the knowledge of which could 
 be of no possible use except to rake up old scandals and 
 gratify the malignity of some personal enemy.* 
 
 Defence of publication by reason of public benefit. — 
 A new defence not known to the common law, but of great 
 importance in a free country, where the discussion of every 
 subject interesting to one's fellow-citizens is part of daily 
 
 1 It appeared from the case of R. ii Perry, 5 T. R. 454, that a rule 
 to set aside the veidict in Franklin's case was discharged. The 
 defendant was sentenced to pay a fine of lOOZ., to be imprisoned 
 for one year, and to find surety for good behaviour for seven years 
 (himself and two others).— R. v Franklin, 17 St. Tr. 676. In a case in 
 1735 of R. V Zenger, 17 St. Tr. 678, another attempt was made to 
 
 Erove the truth of the libel, and the court of New York (which pro- 
 Bssed to administer English law) declared that the truth could not 
 be allowed to be proved. The jury in that case took the matter into 
 their own hands, and found the prisoner not guilty. 
 
 2 R. Ai Stookdale, 22 St. Tr. 302. » 34 Pari, Hist. 392. 
 
216 LIBERTY OF PRESS AND SPEECH. [ch. x. 
 
 life, was introduced in 1843 by the Libel act. It is true 
 that the defence is only allowed in criminal proceedings for 
 a defamatory libel, but as these often nearly touch the 
 liberties of all, this is a substantial boon ; and moreover, 
 in civil actions, the same defence is practically open under 
 another name — ^that of justification on the ground that the 
 libel was true.^ This is the kind- of defence which often 
 arises when newspaper attacks upon character are com- 
 plained of, and the main difficulty is, whether the whole 
 scope of the article or comment is to impute some conduct 
 which, if true, would injure private character. The de- 
 fence is, that on any trial of an indictment or information 
 for a defamatory libel, the defendant may plead, that the 
 publication of the alleged libel was true, and was for the 
 public benefit. In order to know how far this defence 
 may be urged, it is necessary to decide what is a defama- 
 tory libel ; because the defence is only allowed in such a 
 case. And a defamatory libel, as already noticed, does 
 not include a seditious, blasphemous, or obscene libel.. 
 Another peculiarity relating to the justification of the 
 truth of a libel is, that, as it is seldom confined to one 
 fact but to several, the whole of the main facts must be 
 stated in the pleading, so as to let the adversary know in- 
 time, and be prepared to disprove them; and the whole 
 must also be proved, as it is not enough to prove only 
 a few of the imputations. And while in civil actions a 
 partial justification is no defence, yet it sometimes miti- 
 gates damages ; so in criminal proceedings a like partial 
 justification may be taken into, consideration in mitigating 
 the punishment, though sometimes it has the contrary 
 effect also of aggravating it.^ 
 
 Eff&et of not contradicting or promptly prosecuting- 
 defamation. — Another circumstance sometimes met with 
 among the defences of those charged with criminal pro- 
 ceedings for defamation is, that the person defamed has 
 long known of the imputation, and has not hitherto con- 
 tradicted or refuted it; in other words, it is urged that 
 silence under calumny implies consent, and implies an 
 admission that the libel is true. This is a common 
 weapon of defence, highly prized and daily used among 
 
 .i 6 & 7 Vic. c. 96. 2 R. v Newman. 1 E. & T?. S^F,^- 
 
CH. X.] JURIES IN LIBEL CASES. 217 
 
 all unscmpulous champions in political warfare. Courts 
 of law have, however, refused in this matter to set up a 
 rule in open conflict with higher rules of conduct. It 
 was laid down by the court on the trial of Dr. Newman 
 for libelling Dr. Achilli, that silence under the foulest 
 imputations is no legal proof, nor even admissible evidence 
 of the truth of the matter imputed.^ Courts will not 
 allow a lying calumny to be published, even though it has 
 been published over and over before ; and as to which, all 
 that can be said in its favour is, that the calumniator had 
 not yet been suitably punished. 
 
 Functions of jweies in deciding iw libel cases. — How- 
 ever difficult it is to define a libel, especially one alleged 
 to be seditious or blasphemous, it might have been ex- 
 pected, that, when aU the facts came to be explained and 
 every view presented and discussed, a jury would be able 
 to relieve judges from any further trouble. But owing to 
 a course of practice which was said, in 1782, to have been 
 pretty uniform since the Eevolution, judges had come to 
 regard juries as having no other function except to decide 
 whether the piece of paper containing the alleged libel 
 was in point of fact published ; and if this was decided in 
 the affirmative, the judges took on themselves to do the 
 rest and say whether the defendant was guilty or not 
 guilty, thereby exclusively determining not only the con- 
 struction and effect of the words used,, but the intention 
 of the libeller. The opinions of lawyer and leading states- 
 men were divided as to the correct doctrine on this subject, 
 the majority of lawyers perhaps defending the Court, and 
 the majority of leading statesmen clearly impugning it. It 
 was contended by Erskine, that the obnoxious doctrine had 
 been introduced in 1731, in the time of Lord Eaymond, C. J., 
 and had been held pretty uniformly for sixty years, while 
 Lord Mansfield, C. J., and the judges said it had been so held 
 since the Eevolution. Burke said, that such a doetiine, 
 whensoever introduced, tended to annihilate the benefit of 
 trial by jury.^ 
 
 Nature of the contention as to judges' ruling before 
 Fox's Act. — This dispute between judges and statesmen, 
 so memorable a century ago, and even yet wholesome to 
 
 1 E. -J Newman, 1 E. & B. 558. " Burke, Lett, on Libel. 
 
218 LIBERTY OF PRESS AND SPEECH. [cH. x. 
 
 investigate, arose in the following manner. In the trial of 
 the Dean of St. Asaph, Buller, J., the presiding judge, held 
 that all the jvidges since the Eevolution had, in criminal 
 trials for sedition and libel, put the questions to the jury- 
 thus : — 1. Whether the defendant is guilty of publishing 
 the libel ; 2. -whether the inuendoes or averments are 
 true ; 3. whether it is a libel or not. The two first were 
 for the jury; the last for the judge. If the defendant 
 disputed that it was a libel, he ought to demur to the 
 indictment. 1 Erskine's whole contention for the defendant 
 in that and other cases was, that the words, where no indi- 
 vidual's reputation was concerned, could not be known to be 
 libellous till all the surrounding circumstances were proved, 
 and that none but the jury were capable of saying whether, 
 when so explained, the words were libellous ; for they might 
 be either dangerously wicked and seditious, or innocent and 
 highly meritorious, when these circumstances were taken 
 into connection with the words used. On the other hand 
 Lord Mansfield and the majority of the judges answered, 
 that when the words, taken apart from all explanation, 
 were read by the judge and deemed by him libellous, they 
 were an offence fer se, and all the surrounding circum- 
 stances, when shown, were at most mere matter of excuse 
 with which the jury had nothing to do. This mode of 
 viewing the functions of juries obviously assumed — 1, that 
 a libel consisted of the words without any context or sur- 
 rounding circumstances ; and 2, that a libel was a con- 
 structive breach of the peace and illegal per se. A libel, 
 however, cannot be viewed as necessarily a breach of the 
 peace, and therefore as necessarily illegal per se ; and 
 if so, it cannot be known by any person whether the 
 words amount to a libel, till the context and surrounding 
 facts are known and considered at the same time. In 
 short, Erskine contended, that libel, that is to say, a series 
 of words, cannot, any more than a blow on the body, be 
 pronounced an offence per se, or a breach of the peace, until 
 the facts are known which surround the uttering and show 
 the intention. A blow may be shown to be in self-defence 
 or given to prevent some other crime; and so words uttered 
 may be, according to the object and intention, the time, the 
 
 1 R. V Dean of St. Asaph, 21 St. Tr. 847. 
 
m. X.] JURIES BEFORE FOX'S ACT. 2L9 
 
 place, the manner, and all the circumstance's, meritorious 
 and appropriate. The mere words and the mere blow thus 
 cannot be taken per se apart from their surrounding circum- 
 stances, and none but a jury can pronounce conclusively 
 whether an offence has been committed or not. 
 
 Unsatisfactory state of law before Fox's Act. — The 
 origin of this conspicuous failure of justice, to which the 
 law of libel was brought, has indeed never been satisfac- 
 torily explained. Dunning, Wedderburn, and Glynn^ 
 reviewed the older cases, and contended that there was 
 no sound legal authority for such an alleged usurpation 
 on the province of the jury.^ When consulted on Fox's. 
 Bill, the judges admitted, that it was in the power of the 
 jury to find a verdict of not guilty.^ And in several cases* 
 the jury insisted on finding a verdict of not guilty, not- 
 withstanding the judge's direction. And Lord Lough- 
 borough said, when law and fact were blended, it had 
 always been the undoubted right of the jury to decide.* 
 And of the same opinion was Lord Camden.^ Whatever 
 the preponderance of legal authority had been before, the 
 issue came to be, whether the intention and meaning of the 
 libel was a question of fact or a question of law ; and in 
 the end the legislature, by Fox's Act, declared that in future 
 it must be treated as a question of fact and left to the jury. 
 That the law could not be left as it had been for many years 
 before, came to be widely felt by all the leading statesmen 
 during the contests of Erskine as the champion of the 
 liberty of the press. On this state of things Wedderburn 
 observed, a century ago, as follows : — " While matters 
 . continue on their present footing, while judges think the 
 intention a matter of law cognizable only by them, and 
 juries imagine this to be an encroachment on their juris- 
 diction, they will be eternally at variance. Juries think- 
 ing law and liberty to be at stake, and judges standing up 
 for their own authority and what they consider the cause 
 of order, neither will give up the contest till the land 
 become one scene of anarchy and misrule. The most 
 audacious, libellers, secure in the opposition of juries, 
 
 i 16 Pari. Hist. 1279. " 20 Pari Hist. 564. ' Bushell's 
 
 *ase, 6 St. Tr.467 ; The Seven Bishops' case, 12 St. Tr. 183 ; Owen's 
 case, 18 St. Tr. 1203 ; and Woodfall's case, 20 St. Tr. 870. 
 
 * 29 Pari. Hist. 1297. » Ibid. 729. 
 
220 LIBERTY OF PRESS AND SPEECH. [oh. x. 
 
 laugh at all the terrors of ex officio informations. The 
 Attorney- General, with all his power, is despised. Like 
 an old worn-out scarecrow in a field, his head is made a 
 roosting place, or something worse, by these obscene 
 birds. It is time for us to reconcile the practice of the 
 law with the principles of the Constitution." ^ 
 
 Modern praetice since Fox's Act as to function of 
 jmries in Mbel cases. — It is now, however, of little conse- 
 quence to trace how the doctrine arose which gave rise to 
 Tox's Act. Lord Mansfield, C. J., in the considered judg- 
 ment in 1770, seemed to assume that the libel, that is to 
 say, that the form of words was per se unlawful, and this 
 
 ^ Wedderhurn, M.P., 16 Pari. Hint. 1294. Bdree said that he 
 could only account for the doctrine of the judges by supposing,, that 
 the Star Chamber had borrowed the doctrine from the Roman law, 
 and that when the Star Chamber fell, the disembodied spirit migrated 
 into Westminster Hall and long kept up its unhallowed work. — 
 17 Pari. Hist. 47. "The monstrous absurdity, the glaring iniquity 
 of the judges' doctrine as to libels, is so plain, so palpable, that it 
 may he safely left to the common sense, to the feelings and heads of 
 mankind."— Per Serjt. Glynn, M.P.^ 16 Pari. HiH. 1141. 
 
 On the other hand, it was urged in defence of the judges : " The 
 construction of libels belongs by law and precedent to the judge' 
 and not to the jury, because it is a poiaat of law of which they are 
 not qualified to judge. Without such a rule all would'be confusion, 
 contradiction, and- absurdity. The law would, like Joseph's coat, 
 become nothing but a ridiculous patchwork of many shreds and 
 many colours — a mere sick man's dream without coherence, without 
 order — a wild chaos of jarring and heterogeneous principles, which 
 would deviate farther and farther from harmony." — Sel.-Gen. Thur- 
 lovi, 16 Pari. Hist. 1146. 
 
 Lord Camden was entitled to the chief credit of Fox's Act, as he had 
 taken up the subject before Erskine, -and adhered to it to the last. It 
 took twenty years to pass Fox's act, and it passed in 1792. Loed 
 Bathurst, Ex-Chancellor, protested against it as completely taking 
 away the rights of judges. And he and Lords Thuelow and KenyoN 
 solemnly recorded their protest, that it would prove the confusion 
 and destruction of the law of England. — 29 Pari. Hist. 650, '581. 
 
 Erskine said that " the doctrine of the judges was too absurd to 
 be acted upon — too distorted in principle to admit of consistency 
 in practice^ — it was contraband in law, and could only be smuggled 
 by those who introduced it — it required great talents and great ad- 
 dress to liide its deformity ; in vulgar hands it became contemptible." 
 — 1 Ersh. Sp. 343. _ Lord Mansfield, on the other hand, said that 
 " all this jealousy of leaving the law to the court as in other cases, 
 BO in the case of libels, was in the present state of things puerile rant 
 and declamation." — Ibid. 379. 
 
OH. X.] JURIES IN LIBEL CASES. 221 
 
 may have been on the hypothesis that all words primd 
 /affie libellous were^er se a constructive breach of the peace, i 
 For this last was apparently once a current assumption as 
 to libel, till Lord Camden's review of the law, and even to 
 a still later date.^ But Fox's libel act, in 1792, expressly 
 laid down the rule, that on the trial of an indictment or 
 information for libel, the jury may give a general verdict 
 of guilty or not guilty upon the whole matter put in issue, 
 and were not bound to confine their verdict to mere proof 
 of publication.* WhUe at the same time it declared, that the 
 judge shall in bis discretion give his opinion and direction 
 to the jury on the matter in issue as in other criminal 
 cases.* The effect of Fox's Act as to the part plaj'ed by 
 a jury in all indictments for libel has been sometimes 
 described as this, that nothing is punished criminally as 
 a libel, unless in the opinion of twelve honest independent 
 and intelligent men it is mischievous, and ought to be 
 punished.* And thus it is seen how important is the 
 part which juries play in the administration of the law 
 of libel.« 
 
 1 E. V Woodfall, 20 St. Tr. 919. " See 1 Pat. Com. (Pers.) 192. 
 See also ante, p. 148. ' 32 Geo. III. c. 60. " Ibid. § 2. 
 
 5 L. Kenyon, E. v Cuthell, 27 St. Tr. 675, quoted ante, p. 81. 
 5 Campbell's L. Ch., 350. 
 
 ^ " Speaking to a jury is in a manner speaking to the nation at 
 large and flying for sanctuary to its universal justice." — Ersk. Sp. 
 
 " If juries are fallible, to what other tribunal shall we appeal ? " — 
 Jimius. 
 
 " Libel is founded entirely on public opinion. There is no other 
 standard by which it can be measured or ascertained. Who then so 
 proper as the people to determine the point?" — Wedderbum, M.P. 
 16 Pari. Hist. 1294. 
 
 " Who shall have the care of the liberty of the press — ^the judges 
 or the people of England ? The jury are the people of England. 
 The judges are independent men ! Be it so. But are they totally 
 beyond the possibility of corruption from the Crown ? Is it im- 
 possible to show them favour in any way whatever ? The truth is, 
 they possibly may be corrupted — juries never can 1 What would 
 be the effect of giving judges the whole control of the press ? 
 Nothing would appear that could be disagreeable to the G-ovem- 
 ment. As well might an act of Parliament pass that nothing shall 
 be printed or published but panegyrics on ministers. In the full 
 catalogue of crimes there is not one so fit to be determined by 
 a jury as libel." — Lord Camden, 29 Pari, Hist 1404. 
 
 " Eeliance can be placed on the moderation and good sense of 
 juries, popular in their origin, popular ia their feelings, popular in 
 
222 LIBERTY OF PRESS AND SPEECH. [ch. x. 
 
 Function qfjvdge on criminal trial for libel. — Now 
 that Fox's Act has decided that both fact and law must be 
 left to the jury on the issue of guilty or not guilty, , in 
 criminal proceedings for libel, -the chief point left to the 
 judge by that Act was, how far he should state his own 
 opinion to the jury. Lord Kenyon, C. J., said he was com- 
 manded by the Libel Aet to state to juries what his opinion 
 was as to the alleged libellous paper; and he gave his 
 opinion in one case that it was a libely but the jury found 
 that it was not.^ And his practice was always to state his 
 own opinion in such cases ; and so it was the practice of 
 Lord Ellenborough, C. J., the next judge in succession, as 
 he told Hone on his trial.^ He said such had been the law 
 before Fox's Act, as to the duty of judges, and that Act 
 made no difference in the matter. And Lord Campbell 
 said, that other judges took the same view of their duty.^ 
 
 But modern judges act otherwise. The rule followed by 
 judges in other criminal cases is for the judge not to give 
 his opinion on the very same matter as that on which the 
 jury are required to give theirs. He explains collateral 
 matters, strips the evidence of what is inadmissible and 
 irrelevant, but he refrains from giving his individual 
 opinion as to guilt or innocence, for that would be to 
 influence the jury and prejudice their minds. And this 
 view is taken in harmony with the spirit of Fox's Act, in 
 apportioning the duty between the judge and the jury.* 
 
 Finality of verdict of jury on indictment. — Though 
 in civil actions the verdict of a jury may be set aside as 
 in other cases for misdirection and other contingencies, it is 
 
 their very prejudices, taken from the mass of the people and imme- 
 diately returning to that mass again." — Sir J. Mackintosh, R. v Peltier, 
 28 St. Tr. 529. 
 
 1 R. -« Perry, 22 St. Tr. 953. « Hone's Trial. 3 3 Camp. 
 
 C. JJs. 51. 
 
 ^ Baj'lis V Lawrence, 11 A. & E. 920. "It has been the course 
 for a long time for a judge in cases of libel, as in other cases of a 
 criminal nature, first to give a legal definition of the offence, and 
 then to leave it to the jury to say whether the facts necessary to 
 constitute that ofience are proved to their satisfaction, and that 
 whether the libel is the subject of a criminal prosecution or civil 
 action." — Parmiter v Coupland, 6 M. c6 W. 198. 
 
 Lord Denman said, that, when a judge told the jury, that the paper 
 was in point pf law a libel, he virtually repealed Fox's Act. — 1. 
 L. Denman, Mem. 200. 
 
CH. X.] PUNISHMENT OF LIBEL. 223 
 
 different when a criminal trial has taken place on an 
 ordinary indictment at the assizes. In the case of acquittal 
 the rule is well established, that whether there has been 
 misdirection on the part of the judge or any other irregu- 
 larity, yet if the verdict is one of acquittal, the Court will 
 not open up that verdict, but treat it as iinal and irrever- 
 sible, the rule being, that no defenda.nt shall be put in 
 peril twice by a criminal trial for the same cause.^ 
 
 If the verdict has been that of " guilty," the main step 
 next open to the defendant is a motion to arrest the judg- 
 ment, but tliis is only competent when there is on the face 
 pf the record nothing alleged which a court of law can see 
 to be libellous. Thus when the Dean of St. Asaph had 
 been found guUty of a seditious libel, it was sliowii after- 
 wards that on the face of the record the words were not 
 libellous, and so the defendant had judgment in his 
 favour.^ And this arrest of judgment is uo bar to a fresh 
 indictment.^ The arrest of judgment in such cases must 
 be moved for before sentence is passed. 
 
 But while such is the practice in ordinary indictments, 
 whenever a criminal information has been filed and tried, 
 or the indictment has been previously removed by certiorari 
 into the Queen's Bench division, and there tried also, one 
 advantage is, that a new trial may be moved for on the 
 ground of misdirection and the other grounds available in 
 civil actions.* Nevertheless, no new trial will be granted 
 after a verdict of acquittal.^ And one of the peculiarities 
 is, that during this application for a new trial the defen- 
 dant must be personally in court.^ The reason for this is 
 said to be, that the party having been convicted, and so 
 liable to punishment, might otherwise escape.^ 
 
 The punishment of libel. — Though the development of 
 the law of libel has been slow, yet the existence of the 
 crime known by this name had in ancient as well as 
 modern times attracted great attention, and much variety of 
 
 1 E. V Russell, 3 K. & B. 942 ; E. v Colien, 1 Stark. 516. ' E. v 
 Dean of St. Asaph, 21 St. Tr. 1043 ; Hearne v Stowell, 12 A. & B. 
 731. ' Winsor v R, L. E., 1 Q. B. 395 ; Yaux's Case, 4 Hep. 45. 
 
 * R V Holt, 5 T. E. 436 ; R. v Newman, 1 E. & B. 270 ; R. ■» 
 "Wliiteljouse, Dearsl. 1 ; E. u Fowler, 4 B. & Aid. 273. ^ R. v 
 
 Manor, 4 M. & S. 337 ; R. v Sutton, 5 B. & Ad. 52. ^ R. ■" Askew, 
 3 M. & S. 9 ; R. i; Fielder, 2 D. & li. 46. ^ Rowland's Case, 
 
 2 Den. 372. 
 
2-24 LIBERTY OF PRESS AND SPEECH. [ch. x. 
 
 treatment is observable. The ancients as usual were severe 
 and cruel in their punishments,' By the laws of Alfred in 
 cases of public libeli, the tongue was cut out, subject to its 
 redemption with the price put on the head.^ And the laws 
 of Edgar and Gnu* were the same.^ The Star Chamber, 
 besides fine and imprisonment inflicted on infamous libellers 
 and seandalers of the state, the loss of ears ; and for false 
 scandal on the judges and on great personages, branding on 
 the face and slitting of the nose.* Coke says, libelling 
 
 1 By the law of Moses, though calumny and false accusations 
 were denounced, it is not clear whether any punishment was inflicted. 
 But the slandered party was held justified in beating the slanderer, 
 provided he did not render him a cripple or kill him ; whereas, if 
 the accusation were true, the slanderer could not be punished. — 
 Michaelis Com. Art. 291 § 2. Deut. xxii. 13, 19. JExod. xxii. 28. 
 Among the Gentoos, to accuse a Brahmin of the weightier crimes, 
 subjected the accuser to have his tongue cut out, and a hot iron of ten 
 iingers' breadth thrust into his mouth..^Gent. Code, c. 61. The Lydians, 
 according to Coke, bled the slanderer in the tongue and the listener 
 in the ear. — 12 Rep. 35. By the laws of Athens only penalties were 
 inflicted, and these varied in severity according to the gravity of the 
 imputed offence. Thus, to assert that a soldier threw away his 
 shield involved a penalty of 500 drachmas. By -tile laws of the 
 Twelve Tables, the penalty of fustigation was imposed on the more 
 atrocious calumniators, and they were incapable of making a will. — 
 xii Tables, c. 9. A false witness was thrown from the Tarpeian rook 
 {A. Oell. xx), though at a later period the punishment was arbitrary 
 (1_, 16 D. de test). In the Roman law there was no distinction between 
 criminal and civil liability — a fine as well as a sum in name of 
 damages, both being competent. And the ground of action was 
 always viewed rather as an insult to the person than a depreciation 
 of the persona] estate of the party slandered CrcEEO said the 
 Decemvirs made libel a capital offence. — AiLg. Civ. Dei ix. 6. The 
 Scotch had an iron collar called a branks, attached by a chain 
 to a pillar or tree and fixed round the neck of scolding women 
 and those convicted of slander and defamation, and a gag entered 
 the mouth and bridled the toTXffiQ.— Bur gJi Rec. Aherd. and JEdin 
 2 Wilsori's Prehist. Ann. 516, 522. 
 
 2 Wilk. Leg. Ang. Sax. 41 ; 2 Inst. 227. s ibid. 
 
 * Hudson's Star Ch. p. ill c. 23. In one case where the blasphemous 
 libel consisted " of raising Judaism up from death and forbidding 
 the eating of swine's flesh," Draske the libeller was sentenced by 
 that coHrt to be fed with swine' s flesh while in prison. —Ibid. p. ii. c. 1 
 When Sir T. More was Chancellor, he, in the same court, sentenced two 
 publishers of Tindal's Bible to ride round the city with their faces 
 to the horses' tails, wearing papers on their heads, and with some of 
 the hooks tacked to their gown, which they were ordered to consign 
 to the flames. 
 
CH. X.] PUNISHMENT OP LIBEL. 225 
 
 and calumniation is an offence against the law of , God. He 
 also mentions as -punishments, loss of ears as well as pillory 
 in the case of exorbitant libels against private persons. ^ It 
 appears that the iirst libeller sentenced to the pillory by 
 the Star Chamber was Baker in 1562.^ For a seditious 
 libel against the judges and Privy Council, one Perkins was 
 fined £3,000 ; and for writing an abusive letter to an earl, 
 the defendant was fined £5,000, besides being ordered to 
 acknowledge on his knees his offence to the king and the 
 lords of the court.* And Sir W. Williams, Speaker of the 
 House of Commons, was in 1685, for publishing Danger- 
 field's Narrative by order of the House, fined £10,000 by 
 the Court of Queen's Bench.* 
 
 As to corporal punishment, the pillory was apparently 
 deemed the appropriate punishment or part of it, and was 
 part of the common law punishment and long practised.^ 
 And in 1789 the publisher of the Times was ordered for 
 libels on two royal dukes to stand in the pillory at 
 Charing Cross. But it was before that time an unreliable 
 mode of punishment. When Williams, the printer of the 
 North Briton, No. 45, was sentenced and put in the pillory, 
 the mob greeted him with acclamations and raised £200 
 for him on the spot. In 1791 Macdonald A. G. told the 
 House of Commons, that there had been in the preceding 
 31 years, 70 prosecutions for libel, of which 50 were con- 
 victions, and in five cases pillory had been added to im- 
 prisonment.^ The punishment of pillory was however 
 wholly abolished in 1816.^ 
 
 It is not unusual to suppose, that there is no limit to the 
 discretion of the court as to the- extent of the punishment, 
 whether in the amount of the fine or the length of the 
 imprisonment, which may be imposed for libel, such being 
 what is called the punishment at common law.* It is 
 true, that in the case of defamatory libels there is now an 
 extreme limit to imprisonment. For the term has been, 
 since 1843, by statute for such libels expressly limited to 
 one year ; except where the defendant publishes the libel 
 knowing it to be false, and in that case to two years.* 
 
 1 5 Rep. 125. 2 3 Inst. 220. ^ Djg. l. Lib. 109, 114. 
 
 « E, V Williams, 2 Show. 471. = 5 Co. 126 c. ^ 29 Pari. 
 
 Hist. 586. 7 56 Geo. III. c. 138 ;,1 Vie. c. 23. « See 2 Pat. 
 
 Com. (Pars.) 222. » 6 & 7 Vic. c. 96, §§ 4, 5. 
 
226 LIBERTY OP PEESS AND SPEECH. [ch. x. 
 
 Mitigation of punishment for libel. — Owing to the 
 indefinite powers of courts to punish, and owing to the 
 peculiar circumstances under which most libels are puh- 
 lished and their intimate connection with the motives and 
 conduct of the libeller, great scope is given to the 
 defendant who is found guilty to satisfy the court, that the 
 punishment should be smaller than the court may be iu- 
 clined to. Hence before sentence the defendant may 
 produce affidavits of all mitigating circumstances, and his 
 counsel may comment on these materials and urge every 
 topic of excuse and palliation ; and the prosecutor may do 
 the contrary in his own interest.^ A usual topic for the 
 defendant to urge is, that after discovering his liability he 
 did' all in his power to stop the further mischief, or to 
 retract and apologise, and he may even show, that he was 
 misled and honestly believed at the time that he was 
 right.^ And a like latitude is allowed, on the other 
 hand, to the prosecutor to refute all these contentions 
 and suggestions.^ 
 
 Secwity for good hehavioivr part of punish/ment. — 
 Over and above the proper punishment for libel, it was 
 laid down by the judges when consulted in 1808 by the 
 House of Lords, that on any conviction for misdemeanour 
 the court may not only insist on the defendant after his 
 allotted imprisonment entering into his own recognizances 
 to be of good behaviour for a reasonable time, but also to 
 have two sufficient sureties besides.* This reasonable 
 time has never been defined. Wilkes was ordered to find 
 security for good behaviour for seven years ; ^ and Home 
 Tooke to find security for three years ; ® and Lord George 
 Gordon for fourteen years.' And in 181 9 the court went 
 the length of fining a man convicted of blasphemous libel 
 a sum of £1,500, also sentencing him to three years' im- 
 prisonment, and after that to find sureties for good 
 behaviour for the term of his life.* 
 
 This recognizance seems to arise out of the old notion 
 
 I E. V Bunts, 2 T. E. 683 ; R. v Wilson, 4 T. E. 487. 2 E. v 
 
 Halpin, 9 B. & C. 66 ; E. « Newman, 1 E. & B. 681. 3 r_ „ 
 
 Pinkerton, 2 East, 357. * E. v Hart, 80 St. Tr. 1131, 1344 ; 47 
 
 .Lords J. 271. 5 4 Burr. 2527. « 20 St. Tr. 788. ? 22 St. 
 
 Tr. 175. 8 E. V Carlile, 3 B. & Aid. 167. See generally as to 
 
 surety for good behaviour.— 1 Pat. Com. (Pers.) 203. 
 
CH. X.] IF LIBEL IS BEEACH OF THE PEACE. 227 
 
 that libel was a constructive breach of the peace. Coke 
 says slanderous words are not a breach of the recognizance 
 for good behaviour, for though such words are motives and 
 mediate provocations for breaking the peace, yet they tend 
 not immediately to a breach of the peace like a challenge. 
 Agaiu he says, that the judges resolved, that a libellus 
 famoms, that is to say, a published libel, though made only 
 against one individual, excited all those of the same family 
 kindred or society to revenge, and so tended to quarrels 
 and breach of the peace ; and if the hbel be against a 
 magistrate or other public person, it was a greater offence, 
 for it concerned not only the breach of the peace, but also 
 the scandal of the government. And though the private 
 man or magistrate be dead at the time of the making of 
 the libel, yet it was punishabla, for in the one case it 
 stirred up revenge and breach* of the peace, and in the 
 other the libeller traduced "the state and government 
 which dies not." ^ 
 
 But this view, that a hbel per se is a breach of the 
 peace, or tends to a breach of the peace, is obviously in- 
 correct as a matter of fact, and no rule of law can alter 
 the faet.^ Many libels in no way operate as a breach of 
 the peace, and it would be idle so to regard them. Never- 
 theless this ancient doctrine was probably at the root of 
 
 1 5 Rep. 125. A libel has often been said to be indictable because 
 it tends to a breach of the peace, and such was the view of the 
 older authorities. In Dalton's Justice, c. 124, a libel ia defined — a 
 thing tending to the breach of the peace. In Hich'i Case (Hob. 
 215) it is called a provocation to a breach. In E. v Summers, 1 Lev. 
 139, it was said to be cognisable by justices because it tended to a 
 breach of the peace. In Hawk. P. C, c. 73, § 3, it is called a thing 
 directly tending to a breach of the peace. In B. v Wilkes, 15 Pari. 
 Mist. 1362, the House of Commons resolved that privilege did not 
 apply to publishing seditious libels ; and hence that a member of 
 the House might be 'imprisoned and dealt with in the same way as 
 any member of the public. Peatt, C. J., had held the contrary, 
 because it was no breach of the peace.— jB. v Wilkes, 2 Wils. 151. 
 
 2 The Peers' protest in the-House of Lords, when Wilkes' case was 
 considered, well put this' point : " To say that a libel, possibly pro- 
 ductive of a breach of the peace, is the very consequence so pro- 
 duced, is, in other words, to declare that the cause and the effect 
 are the same thing. And though one were to add the inflaming 
 epithets of treasonable, traitorous, or seditious to a particular paper, 
 yet no words were strong enough to alter the nature of things. "^t^15 
 Farl. Hist. 1374. 
 
 Q 2 
 
228 LIBERTY OF PKESS AND SPEECH. [ch. x. 
 
 the view, which led judges previous to Fox's Act to adhere 
 to the practice of treating the character of a writing, if 
 libellous or not, as a question of law ; and so the functions of 
 juries in such cases were reduced to an absurdity — a result 
 which led the legislature to interfere and put an end to it, 
 as has already been stated. 
 
 Seizing and destroying hlaspMrncms cmd seditious 
 libels. — Courts of law disclaimed the power to order the 
 libellous document €ven after verdict to be destroyed.^ 
 But latterly in case of a conviction for blasphemous or 
 seditious libel, the court may now, by statute, after verdict 
 or judgment, ca-der all copies of the libel found in the 
 possession of ^the defendant, or of other persons for the 
 use of the defendant, to be seized and detained in safe 
 custody, and for this order evidence on oath must be 
 previously given.^ When formal judgment is entered 
 against the defendant, the court is then to dispose of 
 these copies.* It was once thought, until Lord Camden 
 showed the illegality of the practice, that a secretary of 
 state could issue a warrant to seize seditious libels in 
 anybody's possession, and_ search anybody's house in 
 order to find them* But the only power of dealing 
 with libels is as above stated. 
 
 Ordering libel to be burnt. — One mode of disposing 
 of written or printed libels has apparently been adopted 
 by most nations with singular unanimity, and that is the 
 burning of the obnoxious paper, which has been assumed 
 rather hastily to be a final extinguishment of all the 
 mischief therein contained. Constantine ordered con- 
 tentious libels to be burnt. And whoever collected and 
 read false libels and did not immediately burn them com- 
 mitted a capital offence.^ To keep books of magic also 
 was a crime, and they too were ordered to the same fate.^ 
 
 ; 1 E. D Cator, 2 East, 361 2 60 Geo. III. & 1 Geo. TV. c. 8, § 1. 
 
 3 1 Geo. IV. c. 8, § 2. ■• See 2 Pat. Com. (Pers.) 130. 5 Qod. 
 Theod. b. ix. 41, 34. 
 
 s Paul. Sent. The case of the Roman Senate ordering Labienus' 
 books to be burnt as libellous, was said to have been the first instance 
 of this mode of punishment. The laws of Valentinian and Valens 
 decreed that if a person met with a defamatory libel either in a pub- 
 lic or private place even by chance, and did not immediately destroy 
 it but divulged the same, he should suffer death as if he were the 
 author. 
 
CH. X.] BURNING OF LIBELS. 229 
 
 In our own country burning an obnoxious libel was 
 deemed almost a matter of course. A rule was recog- 
 nised that, if the libel refer to a private person, it must 
 be burnt or delivered to the magistrate; if it referred 
 to a public person, it was to be delivered to the magistrate.^ 
 In Queen Anne's reign the decree of the University of 
 Oxford in 1683, respecting passive obedience, was ordered 
 by the House of Commons in 1710 to be burnt by the 
 hands of the common hangman, as contrary to the liberty 
 of the subject and the law of the land.^ In 1702, a 
 sermon containing reflections on Charles I. was ordered by 
 the House of Lords to the same fate, and the House 
 of Commons did the same with Defoe's ironical satire, 
 which recommended all dissenters to be killed like 
 snakes and toads.^ And Sacheverell's sermon was also 
 so treated. 
 
 In 1751 a seditious libel entituled "Constitutional Queries 
 recommended to every true Briton," was ordered by the 
 House of Commons to be buirned by the hands of the 
 common hangman in Palace Yard at 1 P.M., and the 
 Sheriff of Middlesex was to attend and cause the same to 
 be burnt accordingly,* When Wilkes' libel in the North 
 Briton, No. 45, was brought to the knowledge of the 
 House of Commons in 1763, the House resolved, that it 
 was t^se, scandalous, and seditious, and tending to excite 
 to traitorous insurrections, and ordered that it should be 
 burnt by the hands of the common hangman in Cheapside.* 
 But when the sheriff proceeded to see the order executed, 
 the mob were violent and pelted the officials with stones 
 and missiles, the general cry being " Wilkes and liberty ; " 
 and they burned a petticoat and jack-boots in its stead, 
 and the blame of this led to a parliamentary inquiry, of 
 four days.^ Since that date neither the legislature nor the 
 courts of law have thought fit to return to this primitive 
 experiment. And as Parliament recently gave authority 
 by a statute to magistrates under certain conditions to 
 destroy obscene libels, this may be treated as an implied 
 repeal of the doctrine of the common law as to this kind 
 
 1 Wraynham's Case, 2 St. Tr. 1060. ^ Syd. Smith, P. 
 
 Plymley. ^ g Pari. Hist. 22, 93. * 14 Fa/rl. Hist. 869. 
 
 5 15 Pari. Hist. 1360. « Bae's Wilkes, 53, 4 Walp. 
 Lett. 147, 
 
230 LIBERTY OF PEESS AND SPEECH. [ch. x. 
 
 of burning of other libels, seeing that at best it was but a 
 barbarous usage.^ 
 
 ^0 swmmary remedy or injijmction for libel or 
 slcmder. — Whatever be the nature of the libel, whether 
 blasphemous, immoral, seditious or defamatory, no power 
 exists in any judge or court to punish summarily that 
 offence, except it be also a contempt of court. It is w 
 indictable offence or it is nothing, and the usual stept! 
 must be taken either by criminal information or indict- 
 ment, and in the latter case a preliminary hearing before a 
 justice of the peace may be added. But such justice can 
 only commit for trial before the justices of assize. It is 
 true that unlike the other libels an immoral libel may be 
 tried at Quarter Sessions on indictment, but this arises 
 from the jurisdiction being expressly defined by statute 
 for that court.^ Nor will the courts issue an injunction 
 to prevent the pubKcation of a Hbel, for if this were 
 allowed there would be constant applications of that kind. 
 It is true that Scroggs, C. J., assumed power to suppress a 
 periodical partly on this ground.^ But he was impeached 
 for this as an illegal exercise of jurisdiction. And such 
 an injunction, though sometimes asked for on the ground 
 of property being thereby injured, has been in modern 
 times refused on the ground that the court is not the 
 censor morum to decide summarily whether a statement 
 is libellous or not ; and if it is libellous it must be 
 Jjunished as such by action or indictment. And yet there 
 may be some exceptions, as where some urgent step to 
 preserve property may be involved, and where injunction 
 will not be refused merely because of the libellous character 
 of the act to be restrained.* 
 
 Costs in criminal prosecutions for fo'6e?.— Where there 
 has been an indictment for libel and verdict either of 
 guilty or not guilty, no provision was made by the common 
 law for costs, and thus any change of 4his state of things 
 must be due to statutory powers. When the Attorney- 
 General files an ex officio information, it is beneath the 
 dignity of the' Crown to pay or receive costs. Where the 
 prosecution was by way of criminal information and the 
 
 1 See Stat. 20 & 21 Vic. c. 83, ante, p. 70. « ggg ante, p. 213. 
 
 3 8 St. Tr.- 198. * Prudential Ins. Co. v Knott, L. R. 10 
 
 Ch. 142. 
 
CH. X.] COSTS IN LIBEL CASES. 231 
 
 ■defendant was found guilty and fined, it seems to liave 
 been long a rule of practice, that one-third of this fine 
 might be allotted to pay the prosecutor's costs, and if 
 insufficient to do so the Treasury was accustomed to re- 
 imiburse the prosecutor for the residue.^ But if no fine 
 was imposed, there was no means of paying costs provided. 
 
 In 1692 the legislature saw the hardship to which 
 defendants were often put by criminal informations 
 being begun and not proceeded with, thereby causing 
 grievous costs. Accordingly by a statute no prosecutor 
 was afterwards allowed to begin that proceeding without 
 entering into recognisance for 201. to pay the defendant's 
 costs, if the prosecution was not proceeded with. If it 
 was not proceeded with in a year, or if judgment were 
 given for the defendant, then the court was to give the 
 defendant his costs ; unless the judge certified, that there 
 was no reasonable cause for the information.^ It is true 
 this enactment has been held not to apply when the trial 
 is at bar, for no other reason but because 201. was seen to 
 be too small a sum. to cover the costs of such a mode of 
 procedure.^ And on the other hand, the defendant could 
 never get more than 201., the amount of the recognisanpe, 
 and which is usually a mere fraction of the costs he 
 incurs.* And j;his is still the law as to blasphemous, 
 immoral, and seditious libels. 
 
 With regard, however, to defamatory libels the subject 
 of costs is now regulated more justly by the Statute of 6 & 
 7 Victoria, cap. 96. Whether the defendant plead the 
 truth of the libel or not in answer to an indictment or in- 
 formation, if he obtain the verdict, he is entitled to his costs.^ 
 And if there was a criminal information the defendant is 
 entitled also to his costs of the rule of court, which must 
 precede the filing of such information.^ And conversely it 
 was also declared, that whenever the prosecutor succeeded 
 on a plea of justification set up by the defendant of a de- 
 famatory libel, then he was to have his costs allowed.^ On 
 one occasion the proprietor of a newspaper, having been 
 indicted and fined for a libel which was inserted without 
 
 1 1 Chitt. Cr. L. 871. 2 4 W. & M. c. 18, §1. » g ,, Qlerk, 
 7 Mod. 47. « E. V Brook, 2 T. E. 190. » E. v Latimer, 15 
 
 Q. B. 1077. 6 E. V Steel, 1 Q. B. D. 482 ; 2 Q. B. D. 37. 
 
 7 6 & 7 Vic. c. 96, § 8. 
 
232 LIBERTY OP PRESS AND SPEECH. [oh. x, 
 
 his knowledge by the editor, sued the editor to recover back 
 the amount of fine and costs which had been so brought 
 upon him ; but the court held that there was no ground on 
 which such an action was sustainable, because one of two 
 participators in an indictable offence can have no remedy 
 against the other. ^ 
 
 Remedy for slamder or libel by action for dmnages. — 
 The remedy by civil actidn for slander or libel is founded 
 on the same views as other actions for damages, namely, 
 that inasmuch as character or reputation is the means of 
 livelihood to most, and is at least a substantial means of 
 power and happiness to all, any invasion of this right is a 
 good cause for a jury awarding a sum of money as damages. 
 This sum may be viewed, not merely as compensation to 
 the plaintiff, but also as a punishment' to the defendant 
 sufficient to induce him and others to abstain from such 
 wrongful acts in future. This last ground, indeed, is of the 
 essence of all laws, for if laws do not supply a sufficient 
 average motive to abstain from injuries, they are either no 
 laws at all or altogether inadequate for their purpose. The 
 chief characteristic of an action for damages as contradis- 
 tinguished from an indictment or information is, that the 
 plaintiff is entire master of this remedy either to enforce it 
 or let it alone. If he commence it he can also withdraw 
 it, with or without some small payment to the defendant, 
 such as the court may sometimes enforce; as is usual in all 
 civil cases, for needlessly putting such defendant to expense 
 by beginning an action and not going on with it. But in 
 all circumstances the plaintiff is subject to no control in 
 enforcing this remedy. He can either sue for the injury 
 or not, and he can withdraw his action if he pleases without 
 any dictation or control of third parties. 
 
 The first action for slander was in 30 Edward III., and 
 from that time to Elizabeth the actions were few, and only 
 for weighty causes. In rude and turbulent times slanders 
 are usually redressed by a blow, and legal remedies are not 
 dreamt of. During the reigns of Elizabeth and James I., 
 the actions began to increase. ^ And Holt, C. J., seemed to 
 
 1 Colbum V Patmore, 1 C. M. R. 73. 
 
 2 2 Selw. N. P. 1191. Bac. Abr. Sland. D. 1. 3 Bl. Com. 124. 
 Coke in his time said these actions were far too frequent. — Croih;s u 
 Brown, 3 Bulstr. 167. But Lord Habdwicke said that the old 
 
CH. X.] ACTION FOR LIBEL. 233 
 
 think that actions for words ought to be encouraged, for 
 they were a great means to preserve the peace.' 
 
 The pleadings in actions for Uhd. — The same leading 
 feature distinguishes the plaintiff's statement of his claims 
 in an action as was noticed of an indictment. The pleading 
 must set out the defamatory words, so that the court may 
 see, that they are capable of bearing a defamatory sense, 
 and so that the defendant may know distinctly the charge.^ 
 If this were not a rule, words, innocent in themselves, 
 might by the witnesses be perverted from their true mean- 
 ing, or be by the jury so interpreted as to make a defendant 
 clearly liable at law. It is not, however, necessary to set 
 out the whole book or publication ; such passages as con- 
 tain the libellous matter will suffice.* And when the libel 
 has been destroyed and secondary evidence becomes admis- 
 sible, it is still necessary to set out the words as near as 
 possible, and prove those very words instead of merely 
 proving their siibstance.* Though it was usual in pleadings 
 to call a libel a false and malicious libel, yet neither the one 
 nor the other epithet was essential, for in civil actions both 
 are implied, especially as the words of the libel require to 
 be set out, and so bear on their face what the court knows 
 at sight to be libellous. And it is enough, in modern practice, 
 
 judges used their utmost endeavours to explain a\yay the most op- 
 prohrious words. — ^Caipenter v Tarrant, Cas. t. Hardw. 339. It is 
 said that in the reports there is no action for slanderous words 
 before Edward III. and only one such for fifty years of that reign ; 
 three such actions under Edward IV ; five under Henry VIII. ; in 
 Elizabeth 17. — Mwch ore Slander., 4. And Vaughan, C. J., said that 
 formerly no actions for words were brought unless the slander, if true, 
 would endanger the life of the slandered person, and that the 
 growth of these actions would spoil all communications. — King v 
 Lake, 2 Vent. 28. 
 
 And when a solicitor of Gray's Inn, and who had the Countess of 
 Lincoln for chent, sued a man for saying " be would milk her purse 
 and fill bis own pockets," whereby he lost her as a client, Vaughan, 
 
 C. J., wished to laugh the case out of court, saying the words bad 
 no more relation to the plaintiff's business than " saying of a lawyer 
 he hath a red nose or but a little head." The three other judges, 
 however, held the words, coupled with special damage, were action- 
 able. — Ihid. 
 
 1 Clifton V Wells, 12 Mod. 634. ' Wright v Clements, 8 B. & 
 
 Aid, 509 ; Gutsole v Mathers, 1 M. & W. 503 ; Bradlaugh v E., 3 Q. B., 
 
 D. 607. 8 Rutherford v Evans, 6 Bing. 458. * Rainy v Bravo, 
 L. R. 4 Privy C. 287. 
 
234 LIBERTY OF PRESS AND SPEECH. [ch. x. 
 
 to allege, that the -words were used in a defamatory sense, 
 though the inuendo mistake that defamatory sense.'- And 
 for a like reason, if the libel -was in a foreign language the 
 original -words and also a translation should be set out.^ 
 As, however, many libels do not bear on the face of them 
 an expressly defamatory sense, it is necessary in the plead- 
 ing to set forth that sense ; and as few libels describe in 
 exact terms the person meant to be libelled, it is also 
 necessary to indicate by an inuendo, that the plaintiff was 
 the person, of and concerning whom the words were used.^ 
 Tf the, words are used in reference to a trade or profession, 
 it must be shown in what way the words were connected 
 with such trade or profession,* And the statement of 
 claim must expressly or impliedly allege that the libel was 
 published.^ 
 
 If special damage is necessary to constitute a cause of 
 action, then the statement of claim must state the nature 
 of such special damage -with some detail. Thus, some 
 names should be given where they must necessarily be 
 known to the plaintiff; as in case of loss of friends, who 
 used to entertain the plaintiff with food.* But where the 
 names of individuals are not necessarily known none need 
 be set forth ; as, for example, the hearers of a preacher re- 
 fusing to continue attendance ; "^ or customers at an inn or 
 eating-house, who are not necessarily known to the keeper.* 
 
 The defence to action that the libel is true. — One 
 qualification of the remedy of an action for libel is, that it 
 is not enough to establish the tendency of the words to 
 cause injury to character, but it is also necessary to establish 
 the falsehood of the libellous act or conduct alleged ; and 
 yet the truth of the libel is rather a defence to be proved 
 by the defendant than an allegation to be disproved by the 
 plaintiff. The reason why it lies on the defendant to prove 
 the truth rather than on the plaintiff to prove its falsehood, 
 
 1 C. L. P. Act, 1852, § 61 ; "Watkin v HaU, L. R., 3 Q. B. 402. 
 
 s Zenobio v Axtell, 6 T. R. 162 ; R. v Goldstein, 3 B. & B. 201. 
 
 ' Lord Mansfield said that an inuendo meant something ex- 
 planatory of what -was said before sufiioiently ; but it did not mean 
 the addition of new matter.— R. v Tooke, 20 St. Tr. 794. 
 
 * James v Brook, 9 Q. B. 13. « Baldwin v Blphinston, 2 W. 
 
 Bl. 1037 ; Watts v Eraser, 7 A. & E. 233. ^ Moore v Meagher, 
 
 1 Taunt. 39. ? Hartley v Herring, 8 T. R. 133. « Evans v 
 
 Harries, 1 H. & N. 251. 
 
CH. X.] DEFENCE TO ACTION FOE LIBEL. 235 
 
 seems to be no other than this, that it is more easy to prove 
 the one than the other — the positive than the negative. 
 In the tinae of Lord Hardwicke, 1735, it seems that it was 
 not recognised as quite clear that the truth of a libel could 
 be set up as a defence to an action.* But the judges' 
 opinions delivered to the House of Lords in 1792 treated it' 
 as then settled. It is now enough for a defendant to say, 
 that the libellous words or writings were true.^ And he 
 must take notice also of the inuendoes added by the 
 plaintiff. The reason given for the truth of the libel being 
 a good defence to an action for damages has been said to 
 be, not that it negatives malice, but that it shows that the 
 defendant had no character to lose, and h^ence that no 
 allegation could do it injury.^' But though the truth of 
 the libel is a defence to an action, the mere honest belief 
 in its truth is no defence whatever, if in point of fa6t the 
 libellous matter is not true ; and yet this honest mistake 
 may lead a jury to reduce the damages which they award 
 for the wrong done.* And for a like reason, if a libel impu.te 
 felony, and all that can be proved in defence is, that there 
 were circumstances leading merely to suspicion of felony, 
 this wiU be no defence.^ It is sometimes attempted to 
 justify a libellous statement by proving a general rumour 
 or evil reputation existing to the same effect as the libel. 
 At one time it was allowed for the defendant to give evi- 
 dence of such reputation, without a plea of justification, as 
 in mitigation of damages.^' But the inadmissibility of such 
 evidence has been decided as abeady stated.'' And hence 
 when there is no plea of justification, it cannot be asked of 
 witnesses or proved, that before the cause of action the 
 plaintiff was generally reputed to have been guilty of the 
 conduct imputed.* "Where the libel imputed a criminal 
 offence and the truth is pleaded, if the plaintiff has been 
 tried on the charge and convicted, the defendant may give 
 in the conviction as some evidence of the truth of the libel. 
 But even though acquitted, the defendant may still prove 
 
 1 R. V Eoberts, Dig. L. Lib. 89. 2 Jud. Act, Ord. xix. 
 
 3 Macpherson v Daniels, 10 B. & C. 272. * Campbell v Spottis- 
 woode, 3 B. & S. 769. ^ Mountney v Watton, 2 B. & Ad. 673 ; 
 
 Chalmers v Shackell, 6 C. & P. 475. ^ Leicester v "Walter, 2 Campb. 
 251. 7 See ante, p. 183 ; Thompson v Nye, 16 Q. B. 175 ; Braoe- 
 
 girdle v Bailey> 1 F. & F.^38. « Ibid. 
 
236 LIBERTY OF PRESS AND SPEECH. [ch. x. 
 
 the truth of the charge, for the acquittal having been res 
 inter alios acta is not res judicata.^ And the trial of this plea 
 does not materially differ from a criminal prosecution, as 
 where the libel is an imputation of bigamy and the defence 
 set up is its truth.^ And if there was a doubt, the jury 
 ought to be directed to give the defendant the benefit of it.^ 
 When libel is said to he substantially t/rue,. — It often 
 happens that a libellous statement consists of several parts, 
 some of which are true and some of which are false. In 
 this case, unless the truth or other justification can be 
 proved as a defence to the whole libel, the plaintiff must 
 obtain damages for that part which is not covered by the 
 defence, if that is a material part of the whole.* Hence 
 much of the difficulty, on. such occasions, turns on the con- 
 struction of the libel compared with the nature of the 
 defence proved. Thus, where A wrote to a master about 
 his servant that there was " nothing too base for him to be 
 guilty of ;" and what was proved iu defence was, that the 
 servant had once signed an I U, and afterwards denied 
 his signature ; this was held a fair justification of the general 
 words used.^ As to such cases the rule is, that the sub- 
 stantial imputation must be looked at, and the mere turn 
 of the expression or some vague exaggerations and abusive 
 epithets are not to be regarded. In other words, if the 
 sting of the charge be proved, the rest is of little conse- 
 quence." Thus, the use of the words scamp and rascal is 
 often nothing more than a rhetorical exaggeration, and does 
 not add to the substantial imputation, if there is one suffi- 
 ciently substantial in the rest of the language -as.for example, 
 where the defendant in charging the plaintiff to be a seller 
 of poisonous pills, called him in course of his libel " ignorant 
 scamp," and " rot-gut rascal." "^ And hence, sometimes, the 
 difference between libel and no libel may turn on a slight 
 mistake in describing the imjiutation, but a mistake not 
 very material ; as where the plaintiff had been described 
 as having been convicted of riding in a railway carriage 
 without a ticket and fined, with an alternative of three 
 
 1 England « Bourke, 3 Esp. 80 ; Cook » Field, 3 Esp. 134. 
 
 2 Willmott V Harmer, 8 C. & P. 697. ' Richards v Turner, 
 Car. & M. 417. * Clarke « Taylor, 2 Bing. N. 0. 654 ; Ingram 'u 
 Lawson, 6 Bing. N. C. 66. » Tjghe v Cooper, 7 E. & B. 639. 
 
 fi Morrison v Harmer, 3 Bing. N. C. 767. ' Ibid. 
 
CH. X.] LIBELS IN NEWSPAPERS. 237 
 
 montlis' imprisonment, whereas the alternative had been 
 only two weeks' imprisonment, and it was held, that the 
 jury may treat this as an immaterial variance.^ 
 
 Interrogatories and evidence in cases of lihd. — No 
 question can be asked of the defendant either at or before 
 the trial, nor any interrogatories allowed that tend to prove 
 that he published the libel, for this is a criminal matter.^ 
 But particulars will be ordered from the plaintiff of the 
 persons whose patronage was alleged to be lost by way of 
 special damages.* And in like manner if the, plea of justi- 
 fication of truth is vague, the defendant will be ordered to 
 give particulars.* There is no such defence as setting off 
 one libel against another. ® Nevertheless when the facts 
 appear of mutual libels, the jury can always practically deal 
 with the matter in the amount of damages they award. 
 One important part ia the remedy against a libeller often 
 is to prove the malice of the libeller, or that the defendant 
 was not in the exercise of any lawful purpose of his own, 
 and other writings and acts of the defendant are often sought 
 to be brought in aid and tendered as evidence of this mali- 
 cious feeling. It was once doubtful whether and how far 
 it was competent on these occasions to give in evidence of 
 malice that the defendant had at other times made defama- 
 tory statements and published libels. At length, in 1851, 
 it was settled that previous libels might be used as evidence 
 to prove the malice in a particular case.^ There is, however, 
 a difference in this respect between libels published after 
 and those before the particular libel sued for ; in the case of 
 libels published after, though these are admissible evidence 
 to prove malice, yet the judge is bound to point out to the 
 jury that there may have been subsequent transactions to 
 account for the later libels. ^ 
 
 Defence for libels in newspapers. — The mode of de- 
 fence for libels appearing in periodical publications varies 
 Irom that in other cases, and was made more suited to the 
 
 • 1 Alexander v N. E. E. Co., 6 B. & S. 240. ^ Atherley « Harvey, 
 2 Q. B. D. 524. » Wood v Jones, 1 F. & F. 301. * Jones v 
 
 Bewicke, L. E., 5 C. P. 32; Gourley v Plimsoll, L. R., 8 C. P. 369. 
 5 Kelly V Sherlock, L. K., 1 Q. B. 698. « Barrett v Ifong, 3 H. 
 L. C. 395. 7 Hemmings v Gasson, E. B. & E. 346 ; Goslin v 
 
 Corry, 7 M. & Gr. 343 ; 8 Scott, N. E. 21 ; Harrison v Pearce, 1 F. 
 & F. 567. 
 
238 LIBERTY OF PRESS AND SPEECH. [ch. x.- 
 
 circumstances by the Act of 1842. When a libel in such 
 publication is complained of, the publisher's first duty is 
 at the earliest opportunity to insert a full apology, or if the 
 interval of publication exceeds a week, then to insert an 
 apology in some other periodical to be selected by the ag- 
 grieved party. Should an action be brought thereafter the 
 defendant may plead, that he inserted the libel without 
 actual malice or gross negligence, and that he made this 
 apology; and he may pay into court a sum of money by 
 way of amends for the injury.^ The payment of money 
 into court is a vital part of this defence,^ though it does not 
 necessarily admit the liability.' It is for the jury to say 
 whether the apology was sufficient, and if not, to give 
 damages irrespective of the sum paid into court.* And a 
 plea that mutual apologies were accepted and published 
 will be a good defence, if the plaintiff again sue in respect 
 of it.^ This plea of an apology is in strictness no defence, 
 but the statute has allowed it as part^of one in conjunction 
 with a payment into court, when the libel has appeared in 
 a periodical. In other cases than libels iii the press, though 
 an apology offered or made is no defence, yet it is allowed 
 to be proved by way of mitigation of the damages, if notice 
 to that effect is given at the time when the defendant pleads 
 his defence.^ Sometimes after an action is brought the 
 plaintiff and defendant agree, the one to accept and the 
 other to tender an apology, and this being an accord and 
 satisfaction may be pleaded, should the plaintiff attempt 
 to depart from his agreement.^ 
 
 Functions of thejvdge in trials of actions for libel. — 
 The duties and position of the jury and the judge in 
 criminal trials have been already set forth. In trials of 
 civil actions, while a judge may give a jury his own im-: 
 pression as to the guilt or liability of the defendant, it is 
 not usual to do so, for it is the peculiar province of the 
 jury to decide that point.^ And the proper question to put 
 to the jury is not whether the defendant intended to in- 
 jiire the plaintiff, but whether the tendency of the words 
 
 1 6 & 7 Vic. c. 96, § 2. » 8 & 9 Vic. c. 75, § 2. ^ Lafone v 
 Smith, 4 H. & N. 158. * Jones v Mackie, L. R., 3 Ex. 1. 
 
 6 BooBey v Wood, 3 H. & 0. 484. « 6 & 7 Vio. c. 96, § 6. 
 
 7 Boosey v Wood, 3 H. & 0. 484, 8 Baylis v Lawrence, 11 A. 
 E. 920 ; Parmiter v Coupland, 6 M. & W. 105. 
 
CH. X.] DAMAGES FOE LIBEL. 239 
 
 published was injurious.^ And the judge is bound to tell 
 the jury whether the language of the libel is capable of the 
 libellous meaning charged ; and if he thinks it is, to leave it to 
 them to say, if they are satisfied that such was the meaning; 
 and he may direct a nonsuit or verdict for defendant.^ 
 And it is, for example, for the jury to say if the defendant 
 meant to impute felony, or only a suspicion of felony.^ 
 
 Damages in actions for libel. — The amount of damages 
 recoverable in actions for libel, though varying according 
 to circumstances, is seldom founded on the mere mental 
 suffering, the vexation, or disgrace, but usually on the 
 pecuniary loss to business, if any, or if there is no business 
 then to the social reputation, treated, as it always must be, 
 as a valuable possession. In one case Lord Ellenborough 
 held, that if a person who was libelled in a picture de- 
 stroyed that picture, the owner of the picture could not 
 recover damages beyond the value of the canvas and 
 paint.* 
 
 In general the court will not disturb a verdict on the 
 ground of damages being excessive. The courts used to 
 say they have no means of estimating this value.^ And a 
 new trial on the ground of excess will be refused. In one 
 case a clergyman obtained £750 for a slanderous imputation 
 of acts of immorality and misappropriation of the sacra- 
 ment money. ^ In like manner the court will be slow to 
 grant a new trial for inadequacy of damages ; and there 
 must at least be a mistake of law by the judge or some 
 miscalculation by the jury to justify it. When a clergy- 
 man recovered one shilling in a case where there had been 
 cross libels, this was held to be no ground for a new trial.''' 
 Yet where it was apparent the jury had made some com- 
 promise, and the inadequacy made it not a fair verdict, a 
 new trial was allowed.* 
 
 Limitation of time for bringing action, and other 
 incidents. — In the Eoman law the doctrine was, that if 
 an injured person overlooked the injury at the time, he 
 
 1 Fisher v Clement, 10 B. & C. 472. ^ Hunt v Goodlake, 43 
 
 L. J., C. P. 54. 3 Tozer v Mashford, 6 Ex. 539. « Du Bost v 
 Beresford, 2 Gamp. 511. ^ Townsend v Hughes, 2 Mod. 150. 
 
 6 Highmore v Harrington, 3 C. B., N. S. 142. ^ Kelly v Sher- 
 
 lock, L. E., 1 Q. B. 697 ; Forsdike v Stone, L. B., 3 C. P. 607. 
 
 8 Falvey v Stanford, L. E., 10 Q. B. 54. 
 
240 LIBERTY OP PRESS AND SPEECH. [en. x. 
 
 was held to condone it, and could not afterwards sue.^ 
 Such doctrine is not followed, in this country, for the time 
 allowed for bringing an action of libel is six years from the 
 date of publication, and for slander is two years.^ But 
 the publication of a libel referred to is not necessarily the 
 date of the first publication, as every sale is a fresh publi- 
 cation, and a fresh cause of action. And hence where the 
 plaintiff had been libelled seventeen years before in a news- 
 paper, and sent and purchased a copy of it, this sale of a 
 copy was held a fresb cause of action;^ It is, however, the 
 doctrine of the common law, that an action for slander or, 
 libel dies with the person slandered, and no statute has 
 yet altered tl\at state of things.* 
 
 Costs in actions for libel and slander. — When the 
 jury give a verdict for any sum, even for a farthing, then 
 the plaintiff is entitled to his costs, unless the judge or a 
 court disallow them.^ And while in a county court an 
 action of libel cannot be brought except by consent of both 
 parties f yet if the action be brought in the high court by 
 a plaintiff who has no means, the action may be remitted 
 to be tried in a county court, unless the plaintiff will give 
 security for costs, or a judge excuse this, owing to the 
 nature of the action.^ 
 
 1 Just. Inst. 4, 4, 12. ^^ 21 Jas. I. c. 16, § 3. " D. Brunswick 
 V Harmer, 14 Q. B. 186. ^ See 1 Pat. Com. (Pers.) 248. 
 
 « Garoett v Bradley, L. R., 3 App. C. 944. 6 9 & 10 Vic. c. 108, 
 § 23 ; 19 & 20 Vic. c. 108, § 23. 7 30 & 31 Vic. c. 142, § 10. 
 
CH. XI.] COPYRIGHT. 241 
 
 CHAPTEE XI. 
 
 COPYEIGHT. 
 
 First notions of copyright in English lam. — The 
 right now called copyright, though as familiarly known and 
 understood as other rights, long struggled against the con- 
 fusion of ideas which was apparent in all that the legisla- 
 ture, for two centuries after the discovery of printing, did 
 relating to books, the chief product of that discovery. We 
 have already seen, that it was a common notion long pre- 
 valent, that printing was a diabolic art — that types were 
 worse than gunpowder or poison, the handling of which 
 was thought essentially dangerous to government; and 
 therefore that a licence from the Crown was required to 
 enable any one to meddle with them, either as a printer or 
 publisher. The judges at first seem to have imbibed the 
 same notions, and when Scroggs and Jeffreys laid down the 
 law, that no one could publish news of any kind, however 
 innocent, without the king's licence, they were only faith- 
 fully interpreting the first loose thoughts that occurred to 
 every one during the century preceding. It is true that it 
 became gi'adually more and more apparent, that types had 
 nothing about them essentially dangerous, and that after all 
 printing was only an ordinary occupation, and that workmen 
 became engaged in it from the same motives as they did in 
 digging or ploughing, or weaving, or buying and selling cattle, 
 and that the product of their labour differed in no respect 
 from other prodticts. But there was still another right in- 
 volved beyond the mere printing, and that was the author- 
 ship of the thoughts, that gave value to the materials used in 
 the whole process. This was indeed too abstract a notion at 
 first for any legislature or any court to comprehend, and it 
 
 E 
 
242 LIBERTY OF PRESS AND SPEECH. [oh. xi. 
 
 "was practically undeveloped for nearly a century after the art 
 of printing was practised. The legislature at length hegan 
 to discover that there were such articles of commerce 
 as books, and that ships could be laden with them, and 
 that these books were often imported from foreign parts ; 
 but the only noticeable thing about them was, that they 
 usually swarmed with heresies, and on that ground alone 
 attracted what attention was given to them. It never 
 dawned on the legislature or the courts of law, that there 
 were such people as authors, probably because books were 
 hastily assumed to be the direct emanations of some Satanic 
 impulse, requiring to be watched, as portending danger to 
 all government, to all law, and all order. If it had been 
 more carefully examined it would have been self-evident, 
 that the author merely created the material of a book by 
 the use of his faculties, and by a long studied industry 
 in nowise distinguishable from the industry applied in 
 innumerable other forms. 
 
 Bracton had so vague a notion of copyright, that he 
 thought that "letters, though golden, belonged to the 
 parchments and papers, as much as things built on or in- 
 serted in the soil belonged to the soil ;" whereas he admitted 
 the rule was the reverse as to paintings.^ He thought the 
 nearest analogy between paper and what was written upon 
 it was that of the soil with trees planted in it according to 
 the maxim of the Eoman law — " if a stranger plant trees in 
 another's soil the trees become the property of the owner 
 of the soil." The same delusive maxim was relied upon 
 so late as a century ago by some of those who argued 
 against copyright at common law ; and even Lord Camden 
 had not apparently outgrown its misleading influence. 
 
 None of the early statutes, though dealing, as we have 
 seen, with printing and books, touched upon copyright. 
 The legislature, in the time of Henry VIII., made it the 
 duty of the Lord Chancellor and chief justices to inquire 
 into the price of books, and to limit not only the price, but 
 the cost of binding ; and the offender against the statutory 
 restrictions was to forfeit a sum for each book.^ Coke, in 
 noticing this statute, seemed to have no appreciation of the 
 author's right, but dwells on the inxportance of this duty 
 
 ' Bract b. ii. c. 2. " 25 Hen. VIII. c. 15 ; 2 Inst. 744. See 
 
 other statutes bearing on the same subject, ante, pp. 44, 51. 
 
CH. XI.] FIRST COPYRIGHT ACT. 243 
 
 cast on the judges of fixing the price. Yet the courts seem 
 to have taken usually a correct view, in times a little later, 
 of the author's right in the hook which he produced, and 
 treated it as his property. No recorded decisions of the 
 courts, it is true, are to be found until about the end of the 
 seveiiteenth century ; and they all show somewhat vague 
 ideas of the relations of the rights involved.^ The Sta- 
 tioners' Company had obtained a charter from Philip and 
 Mary in 1556, the policy of the Crown at that time being 
 to prevent the propagation of the reformed religion. 
 Presses, as already stated in a former chapter, required to 
 be licensed, and the Crown, through the machinery of the 
 Star Chamber, had enforced its powers of search, forfeiture, 
 and imprisonment, against offenders. In 1559 the registers 
 of the Stationers' Company contain records of fines for 
 evading the copyright ; and in 1573 there are entries of 
 the sale of copies {i.e., copyrights), with their prices.^ 
 
 The first Copyright Act of Anne in 1709. — About 
 1709 authors and publishers began grievously to complain 
 of piracy and the difficulty they had in tracing the wrong- 
 doers, and recovering damages or stopping the mischief. 
 And they petitioned Parliament for an Act to give them 
 better remedies. And in 1709 an Act passed which recited, 
 that "persons had of late reprinted books without the 
 consent of the authors, to the very great detriment and 
 too often to the ruin of them and their families." This 
 Act caused afterwards ■great litigation, and, as authors dis- 
 covered to their cost, caused nothing less than confiscation 
 of their property. " This was done," as Lord Lyndhurst, 
 L.C., remarked, "by the introduction of one or two 
 
 1 They are reviewed in the case of Millar v Taylor in 1769. — 4 
 Burr. 23 1 7. And see Lilly's Entries, 67 ; Carter, 89 ; Skinner, 234 ; 
 1 Mod. 257. 
 
 2 Chalmers' Apol. Shaksp. 298. When Captain Bell in 1646, "at 
 great cost and pains discovered a manuscript of, Luther's Table 
 Talk marvellously preserved" and puhlished his translation, the 
 House of Commons magnanimously resolved, that he should have 
 the sole disposal and benefit of printing it for fourteen years, and that 
 none should print the same unless licensed by him. — Joum. H. C, 
 24 Feb. 1646. This crude resolution, which presented to a man 
 his own property for fourteen years, probably gave the cue to the 
 unknown author of the first copyright act of Anne. 
 
 " • " K 2 
 
244 LIBERTY OF PRESS AND SPEECH. [ch. xi. 
 
 ill-considered words in a statute whicli was meant to be 
 a benefit to literature, but turned out a fatal gift." ^ 
 
 This statute of Anne, though professing to be " for the 
 encouragement of learned men to compose and write use- 
 ful books," in its main enactment said, that " the author 
 of a book shall have the sole liberty of printing and re- 
 printing such book for fourteen years and no longer ; " but 
 if the author was aliv& at the end of fourteen years, then 
 for fourteen years more. Then penalties were imposed on 
 those who printed and sold the book, namely, forfeiture of 
 the books printed and one penny for every sheet found in 
 the offender's possession. The- benefit of the Act was, 
 however, given only to those who registered their title with 
 the Stationers' Company before publication, and this was 
 made a condition precedent to any remedy whatever. Any 
 person who thought the price of a book too high might 
 complain to the Archbishop of Canterbury or the judges, 
 who had power at the cost of the bookseller or printer 
 to settle the price as seemed just. And nine copies were 
 to be given to certain libraries named. Though the statute 
 said nothing about the author being entitled to bring an 
 action during the statutory term against any piratical 
 publisher, the courts about a century later held that this 
 was necessarily implied.^ In ISOl the penalties were 
 somewhat increased, the term of copyright was extended, 
 and some details amended.^ In 1814 the term was made 
 twenty-eight years in all caseS; and if the author then 
 lived it was to extend till his death.* In 1842 the term 
 was extended to forty-two years, or to the term of natural 
 life, and seven years more, if this last term exceeded 
 forty-two years.^ 
 
 But the theory of all these Acts was one and the same, 
 namely, that whereas at: common law the author had the 
 same perpetual right in his property as other proprietors 
 
 1 H. L., 63 Pari. Deb. (3) 782. The real author or draughtsman 
 of the act of Anne is unknown, and the Act excited little attention 
 at the time, and the authors in Anne's reign seem to have shown 
 ahout as little knowledge and appreciation of the law affecting 
 themselves as those who at that date directed the legislation. It 
 was a peculiarity of Swift, that he never cared about any of his 
 copyrights. 
 
 2 Beckford « Hood, 7 T. R. 620. ^ 41 Qg^^ jjj p_ jQy 
 * 54 Geo. III. c. 156. « 5 & 6 Vic. c. 45. 
 
CH. JTI.] EFFECT OF COPYRIGHT ACT, - 245 
 
 have in lands and houses and ships and horses, yet in the 
 single case of authors their right has been confiscated 
 without compensation, after at first fourteen and now after 
 forty-two years.^ 
 
 Prcbctical effect of the Copyright Acts on authors. — 
 This last view requires to be here explained a little more 
 fully, so that any ordinary understanding can comprehend 
 the situation. The statute of Anne affected authors in 
 this way. Before that act (according to the opinion of 
 eight against three judges in 1774) the author had not 
 only the right to maintain an action against pirates, but 
 had that right in perpetuum, that is to say, until he or 
 his executors sold it. But half of the judges in 1774 
 further held, that the statute, owing to its peculiar language, 
 cut down this absolute (or, as it was sometimes called, 
 this perpetual) right to fourteen years, and then confis- 
 cated the rest altogether without giving any compensation. 
 In the, case of all other kinds of property, whether land 
 or houses, or cattle or ships, no instance has ever occurred 
 in which the legislature has confiscated the right of pro- 
 perty, after a stated term of years in the same way. It 
 
 ^ The statute of Anne, as Aston, J., observed, was apparently in- 
 troduced merely to give a speedier and better remedy for a limited 
 time, and not to interfere with a property which existed a 'priori, and 
 which would outlast that temporary collateral remedy. — Aston, J., 
 Millar v Taylor, 4 Burr, 23.50. 
 
 It is quite possible that a legislature may blunder in the words 
 used to express its meaning ; and though courts also f reqently blun- 
 dered in former times, yet they might on this occasion have rightly 
 held, that owing to the crude and unworkmanlike language used by 
 the unknown draughtsman of this act, there was no alternative for 
 them but to hold, that that act extinguisbed the common law per- 
 petual copyright after the statutory period had elapsed. Such at 
 least was the decision, though probably judges in modem times 
 would have decided differently. 
 
 That the act of Anne would not have been construed in modem 
 times so as to confiscate without compensation the author's common- 
 law right is obvious from this, that by the 9th section of that act, 
 it is provided that " nothing in the act contained shall extend or be 
 construed to extend either to prejudice or confirm any right that 
 any person or persons have or claim to have to the printing or re- 
 printing any book or copy already printed or to be printed." How 
 half of twelve judges could have overlooked this proviso does not 
 anywhere appear. Their opinions are nowhere printed at length, and 
 are not even preserved in the House of Lords' Library, so that we 
 cannot know by what reasoning they disposed of that proviso. 
 
246 LIBERTY OP PRESS AND SPEECH. [ch. xi. 
 
 has, for example, never ordered the property in a farm or 
 a house, or a horse or a ship, or an advowson, to be confis- 
 cated after fourteen years, and the proceeds given to the 
 poor of the parish or to any persons who choose to scramble 
 for it. Yet this has been done in the single case of 
 authors, and no reason has been given except that the 
 invidious distinction is apparently due to a blunder of an 
 Act of Parliament in 1709, which has never yet been 
 rectified, though somewhat palliated by extending the term 
 from fourteen to forty-two years. The act of Anne in 
 all its sections bears the marks of crude and imperfect 
 acquaintance with the subject. In former times, printing 
 and types were put in the same category as gunpowder 
 and poison, being illegal in themselves, and yet no statute 
 has ever passed, which, after a term of fourteen or forty- 
 two years, confiscates the property even in poison and 
 gunpowder, or in the vested rights of their manufacturers, 
 or which gives the accumulated value of the good- will to 
 the poor. Authors thus stand in the invidious position 
 of being the only skilled workmen known to mankind, who, 
 after creating and enjoying their property for forty-two 
 years, are obliged to surrender it for no other reason 
 except that all the rest of their fellow-creatures are ex- 
 tremely anxious to have possession of all the benefits 
 derivable from that property, without the trouble of paying 
 for it. 
 
 Progress of early decisions as to common law copy- 
 right. — All the cases reported in the law books up to the 
 case of Miliar v. Taylor in 1769 were reviewed by Lord 
 Mansfield and other judges, and these were said to be 
 consistent with the notion, that, at common law, apart from 
 statute, the right inherent in the author of a manuscript 
 and book was an exclusive right to turn that manuscript 
 to advantage in the only way in which it could be so dealt 
 with, namely, by printing and selling copies as articles 
 of commerce. At all events, even if those authorities 
 were somewhat vague and confused, this has often before 
 happened with novel rights emerging in the law. As to 
 their precise measure and status, courts usually at first 
 vacillate till a firm view is obtained and adhered to. 
 And, at all events, those authorities do not contradict the 
 doctrine, that there was and is such a common-law right 
 
CH. XI.] EARLY CASES ON COPYRIGHT. 247 
 
 as has been asserted by Lord Mansfield and other judges. 
 Those early decisions perhaps show a vague leaning of the 
 courts in favour of the doctrine, that whenever a matter is 
 doubtful it is always safe to assume that the right came 
 first from the Crown. And hence they had easily held, that 
 the copyright in an almanac " which, as they said, has no 
 particular author," was in the king.^ But a hundred years 
 later, the court found, that this doctrine was quite unten- 
 able, and that a Crown patent for the exclusive printing 
 of almanacs was worthless.^ The Court of Chancery pro- 
 tected the common-law copyright, which was held to 
 survive after the statutory period had expired, and it was 
 not tin 1760 that the point was first started, in reference 
 to a piracy of the Spectator^ that the statutory short period 
 superseded and extinguished the perpetual common-law 
 right — that such statutory right was the only right, and 
 when it ceased, there was no copyright beyond it.^ All 
 the reported cases, therefore, up to 1769, it may be assumed, 
 were vague, and proved little. At length, iu' 1769, the 
 Court of Queen's Bench, by a majority of three to one, 
 distinctly decided, that at common law • the author or 
 assignee of a copyright could recover damages for the 
 publication of copies without the author's consent, irre- 
 spective of the statute of Anne, and that that statute 
 merely gave a collateral remedy for a limited time.* In 
 another case, however, in 1774, the House of Lords, after 
 taking the opinion of eleven common-law judges, held that 
 though at common law the author and his assigns may 
 have had the sole right of printing and reprinting the 
 book in perpetuity, yet that the statute took wholly away 
 that right and substituted for it a shorter right for the 
 term of years mentioned, namely, fourteen years ; and that 
 the author had thereafter no other right of any kind beyond 
 such as the statute so substituted.^ The later authorities' 
 accordingly have now assumed as settled law, that the 
 copyright of published writings is regulated exclusively 
 by statute, whether formerly existing at common law or 
 not, that is to say, though a right of action lay at common 
 
 1 Stationers' Co. v Seymour, 1 Mod. 256. ^ a.d. 1775, Stationers' 
 Co. V Caman, 2 W. Bl. 1004. ' Tonson v Collins, 1 W. Bl. 301, 
 
 321. ^ Millar v Taylor, 4 Burr. 2303. 6 Donaldson v Beckett, 
 4 Burr. 2408. 
 
248 LIBERTY OF PRESS AND SPEECH. [ch. xi. 
 
 law for invasion of copyright, yet after the statute of 
 Anne the common-law right of action was superseded by 
 the action given by that statute, and heiace that an action 
 for piracy could only be brought during fourteen (now forty- 
 two) years after publication.^ 
 
 Reasons why copyright does not differ from otiier 
 rights. — That the author of ideas which he has put in 
 writing for any legitimate purpose either of profit, amuse- 
 ment, or gratification, should have the sole and exclusive 
 right of multiplying copies for the furtherance of his views, 
 and should at common law be entitled to the same pro- 
 tection against the violation or obstruction of that right as 
 in other cases, while he pursues the business of life and 
 seeks to advance his objects, might seem a truism. Think- 
 ing and putting thoughts into words in such a form as to be 
 intelligible, is only one mode of working and of exercising 
 the human faculties. The object of all laws is nothing else 
 than to protect each man in pursuing his own ends, in the 
 fullest manner consistently with aU other persons equally 
 pursuing theirs, and subject only to such reasonable re- 
 strictions as this latter consideration requires. To think, 
 and to speak, and to write, are as natural instincts of ma.n- 
 kind as to eat, to drink or to work, to grow com, or to sell 
 cattle. To write or communicate one's ideas to the public 
 is as natural and obvious a development of his working 
 powers, as it is to speak or to write to one individual only. 
 To print copies of the same writing is nothing else than 
 to save the labour and expense of innumerable hands by 
 a mechanical process. But whether an author choose to 
 employ an army of clerks to copy his writings or a few 
 hands to print them can make no real difife;rence as to what 
 must be the view of the law regarding the nature and effect 
 of the thing he is doing. The author of a writing creates 
 'a specific property, for if he finds, that the diffusion of many 
 copies ministers to the objects of life and procures him 
 profit, or what is sometimes a higher equivalent, viz., a fund 
 of power and reputation amongst his fellow men, then this 
 power of multiplying copies is substantially a property in 
 itself, and if it is property, then it must exist so long as 
 it can be identified and its continuity be traced. " Once 
 
 1 Jeffreys w Boosey, 4 H. L. C. 815 ; Beokford v Hood, 7 T. E 
 620 ; Eeado v Conquest, 9 C. B., N. S. 755. 
 
CH. XI.] CONFISCATION OP COPYRIGHT. 249 
 
 property always property," is a maxim which means, that 
 when once a specific thing has been created and has the 
 qualities of property, it must exist fpr an indefinite time, 
 into whosesoever hands it passes, until the power is 
 exhausted or the property comes to an end. If it exists 
 in a specific form and is capable of beius identified, it must 
 be property, or what is the same thing, the proximate cause 
 of property. The power to issue and multiply copies is in 
 substance the property itself; whether that power is 
 exercised in the mode of issuing one edition or set of copies 
 or making copies from time to time until the end of time, 
 is immaterial. Why the mere accident of making a 
 thousand copies by one short process of printing should 
 operate to extinguish the original power, and prevent 
 future thousands of copies being issued thereafter from 
 time to time, it is difficult to conceive, and no sensible 
 mind has rendered a reason for it.^ 
 
 Reasons aUegedfor eonjiscating authors' copyright. — 
 Though it has been seen, that the nature of g,n author's 
 work differs in no way from other kinds of work, nor his 
 property from other kinds of property, yet it was once 
 urged, " that copyright is the creature of statute," as if this 
 
 1 " It did not occur to our ancestors, that the right of deriving solid 
 benefits from that which springs solely from within us — the right 
 of property in that which the mind itself creates, and which, so far 
 from exhausting the materials common to all men, or limiting their 
 resources, enriches and expands them — a right of property which, 
 by the happy peculiarity of its nature, can only be enjoyed by the 
 proprietor in proportion as it blesses mankind — should be exempted 
 from the protection which is extended to the ancient appropriation 
 of the soil and the rewards of commercial enterprise." — Talfovrd, 
 JET. a, 38 Pari. Deb. (3) 867. 
 
 " No property is so entirely, purely, and religiously his own as what 
 comes to him immediately from God without intervention or partici- 
 pation. It is the eternal gift of an Eternal Being. No legislature 
 has a right to confine its advantages, or to give them away to any 
 person whatsoever to the detriment of an author's heirs." — W. S. 
 Landor, 2 Forster's Landor, 422. 
 
 " The tenure by which the property in Ijooks is held is superior to 
 that of all other property, for it is original. It is tenure which does 
 not exist in a doubtful title, which does not spring from any ad- 
 ventitious circumstances. It is not found ; it is not purchased ; it 
 is not prescriptive ; it is original. So it is the most natural of all 
 titles, because it is the most simple and least artificial. It is para- 
 mount and sovereign, because it is a tenure by creation." — B. Disraeli, 
 43 Fori. Deb. (3) 575. 
 
250 LIBERTY OF PRESS AND SPEECH. [ch. xi. 
 
 threw great light on the subject — as if it was a perfect 
 solution and satisfied all parties. Copyright, however, is 
 no more the creature of statute than any other right is so. 
 The statute does not create one's hands, or legs, or brain, 
 or appetites, or desires, or affections ; it neither gives one 
 ideas, nor teaches one what to do with them. Burke said — 
 " Property is not the alms of government, as life itself is not 
 their favour and indulgence." If there were no statutes 
 and no laws, the right of an author would be the same as 
 it is under their protection. The only difference would be, 
 that he would have to defend his,right with his hands, and 
 all other proprietors would do exactly the same. The law is 
 merely a collection of remedies fitted to dispense with 
 this single-handed combat against all comers, which the 
 possessor of any kind of property would eternally wage in 
 its defence. Such a right exists anterior to and is above 
 and beyond all statutes and all laws. 
 
 Again, it was once urged, that the legislature can 
 confiscate any man's property if it pleases, with or without 
 terms, and with or without compensation. And this is 
 true. It may to-morrow single out any man from the 
 crowd; it may sell his goods and chattels, and give the 
 proceeds to the poor; it may rase the foundations of his 
 house to the ground and sow the site of it with salt. This 
 may happen to any one, and there is no remedy whatever 
 provided by the constitution. But still there will be found 
 some people to ask, why the legislature, since it exists only 
 for the impartial and equal protection of all, should single 
 out one man rather than a thousand or than tens of 
 thousands. It may be always pleasant to give away other 
 people's property; but much of the time of courts is 
 occupied in greatly reducing that pleasure, and confining it 
 within as narrow a circle as possible. 
 
 Again, it was once said, that copyright is so troublesome 
 to protect, that the best course was to confiscate it after a 
 short period. But even if it were troublesome, the object 
 of law is nothing else than to find appropriate remedies for 
 each special kind of property. For example, it is trouble- 
 some to protect the game and fish on one's estate, and 
 accordingly the statutes provide Game laws and Fishery 
 laws to assist the owners in protecting them better by 
 giving more prompt and effective remedies. It does this 
 
CH. XI.] PERPETUAL COPYRIGHT. 251 
 
 by way of. an additional and concurrent remedy, but it 
 never extinguishes the common-law right underlying all 
 statutory remedies. So it deals with owners of fruit, and 
 forests, and mines. If one's body is assaulted, a statutory 
 remedy, if pursued within six months, may be resorted to ; 
 but if it is not resorted to, the legislature has not declared, 
 that ever afterwards the body may be beaten with impunity 
 and all remedy be denied. 
 
 Again, it has been said, by way of reductio ad ahsurdum, 
 that an author cannot at common law be deemed to have 
 this perpetual copyright in the product of his, thoughts, 
 unless he can claim also the same exclusive right in every 
 other thought of his brain, and in all his jests, fine sayings, 
 and daily conversation. But it might as well be said, that 
 a man cannot be paid his daily wages for digging a drain, 
 unless he can also claim to be paid for walking to and from 
 his work, for exchanging sentiments on the weather with 
 all passers-by, or even for consuming his food, seeing that 
 all these involve somte kind of bodily labour, and one can- 
 not be had without the others. The law disposes of most 
 of these trifles by a convenient maxim — de minimis non 
 curat lex. Every man arrived at years of understanding, 
 and all courts also, instinctively recognise the broad dis- 
 tinction between matters of business and the small change 
 that constantly passes between man and man in every 
 state of society, and which does not enter in any shape 
 or form into any contract, express or implied. Every man 
 must converse, with or without saying things worthy to be 
 remembered, and such things are given and taken with- 
 out hope of reward ; but it does not follow, because he 
 does not reserve the ornaments of conversation for separate 
 sale, that he cannot collect his matured thoughts and give 
 to them the form of a book, and make them a saleable 
 commodity, if he cares to take the trouble and write them 
 out methodically. On what principle is he to forfeit all 
 claim to this serious labour, because he has also thrown 
 away many " ornaments of debate " among the crowd, for 
 them to keep to their own use, or pass on to others 
 gratuitously or otherwise? 
 
 What is meant hy a perpetual copyright at common 
 law. — Again, it was once said, that a perpetual copyright 
 would lead to absurd results and could not be given effect 
 
252 LIBERTY OF PEESS AND SPEECH. [ch. xi. 
 
 to by the law. But the expression " perpetual copyright " 
 is different in no respect from any other perpetual right. 
 All rights of property are perpetual, and cannot be other- 
 wise. There is jperpetual right in land, in a house, in a 
 horse, in a ship. All that this means is, that the proprietor 
 is entitled to sell or bequeath it ; and the same can be done 
 as to all personal property. Any inconvenience caused 
 by the probable multiplication of owners is no greater in 
 respect of books, than in respect of horses or ships. The 
 nearest analogy being that of a ship, it never entered into 
 the mind of any legislature, that in order to prevent multi- 
 plicity of owners in a ship the proper thing to do was to 
 confiscate the ship after fourteen years, and giv6 the proceeds 
 to the poor. On the contrary, the law bends to the pecu- 
 liarity of each kind of property, and has carefully protected 
 the property in ships, and provided for all the contingencies 
 and difficulties caused by such multiplication, and by the 
 occasional disagreement of many joint owners. If any 
 difficulty therefore be apprehended from copyright being 
 vested in course of time in many hands, it is as easy to 
 correct and provide for that, as it is in the case of ships. 
 But no analogy in any case justifies the application to 
 literary property of an anomalous treatment, which makes 
 it liable to be confiscated and unfit to be enjoyed, merely 
 because the law has not taken the trouble to provide 
 adequate safeguards as in all other cases. 
 
 The end therefore as well as the beginning of the legisla- 
 tion as to copyright, is, that though confiscation has been 
 resorted to, no reason ever has been rendered for such an 
 anomaly; and though the legislature no doubt pleased a 
 vast majority of its subjects by giving them the property of 
 a very few of their number to be scrambled for, it forgot 
 that precisely the same treatment of every other kind of 
 property would give still greater pleasure to vast multitudes 
 of mankind, ever anxious to possess without the trouble 
 of working for the thing that is coveted.^ 
 
 Copyright as easily identified as other property. — 
 One of the reasons urged against the existence of a per- 
 petual copyright was, that copyright could not be identified, 
 for it was only a right in ideas or fictions of the brain, that 
 
 ' The ancient pliilosopherwell observed, " How can I argue against 
 the master of thirty legions ? " — Bac. Apopht. § 160. 
 
CH. XI.] COPYEIGHT EASILY IDENTIFIED. 253 
 
 could not be ■weighed or handled or measured or eaten. 
 But this is to separate the abstract creative power from 
 the concrete form it assumed. If the author invents a 
 certain order of words which no second author except by 
 a, miracle could invent, and if those words can be put 
 in a tangible visible form, and thereby assume as durable 
 an existence as the. solid mountains, and be as easily ear- 
 marked during all time, this objection vanishes. No two 
 authors ever existed, who could invent or compose their 
 thoughts in identically the same order of words for a few 
 sentences running ; and if so, then the product of the one 
 author stands out separate and can at all times be as easily 
 distinguished from the product of another author as the 
 cattle or lands or ships or jewels of one proprietor from 
 those of his neighbour. If so, then the property of the one 
 can be as easily protected against invasion, or at all events 
 remedies for the one can be made as appropriate as for 
 the other. This is clear from what actually occurred in 
 1709.^ The assumption, that copyright did not exist before 
 the statute of Anne because it could not be identified and 
 could not be exclusively possessed, was a favourite reductio 
 
 1 The claim to copyright at common law is not, as was formerly- 
 said, " to ideas, but to the order of words, and this order has a marked 
 identity and a permanent endurance. Not only are the words chosen 
 by a superior mind peculiar to itself, but in ordinary life no two 
 descriptions of the same fact wiU be in the same words. The 
 order of each man's words is as singular as his countenance. It is 
 true that the property in the order of words is a mental abstraction, 
 but so are also many other kinds of property, as, for instance, the 
 property in a stream of water, which is not in any of the atoms of 
 water, but only in the flow of the stream. In other matters the law 
 has been adapted to the progress of society according to justice and 
 convenience, and by analogy it should be the same for literary works, 
 and they would become property, with all its incidents, on the most 
 elementary principles of securing to industry its fruits, and to 
 capital its profits."— iJrie, J., JefCreys v Boosey, 4 H. L. C. 870. 
 "The subject of property is the order of words in the author's com- 
 position, not the words themselves, they being analogous to the 
 elements of matter which are not appropriated unless combined, 
 nor the ideas expressed by those words, they existing in the mind 
 alone, which is not capable of appropriation."— JEVZe, J. ; Ibid. No 
 second author could express himself in the same order of words on 
 any subject, however shortly treated, as another author, though they 
 may' deal with the same fundamental ideas. This order of words 
 is therefore necessarily individualised and ear-marked, and incapable 
 of being mistaken for any other man's- product. 
 
254 LIBERTY OF PRESS AND SPEECH. , [ch. xr. 
 
 ad ahsurdum used by counsel, who argued against the 
 common-law right a hundred years ago. The statute, 
 according to their theory however, did nothing more than 
 say — -"Let there be an action in future ; " and then there 
 was no difficulty in identifying and protecting the ex- 
 clusive copyright. If the courts had said the same thing 
 of their own authority, as they ought to have done, and as 
 Lord Mansfield and others said was the right thing to say, 
 the result would have been precisely the same. It was 
 not the statute which made copyright more easily identified 
 or more easily enjoyed exclusively than before. All it did 
 was simply to say — "Let there be an action." And there 
 was an action, and all then became clear. From that 
 moment authors had a property tangible, visible, and ponder- 
 able, with which they could freight ships ; and that property 
 could be protected by an action of damages, and by penalties 
 against all who invaded and depreciated it ; and it could be 
 sold and bequeathed like other property for fourteen years. 
 The law cares nothing for the fabric or texture, the quan- 
 tity or quality, the length or breadth or weight, the colour 
 or sound or durability, of any vendible commodity. It is 
 enough that it has a lawful creator, or a first finder, or an 
 honest possessor, — that it is capable of identification and 
 that it is saleable. If it has these characteristics it is 
 property, though it cannot be weighed or eaten. And if it 
 is property — if it has all the qualities that property has 
 — then it is the business of the law to protect the lawful 
 owner or possessor against all comers. 
 
 Chief cause of the differences between early judges as 
 to copyright. — The doctrine of common law as to copy- 
 right was not, as already stated, thoroughly investigated 
 or considered till about 1769, that is to say, about sixty 
 years after the statute of Anne in 1709 had been already 
 passed. At last it became necessary to reconsider the 
 matter, (1) as if no statute had passed, and (2) after the 
 statute had passed, and as to what change that statute 
 effected. And before stating the origin of the litigation 
 that brought on this minute investigation, it is important 
 to bear in mind, that the chief element- of confusion was 
 how to treat the fact of publication of a book. Nearly 
 all the judges were agreed, that before publication the 
 author of a manuscript book had entire control over it, 
 
CH. XI.] EARLY VIEWS OF COPYRIGHT. 255 
 
 and had the same rights as he had over his other chattels. 
 But the moment he published this manuscript, the judges 
 were divided in their views as to the effect of the step, 
 some treating publication as a mere mechanical multipli- 
 cation of duplicates for convenience of sale, the radical 
 right of property remaining wholly unaffected ; while the 
 other judges treated publication as a kind of solemn 
 abjuration, and dedication of aUthe owner's previous rights 
 and interests to the universe, whereby he cast off and 
 deliberately surrendered all future control over the work, 
 and over all duplicates that might be made of it. And 
 yet human nature a century ago did not materially differ 
 from what it is now. Lord Mansfield, C. J., was the chief 
 champion of the former doctrine ; while Lord Camden, ex- 
 Lord Chancellor, was the chief champion of the latter 
 doctrine. 
 
 False analogies in early treatment of copyright. — The 
 two leading cases in which the common-law doctrine of 
 copyright as affected by the statute of Anne was reviewed 
 and minutely discussed, occurred in 1769 aud 1774. The 
 two main questions were, (1) whether there was at common 
 law a perpetual copyright in the author after publication 
 as well as before ; (2) if so, whether the statute of Anne 
 extinguished this perpetual copyright, and substituted a 
 . limited and temporary copyright of fourteen years after 
 publication and no more. 
 
 Those judges in favour of perpetual copyright reasoned 
 thus : — " That everything was property, that was capable 
 of being known or defined, and capable of a separate en- 
 joyment. That no man should be allowed to grind any 
 corn but his own, or to build a house with another man's 
 wood. That literary copyright was capable of perpetuity ; 
 even land, the most tangible species of property, might be 
 washed away by the sea. Each owner was entitled to as 
 full enjoyment of each kind of property as the nature of 
 the case admitted. Publication was neither a sale, nor a 
 gift, nor a forfeiture, nor an abandonment, and these were 
 the only ways in which a person could part with his pro- 
 perty. When an owner gave away land for a highway, he 
 - did not give to the public the trees or the mines tipon or 
 under the surface. So with the copyright, when he printed 
 an edition, the radical right of printing more stUl remained 
 
256 LIBERTY OP PRESS AND SPEECH. [ch. xi. 
 
 in him unaffected. Even if an incorporeal idea had the 
 merit of promising future profit to the inventor of it, it 
 was the same as property, and the fruits should be his. 
 It would be singular if publication should be a forfeiture, 
 and if the first moment the thinker endeavoured to raise 
 a profit from his thought, he lost it." i 
 
 On the other hand, those judges who opposed the notion 
 of perpetual copyright after publication reasoned thus : — 
 " There can be no property in incorporeal ideas. If one 
 opens the door of a basket of pigeons, they fly away, and 
 are irretrievably lost. If Itake water from the ocean, it is 
 mine ; but if I pour it back, it is mine no longer. An 
 ogle is a lady's own whilst in private, but if she ogles 
 publicly, they are every one's property.^ The thinking 
 faculty was a gift with which all men were endowed, and 
 ideas produced by it should likewise be held common, and 
 not deemed subject to exclusive appropriation.^ Ideas 
 were so ethereal as to elude definition ; and no character- 
 istic marks rem'ained whereby to ascertain them. Exclu- 
 sive appropriation of literary works was a monopoly.* 
 All that could be urged for copyright was moral fitness,, 
 but this amiable principle would only make laws vain and 
 judges arbitrary. In all other cases of purchase payment 
 transfers the whole and absolute property to the buyer ; 
 why not when a copy of a book is purchased ? " 
 
 ^ 17 Pari. Hist. 467. "All the knowledge that can be acquired from 
 the contents of a book is free for every man to use. If it teaches 
 mathematics, physic, husbandry, if it teaches to write in verse or 
 prose ; if by reading an epic poem a man learns to make an epic 
 poem of his own, he is at liberty. . . The book conveys knowledge, 
 instruction, or entertainment ; but multiplying copies in print is 
 a quite distinct thing from all the book commimicates. . . And 
 there is no incongruity to reserve that right and yet convey the 
 free use of all the book teaches."— TFiZZes, /., Millar w Tavlor. 4 
 Burr. 2331. 
 
 The relation which the purchaser of a book holds to the author 
 and publisher, resembles that of the purchaser of a ticket to a 
 proprietor of a theatre. He is entitled to derive all the entertainment, 
 instruction, and information he can during the performance. He 
 may afterwards think of it, speak of it, describe it, but to print 
 tickets and sell them to all the public, so that they also might enjoy 
 the same pleasure and he may derive all the profit is quite another 
 thing. — Drone on CopyriyJit, 12. 
 
 ' 17 Pari. Hist. 962. » Ibid. 972. 
 
 * "Copyright is no more a monopoly than property is."—L. 
 
CH. XI.] ARGUMENTS ABOUT COPYRIGHT. 257 
 
 The result was, that though eight to three of the judges 
 held, that the author's perpetual copyright at common law 
 was not lost or surrendered by publication, and though six 
 to six were of opinion, that the statute of Anne did not 
 abolish or confiscate the author's perpetual right, and sub- 
 stitute for it a fourteen years' right only, yet the Peers, led 
 away by Lord Camden's tropes and figures, and his ani- 
 mated declamation,^ reversed the opinion of the judges, 
 and held, that confiscation of the author's rights had been 
 fully accomplished by the statute. ■ And so the law, 
 though changed in trifling details, has ever since been left 
 unaltered in these two vital points. ^ 
 
 Lyndhurst, L. G., 63 Pari. Deb. (3) 782. See also L. Hardwiche, L. 
 C, Gyles v Wilcox, 2Atk. 141. 
 
 1 The following were the chief arguments put forward by Lord 
 Camden : " While a man's thoughts are in his brain, no one indeed 
 can purloin them ; but what, if he speaks and lets them fly out in 
 private or public discourse ? Will he claim the breath, the air, the 
 words, in which his thoughts are clothed ? Where does this fanciful 
 property begin, or end, or continue ? An action I allow will lie for 
 ink and paper, but what says the common law about the incorporeal 
 ideas, and where does it prescribe a remedy for the recovery of them, 
 independent of the materials to which they are afBxed ? I see nothing 
 about the matter in all my books." — 17 Pari. Hist. 997. " Is this pro- 
 perty descendable, transferable, or assignable ? Can the author let 
 it out for hire as the circulating libraries do ? If there be anything 
 in the world common to all mankind, science and learning are in 
 their naXviQ publid juris, and they ought to be as free and general as 
 air or water. Those great men, those favoured mortals, those 
 sublime spirits, who share that ray of divinity which we call genius, 
 are intrusted by Providence with the delegated power of imparting 
 to their fellow creatures that instruction which Heaven meant for 
 universal benefit ; they must not be niggards to the world or hoard 
 up for themselves the common stock. Glory is the reward of science, 
 and those who deserve it scorn all meaner views. I spetik not of 
 the scribblers for bread, ■(vho tease the press with their wretched 
 productions ; fourteen years is too long a privilege for their perishr 
 able trash. It was not for gain that Bacon, Newton, Milton, 
 Locke, instructed and delighted the world ; it would be unworthy 
 such men to traiEc with a dirty bookseller for so much as a sheet of 
 a letter-press. All our learning will be locked up in the hands of 
 the Tonsons and the Lintons of the age, who will set what price 
 upon it their avarice chooses to demand, till the public become as 
 much their slaves as their own hackneyed compilers are." — 17 Pari. 
 Hist. 999. Judgment was reversed by twenty-two to eleven of 
 the peers, one only of those who voted being a lawyer, namely, 
 Lord Camden. 
 
 ^ In Scotland the question was raised about the same time as 
 in England, as to whether copyright after publication existed at 
 
 S 
 
258 LIBERTY OF PRESS AND SPEECH. [ch. xi. 
 
 Nature, of copyright in MS. worhs. — The nature of 
 the right, which aa author has in the ideas which he re- 
 duces to language is properly distinguished into two stages ; 
 one is the stage during which they have not been pub- 
 lished, the other is the stage after publication. Before an 
 author has published his ideas in language, oral or written, 
 these cannot in any sense come within the cognisance of 
 the law, and therefore are treated as exclusively under the 
 author's dominion. Yet the manuscript has an individual 
 existence in the eye of the law, though the original has 
 been destroyed, as was shown in the case of Lord Claren- 
 don's History, which had been copied in manuscript and 
 the original lost by fire, and after the lapse of 100 years 
 his executors were held entitled to restrain a piratical 
 publisher from publishing it.^ And even when a work is 
 once published, the public may make a certain limited, use 
 of it withdut violating any right remaining in the author. 
 For example, they, may criticise it, tallc about it, think 
 about it, analyse it, use extracts from it, add continuations, 
 as will hereafter appear.^ So long as an author has com- 
 mitted his ideas to writing, and they exist in the stage of 
 an unpublished manuscript, he is in the eye of the law as 
 much the absolute owner, not merely of the paper, but of 
 the order of words, as the owner of any chattel can be. 
 The same law which gives the one right gives the other ; 
 and though chattels pass from hand to hand and are 
 seldom retained in the possession of the first maker or 
 first possessor, yet if the whole right of property has once 
 come to reside with the possessor, then the right to a 
 chattel is precisely the same as the right to the unpub- 
 lished MS, It is one entire right, and it is chiefly in the 
 contingency 'of lending and losing possession that some 
 differences come to be apparent. 
 
 Lending copies of MS. to friends. — The entirety of 
 
 common law. The majority of the Scotch judges came to the con- 
 clusion, that there was no such copyright left outstanding ; but Lord 
 MoNBODDO, being the minority of one, in an admirable aod masterly 
 opinion outreasoned all his contemporaries, and showed unanswer- 
 able grounds for the contrary conclusion. — See Cadell v Robertson, 
 5 Paimis App. 518. 
 
 1 Per L. Mamfield, Millar v Taylor, 4 Burr. 2396, 2397; D, 
 Queensberry v Shebbeare, 2 Eden, 329. ' P. Albert v Strange, 
 
 2 De G. & S. 693 ; 1 Mac. & G. 25, 
 
CH. XI.] LENDING MS. TO FRIENDS. 259 
 
 this right to an unpublished MS. is not affected by the 
 kind of paper on which it is written, or by the fact that 
 several copies of the same exist in the form of lithograph 
 copies or otherwise. It is, however, in the case of copies 
 being given away to private friends, that the difficulty 
 sometimes arises of protecting the exclusive right. When 
 resolved into simple elements the right of property in an 
 unpublished MS. involves these distinct parts: — (1) It 
 includes an absolute right to keep for his own exclusive 
 enjoyment whatever advantage is derivable from possessing 
 in a written form the order of words. (2) It includes the 
 sole and exclusive right to publish, if he thinks proper at 
 any time, and to make profit or pleasure out of the circu- 
 lation of such order of words. (3) As another phase of 
 the same rights he has the right of action against any one 
 who takes out of his possession the paper or the order of 
 words written on it, and he has the right of injunction, 
 that is, the right by process of law to prevent a stranger 
 or trespasser publishing the MS. against his will, or any 
 copy, abridgment, or even a description of it. In the 
 case of Prince Albert, who had a number of etchings, and 
 during the process of lithographing these a workman made 
 surreptitious copies and afterwards published a description 
 of them, the court not only ordered the surreptitious copies 
 to be delivered up, but restrained the publication of the. 
 illustrative catalogue, which was an auxiliary right in- 
 cluded in the larger right of entire dominion or ownership.^ 
 No power or court can compel the owner to pubHsh his 
 manuscript. 
 
 But publication is clearly to be distinguished from lend- 
 ing the MS. to another to read, or making lithograph or 
 printed copies for circulating or even presenting to friends. 
 Publication implies an offering to all comers, either gratui- 
 tously or for a price, and an inviting of purchasers ; and 
 a mere lending or giving the use of a reading implies 
 nothing more than this, that the reader or donee of a 
 private copy may exercise his own thoughts upon the 
 contents but has no assignment of the valuable right to 
 publish and miiltiply copies, which the author alone neces- 
 sarily enjoys.^ And it has been also held, that the author 
 
 1 Prince Albert v Strange, 2 De G. & S. 696 ; 1 Mac. & G. 43. 
 
 2 Prince Albert v Strange, 2 De G. & S. 696 ; 1 Mac. & G. 25. 
 
 ■S 2 
 
260 LIBEETY OP PRESS AND SPEECH. [ch. xi. 
 
 or owner of an unpublished MS. is entitled, if he pleases, 
 to lithograph and circulate for sale or otherwise any 
 number of copies, and yet this will not be deemed any 
 publication, and in no wise interferes with his copyright.'' 
 
 Copyright in MS. assignable. — Copyright before publi- 
 cation, like other personal property, is assignable, and passes, 
 on this death of the author or assignee, to the legal personal 
 representative.^ And where such copyright has passed to 
 the executors, who publish it, the property remains in them. 
 Where the author of a MS. sells or assigns it to another 
 with a view that the latter may publish it as his own com- 
 position, the latter has necessarily an implied right of 
 altering it.^ When the owner of an unpublished MS. gives 
 a copy to a third person, this primd facie includes no further 
 use of it than such as that third person or his friends may 
 derive from the perusal and from the knowledge and mental 
 gratification such perusal confers ; but it in nowise implies 
 that the donee, or even a purchaser acquires the valuable 
 right of publication for profit or pleasure of such copy, 
 unless this latter right is added, and the burden of showing 
 this must be on the donee. Yet much difficulty has been 
 caused by the publication of a MS. in which the publisher 
 admitted he had no copyright, but yet which it wa,s said 
 he had an implied license nevertheless to publish for 
 special or general purposes. The copyright or full right of 
 dealing with a manuscript containing the ideas of the author 
 includes many subordinate uses. The rule is, that where 
 a transfer of the entire right is claimed it must be strictly 
 proved ; and a subordinate and limited user only will be 
 implied in the absence of circumstances from which the 
 larger intention may be inferred. Such was shown to be 
 the case when the author had only lent a MS. to take a 
 copy, which was held to imply no right to publish it;* 
 where he said to a friend, " you may keep the letters," 
 this was no assignment of copyright.^ And so lithograph- 
 ing a few copies to give to friends was held no abandon- 
 ment of property in the MS.® And merely leaving the MS. 
 
 1 White V Geroch, 2 B. & Aid. 298. 2 Turner v Robinson, 10 
 
 Ir. Ch. R. 121, 621. ^ Cox v Cox, 11 Hare, 118. * D. Queens- 
 berry V Shebbeare, 2 Eden, 329. ' Thompson v Stanhope, Amb. 
 737. 6 Prince Albert v. Strange, 2 De G. & Sm. 652; 4 Mac. 
 & G. 25. 
 
CH. XI.] GIVING COPYRIGHT TO THE PUBLIC. 261 
 
 twenty-three years in a bookseller's hands was no evidence 
 of an assignment.' 
 
 If there can he dedication of M8. to public. — Whether 
 an author or proprietor of an unpublished MS. can so divest 
 himself of the ownership as to dedicate it to the public at 
 large without giving it to another individual has been 
 sometimes questioned. It cannot be doubted, that any 
 owner might so abandon the right of property as to leave 
 it open to all or any member of the public to publish or 
 make any other use of the document each thinks fit. This 
 question wUl be found always to resolve itself into another, 
 namely, whether in the circximstances the owner has given 
 to some individual the entire property, or has given only 
 a limited use of it for a pa,rticular purpose, or has simply, 
 declined to protect his right and allowed others to scramble 
 for it. If he has given it absolutely, then the donee, is the 
 owner, and stands in the same position as the donor. If 
 he has given only a limited use of the document, then the 
 radical right, subject to this limited user, stUl remains un- 
 divested, and he can deal with it in all other respects as 
 the absolute owner. If, however, he merely allows any 
 third party to reprint a book without either consenting or 
 dissenting, the right is not divested from him and vested 
 in another. There can be no such thing as an abandon- 
 ment of the right of property to the public in this sense ; 
 the right must exist in some individual or number of indi- 
 viduals, and it cannot leave one individual without passing 
 instantly into another individual. 
 
 At the same time the owner may have so conducted him- 
 self with reference to this property, and with reference to 
 a third party's dealing with it, as to deprive himself of at 
 least one of the usual remedies against such party. And 
 when an author, by his conduct, seems to let anybody 
 reprint his book, though this does not give any copyright 
 to such printer or publisher, nor amount to a license to all 
 others to do the same ; yet after allowing nine persons to ■ 
 do it the court will not grant an injunction against the 
 tenth, nor assist the owner in that way. He may still 
 resume possession, but he cannot do so without allowing 
 those publishers, who have already helped themselves, being 
 
 1. Southey v Sherwood, 2 Meriv. 435. , 
 
262 LIBERTY OP PEESS AND. SPEECH. [ch. Xi, 
 
 entitled to sell off the copies they have printed with his 
 acquiescence. And at most he can only sue future pirates 
 for damages, and these are not likely to be great. This is 
 the utmost extent to which it can he said, that an author can 
 dedicate his manuscript or book to the public. The mean- 
 ing of " acquiescence " is this — where a party having a right 
 stands by and sees another dealing with the property in a 
 manner inconsistent with that right, and makes no objection 
 while the act is in progress, he cannot afterwards complain. 
 Yet mere knowledge on the part of the author, that a pub- 
 lisher who had printed his work was about to issue a new 
 edition, does not amount to such acquiescence as to estop the 
 author from asking an injunction.i And such is the posi- 
 tion in which a political orator stands in reference to his 
 published speeches. If he has never himself committed 
 those speeches to writing and encourages newspaper pro- 
 'prietors to publish them at their own expense, this is deemed 
 a license to each and all who choose to incur such expense 
 to make what profit they choose of their respective publica- 
 tions. And he cannot withdraw such license nor interfere 
 until they have sold the product. Nevertheless he does 
 not lose the radical right of republishing his own speeches 
 in a new and separate form, if by any means he can satisfy 
 himself that he has recovered a copy ; and by the same rule 
 they are {)revented republishing the speeches separately, 
 because the original license did not extend to republication 
 in a separate form. And yet orators are usually so pleased 
 to notice the circulation of their thoughts, that they seldom 
 or ever trouble themselves about their strict rights. 
 
 Publishing MS. against owner's will. — "When the 
 owner of an unpublished MS. finds, that it is published 
 without his consent, he may either apply to the Chancery 
 Division for an injunction to restrain its further publica- 
 tion, or he may bring an action to recover damages, coupled 
 with a claim for an injunction. The ground on which 
 the courts interfere is, not that the owner has thereby 
 been deprived of the profit which the publication might 
 have brought, for the publication might be a loss instead 
 of a gain, but because he has been interfered with in his 
 exclusive right of deciding and dealing further with the 
 
 1 Hogg V Soott, L. R., 18 Eq. 456. 
 
CH. XI.] OWNERSHIP OF MS. 263 
 
 matter according to. his own discretion.'- And yet if profit 
 would liave resulted, or loss of reputation, these may well 
 he Tiewed as enhancing the injury. And where -a book 
 was published under fraudulent representations as to its 
 authorship, the court declined to treat the book as the 
 subject of copyright or of property. ^ The court has thus 
 restrained the publication of manuscripts obtained without 
 the consent of the author in a variety of circumstances : as 
 where a conveyancer's clerk published his master's prece- 
 dents of conveyancing ; ^ or where a clerk published a bar- 
 rister's notes of cases ; * where one published a MS. play 
 taken down in shorthand while being acted ; ^ and where 
 there was a publication of MS. etchings by a printer em- 
 ployed to lithograph some copies for the owner.^ And on 
 the same principle the court granted an injunction against 
 one sketching from recollection a picture exhibited on view 
 so as to obtain subscribers to an engraving, and then photo- 
 graphing the sketch and publishing such photograph ; ^ also 
 against selling photograph copies obtained from negatives 
 lent to a person ; * and against publication of documents 
 bequeathed for the use of certain persons only, other than 
 the printer.^ And the right of property in an unpublished 
 MS. is not confined to works of any particular degree of 
 merit, for the court has no means of deciding such a matter. 
 There may be the usual line drawn in this as in all other 
 cases — de minimis non curat lex — but unless the worthless - 
 ness is conspicuous and self-evident, all other degrees of ex- 
 cellence are on the same level, and it would be beyond the 
 province of the law to set up distinctions. Where blas- 
 phemy, obscenity, sedition, or libel taint the MS., then the 
 law may not lend its aid in any way ; for though these are 
 not illegal, per se, till they are published, still all courts 
 must be credited with the power of intuitiyely discerning 
 whether the object is fairly lawful or borders on the confines 
 of crime before the court will help any proprietor. 
 Bankruptcy of owner of MS. — Where the author of 
 
 1 Prince Albert v Strange, 2 De G. & Sm. 633 ; 1 Mao. & G. 25 ; 
 D. Queensberry v Shebbeare, 2 Eden. 329. ^ Wright v Tallis, 
 
 1 C. B. 893. 3 4 Burr. 2330. * Ibid. ^ Macklin v Hichardsen, 
 Anib. 0. 694. « Prince Albert v Strange, 2 De G. & Sm. 662 ; 
 
 1 Mao. & G. 25. 7 Turner v Robinson 10 Ir. Ch. 510. « Mayali 
 V Higby, 1 H. & 0. 148.- ^ Paley's Case, 2 Swanst. 419. 
 
261 LIBERTY OP PRESS AND SPEECH. [ch. xi. 
 
 an unpublished MS. becomes bankrupt the question may 
 arise, whether the right to publish it passes to his creditors 
 absolutely, or whether it partakes so much of a personal 
 right as to be inseparable from his person, still subject to 
 his controul, and so reserved from that compulsory aliena- 
 tion which bankruptcy usually involves as to incorporeal 
 as well as corporeal property. It is urged, on the one side, 
 that inasmuch as the MS. may be of value if published, 
 the power of so turning it into money ought to belong to 
 the creditors ; and if any loss of reputation or character 
 should result to the author, this must be treated as merely 
 an unavoidable incident of his insolvency, which the law 
 cannot and ought not to regard as any further injury to 
 him.^ On the other hand it may be urged, that if the 
 mere capacity of turning into money whatever may be 
 found in the possession of the bankrupt is the sole cri- 
 terion, the doctrine must be pushed to the extravagant 
 length of publishing all his private letters, or even of 
 making use of the bankrupt's person in every way which 
 would turn out to be profitable, however repulsive to his 
 feelings and honour ; and this would be a tyranny nearly 
 as disgraceful and barbarous as the law of the Twelve 
 Tables, which allowed the creditors to divide the body of 
 their bankrupt amongst them. Moreover if the composi- 
 tion of a MS. be looked at in its real character of being 
 ■ something existing only in an incipient state and depend- 
 ing on the personal judgment and will of the author 
 whether it should, be ultimately matured into property 
 by the act of publication, it will be found to be too much 
 mixed up with the thoughts and interior workings of a 
 man's mind to be capable of being viewed as property or 
 separated from his person. No court could compel an 
 author to finish an imperfect MS., or to make up his 
 mind to give it a final revision, or to turn all the latent 
 capacities of his mind into some channel which would 
 yield money to his creditors ; and therefore the MS. must 
 be treated as inseparable from the person of the bankrupt, 
 and not a chattel saleable by creditors.^ 
 
 1 Mawman v Tegg, 2 Russ. 392 ; Re Curry, 12 Ir. Eq. 384 ; 
 Stevens v Benning, 6 De G-., M. & G. 228. 
 
 ' The point was once raised and argued, whether a MS. found in 
 
CH. XI.] COPYRIGHT IN LECTURES. 265 
 
 Copyright in lectures and addresses. — In those cases 
 where the author has reduced his thoughts to words, and 
 spoken them in the form of a lecture to students or audi- 
 tors, one of whom has printed and published them, it was at 
 first considered, that this could be punished and restrained 
 by a court of equity as a breach of contract, inasmuch as 
 there was an implied contract between the lecturer and 
 his audience, that they might use the lecture only for their 
 instruction, but not so as to make further use of it by 
 publication to the world, either through the medium of 
 shorthand-writer's notes, or the over-tenacious memory of 
 an auditor.^ But the correct ground on which the author 
 of spoken lectures can restrain publication by any of the 
 audience need not be treated as the breach of any implied 
 contract, but rather this, that in lecturing he uses his ideas 
 or spoken words for the limited purpose of instructing third 
 ■ parties, but necessarily reserves all other larger rights, and 
 amongst these the right of afterwards publishing the lec- 
 tures for his own advantage as a means of profit or hap- 
 piness, either of which is a legitimate purpose, and the 
 invasion of which is punished by the law like an attack 
 on one's • reputation or character, or the preventing of a 
 person carrying on his lawful business. The doctrine of 
 implied contract, whether on the part of the lecturer or the 
 hearer, is only another form of saying, that the common 
 sense of the relationship between lecturer and audience is 
 best explained legally in that way. "When a lecturer de- 
 livers a lecture, he must contemplate, that the mind of the 
 hearer will be exercised in some way on the matter de- 
 livered to him, and that nothing the lecturer can do will 
 prevent the hearer thinking and speaking about what he 
 hears. But all this is quite consistent with the radical 
 right remaining untouched in the lecturer, namely, the 
 valuable right of preserving his words' in writing, and 
 of reaping the fruits of circulating that writing in the 
 form of a book, and treating it as his own exclusive pro- 
 perty. All other uses of the words spoken and heard 
 are open to the hearer, except that he must not arrogate 
 
 the deceased's handwriting passed under the words "personal 
 estate" to his executors. — Atcherley v Vernon, 10 Mod. 529. 
 
 1 Abernethv v Hutchinson, 1 H. & T. 39 ; Turner v Robinson, 
 10 Ir. Ch. R.-121, 610. See also ante, p. -29. 
 
266 LIBERTY OF PRESS AND SPEECH. [cH. xi. 
 
 to himself wliat was. never intended to be conferred on 
 Mm, namely, the valuable right of publication. Thus Mr. 
 Abernethy, a surgeon at St. Bartholomew's, sought to re- 
 strain a proprietor of a medical newspaper from publishing 
 his lectures, which he had delivered to students. The 
 lectures were extempore. Lord Eldon granted the injunc- 
 tion on the ground, that there was an implied contract by 
 the auditors not to publish such lectures for profit, as they 
 had only the mental use of the lectures enjoyed by hearing 
 them delivered.^ 
 
 As, however, considerable doubt attended this state of 
 things, the legislature intervened, and while it expressly 
 conferred, or rather recognised, a copjo'ight in the lecture 
 as subsisting in the author or his assignee, it imposed a 
 penalty on all persons who should piratically publish the 
 same, besides forfeiture of the copies printed.^ Such Act 
 expressly declares, that no person admitted on payment, or 
 otherwise, as one of the audience or as a publisher of a 
 newspaper, to hear such • lecture, shall have any implied 
 authority to publish the lecture.^ And a printer or pub- 
 lisher, who without leave publishes in his newspaper such 
 lecture, is expressly made liable to the penalties. But in 
 order to secure the protection of this enactment the lec- 
 turer must, two days before the delivery, give notice to 
 two justices living within five miles of the place of delivery. 
 Nor does the enactment affect lectures delivered in any 
 university, school, college, or public foundation, and the 
 law as to these excepted cases remains as if the Act had 
 not passed.* The remedy, therefore, provided by this 
 statute being dependent on two days' preliminary notice to 
 justices of the peace, a precaution seldom taken, is pro- 
 bably in few cases available, and hence the law remains 
 for most purposes as if the statute had never passed. 
 
 Right of property in unpublished letters. — The right 
 of property in unpublished letters, or the mutual position 
 of the writer and receiver of such letters as regards all 
 subsequent dealing with them, has been confused by 
 mixing up the question of the ownership of the paper on 
 which the letter is written with the other questions. In 
 considering this question apart from rules of law and as a 
 
 1 Abernethy v Hutchinson, 1 H. & T. 39 ; 3 L. J. Oh. 209 
 
 2 5 & 6 Will. IV. c. 65. 3 Ibid. §§ 2, 3, * Ibid. § 4. 
 
CH. XI.] UNPUBLISHED LETTERS. • 267 
 
 mere question of fact, or of the universal understanding 
 of mankind, which is equivalent to fact, the situation of 
 parties seems to be as follows. When one person writes a 
 letter to another it is not to be assumed, that he considers 
 the value of the paper as of any consequence. It does not 
 enter into his contemplation as an element of what he is 
 doing, and nothing can possibly turn in his view on the 
 ownership or subsequent destination of that paper. But 
 he considers the contents of the writing as a communi- 
 cation to be the sole thing in hand. He is making a 
 certain communication of his ideas in the way of, carrying 
 on the business of Hfe, whether in the shape of dealing 
 with property or gratifying his feelings of friendship, or 
 indignation, or curiosity. But he makes the communi- 
 cation to the correspondent personally, unless the contents 
 show that he makes it otherwise. He does not authorise 
 the correspondent, either immediately or at any future 
 time, to publish the contents, or even communicate such 
 contents to third parties; and the correspondent must — 
 apart from any questions of libellous letters — take the risk 
 of doing so. Such being the common understanding of 
 mankind with respect to letters and written communi- 
 cations, the law, in dealing with that state of facts, seems 
 to view the subject in the following light. The mere 
 property in the paper on which the letter is written has 
 no bearing whatever on the mutual relations of the 
 parties. Whether the correspondent on receipt puts the 
 letter in the fire, or first. copies the contents and then 
 destroys the original, or after destroying the original 
 rewrites from memory the substance on paper, or keeps 
 the document in his possession for life, can make no 
 difference, and the position of parties would remain unal- 
 tered. Again, the communication being made for a limited 
 purpose, namely, to the correspondent for his personal use, 
 there is nothing inconsistent in the latter further com- 
 municating the contents in whole or part to one or more 
 individuals, this being within the ordinary discretion 
 which is inherent in all men in the course of their mutual 
 dealings. But the purpose of the communication when 
 once made to the correspondent being served, it has ful- 
 filled its office so far as he is concerned ; and the further 
 right of dealing with the communication either in the way of 
 
268 LIBERTY OF PRESS AND SPEECH. [en. xi. 
 
 keeping it secret or publishing it to all the world — either 
 for purposes of gain, of vanity, benevolence, or other lawful 
 motive — must necessarily remain in the writer, for there is 
 nobody else in whom any interest can be discovered, or 
 traced, or to whom it has been transferred. If, therefore, 
 the correspondent, without the consent of the writer, takes 
 upon himself to publish the contents, he is doing something 
 which he was never authorised to do by the writer, and is 
 interfering with that further reversionary and absolute 
 right and discretion, which inheres in the author, of fur- 
 ther dealing with the letters as he pleases, and of treating 
 them either as objects of literary value and a means of profit, 
 or destroying all recollection of them so far as he could do 
 so consistently with the correspondent's limited user. 
 
 Whether letters are joint property of writer and 
 correspondent. — Again it will be seen how fallacious and 
 confused is the notion, that there is a joint property in the 
 letter between the writer and receiver, and that neither 
 can do anything as regards it without the consent of the 
 other. This arises from confounding the fate of the mere 
 paper with the substantial thing which is the medium of 
 communication. The correct rule seems to be, that the 
 paper belongs absolutely to the receiver, but the letter, or 
 means of communication, belongs absolutely to the writer, 
 subject only to the limited user of the contents for the 
 receiver's personal benefit. At first the courts were not a 
 little puzzled how to treat the mutual rights of those who 
 sent and who received letters of a private nature. Lord 
 Hardwicke, however, in 1741, when deciding the case of 
 Pope, who sought to restrain a publisher from publishing 
 letters to and from the poet, held, that it was a mistake to 
 suppose, that the writer of the letter made a gift to the 
 correspondent of his writing for all purposes. He might 
 give away the paper, but the words written on it were not 
 given absolutely. The receiver had only a special or 
 limited property in these, and the radical right to them 
 for publication remained in the writer. Hence Pope was 
 held entitled to prevent publication of the letters he him- 
 self wrote, but not of the letters he received.^ And the 
 same doctrine was held as to Lord Chesterfield's letters.^ 
 
 • Pope V Curl, 2 Atk. 342. = Thompson v Stanhope, Amb. 737. 
 
CH. XI.] • PEOPEETY IN LETTEES. 269 
 
 It has sometimes been said that the common letters ex- 
 changed between people are too petty to be dignified as 
 literary compositions, or to be entitled to be subjects of 
 copyright, and therefore that there is no copyright in 
 them.^ But remarks on subjects, however common-place, 
 have so many points of view from which they may be 
 regarded, and may, from unseen circumstances, become so 
 important at one time, though not at another, that no court 
 could safely take on itself to draw the line and separate the 
 important from the unimportant, or the literary from the 
 non-literary. The court may well treat all written com- 
 munications as primd facie capable of copyright, subject 
 to the rule which applies to this as to all other depart- 
 ments of the law, namely, that if from the subject matter 
 or the expression they are of no importance, then the 
 court will treat them as non-existent and refuse to pro- 
 tect them in any way, using as its excuse the maxim — ■' 
 de minimis non curat lex. 
 
 While the property or copyright in the letter sent to 
 a correspondent is prima facie in the sender, and the re- 
 ceiver has primA facie only a special or limited use -of such 
 letter, this latter special use may vary with the subject 
 matter, and the receiver may, for purposes of vindication 
 of character, or otherwise, be impliedly entitled to publish 
 it. The reason of this seems to be, that if a sender of a 
 letter put the receiver ia such a position that nothing less 
 than publication will serve the lawful purpose of self- 
 ptotection, then this limited right of publication must be • 
 taken to have been contemplated by the writer, and his 
 consent impliedly given, and he cannot set up his copy- 
 right in order to restrain .such use. But for all other 
 general purposes of publication the sender retains his 
 copyright in the letter he has written.? There is also a 
 distinction as to the ownership of the copyright of letters, 
 owing to. the relation of master and servant. If a servant 
 or clerk write a letter on the business of the employer, 
 then the copyright of that letter belongs to the employer 
 and not to the servant.^ One other point as between 
 correspondents turns on the nature of the special property 
 or use which the receiver has. It is obvious that that use 
 
 1 Per I'lumer, V. CPercival v Phipps, 2 V. & B. 19. 2 Percival 
 V Phipps, 2 V. & B. 19. ^ Howard v Gunn, 32 Beav. 465. 
 
270 LIBERTY OP PRESS AND SPEECH. [oh. xi. 
 
 includes the permanent retention by the receiver of the 
 paper, as well as the letter itself, and whether the receiver 
 afterwards returns the original to the writer and keeps a 
 copy, or whether he returns that original without keeping 
 a copy, his right remains the same. He must have been 
 intended by the writer to keep the original letter perma- 
 nently, and hence the writer cannot demand the original 
 back. If the writer has retained a copy of the original 
 letter, he may use it for purposes of publication, but he 
 cannot compel the receiver to give up such original at any 
 time or in any circumstances. Yet some of the cases 
 confuse this subject.' The result, therefore, is, that in 
 respect of private letters the ownership of the paper is 
 of no account, and therefore belongs to the receiver, who 
 is entitled to its possession, and can recover it even from 
 the writer to whom it has been lent, while the substantial 
 right or the copyright remains undivested in the writer.^ 
 
 ^Publishing letters without writer's consent. — Where 
 the receiver of letters, or any other person, has, without 
 the consent of the writer, published, or threatened to pub- 
 lish, such letters, the latter may obtain an injunction from 
 the court.^ It is true that the court seems to have granted 
 this relief on the professed ground of there being a breach 
 of trust, but it would be more correct to hold the act as a 
 tort or violation of the owner's right to do what he pleases 
 with his own letter or- communication.* There may, how- 
 ever, be sometimes an express contract between writer and 
 receiver, and the breach of that contract by the latter may 
 be a ground also of the court interfering to restrain 
 publication.^ There may also be cases in which the re- 
 ceiver of a letter may be entitled to use it, as already 
 stated, for some purpose of vindication or self-defence, in 
 which event the publication may be excused."' 
 
 Copyright in letters to newspapers, public offices, 
 &c. — It has been said that a letter adressed to the editor 
 of a newspaper for publication or otherwise is the sole 
 
 1 Gee 7! Pritchard, 2 Swanst. 415. ^ Oliver v Oliver, 110 B., 
 
 N. S. 139. ' Pope V Curl, 4 Burr. 2330 ; 2 Atk. 342 ; Thompson 
 
 « Stanhope, Ambl. 737; Gee i) Pritchard, 2 Swanst. 426. ^ Percival 
 « Phipps, 2 V. & B. 19 ; Gee v Pritchard, 2 Swanst. 402 ; Clarke v 
 Freeman, 11 Beav. 112. ^ Percival v Phipps, 2 V. & B. 23, 27. 
 
 6 Howard u Gunn, 32 Beav. 462. 
 
CH. XI.] WHAT IS LITERATURE ? 271 
 
 property of the editor, but there seems no reason for any 
 difference in the rule applicable. The receiver in all 
 cases may keep the letter or burn it, or he may publish it, 
 having the writer's leave to do so. But as neither party 
 contemplated republication in another form, there seems 
 no reason why that radical right should not remain 
 undivested in the writer. 
 
 Who is an author, and what is literatv/re ? — Though 
 the Act of 1842 describes its object to be to encourage 
 the production of literary works of lasting benefit to the 
 world, it is not possible to define very accurately what 
 amounts to literature, or how far it is likely to be lasting, 
 or who is entitled to be called an author. Nor indeed was 
 or is this necessary. No court can be expected, any more 
 than the legislature, to have any peculiar faculty for 
 singling out the literary element. It would have been 
 better, as indeed it is practically the only alternative, to 
 treat as literature every kind of writing or order of words 
 ■which is capable of being printed or published — is saleable 
 or intended to be so. Though this view gets rid of every 
 attempt to appraise literary merit, and confines the law, as 
 it is in other cases, to the protection of the order of words 
 merely, in so far as these may minister to the profit of the 
 maker or collector, and treats literary fame as a thing too 
 subtle to be within its cognizance, yet the result will be, 
 that aU literary works of value will be in effect protected, 
 seeing that it is not usual for mankind to be curious or 
 covetous to acquire books which are destitute of thought, 
 and are of no value, and ought never to have existed in a 
 published form. Though the word " author " is the descrip- 
 tive name of the person from whom the efficient merit of a 
 published work proceeds, and he cannot be defined without 
 the same difficulty as the word " book," there are cases in 
 which it is necessary to fix upon one person out of several 
 who have been mixed up with the production. of a book, 
 and say which is in the eye of the law the author. If, 
 for example, one person suggests, and intends to act as 
 publisher, while the other supplies the design and execu- 
 tion, and from whose brain the originality, if any, comes, 
 then the latter is the author.^ 
 
 1 Shepherd v Conquest, 17 C. B. 444. 
 
272 LIBERTY OF PRESS AND SPEECH. [ch. xi. 
 
 First publication in United Kingdom. — The Copy- 
 right Act of 1842 expressly applies to every book which 
 shall be published, and as no further precision is given 
 to the word "published," the courts had to decide that 
 that word means " published for the first time in the 
 United Kingdom." ^ And if the author is a British subject, 
 it is immaterial "in what foreign country he resides, prd- 
 vided he comply with the statute by first publishing in 
 the United Kingdom. The legislature seems to have 
 thought it a sound rule, that he who first published a MS. 
 abroad woiild not be entitled to any copyright of the same 
 in this country.^ And if an English author first publish 
 his book abroad he must pursue the same steps as are laid 
 down for foreign authors under the International Copyright 
 • Acts. If there is no treaty convention with the foreign 
 country, then he can in such cage acquire no copyright in 
 this country if he first publish in such foreign country.^ 
 But if there is siich treaty, then he receives such protection 
 as the International Copyright Acts supply. But as regards 
 works first published before 1843 an alien residing abroad 
 was held not entitled to copyright, though he first published 
 in this country ; for it was said that he owed no allegiance 
 to this country, and the Act of Anne, c. 9, was not passed 
 to confer the privileges of an English subject on aliens.* 
 , On the the other hand, any foreign author who resides 
 in any part of the British dominions at the time of his first 
 publication of a book in the United Kingdom acquires the 
 same rights as a British author.^ And such was the case 
 where a native of the United States went and resided in 
 Canada for a few days while the book was first published 
 in the United Kingdom.^ But if the publication here and 
 abroad is simultaneous, the same protection is given to the 
 publication here as if it had been first exclusively published 
 here. '' 
 
 International Copyright Acts. — While copyright has, as 
 already explained, with difficulty been recognised as property 
 in this country, and the common law right has been confis- 
 cated and superseded by a temporary right for a limited time, 
 
 i 5 & 6 Vic. 45, § 3. » 7 Vio. c. 12, § 19. ^ Bouoicault v 
 
 Dekfield, 1 H. & M. 597. * Jeffreys v Boosey, 4 H. L. C. 985 
 
 6 Routledge v Low, L. R., 3 H. L. 100. « Ibid. ? Cocks v 
 
 Purday, 5 C. B. 860. 
 
OH. XI.] INTERNATIONAL COPYRIGHT. 273 
 
 the same right as between nation and nation has been still 
 more arbitrarily ignored. When a ship belonging to a 
 British subject drifts on a foreign shore, the citizens of 
 that foreign country are nowhere now encouraged by their 
 own legislature and courts to view it as a wreck or prize — 
 to scramble for the masts and tackle, and to seize the cargo 
 and divide the spoil as if it were a windfall. And yet when 
 a book of a British subject is sent or taken to a foreign 
 country, there is a singular unanimity among nations in this 
 barbaric notion they act upon. It is true there was a stage 
 of progress in all countries, when nothing was believed to 
 exist, except what could be weighed and measured and 
 handled and eaten. Each civilised country, forgetting its 
 progress in other things, still professes that it cannot 
 ■ discover who is the foreign author entitled to the valuable 
 right of reprinting a book that reaches them ; and therefore 
 that there must be no author at all and no proprietor; 
 and therefore that the first finder may at pleasure seize 
 and appropriate it. Such, indeed, was the early faith of 
 barbarians in so far as regarded the property of foreigners 
 which came within their own country. It was only by 
 degrees that legislatures began to generalise, and surrender 
 the predatory instinct. They have long learnt, that such 
 practices were incompatible with civilisation and the very 
 elementary principles of all property, except copyright. 
 It is true that in very modern times a kind of international 
 code has sprung up, as if civilised people were inclined 
 voluntarily to remedy some glaring defects in such conduct. 
 By virtue of special treaties some countries now agree to 
 recognise and give effect to the copyright of each other's 
 citizens, and put the rights of foreigners as in most respects 
 on the same footing as those of natives, upon each author 
 complying with certain conditions. Such statutes have 
 existed for forty years in Great Britain, and there are 
 treaties in existence between some of the leading countries 
 of the world which give effect to these new views ; and they 
 also contain provisions protecting authors against transla- 
 tions without their consent, and protecting also sculpture 
 and works of art, as well as dramas, music, engravings, 
 paintings, and photographs.^ 
 
 1 7 & 8 Vic. c. 12 ; 15 & 16 Vio. c. 12'; 25 & 26 Vic. c. 68. Inter- 
 national copyright conventions were made between Great Britain on 
 
276 LIBERTY OF PRESS AND SPEECH. [ch. xi. 
 
 for it is a sheet of letterpress.^ It cannot be said cor- 
 rectly, that a newspaper does not come within those words,^ 
 nor within the words "periodical work," in the 19th 
 section. Whatever may be the position of a newspaper 
 as regards copyright in its contents, the court wiU protect 
 the- proprietor against imitating the title of the paper.' 
 The sole reason why actions and injunctions for infringe- 
 ment are seldom resorted to is the extremely ephemeral 
 nature of the contents ; for before any remedy is applied 
 the memory of both the subject of copyright and its 
 infringement will usually have perished. But no other 
 consideration seems to preclude the same remedies as if 
 the newspaper were a book. 
 
 If MS. or book is immoral, or blasphemous, or sedi- 
 tious. — Though the writer of an unpublished MS. either 
 has a right of property in the document, or has the right 
 to mature it and so ultimately render it a subject of pro- 
 perty by publication, this must be taken to be subordinate 
 to the general rule, that the document must not contain 
 in itself something so mischievous in tendency as when 
 published to subject its publisher to indictment or other 
 punishment for blasphemy, or indecency, or gross immo- 
 rality, or sedition.. If such is the case, no person can 
 claim to be treated by any court of law or equity to 
 protection or assistance as its owner or ^wasi owner. Thus 
 where in the Birmingham riots Dr. Priestley's house was 
 demolished and his MS. destroyed, it was held or assumed 
 that he could claim no compensation for a manuscript, for 
 when published it would tend to incite people against the 
 Government.* Thus the Court of Chancery refused at the 
 instance of Southey, the author of Wat Tyler, to give the 
 usual relief of injunction against the person who published 
 it.* The standard, however, of what is libellous or blas- 
 phemous may vary according to the state of civilisation 
 and the progress of education, and what was once deemed, 
 whether by judges or juries, libellous, as reviling the Scrip-' 
 tures or constituted authorities, may no longer be so treated. 
 Tlius the judges in Chancery in- 1822 and 1823 treated Lord 
 
 1 5 & 6 Vie. c. 45, § 2. " Cox v Land & Water, L. R., 9 Eq. 
 
 .324. 3 Kelly v Hutton, L. R., .8 Ch. Ap. 708. « Priestley's 
 
 Case, 2 Meriv. 437. * Southey v Sherwood, 2 Meriv. 438 ; Lawrence 
 V Smith, 1 Jao. 471. 
 
CH. XI.] DATE OF PUBLICATION. 277 
 
 Byron's Cain and Don Jwin as incapable of their protec- 
 tion.i And for a like reason a court will not grant an 
 injunction to restrain the publication of a work which is 
 immoral or indictable or actionable, the publication being 
 left to be punished by another proceeding. It is true that 
 Ijord Macclesfield, L. C., thought it the duty of the Court of 
 Chancery to restrain such works, so as to prevent further 
 daily mischief extending.^ But the court has since 
 thought, that it was no part of its business to interfere 
 merely to prevent a crime being committed.* One of the 
 inevitable consequences of a work being libellous in the 
 above senses is, that no action can be brought to recover 
 the value of any kind of work done upon it, whether for 
 printing or publishing. If such prints are sold the seller 
 cannot recover the price ; if they are about to be pirated 
 the court will not restrain the pirate; if they are sold 
 and paid for, the purchaser cannot recover back the price 
 paid, at least if he knew the nature of the work he was 
 buying. This head of law is not, however, peculiar to 
 libels, but accompanies all kinds of immoral and illegal 
 acts, which are said to be against the policy of the law.* 
 And precisely the same reason applies, where the publisher 
 of a work which is falsely represented to be the work of &,. 
 popular author, and the sale of which is more or less in 
 the nature of an attempt to obtain money by false pre- 
 tences ; in such a case the first publisher could not esta- 
 blish a copyright, and therefore the court will not interfere 
 to protect him, and there can be no reason for any court 
 to interfere to protect one pirate against another pirate.^ 
 
 Date of publication. — The length of copyright de- 
 pends on the date of publication, but this date is sometimes 
 a point difficult of ascertainment. Thus the acting of a 
 drama is no publication of the words ; ® nor is the unauthor- 
 ised publication of a piece recomposed from memory, or 
 notes, or heai-ing the MS. read.'^ ¥or is the lithographing 
 of copies to give to a few friends ; * though such gratuitous 
 
 1 Murray v Benbow, 1 Jac. 474 n. ' Burnett v Chetwood, 
 
 2 Meriv, 441. ' Prudential Co. v Knott, L. E., 10 Ch. 144. 
 
 * Stookdale v Onwhyn, 5 B. & C. 173 ; Poplett v Stockdale, Ey. & 
 M. 337. 5 Wright v Tallis, 1 C. B. 893. 6 Coleman « Wathen, 
 5 T. R 245., ' Macblin v Richardson, Ami). 094. 8 prfnce 
 
 Albert v Strange, 1 Mac. & G. 25. 
 
278 LIBERTY OF PRESS AND SPEECH. [cii. xr, 
 
 circulation of printed copies among a private society may 
 well amount to an infringement of the author's right by 
 some other person.^ And as in the case of books, it is 
 sometimes difficult to decide what is the date of publi- 
 cation of a picture. It was held, that the mere publication 
 ' of an engraving of a picture in a magazine was no publica- 
 tion of the picture ; nor was the exhibition of the picture at 
 the Eoyal Academy any such publication.^ 
 
 Registering hook v/nder Copyright Act. — The Act pro- 
 vides for a register being kept of the owners of copyrights 
 at Stationers' Hall, which is to be open to the inspection 
 of the public on payment of a small fee.^ A certified 
 copy of such entry is primd, facie evidence of the pro- 
 prietorship or assignment of the copyright, or in case of 
 dramatic or musical pieces of the right to represent or 
 perform such pieces, the insertion of a false entry being 
 punishable as a misdemeanour.* If the author has 
 arranged with publishers as to publication, all of them, 
 both authors and publishers, may be jointly entered as 
 owners.^ If there is an entry of joint owners both may 
 sue. If the copyright was assigned before publication, 
 then the person properly to register the book is the assignee 
 in his own name.® The particulars stated in the registered 
 entry of copyright must be perfectly accurate as to dates 
 and names, otherwise the protection of the Act does not 
 attach to the book.'^ And this is so, though the omission 
 or error was the fault of the officials and not of the 
 author.^ It is essential that this register should state the 
 exact date of first publication, namely, the day of the month 
 and year.^ 'The place of abode is also necessary, but if the 
 author is abroad, the address of the publishers will suf&ce 
 for the author's address.^" Before the Act of 1842, though 
 the registration of the book was necessary in order to 
 recover penalties, yet it was not necessary in order to sue 
 in an ordinary action for infringement. But under that 
 Act it is a, condition precedent to any remedy whatever in 
 
 • Novello V Ludlow, 12 C. B. 177. ^ Xm-ner v Robinson, 10 Ir. 
 Ch. R. 121, 616. > 5&6 Vic. 0. 45, § 11. Mbid. §8 12, 13. 
 
 6 Stevens v Wildy, 19 L. J., Ch. 190. 6 5 & g Vic. c. 45, § 3 ; 
 Cocks V Purday, 5 0. B. 860. ^ Low v Routledge, 33 L. J. Ch. 
 
 717 ; Lover, v Davidson, 1 0. B., N. S. 182. 8 Cassell v Stiff, 
 
 2 K. & J. 287. , 9 Mathieson v Harrod, L. R., 7 Eq. 272. i" Lover 
 V Davidson, 1 C. B., N. S. 182. 
 
CH. XI.] ASSIGNMENT OP COPYRIGHT; 279 ' 
 
 respect of books published since 1842. ^ The omission of 
 this entry in the register does not cause any forfeiture of 
 the author's right ; it merely prevents any remedy being 
 resorted to either by action or under the statute, until the 
 entry shall have been made.^ And the entry may be ex- 
 punged if its falsity is clearly proved, but not otherwise.^ 
 And the person so applying must always have some real 
 interest and be really aggrieved.* There is nothing gained 
 by registering a book before actual publication, or by 
 registering the title of a proposed book or periodical.^ And 
 to do so will not prevent others adopting the title.* For 
 the Act protects not the intentions but the actual per- 
 formances of authors and publishers. A separate article 
 intended to form part of a periodical publication does not 
 require registration as a book, to protect the right therein,'' 
 Assignment of copyright in printed hoolcs. — The copy- 
 right in books, paintings, sculptures, is personalty in the eye 
 of the law, and is dealt with in wills like other personalty." 
 And as it has ceased to be in any sense personal to the 
 author, there is no reason why the right of publication should 
 not pass to the trustee in bankruptcy, as it has been settled 
 to do with regard to a newspaper.' Every owner or regis- 
 tered proprietor of a copyright may assign it in whole or 
 part by any writing, either under seal or not under seal, or 
 by an entry in the Book of Registry, according to the form of 
 the statute, which is made equivalent to a deed, and is not 
 subject to any stamp duty.^" The Copyright Act did not 
 expressly state how an assignment of copyright was to be 
 made. It states one way of doing so, namely, by entry 
 in the register at Stationers' Hall ; but this did not negative 
 other ways, and hence the courts had to reason circuitously 
 in order to discover another way. And this was done by 
 inference from the enactment, that every person printing a 
 book or MS. for sale without the written consent of the 
 
 1 5 & 6 Vic. c. 45, § 24. = 6 & 6 Vic. c. 45, § 24 ; Stannard v 
 
 Lee, L. E., 6 Ch. 360 ; Murray v Bogue, 1 Drewr. 364 ; Hogg v 
 Scott, L. B., 18 Eq. 444. ' JExp. Davidson, 18 C. B. 310. 
 
 * Exp. Walker, re Graves, 10 B. & S. 688. ^ Correspondent 
 
 Newspaper Co. v Saunders, 12 L. T., N. S. 540. « Hogg v 
 
 Maxwell, L. E., 2 Ch. Ap. 316. ^ Mayhew v Maxwell, 1 J. & H. 
 312. 8 6 & 6 Vic. c. 45, § 25 ; 26 & 26 Vic. c. 68, § 3. . ^ Re 
 
 Baldwin, 2 De G. & J. 230 ; 32 & 33 Vie. c. 71, § 15. i» 5 & 6 
 
 Vic. c. 45, §§ 13, 14. 
 
280 LIBERTY OF PRESS AND SPEECH. [ch. xi. 
 
 author shall- be liable for piracy.^ It was thus inferred by 
 the courts, that the consent of the proprietor to the publi- 
 cation' of the work must be in writing, and if the origin of 
 the right was to be by writing, it was inferred that the 
 assignment must have been also of the same species of 
 evidence.^ And the assignment may be validly made by 
 an agent of the author in writing,^ though that agent was 
 not appointed by writing, as is required in the case of 
 copyright in paintings and drawings.* In cases where 
 the assignor has copies of the work printed, but unsold, at 
 the time of the assignment, and there is no special con- 
 tract as to these, they do not pass to the assignee, and the 
 assignor may after the assignment continue to sell them.* 
 An assignment may be made for a limited portion of the 
 full term only, or for a limited number of copies, as for 
 example the first edition, after which the author's right 
 revives.® But the assignment cannot be confined to one 
 locality only, or parcelled out in that way, it being con- 
 strued to mean one indivisible right in this respect.'^ And 
 any other doctrine would make it practically impossible to 
 obtain redress for infringement. And when the agreement 
 between author and publisher is for the latter to print a 
 certain number of copies and account to the author for the 
 price, this is an implied assignment to the publisher while 
 those copies are unsold.^ And yet if there is no definite 
 term, a like agreenient will not be treated either as an 
 assignment of copyright or an irrevocable licence by the 
 author, but merely as a joint adventure which either of 
 them can terminate at pleasure and then divide the profit 
 and loss.^ And prima facie whatever arrangement be made 
 as to dividing profits, there must be an express assignment 
 to deprive the author of the radical right which he has to 
 the copyright of the original work he produces ; or at 
 least sufficient ground to justify a court in compelling him 
 to complete such assignment either for the whole or a 
 
 ' 5 & '6 Vic. c. 45, § 15. 2 Davidson v Bohn, 6 C. B. 456 ; 
 
 Leyland v Stewurt, 4 Ch. D. 419. But a receipt for the purchase- 
 money would be no evidence of the assignment. — Lover v Davidson, 
 1 C. Ji., N. 8. 182. 3 Moreton v Copeland, 16 C. B. 517. * Ibid. 
 
 5 Taylor v Pillow, L. R., 7 Eq. 418. « Reade v Bentley, 4 K. 
 
 & J. 656. 7 Jeffreys,!) Boosey, 4 H. L. C. 938, 940, 993. 8 g^eet 
 1) Cater, 11 Sim. 673. » Reade v Bentley, 3 Iv. & J. 271 ; 4 E. & 
 
 J. 664. 
 
OH. XI.] CROWN COPYRIGHT. 281' 
 
 portion of the term.^ Though an author cannot sue till 
 he has registered the M^ork, an assignee of a copyright is 
 not precluded from bringing an action for infringement by 
 not inserting his name in the registry, for the statute 
 merely specifies one mode of assignment.^ There was no 
 necessity, before 1843, that the assignment in writing 
 should be attested,^ though it has been decided that since 
 that statute the assignment must be in writing.* This 
 entry at Stationers' Hall must set forth the name and 
 abode of the assignee.^ 
 
 When author has not the radical copyright. — Though 
 as a general rule the authorship of a composition is to be 
 distinguished from the mere mechanical printing of copies 
 thereof, and the inherent or radical copyright must remain 
 in the author until he parts with it to another, still there 
 may be cases where the composition is created by virtue 
 of contract, and in that event the copyright may be vested 
 ab initio in a different person from the author.^ A person, 
 it is true, who merely suggests the subject, and talies no 
 part in the design or executiou, cannot be the author'. 
 But where a theatrical manager ordered from a composer 
 certain music to suit fixed decorations and accompani- 
 ments, the copyright of the music was held, by virtue of 
 the contract, to be the accessory right and the theatrical 
 representation the principal right, and so that the copyright 
 belonged to the manager.' It makes no difference that 
 an author publishes his work anonymously, for he never- 
 theless enjoys the same copyright as if he published his 
 name and authorship. In some peculiar circumstances 
 there may also be joint authors if they all concur in doing 
 distinct parts of the work, though one may do a larger 
 share than the others.* 
 
 Crown copyright. — Though the Statute of Anne re- 
 cognised authors as the persons whose copyright was 
 primarily to be protected, yet the 9th section saved the 
 rights of the universities and others in any books printed 
 
 1 Hazlitt V Templeman, 13 L. T., N. S. 593. => 6 & 6 Vic. c. 45, 
 § 24 ; Wood v Boosey, 7 B. & S. 869 ; L.R., 2 Q. B. 340. 
 
 3 Cumberland v Copeland, 1 H. & C. 194. < Leyland v Stewart, 
 4 Ch. D. 419 ; sed quaere. » Wood v Boosey, L. R., 2 Q. B. 340. 
 
 6 Shepherd v Cohqnest, 17 C. B. 427. ^ Hatton v Kean, 7 C- B., 
 N. S. 268. 8 Marzials v Gibbons, L. E., 9 Ch. 518 ; Levi v Rutley, 
 L. R., 6 C..P. 523. 
 
282 LIBERTY OF PRESS AND SPEECH. [rh. xi. 
 
 or to be printed. And the Crown and the patentees of 
 the Crown have sometimes set up rights more or less 
 amounting to a perpetual copyright, and sometimes re- 
 sembling a monopoly. And courts have expressed confused 
 views as to the origin of these exceptional rights, some 
 referring them to the prerogative, and some to the ordinary 
 case of the Crown being the first purchaser of the copyright 
 or employer of the author, and thereby acquiring the copy- 
 right by contract. Howsoever acquired, there are still a 
 few of these exceptional copyrights held by the Crown or 
 its patentees, or by the universities as patentees or grantees. 
 One remarkable claim once made by the Crown was to 
 have a copyright in the publication of almanacs gene- 
 rally, and not merely in any one definite form of almanac. 
 One specious reason was, that an almanac could have no 
 certain author, and therefore it must be vested in the 
 Crown. And the Stationers' Company professed to hold 
 the Crown patent and to prohibit every other person 
 publishing an almanac. And though on the strength of such 
 a notion a monopoly was enforced for a century, it was 
 decided by the court in 1774 to be a mere usurpation, and 
 that such a patent was void.^ It is true that by statute 
 power is given to the Admiralty Commissioners to cause 
 a Nautical Almanac to be prepared and published with 
 tables for discovering the longitude at sea, and those who 
 without licence publish this are liable to a penalty of 
 twenty pounds.^ And the Crown may employ a navigator 
 to make researches and publish the result ; but the order 
 must show some person in whom the copyright vests.^ The 
 notion that because things are of a public nature, therefore 
 
 1 Stationers' Co. v Carnan, 2 W. B]. 1004. The Stationers' Company 
 claimed this exclusive right to print and publish almanacs, allowed 
 by the Archbishop or Bishop of London under a patent of James I. 
 After the Court of Common Pleas held, that the king had no right 
 to grant anj' such patent, in 1779 a Bill was brought in to vest in 
 the two universities the copyright of almanacs. Erskine was heard 
 against the Bill, and it was rejected, though supported by the Govern- 
 ment. — 20 Pari. Eist. 607. The two universities of Oxford 'and 
 Cambridge had also a monopoly of publishing almanacs for 160 years 
 before 1781, and the then Aechbishop ot Canterburt said, that he 
 and his predecessors had regularly revised every almanac before 
 publication. — 22 Pari. Uist. 544. 
 
 2 9 Geo. IV. c. 66, § 2. 3 See Nicol v Stockdale, 3 
 Swanst. 687. 
 
CH. XI.] . UNIVERSITY COPYRIGHTS. 28.=} 
 
 the Crown must have the original right, was soon seen to 
 lead to absurdities. At last the courts drew the distinction 
 between things of public use and things of a public nature. 
 In one case letters patent of Charles II., granted to 
 L' Estrange for thirty years, were set forth to support a 
 claim to have the exclusive printing of blank writs, bonds, 
 and indentures. The court then inclined to think the 
 patent was not good ; and that the reason of the thing 
 showed a patent could not be valid in many other instances 
 cited.' The Grown at one time also claimed the copyright 
 in Lilly's Latin Orammar, on the ground of public moneys 
 having been paid for its compilation. And a Latin 
 Dictionary was also claimed on a similar footing. 
 
 University copyrights. — One other variation as regards 
 the acquisition of copyright arises out of the supposed 
 close connection of learning with the universities. A 
 statute of 1775 conferred on the universities of Oxford 
 and Cambridge, the four Scotch universities, and the col- 
 leges of Eton, Westminster, and Winchester, the sole liberty 
 for ever of publishing at their own presses further copies 
 of books bequeathed to them by the authors for purposes 
 of learning and education.^ The statute bestows on these 
 learned bodies a copyright in such works, though such 
 right cannot be delegated or alienated to others,^ and the 
 entry in Stationers' Hall of this right must be made within 
 two months after knowledge of the bequest,* and a penalty 
 is imposed on those who without authority print such 
 books. ^ 
 
 With regard, however, to all those patents, though it 
 is not accurate to say, that the object was not to give a 
 source of proiit to the Crown patentee or university, still 
 this qualification is inherent, namely, that the patent 
 shall secure a due execution of the duty. And the 
 benefit shall be reasonable ; and if an unreasonable price 
 should be placed upon the works published, then all such 
 
 1 E. Yarmouth v Darrell, 3 Mod. 78. 2 15 Geo. III. 0. 53. 
 
 3 Ibid. § 3. « Ibid. § 4. 
 
 5 Ibid. § 2. The Copyright Acts did not interfere with such 
 rights, but, on the contrary, expressly saved them from being in- 
 terfered with ; nor with their rights as patentees of the Crown. 
 And the universities have long held a concurrent patent with the 
 Queen's printers to print the Bible and Common Prayer. 
 
284 LIBERTY OF PRESS AND SPEECH. [ch.xi. 
 
 authorities and patents would be put in considerable 
 hazard.! 
 
 Crown copyright in translation of Bible. — ^While 
 Blackstone attributed the origin of the Crown copyright 
 in the Bible partly to the theory, that the Crown is head 
 of the Church, other authorities have attributed it to the 
 theory, that the Crown is the guardian of the established 
 doctrines of religion.^ But Lord Mansfield pointed out 
 a better ground, namely, that the translation of the Bible 
 was made at the expense of the Crown.^ Letters patent 
 in the time of 13 Elizabeth expressly vested the exclusive 
 right of printing and publishing and selling copies of the 
 Bible, New Testament, and Book of Common Prayer in 
 the universities of Oxford and Cambridge and the Queen's 
 printer concurrently ; after which date no other person 
 could lawfully print or sell such copies. And following 
 out this monopoly, the courts afterwards held, that the 
 Queen's printer in England could prevent the Queen's 
 printer in Scotland from selling Bibles in England, and 
 vice versa.* And the same reason is given for the Book 
 of Common Prayer, for it was not the composition of one 
 person. All the contributors were acting either voluntarily 
 or officially towards one result, namely, the compilation 
 of a form of worship ; and a copyright or quasi-copyright 
 sufficient to prevent and exclude the possibility of spurious 
 copies may well be deemed vested in the Crown, if for no 
 better reason than that it could not be vested in any other 
 individual. And yet as the Crown was deemed to have the 
 copyright vested in it, only to advance and not impede 
 the labours of the subject, any person was entitled to 
 publish a copy of the current Bible if accompanied with 
 notes, for the originality of the latter was sufficient to 
 confer a copyright, though in respect of ordinary works 
 this would be deemed an infringement. And a new trans- 
 lation of the Bible would be no infringement; and to 
 publish a Hebrew or Greek Bible is also no infringement.* 
 
 > L. Eldon, L. C, Oxford v Richardson, 6 Ves. 711. " Donald- 
 son V Becket, 4 Burr. 2408 ; Manners v Blair, 3 Bligh, N. S. 402. 
 
 ' Millar v Taylor, 4 Burr. 2405. 
 
 « Oxford V Richardson, 6 Ves. 689 ; Manners v Blair, 3 Bligh, N. S. 
 391. The last of these patents expired in Scotland in 1839, and in 
 England in I860.— 117 Farl. Deb. (3) 953. But the Crown has 
 renewed the patent during pleasure. * 4. Bmr, 2405. 
 
CH. XI.] COPYEIGHT IN STATUTES. 285 
 
 It was thought to be only carrying out the current doctrine 
 to hold, that he who published a copy of a form of prayer 
 which had been ordered to be read in all churches was 
 infringing the patent of the Queen's printer." 
 
 Crown copyright in statutes and proclamations of 
 State. — Another publication in which the Crown was 
 deemed entitled to the copyright was the statutes, and the 
 ground of this was somewhat vaguely stated. The author- 
 ship does not belong to the Crown exclusively, but to the 
 three estates of the realm, who must all concur. At the 
 same time it is absolutely necessary, that these statutes 
 should be published, and published correctly, and probably 
 as the Crown had the custody of the Parliament Eoll, or 
 because of the convenience of fixing this right and duty 
 in some one, the Crown was ^rimct/aCTg deemed to have the 
 copyright, or rather a right akin to copyright, and this right 
 is exercised by the Crown patentee.^ This notion, on which 
 was founded the patent of printing statutes, was however 
 reduced to an absurdity, when the King's printer, holding 
 the patent to print statutes, sought an injunction against an 
 author who had engaged with another King's printer, holding 
 another Crown patent to print law books. That author pro- 
 posed to publish a methodised digest of the statutes with 
 notes, and the statute patentees sought for an injunction ; and 
 singular to say, instead of the Court of Chancery protecting 
 any volunteer in doing so meritorious a work as that of 
 methodising statutes, and if possible explaining them, the 
 author was actually injoined, and treated like a pirate in- 
 stead of a benefactor.3 But no court would now allow 
 any Crown copyright in statutes to interfere with works 
 such as the above, for no prerogative can be defended, which 
 seeks to perpetuate ignorance and confusion in any class 
 of public documents. 
 
 Copyright in law books. — The right to publish teports 
 of the decisions of courts of justice was once thought to 
 belong exclusively to the Crown and its patentees, and 
 
 1 Eyre v Carnan, 6 Bao. Ab. 509. 2 n,jd_ 511 . Baskett v 
 
 Cambridge, 1 W. Bl.. 105, 370; 2 Eden. 137; Manners d Blair, 
 3 Bligh, N. S. 391. 
 
 ' Baskett v Cunningham, 1 W. Bl. 370. It is no wonder that the 
 English statutes, protected in this way, have always excited the 
 ridicule of those writers of the English language who have consulted 
 them. ■ 
 
286 LIBERTY OF PRESS AND SPEECH. [ch. xi. 
 
 a patent was regularly made, authorising the printing of 
 law books ; and confused notions thereby were encouraged. 
 One reason assigned was, that, the judges being paid by the 
 Crown, their decisions were so to speak Crown property. 
 This reason however has long ceased to exist, for no judge 
 is now paid by the Crown, but by each and every member 
 of the community, who alike contribute to the Consolidated 
 Fund, and are entitled to the benefits obtained from its 
 appropriations. Yet the courts so late as the reign of 
 Chai'les II. treated this right of the Crown patentee as 
 undoubted, in the case of Eolle's Abridgment ^ and Croke's 
 Eeports.^ When the Licensing Act passed, it authorised law 
 books to be published if allowed by the judges ; but when 
 that statute expired in 1694 there was an end for ever to 
 this species of monopoly. 
 
 Copyright in reports of cases in cowrts of justice.-^ 
 Since the repeal of the Licensing Act any individual who 
 chooses to devote his time and labour to producing reports 
 of decisions of courts of justice may not only publish them 
 freely, but will acquire copyright in them, as in other books, 
 provided he, by his own labour, report the decisions, so far 
 as such decisions are spoken and not written.^ It is true 
 if the judges deliver written judgments, they cannot them- 
 selves acquire copyright in them, for the product of their 
 public duty belongs to all alike ; and no one individual can 
 acquire copyright in such written or published judgment, 
 seeing that he is neither the author nor the assignee of any 
 authors capable of transferring such a right. The report- 
 ing of cases in courts of justice has never been treated as 
 prima facie a contempt of court, though, as regards the 
 House of Lords, peculiar reasons exist, owing to its being 
 by turns part of the Parliament as well as a court of 
 justice. Each House of Parliament has its own views as 
 to this subject, as has been noticed more conveniently in 
 another chapter. The House of Lords has also claimed 
 the exclusive right to publish or license the publication of 
 
 1 Carter, 89 ; Bao. Ab. Prer. F. 5 ; 4 Burr. 2315. 
 
 2 Skin. 234 ; 1 Mod. 217 ; 4 Burr. 2316. 
 
 James I. had granted a patent to print law books, and his 
 successors continued such patents. — SMn. 234 ; 4 Burr. 2316. The 
 vagueness of the term " law book " would alone vitiate such a 
 patent according to modern notions. 
 
 3 Sweet V Beiming, 16 C. B. 459. 
 
en'. XI.] INFRINGEMENT OP COPYRIGHT. 287 
 
 reports of trials that take place before it, wliile it acts as a 
 Court of Parliament ; and in the case of Lord Melville's trial 
 in 1776 a publisher, other than the licensee of the House, 
 was restrained by injunction, at least until the hearing of 
 the case.i And in each case at least of state trials, the 
 House has usually ^appointed a particular publisher ; and if 
 the House treats the publication by others as a breach of 
 privilege, no court can in any way interfere or protect the 
 unprivileged reporter. A court of law, it is true, as has 
 been already explained, may fine or commit for contempt 
 any one who so publishes a report as to interfere with the 
 efficient administration of justice ; but this power is in- 
 herent in courts of record for purposes of justice and to 
 prevent abuse, and not from any notion of copyright.^ The 
 ordinary courts of law transact their business in public, 
 and publicity being the essence of nearly all their decisions, 
 it was not likely that any such court would claim any 
 exclusive rigl;it of publication ; for this publicity cannot be 
 secured, unless every person can, at discretion, publish an 
 account of what takes place, and which does not tend to 
 interfere with, or prejudice, a pending matter. 
 
 Infringetnent of copyright generally. — The copyright 
 of a work means the exclusive right to publish and sell 
 copies, printed or otherwise, because this is tlie only 
 profitable use in contemplation of the author, and in 
 many cases is the inducing motive of his expending his 
 labour or genius. If another person were to be allowed 
 to republish the copy, embodying the same order of words, 
 which is the characteristic mark of property, this would 
 deprive the author of the natural fruits of his labour. In 
 1774 the majority of judges held, that the exclusive right 
 to publish continued unaffected by the publication, and 
 that an action at law will lie at the instance of the author 
 or his assignee to recover damages for such infringement 
 of copyright. Nevertheless, in judging what amounts to 
 an infringement, some distinctions are to be kept in mind, 
 for there are various ways of infringing the right besides 
 printing duplicate copies, though that is obviously its most 
 injurious form, and at the same time involves less labour 
 to the infringer. 
 
 1 Guiney v Longman, 13 Ves. 493. "^ See ante, p. 129 ; R. v 
 
 Cement, 4 B. & Aid. 219 ; R. v Fleet, 1 B. & AM. 379. 
 
288 LIBERTY OP PRESS AND SPEECH. [oh. xi. 
 
 When a legal right like copyright is violated, some at- 
 tention must he given to the nature and extent of such 
 rights. When an author publishes a book, he cannot avoid 
 giving to each and all his readers the benefit of the 
 thoughts and knowledge it suggests and imparts. He 
 cannot prevent people thinking and speaking about it and 
 commenting upon it, either in writing or in print; and 
 indeed he must have expressly contemplated this as the 
 natural consequence of the act of publication. He cannot 
 prevent people turning his thoughts to some advantage. 
 Indeed, the speculative consequences of the publication lie 
 altogether out of the range of the law, and cannot in any 
 way be intercepted, modified, or suppressed. But what 
 the author did not contemplate and intend was, that a third 
 party should, without his consent, multiply more copies 
 and sell and derive profit from, or even without profit 
 publish any further copies. This is a matter kept ex- 
 clusively to himself, and which he in no way intended 
 to part with. When, therefore, it is necessary to decide, 
 what is or is not a violation of an author's copyright, one 
 must leave altogether out of view its speculative and 
 literary effect on the minds of others, and concentrate 
 attention on one thing only, namely, the exclusive right to 
 multiply copies, with or without profit, which is the essen- 
 tial and substantial legal right known as copyright. What- 
 ever interferes materially with this right is a cause of 
 action ; it is not deemed so grave as to be a criminal 
 offence, seeing that ample amends can be got by the 
 combined effect of an action for damages, coupled with 
 delivering up of copies forfeited, and coupled with an 
 injunction to restrain publication for the future. 
 
 The publication of a book does not and cannot interfere 
 with the labours of others on the same or similar subjects. 
 All men have the right to write upon subjects, new or old, 
 regardless of what others have already done. Any number 
 of poets may write a poem called " Paradise Lost ; " and 
 any number of historians may write a History of England, 
 and may give expression to the same ideas, describe the 
 same subjects and draw the same conclusions from nearly 
 the same materials. But the copyright in a book is suf- 
 ficiently ear-marked to be distinguished and set apart from 
 all other property, and if so must have the same protection 
 
CH. XI.]. -COPYETGHT IN DIRECTORIES. 289 
 
 from the law as other property. The question hetween the 
 author and his piratical imitator is not a question of the 
 mere relative amount of labour expended by each, for the 
 pirate may in that respect sometimes excel his original. 
 It is merely a question, whether property which has been 
 created and eai-marked is to be lessened in value and de- 
 preciated in the only way in which it can be depreciated, 
 namely, printing duplicates of the same order of words, 
 or by a spurious imitation professing to- be the same thing 
 or something better, and so interfering with the original 
 author's reaping the natural fruit of his own labour. 
 
 The manner of executing the infringement is not 
 material, so long as it can be described as a mode of 
 multiplying copies. If the print were photographed, or 
 copies obtained otherwise than by printing, the multiply- 
 ing of such a copy would be complete and an invasion, 
 though the copies were not made with a view, to proiit.'^ 
 And infringement is not the less an infringement that it 
 may have been unintentional.^ It is an infringement for 
 a person to publish what purports to be a continuation of 
 a work which has been previously only partly published, 
 for it is a fraudulent misrepresentation, affecting both the 
 author and purchaser.* 
 
 Copyright in Directories and quasi-mechanical boohs. 
 -^Some books, such as gazetteers, grammars, maps, itine- 
 raries, directories, law lists, arithmetics, almanacks, con- 
 cordances, cyclopsedias, guide-books, are entitled to the 
 same protection as literary works, because, as already 
 stated, they have usually required some kind of labour by 
 way of verifying and collecting facts ; and it is chiefly in 
 the case of alleged infringement, that questions of difficulty 
 arise between prior and subsequent publications of the 
 same kind.* Where a person undertakes labour in collect- 
 ing statistics and names, which any one may do, and pub- 
 lishes the result, he is entitled to copyright, and whoever 
 publishes the same results, as may be done by simply copy- 
 ing the preceding work, will usually require to satisfy 
 the court, that he went through much the same indepen- 
 dent labour, to sustain his own title to the same kind of 
 
 1 5 & 6 Vic. c. 45, § 2 ; Novello v Sudlow, 12 C. B. 189. 
 
 2 Scott V Stanford, L. E., 3 Eq. 723. = Hogg v Kirby, 8 Ves, 
 215. ■* Mathewson v Stookdale, 12 Ves. 270. 
 
290 LIBERTY Of PEfiSS AlTD SPEECH. [ch. xi, 
 
 worK/ And' yet a directory- already published may be 
 Tfsed a's a* guide towards verification, and which necessarily 
 may shorten siich labour, for this is a; consequence of a first 
 publication which: cannot be avoided.^ Even a catalogue 
 of saleable articles, if accompanied' with descriptive or 
 illustrative matter, is entitled to protection, whenever 
 there is something peculiar to distinguish it from like 
 representations of what every one has to sell.^ 
 
 Infringement of copyright by hoohs on same subject. 
 — "Where one author has acquired copyright in a book on 
 a particular subject, he cannot prevent other authors dealing 
 with the same subject even in a similar way. Nevertheless 
 it becomes a question with courts, whether the ideas and 
 expressions of a previous author have been substantially 
 pirated, for the thoughts may often be so original, striking, 
 and in a manner ear-marked, that even though the lan- 
 guage is varied, yet there may be piracy in the leading 
 ideas and method displayed. No rule can be laid down 
 on this subject any more than on other departments of the 
 law where similar matters are involved ; and questions of 
 literary piracy have this peculiarity, that they usually come 
 to be decided by judges or by juries who generally have not 
 the knowledge and training best adapted for the solution 
 of this kind of difficulty. Courts have sometimes tried to 
 express something like a rule or formal way of ascertaining 
 the degree at which piracy begins and the fair literary use 
 ends. There are numerous ways of expressing something 
 like a rule suggesting a test, but they are all mere variations 
 of words, and do not advance the comprehension of the 
 radical notion ; and judges differ as to their estimate and 
 as to where the line is to be drawn.* Some judges talk of 
 the vital part being abstracted. And at one time it was 
 described as if there must be an animus furandi. But 
 judges have little practical difficulty in deciding the point. 
 Infringement by copying title of 600^.— There is also 
 another mode of infringing copyright, namely, by using 
 an identical title or name already used to describe a prior- 
 
 1 Morris V Ashbee, L. E., 7 Eq. 34 ; Kelly v Morris, L. E., 1 Eq. 
 702. 2 Morris v Wright, L. E., 5 Ch. Ap. 279. s Hotten v 
 
 Arthur, 1 H. & M. 603 ; Cobbett v Woodward, L. E., 14 Eq. 407 ; 
 Grace « Newman, L. E., 19 Eq. 623. •» Pike v Kicholas, L. E., 
 
 5 Ch. Ap. 251. 
 
CH. Xi.] EEVIEWS OF BOOKS.' 291 
 
 book, periodical, or newspaper; and this is substantially the 
 same kind of interference with the property in a prior 
 copyright as any other, for it tends to induce a purchaser 
 to buy another book by mistake and so take away all 
 motive from buying the original, which is the essence of 
 all copyrights., Hence where a man announced his in- 
 tention to pdblish " 7%« Wonderful Magazine,, a new series 
 improved," and that title had already been part of a prior 
 work which the author had no intention to continue or 
 connect with another, the court granted an injunction to 
 restrain it, as it might mislead people into thinking it was 
 the plaintiff's.^ This mode of infringement ' most usually 
 occurs in the case of periodicals and newspapers,' and 
 sometimes a title is slightly changed, but the court wiU 
 look' to the probability of the public being deceived into 
 the belief that the new publication is the same as the old.^ 
 
 Infringement of copyright by way of a review.— The 
 inode of commenting oh a book by way of a review is a 
 legitiniate exercise of the mind and intelligehce of a reader, 
 which no author can complain of in a country where, 
 literature is free. Indeed this he rather invites, and must 
 contemplate, as a natural consequence. And yet under 
 the guise of a review the reviewer may quote so largely 
 and describe and abridge so completely, that the result 
 may be an actual infringement of copyright ; for if a reader 
 of a review is able to obtain in another and shorter form 
 all the same distinguishing features and results without 
 availing himself of a reading of the originalwork, this is 
 only evidence of the copyright having been substantially 
 infringed and of a substitute being provided, or at least 
 of a niain inducement for purchasing the original work- 
 being taken away.* ; 
 
 Infringement of copyright by adding notes. — And a 
 somewhat similar abuse of comments in the form of notes 
 will be found, where an author's work may be accom- 
 panied or interlarded with these. It has sometimes been 
 hastily said or assumed, that if one author print another's 
 work accompanied with original notes of his own, this will 
 
 1 Hogg V Kirby, 8 Ves. 215 ; Longman v Winchester, 16 Ves. 271. 
 
 2 Chappell V Davidson, 2 K. & J. 126 ; Weldon v Dicks, 10 Ch. 
 D. 247. ' Mawman v Tegg, 2 Huss. 393. 
 
 TJ 2 
 
292 LIBERTY OF PRESS AND SPEECH. [oh. xi. 
 
 te no infringement.^ But this cannot be maintained, for 
 no proportion of accompanying notes will prevent such a 
 reprint of an author's book being an infringement, and the 
 lona fides of the annotator is wholly immaterial. Indeed, 
 the better the notes, the worse the infringement.^ And, 
 for the same reason, to publish a book with the addition of 
 plates or illustrations of any kind is in the same position, 
 for this is equally an infringement. 
 
 Infringement by way of abridgment. — Another mode 
 of infringement is by way of abridgment, and on this 
 subject judges have sometimes affected sympathy with 
 such a mode of infringement on account, of its so called 
 public utility. But if utility were any guide in such a 
 question, few works were ever published, that could not, in 
 skilful hands, be slightly varied and made much shorter, 
 cheaper, and better in all respects than the original form in 
 which the authors happened to place them before the public. 
 Though something turn§ on the degree and relative quantity 
 of the abridgment, jet primd facie it is a mode of infringe- 
 ment, if it materially supersedes the desire of readers to 
 purchase the original.^ Lord Hardwicke first laid down 
 this rule, but the utmost he said was, that in some cases 
 an abridgment might show invention, learning, and judg- 
 ment, and could not be deemed an infringement of copy- 
 right. And he added, that such cases could not be properly 
 disposed of by a jury, biit ought to be referred to persons 
 of learning and ability to report upon.* Hence in such a 
 question the trouble and skill of the abridger have nothing 
 whatever to do with the matter ; they rather make the in- 
 fringement more substantial and fatal to the author of the 
 original work.^ And it requires to be remembered, that 
 pirates often display great ability, and their chief misfor- 
 tune is, that such is entirely misplaced. If their ability 
 had been directed to an honest attempt to write an original 
 
 1 Martin v Wright, 6 Sim. 298. = Saunders v Smith, 3 M. & 
 
 Cr. 711 ; Campbell v Scott, 11 Sim. 31. » Tinsley v Lacy, 1 H. 
 
 ik M. 747. 
 
 * Gyles V Wilcock, 2 Atk. 142. In another case, Lord Apslet, 
 L.C.,- saidhe and Justice Blackstone had considered the subject 
 and spent several hours disqussing it, and thought there were cases 
 where abridgments were really new books, and could not be treated 
 as invasions of copyright. — I^offt^ 775. 
 
 » 3 Swanst. 681. 
 
CH. XI.] IMPORTING PIRATED BOOKS. 293 
 
 work, they might have succeeded quite as well as by carry- 
 ing off large handfuls from their neighbour's heap. The 
 distinction sometimes drawn between a hoTiA fide and a 
 colourable abridgment is altogether misleading; the sole 
 question being, whether the reader or possessor of the 
 abridgment will be so materially induced to dispense with 
 the original as to cause a substantial injury to the author's 
 copyright.^ That kind of abridgment consisting in head- 
 notes to legal reports if original, and deduced from the 
 reports themselves, is a material part of the whole report, 
 and to copy such head-note is therefore an infringement.^ 
 And for a like reason the copying of prints accompanying 
 an original work is an infringement, because the copyright 
 covers the work and every part of it.* 
 
 Infringement by importation of pirated copies.-^-Oae 
 obvious mode of infringing copyright is to import and sell 
 copies which have been printed abroad, and which could 
 not be prevented from being so printed. And this is so 
 glaring and destructive a proceeding, that it is made aa 
 offence punishable by summary conviction before justices. 
 Whoever imports into the British dominions for sale a copy 
 of a copyright book, which copy has been printed out of 
 the British dominions, and whoever knowingly sells or pos- 
 sesses or exposes for sale such copy, not only forfeits the 
 book, but is liable to be convicted in respect of each book 
 in a sum of ten pounds and double the value of the book. 
 Half of the penalty goes to the proprietor of the copy- 
 right, and the other half to the Customs officer who seizes 
 the copies, which he has power also to destroy.* But to 
 obtain this protection, and to assist Custom House officers, 
 notice of copyright books must be sent to the Customs 
 officers, who expose such list to public view. And to pre- 
 vent false entries a judge at chambers may on complaint 
 expunge an entry from the list at the expense of the 
 party wrongfully causing the entry .^ All copies unlaw- 
 fully imported are deemed the property of the registered 
 
 1 LoKD Campbell said the law had gone too far in tolerating 
 abridgments.— (5 Camp. L. Ch. 65.) And V. C. Wood said the 
 same. — Tiiisley v Lacy, I 3. <& M. 747 ; Soott v Stanford, L, E., 
 3 Eq. 723. 
 
 2 Sweet V Benning, 16 0. B. 484 ; Butterworth v Robinson, 5 Ves. 
 709. ' Bogue v Houlston, 5' De (i. & Sm. 267. * 5 & 6 Vic, 
 c. 45, § 17. 5 39 & 40 Vic. c. 36, §§ 42, 44, 45. 
 
294 LIBERTY OF PEESS AND SPEECH. ' [cH. xi. 
 
 proprietor of the copyright, who may sue for the same 
 or their value.^ And he may demand an siccount of the 
 gains and profits made by the infringement.^ And he may 
 obtain an injunction against selling more of the pirated 
 copies.* 
 
 Interferences with copyright by reciting or drouma- 
 tising. — As the law treats as beyond its limit the literary 
 effect or use made by readers of a copyright work,' there 
 are a few instances in which copyright is not deemed at 
 all substantially interfered with. If a reader choose, for 
 profit or otherwise, to read in public or even to recite from 
 memory another's book, he violates no right, for this is 
 little more than reading aloud, and is rather an example 
 of an independent kind of labour or an exhibition of a 
 special faculty in exercise.* And the court once went the 
 length of holding, that the copyright of a drama which one 
 would think essentially included the right of acting it, 
 did not include this, and could not be prevented by the 
 author, and hence a statute was passed to cure this strike 
 ing injustice.* In 1834 the legislature gave to the authors 
 of dramas what they were deemed not to have before, 
 namely, the stage right or exclusive right of acting the 
 play as distinguished from the mere republication of the 
 order of words involved in it as a book.® And the term 
 of the stage right in the performance was made identical 
 with book copyright.' And the remedies are the same.* 
 The ca.se, however, has arisen where a copyright of a novel 
 is interfered with by turning its main incidents into the 
 form of a play and acting it. An author who publishes 
 his novel might well be deemed not to contemplate that con- 
 version, for the effect may be to prevent those who witness 
 the play to cease to care for reading the novel. It was 
 deemed difficult to decide, whether the copyright in a novel 
 impliedly included the right of preventing any dramatic 
 use of the main incidents. And the court held it did not.® 
 And yet the court held, that if a copy of the dramatic 
 
 » 5 & 6 Vic. c. 45, § 23. = Delfe v Delamotte, 3 K. & J. 581. 
 
 ' Mayill v Higbey, 1 H. & C 148. ^ Tinsley v Lacy, 1 H. & 
 
 M. 747; 5 Mutray v Elliston, 5 B. & Aid. 657. 63^4 will. IV 
 c. 15. 7 5 & 6 Vic. c. 45, § 20. « Ibid. § 21. » Reade v 
 
 Conquest, 9 C. B., N. S. 755 ; 'll C. B., N. S. 479 ; Toole v Young, 
 L. R., 9 Q. B. 59. 
 
CH. XI.] INFRINGEMENT OF COPYRIGHT. 295 
 
 version was printed and sold as a took, it did amount to 
 an infringement.^ The ground on which the court refused 
 to treat the dramatisation and mere acting on the stage of 
 a novel as an infringement of the copyright in the order 
 of words seems to be, that it requires a distinct order of 
 talent to put the story into a practical drama, and hence 
 this result was not the natural and probable consequence 
 of publication. But in modern times, when novels and 
 dramas have become so niimerous, aud so frequently act 
 and react on each other, the legislature may well revise 
 the statute, so as to recognise dramatisation as one of the 
 probable consequences, and therefore include this in copy- 
 right of novels and like compositions which involve nar- 
 ratives of character and place. Copyright in music as in 
 plays includes the words of the accompaniment and also 
 the right of performing the music.^ This is infringed by 
 .publishing some of the ,airs of an opera.' The copyright 
 in dramas and music thus includes the right of perform- 
 ance as well as the mere words or verse. Another difSculty 
 has arisen as to music, where an opera has been turned 
 into a pianoforte accompaniment and this last again has 
 been turned into an opera; and it .has been held that the 
 performance of the second opera was an infringement of 
 the stage right in the original opera.* 
 
 MeMedy by ofition for ii^fringement of co;pyrig1it. — 
 When copyright has been infringed, the statute of 184S 
 expressly gives to the owner a right of action against the 
 party who has infringed, and the defendant must give to 
 the plaintiff before trial notice in writing of the .objectiOAfi 
 on which he means to rely ; and if he rely on some other 
 person being the owner of the copyright, he must give 
 particulars of na,me, and title of book, and time and place 
 of publicatioin.^ It has been sometimes said, that in the 
 action for infringement the plaintiff must prove a guilty 
 intent, or something like an animus farandi, in the de- 
 fendant. But this seems a .misconception. It is not what 
 the piratical author intended but what he has done, if the 
 thing done in effect interferes with the exclusive right of 
 
 1 Navello e Sudlow, 12 C. B. 177 ; Tinsley v Lacy, 1 H. & M. 
 747. " 3 & 4 Vic. c. 45, § 20. ' D'Almaine v Boosey, 1 Y. & 
 
 0. Ex. 288. * Fairly v Boosey, L. E., 4 App. 711. = 6 & 6 
 
 Vic. c. 45, § 15 ; Ibid. § 16. 
 
296 LIBERTY OF PRESS AND SPEECH. [ch. xf. 
 
 a prior author, that is the cause of action, just as any 
 collision in the street resulting from negligence or care- 
 lessness, and causing damage to another person, will be a 
 cause of action though no actual intent to injure existed. 
 The one author in the pursuit of his own interest so acts 
 as to damage the property of a preceding author : and 
 hence the cause of action resembles the cause which arises 
 in cases of damage by negligence or carelessness. There is, it 
 is true, the possibility of two minds having independently 
 thought out the same subjects in much the same language 
 and on the same plan, and yet so as to wear the -appearance 
 of one book being an imitation or infringement of the other's 
 copyright, in which case no action would lie. And in order 
 to test the truth of this coincidence, courts often examine 
 the materials in order to be satisfied that it is not such 
 a case of accidental and unavoidable coincidence. But 
 the moment it is resolved not to be an accidental coin- 
 cidence, then the motive or intent of the second author 
 is wholly immaterial, if his book is a substantial infringe- 
 ment of the prior copyright.^ 
 
 Where a right such as copyright is established and 
 another interferes with it in the only way in which it 
 can be interfered with, namely, by printing and selling 
 without authority duplicates or copies or imitations which 
 are deemed to be in effect and substance the same as copies 
 and injuring the sale of the original work, an action of 
 damages is the common law remedy of the author or owner 
 of the copyright. It was so held under the statute of 
 Anne, and is expressly so declared by the statute of 1843.^ 
 The question whether lithographing copies amounted to 
 piracy has arisen, and the court held, that he who 
 lithographed copies for distribution was liable to an action 
 as well as he who printed them.* The above rule as to 
 notice by the defendant is strictly enforced, so that if the 
 notice has not indicated the specific objection, no evidence 
 will be permitted to be given at the trial in support of 
 the defence.* It is not enough to say, that the copy- 
 right belongs not to the plaintiff but to some other person 
 
 1 Soott V Stanford, L. R., 3 Eq. 718 ; Reade v Lacy, 1 J. & H. 
 527 ; Lee v Simpson, 3 C. B. 871 ; Pike v Nicholas, L. R., 5 OIi. 251. 
 
 2 5 & 6 Vic. 0. 43, § 15. 3 Novello » Sudlow, 12 C. B. 177. 
 1 6 & 6 Vie. c. 45, § 16. 
 
■CH. XI.] INJUNCTION AGAINST PIRACY. 297 
 
 whose name is unknown, for it is the defendant's business 
 to find out this unknown person before acting on the 
 speculation ; or at least he must show a definite publication 
 by some other person.' And as the defendant may wish to 
 know the extent of the damage done, so as to pay money 
 into court, he has a right to put interrogatories to the 
 plaintiff as to the number of copies sold by him during a 
 limited period before and after the date of infringement.^ 
 It is no answer to an action for infringement that the book 
 was printed and published without the name and residence 
 of the printer.^ 
 
 A condition precedent to the right of action is the registra- 
 tion of the copyright at Stationers' Hall.^ And while all 
 actions for penalties or forfeitures must be brought within 
 twelve moiiths after the offence,* the action for damages for 
 infringement or forfeiture may be brought within six years. 
 
 Remsdy by way of penalties for infringement. — 
 Where the statutes give a remedy for infringement by 
 proceedings for penalties — as for selling pirated imported 
 copies — the penalty is incurred for the sale of each book ; 
 and hence if several sales take place on one day a separate 
 penalty for each sale is recoverable.* 
 
 Injunction as a remedy for infringement. — The prac- 
 tice of the high court to grant an injunction to restrain 
 piratical publications became frequent after 1734, when 
 the first term granted by the statute of Anne ceased, and 
 the loss of statutory protection began to be felt. The 
 ground on which the court interferes by injunction is the 
 inadequate remedy which an action for damages can give, 
 for, as the damage may be irreparable, the most effectual 
 remedy must be to prevent the publication altogether. In 
 some cases the court balances the inconveniences and 
 hardships of the parties, and directs the plaintiff to take 
 his remedy in the form of damages without giving him an 
 injunction either as an alternative or concurrent remedy. 
 One of the qualifications of the action of injunction is, 
 that the court insists on the plaintiff using great expedi- 
 tion and promptitude in resorting to the court for this 
 
 1 Wright V Goodlake, 3 H. & C. 540. a Chappell v Davidson, 
 
 18 C. B. 194. 3 5 & 6 Vic. c. 45, § 24 ; Murray v Bogue, 1 Drewr. 
 364. « 5 & 6 Vic. c. 45, § 26. * 5 & 6 Vic. o. 46, § 17 ; Exp, 
 Seal, 9 B. & S. 395. 
 
298 LTBERTy OF PRESS AND SPEECH. [ch. xi. 
 
 action, the alleged ground being, that hy delaying to com- 
 mence litigation he impliedly acquiesces and encourages 
 the defendant to go on and probahly lay out money in his 
 illegal venture. And this doctrine seemed often to rest on 
 the assjimption, that unless the injjired party immediately 
 resort to the court, which step he may sometimes have no 
 means of adopting, the court will not assist him at all. 
 It might be doubted whether, when one person injures 
 another's right, he ought not to take all the risks of losing 
 money which he invests in such, an undertaking ; but there 
 should be no obligation on a plaintiff, and jiothing like a 
 condition precedent, compelling him to be more than 
 usually prompt. In strictness, an aversion ,tp litigation 
 should be encouraged rather than punished, and the in- 
 dulgence shown by courts in favour of any one who has 
 recklessly invested his money in injuring ,his neighbour 
 seems somewhat unintelligible. If an injured owner of 
 copyright gives early notice of his own rights and his 
 claims, this ought to be sufficient to protect him, and 
 entitle him to all the remedies which a court can give 
 him ; and in modern times this maxim of extreme 
 haste is not allowed to intercept the plaintiff's claim to 
 j)rotection.^ The doctrine is usually acted on where there 
 is some doubt as to the legal copyright being in the 
 plaintiff, in which case the court will not readily lend the 
 •aid of an injunction, as the ultimate success of the de- 
 fendant must always be kept in view as a possible con- 
 tingency. There are also some cases where the plaintiff has 
 by his conduct misled the defendant into thinking, that an 
 implied permission was given to publish the book ; in which 
 cases it is unjust to allow an injunction, because the plaintiff 
 brought the difiSculty on himself, and there is always the 
 right of an action for damages in reserve.^ And sometimes 
 the subject-matter of the piracy is so trifling in value and 
 importance that the court will not interfere at all.' Or the 
 nature of the case is such, that an injunction would prac- 
 tically do no good.* And it often happens that what is 
 wanted is to prevent only part of a work from being pub- 
 lished, because that only is piratical ; and in such a case the 
 
 1 Weldon V Dicks, 10 Ch. D. 247 ; Hogg v Scott, L. R., 18 Eq. 444. 
 2 Baily v Taylor, 1 R. & Myl. 76 ; Tinsley v Lacy, 1 H. & M. 750. 
 « Seeley v lisher, 11 Sim. 581. * Cox v Land, L. R., 9 Eq. 324. 
 
CH. XI.] COPYBIGHT IN PERIODICALS. 299 
 
 court will prohibit the publication of such part at aU 
 hazards, whether or not tl^ereby it involves the rest of the 
 work, seeing Ihat the defendant has brought the difficulty 
 on himself.! 
 
 A usual part of the jen^edy of injunction is an order 
 that, the defendant shall keep an accoxint of the copies sold 
 in the event of the plaintiff b^ing found entitled ultimately 
 to that beneiit.^ 
 
 Copyright in periodicals and contributions t^reto. 
 — Owing to the circumstances peculiar to the preparation 
 of periodicjal works, the statute declares, that when the 
 proprietor of an encyclopsedia, review, periodical magazine, 
 serial work, or any book whatsover, ena ploys an author to 
 compose articles on the terms that the copyright therein 
 shall belong to such proprietor, then such proprietor has 
 the same rights of copyright as to the whole and every 
 part of the periodical as if he were the actual author 
 thereof; subject to this q^ualiiication, that the copyright in 
 the essays or articles furnished by a contributor shall, after 
 twenty-eight years, jevert to the contributor or author for 
 tte remainder of the term, and during those tweuty-eight 
 years the publisher shall not publish the essays or articles 
 separately without consent of the author or his assigns.' 
 This lays down the general rule fis to contributions to 
 periodicals, and it lies on the author specially to reserve 
 the right to publish the contribution in a separate form i,f 
 he means to retain it.* The terms of the agreement may 
 be verbal or implied.^ But the copyright will remain in 
 the author, unless he has, consented in some form to part 
 with it. And before the copyright in the article vests in 
 the publisher, he mus,t have paid the contribujtor, and not 
 merely have contracted to pay him.^ And the publisher 
 cannot piiblish the article except in the one - periodical 
 contemplated form ; for if he republish it separa,tely, or even 
 in a supplement, he will violate his contract^ The pro- 
 prietor of the serial, in order to protect his copyright, must 
 register the work at Stationers' Hall, and if the publisher 
 
 1 Jarrold v Houlston, 3 K. & J. 708. ? Bailey v Taylor, 1 Russ. 
 & M. 75. s 5 & 6 Vic. c. 45. § 18. * Ibid. § 18. » Sweet v 
 Benning, 16 C. B., 469. « Brown v Cooke, 1'6 L. J., Ch. 140 ; 
 
 Richardson v Gilbert, 1 Sim., N. S., 336. ' ^ Smith y Johnson, 
 
 4 Gift 632 ; Plaiche i> Colburn, 8 Bing. 15. 
 
■ 300 LIBERTY OF PRESS AND SPEECH, [ch. nr. 
 
 is not the proprietor, both names and places of abode must 
 be stated.^ The proprietor, after registration, has the usual 
 protection against the author publishing separately. But 
 as regards the right of the author to refuse consent to 
 separate publication, that requires no registration.^ 
 
 Peeuliarities in contracts with authors. — The agree- 
 ment between author and publisher is subject to the ordi- 
 nary law applicable to agreements between parties ; yet 
 one or two difficulties arise out of the subject-matter, and 
 so may be deemed peculiar to that contract. These agree- 
 ments, being often vague, one difficulty is to ascertain 
 whether the author has assigned the copyright, or merely 
 granted a licence to publish one or more editions. In case 
 of doubt, the court will lean against the construction, that 
 any copyright was intended to be assigned by the author, 
 and treat it as a mere personal agreement or joint ad- 
 venture, or a licence coupled with a joint adventure.* 
 When there is no assignment of copyright, but the agree- 
 ment is personal, neither party can, without consent of the 
 other, assign his interest therein to a third party.* Thus 
 one firm of publishers cannot assign their interest in such 
 contract to another firm.^ In the event of an agreement 
 in the nature of a joint adventure for an indefinite period, 
 the author can determine the joint undertaking, subject to 
 .the other party being recouped actual expenses.® The 
 stereotyping of a book does not deprive the author of 
 determining the joint adventure, but it may render it more 
 difficult to define what is an edition ; and each separate 
 quantity or batch may then be appropriately treated as a 
 separate edition.' If the contract is to assign the copy- 
 right for a term of years, as, for example, four years, with- 
 out defining the number of copies to be printed, the author 
 cannot prevent the publisher selling off after the expira- 
 tion of the term what he had printed during the term ; and 
 in the absence of fraud the author cannot in any way 
 check or control the publisher continuing the sale of 
 such copies.^ 
 
 1 5 & 6 Vic. c. 45, § 19. = Mayhew v Maxwell, IJ. & H. 315. 
 
 ' Stevens v Benning, 6 De G., M. & G. 223 ; Eeade v Bentley, 
 4 K. & J. 664. ■• Stevens « Benning, 6 De G., M. & G. 223. 
 
 ' s Hole V Bradbury, 12 Ch. D. 894. 6 Reade v Bentley, 4 K. & 
 
 J. 656. ^ Ibid. » Howitt v Hall, 6 L. T., N. S. 348, 
 
CH. SI.] ' - COPYRIGHT IN DRAMAS. 301 
 
 In these contracts an injunction against publication is 
 seldom available. Thus, ii" a publisher agreed to pay a 
 sum for a manuscript before publication, the author cannot 
 obtain an injunction against publication till the price has 
 been paid, for this price can be recovered by an action for 
 the price.^ The remedy of the publisher against an author 
 resolves itself into an action for damages for breach of con- 
 tract, seeing that an author cannot be ordered specifically 
 to perform any contract which requires him to exercise his 
 thoughts and commit them to paper.^ The contract of 
 an author to supply articles to a serial work is divisible, 
 and if before completion of the contract the serial work 
 cease, the publisher cannot claim the right to publish the 
 articles separately, but is bound to pay a reasonable price 
 for the part actually completed.^ In like manner a pub- 
 lisher who has a copyright in a book is liable in damages . 
 to the author, if he publish a new edition in the author's 
 name, but so incorrect as to be injurious to the author's 
 reputation.* Yet no such liability will be incurred if the 
 author, had, from the tenor of his contract, placed himself ^ 
 in a subordinate position to the publisher, and allowed the 
 latter to publish it in his own name and therefore to alter 
 it at discretion.* After the author has sold his copyright, 
 the purchaiser is entitled to make changes in it, but he is 
 bound to inform the public, that the alterations are not made 
 by the author." And on the other hand, the author cannot 
 himself publish another book on the same plan and subject, 
 for this would be to derogate from the former grant.'' And 
 an artist who has sold a painting or photograph is expressly 
 prohibited from reproducing a work on the same subject.* 
 But while damages may be recovered for injury caused to 
 the reputation of an author, the court will not grant an 
 injunction to stop the sale of such work on that ground 
 alone, unless connected with property.^ 
 
 Copyright in dramas- — It has already been pointed 
 out, that the authorship of a drama and the valuable right 
 
 1 Cox V Cox, 11 Hare, 118. " Stevens ii Benning, 6 De G., M. & 
 G 229 ^ Planche v Colburn; 5 C. & P. 58. ■• Archbold v 
 
 Sweet,'l M. & Rob. 162 ; 5 C. & P. 219. * Cox v Cox, 11 Hare, 
 
 118 * Archbold v Sweet, 1 M. & Bob. 162. ' Rooney v Kelly, 
 14 Ir. L. B., N. 8. 158 ; Colbum v Simms, 2 Hare 543. 8 £5 & 26 
 Vic. c. 68, § 6. " Clarke v Freeman, 11 Bear. 112. 
 
302 LIBERTY OF PRESS AND SPEECH. [oh. xi. 
 
 arising from turning it to advantage was twofold, first to 
 have the exclusive right of having it represented on the 
 stage, and secondly the exclusive right of publishing the 
 words in the same way as any ordinary book is published. 
 A statute' was passed in 1833, and amended in, 1842,- to 
 confer on the authors of dramas or dramatic pieces this 
 exclusive right of representing such pieces on the stage, 
 that is to say, at any place of dramatic entertainment in 
 the British dominions, in the same way as an author has 
 copyright in the book itself, and for the same term.^ And 
 a dramatic piece was defined to include every scenic, mu- 
 sical or dramatic entertainment.^ Though a pantomime 
 can scarcely be reduced to writing or identified, yet the 
 ihtroduetion being written is protected by the Act. 3 And 
 the right of representing a musical 'piece was put on the 
 same footing as dramatic pieces, and the exclusive right of 
 representation made identical in nature and duration with 
 copyright.* Where the dramatic or musical piece had not 
 been published as a book before its representation, then the 
 author or assignee is to register the time arid' place of the 
 first representation or performance, which is deemed equiva- 
 lent to publication, and the name and place of abode of the 
 proprietor and the title of the piece.^ The copyright in a 
 musical or dramatic piece is, prlmA facie, first vested in the 
 author ; but, as in the case of books, the piece may, from its 
 original composition, have been designed to be accessory 
 to some other work, in which case the property may from 
 the first be vested in another ' person. * If the copyright 
 has once vested in the author, then an assignment can only 
 be acquired from the author by writing, even though the 
 author was employed to compose a specific piece.^ The 
 adaptation of opera' music to the pianoforte is a distinct 
 work from the opera itself, requiring skill and knowledge. 
 And accordingly a composer of this pianofdrte score is 
 entitled to copyright in publishing it, and does not infringe 
 the stage right in the original opera from which the piano- ' 
 forte score was taken ; ' while it is equally clear that 
 
 1 3 & 4 Will, IV. c. 15 ; 5 & 6 Vic. c. 45, § 20. = 6 & 6 Vic 
 
 c. 45, § 2. ' Lee v Simpson, 3 C. B. 871. ■• 5 & 6 Vic. c 45 
 
 § 20. 6 Ibid. 6 Shepherd v Conquest, 17 C. B. 427. 
 
 7 Ibid. 8 -Wood V Boosey, L. E., 2 Q; B. 340 ; L R 
 
 3 Q. B. 223. 
 
CH. XI.] ASSIGNMENT OF DRAMAS. 303 
 
 his publication of such score would he an infringenient 
 of the copyright in the opera, if such opera had heen 
 jiublished.' 
 
 Assignment of right of representing dramas. — An 
 assignment of copyright of a dramatic or musical piece is 
 deemed to be confined to the ordinary publication of such 
 piece as a book containing words only.^ And it will not 
 include the exclusive right of representation, unless an 
 entry expressly stating that such right of representation is 
 included is made at Stationers' Hall.^ The copyright in a 
 dramatic or musical piece is in reality a double right, being 
 fi:rst a copyright in the mere words or mere musical score, 
 and also secondly, a stage-right, or right of representing on 
 a stage the acting and the musical sounds represented by 
 those words or notes. These two rights may be separated 
 entirely, and assigned to different persons.* And here a 
 distinction is noticeable between the assignment of a book 
 copyright and the assignment of the right of representing 
 dramas or music. Ih the former case the right, as was 
 obsetved, cannot be assigned for one locality without being 
 assigned also for the rest of the British dominions ; it must 
 be assigned out and out and entire for the whole dominions 
 or not at all.* But as regards the right of representing 
 plays and music, it may be assighed for one locality or 
 town or theatre, and for no other ; for though the publica- 
 tion of books cannot be confined to one spot or the operation 
 limited in its effects without great uncertainty and confu- 
 sion, there is no difficulty or uncertainty at all as regards 
 the performance of a play or of music, for being a matter 
 of the senses it is easily restricted to one spot.^' The assign- 
 ment of a mere acting copyright in drama and music with- 
 out the verbal right is on the same footing as the assign- 
 ment of copytighf in a book as regards suinig for damages 
 or penalties, and it seems registration is not a condition 
 precedent to his action.'^ And if both the copyright and 
 the stage right be assigned together in one deed, then 
 registration is not essential.* And any words importing ■ 
 
 1 Ibid. 2 5 & 6 Vic. c. 45, § 2. ^ ibid, § 22. ^ 5 & 6 Vic. c. 45, § 
 22 : 3 & 4 Will. IV. c. 15, § 2. « See ante, p. 280. « See Shepherd 
 ti Conquest, 17 C. B. 427. ' Wood v Boosey, L. E., 2 Q. B. 340., . 
 
 8 Lacy V Rhys, 4 B. & S. 8.73 ; Marsh v Conquest, 17 C; B;, 
 N. S. 418. 
 
304 LIBERTY OF PRESS AND SPEECH. [ch. xi. 
 
 assignmeBfc, if in writing, will be as effectual as the most 
 express words, if the meaning be reasonably clear ; thus 
 where the author by letter agrees " to let A have " his 
 drama, this wiU be a good assignment.^ And as in the 
 case of copyright in books, the assignment, if in writing, 
 may be validly made by an agent, though that agent is not 
 authorized in writing.^ Where there are several joint owners, 
 one cannot grant a licence for representation of the play 
 without all the other owners concurring.^ 
 
 Infringement of right of representation of dramas, 
 — If during the subsistence of copyright and stage right in 
 a musical or dramatic piece any person cause the piece to 
 be represented at a place of dramatic entertainment, such 
 person incurs a penalty which is not less than forty 
 shillings, and may be equal to the benefit or advantage 
 arising from the representation ; and full costs may be re- 
 covered besides, if the action or suit be commenced within 
 twelve calendar months next after the offence committed.* 
 The penalties accrue to the benefit of the owner of the 
 copyright and right of representation.* And-the court will 
 protect the right by injunction. ^ Though, therefore, the 
 damage done by infringement may be in the form of a 
 penalty or fixed sum in respect of each representation, 
 yet the recovery must be by action in the High Court of 
 Justice.'' And this action applies equally to infringement 
 of copyright in musical compositions.^ The action for in- 
 fringement of stage right must be brought within twelve 
 calendar months after the offence has been committed.^ 
 The introduction to a pantomime has been held a musical 
 and dramatic composition.!" j^ jg g, violation of the enact- 
 ment to pirate the chief incidents of a dramatic piece ; ^^ or 
 to appropriate the name and description of a song the words 
 of which were old ; ^^ or to convert the airs of an opera into 
 the form of quadrilles and waltzes ; P and yet to arrange 
 an opera score for the pianoforte is no infringement, but 
 
 1 Lacy V Toole, 15 L. T., N. S. 512. « Morton v Copeland, 
 
 16 C. B. 517. 3 Powell v Head, 12 Ch. D. 686. •« 3 & 4 Will. IV. 
 c. 15, § 2. 5 5 & 6 Vic. c. 45, § 21. 6 Chappell v Sheard, 
 
 2 K. & J. 117. 7 3 & 4 Will. IV. c. 15, § 2. « 5 & 6 Vic. 
 c. 45, §§ 20, 21. 9 3 & 4 "Will. IV. c. 15, § 3. w Lee v Simpson, 
 
 3 C. B. 882. " Eeade v Conquest, 11 C. B., N. S. 479. 
 
 12 Chappell V Sheard, 2 K. & J. 117. « D'Almaine v Boosey, 
 
 1 y. & G. 288. 
 
XI.] CENSORSHIP OF PLAYS. 305 
 
 will be itself the subject of copyright, as it is a distinct 
 performance.'^ 
 
 Censorship of plays still retained. — It is not enough 
 for an author to compose a drama ; for the ancient practice 
 of the censorship has been preserved, which prevents his 
 turning such drama into practical use by actual representa- 
 tion, until the censor's approval has been obtained. As 
 already noticed, all trace of censorship as to books was 
 wholly obliterated in 1694, when the Licensing Act finally 
 expired ; but the old spirit soon revived, and it was thought 
 by the wisdom of Parliament unsafe to leave authors and 
 actors to their own devices, it being apparently assumed 
 that the usual remedy of an indictment or criminal in- 
 formation was not adequate to deter offeuders in this class 
 of publications, though long since confessed to be so as to 
 all others. Before the reign of Henry VIII. the direction 
 of the king's hunting parties and musical recreations was 
 vested in the Lord Chamberlain ; and what had hitherto 
 been a temporary office was made permanent by letters 
 patent, and called the office of Master of the Revels. And 
 Queen Elizabeth, when granting to the Earl of Leicester the 
 first general licence for his theatrical servsints to act stage- 
 plays in any part of England, made it a condition, that the 
 plays be first examined and allowed by the Master of the 
 Eevels. The troubles of the Commonwealth broke up the 
 continuity of this official superintendence, but it was re^ 
 vived after the Eevolution, and King William, impressed 
 by the licentiousness of the stage — especially the incorri- 
 gible tendency to indulge in profane oaths — ordered, that 
 the keepers of playhouses should not thereafter presume 
 to act any play contrary to religion and good manners ; 
 and the Master of the Eevels was not to license such a 
 play. The control being imperfect, an Act of Anne still 
 treated unlicensed players as previous statutes had long 
 before treated them, namely, as rogues and vagabonds.^ 
 'But under that act an unlicensed actor at the Haymarket 
 Theatre being arrested on the stage, under a justice's war- 
 rant, as a vagrant, and lodged in Bridewell, and having 
 
 ■ 1 Wood « Boosey, L. E., 3 Q. B. 223. 2 13 Anne, c. 23. In 
 
 1776 a fund for decayed actors was established, and the managers 
 were incorporated with perpetual succession and a common seal. — 
 16 Geo. III., c. xiii. 
 
 X 
 
306 LIBERTY OP PRESS AND SPEECH [ch. xi. 
 
 succeeded afterwards, amid great applause of the populace, 
 in procuring his discharge owing to his heing a house-, 
 keeper, the necessity of a new law was made conspicuous. 
 Though there were then only six theatres in London, in 
 1737 the mischief to youthful virtue was thought to call 
 for some restrictions. And the Act of 10 George II., c. 28, 
 was brought in and carried, notwithstanding long debates, 
 and particularly Lord Chesterfield's masterly and animated 
 opposition, grounded on its being an encroachment on 
 the liberty of the press, uncalled for, and therefore unjust.^ 
 That act repeated, that actors in unlicensed houses, if they 
 had no legal settlement there, were to be treated as rogues 
 and vagabonds. Its main enactment was, that no play was 
 to be acted, till it was allowed by the Lord Chamberlain. 
 And above all, no play was to be acted for hire in any part 
 of Great Britain except Westminster and near the royal 
 residences — an absolute prohibition which had to be repealed 
 thirty years later, as each of the large towns and cities 
 successively by local act obtained the right of establishing 
 its oWn local theatre. And though this act was said to 
 be passed in a ferment at the suggestion of Sir E. Walpole, 
 who had been smarting from some severe allusions on the 
 stage,^ and though frivolous objections had often been in- 
 sisted on by the censor in course of his criticisms, the 
 act remained in force, till 1842, when the enactments were 
 revised and continued in substance.^ Under the act of 
 
 ^ Lord Chesterfield's main argument in opposing the bill was 
 tliattlie law already sufficiently punished blasphemy, and indecency, 
 and libel ; therefore, why add a new fetter upon the legs of liberty ? 
 He added, " Licentiousness is a speck on .the eye, upon the political 
 body, which I can never touch but with a gentle, with a trembling, 
 hand, lest I destroy the body, lest I injure the eye, upon which it is 
 apt to appear. There is such a connection between licentiousness 
 and liberty, that it is not easy to correct the one without dangerously 
 wounding the other. It is extremely hard to distinguish the true 
 limit between them ; like a changeable silk, we can easily see there 
 aie two different colours, but we cannot easily discover where the 
 one ends or where the other begins. In public as well as private 
 life, the only way to prevent being ridiculed or censured is to 
 avoid all ridiculous or wicked measures, and to pursue such only 
 as are virtuous and worthy." — 10 Pari. Hist. 331. Loed Kenyon 
 said Dr. Johnson composed the above speech. 
 
 2 Coxe's Walpole ; 1 Colley Gibber's Life, 257. » 5 & 6 Vic. 
 
 c. G8 ; 24 Pari. Deb. (2) 1088. 
 
CH. ST.] REGULATIONS OP THEATRES. 307 
 
 1736 no alteration was allowed in the play as settled, and a 
 clown dare not add the words " roast beef" to a jest. Sir E. 
 Walpole, indeed, with his usual prudence, did not entitle his 
 bm one to prohibit plays not licensed, but a bill to amend 
 the Vagrant Act ; and it was carried through the House of 
 Commons in eleven days, and the House of Lords in seven 
 days. By the Act of 1843 every person who shall cause 
 to be acted, or for hire shall act, any new stage-play, or any 
 act, scene, or part of one, until the same shall have been 
 allowed by the, Lord Chamberlain, or after it has been dis- 
 allowed, shall forfeit a sum of 501., and the licence for 
 such theatre shall become absolutely void.^ A sta,ge-play 
 includes nearly every kind of entertainment of the stage, 
 including opera and pantomime.'' And though mere tumb- 
 ling is not an operatic performance,^ yet where there is 
 little else than dancing and pantomime it will be a 
 question of fact, whether it amounts to this description.* 
 And a dialogue between two persons in costumes and 
 characters satisiies the description of entertainment of the 
 stage. ^ But the Lord Chamberlain's allowance was care- 
 fully stated to be unnecessary for such theatrical repre- 
 sentations as are given in booths or shows, allowed by 
 justices at fairs and feasts. ® 
 
 Begulations as to places where plays are performed,. 
 — WhUe the author's right in plays is part of the law of 
 copyright, there are also special laws as to the place where 
 plays are performed which brings them within that division 
 of the law connected with freedom of speech and the prac- 
 tice of censorship already mentioned, for in all ages the 
 licence of satire and comment indulged in by dramatists 
 has attracted the notice of governments. The theatre has 
 always been one of the places where the public have been 
 accustomed to be indulged with hearing, and having an op- 
 portunity of sharing in, free opinions about their rulers and 
 all the events of the period. Cicero said the ancient Greeks 
 allowed the comedians to censure any action and any 
 person by name. And though they did well in wounding 
 some popular and bad characters, still it was better that 
 the censor should do this work rather than poets, And 
 
 1 6 and 7 Vic. o. 68, § 15. " Ibid. § 23. ' R. v Handy, 
 
 6 T. R. 286. ■• Wigan v Strange, L. R., 1 C. P. 175. 5 j)^y 
 
 t Simpson, 18 C. B., N. S. 680. « 6 & 7 Vic. c. 68, § 23. 
 
 X 2 
 
308 LIBERTY OP PRESS AND SPEECH. [ch. xi. 
 
 certainly after Pericles had governed the State ■ both in 
 peace and war for many years with great reputation, Cicero 
 thought it intolerable that such a man should be abused on 
 the stage in a way, that would not have been tolerated at 
 Eome against such characters as Publius and Cneu^ Scipio, 
 or Cato.i There was also some discredit associated in most 
 countries with the very profession of actors on the stage.^ 
 In this country similar fears and jealousies of actors pre- 
 vailed. A statute of James I. imposed a fine of lOZ. on 
 every person who in a stage- play or pageant " jestingly or 
 profanely spoke or used the holy name of God, Christ 
 Jesus, or the Holy Ghost or Trinity, which are not to 
 be spoken but with fear and reverence."'* Stage-plays were 
 severely treated by the Long Parliament, and all players 
 were ordered to be apprehended as rogues and vagabonds.* 
 And the statute of Ajine, as already stated, kept up the 
 same treatment* 
 
 1 August, de Civit. Dei, ex Cicero de Rep. 134. 
 
 ^ A senator of the AieopaguB -was expressly prohibited from, 
 writing a comedy. — Plut. De gtor. Aih. 348'. The Spartans forbade 
 all plays, as detracting from the respect due to the laws. — Plut. in 
 Inst. Lac. 239. The Massilians did the same. — Val. Masc., b. ii. 
 c. vi. , § 7. Among the Romans the 'policy of theatres was long 
 doubted, and Scipio Nasica persuaded the Senate to pull one down 
 as a nuisance, and sell the materials. — Liv. in E^pit. b. xlviii. Val. 
 Max.., b. ii., c. iv. The doctrine at least was so far against theatres, 
 that it was thought, if people would be so foolish as to go to plays, 
 they ought not to be provided with seats but be made to stand. 
 Moreover, the profession of player was deemed truly contemptible 
 and all but infamous by the Romans. — Liv. b. vii., c. ii. Tacit. Ann. 
 b. i., c. Ixxiii. ; b. iv., c. xiv. The Romans, it is true, allowed the ' 
 comic poets to make sport of the gods, but they drew the line when 
 magistrates were abused. — August, de Civit. Dei. The civil law 
 also treated players as infamous, and incapable of being witnesses. — 
 /., b. iii., tit. ii., § 1 ; b. xlviii,, tit. ii., § iv. Senators and youths 
 were prohibited from marrying or abducting women connected with 
 theatres. — Cod., b. i.,tit. iv., § 14 ; Cod. Theod., b. xv., tit. vii., § 2 ; 
 Ammian. Marc.,-Kiv. 6 ; and the children of such forbidden marriages 
 were deemed incapable of inheriting. — Cod., h. v., tit. 27, § i. In 
 the time of Charlemagne, the same character belonged to players. — 
 Ca2nt. Car. b. 7. In ancient Scotland Macbeth ordered actors to 
 betake themselves to honest labour, otherwise they were to be yoked 
 to a plough or cart, and made to draw like beasts. — Hect. Boet 
 fol. 251. 
 
 3 3 Jas. I. 0. 21, repealed 1843. « 1647, Scobell's Acts. 
 
 5 BuBKB said the old acts against unlicensed players partook of 
 the savage temper of the limes. And eve'n in 1777, when a bill was 
 
OH. XI.] LICENCES FOE THEATRES. 309- 
 
 Licences to Tcee^ theatres. — "When the old statutes 
 were repealed and the laws revised in 1843, it was de- 
 clared, that while authority to exhibit plays might con- 
 tinue under letters patent from the Crown, the lawful 
 authority within the Parliamentary boundaries of London 
 and Westminst-er, and the five metropolitan boroughs 
 adjoining, to grant licences for theatres, was the Lord 
 Chamberlain. Such licence is only granted to the actual 
 and responsible manager ; the name and place of abode of 
 the manager must be printed on every playbill, and he 
 must give recognisances for a sum, not exceeding 500Z., 
 for due observance of rules and payment of penalties. ^ 
 In places other than the, metropolis, the justices of the 
 county or borough .hold special sessions for granting like 
 licences.^ The Lord Chamberlain and justices can make 
 rules for the management, specifying the hours of closing ; 
 and if a riot arise out of a breach of the rules, two jus- 
 tices can order the house to .be closed for such time as they 
 think fit.* "Whoever keeps an unlicensed ho'use or place of 
 public resort for public stage performances incurs a penalty 
 of 20Z. per day.* But a. person who uses a place only for a 
 few nights is not deemed one who " keeps the place ; " and 
 that word refers to habitual use by one haying the permanent 
 control.* Yet he may be convicted of causing the play to 
 be performed. And even a person, who for a time acts, or 
 causes stage plays to be acted in .unlicensed places, incurs 
 a penalty of IQL for every day.® And in some booths and 
 tents though a licence cannot he obtaiuedj yet the actors 
 may incur this penalty.^ There are special powers given 
 to the police in the metropolitan district to enter un- 
 licensed houses or rooms for theatrical entertainments, to 
 
 proposed which was to authorise the king's licence to a theatre at 
 Birmingham, it was opposed as demoralising, though Fox said it 
 tende4 to civilise and polish the citizen ; and the House of Commons 
 rejected it by a majority in the proportion of three to one. — 19 Pari. 
 Mint. 201. Women were first seen on the English stage in 1661. — 
 1 Pepys' Diary, 177. It was formerly deemed indecent in theru to 
 attempt such an employment. — Prynne's Eistr., 414. In Spain it is 
 said that women acted in 1623.— 2 Simon D' Ewes AutoUog, 
 Malliwell, 447. 
 
 I 6 & 7 Vic. c. 68, § 7. " Ibid. § 5. ^ Ibid. § 9. * Ibid § 2. 
 
 5 B. 1) Strugnel, L. R., 1 Q. B. 93 ; 7 B. & S. 124. See Russell v Smith, 
 12 Q. B. 217. 6 6&7 Vic. c. 68, § 11. ? Fredericks « Payne, 
 32 L. J., M. C. 78; Tarling i; Fredericks, 28 L. T., N. S. 814. 
 
310 LIBERTY OF PRESS AND SPEECH. [ch. xi. 
 
 which people are admitted for payment, and to take 
 persons found there without lawful excuse j and the keeper 
 and actors are liable to penalties.^ A portable theatre 
 was deemed not subject to this act.^ If the occupier of 
 the theatre let his company and his scenery to another 
 for a sum of money, he will be liable as one causing the 
 piece to be performed.' Nevertheless where a person 
 hires a room to give the representation or performance 
 without the author's consent and therefore unlawfully, the 
 person who lets the room is not the party liable in the 
 penalty unless he takes an active part in the representa- 
 tion.* What amounts to a representation of a theatrical 
 or operatic piece depends on the acts done by the per- 
 formers, and if a jury assist in the decision it will be 
 for the jury to say, if the acts proved amounted to it or 
 not. Where they held, that singing two or three songs 
 out of an opera was a representation of part of the opera, 
 the court would not interfere with such a conclusion.* 
 
 Right ofpvblic to appla/ud and hiss plays. — It is some- 
 times thought, that, as theatres are intended for the resort 
 and recreation of the public, there are peculiar privileges if 
 not absolute rights on the part of the public; and that 
 the proprietor of the theatre is much at their mercy and 
 cannot refuse to admit any person who chooses to enter 
 on paying the appropriate price. But this is founded on 
 confusion of ideas. A theatre differs in no respect from 
 a shop or a building where a public meeting is held, or 
 where the public are invited for a particular purpose ; and 
 it has been seen how far the exclusion of the public can 
 be carried by the proprietor for the time being of any 
 such place of meeting.^ In all such cases any one of the 
 public can be turned out with or without reason by the 
 chairman or occupier of the building after request and 
 refusal, provided no more force is used than just enough ■ 
 to get rid of the intruder. So it is in theatres. In one 
 case a person after admission, finding there was no room 
 in the pit for which he had duly pa,id, climbed up into 
 the boxes claiming a right to remain there without paying 
 
 1 2 & 3 Vic. c. 47, § 46. ^ Fredericks v Howie, 1 H. & C. 381. 
 ' Marsh v Conquest, 17 C. B., N. S. 418. * Russell v Briant, 
 
 8 C. B. 836 ; Lyons i; Knowles, 3 B. & S. 556 ; 5 B. & S. 751. 
 * Planche v Braham, 4 Bing. N. C. 17. « See ante, p. 27. 
 
OH. XI.] HISSING IN THEATRES. 311 
 
 the price of the box, and on refusal to leave the house 
 struck a servant of the theatre, for which he was taken 
 into custody by a constable, and for which imprisonment 
 an action was brought by him. The judge told defendant that 
 when he could get no adequate seat, his only remedy was 
 to leave the theatre and demand back the admission money, 
 but he had no further right.^ The proprietor' can at all 
 times request a person who has paid for admission to leave 
 the b&ilding whether he has misconducted himself or not ; 
 and the person so requested has no alternative but to 
 leave, and may bring an action for breach of contract and 
 for repayment of his mone}', but has no other remedy^ 
 The imprudence of so excluding a peaceable person is 
 obvious ; but the law is bound to regard only the strict 
 rights of the respective parties to the contract, and a guest 
 cannot argue with the master of the building about re- 
 maining, when his presence is objected to. 
 
 Sometimes an obnoxious actor is hissed systematically 
 and a conspiracy is formed between several persons to do 
 so. This is actionable on the ground that the object being 
 to obstruct another in the exercise of his vocation is in 
 the eye of the law illegal, and is a cause of action against 
 each of the conspirators severally ; and they may all be 
 indicted jointly, if the conspiracy can be established.^ 
 And it is no justification that the actor is a person of bad 
 character and lives by threatening to publish libels on 
 persons in order to extort money for suppressing such libels, 
 and so is considered too disreputable to listen to.^ If 
 many join in noisy proceedings, the offence may amount to, 
 a riot or to an unlawful assembly, according to the cir- 
 cumstances.* It is true, that spectators, while sitting in a 
 
 1 Lewis V Arnold, 4 C. & P. 354. " Gregory v D. Brunswick, 
 
 6 M. & G. 205 ; Clifford v Brandon, 2 Camp. 358. » Ibid. 
 
 * "I cannot tell upon what grounds many people conceive, they 
 have a right at a theatre to make such prodigious noises as to prevent 
 others from hearing what is going forward on the stage. Theatres 
 are not absolute necessaries of life, and any person may stay away 
 who does not approve of the manner in which they are managed. 
 If the prices of admission are unreasonable, the evil will cure itself. 
 People will not go, and the proprietors will be ruined unless they 
 lower their demands. But the proprietors of theatres have a right to 
 manage their property in their own way, and to fix what prices of ad- 
 mission they think most f oi; their own advantage. The audience have 
 
312 LIBERTY OF PRESS AND SPEECH. [ch. xi. 
 
 theatre are not prevented by any law of good manners or 
 any legal inipedimeut from expressing their opinions 
 either by hissing or applauding ; for being allowed to enter, 
 this criticism is impliedly permitted to all without excep- 
 tion and disturbs nobody. Nevertheless any one who goes to 
 an excess in hissing or applauding, can at all times be 
 removed after request ; and in case of dispute the respec- 
 tive rights and wrongs must be adjusted on the fundamen- 
 tal basis, that the proprietor and occupier of the house is 
 entire master of the possession, and can even without 
 reason exclude any person, subject only to an action for 
 breach of contract, if there was a contract. 
 
 Copyright in engravings. — Published engravings were 
 found by the courts to be with difficulty protected accord- 
 ing to the understood principles of law of the time. The 
 case of Hogarth's works and the expense and vexation 
 incident to the defence of his property against piratical 
 imitations,^ led to a protecting statute in 1735.^ The act 
 was passed to confer a copyright on the artist in Great 
 Britain analogous to copyright in books ; ^ and the act was 
 extended to Ireland in 1836.* It was designed to protect 
 those (as it described them) " who by their own genius, 
 industry, pains, and expense had invented or designed, 
 engraved, or etched, or worked in mezzotinto or chiaro- 
 scuro sets of historical or other prints, or had engraved the 
 pictui'es, drawings, or sculptures of others." ° An amend- 
 ing act passed in 1777, and included maps and charts, and 
 plans, and the same protection has been added to litho- 
 graphs and like products." And the owner's name and 
 the date of engraving were to be put on each plate. '^ The 
 
 certainly a right to express by applauses or hisses their sensations at 
 the moment ; and nobody has ever hindered, or would ever question, 
 the exercise of that right, But if any body of men were to go 
 to the theatre with the settled intention of hissing an actor 
 or even of damning a piece, Ihere can be no doubt that such a 
 deliberate and preconcerted scheme would amount to a conspiracy, 
 and that the persons concerned in it might be brought to punishment. 
 And if people endeavour to effect an object by tumult and disorder, 
 they are guilty of a riot." — Mansfield^ C. J., ClifEord v Brandon, 2 
 Camp. 370. 
 
 1 Nichols' Biog. Anecd. Hogarth. » 8 Geo. 11. c. 13. 3 6 & 7 
 Will. IV. c. 59. « 8 Geo. II. c. 13 ; 7 Geo. III. c. 38. 
 
 s 17 Geo. III. 0. 57. <* 15 & 16 Vic. c. 12, § 14. t 8 Geo. II. 
 E. 13. 
 
CH. XI.] COPYRIGHT IN EKGRAYINaS. 313 
 
 statute of 1777 was general in its terms, and prohibited 
 copying of prints in any manner whatever ; and hence 
 was held to include the copying by means of photographs.^ 
 And the size or minute accuracy of the copy, is altogether 
 immaterial.^ And to make the matter still more clear the 
 protection of the Engravings' Acts has been extended so as 
 to prohibit the multiplication of copies by lithography or 
 any other mechanical process.^ But the engraving of a 
 picture, drawing, or photograph has now become an infringe- 
 ment of the copyright in those originals.* And a person 
 borrowing photographs for a particular purpose could not 
 use those photographs for a different purpose, such as 
 engraving and publishing them.^ The act protected plates 
 which were joined witb letterpress as much as if they 
 were published separately ; and in some cases they may 
 be deemed to be part of the letterpress, and subject to the 
 copyright of such letterpress, thereby rendering the essen- 
 tials as to date, &c., unnecessary.* The owner of the copy- 
 right is entitled under these acts to maintain an action 
 against persons, who piratically publish or sell copies, 
 without having his consent signed by his own hand in 
 presence of two witnesses.'^ And from this enactment it 
 was held, that an assignment must be in writing, and 
 signed by the assignor in presence of two witnesses.* And 
 he may recover penalties and forfeited copies either by 
 action in an ordinary court, or in a summary proceeding 
 before two justices in England.' Begistration of the copy- 
 right under this class of acts was required, whether the 
 engraving was part of a book or published separately.^" 
 And the condition as to the name of owner and the exact 
 date being on the plate has been construed to be essential 
 in order to maintain an action for damages, or recover 
 penalties against a person making pirated copies. And the 
 
 1 Gambart v Ball, 14 C. B., N. S. 306 ; Graves v Ashford, L. E., 2 
 C. P. 421. 2 Moore v Clarke, 9 M. & W. 692. ' 15 vic. c. 12, 
 § 14. * 25 & 26 Vie. 0. 68. ^ Mayall v Higbey, 1 H. & C. 148. 
 
 6 Bogue V Houlston, 5 De G. and Sm. 276. ? 17 Geo. III., c. 57 ; 
 5 & 6 Vic. 99, § 2. * See analogous reasoning, ante p. 279, as 
 
 to mode of assigning copyright of books. 
 
 9 25 & 26 Vic. c. 68, § 8. By the first act, 8 Geo. II., c. 13, the 
 proprietor was bound to damask or destroy the forfeited copies ; now 
 he can do what he pleases with these. 
 
 1" Stannard v Lee, L. E., 6 Ch. 348. 
 
314 LIBERTY OF PRESS AND SPEECH. [ch. xi., 
 
 name of the firm is sufficient without the names of the 
 partners.^ It was not necessary that the person selling or 
 printing, should do so with actual knowledge, that the 
 subject was engraved piratically ; for the statute bears this 
 construction, and in that respect imitates the Excise statutes 
 which make knowledge of the seller immaterial.^ The 
 term for which this copyright was granted was first four- 
 teen and then twenty-eight years.^ 
 
 Copyright in paintings. — Previous to the year 1862,- 
 the courts of law assumed and decided, that if a painting 
 were copied against the consent of the artist or owner, 
 there was no remedy ; and indeed Abbott, 0. J., went the 
 length of saying, that it would destroy all competition 
 in the art if anything like copyright were recognised in 
 paintings.* The legislature swept away these misconcep- 
 tions by enacting, that there shall be such copyright in the 
 authors of original paintings, drawings, and photographs, 
 and that the exclusive right of copying engravings or 
 multiplying copies of such works not sold before 1862 
 should belong to the author and his assigns for the term 
 of the natural life of such author and seven years after his 
 death.* But when a painting, drawing, or photograph is 
 sold or executed for another for a valuable consideration, 
 this copyright shall not belong to the artist unless he 
 specially reserve it by a writing signed by the customer at 
 or before the order. Nor shall the copyright or negative 
 of photograph belong to the customer, unless, at or before 
 the order, the artist by writing signed by him shall have 
 given such copyright.^ If there is no copyright in any 
 such work, then any person may copy or use it ; and even 
 if there is a copyright in the representation of a scene or 
 object, another is not precluded from representing the 
 same scene or object. '^ This right of multiplying copies 
 of paintings, drawings, or photographs is personal property, 
 and the mode of assigning it is somewhat differently 
 
 1 Bock V Lazarus, L. R., 15 Eq. 104 The word del. after the 
 name sufficiently complies with the statute as indicating the nami 
 of the proprietor, and the publisher's name is unnecessary. — Graves 
 V Ashford, 4 R., 2 C. P. 421. 
 
 2 7 Geo. III., c. 57 ; Gambart v Sumner, 5 H. & N. 5. ^ 8 Geo. 
 II., c. 13 ; 7 Geo. IIL, c. 38. * De Berenger v Wheble, 2 Stark. 5i8. 
 
 s 25 & 26 Vic. a. 68. « Ibid., § 1. ^ Ibid., § 2. 
 
CH. XI.] COPYltlGHT IN PAINTINGS. 31£ 
 
 described from that relating to books. It is assignable 
 only in writing signed by the proprietor or his agent 
 appointed for that purpose in writing.^ And hence greater 
 strictness is required in proof of this assignment than the 
 assignment as to books.^ And a licence to use or copy 
 such works requires also to be in writing signed in the 
 same way.^ Those who knowingly make copies or colour- 
 able imitations of these copyright paintings, or multiply 
 or sell the same without the proprietor's consent, commit 
 an offence and forfeit to the proprietor 10/., besides for- 
 feiture of all the pirated copies.* The statute besides 
 imposing a penalty for the piracy or sale of pirated copies 
 of paintings, drawings, and photographs, singled out 
 several specific modes of infringement, and also subjected 
 the infringer to a forfeiture to the proprietor of 101., or 
 double value, and forfeiture of all unsold copies. These 
 modes were fraudulently signing or affixing any name or: 
 initials, or knowingly selling copies so marked, or fraudu- 
 lently selling them as genuine works of the author.^ One 
 condition, however, is annexed, namely, that the names or 
 initials fraudulently made, are those of authors living, or 
 dead within twenty years.® The photograph or any other 
 copy of a painting or drawing, made directly or indirectly, 
 being an infringement of copyright, the sale of every 
 copy in violation of the act is a separate offence, and a 
 separate penalty is recoverable for each.^ To sign or affix 
 fraudulently a mark indicating the painter's name is an 
 offence of cheating at common law irrespective of any 
 statute.* And it is now a misdemeanour to fraudulently 
 affix these artist's marks.^ 
 
 The remedies given by the Act cannot be enforced until 
 the name and place of abode of the owner and date of the 
 assignment, if any, and names of parties are entered in the 
 register at Stationers' Hall.'" And the first , assignment 
 need not be entered in the register.^i A short detailed 
 description of the work must also be included in the 
 register sufficient to enable a person having the picture 
 
 1 25 & 26 Vic. c. 68, § 3. ^ strahan v Graham, 16 L. T., N. S. 
 87. 3 25 & 26 Vic. c. 68, § 3. * Ibid. § 6. '= Ibid. § 7. 
 
 6 Ibid. 7 Exp. Beal, L. R., 3 Q. B. 387. ^ r. ^ oioss, 
 
 27 L. J, M. 0. 54. 9 25 & 26 Vic. c. 88. " Ibid. §§ 4, 5. 
 
 " Re Graves, L. R., 4 Q. B. 772. 
 
316 LIBERTY OF PRESS AND SPEECH. fcH. xi: 
 
 before him to identify or ear-mark it, and judge if it is 
 registered.^ And the register' may be corrected at the 
 instance of a person really aggrieved.^ Those who violate 
 the copyright incur penalties and forfeitures which may 
 be enforced by action and suit, or in a summary way.^ The 
 summary remedy which may be prosecuted before justices 
 is an alternative remedy specially suited to cases, which 
 are often of so small importance, that promptitude is the 
 chief consideration. The justices have power to declare 
 the penalty as well as the forfeiture.* The penalty so 
 incurred is not in the nature of a debt which may be dis-. 
 charged by a bankrupt's certificate, but in the nature of 
 a criminal punishment.^ A concurrent remedy is also 
 allowed of injunction, if it seem just to the court, that 
 the further publication of copies be stopped.^ And in 
 case of imported pirated copies, these may be seized by 
 a Customs House officer and detained to abide the result 
 of proceedings.' 
 
 Copyright in sculptures. — A species of copyright in 
 original sculptures of men, animals, or combined subjects, 
 was conferred in 1798, which gave the maker a sole right 
 and property therein for fourteen years from the first pub- 
 lication, and if at the end of such term the maker was 
 alive and had not parted with his right, then for fourteen 
 years more, provided he had put his name and date 
 thereon before publication.* When the Act of 1814 
 assigned a definite term of copyright in sculpture, it also 
 expressly enabled the owner of the copyright to sue for 
 damages those who infringed it.^ When the sculpture 
 has been registered under the Designs Act, and each copy 
 marked " registered," then a penalty is also incurred of 
 bl. to 30Z., which the proprietor may recover from the 
 defendant, and this sum may be recovered either by action 
 of debt or by summary proceeding before justices of the 
 peacc^" The right to copyright in sculpture must be 
 assigned by deed signed by the proprietor in presence of 
 
 ' Exp. Beal, L. R., 3 Q. B. 387. » Re Graves, L. R., 4 Q. B. 
 
 724. 3 Ibid. §§ 8, 9. * 25 & 26 Vic. c. 68, § 8. ' Exp. 
 
 Graves, L. R., 3 Ch. Ap. 642. 6 26 & 26 Vie. c. 68, 8 9 ; Mayall v 
 Higbey, 1 H. & C. 148. ^ 25 & 26 Vic. c. 68, § 10.' s 3g (jeo. 
 III., c. 71, repealed by 54 Geo. III., c. 56. 9 54 Geo. III., o. 56, 8 3. 
 
 w 13 & 14 Vic. c. 104, § 7 ; 5 & 6 Vic. c. 100, § 8. 
 
en. XI.] COPYEIGHT IN DESIGNS. ' ' 317 
 
 two "witnesses,^ though most other copyrights may be 
 assigned by writing not under seal. 
 
 Copyright in designs for ornament and of utility. 
 — There are two kinds of copyright in designs, one where . 
 the designs are for ornament, and the other where the 
 designs are for utility. But the utility must be combined 
 in some way with 'the shape and configuration of the 
 parts. The copyright in designs for ornaments is founded 
 on statutes, which define such designs as including every 
 design applicable to the ornamenting of any article of 
 manufacture, or of any substance artificial or natural, or 
 partly artificial and partly natural, and whether such 
 design be so applicable for the pattern or for the shape or 
 configuration or for the ornament thereof, or for any two 
 or more of such purposes, and by whateve^r means such 
 design may be so applicable.^ The proprietor of the 
 •design may be either the author or the employer, if a 
 good and valuable consideration shall have been given by 
 such employer to the author.^ And while he is proprietor, 
 he can obtain an injunction not only against the sale, but 
 the manufacture of articles containing this design.* These 
 statutes contain a variety of detailed provisions as to the 
 mode of transfer and registration, and the remedies for 
 piracy. The period for which the copyright is conferred 
 depends on the fabric or material to which the design is 
 applied, and extends from nine months to five years from 
 the date of registry, subject to extension of the period. ^ 
 
 Copyright has also been conferred on the author of 
 designs of utility, so far as such designs are for the shape 
 or configuration of an article of manufacture, for a period 
 of three years.^ 
 
 1 54 Geo. III. c . 5,6, § 4. ^ 5 & g Vic. c. 100, § 3 ;, 6 & 7 Vic. c. 65 ; 
 13 & 14 Vic. c. 104 ; 21 & 22 Vic. c. 70 ; 24 & 25 Vic. c. 73 ; 38 & .3,9 
 Vic. c. 93. ' 5 & 6 Vic. c. 100, § 5 ; 6 & 7 Vic. c. 65 ; 13 & 14 Vic. c. 
 104, § 16 ; 24 & 25 Vic. c. 73 ; 38 & 39 Vic. c. 93. < McCrae v Holds- 
 worth, 2 De G. & S. 496. 5 5 & g Vic. c. 100, § 3 ; 13 & 14 
 Vic. c. 104, § 9. 6 6 & 7 Vic. c. 65 ; 13 & 14 Vic. c . 104 ; 21 & 22 
 Vic. c. 70 ; 24 & 25 Vic. c. 73. 
 
318 LIBERTY OP PRESS AND SPEECH. [ch. xii. 
 
 CHAPTER XII. 
 
 PATENT EIGHT AND TflADE MARK. 
 
 FaUnt right generally. — Patent right is the exclnsive 
 right to make and use for sale articles of a material form 
 made in a certain way, or use certain processes connected 
 with such articles, and which the patentee by his own inge- 
 nuity invented. And though a patent has long assumed the 
 form of a gift and a licence from the Crown, as if it con- 
 ferred a privilege which he had no right to, it is obvious that 
 as in the cognate case of copyright no man ever could at 
 any stage of society be indebted to the sovereign, or to the 
 legislature, for the faculties which have enabled him to 
 mature his invention. And yet he cannot reap the natural 
 reward and derive the reasonable profit of his own ingenuity 
 without undergoing the forms of accepting a gift of what is 
 peculiarly his own, and submitting to conditions accom- 
 panying that gift imposed on him by strangers, who in no 
 degree helped him in any part of his discovery. In this 
 last particular he is in a worse case than authors of books 
 asserting their copyright. The ancients in all that regards 
 this chapter of the law had not arrived at that stage of 
 civilization, which brings out prominently the merits of 
 inventions and which singles out such a vocation for pro- 
 tection in any shape. Their views at best were distorted 
 by ignorance and superstition. All our knowledge and 
 experience of this subject come from the last two or three 
 centuries.'^ 
 
 1 A cook or confectioner was among the ancient Athenians en- 
 titled to a kind of patent right or monopoly for a year, when he 
 invented an excellent dish. — Athein., b. 12, o. 20. Tiberius, when an 
 ingenious man one day brought him as a novelty a cup of flexible 
 
CH. XII.] PATENT EIGHT AND COPYRIGHT. 319 
 
 Distinction between copyright and patent right. -^ 
 The holder of a patent has often been unjustly confounded 
 with the grantee of a monopoly, but the distinction; is 
 apparent. A monopolist is he who has the exclusive 
 right of buying and selling, or making a particular article 
 ■which any other person might previously buy or sell or 
 make;! whereas a patent springs from the secret thought 
 of the inventor in precisely the same manner as a book 
 springs from the secret thought of the author. Each can 
 publish and communicate it or not, as he thinks fit. No 
 l^ower can compel him to do so. And up to a certain 
 stage the inventor and the author stand in precisely the 
 same position. But such was the confusion of thought 
 that surrounded this and other subjects, that when the 
 Statute of Monopolies was framed in 1624, declaring all 
 monopolies thenceforth illegal, the legislature of that day 
 deemed it prudent if not necessary to make an exception 
 in favour of patentees for a period of twenty-one, years. 
 The Statute of Mbhopolies under the disguise of a gift to 
 inventors really took away from them the main value of 
 that gift and cut it down to a mere transient benefit of a 
 few years duration. The legislature was however careful 
 to confine the substance of this gift to " the true inventor 
 of such manufactures which others did not then use," and 
 even then there was a further prudent qualification, that the 
 manufacture should not be mischievous to the State, which 
 is a somewhat obscure qualification, yet is one which is 
 common to all departments of law and every species of 
 property and valuable interest. 
 
 Though the industry and ingenuity of man may affect 
 all kinds of matter and extend to mental and intellectual 
 subjects, yet the objects and scope of patents have always 
 been contradistinguished from those of mere pictures and 
 words and musical sounds. Patent right always con- 
 templates some tangible and material adaptation or 
 arrangement which can be handled, and weighed, and 
 
 glass, took care to. cut off his head, as such an invention was certain 
 to depreciate the precious metals. — Plin. Hist. Nat. 3l5, 66. The 
 Emperor Charles V. acted more liberally, for he visited the grave of 
 the man, who invented the art of curing herrings, and erected a 
 magnificent tomb. — Laing's Norway, 370. 
 1 n^to ?t Tnst 181 
 
320 _ LIBERTY OF PRESS AND SPEECH. [ch. xii. 
 
 measured : so that though artistic and intellectual results 
 are classed under the generic title of copyright, the 
 analogous right in reference to material appliances is 
 called by the name of' patent right. The laws of matter 
 are the field of research for the patentee, and cover a vast 
 and illimitable range for the curiosity of man; and the 
 results arrived at by thought and ingenuity in analysing 
 and combining matter and force in endless varieties, and 
 which enable mankind to acquire new comforts and enjoy- 
 ments at a constantly decreasing expenditure of labour, 
 give rise to this species of property. No limit can be 
 assigned to the power of man thus to turn common 
 materials into unforeseen uses and create fresh subjects 
 of property. It has already been seen, that in early times 
 the Crown assumed power to grant letters ^patent to 
 printers, and granted privileges in the nature of exclusive 
 rights relating to different subjects. It also assumed 
 to grant privileges to individuals to trade in certain 
 articles, and thereby prohibit others from interfering. And 
 whether this right ever was legal or not, the legislature 
 assumed it to be so ; and having the power to declare 
 anything legal it recognised this power as an exception to 
 the abolition of all monopolies in the time of James I.i 
 
 Though copyright and patentright agree in the funda- 
 mental basis, namely, that of protecting a man in his work 
 and securing to him the natural fruit of that work, they 
 differ in some essential points. In the case of books, no 
 
 ^ The 21 Jas. 1 c. 3, § 6, declared all monopolies to be void, " except 
 patents and grants of privilege for the term of fourteen years or 
 under, hereafter to be made of the sole working or making of any 
 manner of new manufactures within this realm to the true and first 
 inventor and inventors of such manufactures which others at the 
 time of making such letters patent and grants shall not use, so as 
 also they be not contrarj' to law nor michievous to the State by 
 raising prices of commodities at home, or hurt of trade, or generally 
 inconvenient, the said fourteen years to be accounted from the date 
 of the first letters patent or grant of such privilege." 
 
 It has been held, that the essential virtue of the patent is not 
 ascribed to the statute, but is a gift from the Crown as part of its 
 prerogative. And though monopolies were held to be illegal at 
 common law as well as declared by statute so to be, yet there was a 
 power reserved to the Crown to grant some monopolies, provided 
 they could be shown to be productive of advantage to the com- 
 munity.— Feather D R. 6 B. & S. 285. 
 
CH. xTi.J' EAELY NOTIONS OF PATENT RIGHT. 321 
 
 two authors could express their thoughts iu the same order 
 of words, which is the subject-matter of the property 
 called copyright; and therefore the product of one is 
 always ear-marked and distinguishable from that of another. 
 And as all men may write books on one and the same 
 subject, there can be no ground for interfering with each 
 other's work, at least directly, and it is enough to prevent 
 each from stealing from his neighbour's heap. With re- 
 gard to patentable articles, it is found that the patent in- 
 cludes not only the product, but one particular way of 
 making that product ; and hence the ingenuity of work' 
 ■ men is more directly hampered by a patent than by 
 copyright, for two finished articles may be identical in 
 appearance and yet made by different processes. It is 
 the difference in the process which, unless what is called a 
 new combination is the characteristic, enables one patentee 
 to prevent and so interfere with his neighbour's industry. 
 In the making of books the product must always be 
 different, and as to the process by which it is made, no 
 court can inquire, for whether a book is the inspiration of 
 a moment or the fruit of many years' labour, nothing can 
 . turn on this part of its merit so as to interfere with others 
 trying to obtain the like inspiration and the like industry. 
 Hence patents tend to interfere more with rival tradesmen 
 making the same product by the same process ; and it is 
 difficult for inventors and for courts to know and lay down 
 rules so as to indicate when the process is or is not 
 infringed upon. Thus copyright applies to products more 
 clearly identified, and does not interfere with any other 
 rival processes for producing the same result. And hence, 
 though the legislature may have dealt unjustly in confis- 
 cating the author's copyright which in no way interferes 
 with other men's ingenuity and labour on precisely the 
 same subject and by precisely the same means, yet it is 
 less unjust towards patentees in confiscating their rights, 
 on this very account of the clashing with rival workmen 
 equally ingenious, and equally desirous of obtaining profit 
 ijy such ingenuity. 
 
 Confusion in early ideas of patent right. — Such was 
 the obscurity and confusion of ideas regarding the object, 
 ]the origin, and meaning of patents-, that judges at one 
 time took credit to themselves for being no favourers of 
 
 Y 
 
322 LIBERTY OF PRESS AND SPEECH. [ch. xii. 
 
 patents, trying with all their astuteness to discover defects 
 and defeat inventors, under the singular notion, that they 
 were thereby extirpating some heresy or removing some 
 common enemy of human progress, and putting down the 
 dragons that guard wealth and progress.^ A little reflec- 
 tion, bestowed on the subject, however, soon teaches all 
 men that a patent is only the fragment of a larger right 
 which the legislature has taken from the rightful owner 
 with the intention of benefiting the mass of manldnd, 
 who, having no ingenuity of their own and no turn for 
 thinking, are always on the watch to appropriate the fruits 
 of their neighbours' conquests without the trouble of 
 working for them. 
 
 Another misconception which haunted the minds of the 
 older judges and legislatures was this, that patents are a 
 species of contract between the inventors and the pTiblic 
 by which they exchange benefits ; the one gives a new 
 idea and a new and easier mode of attaining a desired 
 result, and the other gives the benefit of protection so as to 
 secure some pecuniary benefit for a few years to him who 
 has first conceived the new process. But this was a far- 
 
 ' LoED Kenton, C. J. , went the length of saying, that " he was not 
 one of those who greatly favoured patents, for though in many in- 
 stances the public was benefited by them, yet on striking the balance 
 upon the subject he thought that great oppression was practised on 
 inferior mechanics by those who were more opulent." — Hornblower v 
 Boulton, 8 T. R. 98. 
 
 And Paekb, B., said in 1841, that half a century ago, or even less, 
 "there seemed to have been very much a practice with both judges 
 and juries to destroy the patent right even of beneficial patents, 
 by exercising great astuteness in taking objections as to the title 
 of the patent, but more particularly as to the specification ; and 
 many valuable patent rights had been destroyed in consequence of 
 the objections so taken. But within the last ten years (before 1841) 
 courts had been not so strict in taking objections, and had en- 
 deavoured to hold a fair hand between the patentee and the public " 
 — Neilson v Hartford, 9, M. & W. 806. 
 
 And LoED Tenteedbn, C. J., in 1831, observed that "a great. deal 
 too much critical acumen had been applied to the construction of 
 patents, as if the object was to defeat and not to sustain them "— 
 Hullet V Hague, 2sa & Ad. 377. 
 
 "Every patent should be expounded favourably to the patentee. 
 But yet the obvious meaning of the language must not be violated 
 unless it is quite clear, that the patentee intended something different 
 from that which the expressions indicate." — Pollock, C. ^., Palmer « 
 Wagstaffi, 9 Exch. 501. 
 
CH. XII.] SUBJECT MATTER OF PATENT. 323' 
 
 fetched theory. The inventor, like the rest of mankind, 
 only follows his own instincts, and the bent of his nature ; 
 and his relation to his fellow-citizens is no more the form 
 of a contract than that by which each citizen can be said 
 to contract with his fellow-citizens for the protection of 
 his body and the use of his limbs. The invention and its 
 fruits are peculiarly the property of the individiial iu'- 
 ventor, and- its benefits are an inseparable part of the 
 individual man. The grant of letters patent does not create 
 a;ny contract between the crown and the patentee by which 
 the patentee gives up his invention in consideration of the 
 monopoly, but it is simply an exercise of the royal prero- 
 gative ; ^ at least according to the rule of construction of 
 crown grants nothing is deemed to be given away by the 
 crown which is not expressly so stated. The crown may 
 for this reason use a patented invention without any assent 
 of or remuneration to the patentee. The use therefore 
 by the crown is no infringement ; nevertheless this does 
 not protect any contractors who supply the crown with- 
 another's patented invention.^ 
 
 Defivdtion of subject-Matter of patent. — One of the 
 prominent difficulties attending the development of the 
 patent law' was that of defining the- subject-matter of a 
 patent, go as to distinguish it from many novelties which 
 are not patentable. There was nothing definite in the 
 Statute of Monopolies, which merely alluded to "new 
 manufactures" as being the description of things, as to 
 which there may be a first and true inventor and which 
 others did not at the time use. Hence the courts began 
 of necessity to define and create distinctions and subdi- 
 visions, in order to turn into certainty the loose and 
 indefinite notions' supposed to be involved in these meagre 
 words of description. They began to consider what the 
 legislature' must have meant by a new manufacture, and 
 what was meant by others using the same manufacture.^ 
 
 1 Feather d B., 6 B. & S. 285. « Feather i) E., 6 B. & S. 257 ; 
 
 Dixon V London Small Arms, L. R., 10 Q. B. 130. 
 
 '■ " Coke discoursed largely, and sometimes not quite intelligibly, on 
 monopolies, in his Chapter on monopolies. — 3 lnst.,\%l. But he 
 dealt Very much in generals, and said little or nothing of patent 
 rights as opposed to monopolies."— .Ej/J-e, G. J., Boulton « Bull, 2 
 H. Bl, 492, 
 
 Y 2 
 
324 LIBERTY OF PEESS AND SPEECF^ [oh. xir. 
 
 Patent implies something corporeal and material.— 
 One of the early distinctions made in giving precision to 
 the patent law was to decide, that a patent could not include 
 mere abstract ideas except these took a material and pal- 
 pable concrete form. No merely philosophical or abstract 
 , principle, it was said, could answer to the word " manu- 
 facture " ; something of a corporeal and substantial nature, 
 something that can be made by man from the matters 
 subjected to his art and skill, or at least some new mode 
 of employing practically his art and skill, is requisite to 
 satisfy that word.' One cannot patent a mere rule in 
 mechanics, or the rule or law of falling bodies, and yet 
 these rules may be applied in a new way to attain results 
 hitherto unattainable, or not so easily attainable. And 
 the court in 1795 held, that the subject-matter of the patent 
 must be a vendible commodity, otherwise it cannot be in- 
 cluded under the description of manufacture. The term 
 manufacture must preclude all nice refinements.^ At one 
 time it was ?aid, that a new manufacture must mean some- 
 thing " made by the hand of man ;" ^ and that it also in- 
 cluded the practice or the manner of making or producing 
 a result.* For a manufacture means both the machine 
 when completed and the mode of constructing it.^ Hence if 
 the specification of a patent do not point out the mode by 
 which a patented process is to be performed so as to ac- 
 complish the object in view, it will be a statement of 
 principle only, and the patent will be invalid.* 
 
 Hence it is well settled, that a patent includes the process 
 of making an article as distinguished from the article when 
 made.^ And whenever a result produced by a combination 
 is either a new article, or a better article, or a cheaper 
 article to the public, than that prodiiced before by the old 
 method, such combination is a new manufacture and capable 
 of a patent.^ And yet the labour of thought or experi- 
 ments, and the expenditure of money, are not the essential 
 grounds of consideration, on which the question whether 
 
 -' E. V Wheeler, 2 B. & Aid. 349. » Boulton v Bull, 2 H. Bl. 
 
 463. 3 Homblower v Boulton, 8 T. E. 99. " Boulton v Bull, 2 
 H. Bl. 492. 5 Parhe, B, Morgan v Seaward, 2 M. & W. 544 ; 
 
 L. Westhwy, Ealston v Smith, 11 H. L. C. 223. 6 Bovill v Key- 
 
 worth, 7 B. & B. 725 ; Hills v London Gas Co., 5 H. & N. 312. 
 
 7 Neil son v Harford, 8 M. & W. 806. 8 Crane « Price, 4 M 
 
 & Gr. 580 ; 1 Webst. P.O., 375 ; Murray v Clayton, L. E. 7 Ch. 577. 
 
CH. XII.] 'NOVELTY IN PATENTS. 325 
 
 the invention is or is not the suhject-matter of a patent 
 ought to depend. For if the invention be new and useful 
 to the public, it is not material whether it is the result 
 of long experiments and profound research, or rather of 
 some sudden and lucky thought, or mere accidental dis- 
 covery .^ And yet the invention of one set of means cannot 
 be said to interfere with the invention of another any more 
 than one can say originally, that there ought not to be 
 patents granted for the invention of distinct means to an 
 end. The discovery of a particular road to attain a parti- 
 cular end does not at all interfere with the discovery of 
 another road to attain that end.^ Hence also it is conceded, 
 that a patent may be granted for an improvement of a 
 machine which is already patented. In such a case the 
 value of the second patent to the patentee necessarily turns 
 on the question, whether the old patent can be bought up 
 before it expires, or at least the new patent will come into 
 force the moment the old patent shall expire.* Although 
 one man has obtained a patent for a given object, there are 
 ' many modes still open for other men of ingenuity to ob- 
 tain a patent for the same object. There may be many 
 roads leading to the same place. If a man has by dint of 
 his own genius and discovery after a patent has been ob- 
 tained been able to give to the public without reference to 
 the former one a new and superior mode of arriving..at the 
 same end, there can be no objection to his taking out a 
 patent for that purpose.* When the process refers to a 
 machine which is altered, then further distinctions must be 
 made in order to show that substantially the same thing 
 was not in use before, and if the alteration is an improve- 
 ment, whether it is a material improvement* This latter 
 question is, however, one for a jury.* 
 
 Novelty as an element of patent. — Much of the uncer- 
 tainty and litigation attending patents turns on the difli- 
 culty of ascertaining whether the thing sought to be patented 
 has sufificient novelty, or shows any inventive skill, for the 
 statute speaks of " new manufactures." As to the history 
 
 1 Ibid. ^ L. Westbury, L. C, Curtis v Piatt, 11 L. T. N. S. 245. 
 
 3 Crane v Price, Webst. P. C, 33.S. « Per Tindal, C. J., 
 
 Walton V Potter, 1 Webst. P. C. 590 ; Wallington v Dale, 7 Exch. 
 688. * Brunton v Hawkes, 4 B. & Aid. 540. « Losh v Hague, 
 Webst. P. C. 205., 
 
.■326 LIBEETY OP PRESS ANP SPEECH, '[m. xii. 
 
 of the invention the courts cannot ini^uire ; for what is dis- 
 ,covered by one mind in a slow and tentative way after years 
 of experiment, may in another mind be the result of a 
 sudden happy thought. In one case immense patience, 
 .time, and money may have been expended ; in the other 
 case scarcely a thought may have been given. Yet the law 
 was not made to reward mankind, and hence nothing can 
 ;tijirn on the merely meritorious history of iiie discovery.-'- 
 But though the mere meritoriousness of the invention cannot 
 be taken into account as a reason for granting a patent, the 
 utility is often a key to the novelty. Some variations, 
 though novel, end in nothing, lead to nothing, and are the 
 mere offspring of foolishness-; but if the variation makes a 
 thing cheaper, this is a good test of utility and of vendi- 
 bility, and may well be presumed to be the result of a ne^ 
 idea, though it is not necessarily conclusive.-^ This led 
 Buller, J., to say, that if anything is material and new 
 which is an improvement of the trade, then it will support 
 a patent,^ Sometimes a patent is taken out for applying 
 to a new subject some process already used in relation to 
 ■another subjeet'-matter. If one man invents a new mode 
 of looking at the moon, somebody else cannot take out a 
 .patent for using the same mode to look at the sun, nor 
 fpr any mere application of it to a different purpose. If a 
 man were to take out a patent for a telescope to be used 
 to make pbservations on land, no one could say he would 
 take out another patent for that telescope to be used for 
 making observations on the sea.* Hence a patent, for 
 example, is void for applying the same finishing process to 
 yarns of wool which had formerly been used to yarns of 
 •cotton and linen ;^ and so for making petticoat hoops of 
 steel where a patent existed for making them of 'whalebone,'' 
 
 J Crane v Price, Webst. P. C. 411 ; 4 M. & Gr. 580. One test of 
 novelty Ijas .been stated thus — '^ whev. the product -which is the result 
 of the apparatus, for which an inventor claims letters patent, is 
 effectively obtained by means of the new apparatus, whereas it had 
 never before toeen jeffectively obtained by any of the separate por- 
 tions of the apparatus, which have been combined into one valuable 
 whole."— Gannington v Nuttall, jL. 11., 6 B. L. C, 216. 
 
 2 Crane V Price, 4 M. & Gr. 680. » E. v Arkwright, Webst. 
 
 P. C. 71. ■» PoUoek, a B., Bush v Fox, Macror. P. 0. 164; 5 
 
 TH. h. C. 707, 5 Brook v Aston,_8 E.'& B. 478 ; 28 t. J. ,Q. B. 175. 
 
 6 Thompson v Jamies, 32 Beav.' 570.' 
 
OH. XII.] PEIOE irSE OF PATENT. 327 
 
 Utility as an ingredient of patent.-^Vtility is also an 
 essential feature of a valid patent. This is said to be be- 
 cause a monopoly necessarily implies utility in the article 
 as a considei-ation.^ It is true that judges have sometimes 
 observed that there is ' nothing in the statute necessarily 
 requiring this characteristic.^ And it may be doubted 
 whether the question of utility is anything more than a 
 compendious mode introduced in comparatively modern 
 times of deciding whether the patent be used within the 
 Statute of Monopolies. Yet a monopoly is described as 
 " mischievous to the state, to the hurt of trade, or gene- 
 rally inconvenient," and hence any exceptions to that 
 statute, such as patented articles are, must have the con- 
 trary characteristic and be at least useful.^ But though 
 utility is one ingredient of a patent, it is not every useful 
 discovery that can be made the subject of a patent, for it 
 must be shown that the discovery cam be brought within 
 a fair extension of the words " new manufacture." * 
 
 Prior publication or user of patent. — One of the con- 
 ditions of patent Tight described by the Statute of Mono^ 
 polios is, that the manufacture must not have been in use 
 ■befoxe ; and the question comes to be, what was the extent 
 and limit of this use, and how far it must be a public use, 
 and- whether it meant the use only in England or anywhere 
 else. With regard to the nature of the prior use the 
 courts have laid down the rule, that this meant a pxiblic and 
 notorious use in contradistinction to a private or clandes- 
 tine use, or mere experiments which have not ended con- 
 clusively in settling tiie character of the invention as a 
 thing that woidld answer.^ Though the words in the 
 statute are " which others did not then use," the officers of 
 the Crown at an early period took on themselves to insert 
 in the letters patent the words " public use," and hence it 
 came to be settled, that the kind of use intended by the 
 statute was of this public and notorious kind. Hence if 
 uhe inventor had merely used it in his own factory among 
 
 1 Ashurst, J., Turner » Winter, 1 T. R. 605. ^ Parhe, J., Lewis 
 
 V Marling, 10 B. & C. 28. =* Morgan v Seaward, 2 M. & W. 562. 
 * L. Cranmorth, Ralston v Smith, 11 H. L. G. 233. ^ Carpenter 
 
 V Smith, 1 Webst. P. C. 540 ; 9 M. & W. 300 ; Stead if Williams, 
 2 Webst. P. C. 126 ; Jones » Pearee, 1 Wcbst P. C. 122. 
 
328 LIBEETY DP PEESS AND SPEECH. [ch. xii. 
 
 his own workpeople, this was not a publication.^ And 
 yet on the other hand it is not necessary, in order to 
 establish the prior public use, to show that the article had 
 been manufactured for sale f nor that it was ever jised in 
 practice, if the whole process was described in a book pub- 
 lished or sold in England long before;' nor that it was 
 actually sold to any one person, if it was offered to be sold.* 
 And this construction of the statute was considerate to- 
 wards inventors, for it is well known, that the same inven- 
 tion might occur to two or more persons about the same 
 time ; and if one does not think fit to turn it to the greatest 
 advantage, there is no reason why another should be de- 
 barred from doing so. Where the evidence of prior publi- 
 cation depends on some previous specification for another 
 patent, then if in the latter a barren general description 
 only is found probably containing some suggested informa- 
 tion or involving some speculative theory, it will not avoid, 
 for want of novelty, a subsequent specification or invention 
 which involves a practical truth productive of beneficial 
 results, unless the antecedent publication involved the 
 same amount of practical and useful information.^ And 
 for a like reason, when an invention once known has be- 
 come a lost art and all living trace of its use and method 
 has disappeared, there is no reason why this mere circum- 
 stance should disentitle a fresh inventor to turn his dis- 
 covery to profit as a patent.* The " use by others " referred 
 to in the Statute of Monopolies has been construed to mean 
 a use in the United Kingdom, for what may have taken 
 place in foreign countries is not regarded. Hence it is, 
 that a person may in England derive his knowledge of an 
 invention entirely from a person living abroad, and yet the 
 patent will be valid. There is nothing to prevent an alien 
 friend, if the Crown think proper, from receiving such a 
 grant either in his own name or in the name of another in 
 trust for him.^ And though an article may be in common 
 use in foreign countries but not known In England, who- 
 
 1 Betts V Menziee, 1 E. & E. 990 ; 11 H. L. C. 654. = Betts v 
 
 Neilson, L. R., 3 Ch. 429. 3 Ibid. ; Househill Co. v Neilson, 
 
 1 Webst. P. C. 718; Stead v Williams, 8 Soott, N. P., 472 ; Lanff 
 V Gisborne, 31 Beav. 135. » Oxley v Holden, 8 C. B., N. S. 666. 
 
 6 Betta v Menziee, 10 H. L. C. 117. 6 See Househill Co. v 
 
 Neilson, 1 Webst. P. C. 717. ' Beard v Egerton, 3 C. B. 97. 
 
CH. XII.] TIRST INVENTOR OF PATENT. 329 
 
 ■ever chooses first to patent it here will be deemed, in the 
 eye of the law, the first inventor, and rightfully entitled to 
 all the profits, though he himself was neither the inventor 
 nor the assignee of the inventor.^ 
 
 Defence that patentee is not first inventor. — In like 
 manner, when the first invention is disputed by proof of 
 prior publication by thii'd parties, the test of this being a 
 defence is, whether the prior publication contained a mere 
 speculative account, or had been reduced to a practical 
 shape, and productive of beneficial effects.^ And, more- 
 over, a mere experiment, though successful, will not be 
 deemed equivalent to a publication of a practical in- 
 vention.' As the applicant for a patent must not only 
 be the first and true inventor, but others must not have 
 used it before that time, it has been laid down as a corol- 
 lary, that he who uses machinery, and leaves it open to 
 public inspection for months before applying fOr letters 
 patent, has lost his right, even thoijgh no other person may 
 have yet actually used it, for he is deemed to have dedi- 
 cated it to the public* It has been said that if an in- 
 ventor sell his machines, but keeping the secret to himself, 
 and when it is likely to be discovered by another, take out 
 a patent, this would be unjust, because it would prnctically 
 give him a monopoly for a much longer period than four- 
 teen years. And a single sale, as an article of com- 
 merce, to any one who chose to buy, has been deemed a 
 commencement of such public user, so as to disqualify the 
 inventor from getting a patent.® Yet a mere experimental 
 use for private purposes, under an injunction of secrecy, 
 does not amount to a public user.* And mere delay in 
 taking out the patent if there has been no public use or 
 sale of the thing does no harm to any one, and is no bar to 
 the letters patent.' 
 
 Patent including several distinct things. — There is no 
 rule that a patent must be confined to one thing at a time, 
 for it is impossible to foresee how far a complex machine 
 may be capable of being separated, and its limbs and 
 
 » Chappell V Purday, 14 M. & W. SI 8. « Betts v Menzies, 
 
 10 H. L. C. 117. • 3 Re Newall, 4 0. B. , N. S. 269. " Re Adamson's 
 Patent, 6 De G. M. & G-. 420. •' Morgan « Seaward, 1 Webst. 
 
 P. C. 189 ; 2 M. & W. 559. 6 Morgan v Seaward, 1 Webst. P. 0. 
 189. 7 Bentley v Fleming, 1 0. & K. 587. 
 
330 LIBERTY OP PEESS AND SPEECH. ![ch. xiii. 
 
 members of acquiring a distinct aud independent value. 
 It is enough that the combination of several things, leach in 
 itself common and well known, has achieved a new result 
 both useful and vendible. In such cases it is said that it 
 is the combination that is the patentable subject.* 
 
 Patent for a joint invention. — There may he questions 
 as to the share of two or more in the originality of an 
 invention, so as to render it difficult to prove, that the 
 patentee was the sole or true inventor. Sometimes an 
 employer uses a workman's ingenuity, and takes an undue 
 advantage of it in appropriating the merit to himself, and 
 securing the fruits ; and sometimes this auxiliary work is 
 over estimated. This point is often made matter of defence 
 to show, that others did at the time use the thing which 
 was alleged to be invented, and so that the title of the 
 patentee is defective. ^ In such cases the crown uses its 
 discretion as to the proper person to whom the letters 
 patent should be given.^ He who really invents may lack 
 the mechanical skill to achieve complete success, or he 
 may afterwards improve his invention by the aid of such 
 skill ; and yet notwithstanding this help, he may be the 
 sole true inventor. Much discrimination in' the relative 
 situation and the relative importance of the work done is 
 required in order to estimate the true bearipg of this kind 
 of assistance.* 
 
 Patent for a principle or process. — It is sometimes 
 said there can be no patent taken out for a mere principle. 
 Nevertheless, if that principle is new in its application, 
 and is embodied in a concrete example, and so connected 
 with corporeal substances as to produce practical effects in 
 any art or trade, and so as to be individualised and ear- 
 marked, there is no harm in calling it a patented principle. 
 It is the practical example, however, that constitutes 
 the real essence of the thing patented.^ Such was the 
 instance of using heated air as a blast' for furnaces.® And 
 Uising a combination of an exhaust and a blast in cleaning 
 
 1 Cannington v Nuttall, L. E., 5 H. L. C. 205. ^ i^^^ gcott, 
 
 L. E., 6 Ch. 274. ^ ^^ Harrison, L, E., 9 Ch. 631. * Allen 
 
 V Eawson, 1 C. B. 651. * Boulton v Bull, 2 H. Bl. 463 ; Horai- 
 
 blower v Boulton, 8 T. B. 95 ; Hall v Jervis, 1 Webst. P. C. 97. 
 
 6 Neilsoji V Harford, 1 Webst. P. C. 273 ; Jupe « Pratt, 
 ibid. 146. 
 
Qn. XII.] SPECIPrcATION GP PATENT. 331 
 
 millstones at worls.^ And in like manner, if a new pro^ 
 cess is discovered, wliicli dispenses with some intermediate 
 stage or process, it becomes patentable, as where gas, 
 haying been formerly made from oil, and the oil from 
 seeds, a person invented a process for getting the gas from 
 the seeds without the intermediate process of pressing out 
 the oil,2 It is enough in such a case to describe the prin- 
 ciple and the specific process by which the principle is 
 .carried out.^ For if the principle is alone .asserted, and 
 no specitic process of acting on it is defined,, the patent 
 will usually be void for uncertainty.* 
 
 Requirements of the specification of patent-— The 
 specification describing a patent is intended to describe 
 the mode of constructing, using, or compounding the in- 
 vention mentioned in the patent. The patent cannot be 
 construed by the light of the specification, yet may bp 
 altogether invalidated by defects in the specification. la 
 ■case of dispute, it must be left as a question to a jury 
 whether a patent covers too much, or is competent, and 
 is generally sufScient, to inform a workman of average skill 
 in that line of business to act upon it.^ Yet the con- 
 struction of the specification is a question of law for the 
 j3ourt or the judge, it being left only to the jury to .ascer- 
 jtain the meanijjg of the word's and surrounding circum' 
 stances. ^ And the court will read the specification as a 
 person of ordinary understanding -yyould do^ not loosely 
 conjecturing anything, but at the same time not scanning 
 it, as if it were a special plea.'^ The function of the 
 .specification is so to describe the invention, that com- 
 petent workmen familiar with the science or industry to 
 which the subject telongs, may be enabled to construct or 
 reproduce the article patented. It js addressed to persons 
 in the pjofessioji, not to men of ignorance ; and if it is 
 understood by those whose business leads them to be con- 
 versant in such subjects, it is intelligible.^ For Lord 
 Ellenborough said, that no sort of specification would 
 
 1 Bovill V Keyworth, 7 E. & B. 724 = Booth v Kennard, 1 H. 
 & N. 627. 3 ibid. 2 H. & N. 84. * Seed ■» Higgins, 8 B. .& B. 
 773 ; 8 H. L. C. 660. ' * giU ^ Thompson, 3 Mer. 626 ; Parfces v 
 Stevens, h. E., 6 Cfa. ,36. 6 Neilson v Harford, 1 Webst. P. C. 
 
 370. 7 Bolfe, B., Sellers « J)ick;enson, 5 Exch. 326. » Arkwrigbt ' 
 V Niffhtingajej 1 Webst. P. C. ,60; Bovill v Pimm, 11 Ezch. 740; 
 Walton V Potter Webst. P. C. 585, 
 
332 LIBERTY OF PRESS AND SPEECH. [ch. xii. 
 
 probably enable a ploughman utterly ignorant of the 
 whole art to make a watch.' But this is only another 
 mode of describing the general rule, that the object is to 
 attain precision and identification of the particular article, 
 so that the public may know it is ear-marked, and how 
 much and how little is new.^ Or, as has been said, one 
 object of a specification is to define the matter, so that the 
 public may know with certainty what they may or may 
 not do without incurring the risk of an action for an in- 
 fringement.^ The generality of the patent may be made 
 precise by the specification ; but there must be no incon- 
 sistency or repugnance between them.* The patent must 
 not represent the party to be the inventor of the thing, and 
 the specification show him to be the inventor of another 
 thing ; because perhaps if he had represented himself as the 
 inventor of that other it might have been well known, that 
 the thing was of no use, or was in common use, and he 
 might not have obtained a grant as the inventor of it.^ 
 And the specification will be construed, if possible, so as 
 to be co-extensive with the new discovery." Thus, when 
 the patent was for improvements in instruments used for 
 writing and marking, and the specification described pens 
 and pencils, this was held consistent.''' And the same con- 
 sistency must exist between a provisional specification and 
 a complete specification.^ 
 
 Another maxim is, that the patentee miist distinctly 
 state, what is new and what is old.* The patent must not 
 be ambiguous, for if so it is void, being deemed a deceit 
 3)ractised on the crown.^* It must not be vague. Thus to 
 state the ingredients used in making a piU without stating 
 the proportions is a fatal uncertainty .^i And yet vagueness 
 is not to be construed literally, unless it appears that 
 the patent was purposely so expressed as to comprehend 
 inventions not yet discovered, i^ 
 
 1 Harmar v Payne, Dav. P. C. 318. " Neilson v Harford, Webst. 
 P. C. 331 ; Kay v Marshall, 1 M. & Cr. 373 ; 2 Webst. P. 0. 39. 
 
 3 Gibson V Brand, 4 Scott, N. E. S'JO. * Cook v Pearce, 8 Q. B. 
 1044. * R. V Wheeler, 2 B. & Aid. 345. <= Haworth v Hard- 
 
 castle, 1 Webst. P. C. 480. ^ E. v Mill, 10 C. B. 379. » Penn 
 
 V Bibby, L. R., 2 Ch. 132. 9 Holmes « L. & N. W. E. Co., 12 C. 
 B. 831. 1" Campion v Benyon, 3 B. & B. 5 ; Brunton v Hawkes, 
 4 B. & Aid. 541. " Linrdet v Johnson, Webst. P. C. 54. 
 
 12 Cook V Pearce, 8 Q. B. 1064. ' 
 
CH. XII.] , SPECIFICATION OP PATENT. 333 
 
 A mere nicety of grammar will not indeed be regarded, 
 if a competent workman would not be misled by it ; fo'r a 
 specification is not intended to compel a person to learn 
 who is determined to misunderstand, but to direct one 
 who is willing to understand.^ And when it is said, that 
 an error in a specification, which any workman of ordinary 
 skill and experience would perceive and correct, will not 
 vitiate a patent, it must be understood of errors which 
 appear upon the face of the specification or the drawings 
 it refers to, or which would be at once discovered and 
 corrected in following out the instructions given for any 
 process or manufacture ; and the reason is, because such 
 errors cannot possibly mislead.^ 
 
 There must also be good faith held by the patentee. It 
 is the duty of a patentee to point out in his specification 
 the plainest and most easy way of producing that for 
 which he claims a monopoly, and to make the public 
 acquainted with the mode which he himself adopted. If 
 a person, on reading the specification, would be led to sup- 
 pose a laborious process necessary to the production, the 
 public are misled.^ Por in a specification there must be 
 the utmost good faith. Thus, to tell the public that " the 
 finest and purest chemical white lead "■ was necessary, and 
 it turned out, the best white lead that could be obtained in 
 the shops in London would not do, but that a purer white 
 lead, prepared only on the continent, would be required, 
 then this last circumstance ought to be stated.* 
 
 The specification, being often said to be the price, which 
 the party who obtains the patent pays for it, it would 
 be a bad bargain on the part of the public, if he were 
 allowed to clothe his discovery and his description in 
 characters so dark and so ambiguous, that no one could 
 make the article from it, when the fourteen years expired ; 
 and if he should not have paid the price for which 
 he enjoyed the exclusive privilege, but should have it 
 in his own hands still for as long a period as be chooses. 
 Therefore, it is always a proper answer, when a patent is 
 set up, to say that " you have not so described it that it 
 may be understood." ^ 
 
 1 Maule, J., Beard v Bgerton, 8 C. B. 165. ^ Westbwry, L. C., 
 
 Simpson v HoUiday, L. B,, 1 H. L. 315. ^ Savory v Price, 1 Hy. 
 
 & M. 3. * Sturtz V Be la Eue, 5 Buss. 327. * Tindal. G. J., 
 
 Walton V Potter, 1 Webst. P. C. 595 ; 3 M. & Gr. 411. 
 
334 LIBEETt' OF PRESS AND SPEECH. fcH. xii.. 
 
 Registration of patents. — 'For the convenience of the 
 public a register of patents is kept open to inspection, so 
 as to inform all who are concerned who is the inventor, 
 and if the patent has been assigned, who is the assignee.^ 
 And entries may be expunged, if fraudulently made.^ 
 When several persons' jointly obtain letters patent, there 
 is no implied contract, that no one of them shall use the 
 invention without the consent of the others, or if he does 
 that, that he shall use it for their' joint benefit.^ And there 
 is nothing now to prevent more than 12 persons having a 
 legal and beneficial interest in a patent.* In the case of 
 joint owners, there is no necessary partnership in the 
 working of the patent arising out of the mere authorship, 
 for each may work it in his own right, and neither can 
 compel the other to concur in granting licences to third 
 parties' to use it.^ Yet, if one joint owner were to sell 
 patented articles at a nominal price, and so injure the 
 other owner's right, an action for this depreciation may be 
 competent. When the owner of a patent manufactures 
 and sells the patent article in a foreign country, as well as 
 in England, the sale in one country implies a licence to 
 use it in the other. But if he has assigned his pa;tent in 
 either country, the Article cannot be sold so as to defeat 
 the rights of the assignee.® 
 
 Assignment of patent rights. — Though the inventor of 
 a patentable invention has a certain capacity to take out 
 the patent, yet before that step the species of interest in 
 the subject-matter is not assignable because it does not 
 exist. It is true he may covenant to take out the patent 
 or to assign the patent when completed. When the patent 
 is obtained and exists, it is treated much the same as a 
 chattel, and on bankruptcy it passes to the creditor's 
 trustee.' And it is the same where the patent was takenj 
 out after an act of bankruptcy, and before the bankrupt 
 has obtained his discharge.^ On the sale of a patent there 
 is no implied warranty, that the invention was new or was 
 
 1 15 & 16 Vic. c. 83, §§ 34, 35. ^ Morey's Patent, 25 Beav. 
 
 581 ; Horsley's Patent, L. R., 8 Eq. 475. ' Mathers v Green, 
 
 L. R., 1 Ch. 29. ■■ 15 & 16 Vic. c. 83, § 36. 5 glgie v Webster, 
 5 M. & W. 518 ; Ridgway v Phillips, 1 C. M. & R. 415. 6 Betts 
 
 Willraot, L. R., 6 Ch. 239. ? Hesae v Stevenson, 3 B. & P 665 
 
 8 Ibid. 
 
CH. XII.] PATENTEE' AND HIS LICENSEE. 335 
 
 a manufacture within the statute of James I., but merely 
 that Her Majesty had granted the letters patent to the 
 seller ^hich he proposed to assign ;i for the. purchaser has 
 the same means of ascertaining the validity of the patent 
 as the vendor. 
 
 Distinction between assignment and licence to use: — 
 The distinction between an assignment and a licence is 
 difficult to maintain when no place is defined for the licence 
 to operate ; the two rights then practically coincide.^ And 
 whether a licence is to be construed as a personal privilege 
 in the licensee, or is assignable, must depend on the word's 
 of the grant. There is no particular form for passing a 
 licence, but licensing a person and his assigns is licensing 
 him and all whom he may license. A licence is not really 
 assignable, and it acts only as an estoppel between the 
 parties. It is an excuse for an infringement.* And a 
 verbal agreement to pay a royalty on all machines supplied 
 to D, for his own use or the use of others, was construed' 
 as a valid licence.* 
 
 Relation between patentee and Ms licensee.-— When a 
 licence has been granted for a rent, and the licensee dis- 
 covers that the patent is invalid, it depends on the nature 
 of the contract between them, whether the licensee is 
 estopped from denying the title of the patentee ; for if not 
 he may set up the invalidity of title as an answer to an 
 action for rent, or for the infringement, or for an injunc- 
 tion.^ Sometimes, after a licensee has paid a rent, he is 
 not estopped from setting up the invalidity of the patent 
 as an answer to the action, or to further demands if the 
 consideration had wholly failed." If the licence is by deed, 
 then if the licensee uses the patent, he cannot set up the 
 defence that the invention is worthless, or of no possible 
 utility, and was not- new ; and that the patentee was not 
 the first inventor;^ And the relation between patentee 
 and licensee in the matter of the latter being permitted to 
 
 1 Smith V Neale, 2 C. B., N. S. 567. ' Protheroe « May, 1 Web'st. 
 P. C. 415 ; 5 M. & W. 675. * Bower v Hodges, 13 0. B. 765 ; 
 
 22 L. J., C. P. 198. ■» Crosaley v Dixon, 10 H. L. C. 293. 
 
 5 Bowman v Taylor, 2 A. & E. 278 ; Wanviclc v Hooper, 8 Mac. 
 & G. 60 ; Jones v Lees; 1 H. & N. 189. « Clianter v Leese, 5 M. 
 
 & W. 698. ^' Smith v Scott, 6 0. B., N. S. 771 ; Noton v^ Brooks^ 
 7H. &N. 499. 
 
336 LIBBETY OF PEESS AND SPEECH. [ch. xii. 
 
 deny the former's title has been held to be strictly analogous 
 to the relation between landlord and tenant.^ 
 
 The doctrine, that a patentee may abandon his patent is 
 recognised on the same principles as govern other property. 
 If he stand by and allow third parties to use his property 
 as if it were their own, and thereby mislead them into ex- 
 pense which he might have prevented at any moment, this 
 is deemed a reason for a court not assisting him by an in- 
 junction.8 And where a patentee granted a licence which 
 was worked several years, and the licensee paid 4251. when 
 the patent turned out to be not new, the court held that the 
 licensee could not recover this money, because the licensee 
 had the enjoyment of what he stipulated for. He was like 
 the man who leases land and pays rent, and is then evicted, 
 and who cannot recover back his rent while he had taken 
 the fruits of the land.^ 
 
 Infringement of patent — The main thing secured by a 
 patent being the exclusive privilege of making the article 
 for sale, it follows, that any making of the thing without 
 such variation as amounts to a new discovery will be an 
 infringement.* Therefore if it is made for use and so as to be 
 saleable, this is an infringement ; nevertheless, if it was made 
 for mere amusement, or as a model, this being no substan- 
 tial use, the infringement is too trifling to be noticed.^ And 
 where a patent was taken for converting iron into cast steel 
 by using mixtures of cast iron with carburet of manganese, 
 and another person discovered that coal tar and black oxide 
 of manganese produced the same effect when mixed with 
 cast iron pieces, this was deemed no infringement.'' When 
 the thing patented consists in a design and the two things 
 appear to ordinary observers the same, the selling of the 
 thing will be an infringement when they are the same in sub- 
 stance though with immaterial variations.'^ And the simi- 
 larity of structure in two things fulfilling the same purpose 
 is presumptive evidence of their being made in the same way.* 
 
 ^ Warwick v Hooper, 3 Mac. & G. 60 ; Croealey v Dixon, 10 H. 
 L. C. 293. 2 Saunders v Smith, 3 M. & Or. 711. s Taylor v 
 
 Hare, 1 B. & P., N. R. 260. " Walton v Potter, 1 Webst. P. 0. 
 
 585. ^ Jones v Pearce, 1 Webst. P. C. 125 ; Higga v Goodwin, 
 
 E. B. E. 529. " Unwin v Heath, 5 H. L. C. 505. '' Walton v 
 
 Potter, 1 Webst. P. 0. 586 ; Bovill v Moore, Dav. P. G. 361, 
 
 8 Huddart v Grimshaw, 1 Webst. P. C. 85. 
 
CH. XII.] INFRINGEMENT OF PATENT. 837 
 
 The question whether one thing is a mechanical equiva- 
 lent for another is a question of fact for the decision of a 
 jury.i And the fact, that a new machine includes what is 
 contained in the old, but contains an improvement besides, 
 will not the less make it an infringement.^ Where a patent 
 is taken out for a combination of different parts without 
 expressly claiming the parts taken separately, this will be 
 deemed impliedly to include such of the several separate 
 parts as are new and material to the process.^ And where 
 a patent includes a combination of several things, one of 
 which is material but not new, this will avoid the whole 
 patent on the ground of its being a fraud on the Crown or 
 a false suggestion.* And it is an infringement to use or 
 sell or offer the article for sale in this country, though it 
 was made abroad, or where the patent did not extend.^ 
 The using of a patented article by a purchaser, who cannot 
 be supposed to know whether the person making it in- 
 fringed a patent or not cannot be construed as an infringe- 
 ment, and yet the person selling it may infringe, for it is 
 his business to know such a matter.^ Yet where a retail 
 dealer unwittingly sells articles which are an infringement 
 of the patent he cannot be sued by the patentee, if he give 
 full information as to the persons from whom he obtained 
 the articles complained of.'^ 
 
 InjvMCtion against infringement of patent. — ^Whether 
 and on what terms an injunction will be granted to prevent 
 the infringement of a patent depends on the primd facie 
 indisputability of the title, and the nature of the mischief 
 likely to be caused to the patentee and the infringer respec- 
 tively by a temporary toleration or stoppage of the sale. 
 And the court wUl not assist a patentee in this wa,y unless 
 he apply very promptly after knowledge of the infringe- 
 ment.* The rule is, that where a person has been long in 
 the enjoyment of a right undisputed and undisturbed, he 
 shall have the protection of an injunction against an 
 
 1 Morgan v Seaward, 1 Webst. P. C. 170. ^ Eleotrio Co. v 
 
 Brett, 10 C. B. 838 ; Hall v Jai-vis, 1 Webst. P. C. 100. s Lister 
 V Leather, 8 B. & B. 1004. ■* Morgan i> Seaward, 2 M. & W. 644. 
 
 s Neilson v Betts, L. R., 5 H. L. 1 ; Walton v Lavater, 8 C. B., 
 N S 162 • Oxley v Holden, Ibid. 666. « Gibson v Brand, 4 M. & 
 ^'r 179, 196. ^ Betts v Willmot, L. R., 6 Ch. 239. » Smith v 
 L. & S W. Co., Kay 408 ; Bovill v Crate, L. K., 1 Eq. 388. 
 
 Z 
 
338 LIBERTY OF PEESS AND SPEECH. [ch. xii. 
 
 invader, until such invader, shall establish his rights by 
 action. He shall be held to have a right to have his enjoy- 
 m-ent jprotected, any disturbance of which it would be so 
 difficult to compensate. On the other hand, it is true, it 
 would be nearly as difficult to compensate the defendant 
 if he be unjustly restrained.^ The court can grant an in- 
 junction before the hearing where the patent is an old one, 
 and the patentee has been several years in undisturbed 
 enjoyment of it, or where the conduct of the defendant is 
 such as to enable the court to say, that, as against the de- 
 fendant himself there is no reason to doubt the validity of 
 the patent.^ But the user must be of an active kind, and 
 not merely nominal.^ And evidence of actual infringe- 
 ment must also be shown.* Thus when an injunction is 
 asked for to restrain the infringement of a patent, the court 
 has reason to consider first the validity of the patent; 
 secondly, the fact of the infriagement ; where those twa 
 facts are established, it is within the power as it is the 
 duty of the court to grant the injunction.^ And where the 
 infringement has not been proved, but only an extreme 
 probability that it wiU take place, the court wiU equally 
 grant the injunction.^ When the validity of the patent is 
 clear and has been established, the court will order an 
 account of all the profits made by the infringer ; and if the 
 patent has expired, the account will include all the unsold 
 articles made while the patent was in force.'' Neverthe- 
 less, upon the decree against infringement the patentee is 
 not entitled to have both an account and profits and an 
 inquiry into damages. He must elect which of the two 
 forms of relief he will adopt.^ 
 
 Questions for jury on trial of patent actions. — In all 
 cases the question of novelty of an invention must be 
 mainly one of fact, and therefore usually to be tried by a 
 jury. Nevertheless, it may be impliedly involved in a 
 subsidiary point, such as prior publication in a book of 
 large circulation, describing the mode of making or using 
 
 1 V, C. Wood, Betts v Menzies, 3 Jur. N. S. 357. ^ Dudgeon v 
 Thomson, 30 L. T., N. S. 244. » Plimpton v Maloolmson, 44 L J , 
 Ch. 257. " Betts v Willmott, L. E., 6 Ch. 239 ; NeOson v Betts, 
 
 L. E., 5 H. L. 1. ^ Brideon v MacalpJne, 8 Beav. 230. ^ Adair 
 V Young, 12 Oh. D. 13. ' Crossley v Beveriey, 1 R. & My. 166 
 
 8 De Vitro v Betts, L. E., 6 H. L. 319. 
 
CH. XII.]- EXTENDING A PATENT. 339 
 
 the invention.^ And where the question is as between' 
 two processes whether they are substantially the same, and 
 hence that the later one was no invention at all, this also 
 is a question for a jury.^ But if the processes are described 
 in two specifications, those being in writing, the construc-f 
 tion is then a question of law' for the court; or at least the 
 court must first explain to the jury the respective construc- 
 tions of the documents, and then ask the jury if they are 
 the same thing.^ A court cannot itself compare two inven- 
 tions so as to pronounce them identical, but must ask' the 
 jury to say if this is so.* The question what is a proper 
 subject for a patent is a question of law, though this may 
 in turn depend on the prior ascertainment of certain isolated 
 facts to be determined by the jury : as, for example, if it is 
 only an instance of an old process applied to a new occa- 
 sion, in which case it is not patentable f or if it is a more 
 economical and cheaper mode of making a thing already 
 in common use, in which case it is patentable.^ 
 
 Extending, altering, and repealing patent. — A power 
 is vested in the Judicial Committee of the Privy Council 
 bystatute to extend the term of a patent by seven years on 
 good cause shown, which usually 'means the inadequate 
 profits of the patentee in proportion to the merit of the in- 
 vention. For such applications are by no means granted 
 as matters of course.'^ And they are never granted except 
 on a very clear and precise account of the extent of the 
 remuneration hitherto obtained.® And if the patent is 
 assigned, sometimes it is made a condition, that an annuity 
 shall be granted to the original inventor by the assignee 
 during the extended term.^ As it sometimes happens, that 
 a patent has been granted under circumstances which im- 
 port fraud on the Crown, it may be repealed by scire facias ; 
 and the grounds on which the court gives judgment do not 
 
 1 Lang V Gisbome, 31 Beav. 138 ; Stead -y Williams, 2 Webst. 
 P. C. 126. 2 Steiner v Heald, 6 Exch. 607. » Betts v Menzies, 
 10 H. L. C. 117 ; Hills v Evans, 4 De G., F. & J. 288. * Delarue 
 « Dickenson, 7 E. & B. 738. 5 Losh v Hague, 1 Webst. P. 0. 202. 
 
 6 Crane v Price, 1 Webst P. C. 408. ? 7 & 8 Vic. c. 69, § 4 ; 
 
 Honiball's Patent, 9 Moore, P. G. 393 ; Pitman's Patent, L. B., 
 4 Pr. C. 87. 8 Saxby's Patent, 9 Moore, P. G, N. S.. 82. 
 
 9 Russell V Ledsam, 1 H. L. C. 687 ; Eussell's Patent, L. E., 
 4 Pr. C. 87. 
 
 ' Z 2 
 
340 LIBERTY OF PRESS AND SPEECH. [ch. xit. 
 
 materially differ from many of the defences set up in actions 
 by patentees against those who infringe the patent. 
 
 In some cases the patent may be amended after sealing, 
 and also there may be a disclaimer and memorandum of 
 alteration. 
 
 Object cmd origin of trade marh. — While. copyright 
 and patent right are founded on the same essential prin- 
 ciple, namely, that he who creates or originates a valuable 
 order of words, or a valuable corporeal article or process, 
 should be insured in the use of these and in turning them 
 to the best advantage, so the use of a trade mark is often 
 adopted to single out some superior article which the 
 manufacturer is confident cannot be surpassed in quality, 
 though it may be imitated by inferior workmen or sales- 
 men. In a trade mark there is less of the inventive 
 faculty and less of intellectual labour than in copyright and 
 patent right. Yet as many articles of commerce depend 
 for their merit much on the manufacturer or producer, it is 
 equally just that he should be protected in the benefits 
 derivable from the public being able easily to identify and 
 so secure whatever value attaches to such article when 
 sold. The essence of a trade mark is thus to ear-mark one 
 article from all other articles having this superficial resem- 
 blance. It thus very nearly resembles property.^ 
 
 1 " This right cannot be properly described as a copyright ; it is, 
 in fact, a right which can be said to exist only, and can be tested 
 only, by its violation. It is the right which any person designating 
 his wares or commodities by a particular trade mark, as it is oalledj 
 has to prevent others from selling wares which are not his, marked 
 with that trade mark in order to mislead the public, and so incidentally 
 to injure the person who is owner of the trade mark. Any one who 
 has adopted a. particular mode of designating his particular manufac- 
 ture, has a right to say; not that other persons shall not sell exactly 
 the same article, better or worse, or an article looking exactly like 
 it, but that they shall not sell it in sush a way as to steal (so to call 
 it) his trade mark, and make purchasers believe that it is the manu- 
 facture to which that trade mark was originally applied." — L. Cran- 
 worth, L. 0. , Farina v Silverlock, 6 Be G. M. c6 (?., 2 1 7. " When it is 
 said, there is no property in a trade mark, this must be understood 
 to mean that there can be no right to the exclusive ownership of 
 any symbols or marks universally in the abstract ; thus an iron- 
 founder, who uses a particular mark for his manufactures in iron, 
 could not restrain the use of the same mark when impressed on 
 cotton or woollen goods ; for a trade mark consists in the exclusive 
 use of some name or symbol as applied to a particular manufacture 
 
CH. xu.] TRADE MARKS. 341 
 
 Trade mark distinguished from patent. — The distincr 
 tion between a patent and a trade mark is this, that the 
 f6imer in effect prohibits all other persons not only selling 
 but making for sale the article which is patented, whereas 
 a trade mark merely indicates who was the maker of the 
 article, and does not in any way prohibit others from making 
 precisely the same article and in the same way. And hence 
 it is that many persons who besides using a trade mark add 
 the word patent, as if to give it greater authority, disentitle 
 themselves to the ordinary remedy for infringement of such 
 mark, seeing that they themselves have resorted to a species 
 of fraud or misrepresentation.^ For the use of the word 
 patent deters manufacturers from examining and imitating^ 
 and perhaps improving on the original, and so benefiting 
 the public.^ And one characteristic of trade mark, which 
 does not belong to copyright or patent, is, that the trade 
 mark of an alien will be protected by the courts as fully 
 as that of a native.^ 
 
 Use of trade, mark is to identify maker of goods.-n 
 The use of trade mark is thus a convenient mode of identic 
 fying the manufacturer or finisher of a particular article of 
 commerce, which without some distinctive mark might be 
 easUy confounded with others nearly resembling it. It is 
 a legitimate mode of signifying to the public this identifir 
 cation, as showing where, or by whom, or at what manu^ 
 factory, an article was made ; and as it tends to prevent 
 deception and fraud the law lends its aid to protect the use 
 of the mark, and so to enhance the value of the goods and 
 secure to purchasers what they believe they are purchasing. 
 It is beneficial to the seller and to the purchaser, for th^ 
 latter being usually unaccustomed to distinguish minute 
 differences, the mark is a patent and easilyrascertained 
 mode of identification, saving, him trouble and preserving 
 him from mistakes.* Supposing the rival trader to biave 
 
 or vendible commodity, and such exclusive right is property. And 
 for the same ' reason the plaintiff is entitled to relief, even if the 
 defendant can prove, that he acted innocently and without any 
 knowledge of the plaintiffs right.". — Westbury, L. C, Hall v Barrens, 
 4: De G., J. d S., 1.50. 
 
 1 Ford V Foster, L. E., 7 Ch. 611. ^ Flavel v Harrison, 10 Hare, 
 467. ' Collins Co. v Oowen,.3 K. & J. 428. * Spottiswoode 
 
 V Clark, 2 Phill. 154 ; Leather Co. o American L. Co., 11 H. L. 
 0. 623. 
 
342 ■ LIBERTY OF PRESS AND SPEECH. [ch. xii 
 
 obtained celebrity in his manufacture, he is entitled to all 
 the advantages of that celebrity, whether resulting from the 
 greater demand for his goods or from the higher price which 
 the public are willing to give for them rather than for the 
 goods of other manufacturers, whose reputation is not yet 
 so high. Where, therefore, a manufacturer has been in the 
 habit of stamping the goods which he has manufactured 
 with a particular mark or brand, so that thereby , persons 
 purchasing goods of that description know them to be of 
 his manufacture, no other manufacturer has a right to adopt 
 the same stamp. By doing so he would be substantially 
 representing the goods to be of the manufacture of the 
 manufacturer who had previously adopted the stamp or 
 mark in question, and so would or might be depriving him 
 of the profit he might have made by the sale of the goods, 
 which ex hypothesi the piirchaser intended to buy. The law 
 considers this to be a wrong towards the person whose mark 
 is thus assumed, for which wrong he has a right of action, 
 or, which is the more effectual remedy, a right to restrain 
 by injunction the wrongful use of the mark thus pirated.^ 
 The importance of having and being protected in the use of 
 these trade marks was seen as early as 1590, where a 
 clothier counterfeited a better clothier's mark, and the pur- 
 chaser was held entitled to sue the seller for deceit.^ But 
 ■even Lord Hardwicke hesitated in 1742 to adopt the prin- 
 ciple fully, lest it might tend to set up monopolies, for he 
 said any one person may set up a rival inn with the same 
 sign as the dther.^ 
 
 Infringement of trade marJc not necessarily fra'udvo- 
 lent. — For a long time it was thought that there must have 
 been fraud in the person using another's trade mark to 
 justify the court in interfering by injunction, till at last, in 
 1 833, it was fuUy settled, that it is enough, that another's 
 trade mark is used without his consent, if the effect upon 
 the rightful manufacturer is to produce the same effect as 
 if it were fraudulent.* Por the courts do not lay themselves 
 
 ^ L. Cranworth, L. C, Seixs •» Provezende, L. R., 1 Ch. 192. 
 
 ^ Southern v Howe, Cro. Jas. 471. * Blanohard v Hill, 2 
 
 Atk. 484. 
 
 < Millington v Fox, 3 M. & Cr. 338 ; Hall v Barrows, 4 De G., 
 J. & S. 150. " Fraud is not necessary to be averred or proved in 
 order to obtain protection for a trade mark. A man may take the 
 
CH. xii.]' REGISTERING TRADE MAEKS. 343 
 
 out to protect morality, or root out fraud, unless some private 
 right requires it. ^ In every case tlie court must ascertain 
 whether the differences are made bond fide in order to dis- 
 tinguish the one article from the other, whether the resem- 
 blances and the differences are such as naturally arise from 
 the necessity of the case, or whether, on the other hand, the 
 differences are simply colourable and the resemblances are 
 such as are obviously intended to deceive the purchaser of 
 the one article into the belief of its being the manufacture 
 of another person. Eesemblance is a circumstance which 
 is of primary importance for the court to consider, because 
 if the court finds, as it almost invariably does find in such 
 cases, that there is no reason for the resemblance except 
 for the purpose of misleading, it will infer, that the resem- 
 blance is adopted for the purpose of misleading.^ 
 
 Registration of trade marks. — But as much confusion 
 in rights may arise out of the use of trade marks, it was 
 thought proper, in 1875, that a definite system of registra- 
 tion should be adopted, by which the rightful owner may 
 register his trade mark with the Commissioners of Patents, 
 and so make it more readily ascertainable by all who are 
 interested in knowing it.^ And the inspection of the 
 Register should be open to the public* And the certificate 
 of registration is to be evidence of the 'entry.^ The regis-, 
 
 trade mark of another ignorantly, not knowing it was the trade mark 
 of the other, or he may take it in the belief mistaken, but sincerely 
 entertained, that, in the manner in which he is taking it, he is within 
 the law, and doing nothing which the law forbids. Or he may 
 take it, knowing it is the trade mark of his neighbour, and in- 
 tending and desiring to injure his neighbour by so doing. But in 
 all these cases it is the same act that is done, and in all these cases the 
 injury to the plaintifE is just the same. The action of the court must 
 depend on the right of the plaintifE, and the injury done to that right." 
 —L. Cairns, L. C, Singer Co. v Wilson, L. M., 3 App., C. 376. 
 
 " It does not signify for the purpose of the plaintifE's right to relief, 
 whether the defendant has acted with a fraudulent intention or not ; 
 it is enough if, even without any vmfair intention, he has done that 
 which is calculated to mislead the public. And it is not the question 
 ■whether the public generally, or even a majority of the public, is 
 likely to be misled, but whether the Tmwary, the heedless, the in- 
 cautious portion of the public would be likely to be misled."— 
 Glenny v Smith, 2 Dr. & Sm.,i1&. 
 
 1 Batty V Hill, 1 H. & M. 264. ^ Wood, V. C, Taylor v Taylor, 
 23 L. J., Ch. 255. ^ 33 & 39 vic. c. 91 ; 40 & 41 Vic. c. 37. 
 
 * 38 & 39 Vic. 0. 91, § 7. ' Ibid. § 8. 
 
344 LIBERTY OF PRESS AND SPEECH. [ch. xii. 
 
 tration of this trade mark is made a condition precedent to 
 any remedy against infringement.^ And the trade marJi 
 must contain the names of an individual, or firm, or a copy 
 of the signature, or a distinctive device, mark, heading, 
 label, or ticket.^ And trade marks which had been used 
 before the Act, if special and distinctive, might be now 
 registered as they were, in conformity with the Act. 
 
 Usual characteristics of trade mark.— The trade 
 mark protected by the statute is either a few words or a 
 device or image, and these are either affixed to the article 
 sold by stamp or label, or in some way adhering.* The 
 name selected as a trade mark need not be that of the real 
 proprietor. When the name is that of a natural substance 
 and is descriptive of the article, it soon ceases to be capable 
 of protection, if other persons produce the same article in 
 the same way, and nobody is longer deceived by the use of 
 the word.* And such common words as " superior, super- 
 fine, nourishing," " A No. 1," and such like, are not suffi- 
 ciently distinctive to serve the purpose.* Yet a word from 
 a foreign language may satisfy the purpose of being dis- 
 tinctive.8 And the name of the district where a particular 
 artiple is made which has no particular connexion otherwise 
 jnay be sufficiently distinctive, as the word "Glenfield" 
 applied to starch made there.^ And even initials with a 
 coronet, or circle, or devices, may acquire this distinctive 
 quality.^ 
 
 Trade mark part of goodwill. — The trade mark is 
 assignable and transmissible with the goodwill of the busi- 
 ness with which it is connected f and passes on the death 
 of the registered proprietor to his personal representative. 
 And for all practical purposes the trade mark is part of the 
 goodwill.!" 
 
 Trade marJi usually protected hy injunction. — While 
 the court wiU. by injunction protect the registered proprietor 
 against infringement, it must appear, that the circumstances 
 
 1 38 & 39 Vic. c. 91, § 1. 2 Ibid. § 10. ^ ginger Co. v 
 
 Wilson, 2 Ch. D, 434. ' Ford v Poster, L. R., 7 Cli. 611. 
 
 5 Raggett V Findlater, L. R., 17 Eq. 29 ; Hirst ii Denham, L. R,, 
 14 Eq. 642. 6 pord v Foster, L. R., 7 Cli. 611 ; Cope v Evans 
 
 L. R., 18 Eq. 138. 7 Wotherspoon v Currie, L. R., 5 H. L. C 
 
 608. 8 jRg Barrows, 5 Ch. D. 363. 9 38 & 39 Vic c 91 S 2; 
 
 1" Hall V Barrows, 4 De G., J. & S. 150. ' 
 
OH. XII.] IMITATING TRADE MARKS. 345 
 
 are such as would mislead a person of ordinary care and 
 sagacity. ^ And the remedy is practically intrusted to the 
 Chancery Division of the High Court.^ 
 
 Offences as to trade marks. — The imitation of a trade 
 mark was not deemed in the eye of the law a forgery of a 
 document or writing, and so is not indictable, though an 
 indictment for obtaining money by false pretences may lie 
 in such cases.^ Biit now it is a misdemeanor to forge them, 
 or apply such forged marks to goods.* And it is not neces- 
 sary to prove, that any particular person was intended to 
 be defrauded.^ 
 
 The Merchandise Marks Act protects in like manner 
 those merchants whose marks are imitated, and enables 
 persons wrongfully iising them to be indictable for false 
 pretences, or to be punished in a summary way before 
 justices of the peace.® To sell articles with a forged mark 
 is punishable by justices with a fine,'' and the seller is bound 
 to give information where he procured the article.^ And 
 a person selling articles with a trade mark is deemed to 
 contract, that such mark is genuine.^ And the same if an 
 article is marked, as containing a particular quantity. 
 
 1 Singer Co. v M^ilson, 2 Ch. D. 434. ^ 38 & 39 Vic. c. 91 ; 
 
 Rules, § 42. ' R. v Gloss, D. & B. 460. * 25 & 26 Vic. c'. 88. 
 
 5 Ibid. § 12. 6 25 & 26 Vio. c. 88. !■ Ibid. § 4. s jbid. 
 § 6. " Ibid. § ly. 
 
OF TEE 
 SECURITY OF PUBLIC WORSHIP. 
 
en. i.| PUBLIC WORSHIP. 349 
 
 CHAPTEE I. 
 
 THE TENDENCY TO rUBLIO WOKSHIP AND THE LAWS AS TO 
 SUNDAY, PEOFANE SWEARING, AND WITCHCRAFT. 
 
 Tendency to public worship. — That division of the 
 law, which treats of the security of public worship, differs 
 from all the other divisions in this, that in the earlier stages 
 of civUisation it is by far the most prominent. The laws 
 of the Church for ages absorbed most of the attention of 
 mankind, and subdued most of the details of daily life to 
 absolute obedience. The necessity for some kind of public 
 worship touches on obscurities that are endless, and which 
 can neither be solved nor forgotten ; and all modes 6f 
 government at first lend themselves to this primary instinct, 
 and the ceremonies it demands. The minds of men are 
 overpowered by the strength of the attraction, and a sense 
 of the relative disproportions between one great central 
 thought and all the perplexing minutiae that must be made 
 subordinate and yet harmonious. Things spiritual and tem- 
 poral float before the mind of barbarism in one continuous 
 haze ; and no clue can be discerned by which their parts 
 can be separated, assorted and consolidated, and by which 
 the bounds of, jurisdiction can be defined. It required the 
 experience of centuries to discover, that some things, how- 
 ever desirable, were impossible; that many more of the 
 desirable things^ were impracticable ; and that it was the 
 height of wisdom to relinquish this irritating pursuit 
 after the impossible and the impracticable. Men, and the 
 highest faculties of men, are at most only capable of being 
 moulded to a very small extent by that kind of iinfluence 
 which laws can exercise; and yet are conscious of still 
 higher and deeper influences surrounding and underlying 
 every one of them. 
 
350 . SECURITY OF PUBLIC WORSHIP. [cH. I. 
 
 Ecclesiastical laws subject to amendment. — The main 
 problems which lie at the foundation of this primary- 
 necessity of human nature for some kind of public worship 
 are too reinote and at the same time too important to require 
 discussion in a work which professes to treat of the law. 
 Law, as already explained, has no faculties to comprehend, 
 and can supply no reasons to explain, why one part of 
 human nature is more important than another, or why 
 some minds are so constituted as to gravitate more or less 
 towards one fixed idea — and why the intellectual and 
 spiritual are mixed up with bodily wants and cares, and 
 their correlative springs of action point in diverse and con- 
 trary directions. It is enough for the law to know and 
 acknowledge, that men living together, having many de- 
 sires, appetites, and affections, all seeking gratification — 
 all jarring, and yet inextricably interwoven — are somehow 
 best kept tranquil by allowing each individual so to act as 
 to cause the least possible interference with his neighbours. 
 But this was far from being the first notion of government. 
 The ecclesiastics from their superior learning, having the 
 first hold on all the high offices of state, and forming 
 their own high standard of perfection — having a vague 
 idea that all laws must be divine according to their notions 
 of the divine — sought, without much consideration of what 
 they were doing, to force people to do many things at the 
 wrong time, and by the wrong means. They did not at 
 first see the essential distinction between the end and the 
 means. Some objects may be the best conceivable, but 
 it does not foUow that every person must or can or ought 
 to be forced to submit, whether he will or no. By degi'ees 
 it is discovered, that civil laws were no more of divine 
 origin than thousands of other things, and require constant 
 amendment ; and the laws ecclesiastical, though-long reluc- 
 tantly preserved from the reforming hand of civilisation, 
 are found also to require precisely the same treatment. 
 The law, by whatever name called, and whencesoever 
 derived, cannot make men perfect, but only helps them to 
 be a little less imperfect ; and as law is nothing without 
 an adequate force behind it to compel, and yet can advance 
 only so far as compulsion is possible, it was inevitable, 
 that a vast variety of mistakes should have been made in 
 misapplying the law to things that can never be controlled 
 
CH. I.] IF ECCLESIASTICAL LAWS ARE DIVINE. • 351 
 
 or advanced by the law, though they may often be hindered 
 and made impracticable by ita abortive and purposeless 
 interference. After centuries of experience the law has 
 wisely retreated from most of these impossible undertakings. 
 However elevated may be the standard of life known to 
 ecclesiastics, it is found, that leaders of the Church have no 
 greater insight into the art of governing men than .others. 
 Law is nothing except it be practical, and great part of its 
 efforts must be expended on coarse and sordid details, and 
 in dealing with which the keen edge of the higher morality 
 and piety only cuts in unlooked-for directions. The great 
 average of mankind are so made as to feel sensibly the 
 importance of property and personal security, but they 
 cannot be made to comprehend all the attractions of the 
 unseen, the remote, and the future ; and they will not by any 
 species of compulsion be brought nearer to these distant 
 attractions, unless on the condition of being first secured 
 in the pursuit of their own pressing temporal wants, and 
 that also in their own way.^ 
 
 Laws of God cmd Christianity as part of the law. — ■ 
 Though the laws relating to public worship are necessarily 
 made up to a great extent of mere peculiarities relating to 
 the property, modes of faith, and internal government of 
 individual members of the Church of England, and so im- 
 mediately concern only aboiat half of the population, yet 
 these details also concern the other half indirectly, because 
 most of such peculiarities were once made compulsory on 
 all, and in many respects at the expense of all, and they 
 still react, to a considerable extent, on the rights and 
 
 I "There are problems in human nature and in human destiny 
 whose solution is beyond this world, which are linked to an order 
 of things unknown to the visible creation, but irrepreseibly torment 
 the minds of men, and which they are absolutely bent upon solving. 
 The solution of these problems with the creeds and dogmas which 
 contain, or at least profess to contain it, is the first object and the 
 first source of religion." — Guizot, Civ. Eur. a. 5. " The object of all 
 the public worships in the world is the same ; it is that great Eternal 
 Being who created everything." — Chesterfield, Letters. Plutarch said 
 that a city might sooner exist without house or land than a state 
 without a belief in the goia.—Plut. ad Colot. c. 31. " All religions 
 owe their origin or acceptation to the wish of the human heart to 
 supply in another state of existence the deficiencies of this, and to 
 i carry still nearer to perfection what we admire in our present conr 
 dition."— Tf. Wordsworth, 2 Forster's Landor, 25. 
 
352 SECURITY OP PUBLIC WORSHIP. . [ch. i. 
 
 property and security of those who are no longer under the 
 superintendence of that Church which first shared the pos- 
 session of the reins of government. It is thus necessary 
 to state somewhat minutely what are the laws of the 
 Church of England, in order that we may afterwards more 
 clearly see, how the same practical results are obtained, 
 without the aid of such laws, by that other half of the 
 population who are called Nonconformists or Dissenters. 
 But before proceeding to state the laws of the Church, there 
 are three heads of law which ought to be disposed of, be- 
 cause they were once constituent parts of these laws, and 
 owed their importance to the position first assigned to 
 them as such, though, now that they are isolated, thev 
 maintain their ground as part of the general law for dif- 
 ferent reasons than those first relied upon. These are the 
 laws relating to the profanation of the sabbath, profane 
 swearing, and witchcraft. These laws were once treated as 
 essential parts of Christianity, Which again was long deemed 
 part of the law of England. And though now the two 
 former of these heads are independent of the laws of any 
 one Church, they are 'nevertheless, for other good reasons, 
 retained in our law. The laws of witchcraft also were long 
 treated as part of the law of God, though they are now 
 almost altogether obliterated, and it is only necessary to 
 notice such faint traces of them as still remain. 
 
 Though it has long been a current phrase, that Christianity 
 is part of the law of England, it has already been shown 
 how that doctrine is misleading, and what is the precise 
 length and breadth which it is capable of rightly assuming. 
 It has been shown, that Christianity cannot correctly be 
 stated to be a part of the law more than any other body of 
 doctrines, whether of science, morality, or other branches 
 of human knowledge, which are often taken notice of in 
 order to determine some issue or incidental dispute between 
 man and man. And as regards the offence of blasphemy 
 and the laws that protect us against it, these have been 
 fully set forth in the earlier part of this volume.^ 
 
 Profanation of the sabbatk generally. — The sabbath 
 
 ^ As to Christianity being part of the law of England it has been 
 aptly observed : " Was there ever an indictment for not loving our 
 neisrhbour as ourselves ? " — Per Rolfe, B., 2 Crahb Robins. 21. See 
 1 Pat. Com. {Pers,) IJl. 
 
CH. I.] PEOFAIiTATION OF SABBATH. 353 
 
 viewed as denoting one day's rest in seven, has apparently- 
 been part of the common law of nearly every nation, or at 
 least there has been some division of time somewhat nearly 
 corresponding to it. Even in Pagan times there was an 
 approach to it in the number of recurring festivals in honour 
 of strange gods or men.' The laws prohibiting common 
 employments on that day were long deemed part of the 
 laws of God, and therefore their violation was usually set 
 down as an act of the grossest impiety. Our own statutes 
 have again and again recognised this day as a leading 
 qualification or exception to nearly every manual employ- 
 ment. And though the learned have differed as to the 
 " chief variation from the end to the beginning of the week, 
 and its cause, and sometimes have speculated as to how 
 far such an arrangement of time is a law of human nature 
 rather than of any one nation, such singular unanimity 
 shows, that if we had not inherited from the earliest times the 
 practice of setting apart one day in seven for the exercises 
 of religion and the highest morality, we must have been 
 driven to invent it.^ Our earliest statutes abound with 
 
 1 The Athenians had festival days, which amounted to one-sixth 
 part of the 5"ear. The ancient Greeks at feasts made it compulsory 
 to sing hymns to the gods. — Athen. b. xiv. c. 24, The Eoman 
 pontifis had similar difficulties to those of the moderns in solving 
 what kind of work was to be allowed during the ferim puhlicce.— 
 Macroh. I. c. And see Dig. 2, 12, 2, Marcus Antoninus increased 
 the working days to 230, the rest being holidays. — Capitol. M. Ant. 
 Phil. c. 10. The Incas ordered three holidays every month for 
 diversion with games. — Com. of Incas, b. yi. c. 36. In China, 
 though there are no Sundays, yet there are so many holidays that 
 the result is much the same. — I Oray's China, 260. The French 
 National Convention, in 1792 abolished Sunday, and made divisions 
 of time into ten days, one being for rest. The new arrangement 
 lasted twelve years, when Napoleon, in. 1805, restored the Gregorian 
 Calendar. 
 
 2 Baxter thought that one day in seven, or thereabouts, for rest, 
 was almost a law of nature — 19 Baxter's Works, 187. " If keeping 
 holy the seventh day were only a human. institution, it would be the 
 best method that could have been thought of for the polishing and 
 civilizing of mankind." — Addison, Sped. No. 112. Whether a 
 division of time into seven days had reference to the revolutions 
 of the moon or to the seven planets, recognised in ancient astronomy, 
 has perplexed the learned for many ages.— 1 Taylor's Nat. Hist. 
 292 ; 1 Humhold's Research. Amer. 284. But it was not a universal 
 institution, being unknown to the Greeks and Etrurians, and being 
 adopted from Egypt by the Romans dnly in the second cenlury.— 
 
 A A 
 
354 SECURITY OF PUBLIC WORSHIP. ' [uh. i. 
 
 notices, precepts, admonitions, and penalties, intended to 
 secure, on the part of the whole population, this weekly 
 exercise of at the least the forms of piety. And yet while 
 many of these enactments still exist, they are enforced in 
 
 ■ modern times rather out of a profound persuasion that the 
 public health is their sufficient justification. Hence a 
 moderate degree of compulsion is used to secure to all one 
 
 , day of rest out of every seven. It is no longer, however, 
 a merely ecclesiastical law, though it is still essentially an 
 ecclesiastical custom and enters into the ritual of every 
 sect. The varied employments stQl subjected to restrictiohs 
 require, however, to be singled out under a few separate 
 heads, in order fully to comprehend how far the law inter- 
 feres by way of compulsion, or rather in defence of those 
 inclined to join in this one practice. 
 
 Early English la/ws relating to Swnday. — Laws pro- 
 
 ; hibiting labour on Sunday seem to have been adopted in 
 all Christian countries at an early date after the Christian 
 era. The Anglo-Saxons punished a master who ordered 
 his servant to do servile work on Sunday with a fine.^ 
 And if a slave was ordered to work on that day, he was 
 said to have thereby become a freeman.^ They counted 
 the Sabbath from Saturday evening at sunset to sunset, 
 but a little later it was extended from 3 p.m. Saturday 
 
 Poiter'ii Gr. Ant. b. ii. c. 26. The Japanese and Polynesians are 
 also unacquainted with it at this day. — 2 Davis, Chin. c. 18. 
 
 The Jewish Sabbath included rest for beasts and servants as well 
 as for masters. — Exod. xxiii. 12 ; xx. 10 ; Deut. v. 14. The learned 
 have interpreted the punishments for breach of the Sabbath rest as 
 coniined to public and contemptuous defiance of the law. — Numb, 
 XV. 32 ; Michaelis, § 249. And it is not easily settled whether the 
 .ancient Jews considered it as a day of recreation or not. — Ihid. ; 
 1 Milman, Jews, 113. Constantine ordained, that the people should 
 rest on Sabbath in towns, but thoufrht that in the country the time 
 could not be spared. — Montesq. b. xxiv. c. 23. And the Theodosian 
 and Justinian Codes prohibited sports and public shows on Sunday : 
 — Cod. Theod. b. xv. tit. 6 ; Cod. b. iii. tit. 12 ; and all secular employ- 
 ments, except works of necessity, and charity, and harvest work. — 
 Cod- Just. iii. 12. The early Christians regarded it as a day of 
 rejoicing, and to fast was unlawful.— iJp. Lincoln on Tertull. 388 ; 
 L. King's Prim, Gh. And it was afterwards said, that, while Sunday 
 was kept in the Western Church as a fast, it was kept in the Eastern 
 Church as a feast. — Bing. Chr. Aniiq. b. xx. c. 3. 
 
 ' Leg, Withr. ; Leg. Cnut. 2 Ine's Eccl. L,', A.D. 693 ; 
 
 Wightred's Dooms. A.D. 696. 
 
•CH. I.] LAWS AS TO SUNDAY, 355 
 
 till break of day on Monday.^ The same laws also 
 prohibited actions or public executions and arrests on that 
 day ; also marketings and purchases, huntings, and worldly 
 works.^ Yet there was always something vague in the 
 object of these laws — whether it. was for recreation or aus- 
 terity. . In 1359 Sunday was a day of fairs, and feasting, 
 and fighting, in at least some places ; and so it long con- 
 tinued.3 Fairs and markets were definitely prohibited by 
 a statute of Henry VI. to be held on Sundays or festivals, 
 and that statute is still in force.* A statute of Edward VI, 
 forbade working on Sundays, but excepted harvest workers, 
 labourers, and fishermen.* In Queen Elizabeth's time a 
 chief justice was reported to have said that it was contrary 
 to law to enforce Sunday austerity.® And at that date 
 plays used to be performed in theatres on Sundays.^ The 
 canons of 1603 (c. 13) ordered all persons to keep the 
 Lord's Day, and therein followed the statute of Edward VI. 
 Next James I. and Charles I. — the latter at the instigation 
 of Laud — issued declarations forbidding persons who 
 wished to enjoy the usual sports on that day from being 
 disturbed,^ the opinion being, that the Puritans were over 
 strict, and alienated the people, leaving them exposed to the 
 influence of Jesuits and Papists.^ The statute of Charles I, 
 
 1 Leg. Edgar, c. 5 ; Edw, Conf. Leg. c. 3 ; Leg. Cnut, c. 14. 
 
 2 Atheist, leg. c. 24 ; Cnut, leg. c. 15 ; a.d. 1017. The civil law 
 and Eastern Code all- treated general work on that day as unlawful, 
 but with a vague exception in favour of agriculture. The Bur- 
 gundians, the Alanians, the Bavarians, Frisians, Franks, all had 
 like laws, and punished their infraction with scourging or fine. 
 
 3 1 Young's Whitby, 411. 
 
 * 27 Hen. VI. c. 5. Since 1833 all elections of vestries and corpora- 
 tion officers and public companies must take place either before or 
 after Sunday, if by any authority they had been appointed for that 
 day.— 3 & 4 Will. IV. c. 31. 
 
 In Scotland the first statute was 1503, c. 83., prohibiting markets 
 and fairs on holidays. The Presbyteries were ordained under the 
 act 1693, c. 40, to appoint searchers or informers of these offences. 
 It was decided in 1837, that the statute 1579, c. 70, which prohibited 
 using of handy labour and working, prohibited shaving of people in 
 shops on Sundays.— Philip v Innes, 2 Sh. S McL. 645. That statute 
 is held to prohibit all shops being open for selling goods.— Bute v 
 Moore, 43 Sc. Jur. 65. 
 
 5 5 & 6 Ed. VI. c. 3. 6 1 Neale's Pur. 451. ^ Collier, Introd, 
 Northoote (Shaksp. Soo.) 14 ; D'Israeli, Jas. I. 345. ' 1618, 1633, 
 2 Neale's Pur. 105 (ed. 1822) ; 2 Eushw. 193, 9 3. Fuller, 270, 
 
 A A 2 
 
356 SECURITY OF PUBLIC WORSHIP. [ch. i. 
 
 still in force, while allowing lawful games or May-poles, 
 and raorris dancing, out of people's own parishes, at the 
 same time forbade the unlawful sports of bear and bull 
 baiting, and plays within one's own parish.^ The Long 
 •Parliament in 1643 ordered the declaration of James I. to 
 be burnt by the common hangman in Cheapside. The 
 -Puritan ordinance in 1644 prohibited persons from selling 
 goods or carrying burdens or doing any worldly labour on 
 that day, under penalties. Persons above fourteen wrestling, 
 shooting, or masking incurred a penalty of five shillings ; 
 and the parents or guardians of the offending children, one 
 shilling. Yet dressing of meat in inns, and crying milk 
 between certain hours were excepted from punishment.^ 
 
 General work and selling of goods. — The older statutes 
 being repealed, the modern law is still represented by the 
 statutes of Charles I. and Charles 11.^ By the statute of 
 -Charles II. in 1676 no tradesman, artificer, workman, 
 labourer, or other person whatsoever shall do or exercise 
 any worldly labour, business, or work of their ordinary 
 callings upon the Lord's Day, or any part thereof; works 
 of necessity and charity only excepted. Any person above 
 fourteen is liable to a penalty for such offence. And no 
 one is to publicly cry, show forth, or expose to sale any 
 wares, fruit, or any goods whatsoever on that day. Nor 
 were waggoners, drovers, or butchers to travel. But 
 nothing was to prohibit the dressing of meat in families, 
 in inns, cookshops, and victualling houses for such as 
 otherwise could not be provided ; nor to prohibit the sell- 
 ing of milk in certain hours. And all offences were to be 
 prosecuted within ten days.* The interpretation of this 
 Act has often exercised the ingenuity of courts, for the 
 exception of works of necessity and charity gave a handle 
 to get rid of the enactments. And the other difficulty 
 lay in distinguishing what were works of one's ordinary 
 calling. 
 
 Worh of one's ordinary calling. — It was decided more 
 than a century ago, that the work of bakers was one of 
 necessity. Hence a baker who baked puddings, and pies, 
 and pastry for customers was held to be not punishable 
 by the Act, because this might well be deemed an act of 
 
 1 1 Ch. I. c. 1. = Scobell, Ordin. 68. ' 3 Ch. I. c 1 • 
 
 29Ch. II. c. 7. ■• 29 Ch. II. c. 7, 
 
OH. I.] LAWS AS TO SUNDAY. 357 
 
 necessity and charity; or at least a baker's shop was a 
 cook's shop and expressly excepted. As Lord Mansfield 
 said, the Sabbath would be much more generally observed 
 by a baker staying at home to bake the dinners of a number 
 of families than by those families staying at home to dress 
 their own dinners.^ And when a baker was prosecuted 
 for baking an apple-pie on Sunday for one of his cus- 
 tomers, Lord Kenyon boldly declared he would construe a 
 statute like this equitably ; and as people must be fed on 
 Sunday as well as other days, and though only cook-shops 
 were expressly excepted, baker's shops were equally im- 
 plied in the exception also.^ These cases thus set the 
 example of construing liberally this act in favour of free- 
 dom from the prohibitions. And the legislature had to 
 interpose in 1794 and put down this baking of pies and 
 puddings.* At last the modern Bread Acts practically 
 superseded the act of 1794, and repeated more definitely the 
 prohibition against baking or selling bread on Sundays and 
 against baking pies and puddings for anybody on any pre- 
 text, except between 9 a.m. and 1.30 p.m.; and except so 
 far as to prepare for baking on Monday.* And -this is the 
 footing on which the law stUl remains as regards bakers. 
 
 Moreover, the act did not prohibit labour, business, or 
 work of every description, but only restrained a few people 
 exercising their " ordinary calling ; " and hence if a 
 farmer hired a labourer on the Sabbath day, or one not a 
 horse-dealer sold a horse by private contract, this was 
 deemed a mere occasional act, and not part of the " ordi- 
 nary calling." ^ So the statute was held not to apply 
 to the business of an attorney;® or to the business of a 
 farmer, even though he worked himself occasionally as a 
 labourer. ' Nor did the statute apply to any exceptional 
 work not within the scope of one's ordinary calling, as in 
 case of haymaking to take advantage of the weather ; ^ or 
 the giving of a bill of exchange ; ® or the hiring of a servant ; i" 
 
 1 E. V Cox, 2 Burr. 785. ^ r_ „ Younger, 5 T. R. 449. 
 
 3 34 Geo. III. c. 61. * 3 Geo. IV. c. 106, § 16 ; 6 & 7 Will. IV. 
 c. 37, § 14. Penalty 10s., and double on second offence, &o. 
 
 5 R. V Whitnash, 7 B. & 0. 596 ; Bloxame v Williams, 3 B. & C. 
 232 ; Fennell v Ridler, 5 B. & C. 406 ; Smith v Sparrow, 4 Bing. 86. 
 
 6 Peate v Dickens, 1 C. M. R. 422. ? E. v Cleworth, 4 B. & S. 927. 
 8 R. V Silvester, 33 L. J., M. C. 29. 9 Begbie v Levy, 1 Cr. & J. 180. 
 i» E. V Whitnash, 7 B. & C. 596 ; Norton v Powell, 4 M. & Gr. 42. 
 
358 SECURITY OF PUBLIC WORSHIP. [ch. i; 
 
 or the enlistment of a soldier ; ^ or the carrying of pas- 
 sengers iri a stage ooach.^ In later times the Factory 
 Act absolutely prohibits the employment of a child, young 
 person, or woman in a factory or workshop on Sunday.* 
 And the employment of women, young persons, and chil- 
 dren in mines on Sunday is absolutely prohibited.* 
 
 The courts also came to the conclusion that however 
 many illegal acts were done in the course of the Sunday, as, 
 for example, in trading on that day, yet only one penalty 
 could be recovered.^ For, as Lord Mansfield said, if a 
 tailor sew on the Lord's Day, it is not to be treated as if 
 every stitch he takes is a separate offence.® And though 
 an alternative punishment was the putting of the offender 
 in the stocks,'^ all commitments must now be to the house 
 of correction or the common gaol.* 
 
 Though, however, the statute of 1676 has not been 
 repealed, yet the enforcement of it is no longer left open 
 to the indiscriminate zeal of every informer. The consent 
 of the chief oificer of police or of two justices is now 
 required, before a private prosecutor can institute proceed- 
 ings.^ And hence care is taken that no real piiblic incon- 
 venience is caused by interfering with the customs and 
 wants of the poorest fellow-citizens.^" 
 
 Travelling on Sunday. — In 1627 a statute of 
 Charles I. had prohibited under a penalty of 20s. all 
 carriers- and waggoners from travelling on Sunday. ^^ The 
 statute of 1676 went further and prohibited generally 
 all persons regularly travelling on Sunday except for a 
 cause to be allowed by two justices of the peace.^^ Hackney 
 coaches were by statutes of William III. and Anne also 
 
 1 Wolton V Gavin, 1 6 Q. B. 48. ^ Sandiman v Breach, 7 B. & 
 
 C. 96. s 41 Vie. c. 16, § 21. A slight exception is made for 
 
 Jewish factories.— Ibid. § 51. ^ 35 & 36 Vio. c. 76, § 12. 
 
 * Cripps « Durden, Cowp. 643. ^ jj,i,j. ? E. w Barton, 
 
 12 Q. B. 389; 13 Q. B. 393. 8 il & 12 Vic. c. 43, §5 19, 21 
 
 See 2 Pat. Com. (Pers.) 283. » 34 & 36 Vic. c. 87. 
 
 1" Lord Chelmsford said, that the Sunday Act of Charles II. had 
 been made null by the courts holding, that keeping open a shop 
 was neither exposing to sale nor selling, and by holding that only 
 one penalty could be recovered for one day. — 157 Pari. Deb. (3) 443. 
 Yet though the subject had been investigated by three committees 
 at great length in 1832, 1847, 1850, no amending act could be 
 carried in Parliament. 
 
 " 3 Cli, I. c, 1, 12 29 Ch. II. 0. 7, § 2. 
 
on. 1.] SPORTS ON SUNDAY. 359 
 
 prohibited from plying on Sunday under a penalty of 51.^ 
 But in 1831 the prohibition to ply on Sundays was re- 
 pealed as to metropolitan hackney carriages ; ^ and as to 
 all hackney coaches in 1867. And the courts also held, 
 that though the statute of 1676 applied to waggons and 
 stage-vans, yet it did not apply to stage-coaches.' When 
 railways were authorised by statutes, there was nothing - 
 expressly provided so as to prevent them being used on 
 Sundays. And if a railway company give a ticket for 
 left luggage, undertaking to deliver it up on request and 
 do not except Sunday, they will be liable for not . having 
 their otfice open on that day.* And no statutory prohibi- 
 tion ever extended so far as to prevent persons using their 
 own vehicles, at least since the legislation of the Com- 
 monwealth. And where a canal company made a byelaw 
 prohibiting the use of the canal on Sunday, and drew a 
 chain across the canal to prevent the public travelling on 
 that day, such byelaw was held altogether void.^ 
 
 Sports and games on Sundays. — The statute of 
 Charles I. prohibited only bear-baitings and bull- baitings, 
 common plays, or unlawful sports on Sundays, and these 
 had a definite and limited meaning. As regards theatres, 
 these being all subject to ' regulations prescribed by the 
 Lord Chamberlain and the justices of the peace, who can 
 dictate their own conditions, performances are prohibited 
 on Sundays and certain other days." The pursuit, of game 
 on Sundays is now expressly regulated by statute. A 
 penalty of 51. is imposed on all persons who on Sundays 
 or Christmas day either kill or take game, or use dog.?, 
 nets, or guns, or other engines for the purpose of killing 
 or taking them.'^ And setting a snare on Saturday night 
 which remains in catching order on Sunday is an offence 
 within this enactment.^ This prohibition, however, applies 
 
 1 1 & 2 Will. IV. c. 22 ; 3 Will. IV. c. 19 ; 3 & 4 Will. IV. o. 31 ; 
 (5 & 6 W & M. c. 22, § 18 ; 9 Anne, c. 17 ; repealed in 1867). 
 
 2 1 & 2 Will. IV. c. 22, § 37. » Sandiman « Breach, 7 B. & 
 C. 96 ; E. c Middleton, 3 B. & C. 164. * Stallard v G. W. E. Co., 
 2 B. & S. 419. 
 
 5 Calder v Pilling, 14 M. & W. 76. The regular travelling of 
 stage coacheB and waggons began about 1770. — 2 Bp. Watson's 
 Life, 113. 
 
 6 6 & 7 Vic. c. 68, § 9.— See ante, 309. 7 i & 2 Will. IV, c. 
 32, § 3. 8 Allen v Thompson, L. E., 5 Q. B. 336. ^ 
 
360 SECURITY OP PUBLIC WORSHIP. [ch. i. 
 
 only to game strictly so called, and does not affect rabbits 
 and snipe and other birds of less degree. With regard to 
 fishing on Sundays, the statutes are not so stringent. For 
 while persons are prohibited from fishing for salmon on 
 Sunday with nets or engines, those who angle only for 
 such fish are not so prohibited.' And as to other fish, 
 there is no prohibition whatever as to the means or the 
 kind of fish caught on that day. 
 
 Legal business on Sunday. — It was also a very ancient 
 regulation that no legal business should be transacted on 
 Sunday, According to the old Eoman law no juridical 
 business was done on festivals.^ And Constantine ex- 
 tended the rule to the Christian Sunday, peremptorily 
 forbidding the hearing of causes on that day.* And yet 
 an exception was made as to flagrant crimes, such as those 
 of the Isaurian pirates, so as to preserve innocent men 
 from wicked designs.* And Valentiuian made a further 
 law that all arrests for debt on that day should be pro- 
 hibited. ^ And a long- forgotten law of Honorius made it 
 the special duty of judges on that day to visit the prisons 
 and see that no prisoner was without food or even a bath.^ 
 Under King Childebert of France in 549 the Fifth Council 
 of Orleans made a like decree. '' Lord Mansfield said that 
 anciently courts of justice did not sit on Sunday. But the 
 early Oliristian judges purposely sat on that day, in order to 
 show their opposition to the heathens, who superstitiously 
 observed some days as lucky, and others as ominous and 
 unlucky, and also in order to enable plaintiff's to come to 
 their courts in preference to the heathen courts. Then 
 after the sixth century canons of the Church gradually 
 introduced a contrary practice. These canons were adopted 
 and ratified by Saxon and ITorman kings, and carried the 
 prohibition too far ; and then again statutes began to relax 
 such prohibition in some points.^ It was therefore treated 
 as part of the common law, that no courts shall sit and 
 no judicial acts be done on Sunday .^ 
 
 The Sunday Act of 1676 confirmed the like practice in 
 England, by enacting that no process or judgment of a 
 
 I 24 & 25 Vic. c. 109, § 21. « Dig. 2, 12 de feriis. = Coj_ 
 
 Theod. 2, 8. <> Ibid. 9, 35. 6 ibid. 8, 8. 6 Ibid. 9, 3. 
 
 ,7 Cone. Aurel. V. c. 20. 8 3 Ed. I. c. 51 ; Mirror, c. 5, § 1 ; 
 
 2 Inst. 264. . " Swann v Browne, 3 Burr. 1600, 
 
c.H. I.] ' SUNDAY ENTERTAINMENTS. 361 
 
 court of law in civil matters can be served or made on 
 Sunday, being altogether void ; and the person serving or 
 executing such process is liable to an action for damages.'- 
 And hence during the time when imprisonment for debt 
 was in universal use, the debtor was always entitled to 
 walk abroad on Sunday secure from all molestation from 
 bailiffs. But in cases of treason, felony or breach of the 
 peace, there was an express exception in the above statute. 
 And this exception is still the law, and it has been carried 
 further, for now, in all criminal proceedings whatsoever 
 relating to any offence, including misdemeanour, a justice's 
 warrant to apprehend a person charged with crime may be 
 issued and executed on Sunday.^ On the other hand, even 
 a commitment for nonpayment of a fine, or penalty, or rate 
 cannot be executed on a Sunday, these being civil process.^ 
 When bUls of exchange fall due on Sunday, any of the 
 required acts may with regard to these be legally done the day 
 after, and sometimes must be done the day before ; and the 
 same rule has been extended to Christmas day and Good 
 Friday and Bank holidays.* The modern practice of courts 
 is still based on the Act of 1676. Writs in actions can 
 neither be issued nor served, nor returned, on Sundays ; so 
 with writs of execution, attachments, and subpcBuas to 
 witnesses, and affidavits. And when the time limited for 
 doing any act in compliance with rules of court expires on 
 Sunday, the thing can be legally done on the following 
 day.^ 
 
 Houses of entertainment and debating socisties on 
 Sunday. — Though there is no general law prohibiting 
 public meetings being held on Sunday, yet a qualification 
 was introduced in 1781, as to two kinds of societies and 
 meetings. Houses, and rooms, and places used for public 
 entertainment or amusement, or for public debating on 
 
 1 29 Ch. II. c. 7, § ff. ^ n& 12 Vic. c. 42, § 4. ^ ^^p^ 
 
 Egginton, 2 E. & B. 717. 
 
 * 7 & 8 Geo. IV. c. 15 ; 39 & 40 Geo. III. c. 42 ; 34 & 35 Vic. 
 c. 17 ; 39 & 40 Vic. c 36, § 8 ; 38 & 39 Vic. c. 13. On one oc- 
 casion Lord Mansfield said he would sit on Good Friday for the 
 trial of causes. Counsel protested and would not attend ; where- 
 upon the judge allowed the solicitors to conduct the cases. Serjeant 
 Davy told the judge, that there had been no precedent for such a 
 sitting since the time of Pontius Pilate. — 1 Crabb Robins. Diary 472. 
 
 5 Jud. Act, Orders of Court, 57. 
 
362 SECURITY OP PUBLIC WORSHIP. [ch. i. 
 
 any subject whatsoever on any part of Sunday, are deemed 
 .disorderly houses or places, if people are admitted to them 
 by payment of money or by tickets sold for money. And 
 the keeper of the house was made liable to a penalty of 
 200Z. for each day of the offence ; and smaller penalties 
 were declared against the manager or chairman, the door- 
 keeper, or the person advertising such amusement.^ Any 
 person acting as master is deemed the keeper, though not 
 the real owner or occupier, and if several so act, each is 
 liable. And if people, without payment at the door, are 
 admitted, but pay greater than usual prices for refresh- 
 ments when within, this is deemed admission by payment. 
 And if subscribers or contributors at their expense allow 
 people to enter with their tickets, this is deemed also equi- 
 valent to admission on payment of money .^ And even to 
 advertise such places of meeting is punishable with a 
 penalty of 50^.^ These penalties may, however, be re- 
 mitted by a secretary of state.* In one case a body called 
 Eecreative Eeligionists, who were duly certified under a 
 late statute,^ kept a place of meeting for lectures, sermons, 
 and sacred music, but this was held not a place of public 
 entertainment or amusement, and so no penalty was in- 
 curred.^ On the other hand, an aquarium, where the public 
 are admitted on payment to see live fish in tanks and hear 
 music and see stuffed animals and curiosities, has been 
 
 1 21 Geo. TIT. o. 49, § 1. = Ibid. § 2. ^ Ibid. § 3. 
 
 4 38 & 39 Vic. c. 80. ^ 18 & 19 Vio. c. 81. 
 
 6 Baxter v Langley, L. R., 4 0. P. 21. The immediate occasion 
 of this act was the popularity of two noted establishments in London 
 which were used on Sundays, and admission money chai-ged. One 
 was Carlisle House, a promenade for profligate people meeting. 
 Another was a Sunday debating society, where a passage of Scripture 
 was selected, and ladies and gentlemen in turn debated and stated 
 doubts and difficulties thereon, said to be in the manner of sceptics. 
 —Hodgson's iife of Bp. Forteous, 71. The bill was opposed on the 
 ground that religion was good for nothing if it did not bear disr 
 cussion ; yet it passed by an overwhelming majority. — 22 Pari. Hist. 
 267. A Bishop told the House of Lords that Lord Thurlow, L. C, 
 Lord Mansfield, C. J., and .Skinner, C. B., revised this bill. Yet it 
 was thought at the time to be an arbitrary, partial, and unwise 
 measure. — Ann. Reg. 1781, p. 147. A constable arrested L. Harcourt, 
 L. 0. , for travelling on Sunday during church hours ; and the head of 
 the law was obliged to draw up at the nearest church and join in 
 divine service before he resumed his journey. 
 
OH. t.] PUBLIC HOUSES ON SUNDAY. 363' 
 
 deemed a place of entertainment and amusement within 
 the meaning of this Act.^ 
 
 Before the statute which gave power to a secretary of 
 state to remit the fines under this statute, an abuse existed 
 of an informer suing and then returning the fines in order 
 to prevent future informers doing the same thing ; but this 
 practice the court defeated by treating the first judgment 
 as obtained by covin and collusion.^ 
 
 Opening of public houses on Sunday. — One impor- 
 tant and prominent part of Sunday legislation refers to the 
 opening of public houses and places for the sale of intoxi- 
 cating liquors, and this has been regulated by the legisla- 
 ture by special Acts from the time of Edward VI. The 
 latest revised enactment was in 1874. By that Act these 
 houses withm the metropolitan district, or four miles from 
 Charing-cross, must be closed aU Sunday morning until 
 1 o'clock p.m. and then again at 11 o'clock p.m. In the 
 rest of England and Wales the houses must be closed till 
 half-past 12 p.m. on Sundays and then again at 10 p.m.^ 
 Besides these hours of closing there is a further time of 
 closing which applies to all the licensed houses wherever 
 situated, namely, during afternoon service, that is to say, 
 between half-past 2 p.m. or 3 p.m. and. 6 p.m. respectively, 
 according as the first closing period ends at half-past 12 
 or 1.* Whoever opens his licensed house on Sundays 
 during the above closing hours incurs a penalty of 10/., 
 and on a second offence a penalty of 201.^ It is true that 
 an exception is made in favour of bond fide travellers, who 
 are at all times entitled to admittance and refreshment ; ® 
 and railway station refreshment bars are not restricted, 
 provided travellers arriving or departing by train seek re- 
 freshment.'^ But other persons, not travellers, are liable to a 
 penalty of 40s. if found within licensed houses during these 
 prohibited hours without any lawful excuse.^ Moreover, 
 refreshment houses where intoxicating liquors are not sold 
 must be closed on Sundays tiU 4 a.m.* 
 
 1 Terry v Brighton Aq. Co. L. E., 10 Q. B. 306 ; Warner v 
 Brighton Aq. Co. L. R, 10 Exch. 291. ' 2 Girdlestoiie v Brighton 
 Aq. Co., 3 Exch. D. 137. » 37 & 38 Vic. o. 49, § 3. * Jbid. 
 
 5 Ibid. § 9. 6 Ibid. § 10. 7 Ibid. ; Peaohe v Colman, L. R., 
 1 C. P. 324. 8 35 & 36 Vic. o. 94, § 25. ^ 27 & 28 Vic. c. 64, 
 §5; 35 & 36 Vic. c. 38; § 11. 
 
364 SBCDRITY OF PUBLIC WOESHIP. [oh. r. 
 
 The question who is a bond fide traveller within the 
 meaning of these statutes, and so entitled to be admitted and 
 served at all hours on Sundays with refreshment in licensed 
 inns, has caused difficulties, and the legislature attempted 
 to define his status circuitously. He is not to be deemed 
 a traveller unless the place where he lodged during the 
 preceding night is at least three miles distant from the 
 place where he demands to be supplied with liquor, and 
 such distance is to be calculated by the nearest thorough- 
 fare.-*^ And a mistake of the innkeeper, after taking all 
 reasonable precautions to discover if the traveller is a ho-nA 
 fide, traveller, will not subject him to penalties.^ It is, 
 on the other hand, an offence, falsely to pretend that one 
 is a hond, fide traveller.^ But so long as the distance tra- 
 velled satisfies the statute, it is wholly immaterial whether 
 the object of the traveller was business or pleasure.* 
 
 Offence of profane swearing. — It seems to have been 
 a proclivity of human nature in all ages and countries to 
 indulge in profane swearing ; and though there has always 
 been some uncertainty in defining the precise characteristics 
 of the offence, it has mostly been deemed an offence, or at 
 least a weakness to be censured, and according to the cir- 
 cumstances has even called for some substantial punish- 
 ment. It is an offence now wholly confined to the vulgar, 
 who seek by loud, incoherent, and irrelevant vociferations 
 of the highest names and transactions to conceal their own 
 want of thought and most of all their poverty of express 
 sion. When angry passions and rage distend such a soul 
 beyond its feeble powers of utterance, it seeks in this way to 
 relieve its conscious impotence by monosyllables repeated 
 without a beginning, a middle, or an end. This vehemence 
 of sound only strikes awe into the ignorant, but yet it so 
 offends those who are orderly and accustomed to self- 
 restraint as to be a substantial interference with each 
 person's comfort, and on that account calling for a moderate 
 punishment. Gne reason, why cursing and swearing was 
 treated as an offence, was said to be its tendency to make 
 men careless of veracity and ready to commit perjury. The 
 Jews treated swearing by false gods or cursing with the 
 name of the true God as an offence punishable by scourg- 
 
 1 37 & 38 Vic. c. 49, § 10. ^ Ibid. » 35 & 36 Vic. c. 94, 8 25. 
 « Taylor v Humphries, 10 0. B., N. S. 429. 
 
CH. I.] PROFANE SWEAEINa. 365 
 
 ing.i Plato thought that any chapman puffing off goods 
 with an oath should be well beaten, and that" no action 
 should lie for the assault.^ The ancients, indeed, seem not 
 to have treated profane swearing as a substantive offence. 
 The early Christians, -however, soon denounced it. Chry- 
 sostom preached the whole of one Lent against it, and took 
 care to distinguish between necessary and unnecessary 
 occasions for oaths. But as oaths were then taken to ratify 
 every contract, it was difficult to establish such a distinc- 
 tion.* In 1623 a statute of James I. enacted, that whoever 
 profanely cursed or swore incurred a fine of twelvepence, 
 for the nonpayment of which he might be set in the stocks 
 three hours ; and if under twelve he was to be whipped.* 
 But two witnesses were required. Another statute in 1694 
 allowed one witness to prove the offence and assigned 
 gradations of punishment, and allowed children under six- 
 teen when thus offending, to be whipped. And the Act 
 was to be publicly read four times every year in parish 
 churches and chapels immediately after morning prayer, 
 under a penalty of 20s. for neglect.^ 
 
 The extent of punishment for swearing. — At length, 
 in 1745, an elaborate statute, repealing the former Acts, 
 was passed, which still regulates the punishment of 
 
 ' Lev. xix. 12 ; Selden de Jur. b. ii, c. 13 ; 4 Michaelis, 93. 
 
 2 Plato, leg. b. ii. 
 
 ' Cod. Theod., B. 2, tit. 9 de pact. It was said that Christiana 
 used to relieve their consciences by swearing by the emperor's 
 safety instead of by the emperor's good genius, as this last form 
 was deemed profane and as implying divine honours to a demon. — 
 Tertull. Ap. c. 32. An oath current in early centuries was " swearing 
 by the creatures," which was a form of pawning somethings specially 
 dear, to abide the event of what they spoke turning out to be false ; 
 and this was deemed excusable ; but fine distinctions were made. 
 Thus St. Basil said when Joseph swore by the safety of Pharaoh's 
 beard it was not properly an oath. Justinian treated profane oaths 
 as blasphemy and punishable with death. — iVcu. 77, §§ 1, 2. Donald 
 VI. of Scotland ordered profane swearers to have their lips seared 
 with a hot iron.— H. Boet. h. x. In this country the Puritans were 
 said to have considered swearing worse than murder. ^ — 11 Percy Soc. 
 I^Rich. How. 6. ) ^21 Jas. I. c. 20. 
 
 * 6& 7W. III. c. 11. Profane swearing, as may be supposed, was 
 severely punished by the Long Parliament, and several Acts were 
 passed for the purpose. — ScohelVs Acts 1650, c. 16. One of the 
 articles of impeachment of Scroggs, J., was, that in his common 
 discourse at dinner in the house of a gentleman of quality he pub- 
 licly and openly uttered oaths and curses. — 8 St. Tr. 170. 
 
366 SECURITY OF PUBLIC WOESHTP. [ch. i. 
 
 profane swearing, and this it does in a somewhat peculiar 
 manner, namely, by a tariff of punishments proportioned 
 to the social grade of the offender. And mankind are 
 divided for this purpose into three grades only.^ The 
 court, before this Act, as in the case of slander and libel, 
 insisted that when a conviction was made by justices of 
 the peace) the very words of the oath should be set out, so 
 that the court might judge whether it was or was not an 
 oath, that being deemed a nice point of law.^ The Act at 
 last gave a form of conviction, overruling such a necessity. 
 One characteristic rule of interpreting this statute was 
 adopted, which differed from that formerly mentioned as 
 regulating the catching of game on Sunday ; for while any 
 person who hunts and kills any number of heads of game 
 on a Sunday is deemed to commit only one offence, the 
 older judges, by a happy thought, decided, that each 
 separate oath is capable of separate valuation. Hence, if 
 a volley of oaths is discharged, and the witness is a fair 
 arithmetician, the court will, on .his estimate, assess each 
 repetition at a separate sum, as was the case of the miller, 
 who discharged a volley which cost him as much as 21., 
 inasmuch as a bystander counted twenty of these vain repeti- 
 tions without stopping.^ Another peculiarity attending this 
 
 1 " If any person shall profanely curse or swear and be thereof oon- 
 "victed, on the oath of any one or more witness or witnesses before 
 one justice of the peace or by the confession of the party offending, 
 he shall forfeit as follows, that is to say, every day labourer, 
 common soldier, common sailor, or common seaman. Is. ; every 
 other person under the degree of gentleman, 2s. ; and every 
 person of or above the degree of a gentleman, 5s. ; for a second 
 offence after a former conviction, double these snms ; and for a third 
 or subsequent offence, treble."— 19 Geo. II. c. 21, § 1. If the 
 cursing or swearing be in the presence of a justice of the peace, he 
 may convict the party without further proof. — Ibid. § 2 ; if in the 
 presence of a constable the latter may apprehend the party without 
 a warrant if unknown, and carry him before a justice, in order that 
 he may he convicted ; and he is also to lay an information against 
 those who were known. — Ibid. § 3. The penalty is to be applied to 
 the poor of the parish, where the offence is committed. — Ibid. § 10. 
 For non-payment of the penalty the justices may commit for ten 
 days to the bouse of correction.— Ibid. § 4. A constable not doing 
 his duty is liable to a fine of 40s. — Ibid. § 7. And justices not doing 
 their duty are liable to a fine of bl. — Ibid. § 6. 
 
 2 R. V Spariing, 8 Mod. 58. 
 
 ' E. V Soott, 33 L. J., M.: C. 15. A leather-dresser in ClerkenwelJ 
 
CH. 1.] WITCHCRAFT. :367 
 
 offence was, that if the offender was a soldier or sailor, 
 and could not pay the fine, he was put in the stocks i'or 
 an hour or two, an alternative which, though never in 
 terms repealed, is now indirectly superseded by imprison- 
 ment in the house of correction or common gaol.^ And 
 the statute repeated the older enactment of William III., 
 requiring the Act to be publicly read in churches imme- 
 diately after morning or evening service four times every 
 year, under an increased penalty of 51. ; and this last en- 
 actment was in force for more than a century, not being 
 repealed till 1823.2 
 
 Witchcraft and fortv/ne-tdling. — The great variety of 
 treatment accorded to witchcraft was one of the notable 
 characteristics of all ancient laws, and no country seemed 
 to omit some provision adapted to the current notions of 
 its iniquity.^ The proclivity of human nature towards 
 such offences was always assumed to arise from a direct 
 impulse of Satan, and the offence was called one against the 
 laws of God. Thus it was a serious matter in our ancient 
 laws till the time of Holt, C. J., who began to treat it 
 simply as a combination of lunacy, fatuity, and imposture. 
 A marvellous levity, however, has since then taken pos- 
 session of the public mind in regard to its whole bearings, 
 so that it is scarcely practicable to treat witchcraft or any 
 of the kindred offences with a gravity becoming the injury 
 not unfrequently done to those, whose simple faith has 
 never been similarly enlightened. Witchcraft, as one of 
 the earliest known crimes, was treated as felony in 
 England, and punished before the Conquest with death 
 by burning or with exile ; the only reason that occurred 
 to Coke for this severity was, that it was a conferring 
 .with the devil.* A statute of James I., repealing former 
 statutes, still treated witchcraft as felony, and its punish- 
 ment was death,^ the main offence being that of conjuring 
 
 also onoe swore 54 oaths and 160 curses without stopping, which 
 cost him 2U. 8s.— K. v Sparling, 1 Str. 497. 
 
 1 See 2 Pat. Com. (Pers.) 282. 
 
 '' 4 Geo. IV. c. 31. While this enactment stood, clergymen were 
 often out of revenge informed against for its neglect. — 8 Pari. 
 Deb. (2) 615. 
 
 3 See 2 Pat. Com. (Pers.) 288. « 3 Inst. 43. 5 i j^g, j^ 
 
 c. 12. 
 
368 SECURITY OF PUBLIC WOESniP. [oh. r. 
 
 an evil spirit ; and to profess by enchantment to discover 
 hidden treasure or stolen goods was one of its forms.^ But 
 that statute was wholly repealed in 1736, and no prosecu- 
 tion was thereafter to be allowed in any court, for witch- 
 craft, sorcery, enchantment, or conjuration. The only 
 cognate offence that remained was pretending to powers 
 -whereby ignorant persons were frequently deluded and 
 defi'auded. Hence, if any person pretend to exercise or 
 use any kind of witchcraft, sorcery, enchantment, or 
 conjuration, or undertake to tell fortunes, or pretend from 
 skill or knowledge in any occult or crafty science to 
 discover, where and in what manner goods or chattels 
 supposed to have been stolen or lost may be found, this 
 is an indictable offence punishable with one year's im- 
 prisonment.2 Another form of the above offence as to tell- 
 ing fortunes was also punished by the Vagrant Act, which 
 enacts, that every person pretending or professing to tell 
 fortunes, or using any subtle craft, means, or device by 
 palmistry or otherwise, to deceive and impose on any of 
 His Majesty's subjects, is deemed a rogue and vagabond, 
 and is liable to three months' imprisonment in the house 
 of correction.^ And where a person falsely pretended to 
 
 ^ The capitularies of Charlemagne and the laws of ancient Norway 
 had penal statutes against those who raise storms and tempests ; and 
 the lingering tradition in the far north is, that witches sell winds to 
 the sailors!. — 2 Mallet, North. Antiq. 218. Witchcraft and calculating 
 nativities were always deemed the works of Satan. — Gofho. Cod. 
 7heod. b. 9, tit. 16. In Scotland, witch finding and burning was a 
 leading pursuit for centuries. The Presbytery often found time to 
 take the depositions preliminary to trial. In 1667 a noted common 
 pricker lived in Tranent who had skill to discover the devil's mark 
 and to insert a pin three inches long into that spot of the body. The 
 test was to ask the witch in what part of the body this pin was in- 
 serted, and if a genuine witch, she always misstated the spot.— -3 
 FitcairrHs Trials 602. Mr. Mathew flopkins was the leading witch- 
 finder in England about the same period. — 6 St. Tr. 654. In 1649, 
 on the burning of a witch at Burncastle, near Lauder, the expense 
 of the common pricker and of the hangman (from Haddington), both 
 of whose services were required (and who were entertained with meat 
 and drink and wine), together with expense of the witch's meat for 
 thirty days while she was watched in prison, came to 92Z. 14s., Soots. 
 - — Arnot's Trials 434. 
 
 2 9 Geo. II. c. 5. Pillory was added once a quarter. This Act 
 also applied to Scotland. 
 
 3 5 Geo. IV. c. 83, § 4. 
 
CH. I.] - WITCHCRAFT. 869 
 
 have a supernatural faculty of obtaining messages from, 
 the spirits of the dead, this was deemed within the words 
 " palmistry or otherwise." ^ And it is said, a conviction 
 may he had under this enactment without even describing 
 that the means used was palmistry .^ 
 
 1 Monk V Hilton, 2 Exch. D. 268. 2 e_ „ Middlesex, JJ. 2 Q. B. 
 D. 519. 
 
 B B 
 
370 SECURITY OF PUBLIC WORSHIP. ■ [en. ii. 
 
 CHAPTEK II. 
 
 MEANING OF WOEDS AND PHKASES RELATING TO THE 
 CHURCH AND CONVOCATION. 
 
 Early confusion about Papal ecclesiastical juris- 
 diction. — Much of the early ecclesiastical law consists 
 of manifestoes and protests by the English Parliament 
 against the common delusion of the middle ages, that the 
 I'ope had jurisdiction over the internal affairs of the Church 
 in England ; and yet that delusion was so deeply engrained 
 in the mind of the legislature, as well as of the statesmen 
 of the day, that little reflection was given to the first 
 principles on which all governments are founded. It was 
 not known as a practical axiom, that each legislature has 
 full power to make and alter its own laws without any 
 regard to foreigners, and that there is nothing known 
 under the name of law, whencesoever derived, which is 
 so divine as not to be capable of amendment by such 
 legislature. Moreover nothing exists as law which is not 
 capable of being enforced more or less effectually by some 
 recognised jurisdiction, which is provided ior that purpose 
 with an adequate machinery of bailiffs, messengers, and 
 executioners.' 
 
 1 From the fourth to the thirteenth century, the Church took the 
 lead in the career of oiviliBation, such as it was. — 2 Guizot, Civ. Fr. 
 lect. 11. The theory of Innocent III. was, that the pontifical and 
 regal powers were in the same relative position as the sun and moon. 
 And this is the key to the modes of thought on such subjects for 
 many centuries. William the Conqueror denied that he owed 
 homage to the Pope, and that his predecessors had owed it. — 1 StuhMg 
 Hist. 285. The pusillanimity of John made him the vassal of the 
 Pope, and the annual payment of 1,000 marks was paid off and on 
 till 1366, when the Parliament of Edward III. declared John's con- 
 
CH. 11.3 CHURCH AND STATE. 371 
 
 Meaning of the words " Church and State." — There 
 are no three words in the English language which usually 
 embody so much confusion of thought as the words 
 " Church and State." They are seldona used to indicate 
 a real and accurate perception of anything corresponding 
 to them in law or human government. They no doubt 
 began first to be adopted when the chief governors of the 
 world were ecclesiastics, who were imbued with the belief 
 that, because there are things in heaven above those of 
 the earth, therefore there should be a grand division made 
 between one class of laws and another class — one denoting 
 superiority and precedence, the other denoting inferiority : 
 one indicating a higher life, approaching that of angels, 
 the other denoting a downward and grovelling class of 
 subjects — one towards which all mankind should be driven, 
 the other as to which they need only be detained, coerced, 
 and cautioned. The moment it is comprehended that 
 governments and laws have no means of forcing citizens 
 to be better than they choose to be, and that the utmost 
 that can be aceomplished is to prevent each from iater^ 
 fering with another's pursuits, and from making each other 
 worse than they may be, it is at once apparent that the 
 relative importance and . force- of laws cannot be adjusted 
 accordiing to the subjyeet-matter upon which they touch. 
 As laws cannot enlighten the conscience, can neither 
 implant piety nor virtue, can' neither elevate man into a 
 higher life nor give him the slightest impulse towards the 
 advancement of public good, but have only a negative and 
 repressive effect on the varieties of evily aggression, and 
 wrong,, it is a perversion of their main purpose to set up 
 one class of laws above another. All laws are meant 
 alike to secure to each individual the fruit of whatever 
 ' good and honest impulse he can derive from sources above 
 and beyond them, in order to further his pursuits in life. 
 Whether laws are more or less concerned with one kind 
 
 duct illegal, and so put an end ta all furthei applications, — Prynne'i 
 Gonstit, vol. 3. In 1338 the German Electors in assembly resolved 
 that the Imperial dignity was derived from God alone, and no ap- 
 probation of the Holy See was required. — 1 Qeffclcen, Ch. &_ Ht. 
 257. As Coke said, the Papal authority did never fine or imprison 
 in any case, but ever proceeded onlyby ecclesiastical censures, and 
 there could be no pretence therefore for holding, that any such 
 iurisdiction ever took root in England —4 InBt. 324. 
 
 R B 2 
 
372 SECUEITY OF PUBLIC WORSHIP. [ch. ir. 
 
 of subject or another, all are liable to be defective, and 
 are liable to amendment. No distinction can be drawn 
 as regards the duty and desire to make one class better 
 adapted to their main purpose than another class. 
 
 Supposed alliance between Church and State. — 
 Another and kindred notion embodied in the use of the 
 words " Church and State," is that which implies, that 
 there is or once was a species of alliance or high contract 
 between the representatives of one body of citizens and 
 the representatives of all the rest, whereby stipulations 
 and conditions were settled between them. The ecclesi- 
 astics, that is to say, those persons whose profession is to 
 minister in sacred things, are in no way distinguished from 
 their fellow-citizens, except only in the duties they 
 perform for the time being. All are alike bound by the 
 general body , of laws, and are preserved by the same 
 great machinery of a free Parliament, incorruptible judges, 
 trial by jury, a free press, habeas corpus, and the other 
 prominent securities of life and property and =^reputation. 
 That some of the property over which ecclesiastical 
 persons have a limited control is protected by peculiar 
 laws, burdened by peculiar trusts, and its misapplication 
 corrected by peculiar courts, is of no importance, seeing 
 that these minor arrangements are often the accidents of 
 an accident, and the inheritance of obsolete methods in 
 the policy of our ancestors. That these ecclesiastical 
 persons are not allowed the same latitude of speculation 
 and the same liberty to vary the creed which the legisla- 
 ture has fixed for them as the essential accompaniment of 
 their profession, is also a matter affecting only their own 
 class. AU professions and vocations are protected alike by 
 the law, whether one may be deemed more honourable or 
 not in itself by those who select them or those who benefit 
 by them. Vocations being voluntary give no essential 
 precedence one over another, all being alike subject to 
 one paramount control, namely, that of the law, which has 
 been accepted or declared by Parliament, and which Parlia- 
 ment alone can amend. 
 
 Alleged submission of clergy. — Though therfefore eccle- 
 siastical persons and their property, and rights and wronc^s 
 are aU bound by the same law — though that law may 
 vary according to the subject and be administered to some 
 
OH. 11.] SUBMISSION OF CLEEGY. 373 
 
 extent by peculiar courts, there is a widespread error which 
 now and again recurs, namely, that because a statute of 
 25 Hen. VIII. c. 21 recited a submission of the clergy as 
 one of its inducing considerations, this implied, that there 
 was some antecedent rivalry and antagonism between the 
 clergy on the one hand and the state or Parliament on the 
 other hand, whereby they ratified some compact, on fixed 
 and unalterable terms, like two independent national 
 governments ; and that those terms cannot be altered except 
 by the two parties who originally exchanged them. This 
 view is founded on the radical error, that Parliament could 
 or ever did at any period of history enter into a negotiation 
 with a small class of its subject citizens on terms which 
 could not be freely altered by Parliament afterwards on 
 its own authority. No one class can ever be so puissant 
 as to parley on equal terms with Parliament — for the best 
 of all reasons, that the one is weak and helpless and the 
 other omnipotent. It is one of the peculiar advantages of 
 our constitution that each and every class is subject to 
 the paramount authority of Parliament. Whatever may 
 be the wishes of any one class which seeks advantages, 
 or is about to be subjected to further control, the moment 
 that Parliament has spoken and has embodied in a statute 
 a deliverance on the matter to be dealt with, the antecedent 
 wishes, expectations, or grievances of that class are no 
 longer to be appealed to, except simply so far as they 
 sometimes assist the judges who have to interpret the 
 ambiguities of that as well as other enactments. It is by 
 this process, that each class is subdued in detail by the 
 superior wisdom of that all powerful Senate which cannot 
 be controlled, and which has the power to control all the 
 component forces of the realm. And without this theory 
 and this practice government would be impossible. If 
 any one class could set itself up and claim to dictate to 
 the Parliament the conditions on which its rights, liberties, 
 and property were to be held and enjoyed, or to dictate 
 who were to be the judges to administer justice between 
 man and man, or between class and class, or between the 
 several members of any one class. Parliament would 
 cease to be the great and irresistible power which keeps 
 all the interests of the nation in their proper places, and 
 to which every profession in its turn must bow submissively. 
 
374 SECURITY OF PUBLIC WORSHIP. [ch. ir. 
 
 To assume that the clergy once had rights co-equal with 
 Parliament, and settled and secured by some power before 
 and above Parliament, and which still subsist in that body 
 or any portion of it, or in so far as not expressly given 
 over and parted with, is a dogma irreconcilable with every 
 theory of government. There can be no settled government 
 if any one portion of the people can set itself above the 
 law and repudiate the authority of the sole organ which 
 declares, adopts, and reforms that law. No divinity can 
 hedge the Church, or the select number who constitute it^ 
 from the influence of one and the same all-powerful and 
 paramount legislature. 
 
 Boyal supremacy in Church afiairs. — When it is 
 said that the supremacy of the Crown in ecclesiastical 
 matters in England is a first principle, this only means 
 that it is nothing more than the elementary rule neces- 
 sarily arising out of the very nature and constitution of ' 
 all independent governments. That rule is, that if there 
 is a sovereign, then that sovereign is the highest in 
 authority and position, and has the same relative superi- 
 ority over the ecclesiastical professions as over all the 
 others. Yet this rule has been expanded into many words 
 by statutes from the Constitutions of Clarendon to those 
 of Henry -VIII. and Elizabeth, . as if it required to be 
 declared in express terms. The confusion of ideas about 
 ecclesiastical jurisdiction so long propagated by the See 
 of Eome required frequent Manifestoes and abounding 
 repetitions in statutes and canons, so as thoroughly to root 
 out of the minds of legislatures, judges, and subjects the 
 current traditions of the time.'' And even Coke and Hale 
 think it necessary to say, that this rule, which is a maxim 
 or truism, appears by records of unquestionable truth and 
 authority, instead of merely stating, that it is self-evident 
 and a necessary axiom or postulate for every government. 
 Coke at the same time said, these acts were merely declara- 
 tory of the common law.^ A statute of Henry VIII. in 
 1536 made it compulsory on all officers, ecclesiastical and 
 temporal, to take an oath renouncing the jurisdiction of the 
 
 1 Constit. Clar. (1184) ; 25 Ed. III. st. 6 ; 38 Ed. III. st. 2, c. 1 ; 
 16 Rich. n. c. 5 ; 24 Hen. VIII. c. 12 ; 25 Hen. VIII. c. 21 ; 1 Eliz. 
 c. 1 ; .5 Eliz. c. 1 ; canons 1603, §§ 1, 2, 26, 37. =■ 1 Hale, 75 ; 
 
 Caudrey's Case, 5 Coke, 1. 
 
on. II.] ROYAL SUPREMACY, ' 375 
 
 See of Eoine.^ So important was the truism deemed, that 
 '.mder Elizabeth any person who controverted it, either 
 by advisedly preaching, or writing, or speaking to the 
 contrary, was declared to be liable to forfeiture of goods.^ 
 And it was punishable by prsemuuire to refuse to take 
 the oath of supremacy.^ And the canons of 1603 treated 
 the denial of the supremacy as a ground of excom- 
 munication. This supremacy of the Crown has never 
 been defined by any statute or common law ; * but it is 
 
 > 28 Hen. VIII. o. 10, § 6. 
 
 2 1 Eliz. c. 1. A statute of Henry VIII., one of a series, in its 
 recital sufficiently well expressed and recognised this fundament: il 
 law: "This, your Grace's realm, recognising no superior under 
 God, but only your Grace, hath been and is free from subjection to 
 any man's laws, but only to such as have been devised, made, and 
 ordained within this realm for the wealth of the same, or to such 
 other as by sufEerance of your Grace and your progenitors the 
 people of this your realm have taken at their free liberty, by their 
 own consent, to be used amongst them, and have bound themselves 
 by long use and custom to the observance of the same, not as to the 
 observance of the laws of any foreign prince, potentate, or prelate, 
 but as to the customed and ancient laws of this realm originally 
 established as laws of the same by the said sufferance, consents, 
 and custom, and none otherwise."- — 25 Hen. VIII. c. 21. The 
 statute of- 1340 had substantially expressed the same cardinal rule 
 of jurisdiction. — 1-4 Ed. III. st. 3. And Coke said it was settled by 
 judges in the time of Edward III., that the Pope's excommunication 
 could not prejudice any man in England. — Caudrey' s Case, 5 Co. 1. 
 BODIN, in France, under Henry IV., insisted on the doctrine thit 
 civil sovereignty was absolute. And Geotius, in 1613, contended 
 that the Church had nothing but a persuasive authority. — 2 Hall. 
 Lit. 341 (ed. 1873.) Bj'- many the oath of supremacy was under- 
 stood as merely negativing that of the Pope. — 1 Hallam, Const. H. 
 c. 3. " The Royal supremacy represents the same authority, and no 
 more, in matters ecclesiastical, defined and limited by the eccle- 
 siastical law, as it does in matters temporal, defined and hmited by 
 the municipal law." — Per Alderson, B., Memoirs, 225. 
 
 " 5 Eliz. c. 1. 
 
 * When the bill for supremacy was in the House of Lords, in 
 1558, the ex-Chancellor Heath opposed it on the ground that the 
 . Pope's supremacy had been already acknowledged by all the bishops 
 at four general councils. Moreover, the canonical laws of Christ's 
 Church, to which they had teen sworn at the font, were binding on 
 them all, a;nd by leaping out of Peter's ship they would hazard 
 themselves to be overwhelmed in the waves of schism, of sects, and 
 divisions. He also relied much on the disqualification of a woman 
 to be "supreme head." The arguments were all more or less 
 scriptural quotations and adaptations of vague expressions. He 
 
376 SECURITY OF PUBLIC WORSHIP. [ch. ii. 
 
 obviously a word used merely as correlative to the law 
 of the land, denoting that kind of tutelary supervision 
 which is 'recognised in the coronation oath.^ In one 
 respect indeed a statute was passed to declare, that the 
 power of dispensing with statutes was no part of that 
 complement of rights vested in the sovereign, and known 
 under the title of this supremacy, though it had long been 
 mistaken to be one of its chief ingredients.^ All statutes 
 which imposed a penalty for holding any doctrine like that 
 aimed at by the oath of supremacy were repealed in 1846, 
 except as regards clergymen.^ The oath of allegiance and 
 supremacy was re-written by the legislature in 1858 ;* but 
 all express mention of supremacy was dropped in 1868, 
 and a general expression of allegiance was all that was 
 deemed sufficient.^ In effect the supremacy of the Crown 
 in all civil and ecclesiastical affairs is an elementary prin- 
 ciple which does not require to be explained, but is merely 
 assumed as an axiom under every kind of kingly govern- 
 ment. 
 
 Meaning of the words " Church " wnd " Protestant 
 Episcopal Church." — The word Church is used in two 
 leading senses. In its, most usual sense it includes all 
 those who pursue as a profession the performance of various 
 duties incidental to public worship as established by law, 
 and it also includes that portion of the public who join in 
 and profess the doctrines embodied in that mode of public 
 worship. The other sense confines the word to those who 
 are thus professionally engaged, without including the laity 
 
 assumed throughout the unity of Christ's Church. ■ — 1 Somers' 
 Tracts, 78. 
 
 1 1 Will. & M. c. 6 ; 6 Anne, c. 8. Tlie coronation oath has 
 sometimes been used as an argument against changes in the law 
 relating to the Church. It was well agreed at the settHng of. the 
 oath in 1689, that the words "Protestant Religion established by 
 law " meant the same thing as " which is, or may be, established 
 from time to time ; " and no assurance exacted from a sovereign by 
 tlie estates of the kingdom can bind him to refuse compliance with 
 what may at a future time be the wish of those estates. — Macaulay, 
 Hist. c. 11. The argument which sets up the Coronation Oath as 
 an obstacle to changes in ecclesiastical laws was wholly repudiated 
 by Lord Liverpool and by Canning. — 16 Pari. Del. (2) 1003 ; see 
 also 197 Pari. Deb. (3) 82. 
 
 ' 1 Will. & M. sess. 2, c. 2. ' 9 & 10 Vic. c. 59. « 21 & 22 
 Vic. c. 48, § 1 (repealed). « 31 & 32 Vic. c. 72. 
 
CH. II.] CHURCH OF ENGLAND. 377 
 
 for whose advantage they minister. A still -wider sense, 
 however, is sometimes given to the word " Church " when 
 it denotes all those who agree more or less closely in the 
 leading doctrines which Protestant Christians, including 
 Dissenters as well as Churchmen, maintain ; and as such 
 doctrines are common to Christians in some other countries, 
 such a signification embraces members in all parts of the 
 world. And there are various still wider and looser mean- 
 ings attached to the same word, and which are rather 
 figurative than literal. The Church of England is that 
 body of clerical and lay members who differ from other 
 Protestants in England and elsewhere in some leading 
 ceremonies and their scheme of internal government ; but 
 differ most of all in this one characteristic, that the clerical 
 members are not allowed to deviate from certain standards 
 of doctrine and ritual which have been stereotyped by being 
 incorporated into statutes. Another characteristic is, that 
 the property in M'hich they are interested is restricted in 
 its use by like enactments, which can only be varied by 
 Parliament and by no other power or authority. ■ But in so 
 far as the clergy keep within these statutory restrictions 
 they enjoy freedom of opinion. The Church of England 
 and Dissenters of any one sect agree in this, that neither 
 constitutes a corporation, though they are usually spoken of 
 as if all the men and women holding similar doctrines and 
 practising similar rites and ceremonies of public worship 
 must figuratively resemble a corporation. What actually 
 exists is, that in each parish of the Church of England 
 the parson is in possession of the cliurch and glebe and 
 parsonage-house and tithes, and he exercises his profession 
 there- for the time being as the representative owner or 
 freeholder, who is capable by law of protecting that portion 
 of property, and to that extent he is a corporation sole. 
 Yet the parson as such a proprietor is as independent of 
 all other parsons as if they had no connection of any kind. 
 Each is a unit, and the Church is merely the aggregate of 
 these units. A bishop is also a corporation sole, having a 
 like limited use of property for the purposes of his office ; 
 and there are other ecclesiastical persons, as deans, 
 canons, archdeacons, on a similar footing, and each of 
 whom has certain rights of property attached to his office. 
 The leading characteristic of each of these persons as far 
 
378 SECURITY OF PUBLIC WOESHIP. {ce. n. 
 
 as regards holding of property is this, that each has at 
 most but a limited control over it, and cau neither sell nor 
 alienate nor burden it like an ordinary proprietor. Thus 
 it is that the Church of England as a Church has no 
 property, and has neither rights nor wrongs ; but individual 
 members 'of that Church singly, and in a few cases jointly, 
 have a limited possession of property, and in the eye of 
 the law alone enjoy, and defend such enjoyment to the 
 greatest extent to which any one individual is allowed to 
 enjoy it. And in order to regulate more thoroughly the 
 uses of this kind of property the estates of all archbishops 
 and bishops and most of the cathedral and collegiate deans 
 and chapters, limited as these were, have been transferred 
 to Ecclesiastical Commissioners, who allow to each an 
 income in lieu of what he formerly enjoyed. 
 
 The name of Protestant originated with the sixteenth 
 century, and was used to denote those Lutherans who 
 in the Protestation of Spires protested against and re- 
 nounced the doctrines of the Mass, which the Eomish 
 Church had held prior to that period, though afterwards 
 deemed no longer tenable in England. The same name 
 has been absorbed into the constitution of this kingdom, 
 and denotes some leading doctrines, especially when used 
 in connection with the succession to and the duties of the 
 Crown. The "Protestant reformed religion established 
 by law" was the description used in the settlement of 
 the coronation oath at the Eevolution.^ It is, however, 
 usually called by the more familiar name of " the Churcli 
 of England as by law established," and in older statutes 
 it was even called the Holy Church of England.^ 
 
 Doctrines of the Church how far protected by law. — 
 Erom this outline it will be manifest, that the law does not 
 and cannot concern itself with a great variety of the doctrines 
 which members of the Church of England like other churches 
 from time to time maintain ; and to which they often attri- 
 bute great importance. These are things that affect merely 
 the conscience of individuals, and cannot be made matter of 
 compulsion. The law is nothing except it can restrain the 
 conduct of meu with effect, and as many of the doctrines 
 of religion are too subtle to be restrained or controlled by 
 
 1 1 Will. & M. c. 6. 2 25 Ed. III. st. 4, 
 
CH. 11.] DIVINE ORIGIN OF CANON LAW. 379 
 
 the only weapons "which the law can wield, namely, the 
 punishment of the body and the deprivation of property^ 
 it is idle to suppose that matters of mere belief can be 
 deemed of intrinsic importance by the law. It is true 
 that statutes have laid down some broad outlines of doc- 
 trines, and have incorporated a code of ritual more or less 
 detailed for members of the Church, and these are not 
 allowed to be varied ; and in case of disputes courts must 
 interpret the meaning of these written documents in order 
 to settle such disputes. But except for the purpose of 
 solving difficulties between members of the Church, whether 
 clerical or lay, and which the law is bound to solve for the 
 same reason that it solves all other difiBculties between 
 man and man, the worth or truth of any religious doctrine 
 is deemed by the law of no intrinsic importance. When- 
 ever a matter of that kind enters into a judgment of any 
 of the courts it is merely because it is an essential part of 
 the litigation that has arisen on each particular occasion, 
 and not because it is any business of the law either to 
 dictate or to enforce the holding of any particular doctrine 
 on any subject, human or divine.^ The purposes of the 
 law can be fulfilled without any such interference with 
 private opinion. It is enough for any court that Parliament 
 has selected a creed and a ritual as the best for the time 
 being for such of its subjects who choose to accept them, 
 and the law will content itself with enforcing these, so far 
 as they can be enforced ; but it does nothing more. 
 
 Alleged divine origin of canon law. — Controversies 
 without end have divided Christian writers as to the manner 
 and form in which, in the early centuries of the Church, 
 priests came to be treated as of different grades, and certain 
 stages of qualification or appointment came to be viewed as 
 essential to the government of a religious community. All 
 such theories, investigations, and arguments, may safely be 
 left to ecclesiastics. AH seem to assume as a first principle, 
 that whatever existed in those first centuries must neces- 
 sarily have been divinely appointed models for all future 
 time ; and perhaps it is not to be wondered, that the same 
 views as to the origin of what is called ecclesiastical law 
 prevailed as we have seen pervading ancient times and the 
 
 1 It is said, that it was first laid down in 1588 by Bancroft in a 
 sermon, that episcopacy was a divine right. — 1 NeaV s Pur. 396. 
 
380 SECURITY OP PUBLIC WORSHIP. ' [ch; ii. 
 
 early centuries as to the origin of secular laws, namely, that 
 these laws were also divinely appointed, and therefore 
 it must be impious to amend them> The law after long 
 experience has step by step retreated from this untenable 
 position, and now no court professes to act on any such 
 assumption. Nearly every chapter and verse of that law 
 has at times been re-written according as experience dic- 
 tates, or a keener sense of equality and justice deiines and 
 gives precision to first principles. All that once floated 
 as maxims vague and indefinite must yield to the lessons 
 of experience, and no distinction can be drawn between the 
 different portions of the same whole. Whatever law exists 
 and whencesoever derived, if it is such as is fit to be enforced 
 between man and man, then it must necessarily be capable 
 of being re-written and amended, whenever the legislature 
 of the day finds the circumstances call for it — and for this 
 obvious reason, that experience teaches men and nations 
 alike wisdom, and nothing that man does or is acquainted 
 with reaches the standard of perfection which every one 
 carries about with him in his own secret heart.^ The 
 sources of the ecclesiastical law lie in that body of doc- 
 trines in which Christian communities had generally agreed 
 before the Eeformation, and hence much looseness prevails 
 in each of its departments. Many of these canons had 
 been absorbed into our common law. It was of no conse- 
 quence where a good rule was first found, or how it 
 originated, if it met a want and was accepted and acted 
 upon in our courts. Such acceptation and daily use have 
 here and there converted many a doctrine of foreign law 
 into part and parcel of our own law as effectually as if 
 the whole power of Parliament were expended in the work 
 of its appropriation and transformation. 
 
 Meetings of clergy in councils and convocations. — 
 That the* bishops and persons in authority in the early 
 Christian Church should meet and confer on the matters 
 tliat interested them is natural and was inevitable. 
 Ecclesiastical writers have remarked, that the Church in 
 
 1 See 1 Pat. Com. (Pers.) 108. 
 
 ^ " Neither God's being the author of laws for the government of His 
 Church, nor His committing them unto Scripture, is any reason 
 sufficient wherefore all churches should for ever be bound to keep 
 them without change."—! Hooh. Eccl. Pol. 238. 
 
OH. II.] CONVOCATION. 381 
 
 England regularly held annual synods till after the Con- 
 quest, and provincial councils continued annually till the 
 fourteenth century, their object being to correct excesses 
 and reform manners ; and convocation then superseded 
 these provincial councils and sat always ■\^hen Parliament 
 sat, and often when Parliament did not sit.i And such 
 ■writers trace thfe existence of diocesan synods soon after 
 the apostolic age, and thence they soon became provincial 
 synods or councils.^ The first council held in England 
 ■was that of Verulam (now St. Alban's) in 446, to check 
 the errors of Pelagianism.^ The papal legates in the 
 time of Henry I. obtained a footing, and so introduced 
 foreign interference in ecclesiastical synods and appoint- 
 ments of bishops,* and this more or less continued till the 
 time of the Eeformation.^ In the thirteenth century the 
 bishops sometimes dre-w up constitutions for their own 
 dioceses ; there weve also provincial constitutions made by 
 the two archbishops.® Of these last, fourteen, extending 
 from 1206 to 1443, were collected by Lyndwood. About 
 the time of Wicliff the convocation met in much tribula- 
 tion at the ferment of new opinions, and assumed to deal 
 with heretics. Another great topic after-wards submitted 
 to it was the divorce of Henry YIII. and Queen Catherine ; 
 and the next was the submission of the clergy and the 
 statute of 1532 which ratified it. The Six Articles were 
 framed in 1539 by the convocation of that day with a view- 
 to check the Eeformation, and those adverse to all relorm 
 thereby committed Parliament to the doctrine of transub- 
 stantiation and the celibacy of the clergy. In lti03 Con- 
 vocation collected the canons which are still in force, 
 being made with the king's licence and thereafter ratified ; 
 and several of these will be afterwards noticed in their 
 -proper place.'^ 
 
 1 Atterhury, Convoo. 385 ; PuBey on Suprem. 113. ^ Kennet, 
 
 Synods, 198. ■ ^ Hody, Eng. Counc. 14. ■» 2 Inett, 163. 
 
 5 2 Spelman, 123. " Lathbury, Convoc. 73. 
 
 7 The convocation, according to some, originated in 1295 -with the 
 -writ of Edward I., -who called together the clergy to give him counsel 
 and help, and aid him by self-taxation of their benefices. This -was 
 the first national assembly to which the lower clergy were called by 
 the king's writ. What the king asked was half a year's profits. In 
 1665 the Archbishop and Lord Chancellor agreed, that in future the 
 clergy would yield up what right they had of giving subsidies to 
 
382 SECURITY OP PUBLIC WORSHIP. [cif. ii. 
 
 Power of convocation as to canons. — The convoca- 
 tion from the first assumed, as was natural, tlie power of 
 making canons which would bind not only the clergy but 
 all the public, the early notions of ecclesiastical jurisdiction 
 being boundless^ and such niceties as the moderns discover 
 never occurring as practical difficulties to any of its mem- 
 bers. But as civilisation advances, and a fi*ee press develops 
 powers and forces which synods and bishops cannot seri- 
 ously control, doubts have long surrounded the position of 
 convocation as a source of ecclesiastical legislation, more 
 especially in its relations to Parliament and the Crown. 
 Some have held, that before the time of Henry A^III. the 
 convocation could make canons and enforce them freely 
 without any consent of the Crown. The first clause of 
 Magna Charta declared, that the Chiarch of England shall 
 be free, and shall have all her liberties— which. Coke says, 
 meant, that ecclesiastical persons should be freed from en- 
 croachments and usurpation, such as purveyance, tolls and 
 custoiiis, compulsory service of temporal offices, and as 
 soldiers.^ Others have said that this meant freedom from 
 all papal interference.^ "While it has again been said, that 
 it meant freedom to elect bishops and hold synods, to re- 
 form the liturgy, and act without interference from the 
 secular courts. At first great looseness prevailed in dis- 
 tinguishing one jurisdiction from another. But the statutes 
 of Provisors and of Praemiinire tended to clear up the sub- 
 ject.^ It was held in the time of Henry VII., that a suit 
 
 the State by their own votes, and would submit to be taxed by the 
 House of Commons. — 5 Burnet,Own Time, 37. And a statute of 1665 
 for the first time taxed both clergy and laity alike. In 1700 the 
 Lower House of Convocation refused to be dissolved by the arch- 
 bishop, and claimed to sit till they were prorogued by their own 
 prolocutor. They set about censuring books as of dangerous con- 
 sequence. The Upper House denied the power of the Lower House 
 to censure any book. The disputes lasted five years, and the Convoca- 
 tion was dissolved in 1702. — 1 Calamy^s Abr. .564-618. In 1717, on the 
 occasion of Bishop Hoadley preaching a sermon which a committee 
 was appointed to inquire into, the convocation was prorogued for 
 six months, and had not been since summoned till a very recent date. 
 —2 Hallam, C. Hist. 395. Warbueton said " their assumed right to 
 censure books would do no good, and that when convocation gave 
 up the old right of taxing themselves, they gave up the right of 
 meeting and debating." 
 1 2 Inst. 3. 2 Barringt. stat, 6. » 25 Ed. III. stat. 6. 
 
CH. II ] CANONS OP CONVOCATION. 383 
 
 in the Ecclesiastical Court for a temporal cause was a 
 ground of praemunire, as for example, to sue there for a 
 debt or for forgery of a will.i And the fact, that the root 
 of ecclesiastical jurisdiction is in the Crown makes no dif- 
 ference in that respect.^ The statute, 25 Henry VIII. c. 
 19, at last enacted, that no canons should thereafter be 
 promulgated or enforced by convocation unless the king's 
 writ had been first issued to hold the convocation, and also 
 his licence to make and enforce the particular canons, and 
 that until a revision of the existing canons and constitutions 
 these should, if not repugnant to the law, remain in force 
 till the commissioners should revise them. Coke said this 
 statute was little more than an affirmance of. the previous 
 law. * By this act of submission, which put an end to any 
 kind of legislation by convocation without the king's 
 licence, the existing canon law was to be reviewed by a 
 commission of thirty-two persons, half lay and half clerical.* 
 The commission of Henry VIII., however, never completed 
 their revision so as to receive the king's assent. And 
 though a like commission was revived by Edward VI. 
 and drew up a reformatio legum, that also never received 
 the royal assent.^ The judges were said in the time of 
 James I. to have met and held, that the king may without 
 Parliament make ordinances and institutions for the govern- 
 ment of the clergy, and may deprive them if they do not 
 obey." But this was an extrajudicial opinion, and it was 
 elsewhere laid down two years later, that the king could 
 not change the ecclesiastical law.'^ The convocation in the 
 time of James I., however, again met and revised canons, 
 which in 1603 received the royal assent. These canons of 
 1603 without doubt bound the clergy, and the Uniformity 
 Act, 14 Charles II. c. 4, did not repeal them. It merely 
 did not affirm them ; yet every clergyman is bound by his 
 oath to obey the canons.* And Lord Hardwicke assumed 
 that, the canons of 1603 did bind the clergy.* And Holt, 
 C. J., expressly held, that a clergyman could be deprived 
 for disobeying a canon which had been made by convoca^ 
 tion.^" The ecclesiastical judges have long been inclined 
 
 1 3 Inst 120. 2 Ibid. 8 12 Eep. 72. * 25 Hen. VIII. 
 
 ,c. 19. 5 2 Burnet, 197 ; Collier, 326. « Moor, 755. ' 12 Bep. 
 19. 8 28 Pari. Hist. 130. » Middleton v Croft, 2 Atk. 660. 
 
 10 St. David's v Lucy, L. Eaym. 449 ; Carth. 486. In 1640 tho 
 
384 SECURITY OF PUBLIC WOBSHIP. [ch. ii. 
 
 to treat the collection of provincial constitutions collected 
 by Lyndwood as if it had been enacted by Parliament 
 Those canons are avowedly collected not only from our 
 provincial constitutions and canons, but from the writings 
 of eminent persons without much nicety of definition.^ 
 And Hale said that there was no great harm in admitting 
 the customs of ecclesiastical persons, for they might well be 
 treated as of equal weight with other customs or usages.^ 
 • Power of convocation to make new canons. — That the 
 bishop should occasionally call his clergy together to con- 
 sult about their common interests and duties was natural, 
 and that an archbishop should call his bishops together 
 with some of the clergy was equally natural, and required 
 no authority or precedent to establish the fact, any more 
 than that the members of any other profession should so 
 meet for like objects of their own. But what they could 
 do when thus meeting has probably not been accurately 
 appreciated. The canons which they made might, in the 
 eye of the law, be nothing more than the resolutions and 
 opinions then current, and containing views and practices 
 which were thought to be the best. And as aU the clergy 
 were bound, and still are bound, to obey the bishops, at 
 least within certain narrow limits, and none could be insti- 
 tuted into the benefices of the Church without promising 
 such an obedience, and being subject to deprivation and 
 other punishments for disobedience, canons seem one mode 
 of influencing the clergy. Nevertheless, as the Statute 
 of Uniformity fixed the range of canons and all other re- 
 strictions on the clergy, no power but Parliament can now 
 effectually alter the situation even of the clergy. And be- 
 yond the clergy the canons could have no legal effect, for 
 no legislative power ever belonged at any time to the con- 
 voca,tion merely as such. It was neither a court nor a 
 corporation. It is true, the common law absorbed from 
 
 convocation enacted canons and exasperated the public, imposing on 
 the clergy the ei cetera oath so as to bind them to make no altera- 
 tion in the government of the Church by bishops, deans, archdeacons, 
 &o. — 2 Hallam, Const. H., c. 9. In 1694 the convocation made a 
 claim to meet when Parliament met, without any royal licence, and 
 this view gave rise to controversies not yet ended. —Lathbury, 
 Convoc. 343. 
 
 1 Kemp V Wickes, 3 Phillira. 276. 2 Hale, MSS., Middleton u 
 
 Crofts, 2 Atk, 669 ; Per Tinial, C. J., R. v Millis, 10 CI. & F. 678. 
 
CH. ii.J NEW CANONS OF CONVOCATION. 385 
 
 time to time, some of the canons, not only of convocation 
 but of tlie general councils of foreign churches. These, 
 however, became part of our law, solely by virtue of their 
 being so appropriated, acted upon, and enforced, either by 
 the temporal courts or by the ordinary ecclesiastical courts 
 which were equally part of the law of the land.' Jurisdic- 
 tion, in ancient times, was subdivided, and the temporal 
 courts disposed of the great mass of litigation, while the 
 ecclesiastical courts, also had a large share which was once 
 conceded to them, though it has been since greatly reduced. 
 But whether the temporal or the spiritual court adopted 
 and enforced any particular canon, it was this very circum- 
 stance, that it was so adopted and acted on, which gave to 
 such a canon all its force. The convocation had no inherent 
 power of its own to make aay canon or bye-law which could 
 bind others than the clergy. And even the power to make 
 canons with this limited authority began to be found 
 capable of abuse and to lead to confusion. And the statute 
 of Henry VIIL, as we have seen, took away altogether the 
 power of convocation to enact and enforce canons, constitu- 
 tions, or, ordinances, by whatever name they should be 
 called, or even, to meet as a convocation without the king's 
 writ authorising them to meet, and the king's licence 
 specially authorising them to make and execute canons. The 
 king's special authority impliedly prescribed the subjects 
 on which canons could alone thenceforth be lawfully made. 
 Ever since' then Parliament has intervened and can alone 
 alter the liturgy and laws of the Church. Thus, even so 
 far as the binding force of new canons could touch the clergy, 
 the king's licence was necessary thenceforth. But even 
 with the king's licence it did not follow, that the clergy 
 either in a convocation or under any other name, could alter 
 the ceremonies, or rights and duties of the other clergy. As 
 these were all defined by the Statute of Uniformity so far 
 as Parliament thought fit to define them, the Parliament 
 which fixed them can alone now alter them. Though the 
 convocation used to meet with the same regularity as 
 Parliament and was a convenient mode by which the 
 clergy imposed a tax upon themselves so as to be on the 
 •same footing with the laity, this practice was discontinued 
 after 1665i as inconveniently keeping up a distinction 
 • 4 Burnet's Own Times, 508. 
 
 C C 
 
386 SECURITY OF PUBLIC WORSHIP. [ch. ii. 
 
 between the clerical and lay professions whicli never could 
 be justified. As the clergy are protected by the same laws 
 as the laity, no reason could be rendered for singling out 
 them and their property as objects for a separate process of 
 assessment.^ 
 
 Convocation as a meams of checlcmg heresy. — The 
 other ground on which Convocation has been viewed is the 
 part it fulfils in the constitution as dealing with heresy. 
 Sir B. Shower, or the author of The Letter to a Convocation 
 Man, said that Convocation was needed to give a check to 
 the further proceeding of loose and pernicious opinions 
 and to remove scandals; and that Convocation was an 
 ecclesiastical court as essential to our constitution as any 
 other law, and the king had no right to withhold his 
 summons calling upon it to meet with the same regularity 
 as Parliament. And it has been urged that Convocation 
 is still, or ought to be, notwithstanding the statutes, the 
 supreme ecclesiastical court in matters of doctrine.^ It 
 has been urged that the convocation at most only conceded 
 to JHenry VIII. and Elizabeth so much of the prerogative 
 of the Crown as had been arrogated by the Pope, but that 
 it did not concede the right of the Church to hold general 
 councils for the reformation of the Church and for the 
 determination of matters of faith, and though Convocation 
 agreed to sit only with permission of the Crown and not 
 to enforce its canons without the Crown's consent, this 
 did not imply that the power came from the Crown any 
 more than th^t Parliament itself derived its motive power 
 from the same source.* But whatever may have been 
 deemed to be the powers of Convocation in ancient times, 
 it cannot be doubted that Parliament has now the inherent 
 power to alter any canons of the clergy without consulting 
 
 ^ Edw. I. had summoned the clergy along with the laity to the 
 national assembly in 1296. 2 Wilk. Gone. 240 ; 2 Spelm. 428. The 
 clergy had taxed themselves separately from the time of Edw. I. till 
 1666. — 3 Stubbs's Const. H. 340. The Crown however has in modern 
 times issued a writ to Convocation to meet and alter the subscription 
 canons and the canon about sponsors ; and two canons on these 
 subjects have been substituted for the old. And on the advice 
 of Convocation, Parliament has sanctioned a new lectionary. — 2 
 PMUimore^s Eccl. Law, 1936. 
 
 * Joyce, Civil Power in Church. 3 Pusey, Suprem. 163; 
 
 5 Gladstone's Glean. 194. 
 
CH. 17.] ECCLESIASTICAL COMMISSIONERS. 38? 
 
 Convocation.' The paramount jurisdiction of Parliament 
 to alter any law binding any class of the community is an 
 elementary principle, and if it has power to alter the Acts 
 of Uniformity and all other statutes, it must have the leaser 
 power of altering and abolishing or re-writing the canons 
 on each and every subject. And to assume that any class 
 or profession can bargain and parley on equal terms with 
 the legislature is to set up an imperium in imperio fatal to 
 every theory of government.'- 
 
 General eontrot of GJiwreh property a/nd the Ecclesp- 
 astical Commissioners. — ^As already explained, the Church 
 not being in any legal sense a corporation, when the 
 property of the church is spoken of, this only means the 
 property vested for the time being in each parson, bishopj 
 dean, canon, and archdeacon severally, each being a cor- 
 poration sole and each being independent of all the others. 
 But the amount of property in the aggregate of all these 
 
 >■ See ante, p. 373. From time to time the subject has been dis- 
 cussed in Parliament, and it has been there contended that Convoca- 
 tion is not the established mode Of promulgating the doctrines 
 and governing the Church of England ; and that as Parliament 
 first selected as much of its practices and doctrines as could with 
 propriety be recognised and endowed with the certainty required by 
 the law, so it must rest with another Parliament to alter what has 
 been done by a preceding Parliament. — 118 Pari. Deb. (3) 559. 
 The consent of the Convocation to the alteration of canons is not 
 necessary. — Per L. Cranworth, 188 Pari. Deb. (3) 1176. There 
 were fifteen Acts between Henry VIII. and the Act of Uniformity 
 of Charles II., and in none of them was any trace of Convocation 
 being consulted except Jas to doctrine, worship, constitutions, and 
 canons ; and the law generally had been treated as proper for 
 Parliament alone.— Per L. Selbome, 219 Pari. Deb. (3) 950. 
 . In 1710 the majority of the judges of the time were of opinion 
 that at common law an appeal lay from all ecclesiastical courts to 
 the Crown by virtue of the supremacy, and that nothing but an Act 
 of Parliament could take away such jurisdiction, and none such had 
 , done so up to that time ; and, moreover, that Convocation had juris- 
 diction to condemn false doctrines and also punish for heresy. — 
 Whiston's Case, 6 Burnet's Hist. 56 ; 15 St. Tr. 715. Buenet, how- 
 ever, says that there were so many doubts as to how to proceed in 
 matters of heresy, that Queen Anne was advised not to allow 
 Convocation to go further, and she prorogued it. 
 
 The canons trenched on the common law by assigning penalties 
 and forfeitures to immoral ofEences. But others have said that '' the 
 great sin of the Protestant legislation was the extension of the 
 penalties of heresy to the wilful denial of any part of the authorised 
 articles of faith," — 1 Sallam, C. Hist. c. 2. 
 
 c c 2 
 
388 SECURITY OF PUBLIC' WORSHIP. [ch. ii. 
 
 units is great, and the clergy from an early period attracted . 
 the gifts of the faithful. When Constantine began to 
 establish Christianity he empowered the clergy to receive 
 bequests and hold land, and the fashion of gifts to sacred 
 uses arose, which ik turn made the bishops ashamed of 
 the apparent avarice of their class, and made them rebuke 
 the legacy-hunting thereby induced. Heathen temples 
 and their spoils often fell in as honourable prizes. And 
 enactments were made restraining alienation to other than 
 sacred uses.^ Coke said that in the reign of Edward I. 
 about one-third of the possessions of the realm belonged 
 to the clergy.^ And Hallam thought it must have been 
 one-half.^ In 1403 the Commons suggested to Henry IV. 
 as a means of obtaining supplies that he might seize on 
 the revenues of tlie clergy, who at that time possessed a 
 third part of the riches of the realm. But the king, seeing 
 the impression made on the peers, said he would sooner 
 have his head cut off than that the church should be 
 deprived of the least right pertaining to it.* Henry VIII., 
 however, deprived the church of one-third of her resoiirces 
 and threw out of Parliament two-thirds of the spiritual 
 baronage.^ The nature and extent of the property and 
 the limitations affecting its use in the hands of each cor- 
 poration sole will be best understood, when the details are 
 stated more particularly in a subsequent page. In modern 
 times some method has been introduced into the manage- 
 ment of so many independent parcels of property. A 
 new corporation called the Ecclesiastical Commissioners 
 was created in 1836.^ The main object was to make 
 better provision for the cure of souls in parishes where 
 such assistance is most reqxiired. They ha,ve ample powers 
 to augment livings, unite and exchange benefices, and the 
 property of many of the corporations sole have been trans- 
 ferred to and vested in these Commissioners, who in return 
 pay over certain fixed revenues to the former holders.'^ 
 
 1 Cone. Carth. iii. 40 ; Antioch. 24 ; Cod. Theod. de Episc. t. 33. 
 
 2 2 Inst. 581. 8 2 Hallam, Mid. Ag. c. 7. * 1 Pari. Hist. 
 294. 5 3 Stubbs, 503. o g & 7 wm jy. c. 77 ; 3 & 4 Vic. 
 c. 113. 
 
 ^ The value of the property so'held by the Commissioners and 
 administered was in 1842 (14 & 15 Vic.) 35,000,000^., and tlie 
 rental was iu 1875, 733,426/. . 
 
CP. III.] ORIGIN Of parishes. 389 
 
 CHAPTEB in. 
 
 I'AUISIIES, BENEFICES, ADVOWSONS, AND SIMONY. 
 
 Origin of parishes.— ThQ present ecclesiastical division 
 of England into parishes, each having a parson, rector, or 
 vicar as the representative of the. freehold of the parish 
 church and glehe and tithes, was unknown in the earlier 
 centuries of the Christian era. Some have maintained 
 that there were no churches, that is to say, places set 
 apart for puhlic worship, during the first three centuries ; 
 but it scarcely requires learning to divine, that any num- 
 ber of persons joining for objects of public worship must 
 have very early seen the necessity for them.' Constantine 
 soon began to erect churches And beautify them.^ And 
 the learned have not failed to notice, that the early 
 churches were nearly all built with their altars towards 
 the east. Anciently the teVenue of the whole diocese 
 was in the hands of the bishop, who divided it among 
 the clergy ; and this was almost a necessary arrangement, 
 as the thought had not occurred of attaching a priest to 
 one fixed spot or church. And it is sa;id that Marcian in 
 460 first ordered the present plan to be carried out, and 
 each church to have its own priest.^ The canon of the 
 1st Council of Bracara forbade the bishops to take any 
 share in the oblations of the parochial church.* But in 
 England the bishops are supposed to have continued much 
 later to share in these funds.^ In England the bishop and 
 clergy lived in common till about the year 700.^ And 
 
 1 Bing. Chr. Ant. b. viii. c. 1. ^ Euaeb. Vit. Const, b. iii. c. 50. 
 3 Theod. Lect. b. i. p. 553. ■• Cone. Brae. I. e. 25. » Bing. 
 Chr., Ant. b. ix. e. 8. « Bed. Hist. b. v. c. 27. 
 
390 SECUEITY OF PUBLIC WORSHIP. [ch. in. 
 
 parishes began to be settled about the same time.^ The 
 origin of parish churches increased gradually here and 
 there, sometimes anticipated and assisted by the piety 
 of the lords of manors and great proprietors making 
 gifts of land and houses in order to facilitate the local 
 establishment. And the feudal notions then pervading 
 society were easily adapted into the ecclesiastical system 
 by making each parish priest the delegate and dependant 
 of the bishop, The lords of manors were in many cases 
 the founders of the parish church, and hence it is, that 
 the parish has often the same boundaries as the manor. 
 At all events, any local division of that land would neces- 
 sarily follow the manor. The exact boundaries of parishes 
 were, moreover, kept in constant remembrance by an an- 
 nual custom of perambulations or beating the bounds. 
 The older practice was to have a procession of parishioners 
 singing the litany. The Injunctions of Elizabeth directed 
 the curate and the substantial men of the parish to join in 
 this walk.^ And it is reported, that the women said amen 
 to the curses.^ 
 
 Origin of advowsons, or right of presentation to 
 benefices. — An advowson is in its origin the right of the 
 advocatus or patron — who is so called because he nomi- 
 nates a priest who shall be seised of the church.* This 
 right of nomination was implied in each founder or bene- 
 factor, and was probably the inducing motive in early 
 times of much of this kind of bounty. When parish 
 churches began to be built, and donors provided the 
 means, it was but natural, or at least usual, and also 
 politic, for the bishop to allow the patron the right of 
 nominating the clerk who was to officiate, and the canon 
 law had in the earliest times recognised this as a kind of 
 common law right.^ And Theodore, seventh Archbishop 
 of Canterbury, encouraged the building of churches by 
 vesting ' their patronage in the founder and his heirs.^ An 
 
 ' Bing. Chr. Ant. b. ix. c. 8. 2 ^ d. 1559. 
 
 ' Strypes' Parker, 153. It is said Sir T. Cromwell instituted parish 
 registers. — Tytkr's Ben. Vlll. (2 ed.) 426. The smallest parish in 
 England, St. Christopher-le-Stook, consists of one house, and is 
 now part of the Bank of England. 
 
 •* Co. Litt. 17 b. 5 Deoret. c. 4, § 24 ; Justin., Novell. 57, 123. 
 
 * The word advowson is said to be a corruption of the words 
 advooat se, as if the patron called himself in his own right to the 
 
CH. III.] ADYOWSONS. 391 
 
 advowson is distinguished according to the stages follow- 
 ing the act of nomination. Where the patron presents 
 his nominee to the bishop for induction, it is called an ad- ' 
 vowson presentative. Where the bishop is patron, and 
 himself inducts, it is called advowson collative. Where 
 the patron names to a donative, it is an advowson dona- 
 tive. And where the patronage resides in a chapter or 
 other corporation, it is called an advowson elective.^ And 
 so far as the advowson is connected with the lands of 
 the patron, it is an advowson appendant or in gross ; the 
 former being added to lands, the latter being severed and 
 held separately from any lands of such patron. 
 
 Advowson as an appurtenant to land. — A& lords of 
 manors were the usual founders, the advowson appendant 
 passed with the manor as an appurtenance or incident, if 
 no special mention was made of such advowson in the 
 conveyance.^ Being itself an incorporeal hereditament, it 
 could only pass as being annexed to a corporeal heredita- 
 ment.^ And though the word " land " will not include an 
 advowson, if it is not appurtenant, yet it will pass under 
 the word hereditament, or the word church.* Nor will an 
 advowson pass under such words as profits or emoluments, 
 for the theory has always been, that it is in its nature a 
 right that does not imply gain or interest.® The owner of 
 an advowson as appurtenant to lands may also sever it from 
 the lands, in which case it is an advowson in gross. More- 
 over it may be severed' only for a time, as during a lease for 
 Hfe.® And when this severance takes place the advowson 
 no longer passes as an incident of the land.' . The owner of 
 a manor may also sever the advowson from all except a 
 small portion thereof, as an acre, in which case the advowson 
 will continue to be an appurtenance of such portion of land. 
 But as a spiritual benefice cannot be granted for years^ or 
 at wiU, it will not pass with a demise of a manor.* 
 
 vacant benefice ; it has been defined a reversionary right of pre- 
 Bentation vested in a man afid his heirs for ever. — God. Rep. 34 ; 
 2 Bl. Com. 21. 
 
 1 Co. Litt. 119, 120. 2 1 Inst. 121. ^ Tyrringham's Case, 4 Eep. 
 37 a. •• Fortesc. 351 ; Co. Litt. 17 ; Cro. Eliz. 163. * London 
 
 V Southwell, Hob. 304. 6 Liford's Case, 11 Eep. 50 ; Eeynoldson 
 
 V Blake, 1 L. Baym. 198. ' E. v Durham, 1 Comyn, E. 362. 
 
 8 Com. Dig. Adv., c. 1. Though the rule as between subject 
 
392 SECURITY OP PUBLIC WORSHIP. [en. iii. 
 
 Alienation and sale of advowson. — Though an advow- 
 son is a right of property yet it has this peculiarity, that 
 the law as matter of theory treats it as a right held for 
 the good of the, church, and not for the mere profit of the 
 individual. Hence the plaintiff in a quare impedit, which 
 is an action for hindering him exercising the right of 
 patronage, was not entitled to recover damages until a 
 statute of Edward I. expressly allowed this to be done.^ 
 The clergy are prohibited by statute " from buying, or for 
 money directly or indirectly procuring or accepting the 
 . next avoidance of, or presentation to, any benefice with cure 
 of souls, any dignity, prebend, or living ecclesiastical ; " and 
 the admission shall be void, and the Crown may present a 
 successor.^ But an ingenious mode has been discovered of 
 defeating that statute, for if a clergyman purchase " an 
 estate for life in the advowson," and a vacancy occurs 
 during such life, then he may present himself, and the 
 bishop has no reason for refusing to examine and admit 
 him. For the courts have said, " an estate for life " is not 
 a next presentation nor a next avoidance, and the statute 
 .must be strictly construed.^ The statute, moreover, re- 
 strained only the clergy, but did not affect the laity, and 
 hence purchases on their part were not prohibited by that 
 statute, and are freely made. And the statute did not 
 prevent a clergyman purchasing the advowson or the 
 perpetual right of presentation as a property and an in- 
 vestment of his own. An advowson being an incorporeal 
 hereditament may be dealt with like other property in 
 most respects. It consists of two separable acts, one of 
 nomination and the other of presentation, the former being 
 the substantial right, and the latter being chiefly a minis- 
 terial act, and the owner may sever the one from the other 
 
 and subject is, that a grant of a manor without special mention of 
 udvowsons appendant will carry such advowsons, yet this is not 
 the case where the king is the grantor, for in such case by statute 
 an express mention of the advowson or something equivalent is 
 required to pass it with the manor or land. — 17 Edward II., c. 17. 
 And yet if the Crown restores and not grants, as where it restores a 
 bishop's temporalities, then no such special mention is required. — 
 ]Vhistler''H case, 10 Co. 64. 
 
 1 13 Ed. I. c. 5 ; 1 Inst. 17 b. 2 13 Anne, c. 11. ^ Walsh v 
 Bp. Lincoln, L. E., 10 C. P. 518. 
 
CH. lu.] ADVOWSONS AND PEESENTATIONS. 393 
 
 and grant the nomination to a third party .^ Moreover the 
 party entitled to present cannot do so before the vacancy 
 occurs, and if another is admitted on such vacancy, the 
 person to whom the promise or engagement was made 
 cannot pursue any remedy, and the court said, that any 
 custom set up of electing to a full place must be foolish.'' 
 One remarkable thing is, that an infant, however young, may 
 nominate as well as present to an advowson, which how- 
 ever only means, that though the guardian may do these 
 acts, they must be done in the name of the child. The 
 notion was, that the guardians could not make money by 
 the duty of presentation, and to prevent it the power was 
 not to be trusted to them.* Best, C. J., said this doctrine 
 led to the ridiculous ceremony of the guardian putting the 
 pen into the hand of the infant in his cradle, and guiding 
 that feeble hand while it signed the presentation.* When 
 the advowson belongs to the wife, then the husband must 
 concur with her in the presentation, and after her death he 
 is tenant by the curtesy and so alone presents.^ And for a 
 like reason, if the surviving husband die after the vacancy 
 .has occurred, the presentation will belong to his executor 
 and not to the wife's heir. And, on the other hand, the 
 widow's dower entitles her to the third presentation after 
 the husband's death.^ If an advowson belong, to one who 
 has become bankrupt, he has the right to present, and such 
 a right is expressly excepted out of those that pass to 
 creditors.^ In the case of the lands being mortgaged to 
 which the advowson is appurtenant, the mortgagor is, 
 in the absence of covenant, entitled to present iintil there 
 is a foreclosure, for the advowson is not deemed one of the 
 profits of the estate.® 
 
 Death of owner of advowson or presentation. — The 
 rule as to whether the right to present goes to the heir or, 
 the executor of the patron is explained in this way. When 
 a vacancy occurs and the patron is not the bishop, the 
 right to present is in the nature of a personal power detached 
 tiom the lands or office to which it may be an accessory, 
 and so it goes to the executor of the patron^ if the latter 
 
 1 Att.-Gen. » StafPord-, 3 Vic. c. 80. ^ Owen v Staiuoe, Skin. 45. 
 3 Re Arthington, 2 Gas. Eq. 518, 575. * Fletcher v L. Sondes, 
 
 3 Bing. 584. « Co. Litt. 29 a. ^ Co. Litt. 34 b, 379 a. 
 
 7 32 & 33 Vic. c. 71, § 15. » Mackenzie « Robinson, 3 Atk. 559. 
 
394 SECURITY OF PUBLIC WORSHIP. [oh. hi. 
 
 has not yet presented.' Aud thus, while the lands descend 
 to the heir or the office goes to a successor, the right of 
 presentation falls to the executor of the patron. And even 
 where the patron had nothing but a term in the right of 
 advowson, and the term came to an end after the right 
 accrued, but before it was exercised and the patron died, 
 Ms executor would have the right to present though the 
 term had vanished in the meantime." This right to the 
 vacant turn of presentation is deemed in the eye of the 
 law to be in the same position as a chattel vested in the 
 testator ; and it was on this analogy that it was held, that 
 when a prebendary had a right of advowson and died 
 before he exercised it, the next turn belonged to his 
 executor and not to the successor in the prebend.^ So 
 an advowson may be devised with or without the power to 
 sell the next presentation.* And till the trustees sell, the 
 cestuisque trust has the right of presentation." And it 
 may be given on trust to present some fit person, such as 
 the parishioners and inhabitants should nominate : in which 
 case the right of election has been held in practice to 
 belong to the majority of the inhabitants above the age of 
 twenty-one, and paying church and poor rates." And in a 
 case of this kind au election by ballot would not be illegal.^ 
 As advowsons are on the footing of temporal inheritances 
 and descend by course of inheritance, and can be dealt 
 with otherwise in like manner,* so they may be granted to 
 trustees for the benefit of cestuisque trust. In such a case 
 all the ceduisque trust must agree in the nomination.^ And 
 if they cannot agree, the court has allowed them to de- 
 termine by lot which of them should nominate.^" A majority 
 
 ' Mirehouee v Rennell, 8 Bing. 550. " Ibid. 
 
 ' Ibid. Wliile right ol: pressntation to a vacant benefice passes 
 on the patron's death to his executor, it is otherwise as to advow- 
 sons belonging to the bishop. As to hira, if he dies before present- 
 ing, the right goes not to his executor, but to the king as part of 
 the prerogative. — Mirehouse v Kennel), 8 Bine/. 650. 
 
 ■• E. Albemarle v Rogers, 2 Ves. 477. ■ * Biggs v Sharp, L. R., 
 20 Eq. 317. <* Fearon v Webb, 14 Ves. 13. ' Shaw v Thompson, 
 3 Ch. Div. 233. » Doct. & Stud. 2, o. 26. 
 
 ^ And in the event of the trustees not presenting the person elected, 
 there is either a remedy as for breach of trust or by way of man- 
 damus to compel performance of a legal duty. — R. v Orton, 14 Q. B. 
 139 ; R. V Kendall, 1 (?. B. 366. 
 
 'W Johnstone v Barber, 6 De G. M. & G. 439. 
 
CH. III.] ADVOWSONS OF PAPISTS. 396 
 
 of a corporation have teen held entitled to present.^ And in 
 the event of an advowson becoming vested in joint tenants 
 or tenants in comihon, or in trustees, unless they manage to 
 agree -within six months, the ordinary can present, for the 
 presentation lapses.^ In the case of coparceners succeed- 
 ing to the advowson, the common law recognises a prece- 
 dence in the elder sister to this extent, that she has the 
 first turn, and the next turn goes to the second sister, and 
 so on tiU the turn of the first sister comes round ; and this 
 order will be adhered to though one of the coparceners 
 negligently allows usurpation.^ The turn of each is com- 
 plete when the church is full, though the clerk presented 
 may afterwards be deprived.* In all such cases, however, 
 of joint tenants, tenants in common and coparceners, they 
 may obtain a partition, whereupon, by statute, each is 
 seised of a turo,^ and so the difficulty of a plurality of 
 holders is overcome. 
 
 Advowsons of corporations, the Crown and Papists. 
 — In consequence of the ipconvenience of advowsons 
 being practically vested in large bodies of ratepayers or 
 inhabitants who derive no pecuniary advantage therefrom, 
 and yet such a species of interest prevents useful improve- 
 ments in the benefice, the legislature interfered, and au- 
 thorised the sale of such advowsons, and the application 
 of the proceeds to the erection, rebuilding, or improvement 
 of the parsonage-house, or the augmentation of the living, 
 or other useful purposes.^ The option of adopting such a 
 resolution is given to a general meeting of all the owners." 
 And before the date of the last statute it had been enacted 
 that where advowsons were vested in municipal corpora- 
 tions or of members thereof, the legislature in 1835 took 
 away from such corporations the option of retaining these, 
 and authorised the advowsons to be sold at the discretion 
 of the Ecclesiastical Commissioners, and the proceeds to 
 
 1 K. « Kendall, 1 Q. -B. 366. ^ Doctor & St. b. ii. c. 30 ; 
 
 Eeyiioldson v Blake, 1 Eaym. 197. ^ Birch v Bp. Lichfield, 
 
 3 B. & P. 449. 
 
 * Windsor's case, 5 Coke 102. In some cases of coparceners not 
 being able to agree, Lord Hardwicke allowed them to draw lots 
 which should have the first presentation. — Seymour v Bennet, 2 
 Ath.i82. 
 
 s 7 Anne, c. 18, § 2. c i9 & 20 Vic, c. 50. '' Ibid. 
 
396 SECURITY DF PUBLIC WOESHIP. [ch. hi. 
 
 be invested, and the interest applied to the borough 
 fund/ 
 
 One peculiarity attending the presentation to benefices 
 is, that the king is deemed the paramount patron, and if 
 the bishopric is vacant, or the bishop is incapacitated, his 
 right to appoint to the benefices of the bishopric devolves 
 on the sovereign. The maxim in law is, that the Church 
 is not full as against the king till induction, and hence if 
 the bishop has presented, but not inducted, the king 
 obtains the presentation.^ Moreover, when a person who 
 is the owner of an advowson is promoted to a bishopric 
 his right of presentation devolves on the king, though 
 such person may have already given away the presenta- 
 tion to a grantee. Such a prerogative right of presentation 
 is held not to supply but only to suspend or postpone the 
 turn of the patron, and of all the patrons if more than one, 
 and it does not take away the right of one and leave the 
 rest entire. And hence the grantee above mentioned will 
 merely have his right postponed by this one turn, and will 
 come in after the death of the king's presentee.^ 
 
 Owing to the peculiarity of Papists being owners of 
 advowsons, elaborate precautions were devised in former 
 times to disqualify them from presenting. And by a 
 statute of James I. and subsequent statutes, the presenta- 
 tions to any living, free school, or hospital, belonging to 
 Popish recusant convicts or their trustees, were divided 
 between the cha.ncellor and scholars of Oxford and Cam- 
 bridge University respectively, according to the counties 
 in which the benefices were situated.* The only condition 
 of this transfer of such gifts was, that the person presented 
 should not already have a benefice with the cure of souls. 
 But while the right of presentation was thus taken away 
 from Papists, no other right of such patrons was affected, 
 such as tJie right to sell or alienate for good considera- 
 tion for the benefit of a Protestant.^ And on the view 
 just mentioned, no Papist who is a member of a corpora- 
 tion having an advowson is to take part in the appoint- 
 
 1 5 & 6 Will. IV. c. 76, § 139 ; 6 & 7 Will. IV. c. 77. § 26 ; 1 & 2 
 Vic. c. 31. 2 Co. I;itt. 388 a. a Calland v Troward, 2 H. Bl. 
 
 324 ; 8 Bro., P. C. 71 ; B.. v Eton College, 8 E. & B. 632. 
 
 * 3 Jas. I. c. 5, § 13 ; 1 W. & M. o. 26, § 2 ; 13 Amie, c. 13, S 1 ; 
 10 Geo. IV. c. 7, §§ 15-18. ^ n Geo. II. c. 17, § 5. 
 
CH. III.] ADVQWSONS DONATIVE. 397 
 
 ment ; nor is any Papist to advise the Crown in snch a 
 matter.^ The legislature in these statutes, however, provided 
 only for the case of the advovvson belonging to a Papist in 
 severalty, for if he is a tenant in common vi^ith another 
 ■who is not Papist, that other may exercise the right as if 
 he alone were the owner. This was held to be the con- 
 struction of the Act which did least harm to the Protestant 
 co-patron.^ 
 
 Advowsons as donatives. — AnO'ther kind of incum- 
 bency is called a donative, which differs from the others in 
 this, that no admission, institution, or induction by the bishop 
 is required, and the patron puts the donee in possession at 
 once.^ The origin of such a right is said to have been 
 this, that some lord of a manor or donor had built and 
 endowed the chapel on condition that he should have the 
 nomination of the priest in his own hands, as well as the 
 exclusive property of the benefice or presentation. And 
 a donative includes various kinds of preferment, and among 
 others, prebends. When the donee is once in possession 
 he is in the same position as an incumbent after induction, 
 and cannot be dispossessed. It is, however, necessary that 
 he be a priest in orders,* and have subscribed the declara- 
 tion of conformity.^ In case of a vacancy in this kind of 
 advowson the bishop can compel the patron to nominate. 
 Coke says, that the king could by founding a church 
 exempt it from ordinary jurisdiction, and he could license 
 a subject to found a church with the same privilege.® 
 'Hence, though the bishop has jurisdiction over the donee 
 so far as clerical discipliae is concerned, yet he has no 
 jurisdiction over the church or chapel, as for example, in 
 regard to the regulation of seats.^ And yet the ordinary 
 
 1 10 Geo. IV. c. 7, §§ 15, 18. 
 
 2 Edwards v Bp. Exeter, 5 Bing., N. C. 652. In 1831 there were 
 1,248 advowsons in the hands of archbishops and bishops ; 787 in 
 the hands of deans and chapters ; 1,851 in the hands of ecclesiastics! 1 
 corporations sole ; total, 3,886. There were also 952 in the hands of 
 the crown ; 721 in the_ hands of universities, colleges, &c. ; 53 in 
 the hands of municipal 'corporations ; 5,096 in the hands of private 
 owners. — Martin's prop. Ch. Est. 75. Others estimated private 
 patrons at 8,409. — Ibid. p. 88. 
 
 3 JFarchild v Gayre, Cro. Jas. 63. < 14 Ch. II. c. 4, § 10. 
 5 Powell V Milbum, 3 Wils. 355. « i jngt. 344a. 
 
 7 Colefatt V Newcomb, 2 L. Eaym. 1205. 
 
398 SECURITY OF PUBLIC WORSHIP. [ch. iir. 
 
 has power over the churchwardens, who are the officers 
 not of the patron hut of the parish.^ But the Ecclesiastical 
 Commissioners have latterly been empowered in certain 
 ways to make schemes so as to render donatives subject 
 to the bishop.2 
 
 Offence, of Simony as to presentations. — Though th'e 
 law has made an advowson a separate property in the hands 
 of the patron, which he can sell and alienate almost at 
 pleasure, and yet it is deemed a trust vested in him for 
 the good of the public, it is singular that the law has 
 made no provision for the fitness and acceptable qualities 
 of the patentee; for as regards the laity, who form the 
 congregation to be benefited by the efficient discharge of 
 his duty, no attempt has ever been made to give the laity 
 any voice whatever in the selection of their parson, nor 
 has this view ever occurred as requiring much considera- 
 tion. And yet the treatmeht of simony has long been a 
 conspicuous qualification of the absolute right of sale and 
 purchase, though it affects the relations existing between 
 the bishop and patron and the presentee, and is not a 
 matter in which the laity can directly or indirectly 
 interfere. 
 
 As Simon Magus was rebuked for presuming to pur- 
 chase the gift of God with money, the name of simony 
 was given to offences of that kind, namely, the purchase 
 of holy orders or of benefices in the church. Coke says 
 simony is odious in the eye of the common law, and is 
 the more so because it is ever accompanied with perjury.^ 
 All the memorable councils of the church denounced this 
 as a wrong thing, and various canons marked it as a 
 heinous offence.* The Council of Chalcedon, in 451, 
 desired that if any bishop ordained or gave preferment for 
 money, both parties should suffer loss of office. And 
 this rule was acted on more or less ever afterwards.^ 
 
 1 Castle V Richardson, 2 Str. 715. = 6 & 7 Will. IV. c. 77, § 10 ; 
 10 & 11 Vic. c. 98. 3 3 Inst. 153. * A. d. 1841, Dean of York's 
 Case, 27. 
 
 5 Labb^, vol. iv. p. 755 ; Bing. Chr. Ant.' b. 16, c. 6. To guard 
 against anything resembling simony, Justinian made it incumbent 
 on the voter in church elections afBrmativelj' to disclaim that he 
 voted in consideration of a gift or of friendship or such like cause. — 
 Novell, 123, «. 1. The early bishops were elected by the clergy and 
 laity in the diocese ; at last the king came to have the confirmation 
 
OH. III.] SIMONY. 399 '• 
 
 And the same rules -were adopted in the early English 
 Church.^ The injunctions of Edward VI. and Elizabeth, 
 and the canon of James I., repeat the declaration, that the 
 buying or selling of benefices or sacred functions is a de- 
 testable sin.^ And an oath against simony was required 
 by the 40th canon of 1603 as a condition preliminary to 
 admission, which is now only superseded by a declaration 
 to the like effect.^ 
 
 Statutes prohibiting and pimishing simony. — There 
 being great looseness in the description of this offence of 
 simony, it was found necessary in 1588 to define it more 
 exactly by a statute, the effect of which was to make void 
 the presentation or collation made to any ecclesiastical 
 living for money or money's worth, directly or indirectly, 
 or for the promise of it. The gift of the living for that 
 one turn thereupon falls to the Crown, and the offending 
 patron forfeits double the value of one year's profits. And 
 the offending presentee is disabled from enjoying the same 
 living.* And to institute corruptly is also a void act.* 
 As a consequence, the patron may within six months 
 make a fresh presentation.* And so corrupt resignations, 
 exchanges, and ordinations are equally void.^ One pun- 
 ishment is, that he who has been corruptly ordained is 
 disqualified for seven years to hold any ecclesiastical 
 living.® In construing the statute with reference to 
 
 of the election, and this soon became equivalent to the appointment. 
 And it was at this stage that simony grew up, seeing that corruption 
 Could not be wholly eradicated from courts. The evil was great, 
 and was condemned in 549 by the Council of Orleans. — Condi. Awel. 
 V. (549) can. 10. The Pope, Nicholas I., in 865 tried to cure the evil 
 by cutting off the right of suffrage from the laity. But after a long 
 struggle between the Pope and the king, in the thirteenth century 
 a kind of general appeal to Home as the last resort for all Christen- 
 dom was acquiesced in. — Lea^s Ch. Stud. 151. The third couneal of 
 Lateran in 1179 forbade even the gift or promise of the next pre- 
 sentation to an ecclesiastical benefice. And when a parent purchased 
 a benefice for his son without the privity of the son, it was deemed 
 as against the son a simoniacal act avoiding the living. — Van Esp. 
 Jv/r. Sec. p. 2, tit. 3. 
 
 1 Ecbright Exc. a.d. 740; Lafranc's Can., a.d. 1075. ^ ^ i,_ 
 1547, 1559, 1603. 3 28 & 29 Vic. c. 122, § 2 ; Canon 1866. * 31 
 Eliz. c. 6, § 4 ; 3 Inst. 153. 5 ibid. § 5. 6 jbid. § 6. ? Ibid. §§ 7, 9. 
 
 8 Ibid. § 9. The Statute of Elizabeth was passed " to put an end to 
 the taunts of Papists, that cobblers, tailors, tinkers, and millers, 
 were in course of being admitted to the ministry." — 1 Pari. Hist. 
 
400 SECURITY OF PUBLIC WORSHIP. [ch. ri.' 
 
 w_ — — 
 
 contracts made for securing ordination and benefice, it has 
 been laid down, that it is contrary to the public policy 
 declared by the statute for any one to make an agreement 
 to procure holy orders, for these are presumed to be con- 
 ferred solely out of regard to the candidate's fitness. And 
 it is' equally against public policy to bind one's self to 
 solicit the benefit of patronage in consideration of money, 
 for it is presumed that a patron looks out for the fittest 
 person, irrespective of such conditions.^ It was not neces-, 
 sary to this offence, that the patron should be privy to thd 
 corrupt contract ; and hence where the father of a youth 
 contracted with the patron's wife to give her 100^. if the 
 patron presented his son to the living, this was held con- 
 trary to the statute.^ And so in another case, where a 
 friend of the presentee had given a bribe to the patron's 
 page, this made the presentation void.^ And it was the 
 same where two fathers came to an agreement, and one 
 covenanted with the other to procure a presentation for 
 his son in consideration of the other's daughter marrying 
 him.* But an exchange of livings and a mutual' agree- 
 ment not to insist on payment for dilapidations does not 
 necessarily amount to simony, for in exchanges each party 
 proposes to himself some benefit ; and these were expressly 
 allowed by the statute of Elizabeth, though productive of 
 temporal advantages to both parties.* K'or is a contract 
 by the vendor of an advowson, who is not the incumbent, 
 to pay interest on the purchase-money to the purchaser 
 until a vacancy occurs deemed simoniacal.® 
 
 Sale of advowson or presentation while incumbent in 
 a dying state. — The courts interpreted the statute of 
 Elizabeth against simony to mean the corrupt obtaining or 
 giving of the next presentation when the living was vacant 
 or voidable.' But it did not strike at a sale of the next 
 , presentation if the living was full, until a statute passed 
 which avoided that also, if a clergyman was the purchaser, 
 as this was deemed the height of indecency.® But while a 
 
 746. This statute also was held to apply to donatives of the king's 
 
 donation. — Bawdercook v Maokallar, Oro. Ch. 330. 
 
 1 Lord Kirkcudbright v Lady K., 8 Ves. 51. 2 q^^^ jag_ 3g5_ 
 3 R. i;Trussel, 1 Sid. 329. * Byrte 11 Manning, Cro. Ch. i'lo. 
 5 G-oldhara 1; Edwards, 16 C. B. 437 ; 17 C. B. 141 ; 18 C. B. 389 ; 
 
 Wright V Davies, 1 C. P. Div. 638. « Sweet v Meredith, 3 Giff. 
 
 610. T Grey v Arketh, Amb. 268. 8 12 Anne, c. 11. 
 
CH. III.] RESIGNATION BONDS. 401 
 
 clergyman could not buy the next presentation for himself 
 a layman might do so. 
 
 The case then arose, whether it was lawful to sell the 
 advowson when the incumbent was in a dying state. The 
 courts at first held that this was simoniacal and void,^ and 
 continued under that impression for 241 years, till in 1829 
 the House of Lords reversed the train of decisions, add laid 
 down the rule, that though the incumbent is on his death- 
 bed to the knowledge of the vendor and purchaser of the 
 advowson, yet if this was without the pritity or without 
 any view to the nomination of the particular clerk, the sale 
 was unimpeachable on the ground of simony.^ The court 
 argued that every sale of an advowson must contetnplate 
 the death of the incumbent, and why should one incumbent 
 be distinguished from another ? If anything turned on the 
 probabilities of immediate death, this was so vague a cir- 
 cumstance, that no evidence could establish it without great 
 litigation ; and as broad rules and tests were favoured by 
 the law, by far the safer course was to hold, that^ while the 
 incumbent was alive, however near the point of death, the 
 sale of the next presentation was good.^ 
 
 Practice of resignation hands. — A mode of defeating 
 the simony statute was soon discovered, which consisted in 
 a patron presenting A., on obtaining from A. a bond con- 
 taining a condition, that A. would resign after au agreed 
 
 1 Cro. Eliz. 685. ^ Fox i; Bp. Chester, 6 Bing. 1. 
 
 3 The view of the courts of law was set forth as follows : — " The 
 patronage of churches was at first yielded by the bishops to the 
 lords of inanors who founded or endowed them and annexed them to 
 the manors in which the churches were situate. By the grant of a 
 manor the advowson appendant to it passes to the grantee. Many 
 of these advowsons have since been severed from the manors to 
 which they were appendant. Although advowsons, when in gross, 
 as those which are separated from the manors to which they belonged 
 are called, are a species of spiritual trusts, yet they have been said "■ 
 by Lord Kenton and other judges to be trusts connected with in- 
 terests, and they certainly do not lose the temporal character which 
 originally belonged to them, but may be sold either in perpetuity or 
 for the next or any number of avoidances. If it be proper to pre- 
 vent the giving of money for a presentation, it seems equally proper 
 to prevent the sale of that which gives the immediate right to pre- 
 sent. But the courts of law have never thought that they were 
 authorised to go this length."— Scsi, G. J., Fox v Bp. Chester. 6 
 Bing. 16. 
 
 E D 
 
402 SECURITY OF PUBLIC WORSHIP. [ch. iir. 
 
 notice, or on request from the patron. It was held, how- 
 ever, in 1780, that by this arrangement a patron could not 
 obtain complete command over the living and use it as an 
 investment, for the holder of a living could not obtain it 
 or hold it for a less term than for life. And though the 
 courts of law long held such a bond to be valid, yet the 
 House of Lords reversed their decision and held such a bond 
 void.^ And that decision settled the law, that a general 
 resignation bond was yoid.^ 
 
 The next great question which arose was, whether a 
 similar bond of resignation to resign on request for the 
 purpose of presenting a particular person was also void. 
 For after the decision in 1780, the courts of law still treated 
 bonds of resignation, which required the obligor to live 
 personally on the benefice, and to perform all the spiritual 
 duties till a particular person was capable of succeeding, 
 to be valid and binding. These courts held that the objec- 
 tion to general resignation bonds was, that they enhanced the 
 value of the living to the patron, and enabled him to sell 
 with the means of procuring an immediate vacancy. But 
 that view, it was said, did not apply to a special resigna- 
 tion bond, which did not give any benefit to the patron ; 
 except remotely by providing for a son or brother. When 
 a case occurred in 1826, and the law was reviewed, a 
 majority of the consulted judges then advised the House that 
 special resignation bonds were as illegal as general resig- 
 nation bonds. The House of Lords accordingly held that 
 these bonds were void, for, as Lord Eldon, L. 0., said, even 
 after resignation there was no law on earth which could 
 compel the patron to present the particular person desig- 
 nated in the bond. Therefore the one kind of bond was as 
 contrary to public policy as the other.^ But as the law 
 
 1 Bp. London v Fytche,' 1 Bro. P. C. 96. 
 
 2 In this case the House of Lords consulted eight common law- 
 judges, and seven held the bond was valid and one held it invalid. 
 Lord Thurlow said he considered the patron as only a trustee for 
 the public to dispose of the living ; and the bishops helped Lord 
 Thurlow to reveise the decision of the two courts below. The vote 
 
 > for reversing was 19 to 18, the majority including all the bishops 
 present.— 23 Pari. Hist. 878. 
 
 3 Fletcher v L. Sondes, 3 Bing. 503. Best, C. J., in 1826 de- 
 fended the validity of these special resignation bonds at common 
 law, as he said all the judges before him had done for 200 years, 
 
CH. III.] REMEDY FOR SIMONY. 403 
 
 had been deemed to be otherwise, and many had offended, 
 an Act of Parliament was passed in 1829 for the express 
 purpose of mitigating its severity and allowing these special 
 resignation bonds to be valid in a few cases. Accordingly 
 such bonds were declared to be, and they are now legal and 
 binding, if made in order that the patron's uncle, son, 
 grandson, brother, nephew, or grand-nephew (whether the 
 relationship be by blood or marriage) shall be presented to 
 the living.i But this further condition is imposed, that, 
 part at least of the writing is to be registered within two 
 months after its date, with the registrar of the diocese or 
 jurisdiction, and it is to be open to public inspection on 
 payment of a small fee.^ The bishop cannot then refuse 
 to accept the resignation when tendered.* 
 
 Repiedy in case of simony. — Though a simoniacal pre- 
 sentation was contrary to law, yet it was deemed only 
 voidable by deprivation, until a statute of Elizabeth made 
 it utterly void.* When a layman has taken part in it, the 
 remedy is an action for penalties under that statute.^ And 
 when the patron has made a corrupt presentation, the 
 right to present devolves on the Crown.® It is for the 
 Ecclesiastical Court to entertain direct proceedings for the 
 punishment of simony ; that is to say, the presentee or eccle- 
 siastical person can he proceeded against as for a criminal 
 offence.'' And this is by virtue of the canon law, which 
 
 thus : " To hold these bonds void will cause owners of manors with 
 advowsons annexed tq sell the advowsons and break the connection 
 between the landed interest and the clergy. The young men of 
 family are from their education and habits likely to make the best 
 parish priests. From their connections with the owners of lands in 
 the parishes, all the inhabitants feel a respect for them which must 
 add much to the effect of the instruction they give. Connection 
 with proprietors of the soil gives to the clergyman the greatest in- 
 terest in the happiness of his parishioners, and stimulates him to 
 promote their spiritual welfare. Such persons will not take orders 
 when the livings which their ancestors founded are severed from 
 their families. I am aware these are rather considerations of policy 
 than law." — Fletcher v L. Sondes, 3 Bing. 590. 
 
 1 9 Geo. IV. c. 94. » Ibid. s Ibid. § 5. ■•31 Eliz. c. 6. 
 
 5 Ibid. 6 3 Inst. 153. 
 
 7 Whish V Hesse, 3 Hagg. 693. Sie J. Nichols said there was 
 no instance before or since tlie statute of Elizabeth of a proceeding 
 against a person as simoniaci promotus without his being privy to • 
 the simony. 
 
 D D 2 
 
404 SECUBITY OF PUBLIC WOIlSHIP. [cH; iii. 
 
 makes simony an offence.^ But though an ecclesiastical 
 person simoniacally inducted may he proceeded against- at 
 once, it was enacted in 1688 that, if the offence be not 
 discovered and punished in his lifetime, it would be too 
 late to proceed after his death, and innocent- successors 
 were not to be disturbed and displaced on such an ac- 
 count.^ And though a layman may legally purchase a 
 next presentation, it is illegal for a clergyman to do so 
 in his own name, directly or indirectly, except in a way 
 already pointed out.* Such an induction would be void, 
 and the Crown will have the bestowal of the next pre- 
 sentation.* The clerk will be disabled by this statute, 
 and punishable moreover by deprivation.* 
 
 Vacancy and excha/nge of benefices. — The weakness 
 of the older kings and Parliaments, perplexed by the 
 boldness and confidence of the ecclesiastics, allowed a 
 species of exaction called first-fruits and tenths to be 
 collected by the pope's officers. First-fruits were the 
 value of a spiritual living for one whole year after a 
 vacancy; but Coke says small vicarages and parsonages 
 were excepted, though aU were to pay tenths.* Par- 
 liaments had often protested against these exactions as 
 being grievous.' At last a statute of Henry VIII.j again 
 protesting that they never belonged to the pope, prohi- 
 bited the payment of them, and transferred them to the 
 Crown.^ During the vacancy of an incumbency the com- 
 mon law in theory treated the profits as held for the 
 benefit of the Church, though by custom the bishop 
 claimed them. To meet the growing evil of bishops and 
 archbishops purposely delaying institution in order to 
 appropriate these profits and first-fruits, the statute of 
 Henry VIII. already mentioned gave all the profits to 
 
 1 Bp. St. David's v Lucy, 1 L. Eaym 449. Holt, C. J., said simony 
 is an offence by the canon law of which the common law does not 
 take notice to punish it, for there is not a word of simony in the 
 statute of Elizabeth, but only of buying and selling. 
 
 2 1 W. & M. c. 16, §§ 1, 2. 3 13 ^nne, c. 11, § 2., anU p. 392. 
 " Ibid. 5 Lee v Merest, 39 L. J., Eccl. 52. 6 4 i^pt. 120. 
 
 ^ 34 Ed. I ; 60 Ed. III. ; 12 Coke, 45. 
 
 8 25 Hen. VIII. c. 20 ; 26 Hen. VIII. c. 3. And various statutes 
 regulated the mode of ascertaining the values and appropriating 
 'them.— 26 Hen. VIII. c. 17. ; 2 & 3 Ed. VI. c. 20 ; 1 Eliz. c. 4 ; 
 6 Anne, c. 54 ; 6 & 7 Will. c. 77 ; 3 Geo. I. c. 10. 
 
CH: III.] VACANCIES IN BENEFICES. 405 
 
 the next successor towards payment of his first-fruits.^ 
 And in construing this statute the successor or person 
 next presented has been interpreted to mean the person 
 de facto admitted, provided it is not declared by a court 
 or statute to be a void admission. And in practice the 
 churchwardens, take out a sequestration authorising them 
 to manage the temporal affairs, part of the profits being 
 assigned for reasonable stipend to him who serves the 
 cure,^ 
 
 As an advowson is in most respects capable of being 
 dealt with as other real estate, it is capable of being ex- 
 changed, which, however, is an operation which involves 
 a double resignation and a double induction. And there 
 were corrupt practices incident to this arrangement which 
 a statute of Elizabeth attempted to punish.^ Another abuse 
 much favoured in early times was the practice of bishops 
 and others obtaining dispensations for the purpose of 
 holding benefices in commendam, that is, committed to the 
 care of another, and so held as to evade the law against 
 pluralities. That practice, however, was put an end to in 
 1836.* 
 
 In ancient times, when remedies were slow and ineffec- 
 tual, usurpations of benefices were frequent, and such 
 superstitious importance was attached to the continuance 
 of possession in the usurper, that the patron was held to 
 lose his right altogether for not having in time prevented 
 intrusion, there being no other remedy open to him. But 
 a statute of Anne corrected this injustice, and treated a 
 usurpation as not displacing the original right .of the 
 patron.'' 
 
 1 25 Hen. VIII. o. 20. " 1 Gibs. 749 ; 28 Hen. VIII. c. 11, 
 
 § 3 i 1 & 2 Vic. c. 106, § 100. 
 
 ' 31 Eliz. c. 6, § 7. Various powers as to the exchange of advow- 
 sons were given by statutes through the machinery of the Eccle- 
 siastical Commissioners.— 6 & 7 Will. IV. c. 77 ; 3 & 4 Vic. c. 113, § 
 73 ; 4 & 5 Vic. c. 39, §§ 22, 23 ; 16 & 17 Vic. c. 50 ; 23 & 24 Vic. 
 c. 124, § 42 ; 31 & 32 Vic. c. 114, § 12 ; 33 & 34 Vic, c. 39. 
 
 < 6 & 7 Will. IV. c. 77, § 18 ; 1 & 2 Vic. o. 106. And sinecure 
 rectories have in recent times been gradually suppressed. — 3 & 4 
 Vie. c. 113. 
 
 5 7 Anne, c. 18. 
 
406 SECURITY OP PUBLIC WORSHIP. [m. iv. 
 
 CHAPTER IV, 
 
 ORDERS OF BISHOPS, PRIESTS AND DEACONS, AND INSTITU- 
 TION INTO BENEFICES. 
 
 A sepa/i'ate order of priests. — Montesquieu observed 
 that the Egyptians, Jews, and Eomans had a separate 
 order of men as priests, and that people who have no 
 priests are commonly barbarians.^ The separation into 
 laity and clergy was indeed familiar to many other 
 nations of antiquity. The priests of India, Persia, 
 Assyria, Ethiopia, and Gaul aU derived their temporal 
 possessions from a celestial origin.^ The apostolic age, 
 it is said, was remarkable for the vagueness of its organi- 
 zation in religious society. Paith and charity were the 
 chief ties ; independence and equality the leading ideas 
 of mutual dependence, and the want of discipline and 
 human learning was supplied by the occasional assistance 
 of prophets, who were called to that function without 
 the distinction of age, sex, or natural abilities, and poured 
 forth their spirit under a divine impulse.^ 
 
 In the Church of England ecclesiastical persons consist 
 of three grades or orders, namely, bishops, priests, and 
 deacons, and these are recognised in the liturgies, canons, 
 and statutes.* Early in the Christian era a distinction 
 
 1 Montesq. b. 25, c. 4. 
 
 2 Gibbon's Rome, c. 20. Even the Kaffirs consider it essenlTal 
 that their priests should be initiated before officiating, part of the 
 duties being to detect and punish sorcerers and act as rain-makers. 
 —Maclean's Kaffirs, 79, 83, 104. 
 
 ' Gibbon's Rome, c. 15. 
 
 * 3 & 4 Ed. yi. c. 10 ; 14 Ch. II. c. 4, § 16. " Those who are to 
 instruct presumptuous ignorance, those who are to be censors over 
 insolent vice, should neither incur their contempt, nor live upon 
 
CH. IV.] BISHOPS. - 407 
 
 between priests and bishops became settled; tbough 
 controversies have long continued as to their precise 
 mutual relations. The order of office-bearers ■ in the 
 Church of- England next to bishops are priests and deacons, 
 and the distinguishing ceremony by which the latter attain 
 that position is by ordination, or a species of solemn con- 
 secration which can only be performed by a bishop. And 
 a person presuming to consecrate the Sacrament of the 
 Lord's Supper without being an ordained priest forfeits 
 lOOL] 
 
 Bishops and their original mode of appointment— 
 According to the early practice of the Church, bishops, 
 whatever were their precise position and functions among 
 the clergy, were elected by the laity and clergy together, 
 though it is believed the clergy formed the more numerous 
 constituents.^ Justinian confined the electors to the 
 iiobUity.^ By degrees the laity were got rid of altogether, 
 and next the clergy became merged in the cathedral 
 chapter, which was a select body of clergy more closely, 
 connected with the chief church of the diocese. This 
 latter stage was reached, it is thought, about the beginning 
 of the thirteenth century.* It was not to be wondered 
 
 their alms. We therefore have the established clergy mixed through- 
 out the whole mass of life, and blended with all classes of society." 
 — Bu/rke, Fr. Rev. 
 
 1 14 Ch. II. c. 4, § 10. There were officers inferior to priests in the 
 third century called Clerici, from their being chosen by lot, as was the 
 custom of both Jews and Gentiles. — Bing. Vhr. Ant. b. 1, c. 5. Deacons 
 were, according to the civil and canon law; allowed to be ordained 
 at the age of twenty-five. — Just. Nov. 123, c. I'd. Deaconesses were 
 for several centuries regularly appointed as officers of the ohurchj 
 being widows of mature age or virgins. One part of their duty was 
 to assist at the baptism of women, to act as catechists, to attend to the 
 sick, and especially to the wants of martyrs and confessors. They 
 ceased to be. appointed after the tenth century. ^ — Bing. Chr. Ant, h. 
 2, 0. 22. But though women served at the altar in 824 — Guizot 
 Civ. Fr. 133 — they were never appointed to the office of priests. 
 And Heeodotds says the same of the priests of the gods and god- 
 desses of his time. — Herod, b. 2, c. 35. And yet the inferior officers 
 oE the church were forbidden to resign and return to a secular life. — 
 Labbi, vol. iv., Concil. pp. 759, 1051. 
 
 2 Gibbon's Rome, c. 15; Cyprian, Ep. 76. ^ Xov. 123, § 1. 
 
 ' Van Espin, b. 13, p. 1. In England before the Conquest, bishops 
 were appointed in the Wittenagemot ; and even in the reign of 
 William I. it was said that Lanfranc was raised to the see of Canter- 
 bury by the consent of what then corresponded to Parliament. — 4 
 
408 SECURITY OF PUBLIC WORSHIP. [ch. iv. 
 
 that so conspicuous an office as that of a bishop shoiild in 
 course of time have required the confirmation of the 
 sovereign, and this was said to be a universal practice 
 in all Ghristian countries since the time of Oonstantine, 
 and was noticed in England in the time of Alfred.^ lu 
 the time of William the Conqueror it came to be w.ell 
 settled, that the king appointed to the office by delivery of 
 the ring and pastoral staff.^ Indeed, Coke says more 
 accurately, that a bishop is regularly the king's immediate 
 officer to the king's court of justice in causes ecclesiastical, 
 and the right of donation in the Crown necessarily resulted 
 from the principle and foundation of property, for patronage 
 followed the foundation.* It would be singular if one 
 who had so large a share in administering the laws of the 
 country could be otherwise appointed. Such a result was 
 inevitable in any well-ordered government, whatever may 
 have been the early practice. The part played by the 
 Pope iu such appointments was tolerated with more or 
 less vacillation for centuries, for want of any ready and 
 peremptory answer being found to his interference. And 
 
 LytUlton, Hen. II: 144. Bishops were elected after the Conquest by 
 tlie clergy, and a charter of John confirmed such right of election to 
 the dean and chapter as was the case in other countries. — Gibs. Cod. 
 133 ; 3 Stuibs, 296 ; Fra Paolo {Benef.) c. 24. The Pope assumed a 
 right to determine disputes as to the election — 3 Stubbs, 302 ; and in 
 the beginning of the fourteenth century he assumed the patronage 
 as well as the appellate jurisdiction. "William the Conqueror, with 
 the aid of the Pope,, also removed bishops. — 3 Stubbs, 317. One 
 characteristic of a bishop is that he must be at least thirty years of 
 age, that being said by the canonists to be imitated from the age 
 of our Saviour when he began to preach. — Bing. Chr. Ant. b. 
 2, c. 10. 
 
 The Archbishop of Canterbury is the primate of all England, St. 
 Augustin having been the first appointed in 698 by King Ethelbert. 
 And he was primate of Ireland also to the yeal- 1152. He has the 
 ancient duty of crowning the kings of England. The Archbishopric 
 of York was first created in 622. The Archbishop of Canterbury 
 has precedence of all the nobility and next after the blood royal, 
 while the Archbishop of York has precedence over all dukes not of 
 the blood royal, and of all peers except the Lord Chancellor. — God. 
 13, 14. The Archbishop, besides having a diocese of his own, has 
 jurisdiction of a visitorial kind over the bishops within his province. 
 — Lynd. 277. In 1770 a bishop was deprived, for the power of 
 deprivation is deemed incidental to the visitori'il power. — Bp. 
 St. David's v Lucy ,4 L. Raym, 539 ; 14 St. Tr. 447. 
 
 ' Bede, b. 50, c. 20. ' Ayl. Par. 126. ^ 1 Inst. 134. 
 
CH. IV.] APPOINTMENT OF BISHOI^S. 409 
 
 it was left to a statute of Henry VIII. by strong and 
 direct language to put an end to all such pretensions of 
 foreigners to interfere, whatever was the show of authority 
 under which they had once professed to act^ Henry 
 VIII. created some new bishoprics out of the ruins of 
 dissolved monasteries, and hence these are often referred 
 to as those of the new foundation in contradistinction to 
 those of the old foundation.^ 
 
 Form of appointment of bishops by conge d'Mire. — 
 Yet this prerogative of the Crown to appoint bishops was 
 attacked by the Pope, who claimed that the gift of the 
 ring and staff should come from him; while the Crown 
 should content itself with mere feudal homage, And owing 
 to the overpowering effect of custom, even the Parliament 
 of Hejiry VIII. resorted to the transparent artifice of 
 appearing to give the power of selection to the dean and 
 ahapter by first issiiing a coriige d'ilire (3,3 was adopted in 
 the reign of John), and then confirming their nomination. 
 And though the legislature of Edward VI. declared this to 
 be no election, but "only having colours, shadows and 
 pretences of aij election," it survives to this day, not 
 without exciting astonishment in bystanders.^ The 
 astonishment lies in the effort to uiderstand how a 
 chapter can be said to elpct when the person to be 
 elected is dictated to them and they can be punished 
 by.prBBnjunire or forfeiture of lands and goods for not 
 choosing the person so nominated. And the astonishment 
 stUl further increases when the forms observed in this 
 fictitious election allow objectors to come forward to object, 
 while there is no court or constituted authority in existence 
 to entertain or dispose of such objections.* 
 
 1 25 Hen. VIII. c. 20, § 3. 2 31 Hen. VIII. c. 9. ' 1 Inst. 
 134 ; 3 Salk. 71 ; 25 Hen. VIII. c. 20, §§ 3, 4 ; 1 Ed. VI. c. 2. 
 
 * 25 Hen. VIII. c. 20, § 6; Hampden's case,- Jebb's Report; 
 Temple's case, Phillim. Ecci L, 52. The bishop after being appointed 
 must be consecrated. — 25 Hen. VIII. 0. 20,- § 4. The form of con- 
 secration is set forth in the Prayer Book. — Article 36. The bishop 
 also must take an oath of obedience to the archbishop, and subscribe 
 the thirty-nine articles. — 14 Ch. II. c. 4. The letters patent of the 
 Crown nominate the bishops and archbishop who are to take part 
 in the consecration, and to refuse to act within twenty days is an 
 offence punishable by praemunire. — 25 Hen. VIII. c. 20, § 6. On 
 consecration the bishop's status is complete. — 3 Salk. 481. The 
 bishop does feudal homage to the Crown for his temporalities and 
 
410 SKCURITY OF PUBLIC WORSHIP. [ch. jv. 
 
 Bishops as peers of parliament. — When a bishop is 
 duly appointed and consecrated, he is on the footing of a 
 peer of the realm, and is entitled to receive his writ like 
 other peers to attend the House of Lords. And so im- 
 portant as constituent members of the House of Lords 
 •were they once deemed, being with the abbots the great 
 majority of that assembly, that it was sometimes doubted 
 whether a statute would be valid which did not show that 
 they concurred in it, or at least were present.^ And some 
 have doubted whether they sat by virtue of their barony 
 or by usage, as having this dignity annexed to their of&ce 
 . — a nicety which can now be of little importance.^ The 
 bishops were excluded by statute from sitting in Parlia- 
 ment in 1640 ; and were restored in 1661.* But though 
 bishops and archbishops sit in Parliament like peers of 
 the realm, there is one particular in which they do not 
 share the privileges of the peerage, namely, in being tried 
 by their peers for treason and felony, or taking any part 
 in the trial of other peers for capital offences. Various 
 
 barony. — 26 Hen. VIII. c. 20, § 5. The boundaries of the diocese 
 of bishops were revised and readjusted in 1836.-^6 & 7 Will. IV. c. 
 77; 10 & 11 Vio. c. 98, 108; 1 Vic. c. 30 ; 13 & 14 Vic. c. 94; 
 23 & 24 Vic. c. 124. A bishopric is subdivided into archdeaconries, 
 deanries, and parishes. — 1 Inst. 94. 
 
 1 2 Inst. 585 ; 4 Inst. 1. About th6 middle of the nineteenth 
 century the bishops bore only the proportioii of one-fourteenth of 
 the whole House of Peers. Coke says that bishops ought to be 
 summoned to Parliament, but that an Act of Parliament is valid 
 whether they assent or not to it. He says an Act of Parliament 
 was proposed to be passed that no man should contract or marry 
 himself to any Queen of England without the special licence and 
 assent of the king. " And the bishops and clergy, being present, 
 assented to this till as far J orth as the same swerved not from the law 
 of God and of the Church, and so as the samg imported no deadly 
 sin." And this was holderi no asseht, but the Act was passed omitting 
 the preliminary statement that the prelates assented.- — 2 Inst. 586. 
 
 2 1 Inst. 97; 4 -Inst. 1, 12; Hale quoted, Warburton's Alliance, 131. 
 
 3 16 Ch. I. c. 27 ; 13 Ch. II. c. 2. On the occasion of the union 
 between England and Scotland the danger to the church, and 
 especially of the exclusion of the bishops from the House of Lords, 
 was used as an argument against it ; and it was urged that, at least, 
 the Scotch members should be prevented voting in any ecclesiastical 
 matter. — H. L. Debates, 1706. On the creation of some modern 
 bishoprics a limited right to sit in Parliament, according to priority, 
 has been declared by statute 10 & 11 Vic. c. 108 § 2. Even the place 
 of sitting.of bishops in the House of Lords is defined by statute. 31 
 Hen. VIII c. 10, § 3. 
 
on. iv.] POWERS OF BISHOPS. 41 1 
 
 ancient canons and constitutions directed them to take no 
 part in trials for capital offences, or, as it was described, in 
 causes of blood.^ By this it is true it was only meant, that 
 though they might sit and hear, they were to retire before 
 the voting. And though a statute of William III. seemed 
 to make no exception of spiritual peers, that statute was 
 held to apply only to trials before the High Steward, and 
 not to trials and impeachments . before Parliament itself. 
 But in either case, the bishops could not vote in capital 
 cases.^ And as regards the right to be tried by their peers, 
 i.e. by the temporal peers, they could only be so tried if 
 the Parliament was sitting.^ This was said to be becaiise 
 the bishops sat, not by virtue of nobility, but solely by 
 virtue of their offices, or because. they thought if they 
 were so tried they would admit a temporal jurisdiction.* 
 
 Powers and duties of bishops. — The bishops were at 
 first the perpetual censors of the morals of the people, 
 and soon reduced the practice of penance to a kind of code.* 
 Charlemagne is said to have first permitted bishops to have 
 prisons of their own in which to confine lay offenders, 
 while the monasteries had prisons for refractory clerks.® In 
 those times temporal and ecclesiastical jurisdictions were 
 blended and confused without attempt at discrimination. 
 
 1 Gibs. 125 ; Lind. 269 ; 3 Inst. 30. " 7 & 8 Will. III. c. 3 ; 
 
 Foster, Cr. L. 247. ' 2 Hawk. 424. 
 
 * 1 Phillim. Eccl. L. 76. In 1700 when a bishop was deprived of 
 liis office by the archbishop's qourt, the Lords resolved that he 
 could not claim the privilege to be tried by his peers in opposi- 
 tion to the archbishop's jurisdiction, and that after deprivation all 
 claim to retain his temporalities ceased. — Lucy v Bp. Watson, 14 St. 
 Tr. 447. In the early part of George III. it was doubted if a bishop 
 on resigning could retain his seat in the House of Lords, and hence 
 the Bishop of Rochester's resignation was not accepted. — 1 Hallam, 
 Const, n. c. 2. But resienation is now allowed by statute, see post. 
 
 * Gibbon's Rome, c. 20. 
 
 * Giannone, b. vi. c. 7. Bishops had anciently large powers of 
 discipline. At an early date it was settled that he had power to 
 scourge the inferior clergy, but could only imprison the superior 
 clergy. — Condi. Matiscon. can. 5. And thirty-nine stripes was the 
 limit of the former, because Moses specified forty as the maximum. 
 It was deemed a breach of discipline for one of the clergy who 
 quarrelled with another not to submit the quarrel to the bishop ; and 
 resorting to a secular tribunal was a cause of deprivation, — Bing. 
 Chr. Ant. b. xvii. c. 5. In the eighth century a bishop was bound 
 to keep a separate house near the church for the purpose of enter- 
 taining strangers. — Ecgbright's Exc. A. p. 740. 
 
412 , SECURITY OF PUBLIC WORSHIP. [ch. iv. 
 
 Though their powers over the laity have long since ceased 
 they have considerable powers over the clergy, all of whom 
 take an oath of canonical obedience to their bishop, and can 
 be proceeded against for an ecclesiastical offence if they dis- 
 obey a lawful order in such matters as are lawful, as will be 
 noticed in a subsequent page relating to the offences of the 
 clergy. Thus a bishop, subject to appeal to the archbishop, 
 was held to have the power to inhibit at his pleasure a 
 beneficed and licensed clergyman of another diocese from 
 officiating or preaching in his diocese without his licence, 
 though such clergyman have the permission of the incum- 
 bent.^ He has also power, as the visitor of the cathedral, to 
 order the removal of ornaments which he finds there, if they 
 are illegal.^ In most ecclesiastical matters the ultimate 
 control of discretionary powers exercised by the incumbent 
 and by churchwardens has been vested in the ordinary, who 
 is usually the bishop, but in some places it is the dean and 
 chapter.^ The bishop cannot, it is true, render ceremonies 
 legal which the law deems illegal.* And while it is an 
 ecclesiastical offence for any, clergyman to disobey the 
 lawful commands of the ordinary, yet this rule requires 
 the distinction to be carefully observed as to what is and 
 what is not a lawful command.^ The oath of canonical 
 obedience does not mean that the clergyman will obey all 
 the commands of the bishop, against which there is no 
 law; but that he will obey all such commands as the 
 bishop is by law authorized to impose. For example, he 
 would not be bound to publish during divine service a 
 notice of a proposed meeting of clergy which the bishop 
 was interested in promoting.* The ordinary has also, as 
 
 I Bp. Down V Miller, 11 Ir. Ch. R. App. 1 ; 5 L. T., N. S. 30. 
 
 s Philpotts V Boyd, L. E., 6 Priv. C. 435. s Parham v Templar, 
 3 Phill. 241. 
 
 * Express power was given to the bishop by statute to enforce a 
 third service in a parish under certain circumstances, or two services. 
 —58 Geo. III. c. 45, § 65 ; 1 & 2 Vic. c. 106, § 80. 
 
 s Bp. Winchester v Rugg, L. R., 2 Priv. C. 223. 
 
 6 Long V Bp. of Capetown, 1 Moore, P. C, N. S. 411. It was 
 once deemed a good excuse for not obeying the bishop, that he was 
 suspected of having obtained his office by simony. — Jiing. Chr. Ant. 
 b. xvi. c. 1. When Henry VIII. abolished the practice of resorting 
 to the Pope for dispensations care was taken to reserve power to 
 the Archbishop of Canterbury to grant licences, dispensations, and 
 
OH, IV.] VACANCIES IN BISHOPRICS. 413 
 
 will be seen, large powers in testing the fitness of pre- 
 sentees in point of learning and doctrine It is true, that 
 if he reject a presentee, he must state the specific ground 
 of rejection, so that the high court may see that it is 
 within his powers.^ The ordinary has also the duty of 
 gVanting a faculty to do certain things which it is deemed 
 unsafe to leave to the arbitrary discretion of the incumbent 
 or any other individual ; and yet there are limits beyond 
 which the faculty may be altogether inept.^ Thus to 
 convert a consecrated place into .a highway is beyond 
 the power of any faculty.^ But it is available in order 
 to enlarge a church or erect a vault in the churchyard, 
 to appropriate pews or set up monuments.* On the other 
 hand it is an ecclesiastical offence for the incumbent to 
 alter the fabric of the church without a faculty of this 
 description.^ And for like reasons a churchwarden is not 
 safe in removing an unlawful ornament without a faculty.® 
 And to remove dead bodies from consecrated ground 
 requires in'all cases a faculty.^ 
 
 In the event of a vacancy in the office of a bishop, there 
 is, by the theory of the ecclesiastical common law, a guar- 
 dian of the spiritualities to attend to the spiritual duties, 
 and the dean and chapter seem to be the ordinary guardians 
 or some ecclesiastical person by prescription.* Statutes 
 were necessary to enforce the duty of repairs on the guar- 
 dian of Church property during a vacancy in the bishopric, 
 and Magna Charta had an express provision to that effect ; 
 and to allow remedies against trespassers in this interval.^ 
 On the other hand, the temporalities of the bishopric or 
 
 faculties to the king, provided the things that were to be done were 
 not contrary to the Holy Scriptures and laws of God. — 25 Hen. VIII. 
 c. 21. But the difficulty under such an enactment obviously will 
 be to define when this contrariety exists, and how and by whom it 
 is to be decided. 
 
 1 Bp, Exeter v Marshall, L. E., 3 H. L. 17. ' Eugg v Kinggmill, 
 L. E., 2 Priv. C. 59. 
 
 3 St. John's V Walbrook, 2 Eob. Ecol. 515. And yet it was 
 allowed to convert part of the churchyard into a vestry room. — 
 Campbell v Paddington, 2 Eob. Eccl. 558. 
 
 ■• Groves v Hornsey, 1 Hagg. Cons. 188 ; Eosher v Northfleet, 
 3 Add. 14 ; Eioh v Bushnell, 4 Hagg. Eccl. 164. ' Sieveking v 
 
 Kingsford, 36 L. J., Eccl. 1. ^ Eitchings v Cordingley, L. E., 
 
 3 Eccl. 113. 7 Adlam v Colthurst, L. E., 2 Eccl. 30. s 2 Inst. 15 • 
 25 Hen. VIII. c. 21, § 10. ^2 Inst. 151. 
 
414 SECURITY OV PUBLIC WOESHIP. [ch. iv. 
 
 archbishopric belong to the Crown by virtue of the prero- 
 gative until, the successor is confirmed.^ Owing to the 
 singular notion pervading the law of ecclesiastical persons 
 that they could not resign their offices when once appointed, 
 a statute of 1869 was passed to obviate this disability, by 
 permitting bishops and archbishops to get rid of their ofJfice 
 and duties and obtain a retiring allowance in a mode therein 
 pointed out.^ And the same statute authorises the appoint- 
 ment of a bishop coadjutor.^ 
 
 Deans and chapters, prebendaries, &c. — Besides the 
 ordinary priests and deacons, a group of clergy surrounded 
 the bishop in his cathedral, and indeed at first all bishops 
 were merely priests of large dioceses or districts, living 
 with their clergy in a small community, until the wants of 
 outlying places called away some of them to supply regular 
 and increasing exigencies. And hence, in the latter case, 
 arose parishes and parish priests. The communities were 
 -distinguished as chapters, convents, and colleges, according 
 as they grew out of cathedrals, convents, or colleges. The 
 diocese of a bishop was, at an early period, divided into 
 deanries, or groups of ten parishes.* And by degrees one 
 dean came to be the chief of all the others, and to have 
 some superintending, power over all the clergy as adminis- 
 tering much of the business and discipline of the diocese.^ 
 Deans on the older foundations are elected by the chapter 
 on a congS d'elire, and in the modem foundations are ap- 
 pointed by Eoyal letters patent.® The canons of 1603 re- 
 gulate some of the duties. The dean is head of the chapter, 
 
 ^ 2 Inst. 15. Suffragan and assistant-bishops have sometimes 
 been appointed as deputies or assistants to those' who have dioceses ; 
 and a statute of Henry VIII. recognised the utility of such appoint- 
 ments, especially with a view to act more efBciently in certain towns 
 in the diocese.— 26 Hen. VIII. c. 14. The archbishop or bishop of 
 a diocese, with this view, is authorised to nominate two suitable per- 
 sons, one of whom is selected by the Crown, and is to be called 
 bishop suffragan of the same see with a title applicable to the town 
 where he is to ofiSciate ; and the archbishop consecrates him. Tlie 
 suffragan's power and duties are specified in the commission from 
 the archbishop or bishop, and for his better maintenance the 
 suffragan bishop may have two benefices with cure. And coadjutor 
 bishops in ancient times were sometimes ordained to assist and 
 succeed the bishop of a diocese. — Bing. Chr. Ant. b. 2, c 13 
 
 2 32 & 33 Vic. c. 111. 3 Ibid. §§ 3, 4. * Gibs 171. 
 
 5 Ken. Par. Ant. 634. See p. 415. « Gibs. 173. 
 
m. IV.] DEANS AND ARCHDEACONS. 415 
 
 which consists of canons and prebendaries, and officers, all 
 presumed to assist in the better ordering of the things of 
 the cathedral church,^ those chapters founded by Henry 
 VIII. being deemed new, in contradistinction to the ancient 
 foundations.^ The legislature has several times endeavoured 
 to enforce freedom in elections to cathedral preferments.* 
 And with this view the majority was declared by statute 
 able to bind the whole.* And in modern times statutes 
 have largely regulated many particulars respecting their 
 property and powers.^ 
 
 Archdeacons and rural deans. — The office of arch- 
 deacon in ancient times was used to assist the bishop and 
 censure tlie inferior clergy, though the area of his jurisdic- 
 tion was matter of dispute. Nor is it settled whether he 
 was originally elected by the deacons or appointed by the 
 bishop.* And as in cases of doubtful origin of rights and 
 customs in civil matters, the writers on the laws of the 
 clergy have resorted to the fiction of a lost grant from the 
 bishop, assuming that this was a most satisfactory explana- 
 tion of all that concerns his powers.^ The archdeacon 
 exercises what is deemed ordinary jurisdiction oyer a part 
 of the diocese like a local judge, to whom certain episcopal 
 authority is delegated.^ At the time of the conquest the 
 charter of William practically put an end to both the bishop 
 and the archdeacon exercising jurisdiction, and thus made 
 •way for the judges, who have ever since disposed of the 
 greater part of this kind of superintending authority.* 
 An archdeacon is appointed by the bishop and sometimes 
 by a lay patron. He must now be a priest of six years' 
 
 1 God. 56, 58. 2 1 Inst. 95. ' 3 Ed. I. c. 5 ; Artie, cleri, 
 
 9 Ed. II. c. 14 ; 31 Eliz. c. 6. * 33 Hen. VIII. c. 27 ; Dean of 
 
 Windsor, Freem. 504. 
 
 5 The position and regulation of deans and chapters, and canons, 
 after 1841, have been prescribed by statutes 3 & 4 Vic. c. 113 ; 4 & 5 
 Vic. c. 39 I 13 & 14 Vic. c. 94 ; 36 <^ 37 Vic. c. 39 ; 27 & 28 Vic. c. 
 70; 29 & 30 Vic. c. 111. Deans, archdeacons, and canons must 
 since that date be priests of six years' standing, except a canonry is 
 annexed to a university office. — 3 & 4 Vic. c. 113, § 24; and the 
 statutes regulate the estates and endowments as well as residence 
 houses. By 3 & 4 Vic. c. 113 (1840) 360 prebends were suppressed 
 and their property vested in the Ecclesiastical Commissioners. — 136 
 Farl. Deb. (3) 2050. 
 
 6 1 Phillim. Eccl L. 236. ' Gibs. 969. s gibs. 170. 
 9 Ibid. 
 
416 SECURITY OF PUBLIC WORSHIP. [en. iv.. 
 
 standing.^ And he exercises a yisitorial jurisdiction, and 
 certifies to tlie bishop the offences of the clergy and church- 
 wardens. And he even claimed at one time jurisdiction 
 over laymen as well as clergy, which is not to be wondered, 
 for the canon law encouraged him to impose penalties on 
 laymen for not repairing their parish church.^ The arch- 
 deacon or his judge, called the official, entertained some- 
 times applications for faculties or disputes as to election of 
 churchwardens. And there is an appeal from his court to 
 that of the bishop.^ The oflSce of archdeacon has in modern 
 times been regulated in many of its details by express 
 statutes.* 
 
 A subdivision of dioceses smaller than archdeaconries 
 is a rural deanry, which is supposed to be as ancient as 
 Edward the Confessor.^ The bishop appoints the rural 
 dean, whose duty it is to execute the process of the bishop's, 
 consistory court, and to hold a rural chapter to inspect the 
 manners of the clergy f this last duty at a later period 
 having, to some extent, devolved on the churchwardens. 
 In very modern times this last function was revived or 
 recognised, and made ancillary to the archdeacon.^ 
 
 Perpetual curates and chapels of ease. — Besides 
 deacons and priests, there are curates who are in reality 
 only priests, not attached to any incumbency, but acting as 
 assistants of rectors or vicars, who employ and pay them 
 as such. A perpetual curate, on the other hand, is one 
 who is nominated by the impropriator for the discharge of 
 the spiritual duties!. The perpetual curate is so called 
 because, when once nominated by the impropriator and 
 licensed by the bishop, he is no longer removable by such 
 
 1 3 & 4 Vic. c. 113, § 27. ^ Lindw. De off. archd. 
 
 3 24 Hen VIII. c. 12. * 6 & 7 Will. IV. c. 77 ; 3 & 4 Vio. e. 
 
 113 ; 4 & 4 Vic. c. 39 ; 13 & 14 Vic. c. 94 ; 37 & 38 Vio. c. 63. 
 
 5 Kennett, Par. Ant. 633. « Gibs. 973. 
 
 7 6 & 7 Will. IV. c. 77, § 1 ; 3 & 4 Vic. c. 86, § 3 ; 3 & 4 Vic. c. 
 113. § 32; 34 & 35 Vic. c. 43, §§ 8, 12 ; 34 & 35 Vic. c. 44, § 5.. 
 Besides the rural deans proper, there were also some anomalous 
 oliicials called deans of peculiars, whose functions are almost 
 entirely matter of special custom in a few churches or chapels. — 
 God. 52 ; Wats. c. 15. But now the jurisdiction over all these 
 peculiar places has been transferred to the bishop. — 6 & 7 Will. IV. 
 c. 77, § 10 I 3 & 4 Vic. 0. 86 ; 10 & 11 Vic. c. 98 ; 13 & 14 Vic. c. 
 94, § 24. 
 
en: IV.] CURATKP. 417 
 
 impropriator.^ A perpetual curacy is not, however, a 
 benefice in the eye of the law, and so is not subject to the 
 rule as to pluralities," though it is so for the purpose of 
 dilapidations.* And in his capacity of perpetual curate he 
 has possession of the churchyard only for spiritual pur- 
 poses ; and hence cannot exclude the lay rector from using 
 the soil and herbage.* 
 
 Besides those called perpetual curates there is also a 
 variation of the same function as to chapels of ease. As 
 parish churches were found to be inconveniently distant 
 from parts of the parish, a practice arose many centuries 
 ago of lords of manors or other benefactors building or 
 dedicating a chapel of ease for the accommodation of those 
 parts, and the parish priest setting apart some of his stipend 
 for the maintenance of a curate. In order to complete this 
 arrangement the bishop, the patron, and the parish priest 
 required to join.^ The bishop's licence is necessary before 
 this class of curates can officiate, and the curate must be in 
 priest's orders.® 
 
 Compulsory employment of curates. — As the incum- 
 bent of a benefice is not necessarily licensed to preach, the 
 canons of 1603 recognised a duty in him to find a curate, 
 seeing that preaching is part of the function of a paro- 
 chial church.'^ A class of curates called stipendiary curates 
 are employed in most populous parishes to assist the rector 
 or vicar. Such curates on appointment require to take an 
 oath and declaration of assent.^ Older' statutes relating to 
 this portion of the clergy were repealed and superseded by 
 the Act of 1837.* If a non-resident incumbent refuse or 
 neglect, the bishop may, after a time specified", appoint and 
 license a curate and assign his salary .i" Moreover in all 
 cases, if the bishop see reason to believe that the eccle- 
 siastical duties of a benefice are inadequately performed, 
 he may issue a commission of inquiry, and after their 
 report may require the incumbent to nominate a curate, 
 
 1 Gibs. 819 ; D. Portland v Bingham, 1 Consist. 165. His power 
 of leasing under 1 Geo. I. st. 2, c. 10, was considered in Doe d. 
 Richardson v Thomas, 9 A. & E. 556 ; Doe d. Bramall v Collinge. 
 7 C. B. 939. "^ Arthington v Chester, 1 H. Bl. 425 ; Home v 
 
 Lodge, 3 Taunt. 463. ^ Mason v Lambert, 12 Q. B. 795. 
 
 4 Greenslade « Darby, L. E., 3 Q. B. 421. ^ Ken. Par. Ant. £8o. 
 
 6 Can. 1603, § 48 ; Can. 1865, § 36. ? Can. 1603, §§ 46-8., 
 
 8 28 & 29 Vic. c. 122. M & 2 Vic. c. 106. '» Ibid. § 76. 
 
 E E 
 
418 SECURITY OF PUBLIC WORSHIP. [ch. n'. 
 
 and failing such nomination may himself appoint and 
 license one with a proper stipend.,^ But the incumbent may 
 appeal against such a requisition to the archbishop, whose 
 decision is final, being subject to no further appeal." The 
 bishop is appointed by the same statute the referee in all 
 differences between the incumbent and his curate as regards 
 stipend, and on failure to pay the same the bishop has 
 power to enforce payment by monition and by sequestra- 
 tion of the profits.^ The bishop has power also to revoke 
 the licence of such curate for any cause, provided he first 
 give the curate an opportunity of showing cause to the 
 contrary; and provided that the curate may within a 
 month appeal to the archbishop.* In the latter event the 
 archbishop must also hear the appellant before deciding, 
 while at the same time his decision is final.* On the occa- 
 sion of these hearings by the bishop, no particular form 
 of proceeding is essentia, provided substantial justice is 
 
 1 1 & 2 Vic. c. 106, § 77. 
 
 2 Poole V Bp. London, 1 E. & E. 545 ; 14 Moore, P. C. 262. And 
 in large benefices, as defined by the statute, the bishop may require 
 a curate to be employed as an assistant. — 1 & 2 Vic. c. 106, § 78. 
 Moreover, the bishop may at discretion require two full services in 
 any church or chapel of his diocese every Sunday throughout the 
 year.— Ibid. § 80. 
 
 In 1831 there were 10,718 incumbents ; there were 1,006 curates 
 of resident incumbents, and 4,224 curates of non-resident incum- 
 bents ; total, 15,948 persons. 
 
 In 1875 there were 13,300 incumbents and 5,765 curates : total, 
 19,065. 
 
 In 1875 another estimate of the established clergy was 24,738 ; 
 those actually connected with churches being 19,237. — Sep. H. C- 
 Pub. Worsh. 1875, p. 296. 
 
 ' 1 & 2 Vic. c. 106, § 83. The statute supplies a scale of payment 
 for curate's stipend according to population and value of the benefice. 
 — Ibid. § 85. The general minimum stipend is 80Z. a year. The 
 incumbent may at any time on obtaining written permission from 
 the bishop, give six months' notice to his curate to leave the curacy ; 
 and if the bishop refuse such permission, the incumbent may appeal 
 to the archbishop. — 1 & 2 Vic. c. 106, § 95. If the curate occupy 
 the house of residence and neglect to deliver up possession, he 
 inoui's a penalty of 40s. a day for his wrongful possession. — Ibid. § 
 96. On the other hand, the curate cannot give a shorter notice to 
 quit than three months, and the notice must be given to the bishop 
 as well as <to the incumlDent, otherwise he forfeits six months' stipend. 
 —Ibid. § 97. 
 
 ^ 1 & 2 Vic. 0. 106, § 98. 6 Poole ,) Bp. London, 1 E. & E. 545 ; 
 14 Moore, P. C. 262. 
 
CH. IV.] LECTURERS. 419 
 
 done ; and the ground of revoking the licence is not neces- 
 sarily any legal misconduct such as could be the subject 
 of redress in another proceeding, for the discretion confided 
 to the bishop is liberal. And in the case of sequestration 
 of a benefice, care is taken that the bishop shall appoint a 
 curate to attend to the religious services, and his stipend 
 is made a first charge out of the income of the benefice.^ 
 
 Lecturers. — Besides the regular clergy, consisting of 
 rectors, vicars, and curates, lecturers are also frequently 
 appointed in populous cities to assist the rector, being 
 usually chosen by the vestry or chief inhabitants by virtue 
 of some endowment which has been left for such purpose 
 by benevolent donors ; and sometimes the appointment is 
 entirely voluntary and temporary. Such lecturers are sub- 
 jected in many respects to the same statutory regulations 
 as other spiritual persons.^ In some of these cases dis- 
 putes may arise as to the validity of the election, and this 
 becomes a question for a court of law ; while all that the 
 bishop can interfere with is the qualification and fitness of 
 the person elected.^ The terms of the foundation may 
 entirely regulate the mode of election ; yet the usage that 
 has prevailed will again modify and explain ambiguous 
 words.* The previous licence of the bishop to these lec- 
 turers was made a statutory qualification in the reign of 
 Charles 11.^ At that time the law went the length of 
 making it an offence punishable by three months' imprison- 
 ment for one to lecture without this sanction, and this 
 remains law at the present day.^ And it was also made 
 compulsory that no lecture should be preached unless the 
 common prayer and service preceded it.^ In modern times 
 the legislature has interfered by authorising the bishop 
 and incumbent to order the lecturer to perform parochial 
 duty as assistant curate, and to suspend or remove him for 
 refusing.^ 
 
 Such are all the classes of the Working clergy of the' 
 
 1 1 & 2 Vic. c. 106, §§ 99, 100 ; 34 & 35 Vic. c. 45. ^ i & 2 
 
 Vid. c. 106, § 31 ; 3 & 4 Vic. c. 86. ^ r „ gp London, 13 East, 
 419. * Att.-Gen. « Forster.llO Ves. 342. ^ 14 cb. 11. c. 4. § 15. 
 
 Ibid. § 17 ; 15 Ch. II. c. 6, § 6. ? 14 Ch. II. c. 4, § 18. 
 
 8 7 & 8 Vic. c. 59. The bishop sometimes also licenses a lay 
 person as a reader of prayers ; but this is not an ecclesiastical pre- 
 ferment or a benefice. And the office is recognised by statute 3 
 & 4 Vic. c. 86. 
 
 E E 2 
 
4-20 SECURITY OF PUBLIC WORSfirP. [ch. tv. 
 
 Church of England ; and as the functions attaching to the 
 rectors and vicars of the parish church are the most con- 
 spicuous, and lie at the root of all others, it is now necessary 
 to state by what s>teps they arrive at the stage of being 
 incumbents seised of a benefice, and what qualifications 
 are exacted of those who wish to enter the clerical 
 profession.! 
 
 Qualifications of priests. — The office of priest may 
 be assiimed to be one peculiarly for the deliberate choice 
 of the person seeking it. Yet one of the extraordinary 
 delusions of ancient times was, that it was not only good 
 sense but qtiite lawful for a congregation to seize and force 
 a person to be ordained, and to force the bishop to ordain 
 him. And St. Augustine was himself so treated. And 
 this practice continued till at last the Emperor Leo decreed 
 that none should be ordained against his will.^ And- a 
 still more extraordinary, doctrine was, that such bishops 
 when once ordained against their will could not relinquish 
 the office.^ One singular rule in ancient times also was, 
 that no person was fit to be a priest who was mutilated 
 in body.* 
 
 The early English -Church seemed to follow the same 
 
 1 The number of tlie clergy in tlie Church of England is stated, 
 ante p. 418. 
 
 2 Possid. vit. August, c. 4 ; Leo Novell, dl in Append. Cod. Theod. 
 ' Bing. Chr. Ant. b. iy. o. 7. 
 
 » This singular ground of disqualification for a priest, that he must 
 not be mutilated in body, was an accepted axiom. The Council of 
 Nice, instead of seeing the hardship of such a rule, showed great 
 nicety in drawing a distinction between the cases of those who had 
 one limb cut ofl: in order to save the rest of the body, or who had 
 lost part of their bodies by the cruel ty of persecutors ; and the council 
 gravely held, that these circumstances took these last cases out of the 
 general rule of disqualification. But the council was at the same 
 time quite resolute in holding, that no one who had dismembered him- 
 self while, in health was on any pretext to be ordained, for this 
 showed he was a self-murderer and an enemy of the workmanship 
 of God.—LabM, vol. i. pp. 28, 41. _ It was supposed that this last 
 rule was made to counteract the mistaken notion on which Origen 
 and some others had acted. — Euseh. b. vi. c. 8. And a soldier was 
 deemed disqualified also, because heihad either imbrued hisJiands in 
 innocent blood, or at least bound himself to do so. — Labbe, vol. ii. 
 pp. 1224, 1284. Another still more inexcusable ground of dis- 
 qualification was, that the person was or had been a pleader at law. 
 — Bing. Chr. Ant. b; iv. o. 4. 
 
CH. IV.] PKESEYTATION of priest. 42 1 
 
 rules. A maimed person was deemed altogether dis- 
 qualified to be a priest.' And so was a person wko 
 had married, a second wife.^ It was also once deemed in 
 this country a good objection to a presentee, that he was 
 illegitimate.* And it has been always considered, that 
 neither an unbaptized person nor a woman can be validly 
 ordained. By our canons a deacon must be 23 and a priest 
 must be 24 years old ; * though the archbishop could by a 
 faculty dispense with the appointed age as regards a 
 deacon.^ And the ecclesiastical courts were allowed to 
 be the exclusive judges, whether these conditions had 
 been satisfied, for the temporal courts could not interfere." 
 But the legislature itself at length interfered^ and declared 
 that after 1809 the admission of priests and deacons under 
 the age above prescribed should be thereby void in law, 
 and the person admitted should be incapable of holding a 
 benefice by virtue of such admission. And yet no title 
 to present by lapse should accrue by any such avoidance 
 or deprivation except after six months' notice from the 
 ordinary to the patron.' 
 
 The presentation of a priest to a benefice. — In order 
 that a benefice may not be allowed to be vacant too long 
 to the injury of the parishioners, a period of six months 
 only is allowed to the patron to present a fit person. Why 
 this period was fixed upon no precise reason seems to be 
 given, though some period was obviously necessary to be 
 settled in practice, and one period is as good as another 
 when so fixed. If the patron neglects in this period, or 
 the living becomes otherwise void, the bishop then may 
 present ; and Lord Hardwicke said, that the patron may 
 present even after the six months if the bishop has not 
 yet collated.^ If however the avoidance arise from resig- 
 nation or deprivation, the six months do not commence 
 till notice has been given by the bishop to the patron.^ If 
 the bishop do not collate within six months after the lapse, 
 
 lEcgbright's Ans. A.D. 734. " Ecgbright's Bxc. A.d. 740. 
 
 " Year B. 32, Ed. I. p. 214 ; Leg. Can. Cealth, a.d. 785 ; 1 Wilk. 
 145. The Conetitutions of Clarendon prohibited the sons of villains 
 being ordained clerks without the consent of the lord of the land on 
 M'hich they were bom. — Barringt. Stat. (Hen. II. ) 82. 
 
 * Can. 1603, § 34 ; 13 Eliz. c. 12. « Gibs. 145, 146. 
 
 6 Roberts v Paine, 3 Mod. 67; , ? 44 Geo. III. c. 43. 
 
 s Com. Dig. Egl. H. 10 ; Wilson v Dennison, Amb. 82. » Ibid. 
 
422 SECURITY OF PUBLIC WORSHir-. [cii. iv._ 
 
 then it devolves on the archbishop, and failing the arch- 
 bishop, on the sovereign as the paramount patron or 
 superintending power, whose duty and privilege it is to 
 see that the public interest is looked after. This rule was 
 recognised in the time of Edward III.^ But a bishop 
 cannot be allowed to protract the institution in order to 
 take advantage of the lapse of time he thereby causes. 
 These six months are calculated as calendar months, and 
 count not from the avoidance or resignation, if such has 
 been the cause, but from the notice given to the patron.^ 
 
 A maxim of the common law was, that if one who was 
 already seised of a benefice was presented to another, the 
 former was ipso facto vacated.^ And this rule will still 
 apply if a declaration in writing is not made to the bishop 
 of the diocese where the benefice or cathedral preferment 
 already possessed is situated, in conformity with a recent 
 statute.* It was also a maxim of the canon law that no 
 person could present himself to a benefice ; though that 
 may now be done.® And where an advowson belongs to 
 joint tenants, trustees, or executors, and one of them is 
 otherwise qualified, the rest may validly present him.® 
 
 Fitness of presentee for institution. — Though a patron 
 may present to a benefice, it seems to have been always 
 the doctrine of the canon' law, that the bishop must decide 
 whether the presentee is qualified. And this doctrine is 
 recognised in the statute of Edward 11.,^ and may be deemed 
 part of the common law of the realm. The bishop accord- 
 
 1 25 Ed. III. St. 6, c. 7. 
 
 2 2 Inst. 360. A presentation requires to be in writing under the 
 Statute of Frauds.^ 29 Ch. II. c. 3. And a stamp duty is imposed, 
 with some exceptions. — 33 & 34 Vic. c. 97, §§ 3, 37. The presenta- 
 tion may be revoked, because it is deemed that no interest has vested 
 in the presentee till he has been inducted. — Rogers v Holled, 2 W. 
 Bl. 1039. But presentation and institution are stages in the process, 
 and though by statute none but a priest can be instituted, yet even 
 a layman may be presented if he is capable of being ordained a 
 priest within a given time. — 14 Ch. II. c. 4. 
 
 3 Cro. Eliz. 601. ^ 1 & 2 Vic. c. 106, § 11. 5 Br. Ab. Corp. 34, 
 see ante, p. 392. ^ Potter v Chapman, Amb. 101. 
 
 ^ 9 Ed. II. St. 1, c. 13 ; 2 Inst. 631. In the early ages of the Church, 
 the people were said to have a voice in the election of their clergy, 
 especially of their bishops, and were not restricted to a mere veto ; 
 though the extent of the custom is obscure. — Bing. Chr. Atit. b. 
 iv. c. 2, see ante, p. 407 
 
CH. IV.] ORDINATION OP PRIEST. 423 
 
 ing to an ancient constitution was allowed two montlis to 
 make his examination and admit the presentee; but the 
 canons of 1603 reduced this period to twenty-eight days.^ 
 And though the bishop has usually this jurisdiction, yet 
 by custom it is sometimes vested in others who have a 
 peculiar jurisdiction, such as deans, or deans and chapters.^ 
 The points as to which the examination is to take place 
 are the age, learning, behaviour, and holy orders. It" the 
 presentee was ordained by another bishop, he usually 
 produces letters of orders and letters commendatory of his 
 diocesan.^ But he is not bound to do so as a condition 
 precedent to his examination. And if the bishop reject 
 the presentee, he is bound to state the specific ground, 
 so that a court may see that it was adequate.* Another 
 rule enforced by a canon was, that none should be ad- 
 mitted either deacon or priest who had not some certain 
 place where he might use his function, that is to say, 
 he must be ready with a presentation, or be a master of 
 arts, or fellow of a college ; or the bishop himself must 
 maintain him tiU a living is found for him.^ And so cogent 
 is this duty deemed, and so clearly does it belong to some 
 one to find the candidate for ordination a living, or, as it is 
 called, to give him a title, that it is deemed a condition 
 imposed for the good of the Church, and one which even 
 the candidate cannot waive.^ The object was said to be to 
 prevent idle persons being admitted into the Church. 
 
 Ordination of priests, cmd their learning. — The rules 
 as to ordination of priests and deacons have varied from 
 time to time, but they were last settled according to a form 
 prescribed by statute, to which the Book of Common 
 Prayer was annexed.'' The degree of learning and the 
 
 1 LyBd. 138, 215 : Can. 1603, § 95. ^ Qibs. 804 ; 3 Lev. 212. 
 
 8 Gibs. Cod. 806 ; Can. 1603, § 39. < Bp. Exeter v Marshal), 
 
 L E., 3 H. L. C. 17. 5 Can. 1603, § 33 ; God. 13 ; Gibs. 140. 
 
 6 Gibs. 141. 
 
 7 5 & 6 Ed. VI. c. 1 ; 36th article ; 14 Ch. II. c. 4, § 2. The 
 Convocation, not satisfied with recommending a good form, pro- 
 fessed to excommunicate all who afSrm that such form contains 
 anything repugnant to Scripture — a threat now incapable of being 
 enforced. — Can. 1603, § 8. The ordination must take place in a 
 cathedral or parish cljurch, and on certain Sundays in the year.— 
 Ibid. § 31. The canons provide, that no fee or money shall be taken 
 for admitting persons to sacred, orders. — Ibid. § 35. And to receive 
 
424 SECURITY OP PUBLIC WORSHIP. [ch. iv. 
 
 mode of ascertaining, it are peculiarly matters for the dis- 
 cretion of the bishop. From the earliest times persons 
 about to be ordained were subjected to examination as to 
 faith, morals, and outward condition.^ Thus in one case 
 the only reason that the bishop gave for rejecting the 
 presentee was, that the presentee was " an inveterate schis- 
 matic" without further particulars; and the majority of the 
 judges said that was not a legal reason, for the cause of the 
 schism must be set forth.^ The bishop was however held 
 in another case entitled to refuse to institute one to a 
 benefice in Wales who was not able to speak the Welsh 
 language, the people not understanding English.^ And a 
 statute now expressly declares such to be a valid cause of 
 refusal to any Welsh benefice.* In the cognate case of 
 lecturers and preachers who are by statute required to be 
 first approved and thereto licensed by the bishop,^ the 
 court held, that if the bishop inquired, and then said that he 
 conscientiously disapproved, this was a sufiicient judgment, 
 and a court of law would not grant a mandamus to him to 
 approve : at the most it could only order him to inquire,^ 
 for if this judgment of the bishop were not sufficient, it 
 would be merely substituting the judgment of the Queen's 
 Bench division for that of the bishop.'' And in this respect 
 the approval of a lecturer or 'preacher differs from the 
 admission of an ordinary presentee ; for in the latter case 
 the bishop's duty is to examine, which implies that he 
 must state particular heads of his examination. While 
 the bishop refusing to institute a presentee for want of 
 learning must specify, the particulars, it has been said to be 
 difficult to restrict him so closely in the matter of objections 
 founded on character, and especially as to past as well as 
 to recent character, for this knowledge may be acquired in 
 many ways and even by personal acquaintance. Never- 
 theless it has recently been held, that at least the bishop 
 must set forth sufficient particulars to enable the court to 
 be satisfied that both in respect of learning and doctrine 
 
 money or profit, or the promise of it, for ordaining a minister is a 
 cause of forfeiting 401.- — 31 Eliz. c. 6, § 9, see ante, p. 399. 
 
 1 9 Ed. II. St. 1, c. 13 ; 13 Eliz. c. 12 ; Can. 1603, § 34. 
 
 2 Specot's Case, 5 Rep. 58. ^ Cro. Eliz. 119. < 1 & 2 Vic. 
 c. 106, §§ 103-6. 5 14 Ch. II. c. 4, § 19. 6 e_ „ Archbp. 
 Canterbury, 15 East, 117, ? Ibid. 
 
OH. iv.;l INSTITUTION OF PRIESTS. 425 
 
 the grounds alleged are prima facie adequate to warrant 
 rejection.^ If the bishop refuse institution for good cause, 
 it is his duty to give notice to the patron, and of the pre- 
 cise cause of refusal, so that the latter may have an oppor- 
 tunity to make a fresh presentation before a lapse occurs.^ 
 And while the bishop is not allowed to protract this notice 
 in order to gain thfe advantage of a lapse, the patron is on 
 the other hand not entitled to extensioii of time merely to 
 enable him to obtain another unexceptionable presentee.^ 
 When the bishop has instituted the presentee, this com- 
 pletes his title to the performance of spiritual functions ; 
 nevertheless, so far as regards the temporalities, the church 
 is said not to be full, till the presentee has been inducted, 
 this last stage indicating full seisin of the benefice.* 
 
 Institution and induction of presentee. — The canon 
 of 1603 required an oath against simony to be administered 
 before admission: but now a declaration is substituted, 
 and a new canon gives a form of such declaration.^ An 
 oath of canonical obedience is also taken,® and a decla- 
 ration of assent to the Thirty-nine Articles and Prayer 
 Book ; '' also the oath of allegiance.^ When the bishop or 
 his chancellor or commissary has instituted the clerk, the 
 bishop then grants a mandate under seal to the archdeacon 
 or other clergyman to induct the presentee, which is often 
 done in the way usual with delivery of seisin, namely, 
 
 1 Willis V Bp. Oxford, 2 Prob. D. 200. ■' 2 Inst. 631 ; 5 Eep. 58. 
 
 " Cro. Eliz. 119. Not only must a priest have these qualifications 
 before he can act in course of his duty, but he must have the licence 
 of his bishop or of one of the universities to preach. — Can. 1603, § 
 36. If the patron finds, that his presentee is rejected for what he 
 considers insufBcient cause, his remedy is an action of quare impedii 
 in the Common Pleas division.— 3 & 4 Will. IV. c. 27, § 30. If the 
 bishop refuses without good cause to admit and institute a clerk, the 
 clerk has his remedy by duplex querela and the patron has also his 
 remedy by quare impedit, and the bishop must then state the 
 specific ground of refusal. — Hob. 15. 
 
 4 2 Tnst. 356. « Can. 1603, § 40 ; 28 & 29 Vic. c. 122, § 2 ; 
 
 Can. 1866. 6 Q-ibs. 810 ; Clarke, tit. 91. 7 28 & 29 Vic. c. 122, 
 § 1 ; Can. 1866. 
 
 8 31 & 32 Vic. c. 72. The mode of institution is for the presentee 
 to kneel down before the bishop, whilst he reads words of institution 
 out of a formal document.— 7o to. 74 ; 1 Inst. 344a ; 4 i?ep. 79. An 
 entry of this is made in the bishop's register, with particillars as to 
 the patron and the presentee and other parties concerned. 
 
426 SECURITY OP PUBLIC, WOESHIP. :[oh. iv. 
 
 by delivery of a key of the church-door, or of the bell- 
 rope, whereby the bell may be tolled, or by some symbol 
 of corporeal possession.^ But before the profits can be 
 obtained the first-fruits must be paid or compounded for.^ 
 After induction it is required by statute that the person 
 inducted shall on the first Lord's Day, or other day ap- 
 pointed by the bishop, read the Thirty-nine Articles ; and 
 a failure to comply with this recLuisite involves forfeiture 
 of the presentation.^ 
 
 e, P. I. c, 2. 2 26 Hen. VIII. c. 3, § 1 ; 1 Vic. c. 20. 
 28 & 29 Vic. c. 122, § 7, A table of the fees to be taken in 
 respect of the institution to livings, which formerly varied in 
 each diocese, was authorised by statute in 1837. — 1 & 2 Vic. c. 
 106, § 131, 
 
 A perpetual curate is put in possession of his benefice, without 
 institution or induction, merely by a licence from the bishop. 
 
CH. v.] PBOPEETy IN PAEISH CHUECH. 427 
 
 CHAPTEE V. 
 
 THE PBOPEETY IN THE PAEISH CHUECH AND INCUMBENT'S 
 EESIDENCE. 
 
 Parson's freehold estate in the cJvwrch. — The^ parson 
 of a parish when once instituted and inducted is deemed 
 "by the law to become seised of the freehold of the church 
 for most purposes,; aud it is now necessary to notice the 
 particulars of which this freehold consists, and the consti- 
 tuent parts of the church itself, and its interior fittings, for 
 all these subjects are regulated either by the common law 
 or by statutes. The nature of the property held by the 
 priest of a parish must have heen at iirst vaguely under- 
 stood. Bracton, indeed, said that things sacred, religious, 
 and hallowed, were not the property of any man, but the 
 property of God, such as cups, crosses, censers, which it is 
 forbidden to alienate except to redeem captives.^ But such 
 a theory of property obviously could not be acted on. The 
 feudal relation which had then become well settled and 
 understood as to other kinds of property suggested a species 
 of tenure which was adapted to sacred subjects. Frankal- 
 moigne was the kind of tenure proper to the church, being 
 a commutation for military service, allowed to priests, who 
 were excused from doing fealty to any lord — as Littleton 
 said, " because divine service is better to them before God 
 than doing of fealty." And this tenure, though founded 
 on the duty of saying masses, was held to be not changed 
 by the substitution of performing divine service in accord- 
 ance with the Prayer Book.^ The nature of the incum- 
 bent's property was always treated as of a freehold character, 
 
 » Bract, b. i. c. 12. ^ Co. Litt. 95b. 
 
428 PKCURITY OF PUBLIC WORSHIP. ch. v. 
 
 though, as will be found, that freehold is subject to many 
 peculiar restrictions which mark out the property of the 
 clergy 'from secular possessions. The church itself was 
 the most considerable part of the rector's official property, 
 and there were things used in the church which have 
 in modern times, as well as Eeformation times, caused 
 many disputes. 
 
 Consecration of churches. — The churches and chapels 
 set apart for the celebration of divine service in the 
 Church of England are all, except in the case of pro- 
 prietary or subscription chapels, consecrated in the first 
 instance, and if not so, most of them are at least licensed 
 by the bishop. And one remarkable characteristic of 
 the parish church is, that an ordained minister commits 
 an ecclesiastical offence, if be celebrate public worship in 
 other than consecrated or licensed buildings.'- The conse- 
 cration of a church seemed always to be treated as a notable 
 fact in its history, though no particular form was used till 
 about the fourth century, when unusual interest attended 
 the ceremony. And Justinian's law declared, that no 
 church was to be begun, till after the bishop had made a 
 solemn prayer and fixed up the sign of the cross.^ And 
 still further, n:o church was to be built till security was 
 given for its endowment.^ The notion of consecration 
 naturally led to a punishment for desecration; and the 
 charity feasts called agapae were forbidden by the Council 
 of Laodicea to be held in churches.* In the ninth century 
 the consecration of a church seemed to be one of the chief 
 duties of the bishop, and the name of the saint to whom it 
 was dedicated was to be written on the altar, or the wall, 
 or a table.'' This consecration of a church is deemed in 
 the eye of the law not only essential but indelible. Hence 
 difficulties have occurred as to whether this sanctity is lost 
 'bj the church being rebuilt, of at least by being rebuilt, 
 not entirely on the same lines. Formerly it was doubted 
 sometimes, whether the rebuilding of a church, even within 
 
 1 Freeland v Neale, 1 Rob. Ec. 643 ; Barnes v Shore, 1 Rob. Ec. 
 .=^82 ; Kitson v Drury, 11 Jur. N. S. 272. In 1725 it was estimated 
 that there were 9,284 churches for the service of the Church of 
 England ; in 1851 there were 14,077 ; in 1873 there were 15,758. 
 
 2 Just. Nov. 131, c. 7. 3 Oust. Nov. 67, c. 2 ; Anselm's Can. 
 '^ Cone, Laodic. C, 28. * Wnlf. Can ad sir • 1 \V\\\r IRQ 
 
CH. v.] EEPAIES OF CHURCH. 429 
 
 the same area, did not need reconsecration.'- But that 
 doubt was wholly put an end to ; and now, whenever a 
 church or chapel has heen once consecrated and is rebuilt, 
 no reconsecration is needed, whether the external walls 
 have remained entire or the position of the communion 
 table has been altered.^ And not only must a church be 
 consecrated, but the churchy;ard also.^ In cases, however, 
 of additions to an existing churchyard, the consecration may 
 be entirely effected by the bishop merely executing an in- 
 strument declaring it to be so.* The rector's right to cut 
 down the trees in the churchyard was restricted before 
 the time of Edward I.^ This was in accordance with 
 earliest notions, which treated the property as only an 
 e;fficial life estate and nothing more. And the lay rector 
 has the freehold in preference to the iru^umbent, who has 
 it only for spiritual purposes.^. 
 
 Repairs of church, and church rafes.-^ While the free- 
 hold of the church and churchyard was deemed by the 
 law to be vested in the rector, yet that this was little more 
 than a name was proved, not merely by the restrictions 
 already noticed as to selling and letting and burdening the 
 property, but also by the incidence of the duty to repair, 
 which in an ordinary freehold none other than the owner 
 must discharge, if bound at ^,11 or inclined to do any repairs. 
 One of the duties of the earliest order of bishops in this 
 country was to set aside one fourth of bis income for the 
 repair of the church.^ And the like duty, after a diocese 
 came to be subdivided into parishes, next devolved on the 
 parish priest.* It was in the tenth ceiit.ury still clearly 
 the priest's duty, and his alone, to do the repairs.^ But in 
 the eleventh century it began to be discovered, that it was 
 the duty of all the parishioners, seeing that the church 
 was for their common benefit.^" Coke says, that the canon 
 law required the parson to repair the parish church, but 
 the custom of the realm required the parishioners to under- 
 take this duty, for the canon law did not bind the clergy, i' 
 
 1 Parker v Leach, L. R., 1 Priv. C. 312. ^ 30 & 31 Vic. c. 138, 
 § 12. 3 Gibs. Cod. 190. " 30 & 31 Vic. c. 133, § 1. 
 
 5 1 Stat. Realm, 211. ' Greanslade v Derby, L. R., 3 Q. B. 421. 
 
 ^ Pope Greg.'s Answ. a.d. 601; 1 Wilk. 18. * Ecgbriffht's 
 
 Exc. A.D. 740. 9 Blfric, Can. a.d. 957. '» Cnut, L. Eccl. 
 
 A.D, 1018 ; Thorpe, 536. " 2 Inst. 653. 
 
430 SECURITY OF PUBLIC WOESHIP. [ch. v. 
 
 And this, he says, was one of the instances in which the 
 statutes of Henry VIII. made for the clergy instead of 
 against them. In working out this law, however, the 
 greatest difificulty arose in modern times, when dissenters 
 began to reflect, that the church was no longer for their 
 benefit or advantage. Thus, though the law declaring it to 
 be the duty of the parishioners to repair the church was 
 as old as Canute, yet in the statute of 31 Edward III. 
 (circumspecte agatis), it was also declared to be a matter for 
 the court Christian to enforce, and that such court must not 
 be interfered with. This, in effect, meant, that the remedy 
 was not by ma-ndamus, but merely by interdict and excom- 
 munication ; and as these last became, in course of time, 
 idle and impotent, the only remedy given became thereby 
 lost for ever.^ The Ecclesiastical Court might single out 
 one or two whose duty might be supposed to be clear, and- 
 punish them as contumacious by imprisonment ; but how 
 could they punish ten thousand inhabitant householders 
 in the same way ?2 The abortive attempts of church- 
 wardens to persuade the inhabitants in vestry assembled 
 to agree to this voluntary tax, became so frequent and 
 caused so much irritation in parishes, that the legislature 
 in 1868 intervened, and altogether abolished for ever the 
 compulsory payment by the whole inhabitants of these 
 church-rates.* 
 
 Ghwrch bells, orgcm, and holy table.' — Church bells 
 seem not to have been in use before the time of Bede, in 
 the seventh century.* They are, however, referred to in 
 the canons, as if deemed necessary to summon the con- 
 gregation to church. The exclusive control over the bell 
 is vested in the incumbent, and to ring it against his wish 
 is an ecclesiastical offence which is punished usually with 
 costs. ^ Though music in church services was known from 
 the earliest times, yet instrumental music and organs were 
 not used till the thirteenth century.® The organ is, how- 
 ever, not deemed one of the things necessary for the 
 church, and hence the parishioners were not bound by the 
 
 1 159 Pari. Deb. (3) 641. 2 Per L. Wensleydale, 151 Pari. 
 
 Deb. (3), 850. ^ 31 & 32 Vic. c. 109. Some exceptions were made 
 when the rate was made under a statute. * Bing. Chr. Ant. b. viii. 
 c. 7. 5 Daunt v Crocker, L. R. 2 Eccl. 41. ^ Bing. Chr! 
 
 Ant. b. viii. c . 7. 
 
CH. v.] ORNAMENTS' IN CHURCHES. 431 
 
 common law to provide one.'' Nevertheless, a faculty to 
 erect one, when it was provided by subscribers, as has been 
 a frequent occurrence, was always readily granted, after 
 which the parish, as a natural consequence, became bound 
 to repair it during those days when church-rates were 
 compulsory.2 And when an organ is made part of the 
 fabric, then the incumbent has the exclusive control over 
 it ; and the organist, though appointed and paid by the 
 vestry, cannot set up his own views as to the music during 
 divine service in opposition to such incumbent.^ 
 
 In the primitive church, the altar and the Lord's table 
 were convertible terms.* But after the Eeformation new 
 views came to be entertained. And under the laws now 
 regulating that subject, it is held, that in order to exclude 
 idolatrous uses, the table must be made not of stone, and 
 immovable, but of wood, and more or less movable.® 
 A credence- table, that is to say, a smaU. side-table on 
 which the bread and wine are placed before consecration, 
 is also not Olegal.,^ 
 
 Ornaanents in churches. — The law relating to orna- 
 ments in churchesi has been for three centuries in a con- 
 fused state. The doctrine relating to these ornaments has 
 been arrived at after an examination of the state of things 
 deemed legal in the time of Edward VI.,. for the rubric of 
 the present Prayer Book, which is part of the statutory 
 law, prescribed, " that such ornaments of the church and of 
 the ministers should be retained as were in use by autho- 
 rity of parliament in the second year of Edward VI. ; " in 
 other words, according to the first Prayer Book of Edward 
 VI. established in that year. And " ornaments," in this 
 sense, have been interpreted to include vestments, books, 
 cloths, chalices and patens, and other things mentioned in 
 the various ecclesiastical constitutions.'^ Some of these 
 
 1 Pearce v Hughes, 3 Hagg. Eccl. 10. " Jay v Webber, 3 Hagg. 
 Eccl. 4 ; St. John's, Margate, 1 Hagg. Cons. 198. ^ Wyndham v 
 
 Cole. 1 Prob. Div. 130. * Bing. Chr. Ant. b. viii. c. 6. 
 
 5 Faulkner v Lichfield, 1 Rob. Eoc. 184 ; Beal v Liddell, Moore 
 Sp. Rep. 
 
 « Westerton v Liddel, Moore Sp. Rep. A baldacchino or marble 
 canopy supported on pillars over the communion table, and under 
 which the celebrant priest may stand, has been treated as illegal.: — 
 White V Bowron, L. B. 4 Eccl. 207. 
 
 7 Lyndw. 251 ; 2 Phillim. Eccl. L. 929. 
 
432 SECORITY OF PUBLIC WORSHIP. [era. v. 
 
 ornaments have been called inert,. such as the holy table, 
 pulpit, and reading desk ; others are deemed active, such 
 As incense, banners, torches, candles, "which may be so 
 used as to become part of some ceremony.^ And in order 
 to discover what inert ornaments were deemed legal, and in 
 order to explain the words of the iirst Prayer Book of 
 Edward VI., the courts have been obliged to look at many 
 contemporary documents of a miscellaneous character be- 
 fore and after that date, such as historians usually consult, 
 in order to arrive at that certainty which the law delights 
 in, and is bound to discover in the end, however loose may 
 be the materials from which it is deduced.^ As to a cross 
 or crucifix, this cannot be used as a part of a ceremony, 
 as by placing it on the communion table, for such a usage 
 is presumed to tend towards superstition.^ And it can 
 neither be fixed to the table nor to a place near to the 
 table ; and yet, at a distance, .such as five feet above, it 
 may be unobjectionable.* And it is equally illegal when 
 made of metal and set upon the top of an iron screen-work 
 at the entrance of the church, for .that cannot be viewed 
 as an architectural decoration." Again, if, for example, 
 flowers' arranged in certain outlines of figures are used 
 inertly, and not ceremonially, it may make all the difference 
 between legality and illegality .^ And decorations called sta- 
 tions of the cross hanging or fixed to the walls are illegal.' 
 A reredos erected in a cathedral for decoration, having 
 sculptured decorations in high relief of the Ascension 
 and kindred subjects, was recently deemed not illegal, 
 being merely decorative, and not likely to give occasion 
 to any idolatrous or superstitious practices.* 
 
 Monwments cmd tombs in church and churchyard. — 
 As to monuments in a parish church, the permission of 
 the incumbent as well as of the ordinary is required to 
 authorize their erection or alteration. The freehold of the 
 
 ^ Martin v Mackonoohie, L. R, 3 Priv. C. 52. 
 
 2 Westerton -e Liddell, Moore Sp. Eep. 157. An abuae was noticed 
 in the matter of pictures in churches bo early as the fourth century. 
 — Bing. Chr. Ant. b. viii. c. 7. 
 
 3 Westerton v Liddell, Moore Sp. Rep. * Ibid. 5 Clifton v 
 Ridsdale, 1 Prob. Div. 316. ' Martin v Mackonocliie, L. li., 
 2 Priv. C. 387 ; Elphinstdne v Purchas, L. R., 3 Eocl. 66, 107. 
 
 7 Clifton V Ridsdale, 1 Prob. Div. 321. 8 philpotts v Boyd, 
 
 L. K, 6 Priv. C. 435. 
 
CH. v.] INSCRIPTIONS ON TOMBS. 433 
 
 church being in the rector and not in the churchwardens, 
 the consent of the latter is not sufficient authority in such 
 a matter. And no lengthy period of consent or non-inter- 
 ference ■will have the effect of transferring this power to the 
 churchwardens in their own right.i And a lay rector must 
 also have the consent of the ordinary to approve a like 
 erection.^ Thus, when Sir ¥. Bury set up his arms in the 
 church of St. David's, in Exeter, the bishop was held 
 entitled to promote a suit to defabe them, as being set up 
 without his consent.^ But there is an appeal to the Arches 
 Court against the exercise of the bishop's discretion.* 
 
 The doctrine that the freehold of the churchyard is in 
 the rector has been pushed to the length of a censorship 
 of inscriptions on the tombstones in the churchyard, 
 and even requiring permission to set them there ; though 
 it is difficult to discover on what theory this power is 
 founded. Any material alteration in the tombstones, as 
 laying them flat instead of erect, has been usually allowed 
 on application for a faculty, especially if a majority of the 
 inhabitants agree.^ But the courts have sometimes been 
 called upon to compel persons who erect tombstones in 
 the parish churchyard to take care, that they say nothing 
 implying a doctrine inconsistent with that of the thirty- 
 nine articles. Hence, the executors of a Eoman Catholic, 
 who put on his tombstone the words " Pray for the soul of 
 J. Woolfrey," only escaped being punished and made to 
 pay the costs of a prosecution having for its object to erase 
 those words, by the accident, that there was no such express 
 or implied inconsistency to be found, after an elaborate 
 examinatio>n of the thirty-nine articles and of the works 
 of the divines of the Church of England.^ In 1794, when 
 intolerance was part of the law of England, and before the 
 repeal of the Test and Corporation Acts, and the Act of 
 1846, Lord Stowell pronounced a dictum, that no monu- 
 ment can be erected in the churchyard without leave of 
 the ordinary, and that the ordinary or the rector could 
 prohibit a tombstone.'' As, however, all dissenters must 
 
 1 Beckwith « Harding, 1 B. & Aid. 508. ^ Rich"?) Bushnell, 
 
 4 Hagg. Ecc. iC4. 3 Palmer v Bp. Exeter, 1 Str. 675. 
 
 * Curt V Marsh, 2 Str. 1080. « Sharpe v Hansard, 3 Hagg. 
 
 Eccl. 336. « Breeks v Woolfrey, 1 Curt. 880. ^ Maidman v 
 
 Malpas, 1 Consist. R. 208. 
 
 F F 
 
434 SECURITY OF PUBLIC WORSHIP. [en. v. 
 
 die, and refusal to bury them in the parish churchyard 
 cannot be denied on any pretext, it seeras to follow that 
 the right to erect a tombstone is part of the right of burial, 
 and cannot be left to the mere discretion of the rector, 
 who is deemed the owner of the freehold not by way 
 of restricting the general rights, but rather to advance 
 them. In one case, this exclusive right of the bishop and 
 rector to dictate to parishioners the inscriptions on their 
 tombstones was pushed to the length of refusing permission 
 tp an incription in which a Baptist minister was described 
 under the prefix of " reverend." But this was held to be 
 an interference of the incumbent and bishop altogether 
 unjustifiable.-"^ 
 
 Sacrilege. — The offence of stealing and breaking into 
 places of public worship is put on the same footing 
 whether the house is a church of the Church of England, 
 or of any sect. It is enough that the place be one for 
 divine worship in the popular meaning of the term. 
 Hence, whoever breaks and enters any of these places, 
 and commits a felony therein, or being therein peaceably, 
 then commits a felony, is liable to penal servitude.^ 
 
 Duties of churchwardens as to fabric of church. — And 
 here it is convenient to notice the powers and duties of 
 churchwardens, who are compulsory officers appointed 
 
 '■ Keet V Smith, 1 Prob, D. ,73. It has sometimes been hastily ob- 
 served, that because a rector is deemed the freeholder of the church- 
 yard, aiid has therefore as part of such right that of grazing sheep and 
 cattle there, the burial of a dead person is a form of encroachment 
 on that vested right of grazing, and that it requires a species of gift or 
 sacrifice on the rector's part ; virhereas the contrary is obviously the 
 rule of law. It has been too readily assumed, that it is still in the 
 power of the rector tp enforce his views of morality and religion on 
 tombstones ; but since the repeal of the Test and Corporation Acts, 
 and the repeal of all religious disabilities in 1846, there seems now 
 no foundation for any such doctrine in the existing law— 9'& 10 
 Vic. u. 59. A dissenter's religion is now as agreeable to public policy 
 and as much established and protected as that of the church. See 
 post, Chap. IX. 
 
 2 24 & 25 Vic. c. 96, § 50. For life, or not less than five years, or 
 for two years imprisonment. — 27 & 28 Vic. c. 47. 
 
 Sacrilege has alwaj's been a crime punished severelj', and viewed 
 with detestation. Though Titus the Roman Emperor carried from 
 Jerusalem in triumph the holy books, the seven-branched candle- 
 stick, the silver trumpets, and the veil of the temple, and kept them, 
 they were ultimately returned by his successor more than 400 years 
 afterwards, a.d. .620. — Suet. Tit. 
 
OH. v.] PEWS IN CHURCHES. 435 
 
 annually, chiefly to assist in protecting and regulating the 
 property in the parish church, i The churchwardens are 
 charged with the custody of the sacred edifice, but are 
 subject, nevertheless, to the directions of the incumbent, 
 and hold possession subject to him.^ Hence, if a church- 
 warden break into the church to do something which he 
 thinks it his duty to do, he is nevertheless guilty of an 
 ecclesiastical offence, for the keys belong to the incumbent.^ 
 The leading duty of the churchwardens is to preserve 
 decorum among the congregation. And if strangers in- 
 trude into private pews, the' churchwardens' have power to 
 remove them, using no more force than is necessary ; though 
 they cannot detain and imprison such intruders for fear 
 they should return.* The same officers must keep the foot- 
 paths and fences of the church, and also the churchyard 
 in good repair.® And the Ecclesiastical Court may issue 
 against them a monition for not repairing them.* 
 
 The churchwardens' duty as to pews. — One leading 
 duty of the churchwardens is that which relates to their 
 regulation of the seats and pews. Their discretion as to the 
 
 ' See 1 Pat Com. (Pers.) 481. ^ Lee «, Mathews, 3 Hagg. 
 
 Eccl. 173. 3 Ritchings v Cordingly, L. R., 3 Ecol. 113. 
 
 * Burton v Henson, 10 M. & W. 106 ; Worth v Terrington, 13 M. 
 & W. 781. It seems men and women used to sit in separate parts 
 of the church in earliest times. — Const. Apost. b. ii. c. 57. One gate 
 of the ancient church was called the Beautiful or Royal Gate, at 
 which kings laid down their crowns before entering, as it was 
 deemed indecent to carry such symbols of worldly distinction into 
 a place where all ought to be sensible of equality. — Leo Gram. 
 Chronog. 466. In eastern places of worship the shoes are taken off 
 before entering. Churches in early centuries included courts and 
 purlieus, and a prison for refractory clerks. — Bing. Chr. Ant. b. viii. 
 c. 7. In England interludes and plays were long allowed in churches. 
 — 2 Pike ore Crime, 618 ; Rohertt? Soc. Hist. 37. And in the time 
 of Elizabeth the people used to walk about and talk during divine 
 service. — 1 Sirype, Ann. 622. 
 
 5 Walter v Montague, 1 Curt. 263. 
 
 6 Millar v Palmer, 1 Curt. 640 ; Fielding v Standen, 2 Curt. 663. 
 The compulsory attendance of the laity at church was long deemed 
 part of the business of the law.— 5 & 6 Ed. VE. c. 1. But all 
 pecuniar}- penalties for non-attendance were abolished in 1846. — 
 9 & 10 Vic. c. 59. In 1839 a dissenter having been appointed 
 churchwarden, though unable to raise money by a church-rate, and 
 having no funds, was yet.cited and punished with imprisonment by 
 the Ecclesiastical Court for not providing wine and bread for the 
 communion. 
 
 F F 2 
 
436 SECURITY OF PUBLIC WORSHIP. [ch. v. 
 
 more detailed arrangements relating to pews and to seating 
 the parishioners, being a practical matter requiring atten- 
 tion, is not to be controlled even by the incumbent, though 
 it is liable to be reviewed by the ordinary.^ Thus every 
 housekeeper has a right to call upon the parish for a con- 
 venient seat, and if an inhabitant wants a pew, the church- 
 wardens ought not to permit an occupancy by a non- 
 inhabitant, nor-~permit prescriptive pews to be let, so as to 
 prevent them meeting such demands.^ The discretion of 
 the churchwardens in this matter is subject to two restric- 
 tions. 1, There may be faculties appropriating certain 
 pews to certain individuals in different terms, and with 
 different limitations. These faculties can only now legally 
 be granted to a man and his family so long as they con- 
 tinue inhabitants of a certain house in the parish, or at 
 least continue inhabitants of that parish. 2, There may 
 be a prescriptive right to a pew, which the common law 
 recognises as derived from a faculty. The holders must 
 show the annexation of the pews to the messuages time 
 out of mind, and the reparation from time to time of such 
 pews by the tenants of such houses or messuages. The 
 chancel, indeed, may belong to a non-parishioner. But a 
 parishioner cannot sell or rent his pew to another, after he 
 himself has ceased to be an inhabitant'. Nor can a pre- 
 scriptive right to> a pew be severed from the messuage to 
 which it belongs.* But though a faculty cannot now be 
 
 ^ Fuller « Lane, 2 AdA. 419 '; Byeriy v Windus, 5 B. & C. 1 ; 
 Wyllie V Mott, 1 Hagg. Eccl. 28. 
 
 ^ Ibid. " By the- general law and of common right, all the pews 
 in a parish church are the common property of the parish. They 
 are for the use in common of the parishioners, who are all entitled to 
 be seated orderly and conveniently, so as best to provide for the 
 accommodation of all. The 'distribution of seats rests with the 
 churchwardens^ as the officers and subject to the control of the 
 ordinary. Neither the minister nor the vestry have any right what- 
 ever to interfere with the churchwarden in seating and arranging 
 the parishioners, as is often erroneously supposed. The church- 
 wardens are bound in particular not tO' accommodate the higher 
 classes beyond their real wants to the exclusion of their poorer 
 neighbours, who are equally entitled to accommodation with the 
 restj though they are not entitled to equ|l accommodation supposing 
 the seats to be not all equally convenient." — j^r J. Nichols, Fuller 
 B Lane, 2 Add. 426. 
 
 3 Fuller V Lane, 2 Add. 436. 
 
CH. v.] PARISH VESTRIES. 437 
 
 granted- for a pew to a non-parishioner, the latter may 
 claim it by prescription.^ And an inhabitant who has a 
 pew assigned to him iij a new district church is held to 
 surrender his right to a pew in the parish church.^ 
 
 An action at common law lies for perturbation of pew or 
 disturbing the possession, as well as a suit in the ecclesias- 
 tical court. In attempting to establish this prescriptive 
 right, it will be fatal, if the origin of the user is shown to 
 commence within legal memory, as, for example, only forty 
 years ago.^ The tenant of the messuage to which the pew 
 is appurtenant can also claim possession.* And when the 
 messuage is subdivided, aE the occupiers may claim to use 
 the pew.^ And the possession must not only be proved to 
 be in the predecessors of the person claiming, but all 
 repairs necessary and alterations must be shown to have 
 been also done by them exclusively.* 
 
 Miscellaneous functions of parish vestries. — Though 
 the rector when once instituted has a freehold estate in the 
 church and churchyard, subject to various restrictions, and 
 though he is a corporation sole, yet he does not represent 
 the parish or the inhabitants generally. The parish is not 
 a corporation, and yet the inhabitants in vestry assembled 
 are often empowered by statute to meet and decide upon 
 various miscellaneous matters referred to them by different 
 statutes, such as those relating to election of church- 
 wardens, to highways, and the obsolete self-assessment to 
 church-rates. These meetings used at common law to be 
 held in the parish church, or rather in the room called the 
 vestry, which gave its name to such meetings. Vestries had 
 been so held in the parish church from time immemorial ; 
 but in 1850 the legislature authorised a separate building 
 to be erected or hired for this use at the expense of the 
 ratepayers. At that time a flagrant case of what was 
 thought desecration had occurred in a disorderly meeting 
 of the vestry at Shoreditch, which lasted . so long that, the' 
 church being needed for evening service,, the. meeting had to 
 be dispersed.^ And since that date some of these meetings 
 
 1 Lousley v Hayward, 1 Y. & J. 583. 2 19 & 20 Vic. c. 104, 
 
 § 5. 3 Griffith V MathewB, 5 T. R. 297. * Parker v Leach, 
 
 L. R., 1 Priv. C. 312. ^ Harris v Drave, 2 B. & Ad. 164. 
 
 6 Ci-isp V Martin, 2 Prob. & Eccl. Div. 15. ^ 75 Pari. Deb. (3) 
 
 1094. 
 
43» SECUEITY OF PUBLIC WORSHIP. [oH; v. 
 
 are prohibited from being held in the chul-ch.^ This 
 meeting of the inhabitants in vestry assembled being 
 \isually in the church or part of it, led to the incumbent 
 being present ; and one duty, or rather privilege, belonged 
 to the rector or vicar in all such meetings, which was, that 
 he had the right to preside. This right was apparently 
 hot quite clear according to the common law.^ But in 
 1818 a statute regulated such meetings ; and while the 
 churchwardens do most of the duty relating to giving 
 notice, yet the minister's directions are superior to theirs if 
 they differ from him.^ And the rector, vicar, or perpetual 
 curate if present, is entitled to take the chair and has a 
 casting vote. And by virtue of this position he regulates 
 the proceedings, and if a poll is demanded he can appoint 
 the time and place, subject always to a remedy by manda- 
 vms, if he fail to meet the convenience and justice of the ' 
 case according to the business in hand.* And on ordinary 
 occasions the minister has the right to settle the order of 
 business and appoint the hour of the meeting, seeing that 
 such matters cannot be conveniently left to the meeting 
 itself.5 
 
 Residence of clergy and repairs thereof. — When once 
 an incumbent was instituted to the benefice his duty 
 obliged him to remain and reside personally among the 
 people. This duty was recognised by the laws of Jus- 
 tinian.' The non-residence of a parochial clergyman was 
 from the earliest times deemed a scandalous inconsistency, 
 at variance with the spiritual vocation, and the Council of 
 Trent sought to have the rule enforced.' And it was for 
 this reason that our own common law excused the clergy 
 from being obliged to act as bailiffs, or filling secular offices 
 which required their atteiition.* The theory of the com- 
 mon law with reference to them thus came to be, that 
 each incumbent of a parish church was deemed resident on 
 his cure.* And for a like reason he was entitled to a house 
 
 1 1 & 2 Will. IV. c. 60, § 29. In 1850 power was given to the 
 ratepayers of parishes having more than a population of 2,000 to 
 build or rent a building for holding vestry ineetings, and to borrow 
 the money and secure it on the rates. — 13 & 14 Vic. c. 77. 
 
 2 Stoughton V Reynolds, Gas. 1. Hardw. 274. » 58 Geo. III. c. 
 69. 4 R. -0 D'Oyley, 12 A. & E. 139. ^ r. ^ Tottenham, 4 Q. B. 
 Div. 369. 6N0V.6, c. 2. ? Van Esp. p. i. tit. 11. » 2 Inst. 
 625. 9 Ibid. 
 
OH. v.] QUEEN ANNE'S BOUNTY. 439 
 
 and glebe, called by the canon law a manse.^ And, no 
 church could be regularly consecrated unless this condition 
 were complied with. The common law on this subject was 
 further enforced by the legislature. A statute of Henry 
 VIII. made it compulsory under a ^penalty for the incum- 
 bent to live in the parish, and this law was only repealed 
 in 1837.^ Even the want of a parsonage-hoase was deeined 
 no excuse for living out of the parish and for escaping the 
 penalties of non-residence, because he must still reside at 
 least in the parish ; ^ yet ill-health was held to be a valid 
 excuse.* The bishops also were entrusted with a power to 
 license non-residents. ° But notwithstanding this theory, 
 many churches were nevertheless in existence without any 
 adequate residence, or without the means of repairing it. 
 In 1777 it was felt to be a grievance that the clergy were 
 induced to reside at a distance for want of proper habita- 
 tions, by which means the parishioners lost the advantage 
 of instruction and hospitality. Accordingly power was 
 given to incumbents, whenever one year's income would 
 not sufi&ce to build or repair the residence, to borrow with 
 the ordinary's consent a sum not exceeding two years' 
 income, and mortgage the glebe, tithes,_and profits for a 
 period of twenty-tive years.* . 
 
 Governors of Queen Anne's bounty. — The governors 
 of Queen Anne's bounty now assist the poorer clergy^ by 
 
 1 Spelm. in verb. x. 3, 39, 1 ; -Lind. 264 ; Gibs. 661. So called in 
 Scotland to this day. ^ 21 Hen. VIII. o. 13 ; 1 & 2 Vic. c. 106. 
 
 3 Wilkinson -o Allott, Cowp. 429. * Scammell v Willett, 
 
 3 Bsp. 29. 5 Lindw. 132. 
 
 6 17 Geo. III. c. 53. If the benefice did not exceed in value 
 100/., the bishop might also with the patron's consent mortgage the 
 glebe, tithes, and profits, in which case the incumbent had to pay 
 the interest. — 17 Geo. III., 63, § 8. In cases of benefices worth 
 more than lOOZ. , the bishop might nominate four beneficed clergy- 
 men to examine and report, and raise money by mortgage in like 
 manner. — 1 & 2 Vic. c. 106, § 62. And a similar power of borrowing 
 on mortgage is extended for the acquisition of twelve acres of land 
 contiguous to the parsonage, and to build stables or outbuildings, 
 and fences.— 28 & 29 Vic. c. 69. Bat the consent of the bishop arid 
 patron is required, and the maximum of the loan is defined. The 
 mode of repaying the borrowed money is also set forth in statutes 
 17 Geo. III. c. 53, §§ 3, 6, 7 ; 1 & 2 Vic. c. 106, § 65. 
 
 - In 1836 there were 10,563 benefices, of which 2,878 had no resi- 
 dences, and of which 1,728 had no fit residences. 
 
 7 The tenth part^ of the income of the clergy in the time of 
 
440 SECURITY OF PUBLIG WORSHIP. [ch. v. 
 
 advances for the purpose of improving their resjdences.^ 
 And the colleges in Oxford and Cambridge; are authorised 
 by statute to employ their moneys for like objects.^ And 
 the wishes of charitable persons disposed to make gifts of 
 land or money for the purpose are facilitated by statute.^ 
 And the residences of deans, canons, and bish,-qps, may be 
 altered and disposed of in various ways, under the autho- 
 rity of express provisions of like statutes.* ' 
 
 Licence for non-residence. — The powers of, bishops to 
 dispense with residence, which under the canon law had 
 been left vague and shadowy, were curtail§d | by statute ; 
 and now they can only gra-nt their licences under certain 
 conditions, and on being made acq,uainted with the whole 
 particulars.^ And in a few cases the further consent of 
 the archbishop must be obtained, and the archbishop may 
 be appealed to if the bishop refuses the licence in the 
 cases enumerated.^ And to meet extraordinary circum- 
 stances, the bishop and archbishop may together grant a 
 licence in cases not enumerated in the statute/ In 1837 
 greater uniformity was enforced by means of a statute as 
 regards non-residence, and minute rules were laid down.* 
 If the incumbent absent himself more than three months 
 in one year without having a licence or exemption, he 
 forfeits part of the annual value of his benefice.^ 
 
 Hen. III. had been granted to the Pope. The fii-st fruits of vacant 
 benefices obtained from Edw. I. were also gh'en to the Pope. At the 
 Reformation Hen. VIII. transferred these funds to himself. Queen 
 Anne gave up the funds to form a fund to increase small benefices. — 
 2 & 3 Anne, o. 11. The governors of .Queen Anne's bounty now 
 distribute about 10,000Z. a year, and the House of Commons from 
 time to time has voted public money to aid this fund. 
 
 1 17 Geo. III. c. 63, § 16 ; 1 & 2 Vic. c. 23, §§ 4, 72. 
 
 2 17 Geo. III. c. 53, § 13 ; 1 & 2 Vic. c. 23, § 5. 
 
 3 43 Geo. III. c. 108; 51 Geo. III. e. 115.; 28 & 29 Vic. c. 69. 
 ' 3 & 4 Vic. c. 113, § 59 ; 4 & 5 Vic. C..39 ; 5 & 6 Vic. cc. 26, 27. 
 5 1 & 2 Vic. 0. 106, §8 42-44. " Ibid, ^ ibid. 8 44. 
 
 8 1 & 2 Vic. c. 106. 
 
 8 Ibid. § 32. A good ground for obtaining a licence is, that there 
 is no fit house of residence, but even with a licence he must live 
 within a distance of two or three miles. — 1 & 2 Vic. c. 106, § 33. 
 And deans, professors at universities, and certain chaplains, . had 
 greater liberty allowed to them.— Ibid. § 38. And no licence for 
 non-residence continues in force for more than two years. — 1 & 2 
 Vic. 0. 106, § 46, though it is not affected by the death of the 
 bishop who granted it. And he or his successor may revoke it after 
 
en. v.] ECCLESIASTICAL DILAPIDATIONS. 441 
 
 Dilapidations in ecclesiastical property. — Ecclesi- 
 astical property differs from other property, not merely in 
 this, that it can neither be sold, nor alienated, nor burdened,^ 
 these three disqualifications making it in reality nothing 
 else but the official residence for the time being of each 
 successive rector, vicar, dean, bishop, or others who hold 
 office in the church ; but the law of waste has always been 
 deemed so serious, that it used to be formerly treated as a 
 criminal offence in the ecclesiastical courts. So that while 
 other tenants for life at most were liable to injunction and 
 action for damages, the spiritual incumbent was treated as 
 a- criminal, and might be deprived of his estate, such as- it 
 is, whenever he allowed dilapidations, this being the tech- 
 nical description of legal waste when applied to their 
 property. And though, nobody could suppose that such 
 a matter had anything spiritual in it, yet the ecclesiastical 
 courts long claimed the exclusive jurisdiction, and enter- 
 tained suits for dilapidations which the temporal courts 
 would not interfere with, by prohibition or otherwise. 
 After a long interval the temporal courts also allowed an 
 action on the case at law for the same matter. This alter- 
 native remedy of an action at law was treated as somewhat 
 doubtful before 1690, but then became settled.^ 
 
 Obligation to heep in repair clergy Jiouses. — The in- 
 cumbent is under an obligation to keep the buildings in 
 
 due notice. — Ibid. §§ 48, 49. And a list of all licences in force, and 
 their revocations, is kept in tlie Kegistry of the diocese for inspection 
 of all persons on payment of a small fee, and a copy is sent to the 
 churchwardens of the parish. ^ — Ibid. §§ 60, 51. And to keep a short 
 account of the residence of the clergy, each incumbent is bound 
 annually to supply the particulars relating to his parish in answer 
 to a circular of the bishop. — Ibid. § 62. At the death of the in- 
 cumbent the widow is allowed to remain for two mouths iu occupa- 
 tion of the house of residence and garden,, if any. — 1 & 2 Vic. o. 106, 
 §36. 
 
 ^ As a general rule, no. ecclesiastical benefice can be sold by the 
 incumbent, and when this is allowed it is only under rare conditions 
 expressly defined by statutes. Nor is it competent for an incum- 
 bent to mortgage or charge his benefice, for this would be to put in 
 jeopardy the spiritual duties which are inseparable, accompaniments 
 of the possession.— 13 Eliz. c. 20 ; Skrine v Hewett, I A. & E. 812. 
 But for one o^ two purposes strictly advantageous to the benefice a 
 power to charge is given. — 1 & 2 Vic. c. 106, § 62. 
 
 2 Jones V Hill, 3 Lev. 268 ; EadclifEe v D'Oyley, 2 T. E. 637. 
 
442 SECURITY OP PUBLIC WORSHIP. [ch. v. 
 
 repair, and he cannot escape liability on the ground that 
 his predecessor left the same dilapidated ; and the execu- 
 tors of each succeeding incumbent during this state of 
 dilapidation are liable in an action to his successor.^ And 
 even a sequestrator cannot escape a like liability, for this 
 is one of the expenses which he ought to provide for, 
 though after the sequestration is closed his liability ceases.^ 
 And on an exchange of livings it will be presumed that 
 each will be liable to the other for dilapidations,^ unless 
 they agree not to claim such.* Should the incumbent 
 notwithstanding these restrictions sell timber or let mines 
 in his glebe, he will be ordered to invest the moneys 
 for the benefit of the living.^ The kind of repairs which 
 an incumbent is thus bound to do is such as will keep the 
 premises in substantial repair as distinguished from mere 
 ornamentation.^ Another peculiarity of ecclesiastical bene- 
 fices is, that, if the incumbent makes great alterations, he 
 ought to provide himself first with a faculty, that is to say, 
 the bishop's approval, though this is not necessary if, for 
 example, new Jbuildings of a better kind are substituted 
 for old ones.' And, like other tenants, he or his executors 
 may in a reasonable time remove any fixtures which he 
 may have put up.* • The ecclesiastical tenant for life is at 
 common law prohibited from felling wood except for the 
 necessary repairs of the building ; ^ or from opening new 
 mines or gravel-pits without the consent of the patron 
 and ordinary.'" In some cases prohibition or an injunction 
 to the bishop or parson may be issued from the higli 
 court, though not at the suit of an uninterested person.'^' 
 
 1 Bunb'ury v Hewson, 3 Exch. 658. 
 
 2 Hubbard v Beckford, 1 Hagg. Cons. 307 ; Wliinfield v Watkins, 
 2 Phillim. 8. This law as to executors of successive incumbents 
 being liable was extended to Wales in 1635. — 27 Hen. Vlll. c. 26. 
 
 3 Downes v Craig, 9 M. & W. 166. , ■• GoWlmm v Edwards, 
 17 C. B. 141. 5 Sowerby v Fryer, L. E., 8 Eq. 417. « Wise v 
 Metcalfe, 10 B. & C. 299. i Huntley v Russell, 13 Q. B. 572. 
 
 8 Martin v Roe, 7 K. & B. 237. " " Sowerby v Fryer, L. R., 
 8 Eq. 417. 10 Holden v Weekes, IJ. & H. 278. 
 
 " Jefferson v Bp. Durham, 1 B. & P. 105 ; Bradley v Strachey, 
 2 Atk. 217 ; 3 Barnard. 379. The patron or the Attorney-General 
 may well sue in such a case. — Ibid. And Lord CoKnrsaid that a 
 bishop might be deposed or deprived for cutting down trees and 
 like dilapidations.— ^crp^e's Case, 11 Co. 99 ; 3 BuUtr. 168. 
 
CH. v;] REMEDY FOE DILAPIDATIONS. US 
 
 And perpetual curates are on the same footing as ordinary- 
 incumbents in this respect ; ^ and even vicars-choral, when 
 they have a residence house by virtue of their office.^ It 
 was once thought that a succeeding incumbent might iu 
 all cases sue the executors of his predecessor for the 
 waste already described ; but this remedy is. confined to 
 dilapidations in houses and buildings.^ 
 
 Modern remedy for dilapidations. — In order that 
 greater uniformity may prevail as regards these dilapi- 
 dations, and especially the mode of proceeding, two very re- 
 cent enactments were passed.* A surveyor is to be appointed 
 for each diocese, under the control of the bishop, and whose 
 fees and charges are fixed by the bishop, the archdeacons, 
 rural deans, and chaEcelloR^ And a systematic inspection 
 and report are made whenever any vacancy occurs.^ 
 Every incumbent of a benefice is also bound to insure the 
 buUdings of the benefice against fire, and also the chancel 
 of the church in those cases where the incumbent is liable 
 to repair if There are also kindred provisions as to 
 houses of residence of the higher clergy, and as to endow- 
 ments assigned, and as to vacant benefices.^ 
 
 Letting and alienation of clergy houses. — At common 
 law a parson was deemed to have power, with the patron's 
 and ordinary's consent, to graat leases of the Church' 
 property for lives or for years.^ And consents of those 
 interested were required as regards bishops, archbishops, 
 archdeacons, prebendaries, together with precautions being 
 taken for the benefit of divine service.^" In 1540 it was 
 
 1 Mason v Lambert, 12 Q. B. 795. ^ Gleaves v Parfitt, 7 C. B;, 
 N. S. 83a 3 Ross V Adcook, L. R., 3 C. P. 655. * 34 & 35 
 
 Vic. c. 43^ 35 & 36 Vic„ c. U6. 5 34 & 35 vio. c. 43, § 10. 
 
 6 Ibid. § 29. 
 
 ' Ibid. § 54. On any complaint by the patron or archdeacon, or 
 rural dean, the bishop will order the surveyor to inspect the buildings 
 of the benefice, pi-evious notice being given to the incumbent. — 
 34 & 35 Vic. c. 43, § 12 ; Caldow m Pixell, 2 C. P. Div. 562. The 
 inspector will be bound to e-xecute such repairs as are required ; but 
 he is allowed to borrow a sum, not exceeding three years' income, 
 wherewith to execute the work. — 34 & 35 Vic. c.c. 43, 16, § 7 ; 
 36 & 36 Vic. c. 96, § 1. And if he refuse or neglect, the bishop 
 may raise the expenses by sequestration of the benefice. — 34 & 35 
 Vic. c. 43, §§ 23, 24. 
 
 8 23 & 24 Vie. c. 124, § 9 ; 29 & 30 Vic. c. Ill, § 12 ; 34 & 35 
 Vic. c. 43, §§ 25-32. a 1 Inst. 44. '» Gibs. 744. 
 
442 SBCUEITY OF PUBLIC WORSHIP. [ch. v. 
 
 repair, and he cannot escape liability on the ground that 
 his predecessor left the same dilapidated ; and the execu- 
 tors of each succeeding incumbent during this state of 
 dilapidation are liable in an action to his successor.^ And 
 even a sequestrator cannot escape a like liability, for this 
 is one of the expenses which he ought to provide for, 
 though after the sequestration is closed his liability ceases.^ 
 And on an exchange of livings it will be presumed that 
 each will be liable to the other for dilapidations,^ unless 
 they agree not to claim such.* Should the incumbent 
 notwithstanding these restrictions sell timber or let mines 
 in his glebe, he will be ordered to invest the moneys 
 for the benefit of the living.^ The kind of repairs which 
 an incumbent is thus bound to do is such as will keep the 
 premises in substantial repair as distinguished from mere 
 ornamentation.^ Another peculiarity of ecclesiastical bene- 
 fices is, that, if the incumbent makes great alterations, he 
 ought to provide himself first with a faculty, that is to say, 
 the bishop's approval, though this is not necessary if, for 
 example, new buildings of a better kind are substituted 
 for old ones.^ And, like other tenants, he or his executors 
 rtiay in a reasonable time remove any fixtures which he 
 may have put up.* • The ecclesiastical tenant for life is at 
 common law prohibited from felling wood except for the 
 necessary repairs of the building ; ^ or from opening new 
 mines or gravel-pits without the consent of the patron 
 and ordinary.^" In some cases prohibition or an injunction 
 to the bishop or parson may be issued from the higli 
 court, though not at the suit of an uninterested person.^^ 
 
 1 Bunbury v Hewson, 3 Excli. 568: 
 
 2 Plubbard v Beokford, 1 Hagg. Cons. 307 ; Whinfield v Watkins, 
 2 Phillim. 8. This law as to executors of successive incumbents 
 being liable was extended to Wales in 1535. — 27 Hen. VIII. c. 26. 
 
 3 Downee v Craig, 9 M. & W. 166. , ■* Goldliiim -v Edwards, 
 17 C. B. 141. 6 Sowerby v Fryer, L. E., 8 Eq. 417. « Wise v 
 Metcalfe, 10 B. & C. 299. ^ Huntley v Russell, 13 Q. B. 572. 
 
 8 Martin « Roe, 7 R. & B. 237. " « Sowerby v Fryer, L. K , 
 8 Eq. 417. i» Holden v Weekes, IJ. & H. 278. 
 
 " Jefferson v Bp. Durham, 1 B. & P. 105 ; Bradley v Strachey, 
 2 Atk. 217 ; 3 Barnard. 379. The patron or the Attorney-General 
 may well sue in such a case. — Ibid. And Lord Coke said that a 
 bishop might be deposed or deprived for cutting down trees and 
 like dilapidations.— Sajr^e's Case, 11 Co. 99 ; 3 Bulitr. 158. 
 
CH. v.] REMEDY FOR DILAPIDATIONS. UB 
 
 And perpetual curates are on tlie same footing as ordinary 
 incumbents in tliis respect ; ^ and even vicars-choral, when 
 they have a residence house by virtue of their othce.^ It 
 was once thought that a succeeding incumbent might iu 
 all cases sue the executors of his predecessor for the 
 waste already described ; but this remedy is. confined to 
 dilapidations in houses and buildings.^ 
 
 Modern remedy for dilapidations. — In order that 
 greater uniformity may prevail as regards these dilapi- 
 dations, and especially the mode of proceeding, two very re- 
 cent enactments were passed.* A surveyor is to be appointed 
 for each diocese, under the control of the bishop, and whose 
 fees and charges are fi,xed by the bishop, the archdeacons, 
 rural deans, and chaKcelloi.^ And a systematic inspection 
 and report are made whenever any vacancy occurs.® 
 Every incumbent of a benefi,ce is also bound to insure the 
 buildings of the benefice against fire, and also the chancel 
 of the church ia those cases where the incumbent is liable 
 to repair it.^ There are also kindred provisions as to 
 houses of residence of the higher clergy, and as to endow- 
 ments assigned, and as to vacant benefi,ces.8 
 
 Letting and alienation of clergy houses. — At common 
 law a parson, was deemed to have power, with the patron's 
 and ordinary's consent, to grant leases of the Church 
 property for lives or for years.* And consents of those 
 interested were required as regards, bishops, archbishops, 
 archdeacons, prebendaries, together with precautions being 
 taken for the benefi.t of divine service.^" In 1540 it was 
 
 I Mason v Lambert, 12 Q. B. 796. ^ Gleaves v Parfitt, 7 C. B., 
 N. S. 83a 3 Ross V Adoock, L. E., 3 0. P. 655. « 34 & 35 
 
 Vic. c. 43 ; 35 & 36 Vic, c. 'J6. » 34 & 35 Vio. c. 43, § 10. 
 
 6 Ibid. § 29. 
 
 '' Ibid. I 54. On any complaint b-y the patron or archdeacon, or 
 rural dean, the bishop will order the surveyor to inspect the buildings 
 of the benefice, pj-evious notice being given to the incumbent. — 
 
 34 & 35 Vio. c. 43, § 12 ; Caldow « Pixell, 2 C. P. Div. 562. The 
 inspector will be bound to execute such repairs as are required ; but 
 he is allowed to borrow a sum, not exceeding three years' income, 
 wherewith to execute the work. — 34 & 36 Vic> c.c. 43, 16, § 7 ; 
 
 35 & 36 Vic. c. 96, § 1. And if he refuse or neglect, the bishop 
 may raise the expenses by sequestration of the benefice. — 34 & 35 
 Vic. c. 43, §§ 23, 24. 
 
 8 23 & 24 Vic. c. 124, § 9 ; 29 & 30 Vic. c. Ill, § 12 ; 34 & u& 
 Vic. c. 43, §§ 25-32. ^ 1 Inst. 44. i" Gibs. 744. 
 
444 SECURITY OF PUBLIC WORSHIP. [uh. v. 
 
 deemed better to pass an Act to enable bishops and other 
 sole corporations, except parsons and vicars, to grant leases 
 for twenty- one years or three lives without confirmation 
 from any others.^ And statutes of Elizabeth, followed up to 
 recent times, further qualified the power of ecclesiastical 
 persons both by enabling and disabling them in various 
 ' particulars.^ Statutes also enabled exchanges to be made 
 of parsonage-houses and glebe-lands, and annexing houses 
 and glebe, or adapting or repairing them.^ By modern 
 statutes, any incumbent may by,' deed, with consent 
 of the patron and bishop, let his glebe and out- 
 buildings for fourteen years, payable quarterly; and the 
 lessee must covenant to pay taxes and other stringent 
 covenants.* This power, moreover, is merely an addition 
 to all rights formerly possessed.* And all ecclesiastical 
 corporations; aggregate or sole, may with consent of the 
 Ecclesiastical Commissioners and the patron grant building 
 leases- in possession not exceeding ninety-nine years,, and 
 subject to covenants.^ And mining leases and licences 
 and easements may also be granted in the same way.'' 
 The benefit of the increased rents accrues chiefly to the 
 Ecclesiastical Commissioners, subject to certain mini- 
 mum allowances in favour of the benefices;,* but houses 
 of reside,nce are not allowed to he leased.^ 
 
 Pluralities in ecclesiastical limngs. — Another incident 
 which is incompatible with the rule of residence is that of 
 pluralities, where one incumbent holds two or more livings 
 situated at such a distance aipart, that residence in both or 
 all is impracticable. Pluralities were forbidden by the 
 Council of Chalcedon in 415.^* For a like reason the 
 Council of Lateran, held in 1215, made a rule, that the 
 mere acceptance of a second benefice was ipso jure void, 
 or at least the incumbent must elect one or the other.i^ 
 It is true a licence or dispensation to hold' more benefices 
 than one was obtainable under the canons of 1603, from 
 
 1 32 Hen. VIIL c. 28. 2 1 Eliz c. 19, &c. ; 1 & 2 Geo. IV c 
 23; 6. & 7 Will. IV.-c. 20; Ibid, a 115, § 31. s 17 Geo 
 
 III. c. 53, &c. ; 34 [& 35 .Vic. c. 43. * 6 & 6 Vic. c. 27, 
 
 § 1. 5 Green v Jenkins, 1 De G., F. & J. 454. « 5 & 6 
 
 Vic. 108. ^ Ibid. § 4. s jbid. §§ 10-13 ; 21 & 22 Vie. c 67. 
 
 'J 6 & 6 Vic. 0. 27, § ;2 ; Ibid, c 108, § 9. w Cone. Chalc. 
 
 c. 10 ; Cod. Just. b. i. tit. 3. " Gibs. 903.' 
 
CH. v.] UNION OF BENEFICES. 445 , 
 
 the bishop : but it was to be allowed only to those who 
 were worthy for learning.^ .And a minimum residence of 
 two months was required,^ and a licensed preacher must 
 be maintained besides.^ The law as to pluralities is now, 
 however, governed entirely by two modern statutes.* Wo 
 spiritual person can hold more than two benefices, or more 
 than one benefice and one cathedral preferment, and no 
 person holding any preferment in one cathedral or collegiate 
 church shall hold therewith any preferment in any other 
 cathedral or collegiate church.^ And these words, " cathe- 
 dral preferment and benefice," are defined by the statute.'' 
 "When another preferment or benefice is accepted without 
 complying with the -statute, the former is vacated and_ 
 forfeited as if the holder were dead.'^ 
 
 Union of benefices. — The union of small and contiguous 
 benefices was allowed by the common law, if the bishop, 
 patron, and incumbents agreed.^ And statutes, the two first 
 of which are since repealed, further recognised and facili- 
 tated the practice.* The modern statutes regulating the 
 union of churches were passed in and after 1837, and de- 
 fined the maximum of population and yearly value proper 
 in such unions.^" And the consequences of the union are 
 
 1 Can. 1603, § 41. 2 Qibg. 910. 
 
 ' Can. 47. At one time the Crown could dispense with this canon, 
 but, it was said, the Bill of Bights abolished this dispensing power. 
 —1 Will. III. Sess. 2, c. 2 ; Gibs. 911. 
 
 M & 2 Vic. c. 106 ; 13 & 14 Vic. c. 9». » 1 & 2 Vic. c. 106, 
 
 §2, « Ibid. §124. 
 
 7 1 & 2 Vic. c. 106, § 11. And though two benefices may be^ 
 held together, yet there must not be more than three miles between 
 the two churches, and the annual value of one must not exceed 1001. 
 computed in a way pointed out by the statute. — 13 & 14 Vic. c. 98, 
 § 1 ; 1 & 2 Vic. c. 106, § 129 ; Ibid. § 7. And there is also a limit 
 as regards the population.— 13 & 14 Vic. c. 98, § 2 ; 1 & 2 Vic. c. 
 106, § 130. And the archbishop's licence, founded on various 
 written particulars, is also required, and on his refusal there is an 
 appeal to the Queen in Council.— Ibid. § 6. Some further qualifica- 
 tions affect deans and heads of colleges in the universities. — 13 & 
 
 ' 14 Vic. c. 98, § 5. 
 
 8 R V Archbp. Armagh, 1 Str. 516. ^ 37 Hen. VIII. c. 21; 
 17 Ch. ILlc 3 ; 4 Will. III. c. 12. " 1 & 2 Vic. 0. 106, § 16 ; 3 
 & 4 Vic. c. 113 ; 4 & 5 Vic. c. 39 ; 13 & 14 Vic. c. 98j § 8 ; 34 & 
 35 Vic. c. 90, 
 
446 SECURITY OF PUBLIC WORSHIP. [ch. v. 
 
 also set forth in some detail.^ And conversely statutory- 
 power has in modern times been given to bishops or arch- 
 bishops to institute proceedings for disuniting benefices 
 formerly united, and which have too large a population, or 
 when other circumstances make it desirable.^ 
 
 ' A separate Act regulates union of benefices in the metropolis. — 
 23 & 24 Vic. c. 142. 
 2 1 & 2 Vic. c. 106, § 21. 
 
CH. VI.] OEIGIN OF TITHE. 447 
 
 CHAPTEE VI. 
 
 MAINTENANCE OF THE CLERGY AND THEIR TITHES. 
 
 Origin of tithe and its development as a tax. — 
 
 "While parish churches had their origin in the enthusiasm 
 or piety or less praiseworthy motives of lords of manors, 
 it was not enough that a piece of land and also a church 
 should be given up or dedicated to sacred uses, unless the 
 permanent services could be secured of a priest to carry 
 on these uses for ever. And this meant nothing less than 
 finding an income for the priest, whereby he may live like 
 his neighbours. Incomes which are capable of being en- 
 joyed as regularly as the seasons revolve, and as quarter- 
 days approach, could in early times only be got by fits of 
 entreaty or threatening, and by a kind of provisional and 
 hand-to-mouth arrangement. It may be conjectured, that 
 though many donors could give a piece of land, still they 
 could not, or would not, give more ; and so they left it to 
 others to assist in building the church, and after the church 
 was secured they might still be unable to find an income 
 to the priest. And all degrees of generosity, and ability, 
 and inability, may be assumed tben to have existed at 
 each stage, as we find them to exist in modern times on 
 like occasions. It is impossible to assume that every donor 
 of a church either had the means or the will to burden his 
 lauds with a perpetual payment by way of income, and 
 none of the accompanying facts allow any such assumption. 
 What really happened was, that at first the priest depended 
 for his income on the offerings of his flock, and these were 
 obtained without method or regularity, and without his 
 having any hold whatever on the surrounding lands. All 
 were at first mere personal alms, just as many centuries later 
 
448 SECURITY OF PUBIilC WOKSHIP. [ch. vi. 
 
 was the case, when a poor-law was about to be established.^ 
 We have seen that in the reigns of Henry VIII. and Elizabeth, 
 when it first dawned on the legislature, that every person, 
 however poor, had the right to live, and that some provision 
 of a permanent kind. must be made for him, there was at 
 first and for a long time nothing more defined than a 
 system of begging, and exhorting the wealthy to contribute.^ 
 Then when exhortation was unavailing, the churchwardens 
 were told to go round and ask each person on the spot for 
 a fair contribution, and -enter the same in a book. And 
 when this personal house-to-house visitation became also 
 unavailing, though followed by a lectiire from the bishop, 
 then at last it came to be declared by the legislature to be 
 a regular debt, tax, or rate, which all must pay, and which 
 was fixed on a certain scale and recoverable by distress of 
 goods. The same process had been -followed in the case of 
 tithes, which is the oldest, and indeed the only tax known 
 to the common law, and which that law adopted, accepted, 
 recognised, arid enforced. It was a species of rude income- 
 tax, an-d had all the defects which such a tax could have 
 in modern eyes. It had gross inequalities, which the legis- 
 lature Jiad from time to-itime to redress. It had the glaring 
 defect «f harassing and exasperating the tax-payers, instead 
 of being framed on the principle of inducing people to give 
 up part tff their property voluntarily, but if not voluntarily, 
 tlien compulsorily, yet always with the least possible irri- 
 tation, and sometimes without even letting them know and 
 feel that they were paying it. This lithe or tax for sup- 
 port of the clergy failed most conspicuously in its mode of 
 collection as well as of assessment, for the clergy practi- 
 cally assessed and collected their own tax, and were their 
 own bailiffs ; and' thus came into collision with the struggling 
 poor in odious ways which modern skill and experience 
 would have taught them to avoid. The tax was from the 
 first kvied without that insight into human nature, which, 
 perhaps, only time and the experience of centuries can 
 give and are supposed to have given in other cases.; 
 
 Tithe as a tax enforced hy legislative power. — Though 
 tithe was a tax which the cominon law may be said to 
 
 1 In Egypt the priesthood had a real property in one-third of the 
 whole territory. — Prichard, Eg. Myth. 409. 
 
 2 See 2 Pat. Coui. (Pars.) 16. 
 
CH. Yi.] • ORIGIN OP TITHE. 449 
 
 have treated as rightfully due, yet in reality it was owing 
 to legislative authority, in precisely the same way as we 
 now derive modern taxes from that source, though now 
 always in more express language. The common law in 
 the early centuries consisted, as we have seen,^ merely of 
 maxims of wisdom adopted from the old codes then cur- 
 rent and from the wisest men of the times ; and the clergy 
 and their solemn synods being recognised as the most 
 learned and wise during many ages, their views and 
 maxims were largely absorbed and acted on by the courts, 
 and by those councils and royal ordinances which then 
 represented what we now call the legislature. In this 
 way a law of tithes, which would now be called a rate or 
 tax, became part and parcel of the common law ; and the 
 clergy took care to give to it the specious name of a divine 
 right, which for ages prevented the legislature from 
 disturbing or questioning it. But when in the time of 
 Henry VIII. and his immediate successors, the art of 
 printing and the Eeformation made men think for them- 
 selves, and the people began to consider what was the 
 object of taxes, and how far they corresponded with the 
 benefits received, and whether they were capable of im- 
 provement, the legislature saw and removed many anoma- 
 lies, and made the tax more universal and impartial. So 
 that in reality the tithe law or tax did for the clergy the 
 same as the Poor law did many centuries later for the rest 
 of the population. It was reasonable and inevitable that 
 those members of a profession set apart to definite duties, 
 and looked upon as everybody's friends, and the nature of 
 whose duties prevented them supporting themselves, should 
 be enabled to live, and they had a right to live at the 
 expense of their contemporaries. It is true that it was 
 reserved for the times of Elizabeth to discover a still more 
 general law, namely, a Poor law, which was founded on 
 this indisputable first principle, that even the poorest of 
 the poor have also a right to live at the expense of their 
 contemporaries, if they have no means of their own to 
 support themselves. And though at first the whole of the 
 law of tithes was contained in a few general words, namely, 
 that onertenth of the produce of the land was to be given 
 
 1 See 1 Pat. Com. (Pere.) 187. 
 
 G G 
 
450 SECURITY OF PUBLIC WORSHIP. [m. vi. 
 
 to the clergy for certain definite purposes, one of which 
 was their maintenance, this ceased to be sufficiently com- 
 prehensive, when trades and employments not immediately 
 connected with land increased. The same law, therefore, 
 was «asily extended to the tenth of the yearly gains of all 
 artisans and manufacturers and traders. This was laid 
 down as the rule in Wincbelsea's Constitutions in the tiihe 
 of Edward 11.^ or rather under Edward the Confessor, and 
 was more emphatically declared by a statute of Edward VI., 
 which exempted few except day labourers from giving up 
 the tenth of their earnings for the support of the clergy.' 
 The rule, indeed, was incorporated into the common law at 
 an age so early, that its beginning can scawely be traced, 
 namely, that all lands amd occupations are prima facie 
 liable to yield tithe, and it lay on those claiming, ex- 
 emption to prove how such exemption arose.^ But the 
 remote origin and imposition of the tax does not affect its 
 substance, which always has continued undistinguishable 
 from other taxes. All the rest was natural development 
 from the primary rule adopted by the courts, temporal 
 and spiritual. Though no statute is so old as to show 
 its beginning, yet such a law could only originate, as all 
 the main rules of the common law did also, either in some 
 declaration made by those kings, and nobles, and clergy, 
 who represented the legislature of their day, or in the 
 universal acquiescence of the people acknowledging and 
 instinctively following such rules, and thereby giving them 
 the same effect as if these had been promulgated by statute. 
 In this way the law of tithes covered the whole land of 
 the kingdom, with a few trifling exceptions. It was a tax 
 which reached every kind of income, and nothing but a 
 legislature or its equivalent could establish a law so 
 universal and so uniformly enforced, and so difficult to 
 resist. 
 
 Origin of appropriations of tithes. — At the time that 
 
 1 2 & 3 Ed. VI, 0. 13. 
 
 2 Though potatoes and turnips were introdi^ced into England 
 since the statute of Edward VI. the courts held these crops were 
 tithahle on the general principle of being the fruits of the land. 
 Hops were not cultivated for their present purpose till Elizabeth's 
 time ; they were also held to be tithable. So as to turkeys. Special 
 statutes regulated the tithe of hemp and flax at a certain sum per 
 acre.— 3 "W. & M. c. 3 ; 11 W. & M. c. 16 ; 1 Geo. I. st. 2, c. 26. 
 
CH. VI.] ORIGIN OF RECTORS AND VICARP. 451 
 
 parochial priests became settled as formerly mentioned, there 
 •were some leading notions then current which affected their 
 position, and at least account for many conditions which 
 afterwards appeared somewhat anomalous. And these 
 anomalies show, that however powerful the councils of 
 the church were, they could not produce unanimity. One 
 notion was, that the proprietor of lands was entitled to 
 choose his parish church and pay tithes to that one which 
 best suited him, or even to pay them to a neighbouring 
 religious house, for it was treated by the courts as enough, 
 that he settled with one or other of these representatives 
 of the church. Another notion was, inasoHich as the 
 proceeds of the tithes were by a universal custom divisible 
 into four and afterwards into three parts, one of which 
 only was for the personal support of the priest, the other 
 two being for the repair of the church and the support of 
 the poor, it was reasonable that the patrons, if they chose, 
 might themselves see to the last two uses, which they could 
 see to as well as the priest. And so they appropriated 
 those shares to themselves, undertaking to bestow them 
 according to custom. But they soon began to use them as 
 their own exclusive and absolute property, or made a 
 gift of them to some religious college or monastery, and the 
 advowson of the benefice also, on the understanding that 
 the donees would see to the like application of the fund. 
 The monasteries thus became possessed of many advow- 
 sons, and sent some of their prebendaries or prevailed on 
 some of the monks to take orders and serve the benefices 
 themselves. 
 
 Distinction of parsons into rectors and vicars as 
 regards tithes. — The abbot or prior of the religious hi©use, 
 thus taking advantage of his opportunity, farmed the 
 advowsons, and often treated the clergy who did the 
 priestly work as vassals or slaves. Within 300 years 
 after the Conquest, it was estimated that about one third 
 and those the richest benefices, had become the property 
 of these religious houses. The priest was responsible to 
 the bishop for the cure of souls, and responsible for the 
 profits to the abbot or prior. But as the religious houses 
 often sent out only a monk to do the' spiritual duty who 
 was idle and careless, the bishops remonstrated, and in- 
 sisted on their employing a regular priest, who came to be 
 
 G a :^ 
 
462 . SECURITY OP PUBLIC WOESHTP. [ch. vr, 
 
 called a perpetual vicar or curate, with a proper salary, 
 such vicar to be appointed by the bishop. In this way the 
 vicar came to he the parson, and stood towards the bishop 
 in the same relative position as the rector, who was ap- 
 pointed by the patron, stood towards his bishop, the latter 
 beiiig the ecclesiastical superior of both. The appropria- 
 tions to a religious house were said to convey the interest 
 both temporal and spiritual, while there were also some 
 appropriations to laymen where the temporal interests only 
 were conveyed, while the cure of souls resided in an en- 
 dowed perpetual vicar."^ In time these appropriations came 
 to be so glaring an abuse that it was expressly enacted by 
 statute, that the vicar of a church appropriated should 
 be sufficiently endowed." One of the incidents of an 
 appropriation of a benefice was, that a pension was re- 
 served to the bishop,_ payable by the religious body to 
 whom the appropriation was made, this pension being an 
 indemnity for the loss of profits during the vacation of 
 the benefice ; for as a corporation never died, this recurring 
 perquisite was necessarily cut off.* 
 
 The parson or rector in modern times may thus be either 
 lay or spiritual. The rector who made the endowment of 
 the vicar was deemed in the eye of the law the patron, 
 though the patronage may also be appendant to the manor 
 from which the endowment originally was derived.* The 
 endowments of a vicarage are now ascertained mostly by 
 prescription, the origin being seldom clearly traced.^ And 
 courts of law have the jurisdiction to decide upon all the 
 compositions set up in lieu of them ; though if both rector 
 and vicar are spiritual persons, the Ecclesiastical Court 
 could entertain their disputes.'' One distinction is observ- 
 able, namely, that in cases where the rector is a layman, 
 though the freehold of the church is in him, yet the right of 
 possession to the church belongs to the vicar and his 
 churchwardens ;. and hence they are entitled to break open 
 
 1 D. Portland v Bingham, 1 Consist. 162. ^ j{o.t_ pjjj.]_ 
 
 15 Eich II. 138; Stat 15 Bich. II. c. 6; 4 Hen. IV. c. 12. 
 3 Gibs. 719. * D. Portland w Bingham, 1 Consist. 162. 
 
 5 Imman v Wharmby, 1 Y. & J. 645. 
 
 6 Cheeseman v Hoby, Willes, 680. In 1875 it was said there 
 were 3,687 vicarages, 5,098 rectories, and 2,970 benefices neither 
 rectorifil nor vicarial. 
 
CH. VI.] COMMON LAW OP TITHES. 453 
 
 a door leading from the churchyard into the chancel in 
 order to complete this possession.^ • One peculiarity of 
 vicarages was, as already stated, that the ordinary had 
 power to compel spiritual impropriators to augment them.s 
 But after the dissolution of monasteries and- regrants to 
 laymen, this obligation was extinguished, and the impro- 
 priation is on the footing of ordinary inheritances. The 
 courts said it was now only the same obligation in this 
 respect against the parson as against a layman,^ 
 
 Gommon lam relating to tithe. — A. vast variety of 
 learning has been brought to bear on the question at what 
 date the tax called tithe was first imposed on proprietors 
 of lands in England, and next on nearly all trades and 
 occupations which had little or nothing to do with land.* 
 
 1 Griffin v Digliton, 5 B. & S. 93. 2 15 Eich. II. c. 6 ; 4 Hen. IV. 
 c. 12. 
 
 ' 2 Ventr. 35. But powers more or less voluntary and enabling 
 have been given by statute for these augmentations.- — 29 Oh. II. 
 c. 8; 12 Anne, o. 4; 1 & 2 Will. IV. c. 45; 6 & 7 Vic. c, 37; 28 & 
 29 Vic. c. 42; 29 & 30 Vic. c. Ill, § 22. And means have been 
 provided for converting vicarages into rectories through the medium 
 of certain ecclesiastical commissioners.^ — 3 Geo. IV. c. 72. In those 
 cases where the incumbent of a modern ecclesiastical district is 
 entitled to the fees for marriages and baptisms, and to discharge 
 the duties, he is entitled to the designation of vicar.— 31 & 32 Vic. ' 
 c. 117, § 2. 
 
 *■ The ancient notion was, that tithes were of divine right, and 
 were merely unnecessary during the apostolic age, because the 
 doctrine of community of goods then prevailed. When the church 
 became more powerful in the fourth century, and governors were 
 eager to show their zeal, then tithes, or something like it, were paid 
 to the clergy. — Selden's Hist. Tithes, c. 5. In 895 a council of Tribus 
 near Mayence boldly laid it down as the voice of God, that the tenth 
 of all things was for the maintenance of the church and its ministers. 
 —6 Act. Ooncil P. I. p. 443 ; 2 Ranhen's Hist. Fr. 182. The pay- 
 ment of tithe had been first required by a canon of a Provincial 
 Council at Magon, in France, in 686. — Selden, c. 6, § 1. And 
 Charlemagne was said to be the first who enforced it in 780. — 
 Selden, c. 6, § 2 ; 1 Hallam, Mid. Ag. c. 7. The practice prevailed 
 in England in the eighth century, and the amount was settled as 
 one-tenth of the income ; one-third being devoted to the poor, one- 
 third to the ornament of the church, and the remaining third to 
 the priest for his own use. — Ecghright's Exc. a.d. 740; Selden, c. 8, 
 § 1. But it was treated as a voluntary payment till King Ethelstan 
 made it oompulBory. —Ethelst. L. Eccl. a.d. 925 ; Thorpe, 83. It has 
 been said that the law of OflEa, a friend of Charlemagne in 794, first 
 gave to the clergy in England a civil right in all the land of the 
 
454 ' SECURITY OF PUBLIC WORSHIP. [ch. vi. 
 
 But this research is of little importance, for the moment 
 the general rule was- accepted, acted on, and enforced by 
 the common law, and at a time when the legislature was 
 still in a rudimentary condition, it was precisely the same 
 as if the legislature had invented and imposed it for the first 
 time. Many maxims and elementary rules of common law 
 cannot be traced to any existing statute, simply because 
 the common law was formed by talcing up some generally 
 accepted truth current at the time and enforcing it long 
 before our series of statutes begin. Therefore, from 
 whatever quarter — whether the voice of a king or of a 
 council of the Church — the common law appropriated the 
 general rule or maxim, that all real property, and all trades 
 and occupations, were bound to yield a tenth of their 
 produce or earnings for the support of the clergy, this was 
 as good as any statute, and had precisely the same binding 
 authority. And if the rule of the common law was first in 
 the field, all subsequent statutes must be so interpreted 
 as not to supersede or displace it without express words or 
 necessary implication. And as nothing but legislative 
 authority, by whatever name known — whether called 
 common law or statute law — could lay down and enforce a 
 universal rule of that kind, all speculations as to the 
 precise moment it first assumed the certainty of a fixed 
 law are somewhat superfluous. It is enough, that all the, 
 wise men of the time thought this was, or ought to be, law, 
 
 kingdom of Mercia as a species of property, and that Ethelwulpli, 
 aix.ty years later, extended the same law to the rest of England^. 
 And though it has been doubted whether this referred to a gift of 
 the land or of the produce, it is of little importance, if the clergy 
 and leading men interpreted it as a creation of a legal right. — 
 J'rideaux, Tithes, 167; 2 Hallam, Mid. Ag. c. 7; 1 Collier, 156; 
 1 Turner, Ang.-Sax. 489. At least from the ninth to the twelfth 
 •century payment was enforced by the courts like any other legal 
 right— 3 Selden, Tithes, 1108. ' Thus Edgar, in 967, and Ethelred, 
 in 1008, made a law, that if the tenth part was not paid,, the owner 
 was to forfeit the eight parts and keep only one ninth to himself. — 
 1 Spelman, 420 (^Brompton Chronicle.) The laws of William the 
 Conqueror, re-enacting those of Edward the Confessor, go into some 
 detail as to the tenth sheaf, and calf, and lamb, the tenth of butter 
 and of bees, and th? tenth part of fisheries, and mills, and orchards, 
 " and of trade, and of all things which the Lord shall give," and the 
 owner was declared to be bound to pay tliis tithe. — Hoveden's Anna Is, 
 1 Spelm. 620. 
 
CH. VI.] COMMON LAW OF TITERS. 455 
 
 and thea and there they, having the power, made it the 
 law. And it is not wonderful that they shoidd have called 
 it a divine law, for men and cour-ts equally believed at the 
 same epoch that all other laws also had a divine origin,!^ 
 though probably, owing to the produce of the law of tithes 
 being used for the support of the clergy^ they may have 
 thought this as the most divine of all divide laws. And 
 yet when the Quaker Bill was debated in Parliament in 
 1736, all the statesmen of the time agreed, that there was 
 nothing more divine in the law of tithes than any other 
 law, and declined to support such law on the theory of any 
 such divine right. ^ 
 
 Presumptions of common law in favowr of tithe.-^ 
 Whatever may have been the uncertainty as to the ante- 
 cedent law, it was deemed part of the common law in 120jO 
 that the tithes belonged as of right to the clergy of the 
 church of the parish in which the lands lay or the persons 
 laboured, and the Decretal Epistle of Innocent III. to the 
 Archbishop of Canterbury merely recognised that law.* 
 And yet this rule was subject to the exception, probably 
 arising from manors and parishes not coinciding, that a 
 parson might prescribe for tithes in another parish, then 
 called a portion of tithes.* There could be no presumption 
 for the lord of the manor or the proprietor of land and his 
 assigns to take the tithe from the terre-tenants ; for the 
 effect of this would be to make the right of taking, tithes 
 assignable, and would make a layman capable of holding 
 tithes in gross.* Coke said, that a man might by presump- 
 tion prove a valid variation as to the mode of paying tithe, 
 but could not prescribe for an absolute discharge. And the 
 reason given was, that " the law will not put it to the trial 
 of laymen, who will rather strain their- conscience for their 
 private benefit than yield to the Church the duties which 
 belong to it. And the law hath great policy therein, for 
 the decay of the revenues of men of Holy Church in the 
 end will be the overthrow of the service of God and His 
 religion." * , 
 
 1 See 1 Pat. Com. (Pers.) 110. » 8 Pari. Hist. 1186. 
 
 3 2 Inst. 641. * Gibs. 663, » Knight v Waterford, 
 
 4 y & 0. 283. 
 
 6 Bp. Winchester's Case, 2 Coke, 44. One maxim as to tithe was, 
 tiiat the glebe lands of the parson were exempt, because the church 
 
456 SECURITY OF PUBLIC WOESn;[P. [ch. vj. 
 
 Different classes of tithes. — These rights called tithes 
 were at an early period divided into prsedial, mixt, and 
 personal. Prsedial were- said to arise directly out of the 
 soil, as grain, fruits, and herbs. Mixt tithes arose less 
 directly, as cattle and fowl, milk and eggs. Personal tithes 
 again arose froni personal labour, and had nothing what- 
 ever to do with land. There was also another division 
 according to value. The great tithes were the prsedial 
 tithes of corn, hay, and wood, while the small tithes in- 
 cluded all the other tithes. But these distinctions were 
 subject to variation by custom, and arose out of circum- 
 stances which were extremely minute, and scarcely now 
 intelligible.^ 
 
 Difficulties in applyi/ng the law of tithe. — The law of 
 tithe, being like all ancient laws, very vague, it became 
 the duty of the courts of law, and the (ecclesiastical courts, 
 to interpret and apply it to particular cases. This was 
 done by the courts of law by way of prohibition, whenever 
 it was clearly seen, that the spiritual courts were ex- 
 ceeding, or about to exceed, their jurisdiction in enforcing 
 payment of what was illegal. The parson sometimes 
 claimed inore than what the parishioner thought right, 
 and there were constant disputes as to the time and 
 place and manner in which the tithe became payable, as 
 will be seen from some leading difficulties that arose. 
 
 What are tithable things and profits of land. — One 
 characteristic of tithable things was, that they must yield 
 a natural increase once a year or oftener, or at least an 
 increase like saffron, once in three years.^ Hence slate 
 and other quarries and houses were not tithable, because 
 they yielded no natural fruit ; and even to this rule there 
 was an exception by custom, as was evident from the 
 
 shau no., pay tithes to the church ; but this was true only so long 
 as the parson held possession of the glebe and the tithes. — Moyle v 
 Ewer, 2 Bulst. 183. 
 
 1 It was finally settled in 1742, that the question whether tithes 
 were great or small depended rather on their nature and quality 
 than their quantity. And hence it was solemnly decided by Lord 
 Hardwioke,'that potatoes were small tithes, whatever be the extent 
 of ground-occupied by them.— Smith v Wyatt, 2 Atk. 364. Another 
 decision was, that grass severed with an instrument was great tithe, 
 but if severed by the mouth of an animal was small tithe — Lewis v 
 Bridgman, 2 CI. & F. 747. 2 ,Gibs. 669. 
 
ca. VI.] TTTHABLE THINGS. 457 
 
 statute of Edward VI.' Fish were not in their nature 
 tithable any more than wild creatures, which were deemed 
 quasi in the realty unless they yielded profit.^ But by 
 custom those, who derived proiit by fishing, paid something 
 in the nature of personal tithe in respect of the fish 
 caught.^ Barren heath and waste ground was also not 
 tithable as a general rule, but a statute of Edward VI. 
 made .it so within seven years after it was turned into 
 arable or meadow, so as to be profitable in corn and hay.* 
 Tithe of wood was a troublesome matter. The clergy- 
 demanded tithe of both underwood and young full grown 
 wood, and at last the legislature declared, that there should 
 be no tithe of wood after it was twenty years old.^ Then 
 fine distinctions Vt-ere made between certain kinds of wood, 
 some fit for building, and some not; and, in particular, 
 bark of oak was held not tithable, but acorns were 
 tithable. Coke said "he could cite a world of examples 
 of prohibitions about all these subjects in cases whereof 
 neveT any learned man made any doubt." ® Bfees did 
 not escape tithe, their contributions being expressly men- 
 tioned in the laws of Edward the Confessor. In one case 
 tithe was demanded, not only of honey and wax made 
 by the bees, but of the bees themselves; and the court 
 held that as the keeper paid honey and wax, and had to 
 ■maintain the hives in winter, he ought to be let off for the 
 bees.-^ And for a like reason, no tithe was paid of the 
 chickens, because the keeper paid tithe of the eggs.** 
 Apples were tithable only when plucked, but as they were 
 often stolen, this was held a defence to the tenant, espe- 
 cially if the person who took them was unknown. Yet, 
 if the tenant suffered the apples to hang too long, and so 
 they were lost by his negligence, he must pay his tithe or 
 the value, and he must also give tithe of the fallen apples.' 
 And there was tithe due even of the wild cherries that 
 grew on the hedges and waste places.^" Also hothouse 
 
 ' 2 Inst. 651 ; 2 & 3 !Ed. VI. c. 13, § 12 ; Kinaston v Piercy, 
 2 Eagle & Y. 289. ^ Nicholas v Elliott, 1 E. & Y. 698. 
 
 s Holland i> Heale, 1 E. & Y. 156 ; Williams v Baron, 2 E. & Y. 
 217. 4 2 & 3 Ed. VI. 0. 13, § 5 ; 2 Inst. 655 ; Stockwell v Terry, 
 1 Ves. 116. 5 2 Inst. 642. « ig Ed. III. c. 7 ; 45 Ed. III. 
 
 c 3. 7Cro. Ch. 403. 8 i Boll. Ab. 642. » Hetl. 100, 
 
 1 E. & Y. 366, 618, 665. i" 1 E. & Y. 803. 
 
458 SECURITY OF PUBLIC WORSHIP. [ch. vi. 
 
 plants, and fruits, other than exotics, were tithable ; for 
 though it was contended they were not the produce of the 
 earth, tlie court thought they were as much so as cucumbers 
 and hops.^ 
 
 Mode of recovery of tithes. — Tithes were, according 
 to Coke, recoverable at first in the county court; and 
 afterwards the ecclesiastical courts also enforced payment 
 by excomraTinieation, The mode of recovering tithes in 
 the ecclesiastical courts before 1836' was subject to many 
 niceties now of no importance ; the main point was, 
 whether the payment had been superseded by a modus or 
 composition, and what was satisfactory evidence of such 
 raodus.^ In 1540, and again in 1548, the legislature 
 gave better remedies for enforcing payment of tithes, it 
 being held before that time, that lay proprietors of tithes 
 could not sue in the spiritual courts. The statute of 
 Edward VI. expressly declared, that suits for subtraction 
 of tithes should be in the King's Ecclesiastical Courts 
 only ; and the punishment was excommunication ; and if 
 the party still refused to pay after forty days, that court 
 was to signify the same to the king in his court of Chan- 
 cery, that process of imprisonment might be issued.^ 
 
 Mode of setting out and delivering tithe. — One great 
 difficulty in the practical working of the law of tithe 
 was as to the mode of setting out and delivering the tenth 
 part of the produce. The rule was, that the parson was 
 bound to go and fetch away his tithe when it was set out, 
 within a reasonable time, for otherwise he obstructed the 
 tenant in the use of hifi land,, and the tenant could sue him 
 for the injury thereby caused ;. for it was said, " the fruit, if 
 not removed, may rot, and cause a smelL" * And yet, if 
 
 1 Adams v Waller, 3 E. & Y. 1292, 1385. " 2 Inst. 400. 
 
 3 32 Hen. VIII. c. 7 ; 2 & 3 Ed. VI., c. 13„ § 13. 
 
 * Wiseman v Denham, 1 B. & Y. 328. This rule was laid down 
 in the statute of Ed. VI. thus : " Whensoever praedial tithes shall 
 be due, and at the tithing time of the same, it shall be lawful for 
 every party to whom any of the said tithes ought to be paid, or his 
 deputy, or servant, to view and see the said tithes to be justly and 
 truly set forth and severed from the nine parts, and the same quietly 
 to take and' carry away ; and if any person carry away his corn or 
 hay, or his other praedial tithes, before the tithe thereof be set forth, 
 or.j willingly withdraw his tithe of the same, and of such other 
 things whereof praedial tithes ought to be paid, or do stop, or let 
 
OH. VI.] SETTING OUT TITHES. 459 
 
 the parson did not carry off his corn tithes, the tenant was 
 not entitled to turn in his cattle to eat them up ; hut he 
 must only sue the parson for the damage caused hy his 
 delay. ^ So as to corn, the tenant was bound to make the 
 corn when cut into sheaVes ready for the parson.^ And 
 the grass must be tedded for a like purpose.^ The owner 
 of a single calf was deemed bound to pay the tenth part 
 of its value when taken from the cow in lieu of tithes. 
 In one case the owner offered the parson a shoulder after 
 killing the calf, but he was sued in the court, and the 
 court held, after debate, as above stated.* And the right 
 to one of ten calves was held to accrue the moment this 
 tenth calf was dropped, though it need not be taken away 
 till it was weaned and capable of living without its dam.' 
 
 the parson, vicpj, proprietor, owner, or other their deputies, farmers 
 to view, take, and carry away, &c., he shall pay double tithe." — ■ 
 2.& 3 Ed. VI. c. 13» § 2. 
 
 1 1 E. & Y. 618. 2 1 Bol. Ab. 644; 1 E. & Y. 448. 
 
 3 1 B. & Y. 625 ; 2 B. & Y. 479. When grass was cut, the tenant 
 gave notice to the rector to take his tithe, but in one case the ditches 
 round the field being, impassable, it was held enough for the rector 
 to wait till the grass was made into hay ; and if the tenant would 
 not make it into hay, the parson must do it himself, and within a 
 reasonable time, so as not to hinder the tenant in the use of the 
 land. — South v JKjhes, 1 Stn. 245. And when com was out the 
 rector got notice, and though the tenant was bound to leave one- 
 tenth in cocks for the rector, the latter was bound to carry them ofE 
 in reasonable time.^ — Noy, 31. 
 
 Some tithes were held to he impracticable ; and grass and turnips 
 caused great vexation. Though it was easy to separate each tenth 
 turnip,, and make a heap, yet the sheep and lambs that happened to 
 be pasturing on the other turnips could not be persuaded to leave 
 this heap alone, so that the tithe-owner- either suffered, and probably 
 commenced an expensive suit against the farmer, or the farmer had 
 to be deprived of the pasturage of the turnips for the fear of such 
 litigation.. The legislature was once called on to pass a special act 
 to set this difficulty right.— 30 Pari. Deb. (3d ser.) 802. 
 
 *■ A.D. 1693, 1 E. ,& Y. 582_ 
 
 5 Welch V Uphill, 1 B. & B. 84; "A small farmer could not take 
 his cow and calf to market for sale becarase' the titheman told him. 
 the calf must first grow till, it was independent of the mother. The' 
 titheman took the tenth day's milk, so that on that day the calves 
 had to go without any. If one tenth row of potatoes was tithe, yet 
 the others could not be taken up till they were measured. If a farmer 
 had ten hens he had to keep an account of the eggs laid, the number 
 of chickens hatched, the number carried ofE by the fox and othf r 
 casualties. A man could not take a, head of celery out of his 
 
460 SECURITY OF PUBLIC WORSHIP. [ch. vi. 
 
 Difficulties as to the tithe of milk. — ISTothing so well 
 illustrated the vagueness and vexatiousness of the law of 
 tithes as that which applied to the familiar article of milk, 
 both in the mode of settling the amount and the mode of 
 delivery. In one great case in 1777, the parson insisted, 
 that the whole milk, morning and evening, of the tenth 
 day, was his tithe, while the cowkeeper contended it was 
 only the evening meal on the fifth day, for that was the 
 proper tenth meal. The parson, however, said the evening 
 Ineal was always less than the morning meal, and this 
 would be defrauding him. And he satisfied the court that 
 the evening's milk was one third less in quantity than the 
 morning's milking. The court heard long arguments for 
 several days, besides witnesses, and concluded that the 
 only fair way was to give the parson the tenth morning 
 aud tenth evening meal, otherwise injustice would be done 
 to him.^ The parishioner appealed against this, and con- 
 tended that instead of tithe this was in effect making hini 
 give the nineteenth and twentieth meals ; for each milking 
 was quite distinct. But the House of Lords affirmed the 
 decision.^ Yet this was not the only difficulty arising out 
 of the tithe of milk.^ The quarrel also arose, whether the 
 milkman was bound to deliver the tithe milk, and if so, 
 whether it was to be delivered at the church porch or the 
 vicarage house. The court, in 1678, was divided on this 
 point, and ordered arguments both by common lawyers 
 and civilians. After full debate and time taken to con- 
 sider, the judges, by three to one, held, that the cow- 
 feeder was bound to deliver the tenth day's milk at the 
 church porch. The two arguments relied upon were a 
 
 garden or put a cabbage into his pot without first sending notice to 
 the titheman, or subjecting himself to an exchequer process." — 2 
 Pari. Deb. (3) 29. In 1832 tithes had become so obnoxious in 
 Ireland, that when some cattle were seized for tithe under the pro- 
 tection of artillery, cavalry, and infantry, and sold by auction, no 
 person would bid one shilling for a bullock worth ten guineas.— 18 
 Farl. Deb. (3) 234. 
 
 ^ Bosworth V Limbriok, 7 Bro. P. C. 57. ^ Ibid. 
 
 ^ In this case the parishioner, who kept a dairy, complained, that 
 by insisting on the whole milk of one day being given up to the 
 parson, the calves must on that day go without their feeding, and 
 there would be no whey for the pigs ; and that a calf ten days old 
 would drink more milk than one cow could give. 
 
CH. \i.] MODUS AND TITHE. 461 
 
 passage in Scripture,^ and the maxim, that it was more 
 decent for the parishioner to deliver the milk than for 
 the vicar to send for it.^ Twenty years later the court 
 assumed, that it ought to be delivered at the parsonage 
 house.8 Yet still later, namely in 1720, the Court of 
 Exchequer held, that the parson was bound to send and 
 fetch the milk in his own pails from the milking-place ; 
 and if he did not do so before next milking time it might 
 be thrown on the ground, for the pails would then be 
 wanted,* Lastly, in 1767, the court would not allow the 
 milk to be thrown away, if there was the least evidence 
 of a custom to deliver at the porch door, and ordered the 
 milkman who did so to pay the value of the milk destroyed.^ 
 
 Difficulties as to personal tithes. — It has been seen 
 that the laws of Edward the Confessor included personal 
 tithe as well as the tithe of the produce of land. And by 
 the statute of Edward VI. every person exercising mer- 
 chandises, bargaining and selling clothing, handicraft, or 
 other art (other than common day labourers) was to pay on 
 Easter the tenth part of his clear gain. The ordinary was 
 to summon a defaulter, and examine him by all lawful and 
 reasonable means except his own corporal oath, concerning 
 the true payment of this proportion of gain.® This income- 
 tax, as might be supposed, was difficult in practice to be 
 recovered. And it is said that in the time of James I. it 
 was treated as too indefinite to act upon.^ And in modern 
 times it has long ceased to be collected.^ 
 
 Modus substituted for tithe. — Owing to the numerous 
 difficulties of all kinds attending the setting out, the de- 
 livery and recovery, of tithes in many parishes, special 
 agreements had been made substituting some fixed pay- 
 
 I 1 Mai. iii. 10. 2 1 Eagle & Y. 516. =* 1 L. Eaym. 621. 
 
 ■« Bunb. 73, 160. ^ 2 B. & Y. 222, 282. 6 2 & 3 Ed. VI. 
 
 c. 13. 7 Wood, b. ii. c. 22. 
 
 8 In a case in 1613 a parson aued a Bristol innkeeper, alleging that 
 he had made great gain in selling beer, having bought a , stock for 
 500Z. and sold it for 1,0OOZ., and he claimed tithe of the large profit. 
 But the court said he might as well claim tithe of all the kitchen- 
 stuff, and granted a prohibition against the suit. — 2 Bulstr. 141. In 
 1836 the Attorney General said that he had no doubt, that personal 
 tithes could be enforced ; but they ought to be abolished, and t^ie 
 clergy to their credit had not enforced them for many years. — 35 
 Fad. Deb. (3) 95. 
 
4G2 SECURITY OP PUBLIC WORSHIP. [ch. vi. 
 
 merits more easily ascertained than ordinary tithe in kind. 
 And these customs in turn, owing to their vagueness, gave 
 the courts nearly equal trouble, if not greater, in solving 
 interminable disputes raised at every point. Tor though 
 the courts allowed long usage in paying a modus, or some 
 equivalent instead of ordinary tithe, to be good evidence 
 of a legal discharge of the original common law obligation, 
 yet sometimes the substitute claimed was very large ; often 
 they held the bargain to be so foolish and monstrous that 
 it was void, or in other words the modus was said to be 
 rank, and so not binding. Thus to give the parson a hen 
 on St. Thomas' Day in lieu of bearthwood, honey, and 
 apples, was deemed valid.^ But to pay threepence for 
 every lamb, i.e., '2s. 6d. for the tenth lamb, or to pay Is. 
 for a sucking pig, was deemed monstrous, incredible, and 
 not to be tolerated for its extravagance.^ 
 
 Tithe commutation Acts and rentcharge. — In 1836 
 the vexations attending the recovering of tithe on land 
 ■were got rid of to a great extent by the expedient of sub- 
 stituting a corn rent or rentcharge for the tithe or modus, 
 however recoverable. These Acts have, since that time, 
 been frequently amended.* Under these Acts valuers were 
 
 1 2 Eagle & Y. 65. 
 
 2 The judges used so late as 1817 to deliver elaborate judgmente 
 about the ancient prices of lambs and pigs. Thus Gbaham, B., in 
 Layng u Yarborough, 4 Price, 383, said, "Lord Thurlow, L. C.'s, 
 authority on the subject of the tithe of lambs was not to be des- 
 pised, and he was clearly of opinion tliat two shillings and sixpence 
 for a lamb was ridiculous. He would not hear of it, and he actually 
 refused to send it to a jury. As to a shilling for ■every tenth pig, 
 I should have no difficulty in supposing that a sucking-pig was not 
 worth a shilling, because the tithe pig is to be paid when the pig is 
 at the dug. The farmer is not to keep it till it is a grown pig ; the 
 parson must take it in five or six weeks. Now what can be said of 
 one pig in a farrow being worth a shilling at a time when the pig 
 itself and all the pigs in the stye perhaps would not have been wortli 
 so much?" And Eichakds, 0. B., added, "^ If I find a modus 
 alleged of a shilling for that which in the times to which we must 
 refer, according to all the knowledge we have, would not be worth 
 more than a penny, I am bound by my oath to decide, that that is 
 a payment of modern usage amd not a modus." 
 
 3 '6 & 7 Will. IV. c. 71 ; 7 Will. IV. and 1 Vic. c. 69 ; 1 & 2 Vic 
 c. 64 ; 2 & 3 Vic. c. 32 ; 3 & 4 Vic. c. 15 ; 5 & 6 Vic. c. 54 ; 5 & 10 
 Vic. c. 73 ; 23 & 24 Vic. c. 33. The tithes in the City of Londo^ 
 stood in a peculiar position. By early Constitutions there had been 
 
en. VI.] TITHE RENTCHAEGE. 4G3 
 
 appointed to value the tithes, to apportion them on lauds 
 within a certain area with or without the consent of the 
 owners, the basis of valuation being ther average of the seven 
 . years' payments preceding 1835.1 And in the case of lands 
 partially exempt, either on the groiind of privilege con- 
 tingency or a shifting or leaping modus, the valuers- could 
 fix upon a rentcharge as a substitution f&r any such con- 
 tingent liability.^ And where Crown lands were exempt, 
 when held by tenants of the Crown, power was given to 
 fix a suitable rentcharge.^ And lands held by the Eccle- 
 siastical Commissioners were also subjected to the same 
 power.* And even where lammas and common lands were 
 liable to tithe only at certain times of the year, these could 
 be converted into the same kind of fixed rentcharge ; and 
 even after the incloaure of such lands the power was ap^ 
 plicable.^ And the like as to lands in which tithes had 
 been commuted to a sum per head 6f cattle.^ 
 
 Finality of ■setth'ment of tithe rentchm-ge.-~The rent- 
 charge once fixed in the way pointed out was made con- 
 clusive and final.'' And though there was no jurisdiction 
 to decide which of several claimants was entitled to any 
 particular tithe, yet the amount was thereby fixed.*' When- 
 ever the apportionment of tithe rentcharge has been con- 
 firmed, the lands become absolutely discharged from the 
 payment of all tithes at common law or otherwise.^ It is 
 true, that, after being once settled by the Tithe Commis- 
 
 a commutation at the rate of three shillings and fivepence in the 
 pound on rents, but the citizens, century after century^ complained 
 of this as illegal and void ; and in the time of Henry VIII. got the 
 rate reduced to two shillings and ninepence. — 27 Hen. VIII. c. 21 ; 
 37 Hen. VIII. c. 12 . Difficulties have occurred in construing the 
 words of the statute. — Vivian v Cochrane, 4 De G., M. & G. 818 ; 
 London Co. v Letts, 3 H. L. C. 470. After the great fire in London, 
 certain annual sums were fixed upon parishes in lieu of tithes. — 22 
 & 23 Ch. n. c. 15. 
 
 In 1866, the value of tithes turned into tithe rentcharge was 
 4,063,663/. ; of which 2,412,404/. was payable to parochial incum- 
 bents ; 766,233/. to lay impropriators ; 678,969/. payable to clerical 
 appropriators ; and 196,056/, payable to schools.and colleges. 
 
 1 6 & 7 Will. IV. c. 71, §§ 33-7. " 2 & 3 Vic. c. 62, § 11 ; 
 
 3 & 4 Vic. c. 15, § 14. ' 2 & 3 Vic. c. 62, § 12. < 4 & 5 Vic. 
 c 39. 5 2 & 3 Vic. c. 62, §§ 13, 14 ; 3 & 4 Vic. c. 15, § 15 ; 9 & 
 10 Vic. c. 73, § 13. 6 23 & 24 Vic. c. 93. ? 6 & 7 Will. c. 71, 
 S 66 : 9 & 10 Vic. c, 73. « r. ^ Tithe Comrs., 15 Q. B. 620. 
 
 9 6 & 7 Will. IV. c. 71, § 67. 
 
464 SECURITY OF PUBLIC WORSHIP. [ch. vi., 
 
 sioners, the tithe rentcharge might be again altered at the 
 owner's request by the Larid-tax Commissioners with the 
 consent of justices.^ The tithe rentcharge was in reality 
 fixed at an equivalent of so many bushels of corn, and the 
 average price of corn was arrived at in. a manner pointed 
 out by the statute.^ In one or two cases a fixed invariable 
 sum could not be settled, and hence two alternative rents 
 were taken. These were hop-grounds, orchards, and gardens, 
 which sometimes go out of cultivation and sometimes come 
 into cultivation. To suit the lower cultivation of the land 
 an ordipary charge was fixed ; and to suit the higher culti- 
 vation an extraordinary charge.^ Even waste land formerly 
 exempt from tithe was made subject to this extraordinary 
 charge when turned into hop^ground.* And land not before 
 declared subject to an extraordinary charge in respect of 
 fruit may be defined in a district and made subject to it.^ 
 Tithes were, like advowsons, treated as in all respects a 
 distinct freehold estate, when vested in the lay impropriator. 
 The tithe estate may be incumbered like land,° and though 
 formerly time was no bar to recovering tithes, the Act of 
 1833 fixed a limitation like that for land or rent.'^ And 
 power was conferred on the parties interested to accept or 
 give land in lieu of tithes by way of commutation.® In the 
 case of petty sums, the Tithe Commutation Acts enabled 
 
 1 6 & 7 Will. IV. c. 71, § 72; 5 & 6 Vic. c. 54, § 14 ; 23 & 24 
 Vic. 0. 93, §§ 11-17. The instrument of apportionment is registered 
 for preservation.— 6 & 7 Will. IV. c. 71, §§ 63, 64 ; 5 & 6 Vic. c. 
 54, § 15. The Court of Quarter Sessions may determine from time 
 to time the fittest place of custody for these instruments of appor- 
 tionment.^ — 9 & 10 Vic. 0. 73, § 17. And when they have been ob- 
 tained by those not entitled, two justices may order the restoration. 
 —23 & 24 Vic. c. 23, § 28. 
 
 2 6 & 7 Will. IV. c. 71, §§ 56, 67. ^ & &7 Will. IV. c. 71, 
 § 40 ; 2 & 3 Vic. c. 62, §§ 26-31 ; 3 & 4 Vic. c. 15, §§ 18, 19. 
 
 4 Walsh V Trimmer, L. R., 2 H. L. C. 208. But these powers do 
 not apply to extraordinary charges put on market gardens newly 
 cultivated, except such market gardens as had such charge imposed 
 on them at the time of commutation. — 36 & 37 Vic. c. 42. And to 
 prevent this power operating larshly on the poor, there was an ex- 
 ception made where the holdings of the, lands used as gardens or 
 lawns were small. — 3 & 4 Vic. c. 15, §§ 25, 26. 
 
 5 Russell V Tithe Comrs., L. E., 6 0. P. 696. 6 6 & 7 Will. IV. 
 p. 71, § 71. f 3 & 4 Will. IV. 0. 27, § 2 ; 37 & 38, o. 57. 
 
 8 6 & 7 Will. IV. c. 71, §§ 29, 31, 62 ; 2 & 3 Vic. c. 62, § 19 : 
 3 & 4 Vic. c. 15, § 17 ; 5 & 6 Vic. c. 54. 
 
^c 
 
 CH. vi.T EECOVEEING TITHE EENTCIIAEGE. 405 
 
 owners to redeem the rentcharge. ' And when the persons 
 entitled to the consideration money for redemption were 
 spiritual persons, it was to be paid to the governors of 
 Queen Anne's Bounty, and applied by them for augmen- 
 tation of the benefice.^ Under several local Acts corn- 
 rents had been substituted for tithe, and these also were 
 authorised to be converted ' into tithe rentcharge,^ in a 
 manner similar to the ordinary tithe. One important power 
 given by the Tithe Commutation Acts was to enable owners 
 of the tithe, or of the rentcharge which took its place, by a 
 proper deed under seal to declare it either before or after 
 apportionment to be merged in the la,nd, and the existing 
 incumbrances on the tithe were thereby fixed according to 
 certain priorities on the lands themselves.* And a like 
 power was given of merging the tithes in lands of copyhold 
 and other tenures as well as in glebe land.^ 
 
 Recovery of tithe rentcharge hy distress. — The mode 
 of recovering this tithe rentcharge is solely by way of 
 distress and entry on the lands, for the tithe-payer is free 
 from all personal liability.^ And any tenant of lands under 
 a lease made subsequent to the commutation of tithe may 
 on payment of the rentcharge set it off against the land- 
 lord's claim for rent.' This one valuable improvement of 
 the law, namely, to allow arrears of rentcharge to be re- 
 covered by distress upon the lands, may be put in force after 
 twenty-one days' nonpayment after each half-yearly term 
 of payment, provided not more than two years' arrears be 
 recovered at any time in this way.^ These powers of dis- 
 tress are the same as those of any landlord for rent, re- 
 served on a common lease for years.* And if there is no 
 sufficient distress on the premises, including growing crops, 
 liable to pay the two years' arrears, then a judge may, on 
 the application of the tithe-owner, order the sheriff to 
 award possession of the lands themselves till the arrears 
 and costs be paid.^" And the tithe-owner may wait till 
 
 1 9 & 10 Vic. c. 73 ; 23 & 24 Vic. c. 93, §§ 31, 32. 294 10 
 
 Vic c 73, 85 7-10. s 23 & 24 Vic. c. 93. " 6 & 7 Will. IV. 
 
 c. 71, S 71 r 1 & 2 Vic. c. 64 ; 2 & 3 Vic. c. 62, §§ 1, 2 ; 9 & 10 Vic. 
 0. 73, 5 18; 23 & 24 Vic. c. 93. 5 1 & 2 Vic. c. 64 ; 2 & 3 Vic. 
 
 c. 62, 8 6. « 6 & 7 Will. IV. c. 71, § 67. ' Ibid. § 80. 
 
 s 6 & 7 Will. IV. c. 71, § 81. '^ Newnbam v Beever, 8 C. B. 660. 
 
 10 6 & 7 Will. IV. c. 71, § 82 ; Exp. Arnison, L. E., 3 Excb. 56 ; 
 Re Hammersmitb, 4 Ex. 87. 
 
 H H 
 
466 SECUEITY OF PUBLIC WORSHIP. Jch. yi. 
 
 the end of two years, at which the sufficiency of the distress 
 is to be estimated.^ And while so in possession the tithe- 
 owner may let the lands for a year at a fair rent by way 
 of paying himself. ^ ■ The power of distress also extends' to 
 the lands occupied by the same person, whether as tenant 
 or owner, though the tithe rentcharge has been apportioned 
 on one part of the land only.^ When one rentcharge is 
 chargeable on lands of different owners or occupiers, and one 
 owner pays the whole, he may apply to justices to enforce 
 payment of the contribution due from the others.* And 
 the justices may adjudicate on the ma,tter.^ As this dis- 
 training of goods is always a grievance, the owner of the 
 rentcharge is allowed a small sum to cover the expense 
 of giving previous notice in writing of the intention to 
 distrain.® Considerable allowance is also made for irre- 
 gularities in making a distress, and remedies for these are 
 not encouraged.'^ Moreover, though the lands subject to 
 the tithe rentcharge are liable to pay tithe when there is 
 produce subject to tithe, yet though the owner may render 
 his land incapable of producing tithe, he is not liable on 
 that account in damages to the tithe-owner.* 
 
 Pensions, Easter dues, and fees as maintenance. — 
 Before the Tithe Commutation Act there were some in- 
 stances of tithes having been commuted or superseded by 
 what are called pensions or fixed sums of money paid to 
 clergymen. These were supposed to have been decreed by 
 some ecclesiastical judge in the course of some controversy 
 relating to tithes, or agreed to by deed of the parties. 
 The tithes are thenceforth enjoyed by one, and a pension 
 instead thereof paid to another. But a statute of Elizabeth 
 prevented any new pension being granted.^ The offerings 
 or obventions called Easter dues, being small payments 
 made by custom at communions, marriages, christenings, 
 and like occasions, were said to be a compensation for 
 personal tithes, and due at common law from every house- 
 holder, yet varied by custom.i" In most cases they are a 
 tax due from every person in the parish above the awe of 
 
 ' Re Camberwell, 4 Q. B. 151. " 5 & 6 Vic. c. 54 8 12 
 
 3 6 & 7 Will. IV. c. 71, § 85. " 6 & 6 Vic. c. 54, S 8 16-19 
 
 6 R. V Williams, 18 Q. B. 393. 6 23 & 24 Vic. c. 93, SS 29 30 
 
 7 5 & 6 Vic. c. 54, § 19. 8 R_ „ Nene Outfall, 9 B ¥ C 875" 
 9 13 Eliz. c. 20, § 1. i» Gibs. 739; 1 E. & Y. 818 
 
CH. VI.] QUAKERS AND TITHES. ■ 467 
 
 sixteen.^ And they are often treated as a tax on houses, 
 communicants, cattle, and other items, according to the 
 user shown to exist.^ The Tithe Commutation Act of 
 1836 did not apply to Easter offerings, mortuaries, or sur- 
 plice fees, or to tithe of fish or minerals.* But in 1839 
 power to commute these also was given.* These small 
 offerings and oblations had been recoverable only in the 
 spiritual court ; but in 1695, when they or the small tithes 
 amounted to 40s. or less from one person, then they might 
 be recovered before two justices and enforced by distress 
 of goods.^ And the person summoned before justices could 
 set up as his defence a modus, in which case justices were 
 to forbear judgment and leave the adjudication to other 
 courts.* This jurisdiction of justices was found so conve- 
 nient that the recovery of aU tithes and oblations, not 
 exceeding 10^., due from one person at one time, was allowed 
 in that way.'' 
 
 Quakers and, recovery of tithes. — In 1695 Quakers who 
 refused to pay tithe or church-rates were made liable to 
 distress of goods in a summary way.* And this remedy 
 against them by summary process was soon extended to 
 include customary offerings for stipends.^ And in 1812 
 
 1 2 B. & Y. 122, 169. ^ k. „ Hall, L. E., 1 Q. B. 632. 
 
 3 6 & 7 Will. IV. c. 71, § 90. ^ 2 & 3 Vic. c. 62, § 9. 
 
 5 7 & 8 Will. III. c. 6 ; 53 Geo. III. c. 127, § 4 ; 7 Geo. IV. c. 15. 
 
 6 7 & 8 Will. III. c. 6, § 8 ; E. v JefCerys, 1 B. & 0. 604. Be- 
 sides the oblations and ofEerings already mentioned, there were 
 certain small fees for services rendered to individual parishioners, 
 such as surplice fees and baptism fees. Baptism fees were in 1872 
 wholly abolished, except in case of some persons then having right 
 to such fees by statute.— 35 & 36 Vic. c, 36. Even in the most ancient 
 times the notion prevailed, that the clergy should not take money 
 for administering the sacraments, nor in the case of baptism. — Bing. 
 Chr. Ant. b. v. c. 4. The amount of such fees has varied much at 
 different times, and the validity depended on custom. A great step 
 was taken in advance when certain commissioners were authorised 
 to make and fix a table of such fees for each parish, each district 
 and extra-parochial place. — 59 Geo. III. c. l34. And the commuta- 
 tion of surplice fees was authorised in the same way as the com- 
 mutation of tithes.— 6 & 7 Will. IV. c. 71, § 90; 2 & 3 Vic. 
 c. 62, § 9. 
 
 V 5 & 6 Will. IV. 0. 74; 4 &, 5 Vic. c. 36. But not more than 
 two years' arrears can be recovered by this remedy.— Eobinson v 
 Purday, 16 M. & W. 11. 
 
 8 7 & 8 WUl. III. c. 34, § 3. , 9 1 Geo. I. st. 2, c. 6, § 2. 
 
 H H 2 
 
468 SECUEITY OF PUBLIC WORSHIP. [ch. vi. 
 
 the amount so recoverable was raised to 50?.^ It was, 
 however, specially enacted, with respect to Quakers, when 
 tithes or other ecclesiastical demands were sued for in any 
 court, that no process of law should issue to imprison the 
 person hut only process of execution against the goods.^ And 
 while the tithes of others to the amount of 101. were re- 
 coverable before justices, the tithes of Quakers amounting 
 to 50^. were so recoverable also.^ Moreover, a further 
 peculiarity attends the recovery of tithe from them, which 
 is this, that the goods of the Quaker, wherever situated, 
 may be taken and sold without the necessity of first 
 impounding them.* 
 
 Collecting alms in church.— 'While tithes and Easter 
 offerings formed the fund for maintaining the clergy, the 
 ancient custom of offerings may also b^ here noticed, though 
 these were used for charitable objects entirely. To give 
 oblations at the altar was one of the earliest customs of the 
 Church, and made up what was called by TertuHian a bank 
 of piety, to help the aged, the prisoners and captives.^ It 
 was deemed a privilege, and those who gave them some- 
 times had their names rehearsed; but that in turn was 
 found to lead to ostentation.® And it was said the oblations 
 of thieves and harlots were rejected. As the Church from 
 the earliest times made it part of its business to attend to 
 the poor, it was natural that offerings of the faithful should 
 be received and applied to such a purpose. The canons 
 and rubrics of the Church still recognise this practice, for 
 they direct, that after divine service is ended the money 
 given at the offertory shall be disposed of to such pious 
 and charitable uses as the minister and churchwardens 
 shall think fit, wherein if they disagree it shall be disposed 
 of as the ordinary shall appoint. But when the same 
 agency was extended to collections for charities of a more 
 miscellaneous kind, the legislature, in the time of Queen 
 Anne, thought fit to intervene, as if the collection of money 
 in this way was a species of interference with the preroga- 
 tive.'' And it is only in modern times that it is confessed 
 
 1 53 Geo. III. c. 127, § 6. ^ 5 & 6 Will. IV. c. 74, S 2 
 
 3 5 & 6 Will. IV. 0. 74. 4 6 & 7 Will. IV. o. 71, 8 84 ' 
 
 5 TertuU. Apol. o. 39. 6 Bing. Chr. Ant. b. xv. c. 2. 
 7 In 1705 a statute passed authorising briefs or letters patent to 
 collect charity money, and the churchwardens were to keep a 
 
CH. VI.] OPPEETORY IN CHURCH. 469 
 
 to be superfluous for the law to interfere with the discretion 
 of incumbents as to . these voluntary subscriptions and 
 donations for all honest undertakings connected with 
 ecclesiastical affairs. 
 
 record, and the money was to be accounted for to a master in 
 chancery, and those collecting money otherwise were liable to a 
 penalty. — 4 Anne, c. 25. This act was only repealed in 1828 when 
 the Church Building Society was founded. — 9 Geo. IV. c. 42. In 
 one case in 1719 a clergyman was indicted for being seditiously dis- 
 posed to the Government, and conspiring with divers boys and girls 
 to wander up and down Kent to collect money, and, under the pre- 
 tence of collecting charities, inciting the parishioners to give alms 
 and gifts. And the judge told the jury, that a parish priest had no 
 right to have coUeotions in his church for poor children, even with 
 the bishop's leave, as the gathering of money was an invasion of' the 
 prerogative ; also of the function of the legislature ; that the levy- 
 ing of money was the tenderest part of our constitution, for it was 
 making the nation pay double taxes. The clergyman and church- 
 wardens were found guilty and fined six shillings and eightpence 
 each. — Hindley's Case, 15 St. Tr. 1407-18. On that occasion some 
 London charity children were taken down to Chislehurst, and the 
 worst that the clergyman and churchwardens there did was to make 
 a collection to assist them. 
 
470 SECURITY OP PUBLIC WORSHIP. [cf. vii. 
 
 CHAPTER VII. 
 
 THE DUTIES, DISABILITIES, EXEMPTIONS, AND PEIVILEGES 
 OF THE CLEKGY. 
 
 Duties of clergy towards the public. — The original 
 theory on which a parish church was founded and endowed 
 and maintained by a tax on the whole of the parishioners, 
 more general and searching even than a poor-rate, was, that 
 the priest was established for the benefit of all. And as 
 will be seen, all were for centuries bound under penalties 
 to attend the church and receive the benefit so intended. 
 And though in modern times it has been found imprac- 
 ticable to enforce this attendance, even against the 
 churchmen themselves, because many of the parishioners 
 have discovered that they can obtain services of a like 
 kind more to their mind in another manner, yet some of 
 the original theories and maxims relating to the duties of 
 the priest survive to this day, and, being part of the statu- 
 tory law, have never been repealed. One of these duties 
 is to administer the sacrament to all parishioners who wish 
 it, except under, the conditions mentioned, and these are 
 somewhat difficult to define. In one case in 1660, when a 
 clergyman refused to administer the communion to a 
 parishioner, he broijght an action at law, and the court 
 seemed to think such an action might be brought, if due 
 notice had been given and no just excuse could be set up 
 for refusing to gratify the applicant.^ The 30th Article 
 moreover may be said expressly to recognise this abso- 
 lute duty not to deny the Cup of the Lord to the lay 
 people. And the statute of Edward VI., still in force, 
 says, that the minister shall not without a lawful cause 
 
 1 1 Sid. 34. 
 
CH. VII.] PUBLIC DUTIES OF CLERGY. 471 
 
 deny the same to any person that will devoutly and 
 humbly desire it.' At the same time a rule enjoined by the 
 rubric is, that the communion shall not be administered 
 unless there are four, or three persons at the least, to 
 communicate with the priest, or at all events reasonably 
 expected to be ready and willing to join.^ This duty of 
 the clergy it is true was limited by the canons and rubric 
 to such only as have been previously confirmed, or 
 to persons in danger, or to cases of necessity. And in 
 particular there is no obligation to admit a notorious evil 
 liver, or one who lives openly in sin notorious, or one 
 who has done any wrong to his neighbour by word or 
 deed, or those between whom malice and hatred are per- 
 ceived to reign, or those who are common and notorious 
 depravers of the Book of Common Prayer, or those who 
 have spoken against her Majesty's sovereign authority in 
 causes ecclesiastical, or those who will not bend, or those 
 who refuse to be present at public prayers, or those who 
 are adulterers, incestuous, or drunken.^ But in one case 
 of refusal, it was held to be unlawful to refuse the com- 
 munion to a person as an evil liver, because he had published 
 extracts from the liturgy.* Another duty relates to the 
 burial of the dead, the law relating to which has been 
 already set forth in that division of the subject entitled 
 the " Security of the Person." ^ Another duty of the parish 
 priest was to administer the rite of baptism. An option 
 is given to the minister to perform it either publicly or 
 privately: and for the public service a font of stone is 
 rec[mred in every church.^ And no minister is at liberty 
 to refuse after due notice to administer this rite to all 
 parishioners without distinction of creed, otherwise he is 
 liable to be suspended by the bishop.'^ Another duty of 
 the parish clergyman also is to marry persons. As marriage 
 
 1 1 Ed. VL c. 1, § 8. 2 Parnell v EougTiton, L. E., 6 Priv. C. 
 46 ; Clifton v Eidsdale, 1 Prob. Div. 349. ^ Oan. 1603. 
 
 * Jenkins v Cook, 1 Prob. Div. 80. If any person administer the 
 sacrament who is not an ordained priest, according to the form in 
 the Book of Common Prayer, he incurs a penalty of 100?.- — 14 
 Ch. IL o. 4, § 10. 
 
 6 2 Pat. Com. (Pers.) 434. 6 Can. 1603, § 81. 
 
 ' Ibid. § 68. It was recognised early in the Church as the duty 
 of the priest to administer baptism to all who required it— Mgbright's 
 Exc. A.I). 740. 
 
472 SECURITY OF PUBLIC WORSHIP. [ch. vii. 
 
 in a parish church is one of the only valid ways of con- 
 tracting it, if the clergyman were capriciously to refuse, 
 parties may be prevented acquiring civil rights; yet it 
 does not follow, that a clergyman who refuses without 
 just excuse is liable to an action at the suit of either 
 party .1 And it has never been decided that either an 
 action or an indictment wUl lie against a clergyman for 
 refusing to marry two persons, though they have given due 
 notice.^ Moreover, those who feel aggrieved can always 
 resort to a marriage in a registrar's ofl&ce. 
 
 Uniformity in ceremonies of public worship. — for 
 many ages, and so long as the leading men of the Church 
 filled all the important offices of the State, it was natural 
 and inevitable, that one mode of worship should become 
 more or less settled ; for as yet there were no Puritans 
 or ^Nonconformists who had the courage to withstand 
 the legislature and think for themselves both as to the 
 authority of the laws of the Church and those of the 
 State. .All laws were once treated as of divine origin, 
 and therefore it was deemed impious to change or even 
 to murmur against them.^ And those laws relating to the 
 Church, as already stated, were deemed the most divine 
 of the divine.* The canon law may be said to have been 
 Common to all European countries during the middle 
 ages, but that share of it which had force in England was 
 confined mainly to such doctrines as had been developed in 
 our national and provincial synods, and not merely promul- 
 gated and adopted by the clergy, but absorbed into the 
 common law and enforced and acted on by the courts. 
 The canon law per se was of no account unless and 
 until that absorption took place, and much of our early 
 common law, such for example as related to tithes and 
 advowsons, and priests, extracted from that source came 
 to be treated as if it had been declared in solemn form 
 by the legislature. The statute of Henry VIII. did not in 
 strictness incorporate the existing canons and constitutions 
 
 1 Davis V Black, 1 Q. B. 900. 2 R. v James, 2 Den. C. C. 1 
 
 3 1 Pat. Cora. (Pars.) 108. 
 
 * It is said Ceorops first regulated public worship for the Athenians, 
 and fixed the ceremonies. — Fausan. b. viii. c. 2. Ldthbe observed, 
 that the ceremonies of worship were useful for the impression they 
 left on gross and uncultivated minds.— 2 &teph,. Med. Biog. 467. 
 
CH. VII.] UNIFORMITY OF WORSHIP. 473 
 
 until they should be revised — for that was an event 
 which never happened. That statute merely left the 
 canon law as it was before.^ And hence it is still law, 
 that no canons passed by convocation can be binding if 
 not ratified and incorporated by the legislature, which is 
 the only recognised medium through which new laws can 
 bind us. Up to the time of Henry VIII. and Charles II., 
 it might have been very uncertain how many parts and 
 maxims of the canon law had been then incorporated 
 and enforced by the common law ; but since their time 
 the statutes must be consulted as the only source of all 
 the new positive law which can bind both laity and clergy. 
 Mode of worship fixed hy statute. — At the Eeformation 
 it appears that the bishop of each diocese altered the liturgy 
 at pleasure, till Edward VI. caused the best forms to be 
 studied, and a systematic collection called the .First Prayer 
 Book to be compiled ; and then it was passed by Convo- 
 cation and by Parliament. Then a second Book of Common 
 Prayer and a second Act of Uniformity followed. Elizabeth's 
 Parliament passed a third Act of Uniformity, and again 
 that of James I. had also a like Act : and finally that of 
 Charles II. passed the Act of Uniformity now in force.''' 
 In modern times no further changes have been made, for the 
 difficulty of effecting them has been felt and acknowledged.^ 
 Yet it has been allowed, that though the canons which have 
 been passed could not bind the laity, they might bind the 
 clergy, a consequence which flows from the oath of ca,nonical 
 obedience.* Much that relates to the ceremonial and 
 ritual observances of public worship is especially vague 
 and indeterminate, and this arises from the circumstance 
 that the statutes and injunctions flowing therefrom soon 
 after the Eeformation, instead of methodising and clearly 
 expressing what was to be deemed legal or illegal thence- 
 forth, resorted to the expedient of assuming that everybody 
 knew what was the usual and current practice then deemed 
 correct. This mode of defining the law by reference to 
 the then current usage has had the consequence of in- 
 creasing the difficulties of posterity, for it has obliged the 
 
 1 25 Hen. VIII. c. 19. ^ U Ch. 11. c. 4. 3 151 Parl. Deb. (3), 
 482, 1664. 
 
 * Crofts V Middleton, 2 Atk. 650 ; 2 Str. 1056 ; Bp. Exeter v 
 Marshall, L. B., 3 H. L. 17, ante, p. 384. 
 
474 SECURITY OF PUBLIC WOESHIP. [ch. vti. 
 
 courts, after the lapse of three centuries, to search out the 
 law relating to ordinary matters, as antiquaries do by 
 collecting the loose allusions of contemporary writers on 
 miscellaneous topics, instead of seeking after expositions 
 of principles in systematic discussions by experts, and by 
 judges trained to speak and think correctly. 
 
 Sowrces of the law as to public worship. — Thus when 
 the Eeformation opened the eyes of men to the abuses 
 which attended many current rites and ceremonies, it was 
 all but inevitable that some minuteness should be observed 
 as the only effectual mode of correcting what was so con- 
 spicuously liable to be misused. The First and Second 
 Prayer Books of Edward VI., that of Elizabeth, and the 
 Act of Uniformity, all dealt with this subject.i The Act 
 of Uniformity, instead of carefully redefining and giving 
 an inventory of the minutiae of orderly observances, re- 
 sorted to the expedient of describing all things to be legal 
 which were in use by authority of Parliament in the second 
 year of Edward VI., and our modern disputes have all 
 involved a research into what was known and used in that 
 remote age. The chief sources of the law regulating the 
 liturgy of the Church of England are thus found in the 
 reigns of Edward VI., Elizabeth, and Charles II. In 1547, 
 the first year of Edward VI., his council issued certain in- 
 junctions which purported to be authorised by a statute of 
 Henry VIII.,^ though some have thought these issued by 
 virtue of the inherent right of supremacy attaching to the 
 crown; 5 and a committee of bishops and divines in 1549 
 prepared an order for the Communion, and finally the First 
 Prayer Book of Edward VI. was settled and ordered by 
 statute in 1549 to be alone used.* An addition, to this 
 Prayer Book was sanctioned by statute in 1550. Objections, 
 however, having been made to this Prayer Book as savour- 
 ing too much of Eomanish notions, a second Prayer Book 
 was ordered and completed about 1551, and sanctioned by 
 statute in 1552, to be used in lieu of the first book ;^ and 
 in the same year several other statutes were passed which 
 dealt with various ecclesiastical matters. The Act of 
 Uniformity of Elizabeth afterwards sanctioned a new 
 
 1 1 Eliz. c. 2, § 25. 2 31 Hen. VIII. c. 8. 3 -Westerton v 
 
 Liddell, Moore, Sp. E. ; 1 Ed. VI. o. 12, § 2 ; 1 Eliz. c. 2, § 27. 
 * 2 & 3 Ed. VI. c. 1. « 5 & 6 Ed. VI. c. 1. 
 
CH. VH.] DETAILS OP PUBLIC WOESHIP. 475 
 
 edition of the Prayer Book in 1559.^ In 1661 a Eoyal . 
 Commission having revised the Book of Common Prayer, 
 another statute of Charles II. sanctioned in the following 
 year the Prayef Book which is now in use.^ By this 
 statute all ministers were declared hound to use the copy 
 of the Common Prayer therehy referred to, afterwards 
 known as the Sealed Books, and of which many inaccurate 
 copies were put in circulation.^ This form of Common 
 Prayer continued in force till 1879, when a few alterations 
 were introduced by a modern statute.* 
 
 Details of pvblic worship, how settled. — The general 
 guide as to the conduct of public worship is now, therefore, 
 the Prayer Book of Charles II., which prescribes various 
 details.^ Little is left to the discretion of the minister, 
 whose individual tastes cannot be allowed to prevail ; in- 
 deed, he commits an ecclesiastical offence by deviating into 
 irregularities.^ The limited discretion allowed is confined 
 to things comparatively immaterial, the chief matter left 
 to him being whether there should be singing or choral 
 service, or none, and as to this it appears the minister may 
 elect, or at all events he may do so with the consent of 
 the bishop.'' An incumbent who resides on his benefice 
 
 1 1 Eliz. c. 2, § 3. But there is some doubt whether an authentic 
 copy of this edition can be identified. — Clay's Lit. of Eliz. {Park. 
 Soc.) 
 
 2 13 & 14 Ch. II. c. 4. 3 Stephens, B. of Com. Pr. * 34 & 
 35 Vic. c. 37 ; 35 & 36 Vic. c. 35. ^ Martin v Mackonochie, 
 L. E., 2 Priv. C. 365. « Newbery v Goodwin, 1 Phillim. 282. 
 
 7 Hutching v Denziloe, 1 Hagg. Cons. 170. An ecclesiastical 
 judge remarked on this part of the law: "The law directs, that a 
 clergyman is not to diminish in any respect or to add to the pre- 
 scribed form of worship ; nothing is left to the discretion or fancy 
 of the individual. If every minister were to alter, omit, or add, 
 according to his own taste, this uniformity would soon be destroyed, 
 and though the alteration might begin with httle things, yet it 
 would soon extend itself to more important changes in the esta- 
 blished worship of the Established Church. And even in the 
 Scriptures themselves the most important passages might be 
 materially altered under the notion of giving a more correct 
 version, or omitted altogether as unauthorised interpolations." — Sir 
 J. Nichol, Newbery v Goodwin, 1 PUll. 282. " The establish; 
 ment is a tax laid by the sovereign authority for payment of 
 those who teach and preach and practice a certain systerri of reli- 
 gious doctrines. For no legislature was ever so absurd as to tax its 
 people to support men for teaching and acting as they please, but 
 
476 SECURITY OF PUBLIC WORSHIP. [ch. vii. 
 
 and has a curate, is bound once- a month to read the 
 common prayer and service under a penalty of 51.^ And 
 if a minister of the Church of England refuse to use the 
 common prayer at the time appointed, or use any other 
 rite, or preach in derogation of it, he commits an indict- 
 able offence punishable with a certain imprisonment and 
 forfeiture of the profits of the benefice.^ 
 
 Prayers for the Emperor were a feature of all early 
 Christian services.^ The Scotch ministers, both of the 
 Established Church of Scotland, and of the body known as 
 the Episcopal Communion in Scotland, were by the Scotch 
 Toleration Act * made liable to a penalty of 201. if they 
 did not during divine service pray in express words for 
 Queen Anne and Princess Sophia while living, and " all 
 the royal family." ^ This penalty was repeated in 1792 as 
 regards the Episcopal Communion in Scotland, and extended 
 to " His Majesty and his heirs and successors ; " but the 
 Established Church of Scotland was thenceforth omitted.'' 
 
 Leading ceremonies, in public worship. — The varia- 
 tions made by the clergy in the ceremonies attending 
 public worship have given rise in recent years to much 
 
 by some prescribed rule. The articles of religion aad liturgy are 
 not without the marks and characters of human frailty." — Burhe, 
 Sp. Unif. And though every one can point out obvious errors and 
 defects in the liturgy, yet all seem to think that an attempt to 
 re-write it would only lead to further dissensions. — 158 Pari. 
 Deb. (3) 880. 
 
 Swift, in the Examiner, said the name of High Church and Low 
 Church began to be used soon after the Revolution. 
 
 1 14 Ch. II. c. 4, § 6 ; Newbery v Goodwin, 1 Phill. 282. 
 
 *! 2 & 3 Ed. VI. c. 1, § 2 ; 1 Eliz. c. 2, § 2. But the offence must 
 be prosecuted at the next assizes and not later. — Ibid. And this 
 may be punished alternatively, though not cumulatively, as an 
 ecclesiastical offence. Express power was given by statute in 1871 
 to vary the tables of lessons and psalter contained in the Prayer 
 Book. — 34 & 3!) Vic. c. 37. Express power was reserved to " lawful 
 authority " to change the names of the royal family in the prayers, 
 litanies, and collects relating to them. — 14 Ch. IT. c. 4, § 21. 
 
 3 Tertull. Apol. c. 30. * 10 Anne, c. 10 (1711). » 10 Anne, 
 c. 7, § 13. 
 
 ^ 32 Goo. III. c. 63, § 5. The Crown exercised the power by pro- 
 clamation to alter forms of prayer for special occasions without 
 consulting Convocation. Thus when Parliament ordered the day of 
 the Gunpowder Plot and the death of Charles I. to be observed, the 
 forms were settled by Royal Proclamation, though Convocation had 
 preferred other forms.— 151 Pari. Deb. (3) 482, 1664. 
 
OH. Yii.] CEREMONIES OP PUBLIC WOESHIP. 477 
 
 litigation ; and the first principles have often been dis- 
 cussed. The use of lighted candles on the communion- 
 table during the celebration of the holy communion has, 
 been deemed a ceremony rather than an ornament of the 
 holy table, and in either character is illegal, unless the 
 candles are required to give light.^ The legality of par- 
 ticular ceremonies depends mainly upon Elizabeth's Act of 
 Uniformity.^ That Act again uses as the standard of law- 
 ful ceremonies such as were recognised by the Common 
 Prayer Book, and no distinction is made between what is 
 important and what is trivial. The Act of Uniformity 
 ■requires certainty, and no omission from, and no addition 
 to, the rubric can be permitted.^ All ceremonies are 
 assumed to be abolished which were not expressly re- 
 tained.* Though there may be articles not expressly 
 mentioned in the rubric, the use of which would not be 
 restrained, they must be articles which are consistent with 
 and subsidiary to the services, as an organ for singing, a 
 credence table from which to take the sacramental bread 
 and wine, cushions, and hassocks.^ Hence, processions 
 round the sacred edifice during the performance of the 
 service are illegal, when so conducted as to constitute a 
 rite or ceremony in connection with the service.^ So is 
 the carrying of a cross or crucifix as part of a ceremony, 
 or placing it on the communion-table, or bowing to it.'' 
 So is kneeling, prostration, or genuflexion of the minister, 
 instead of standing during the prayer of consecration ; « 
 or making the sign of the cross at different times 
 during the communion service.^ So is sprinkling of ashes 
 and the use of holy water, or the burning of incense ; i" or 
 the elevation of the paten above the head, or otherwise, 
 
 1 Martin v Mackonoohie, L. R., 2 Priv.'C. 387. ^ 1 Eliz. c. 2, § 4. 
 
 *The doctrine as to the sign of the cross in baptism, and kneeling 
 at the communion, and some other ceremonies, was carried in the 
 Convocation of Elizabeth, 1562, by a single proxy. The majority of 
 those present were 43 (to 35) against those ceremonies, but on adding 
 up proxies there was a majority of 59 (to 58) for the ceremonies. — 
 1 Strype, Ann. 339; 3 Burnet, Bist. Ref. 662. 
 
 * Martin v Mackonochie, L. R., 2 Priv. C. 365. ^ Ibid. 
 
 6 Elphinstone v Purchas, L. R., 3 Eccl. 66, 95. '' Ibid. 
 
 8 Martin v Mackonochie, L. R., 2 Priv. C. 381. ^ Elphinstone v 
 Purchas, L. R., 3 Eccl. 66. " Ibid. 97, 108 ; Martin v Mackonoohie, 
 L. R., 2 Eocl. 212. 
 
478 SECURITY OF PUBLIC WORSHIP. [oh. vn. 
 
 during the prayer of co;asecration, except the mere act 
 of removal from the table.^ So is mixing the wine with 
 water either before or during the communion service ;^ 
 or the use of wafers instead of bread, such as is or- 
 dinarily eaten, though the bread may be made in a circular 
 form resembling wafers.^ So is the use of small bells 
 during the prayer of consecration ; * and the elevation of 
 the offertory alms, and placing them on the credence table.^ 
 The Book of Common Prayer is careful to define the 
 very covering of the communion table. The table must 
 have a covering, and though the colour and the material 
 are not important, yet there must be no fringes or em- 
 broidery." The table also must be not an altar of stone 
 and fixed, but made of wood and moveable.'^ 
 
 Position of minister during public worship. — The 
 position in the church of the priest during the celebration 
 of public worship has been difficult to define, owing to the 
 Book of Common Prayer having described it merely as " the 
 accustomed place," and so requiring much antiquarian re- 
 search by reference to several periods of time deenied 
 material. The chancel or choir seems to fulfil the descrip- 
 tion, unless where a reading-desk or pew has been selected, 
 that the people may best hear.^ The position of the 
 minister during the communion service is more or less 
 definitely fixed. He is to stand during the Lord's Prayer 
 on the north side of the table, looking south, and to 
 remain standing during the rest of the service to the end 
 of the creed.8 In breaking the bread and doing other 
 acts mentioned in the rubric, he must so do it as to be 
 seen by the people.^" The position of the minister during 
 the reading of the epistle, though not expressly defined by 
 the Prayer Book, is sufficiently defined by the ordinary legal 
 rule, that when a duty is ordered to be performed it must 
 
 1 Martin v Mackonocbie, L. R., 2 Eccl. 116 ; Flamank v Simpson, 
 ibid. 2 Blphinstone v Purchas, L. R., 3 Eccl. 66, 102. 
 
 3 Hebbert v Purcbas, L. R., 3 Priv. C. 656; Ridsdale v Clifton, 
 
 2 Prob. Div. 276. * Elphinstone v Purchas, L. R., 3 Eccl. 98. 
 5 Flamank D Simpson, L. R., 2 Eccl. 116. ^ Westerton vBesi], 
 
 Moore, Sp. Rep. 188. »■ Ibid. ; Sbeppard v Bennett, L R , 
 
 4 Priv. C. 371. « Wheatley, Com. Pr. 107. 9 Martin v 
 
 Maokonochie, L. R., 2 Priv. C. 381 ; Elphinstone v Purchas, L R. 
 
 3 Eccl. 110; Hebbert V Purchas, L. R., 3 Priv. C. 657 w Ibid • 
 Ridsdale v Clifton, 2 Prob. Div. 276. 
 
CH. VII.] VESTMENTS OP CLERGY. 479 
 
 be performed in a reasonable way; and that is by the 
 minister standing with his face to the people in a position 
 where he may most easily be heard.^ 
 
 Vestments of dergy. — The vestments to be worn by 
 the minister at various stages of the celebration of divine 
 worship have been also prescribed. St. Jerome said the 
 garb of the clergy should be neither gay nor slovenly, and 
 their tonsure was necessary to make them appear venerable 
 and grave. ^ It did not occur to the clergy to wear a 
 peculiar dress tUl about the end of the fifth century, and 
 in the sixth century councils began to notice the impor- 
 tance of this feature.^ The fourth council of Carthage 
 had forbidden long hair and the beard.* But the first 
 council of Mascon went the length of enacting, that if a 
 clerk wore garments or shoes unbecoming his profession, 
 he should be imprisoned and fed on bread and water for 
 thirty days.^ In this country it was early enjoined that 
 the dresses of priests ought to be aU of one colour.^ They 
 were to have their hair clipped and to wear decent clothes 
 and shoes,^ and the clothes to be of decent length.^ After 
 much litigation in modern times as to the subject of vest- 
 ments in the Church of England services, the points now 
 settled as to those vestments which are lawful during the 
 holy communion are the cope on high feast-days in 
 cathedrals and collegiate churches ; and the surplice in aU 
 other ministrations.^ Thus it is illegal to wear the alb 
 and chasuble during the communion service.^" 
 
 1 See ElpMnstone v Purchas, L. E., 3 Ecol. €6, 1111. In the early 
 centuries the preacher sat while delivering his sermon, and the 
 congregation stood. — 1 Chrysost. Horn. b. i. p. 662. At the same 
 period the custom for the people was to stand during prayer on the 
 Lord's Day, and to kneel on the other days. — Bing. Chr. Ant. 
 b. xiii. c. 8. ^ Hieron. b. xiii. 
 
 3 Concil. Matisc. a.d. 581 ; Trull, c. 27. * a.d. 398, Can. xliv. 
 
 <• Concil. Matisc. I. c. 5. The Great Council of Geneva in 1875 
 forbade clergymen to appear in public in theii- ecclesiastical dress.^ 
 2 GeffcJcen, Ch. & State, 478. 
 
 6 Anselm's Can. A.d. 1102. ? Eiohard's Can. a.d. 1175. 
 
 8- Otho's Leg. Const, a.d. 1237 ; Zoucher, Const, a.d. 1347. 
 
 9 Hebbert v Purchas, L. B., 3 Priv. C. 606, 649. The use of the 
 chasuble, alb, and tunicle by the celebrant during communion 
 service was discussed in this case. 
 
 10 Ridsdale v Clifton, 2 Prob. Div. 277. While in other services 
 than the communion the surplice alone is to be worn, yet in cathedrals 
 
480 SECURITY OF PUBLIC WORSHIP. [ch. vii. 
 
 The courts have found research needful to settle these 
 questions. The reference in Elizabeth's Act of Uni- 
 formity has been interpreted to mean not only the Pirst 
 Prayer Book of Edward VI., but impliedly to render 
 legal those vestments which the Second Prayer Book of 
 Edward VI. had rendered illegal. But Elizabeth in the 
 same year, and concurrently with her Act of Uniformity, 
 issued injunctions, and under a proviso in the Act she 
 appointed commissioners to inquire into and reform dis- 
 orders, and these commissioners made inventories of 
 church ornaments. The Queen also issued advertisements 
 in 1564, which were prepared under her authority, for due 
 order in divine worship, and these describe such vestments 
 as are legal. Again in 1604 the Eevised Prayer Book was 
 issued, containing the ornaments rubric of Elizabeth's 
 Prayer Book. And the Canons of 1603 enacted by both 
 Houses of Convocation and ratified by James I. recog- 
 nised this last Prayer Book. While the Act of Uniformity 
 of Charles II. refers to the Prayer Book of that date, and 
 which again refers to the ornaments used in the second 
 year of Edward VI., that is, to the First Prayer Book, this 
 last Act of Uniformity must also be read as consistent 
 with the Canons of 1603.i 
 
 Clergymen engaging in trade. — The Apostolic canons 
 forbade the clergy to engage in worldly business, or rather 
 in secular offices.^ And soon no clerk was allowed to 
 betake himself to secular pursuits under pain of anathema 
 and excommunication.^ These views seemed to prevail in 
 all countries. A statute of Henry VIII. " for the good 
 opinion of the laity towards spiritual persons," expressly 
 prohibited the latter from taking farms and leases of lands, 
 and declared such leases void ; and they were prohibited 
 from buying and selling again, for lucre, at markets and 
 fairs any manner of merchandise or cattle ; but there was 
 an exception of things bought for their private use or sold 
 as inconvenient and without fraud or covin.* An excep- 
 tion was made at a later date to buying and selling when 
 spiritual persons kept schools or engaged in such small 
 
 and collegiate churches the academical hood may be added. — Elphin- 
 stone M Purchas, L. R., 3 Ecc. 94. 
 
 1 Hebbert v Purchas, L. R., 3 Priv. C. 649. ^ Can. Apoat. c. 81. 
 
 3 Cone. Chalced. c. 8 ; Cone. Turon. c. 5. ■" 21 Hen. VIII. c. 13. 
 
.;h. VII.] CLERGY ENTERING PARLIAMENT. 481 
 
 fanning business as was incident to the glebe.^ And the 
 statute last mentioned prevented them ever taking shares 
 in a 'bank.2 In 1838 these statutes were repealed, and 
 enactments somewhat less stringent were rewritten. This 
 statute expressly prohibited spiritual persons who held 
 preferment from farming more than eighty acres of land 
 without the bishop's written consent, and a penalty is 
 incurred for doing this without a licence.^ And for a like 
 reason they are prohibited from engaging in trade except 
 when there is a partnership of more than six persons, or 
 the trading has come by legacy, succession, or marriage. 
 There are, however, various exceptions, auch as the occu- 
 pation of a schoolmaster, or an author, or a director or 
 shareholder in a benefit er insurance society, or the occu- 
 pation of farming his glebe.* If the spiritual person 
 contrary to these enactments shall trade, he may be sus- 
 pended for a first offence, and deprived on a third offence, 
 but nevertheless his contracts may be enforced against 
 him.^ And no contract of a company shall be void by 
 reason of a spiritual person being one of the partners.® 
 
 Clergymen entering Parliament. — One of the diffi- 
 culties of applying the general notions so long current 
 about clergymen engaging in secular business was that 
 which arose in reference to their aspiring to be members of 
 the House of Commons. It was once doubted whether a 
 clergyman as such was ineligible to be elected a member 
 of Parliament, no better reason being suggested by Coke 
 and Blackstone than that he sat in convocation and so had 
 already got all he could wish for. And one Election Com- 
 mittee had in 1785 admitted a clerk in orders to be duly 
 elected after a long debate involving much of the learning 
 that could be brought to bear.^ But after Home Tooke's 
 election a statute was passed in 1801 to put an end to 
 further doubt. It was then enacted and is still law, that 
 no one ordaiaed as a priest or deacon in the Church of 
 England, or being a minister of the Church of Scotland, 
 should be capable of being elected a member of the House 
 of Commons, and any such election should be void.^ And 
 
 1 57 Geo. III. c. 99, § 4. ^ Hall « Franklin, 3 M. & W. 259. 
 
 3 1 & 2 Vic. c. 106, § 28. " Ibid. §§ 29, 30. « Ibid. § 31. 
 
 » 4 & 5 Vic. c. 14. '' Newport Case, 2 Luder's Elect. Cas. 2'69 ; 
 
 40 Com. J. 561. s 41 Qeo. III. c, 63. • > 
 
 I I 
 
482 SECUEITY OF PUBLIC WORSHIP. Icn. vii. 
 
 if ■while being a member he should take orders, then his 
 seat should be vacant. And if one while so disqualified 
 shall sit or vote in the House he forfeits 500?. for every 
 day he so acts. And he moreover is incapable thereafter 
 of holdifig any benefice or office of profit under the Crown.^ 
 This enactment, however, has nothing to restrain the dis- 
 senting clergy in any respect. A kindred enactment in 
 1 836 related to municipal offices in England. No person 
 in holy orders, and moreover no regular minister of a 
 dissenting congregation, can be a councillor or alderman of 
 any municipal borough in England or Wales.^ It is how- 
 ever now- enacted, that a clei^man of the Church of 
 England may, by a deed of relinquishment, divest himself 
 of the clerical character, and thus he may avoid the 
 penalties of these Acts, which disable him from entering 
 Parliament or becoming an alderman ; for he can then do 
 as he pleases.^ 
 
 CeUbacy of the clergy. — One law affecting the daUy 
 life of the clergy once gave immense difficulty to synods 
 and courts, and reflects little credit on the insight into 
 human nature which the rulers of the Church displayed for 
 centuries. In all ages the sacred calling of priests has 
 suggested some antagonism between its earnest pursuit 
 and the ordinary relations of the married state, and this 
 was felt before the Christian era by various communities. 
 The Jews,* the Brahmins,^ the Buddhists,® the Egyptians,'^ 
 the Greeks and Eomans, more or less enforced the celibacy 
 of their priests. Yet in some ancient Greek cities the 
 office of high priest was hereditary in a particular gens.* 
 The Assyrians, Babylonians, Persians, Mexicans, Aztecs, 
 Incas of Peru, and the Ashantees, had a hereditary priest- 
 hood maintained for the most part by the people.® The 
 doctrine of celibacy was a refinement which grew up in 
 early mediaeval times, for the earliest Christians had no 
 such tendencies. The apostolical canons deposed a clerk 
 who avowed such sentiments as one who had a seared 
 
 1 Ibid. The action must be within twelve months. ' ' 5 & 6 
 
 Will. IV. c. 76, § 28. ' 33 & 34 Vic. c. 91, § 4. * Math. xix. 
 12 ; Epiph. Pan. Haeres, 13, 14, 16 ; Philast. Haer. P. I. No. 8. 
 
 5 inst. Menu, b. vi. et. 1-32. « Hardy's East. Mon. p. 8. 
 
 ^ Diod. Sic. b. i. c. 80. « i Qrote's Gr. 194. 9 1 QefEcken, 
 
 Ch. & State, 20 ; Bowditch's Ashant. 264. 
 
CH. VII.] CELIBACY OF CLERGY; 483 
 
 conscience.! And for a like reason, if a clergyman ab- 
 stained from flesh, he was held bound to eat occasionally 
 herbs boiled with flesh, otherwise he was liable to be de- 
 graded. The object of this' was, however, rather to avoid 
 the suspicion of the Priscillian heresy.^ The kindred 
 question of digamy even in the laity was also deemed so 
 serious, that it was a good ground for refusing communion, 
 at least for a time, though the reason was left rather 
 vague.* A law of Justinian made it a qualification for the 
 episcopate, that the candidate should have neithet wife nor 
 children to distract his thoughts, and possibly divert the 
 wealth of the Church.* It has been noticed how St. 
 Augustine preached on the paramount claims of chastity, 
 and the monastic spirit grew and spread aniongst the laity. 
 As patrons sprung up eager to build and found churches, it 
 was seen to be a hateful and unseemly prospect, that the 
 clergy once in possession should come to look on their 
 sacred employment as a mere chattel interest descendible 
 to their children as a portion and assignable for money. 
 
 The first canon prescribing and enforcing sacerdotal 
 celibacy is said to have been promulgated under Pope 
 Siricius in 385.^ Another canon sixteen years later 
 ordered priests already married to be separated from their 
 wives. And a law of Honorius in 420 also prohibited 
 priests from indulging in concubinage. From the fifth to 
 the seventh century disobedient priests on this score exer- 
 cised the vigilance of successive councils. Yet in the 
 seventh century the clergy had their wives as they have 
 now.® The Popes of the eleventh century rigorously 
 
 » Can. Apost. 50, 52. ^ Concil. Brarar. I. c. 32. = Bing. 
 
 Chr. Ant. b. xv. c. 4. * Const. 42, § 1 ; Cod. 1, 3. » Lea's 
 
 Celib. 67. 
 
 6 Theod. Can. a.d. 673 ; 1 Wilk. 41. Monks and nuns were at 
 last prohibited from marrying. — Concil. Chaiced. c. 4, 7, 16. Per- 
 haps Spain led the way in discovering the so-called incompatibility 
 between the honest service of priests at the altar and their marriage 
 in the household. At Elvira, in 305, it was declared by a council 
 that no priest shall serve till h« had first put away his wife. In 
 Castile, the code went so far as to deprive the married priest of his 
 benefice, and to declare that the wife shall be sold as a Slave. — 
 Siete Part. p. i. tit. 6. The Neapolitan Code, while ignoring the 
 validity of a priest's marriage, yet gave a status of quasi legitimacy 
 to his children, so as to allow them to share in the parent's property. 
 — Lea on Celibacy, 346. . . - 
 
 I I 2 
 
484 SECURITY OP PUBLIC WORSHIP. [ch. vii. 
 
 sentenced married priests to deposition and their wives to 
 slavery. But at the same time the vicious compromise 
 originated, in accordance with a canon of the Synod of 
 ILillehone,. whereby on paying a fine called cullagium, the 
 clergy should be left to their own devices in ,this respect.^ 
 This state of things, subject to incessant denunciations on 
 the one hand and apologies on the other hand, continued 
 till the sixteenth century.^ Hence also arose the irregular 
 marriages of priests, with their attendant scandals.^ 
 
 The Reformation opened the eyes of mankind to all 
 these absurdities. Erasmus declared, that since all other 
 measures had proved fruitless to extinguish these evils, 
 the only mode of securing a virtuous clergy was to remove 
 the prohibition of marriage; and in 1560 the Emperor 
 Ferdinand had the courage to undertake to argue the 
 matter with the Pbpe.* But the leaders of the clergy 
 were deaf to. remonstrance ; and the Council of Trent, after 
 solemn debate in 1563-, agreed, that any man who advo- 
 cated such a doctrine as the marriage of priests was to be 
 subjected to anathema.^ 
 
 Celikacy of dergyi in EnffLand. — The British and 
 Irish Church shared in the general tendencies of the time, 
 though some have tried to establish, that the early Saxon 
 Church was wiser than to lean to celibacy so much.^ It 
 has even been said, that in no country did the rules of 
 celibacy meet witb so little attention as in England.^ In 
 769 Archbishop Egbert of York recognised the wholesome 
 canon against priestly marriages.^ Dunstan, a hundred 
 years later, tried to deprive priests who were unchaste, — a 
 punishment which they resisted.® St. Elfric, Archbishop 
 of Canterbury, still later, was also zealous in the same 
 cause ; ^^ but the supposed evil grew, and in the time of 
 
 1 "As the clergy were prohibited by the laws of celibacy from be- 
 coming a caste, they became a' corporation." — Quiz. Civ. Eur. 
 
 ^- Lea, Celib. 271. 
 
 '" The most noted of these irregular marriages was that of Abelard 
 and H61oise. 
 
 * Sir William Scott said that " it was one of the best effects of 
 the Reformation, that, by introducing the clergy to the charities of 
 domestic life, they had obtained a practical knowledge of its duties." 
 —36 Pari. Hist. 474. 
 
 5 Concil. Trid., Sess. 24, Matr. 6 2 Thorpe, Ano. L. 472. 
 
 . ^ 2 Hallam, Mid. Ag. c. 7. « Lea's Celib. 167. 9 i Spelman, 479. 
 
 w A.D. 1006 ; 2 Thorpe, Anc. L. 345. 
 
ni. vii.] " CELIBACY OF CLERGY. 4fi5 
 
 Edward the Confessor great laxity ' ia practice was ob- 
 served.i To go no further back' than the Council of 
 Winchester in 1076, it was then declared generally, that' 
 priests had no business with wives, and none were to be: 
 admitted to orders unless they took a pledge not to marry.* 
 And in 1107 the Council of London enjoined, that a 
 married priest who performed mass wasto be deprived,' 
 and his children forbidden to inherit the father's benefice.^ 
 At length, in 1129, the king summoned a great assembly 
 of bishops and priests to consider the immorality of the 
 times ; and it was ordered that, if ^priests thefi serving in 
 cures did not put away their wives, they must be qjected. 
 Yet ail this ended in the fine alread,y mentioned, called 
 cullagium, being accepted, for dispensing with these vir- 
 tuous, self-denying ordinances.* In another century and 
 a half, priests had ceased to marry, but cland.esti?ne con- 
 cubinage became too prevalent.* In 1485 a statute of 
 Henry VII. specially ordered religious men convicted of 
 incontinence to be imprisoned;^ Wolsey tried im vain to • 
 enforce th« punishment of prieets for concubinage, which' 
 induced him to obtain a bull for the confiscation of ^ 
 monasteri'Cs, and endowing with these spoils his colleges, 
 of Christchuich and Ipswich.^ A general vi-eitation of 
 monasteries soon followed under the authority of Henry 
 VIII., and Parliament passed Acts suppressing some hun- 
 dreds of houses said to be possessed of great revenues.^ 
 But though monachism was rudely torn up by the roots, 
 the celibacy of the clergy was left alone, as being still 
 unquestionable. In 1539 a statute of Henry VIII. made 
 it a penal offence for priests to marry, or even to teach the 
 doctrine, that it was lawful for them to marry. To preach 
 against this statute was to incur a sentence of death with- 
 out benefit of clergy, and even to hold Opinions contrary 
 was forfeiture of land and goods. And priests who per-' 
 
 ' / 
 
 1 Lives, Ed. Conf. 432. " 1 Wilkins, 367. ^ n,id. 382. ' 
 , * Angl.-Sax. Chr. temp. 1129. * 3 Wilkins, 24D. In Ireland 
 
 the same evils were conspicuous. — 2 Wilkins, 602. " 1 Hen. VII. 
 c. 4. 73 Wilkins, 669, 678, 704. 
 
 8 The total number of monasteries suppressed by Henry VIII.* 
 was 645 ; colleges 9.0 ; charities and free chapels 2,374 ; hospitals) 
 IIQ. The rest were swept away by Edward VI.— 37 Hen. VlII. 
 c. 4 ; 1 Ed. VI. c. 14 ; Lea's Celib. 470. - "' 
 
486 SECURITY OF PUBLIC WORSHIP. [ch. vii. 
 
 sisted in having wives were liable to be executed as felons.^ 
 The accession of Edward VI. led to an Act abrogating all 
 these exta:avagant canons and laws.^ But Mary's Parlia- 
 ment in turn restored them, and deprived thousands of 
 unfortunate priests who had meanwhile acted on the tem- 
 porary leave allowed.* Elizabeth refused to go the length 
 of Edward VI., and, while declining to declare such 
 marriages legal, declined also, to enforce the prohibition 
 which, was kept standing.* Her Injunctions to the 
 clergy in 1559, while admitting that priests might marry, 
 yet seemed to regard the sanction of the bishop and two 
 justices as necessary to give becoming decorum to so 
 •perilous a step.^ Her prejudice, it is said, against married 
 priests long survived, though in the 39 Articles it was 
 found expedient to declare, that priests had liberty of 
 marriage like their neighbours. And no traces of any 
 restriction have ever since been revived. 
 
 Some recreations of the clergy restrained. — An early 
 council of the Church laid it down that it was foreign 
 to the business of bishops and presbyters to keep dogs 
 and hawks for hunting; and a violation of this rule was 
 ground of suspension for three months.'' Yet this prohibi- 
 tion against hunting seemed not observed by the bishops. 
 Lord Coke points out, that the canon law pro^hibited spiritual 
 persons to hunt, yet that the common law allowed them 
 "to use the recreation of hunting to make them fitter for 
 the performance of their duty and office." ^ And he said, 
 ia the time of Edward I. at the bishop's death his kennel 
 of hounds had to be given up to the king, in order that the 
 king might give his licence to the bishop's will taking 
 effect.^ It was no doubt found to be impossible to enforce 
 each or any of these matters literally, and no statute now 
 interferes with the judgment of individuals. The canons 
 of 1603 do not allude to hunting, but repeat the caution 
 "which had long been given by councils of the Church, and 
 
 1 31 Hen. VIII. c. 14 ; 1 Pari. Hist. 540. « 1 Ed. VI. c. 12, 
 
 § 2 ; 2 & 3 Ed. VI. c. 21. 3 1 Mary, st. 2, c. 2.. 12,000 priests 
 
 were deprived at this time. — Lea, Gelib. 495. 
 
 * 2 Burnet App. 332. The archbishop of the day complained to 
 Queen Elizabeth, that the House of Commons gave liberty to marry 
 contrary to the canons. — Strype's Whitgift, 206. 
 
 5 4 Wilk. 186; 1 Neal's Pur. 128. « Concil, Agath. c. 55. 
 
 7 4 Inst. 309. « Ibid. 338. 
 
CH. Yii.] ' TAXES ON CLERGr. 487 
 
 was enforced by the Justinian code, against playing at dice, 
 cards or tables.^ 
 
 Privileges and exemptions ofdergy from taxes and 
 duties. — In Eome very early a law was made exempting 
 priests from military duty.^ Coke says, the chapter of 
 Magna Charta, that the Church of England shall be free, 
 and shall have her whole rights and liberties inviolable, 
 laeemt, that ecclesiastical persons and their possessions 
 should be freed from all unjust exactions and oppressions. 
 And he added, that " ecclesiastical persons had more and 
 greater liberties than other of the king's subjects, wherein 
 to set down all would take up a whole volume of itself." ^ 
 He afterwards mentions, that by the custom of England 
 the clergy ought not in person to serve in war, and ought 
 to be quit of tolls and customs, avirage, pontage, paviage, 
 and the like: and that in times past they, seeking to 
 extend their liberties beyond their true bounds, either lost 
 or enjoyed not that which of right belonged to them* 
 And when it was a serious thing to be knighted, they were 
 exempted by a statute of Edward I. from that doubtful 
 honour.* The success with which the clergy escaped 
 capital punishment by the expedient of benefit of clergy 
 has been already described.* The peculiar duties of the 
 clergy and their urgent nature led to an early maxim of 
 the common law in aid of the canon law, that they should 
 be exempt from compulsory temporal offices incoinpatible 
 with making their spiritual duties paramount ; and a writ 
 of privilege for the clergyman's discharge was granted in 
 
 1 Can. 1603, § 75. Some ancient canons also forbade bishops 
 to read heathen authors. — Cone. Carth. IV. c. 16. i \ U i 
 
 2 Plut. Camill. ^ 2 Inst. 3. « Ibid. 4. . .^ 1 Ed. II. de 
 milit. ; 1 Pat. Com. (Pers.)428. ', ; 
 
 6 2 Pat. Com. (Pers.) 299. Bishops were in the time of Justinian 
 exempted, from taking oaths as witnesses. — Nov. 123, c. 7. And 
 priests were exempted from torture when witnesses — a substantial 
 boon. — Code, 9, 41, De quest. They were also exempted from some 
 of the taxes, when these were in the shape of head-money. They 
 were prohibited from meddling with law, it being matter of reproach 
 that they should show themselves skilled in the decision of law-suits. 
 — Just. Code, 1, 3, 41. The church lands had immunity from taxes 
 in the early centuries, and lay proprietors often turned this rule to 
 their own advantage by granting estates to the church, which they 
 received again by way of fief or lease exempted from public burdens. 
 — kallam Mid. Ag. c. 7. 
 
488 SECURITY OF PUBLIC WORSHIP. [ch. \u. 
 
 inany cases.^ In, course of time the clergy were less and less 
 exempted from ordinary taxation, and Hale, 0. J., said, that 
 upon debate before all the judges the clergy were held liable 
 to all public charges imposed by Act of Parliament.^ The 
 clergy, under the description of parsons and vicars, were 
 expressly made liable in respect of their tithe and parson- 
 age and vicarage and glebe to the poor-rate.^ It is true 
 when the parsoa lets the tithes to a tithe farmer, the latter,- 
 as being the occupier, then becomes exclusively rateable to 
 that extent.* And by express statute of recent date, all 
 churches and chapels are exempt, being used exclusively 
 for public religious worship.^ Eectors, however, are also 
 liable for rates founded on the poor-rate, for they are 
 included in the word inhabitant,* and in the word 
 parishioner.' But the clergy are expressly exempt from 
 acting as overseers of the poor® and as jurors.® 
 
 The clergy are also expressly exempted from paying 
 turnpike tolls in certain circumstances, that is to say, in 
 going to or returning from visiting any sick parishioner, or 
 on other parochial duty within their parish. i* It has been 
 decided under this enactment, that the clergyman who, as 
 curate, does the duty of the incumbent, is also exempt ; ^^ 
 and that the exemption applies though the clergyman's 
 family are with him in the carriage.'^ But a clergyman 
 not licensed by the bishop as a curate, though doing the 
 duty, has no exemption.^^ 
 
 One peculiarity in the law of evidence was long connected 
 with a duty or function of the clergy, namely, the duty 
 to receive confession. As there is nothing expressly en- 
 joined in the canons, articles, or statutes relating to the 
 Church of England which makes confession, either special 
 or general, a duty or practice, either on. the part of a lay 
 member to make, or compulsory on the priest to receive, 
 it follows that when such a confession is made to a 
 
 ' 1 Inst. 96 ; 2 Inst. 3. But it seems that if the sovereign ap- 
 pointed a clerk to a temporal office, this made the latter his para- 
 mount duty.— ^r-ftc. Cleri, 9 ; 2 Ed. II. St. 1, c. 8 ; 2 Inst. 624. 
 
 2 Webb V Bachelor, Vent. 273; 3 Keb. 255, 476. 3 43 eHz. 
 
 0. 2, § 1. * R. ■!) Lambeth, 1 Str. 625. » 3 &.4 Will. IV. c. 30, 
 § 1. 6 2 Inst. 704. ^ 1 Hawk. P. C. 204. » 1 Bott, 9. 
 
 9 33 & 34 Vic. c. 77. " 9 Geo. IV. c. 126, § 32. " Temple 
 V Dickenson, 1 B. & E. 34. 12 Layard v Ovey, L. E., 3 Q. B. 
 
 415. 13 Brunskill v Watson, L. E , 3 Q. B. 4I8.. 
 
CH. VII.] DISTURBING CONGBEGATIONS. 489 
 
 priest, it being in no sense a public duty, the priest is not 
 exempted or piivileged from giving such confession in 
 evidence, should the interests of justice require it.'^ And- 
 the same rule is acted on in reference to confessions 
 made to Eoman Catholic priests. Whatever may have 
 been deemed the law before the Reformation can be of no 
 authority now, seeing that the powers and duties of priests 
 were greatly curtailed, and in some instances abolished 
 from that time, expressly or impliedly. 
 
 Offence of disturbing divine service. — ITor was it to 
 be wondered, that the canons should specially mark out 
 for censure those who behaved rudely and were disorderly in 
 church, and by noise hindered the minister or preacher.^ 
 The jurisdiction of the Ecclesiastical Courts in the matter 
 of defamation and brawling had become so oppressive and 
 vexatious, that it was wholly abolished in very recent 
 times ; and so much of the law as protected the clergy, 
 whether of the Church of England or as Nonconformists, 
 from interruption in their sacred functions was treated as a 
 general common law offence, and punished with fine and im- 
 prisonment in a summary manner by justices of the peace.^ 
 A statute of Eichard II. prohibited priests being arrested 
 during divine service.* In 1812 it was made a penaL 
 offence for any congregation of persons for religious worship 
 (whether dissenters or not) to have the door of the church 
 or chapel locked during divine service.^ And at the same 
 time it was made still more penal to disturb the congrega- 
 tion or the person officiating.® To arrest, or molest, or dis- 
 tract a clergyman or other minister during divine service 
 is now a misdemeanour.' And to make a riotous, violent, 
 or indecent disturbance in amy place of religious worship 
 is punishable by fine or by a short imprisonment.* 
 
 Resignation of office of priest. — Another singular doc- 
 trine embodied in the canons was, that whoever once 
 became a deacon or minister of the Church of England 
 oduld not thereafter divest himself of that character, so 
 
 1 E. V Gilham, 1 Mood. 186, 452. See also 6 Cox, C. C. 219 f 
 2 F. & F. 4. 2 Can. 1603, No. 111. 3 ig & 19 yic. c. 41 ; 
 
 23 & 24 Vic. c. 32. * 1 Rich. II. 0. 15. 5 52 Geo. III. o. 155, 
 § 11. 6 Ibid. § 12. 7 24 & 25 Vic. c. 100, § 36. s 23 & 24 
 Vic. c. 32, § 2. 
 
490 SECUEITY OF PUBLIC WORSHIP. [ch. vir. 
 
 that the maxim prevailed — once a priest always a priest.^ 
 Lord Eldon said that the cauon law as to the indelibility 
 of holy orders had been part of the common law, and was 
 so treated by Hale, Holt, and Hardwicke.^ Hence when 
 a priest became a dissenter and preached in a dissenting 
 chapel, it was found that he could be punished for the 
 breach of discipline.^ It was not till the year 1870 that 
 an Act of Parliament passed to relax this rule and permit 
 these persons, like the rest of their fellow-citizens, to follow 
 any occupation they pleased, and to change it as often as 
 they thought lit.* In order, however, to divest himself, he 
 must execute a formal deed ©f relinquishment, and give 
 notice \o the bishop and archbishop six months before he 
 can be free.^ If the clergyman do not wish wholly to relin- 
 quish the clerical character and become a layman, he may 
 merely resign his incumbency on terms» When an in- 
 cumbent is incapacitated by permanent mental or bodily 
 illness, a mode now provided by the statute for his resign- 
 ing is pointed out, and a pension, not exceeding one-third 
 of the value, js allowed to him, which is made a charge on 
 the benefice. The merits of the case are investigated by 
 five commissioners appointed by the bishop after notice to 
 all interested parties.^ It is true that after resignation the 
 clerk may, nevertheless, be prosecuted for any offence 
 which would have involved suspension or forfeiture.'^ 
 The patron may, after such resignation, present a successor 
 as if the resigning incumbent had died.^ And the benefice 
 is never to be charged with more than one pension at a 
 time, and the pension is not assignable.® 
 
 ^ Gan. 1603, § 76. Luther saidj that the doctrine of indelibility 
 of holy orders was altogether indefensible. He said the priest was 
 an office-holder and nothing more. — 1 Geffeheris Ch. & State, 296. 
 The Bishop of Rochester in 1766 wished to resign, but was told 
 he could not do so, as the peerage was inalienable. — 3 Walpole 
 Lett 307. 
 
 2 35 Pari. Hist. 1545. ^ Barnes v Shore, 8 Q. B. 640. 
 
 * 33 & 34 Vic. o. 91. » Ibid. 6 34 & 35 Vic. c. 44. 7 Ibid 
 § 13. 8 iijid, g 12. 9 Ibid. §§ 9, 10. 
 
CH. VIII.] ECCLESIASTICAL COURTS. 491 
 
 CHAPTEE VIII. 
 
 OFFENCES AND PTiNISHMENTS OF THE CLERGY. 
 
 Jurisdiction of Ecclesiastical Cmorts gevierally. — The 
 remedies against clergymen are divided into those of a civO. 
 and of a criminal nature ; fcut there has been a difficulty 
 in a few instances in determining to whieh class a particular 
 proceeding beloHgs. Thus it has been decided that civil 
 suits include a proceeding to recover penalties for non- 
 residence:' for preaching without a licence;^ for com- 
 pelling removal of unlawful ornaments :^ to pay over to the 
 churchwardens the offertory moneys.* DUae ^steffaicteristic 
 of a civil suit is, that, none -fait a parishioner is allowed to 
 be the plaintiff, for some interest in the subject-matter is 
 essential.^ 
 
 When the Ecclesiastical Courts first took shape, all 
 courts, ancient and mediaeval, had been acting on the 
 notion, that law and courts must exist for the purpose of 
 enforcing all the virtues ; and it was easy to excuse the 
 ecclesiastics from gliding by an easy transition into the 
 kindled notion, that Ecclesiastical Law and Ecclesiastical 
 Courts must exist for the sole purpose of enforcing the 
 Christian virtues, of which they were the chief expounders. 
 Hence they set vigorously to work at this as a labour of 
 love, and it was natural that in course of time they would 
 begin to see, that everything of human concernment resolved 
 itself more or less into an aflair of Christian conduct. Hence 
 the Church interfered, and exercised its jurisdiction in a 
 great variety of matters of worldly business for the health 
 
 "- Bluck V Eackham, 5 Moore, P. C. 305. ^ j). Portland v Bingham^ 
 1 Hagg. Cons. 157. ^ ^ee v Fagg, L. K. 6 Priv. C. 38; 
 
 ■" Liddell v Rainsford, 38 L. J. EccL 15-. * Turner v Meyers^ 
 
 1 Hagg. Cons. 415. 
 
492 . SECURITY OF PUBLIC WORSHIP. Ich. viii. 
 
 of the soul, as it was then called.^ It was natural that early 
 in the' Christian era a notion should spring up, which is to 
 this day not wholly extinct, that all differences between 
 man aod man should be referred to the arbitration of a 
 Christian man, particularly one of the clergy: and they 
 were soon resorted to as referees. A law of Areadius and 
 Honorius declared it to be a good thing to refer civil suits 
 to the arbitration of bishops ; and ten years later the civil 
 courts were directed to execute these friendly sentences.^ 
 
 In England, in the time of Athelstan, the bishopo were 
 ordered by the Synod of G-reatley to sit with the judges in 
 secular courts to prevent the germs of iniquities from 
 
 1 '■' The jurisdiction, pro salute animw, had been the cause of very 
 great expense and very little benefit." — L. Cottenham, L. C, 31 Part 
 Deb. (3) 326. Loed Haedwicke, L. C, said : "The comtnon argu- 
 ment that the spiritual courts proceed only pro salute animce of the 
 offender, but the temporal courts punish him either in body or 
 purse, is a distinction without a real difference, for all punishment 
 is intended for the reforpiation of the offender and an example to 
 others. And this is the end both of the ecclesiastical censure and 
 the temporal penalty, when they are both inflicted immediately and 
 directly for the same thing." — Middleton v Croft, 2 Atk. 673. 
 
 2 Const. 7, 8 ; Cod. I. 4. St. Augustin, who used to preach that all 
 litigation was a sin except conducted before ecclesiastics, had crowds 
 of suitors at his door. — Aug. Serm. 351. St. Patrick indeed expelled 
 from the church all who would or could not see this cardinal prin- 
 ciple of conduct. — St. Patr. Synod. I., a.d. 456, Can. 21. The clergy 
 by degrees found, that this practice somehow led to gifts and un- 
 expected benefits coming into their possession, and rather interfered 
 with their proper business — Soar. Hist. Eccl. b. vii. c. 36. The 
 Emperors thought it better to restrict the subject-matter of eccle- 
 siastical jurisdiction to religious things ; and they were not to be 
 drawn into the civil courts if possible. — (Jed. Theod. b. xvi. tit. 11, 12. 
 It was indeed conceded that in civil controversies with laymen 
 the latter were entitled to resort to the civil courts. — Valetit. Nov. xii. 
 As regards the lesser crimes, they were taught that their own courts 
 had ample power. — Binff. Ghr. Ant, b. v. c. 2. Yet the bishops kept up 
 a practice of redressing wrongs on appeal from the civil tribunals. 
 ' — Nov. 86, 0. 1, 2, 4. Under the supposed inspiration of the false 
 decretals, the clergy revived their claims^ and" encouraged wealthy 
 suitors always to look to Rome as an ultimate appeal and the original 
 fountain head of all human justice. And even kings were thought 
 liable to be deposed by the ecclesiastioal supreme law. — Capit. Car, 
 Mag. tit. 30, c. 5 ; Specul. Suec. Introit. §§ 22-34. In the earlier 
 centuries the notions of jurisdiction were vague, and both sides were 
 irresolute. In Prance in the sixth century, Clotaire authorised bishops 
 to reprove civil judges for unjust sentences. — Gonst. Clot. a.d. 560, 
 § 6. A little later this was thought to be going beyond the line of 
 
.H. VIII.] ECCLESIASTICAL COURTS. 493 
 
 budding.'- And Coke says, " the ancient law of England 
 was, that the bishop with, the sheriff did go in circuit twice 
 every year, by every hundred within the county, which 
 also appeareth by Magna Charta."^ But William the 
 Conqueror's charter forbade any spiritual cause to be 
 . tried in the secular court, and commanded the suitors to 
 appear before the bishop only, who was directed to conform 
 to the canon law. And though Henry I. restored the 
 older law, the ecclesiastics in Stephen's reign again pro- 
 cured the bishops' jurisdiction to be kept distinct.* Henry 
 II. saw the growing mischief of the Ecclesiastical Courts 
 arrogating universal jurisdiction, and tried in the Constitu- 
 tions of Clarendon to cheek it by giving to his common 
 law judges the cognisance of contracts, advowsons, and 
 offences committed by clerks. The Pope, it is true, pro- 
 fessed to annul most of the Constitutions of Clarendon, 
 but the clergy began to be, displaced in the courts by 
 common law lawyers, and writs of prohibition to the 
 spiritual courts soon became common.'* 
 
 The lowest court of ecclesiastical jurisdiction was the 
 archdeacon's, and from thence an appeal lay to the consis- 
 tory court of each diocesan bishop, and from thence to the 
 archbishop, or Court of Arches. The Statutes of Henry 
 VIII. up to very recent times regulated the course of these 
 appeals. In 1534 the statute of that king recited, that the 
 jurisdiction of the Crown, spiritual and temporal, had always 
 sufficed as settled by previous Acts and ordinances, without 
 the intermeddling of any exterior person, and that all the 
 king's subjects shall use their appeals, first from the archdea- 
 con or his official, if the matter be there begun, to the bishop 
 diocesan of the said see. And if the cause be commenced 
 before the bishop diocesan, or his commissary, then from 
 them %o the archbishop and there to be definitively settled 
 and ordered. Suits commenced before the archbishop were to 
 be without any other appeal. And in all matters touching the 
 king, his heirs, or successors, then the appeal shall be from 
 any of the above courts to the Upper House of Convocation 
 
 a^ty. — Greg. Turon. Hist. h. viii. c. 39. The Welsh code positively 
 forbade ecclesiastics from acting as judges. — Dimet. Code b. ii. c. 8, 
 §8 128, 132. 
 
 ' 1 A.D. 928, 1 Pusey Suprem. 107. ^ 2 Inst. .70. ^ 3 Bl. Com. 64. 
 ■ * 1 Hallam, Mid. Ag. 224. 
 
494 SECURITY OF PUBLIC WORSHIP. [rn. viii. 
 
 assembled by the king's writ.^' And the statute of the next 
 year confirming the above enactment, further provided, 
 that any person might appeal from the Archbishop's Court 
 to the king in his Court of Chancery, and upon such appeal 
 the king should issue a commission to persons named who 
 should definitively determine such appeals, and no further 
 appeal was to be had.^ These commissioners afterwards 
 appointed by the Crown from time to time were called the 
 Court of Delegates, a court little resorted to when the 
 High Commission and Star Chamber were at work ; and it 
 has been said that if the delegates for some reason made 
 a mistake, the Crown might have again issued a commission 
 of review.' But no jDetter reason seemed to be given for 
 this than that the Pope used to do something similar in 
 the management of his own affairs. That power is, how- 
 ever, now of no importance, for in 1832 the whole juris- 
 diction formerly exercised by way of appeal from all eccle- 
 siastical courts was transferred to the Judicial Committee 
 of the Privy Council, consisting of certain high judges and 
 others (including archbishops and bishops) appointed from 
 time to time by the Crown.* 
 
 Ecclesiastical courts watched by temporal courts. — 
 According to Coke, Boniface's Canons, and Constitutions, 
 made before 1258, had encroached greatly on the jurisdic- 
 tion of the civil courts, and thus prohibitions required to 
 be issued, and controversies arose between the judges of 
 the realm and the bishops ; and the judges kept with great 
 difficulty the Ecclesiastical Courts from encroaching. 
 And then the clergy exhibited articles to Henry III., 
 complaining of these prohibitions.* As Coke said, the 
 judge at that time openly said, that "The temporal 
 courts must always have an eye, that the ecclesiastical 
 jurisdiction usurp not upon the temporal."* The clergy 
 
 1 24 Hen. VIII. c. 12. 2 25 Hen. VIII. c. 19. s 4 Ves. 186 
 ^ 2 & 3 Will. IV. c. 92 ; 3 & 4 Vic. 86, 8 4. » Artie. CI. : 9 
 
 Ed. II. ; 2 Inst. 699. 
 
 6 2 Inst. 615. So late as 1839 a bishop told the House of Lords, 
 that bishops had beeti invested with the authority of judges by a 
 higher tribunal than any House of Parliament— they had received 
 their authority from the great Head of the Church— it was coeval 
 •with the establishment of Christianity on the earth.— ^£« Exeter 49 
 Pari. Deb. (3) 770. 
 
CH. VIII.] ECCLESIASTICAL COURTS. '495 
 
 have always felt this grievance of prohibitions, which in 
 other words meant, that the civil court was to decide 
 whether the Ecclesiastical courts had exceeded their juris- 
 diction. In 1603 they preferred articles to the Privy 
 Council against the judges, when the whole of the judges 
 were questioned as to the nature and extent of this juris- 
 diction ; and it was then fully discussed." The clergy 
 alleged, that in the reign of Elizabeth and the first three 
 years of James I. there had been 570 prohibitions ; and 
 they were sure that nine in ten, nay, nineteen in twenty,* 
 if not thirty-nine in forty of these were wrong. But the 
 judges replied, that this was mere vague generality and 
 clamour on the part of the ecclesiastics, and they must 
 specify particular instances. The clergy then particularly 
 complained, that in one suit for tithes against a parishioner 
 the temporal court had granted a prohibition on the mere 
 suggestion, that the parishioner had given the minister a 
 Clip of buttered beer to cure him of a grievous cold, where- 
 by all his tithes were discharged. '^ To which the judges 
 retorted, that the minister should not have made so ridicu- 
 lous a contract. And in another case complained of, the 
 judges replied, that if the spiritual court punished a 
 woman for adultery, whereas all they could prove against 
 her was night walking, they could not avoid granting pro- 
 hibition in such circumstances. And like views have 
 always prevailed more or less in the temporal courts as to 
 the jurisdiction of the spiritual courts. 
 
 Excesses of the ecclesiastical jurisdictian. — One 
 court distinguished itself in its time as ambitious to re- 
 form all errors whatever in the Church. The High Com-r 
 mission Court originated with Queen Mary, who was 
 zealous to inquire after heretics, and Queen Elizabeth's 
 Parliament enlarged the scheme and superadded to heresy 
 the duty of inquiry into seditious and false news.^ In the 
 time of Charles I. the court professed to have power 
 to examine its prisoners on oath.* Coke thought it 
 never had the right either to fine or imprison,* though 
 in its time it did both, and it was utterly abolished in 
 1640.* The modern jurisdiction of the ecclesiastical 
 
 1 2 Inst. 601. * 2 Inst. 601 ; Artie, cleri, 2 St. Tr. 142, 
 3 1 Eliz. c. 1 ; 1 Hallam Const. H. c. 4. * 2 Hallam Const, 
 H. C;8. 5 4 Inst. 324. 6 16Ch. Lo.ll. ■. , 
 
496 SECURITY OP PUBLIC WOESHIP. [ch. viit-. 
 
 courts over the laity may now be said to be wholly 
 abolished, except so far as regards churchwardens and 
 officers of the church, and the interference of parties with 
 the fabric of the church or the churchyard. Even the 
 canons profess to deal with no subject of the realm who is 
 not a member of the Church.' Many things however were 
 treated by the canons as offences which are no longer so.^ 
 Even the civil courts, including courts-leet, according to 
 Coke, had once power to punish adultery and fornication by 
 •way of fine.' But so early as the time of Edward I. the 
 civil courts were ordered not to interfere with the Bishop 
 of Norwich and his clergy (which Coke thought applied 
 equally to all other bishops and clergy), for dealing with 
 these offences.* And acting on this notion, the ecclesias- 
 tical Courts were apparently allowed to treat solicitation 
 of a woman's chastity as an offence.* And cases of incest 
 were also deemed within their jurisdiction, where no 
 property w^s concerned in the question.® So late as 1757 
 a methodist preacher was condemned by those courts to 
 public penance for incontinence.^ And though a statute 
 was passed thirty years afterwards to prohibit ecclesias- 
 tical courts from punishing for incontinence after the 
 lapse of eight months,^ yet the House of Lords has held 
 that that statute did not apply to the clergy but only to 
 the laity, and hence incontinence is still a well-known 
 cause of suit under the Church Discipline Act.® Nor can 
 the ecclesiastical courts now punish any lay person for 
 
 1 Can. Preamble ; Croft v Middleton, 2 Atk. 650 ; 2 Str. 1056. 
 
 2 It was long doubted, whether in case of perjury being committed 
 in an ecclesiastical suit, the remedy is stilly as it once was, in the 
 ecclesiastical court, inasmuch as the statute of circumspecte agatis 
 expressly gave the ecclesiastical courts power to punish for breaking 
 an oath when money is not demanded, so far as can be done for the 
 punishment of sin.— 13 Ed. I. st. 4 ; 5 Eliz. o. 9, § 5 ; 5 Eliz. c. 23 ; 
 Bp. St. David's Case, L. Eaym. 451 ; E. ■;;, .Lewis, Str. 70. But the 
 modem statutes punishing for perjury clearly apply to all courts, 
 whether ecclesiastical or temporal ; and therefore the ancient juris- 
 diction of the ecclesiastical courts even over the clergy for perjury 
 must be taken to be impliedly repealed. — E. v. Green, 5 Mod. 348 ; 
 16 Vin. Str. 313 ; 2 Eol. Ab. 257. 
 
 3 2 Inst. 487. ■• 13 Ed. I. St. 4 ; i Inst. 488.' 6 Gallisand v 
 Eegaud, L. Eaym, 809. ? Harris v Hicks, 2 Salk. 548. 
 
 . 7 Wheatley v Fowler, .2 Lee, 376. 8 27 Geo. III. c.44. 9 Free 
 V Burgoyne, 2 Bligb, N. S. 65. 
 
CH. VIII.] CHURCH DISCIPLINE ACT. 497 
 
 brawling and disorderly conduct in cliurch, there being a 
 sufficient remedy by application to justices of the peace.^ 
 Nevertheless the clergy may still be punishable for that 
 offence as an ecclesiastical offence. ^ And the jurisdiction 
 for defamation was also wholly taken away from the 
 ecclesiastical courts, as the civil courts deal now exclu- 
 sively with slander when it is actionable.^ And finally the 
 Church Discipline Act in 1840 provided a new mode of 
 procedure, and enacted, that no criminal proceeding 
 against the clergy for any offence against the laws eccle- 
 siastical should be instituted in any ecclesiastical court 
 otherwise than as therein provided.* 
 
 Remedy vmder Church Discipline Act against clergy. 
 — The incidents of the procedure in the ecclesiastical courts 
 belong to that division of the law entitled Judicature. It 
 is enough to say that all criminal suits against clergymen 
 are now instituted and carried on under the procedure set 
 forth in the Church Discipline Act.^ One feature of this 
 Act is, that all criminal proceedings must be begun either 
 by a preliminary inquiry under commissioners appointed 
 by the bishop, so as to see whether there is a primd facie 
 case fit to be tried out in the regular way, or the bishop 
 may at once refer the trial to the Court of Appeal for the 
 Province — that is to say, to the Court of Arches. And all 
 such suits must be commenced within two years from the 
 time when the offence was committed.® This Act is thus 
 at once a law of crimiaal procedure as to the offences to 
 which it relates, and a statute of limitations as to penal 
 prosecutions.^ And the bishop has an absolute veto on the 
 commencement of any proceeding under this Act.* And 
 though he may send the case to be tried by the Arches 
 Court, still the latter court is not bound to assume 
 jurisdiction.' 
 
 1 23 & 24 Vic. c. 32. ^ ibid. § 1. 3 18 & 19 Vic. c. 41, ante, p. 208. 
 
 < 3 & 4 Vic. c. 86, § 23. In 1839 there were 360 ecclesiastical courts 
 exercising criminal jurisdiction, and each having its owti notions of 
 law. The House of Commons resolved, that they .ought to be put an 
 end to without delay ; and hence the Act of 3 & 4 Vic c. 86. 
 
 6 3 & 4 Vic. c. 86. 6 3 & 4 Vic. c. 86, § 20. ^ Ditcher v 
 Denison, 11 Moore, P.' C. 324. « Julius v Bp. Oxford, H. L., 
 
 23 March, 1880. 
 
 9 Sheppard v. Bennett, L. K., 2 Eccl. 335. At one time it was 
 settled that for the conviction of a bjghop seventy-two witnesses 
 
 K K 
 
498 SECURITY OF PUBLIC WORSHIP. [ch. viir. 
 
 When a clergyman lias committed an offence for which 
 he may be tried in a temporal court, the ecclesiastical 
 court may nevertheless take cognizance of the offence for 
 its own purposes of discipline. It cannot indeed profess 
 to punish him for the crime committed, but it may suspend 
 or deprive him on the ground of the acts committed, 
 "whether these are proved by conviction in the temporal 
 court, or though the clergyman has not been yet punished 
 by such court.' And though for incontinence no suit can 
 be brought in the ecclesiastical courts for mere discipline 
 after eight months,^ yet that court may nevertheless in- 
 quire into the same facts after that date for the purpose of 
 deprivation.* 
 
 In some of the offences of clergymen, such as using for- 
 bidden ceremonies and ornaments — ^offending against the 
 Prayer Book as regards services, rites, and ceremonies, a 
 shorter and more prompt remedy is given by the Public 
 Worship Act of 1874, which treats such offences as of a 
 civil nature.* And the proceeding must be instituted by 
 the bishop either at the instance of the archdeacon or a 
 churchwarden, or any three male parishioners, member? of 
 the church and resident at least a. year ; or in case of cathe- 
 dral or collegiate churches, any three inhabitants of the 
 diocese.^ The bishop may however refuse to prosecute 
 under this Act, provided he state the reasons for his 
 opinion to be furnished to the relator. 
 
 Clerical offence of schism and heresy. — The offence 
 of schism, and of af&rming and maintaining, that other 
 assemblies than the Church of England are true and 
 lawful churches, is set forth in the canons, but recusants 
 and nonconformists are no longer subject to be excom- 
 municated on that account. And schism is now scarcely 
 recognisable as an offence even of the clergy. The form 
 it may assume is better known as heresy.* 
 
 were required, and these must be heads of families and professing 
 Christians ; while forty-four would suffice for a priest, thirty -seven 
 for a deacon, and seven for a sub-deacon. — Oapit. Gar. Mag. vi. A.D. 
 806, § 2. And a variation of this law had been accepted in England 
 a century earlier. — Thorpe, Anc. Laws, ii. 73. 
 
 1 Free v Burgoyne, 2 Bligh, N. S. 65 ; 1 Dow & CI. 115. 2 27 
 Geo. III. c. 44, § 2. 3 Burder v Hodgson, 3 Curt. 822. < 37 & 38 
 Vic. c. 85. 6 Ibid. § 8. 
 
 6 In 1542 a statute of Henry VIII. expressly forbade as pestiferous 
 
OH. VIII.] HERESY. 499 
 
 It has sometimes been said that all the ancient nations 
 except the Persians and Jews were to a certain degree 
 tolerant.! But it would be difficult to distinguish between 
 ancient and modern nations in this respect, or to show that 
 the law in any one epoch was less vindictive than in another 
 against offenders of this class.^ 
 
 Heresy. — According to Hale the common law recognised 
 the ecclesiastical judge as the judge of heresy ; and that 
 judge was the bishop, or, in grave cases, a provincial synod. 
 If the bishop declared a layman a heretic, and sentenced 
 him to death, the secular power then obtained the writ de 
 heretico comburendo and burnt him ; if the heretic was a 
 clergyman, he was degraded by the bishop himself. Some 
 have doubted whether a bishop alone could sentence to 
 death ; but certain provincial constitutions, and also the re- 
 cital of the statute of Henry IV. c. 15, recognise this as 
 within the bishop's authority.* Yet the Crown had a dis- 
 cretion to issue this writ de heretico comburendo. And 
 before the reign of Eichard II. heretics were seldom burnt. 
 The statute of Henry IV. made burning follow as of course 
 the sentence of the bishop, or even of his commissary, and 
 also gave the bishop power to arrest and imprison those 
 suspected of the offence.* And the bishop had this wild and 
 unbounded jurisdiction till the statute of Henry VIII. re- 
 pealed that Act and transferred the power of burning to the 
 sheriffs in their fourns.^ Yet while the jurisdiction was 
 vested in the bishop, the temporal court could interfere and 
 rescue the heretic before judgment. This they did in one 
 case, where all that the heretic said was, that "though ex- 
 communicated by the Archbishop of Canterbury, he was not 
 excommunicated before G-od, and he had, notwithstanding, 
 
 and noisome all books, sermons, and ballads, -whereby diversity of 
 opinion and schisms arose. Printers, bookbinders, and booksellers, 
 •particularly of books in favour of the Anabaptists, and such crafty 
 translations of the Bible as Tindal's, were liable to three months' 
 imprisonment, and on a second ofEence to perpetual imprisonment.* 
 Ballads and songs for rebuking of men and setting forth of virtue 
 were expressly excepted ; and ladies, if noble and gentle, might read 
 to themselves alone and not to others any texts, of the Bible or New 
 Testament.— 34 & 35 Henry VIII. c. 1. 
 
 ■ 1 Newman's Lect. Hist. 37. ^ ggg further as to this, post, 
 
 Chap. IX. 3 1 Hale's Pleas of Or. 391 ; 12 Co. 92. * 2 Hen. IV. 
 0. 15. 5 25 Hen. VIII. o. 14 ; repealed by 1 Ed. VI. o. 12. 
 
 K K 2. 
 
iOO SECURITY OF PUBLIC WORSHIP. [ch. viii. 
 
 IS great plenty of wheat as his neighbours."^ And in an- 
 )ther case, where all that the heretic said was, "that he 
 was not bound to pay tithes to the curate of the parish 
 Adhere he dwelt," ^ the courts of law interfered on the 
 rround, that the ecclesiastical court's jurisdiction was 
 it an end, when it pronounced sentence and delivered up 
 ;he heretic to the secular powers, and those courts insisted 
 )n the specific niatter of heresy being set forth, and of re- 
 viewing it so as to see that it was a legal ground of judg- 
 nent ; " for it concerned life and liberty." ^ As Hale said, 
 ;he temporal courts were not mere lacqueys to endorse 
 c^hatever the ecclesiastical courts certified to them.* 
 
 Until the time of Henry VIII. there was nothing 
 clearly laid down as to what was or was not heresy ; 
 md even then no further certainty was attainable, except 
 hat it was declared, that some specific statements were 
 lot, and others were, heresy. It was to be no longer 
 leresy to speak against the authority of the Pope.* 
 ;t was next declared to be heresy to say, that, in the 
 sommunion, after consecration, the bread and wine re- 
 nained bread and wine still And it was made not only 
 leresy, but felony, to say that priests might marry, and 
 hat auricular confession was not necessary.^ After the 
 eign of Henry VIII. Protestants and Eoman Catholics 
 lad opportunities of burning each other as heretics, till 
 Elizabeth repealed the preceding statutes, and thereby 
 ■estored the common law.'' And the High Court of Com- 
 nission being erected obtained jurisdiction to sentence 
 leretics; but nevertheless the jurisdiction of the bishop 
 .nd of the provincial council was not thereby taken away, 
 ^nd under this statute the writ de heretico comhurendo was 
 lot issued as of course, but was in the discretion of the 
 dug and council. And forfeiture of goods and lands no 
 onger was to foUow on conviction. And though since the 
 ime of Elizabeth no further definition of heresy has been 
 ;iven by any statute, yet the writ de heretico combv.rend.o, 
 ,nd all capital punishments in pursuance of ecclesiastical 
 
 1 Keyser's case ; 5 Ed. IV. Rol. 143 ; 3 Inst. 42 ; Att.-Gen. v 
 'earson, 3 Meriv. 383. ^ Warner's case ; 1 Eol. Rep. 110 ; 3 Inst. 
 2. 3 2 Inst. 615, 623. •» 1 Hale, Pleas Cr. 408. 
 
 » 25 Hen. VIII. c. 14. 6 31 Hen. VIII. c. 14. 
 
 7 1 Eliz. c. 1. 
 
CH. vin.] PUNISHMENT OP HERETICS. 501 
 
 censures, are utterly abolished.' And no means exist for 
 ecclesiastical courts dealing with heresy except by excom- 
 munication ; though clergymen guilty of heresy may still 
 be deprived and degraded. But whenever such a charge is 
 made, there must be great precision and distinctness in 
 the accusation. The articles of charge must definitely 
 state the opinions maintained and doctrines contravened, 
 and the particular articles of religion or portions of the 
 formularies containing those doctrines. And while the 
 accuser is confined to the passages he sets forth as matter 
 of accusation, the defendant may explain, from the rest of 
 his work, the sense or meaning of the passage on which 
 the charge is founded.^ 
 
 The punishment of heretics. — The punishment of 
 , heretics seems to have been always severe. The early 
 Church made it a rule not to eat or converse with 
 heretics.* And Theodosius punished some of them capi- 
 tally.* One of the earliest instances of burning for heresy 
 is said to have occurred under Eobert of France in the 
 eleventh century.^ In this country it is said, that the first 
 martyrs for heresy were thirty men and women who set 
 np strange opinions in Oxford, and a council of the clergy 
 there, in 1159, condemned them to be burnt in the fore- 
 head with a red-hot iron, whipped half naked through the 
 streets, and left to die of hunger and cold.^ _ The reason 
 given by Coke for burning being the appropriate punish- 
 ment was, that it was an offence against the Eternal 
 Majesty and a leprosy of the soul, requiring the offender 
 to be cut off lest he poison oth'ers. Yet it was always 
 ' competent to escape punishment by abjuring the heretical 
 opinio^.'■ In the short reign of Mary it is said about 288 
 
 1 29 Ch. li. c. 9. 2 Williams v Bp. Salisbury, 2 Moore, P. C. 
 
 N. S. 375 ; Sheppard v Bennett, L. E., 4 Priv. C. 362. =* Bing. 
 
 Chr. Ant. b. xvi. c. 6. * Cod. Theod. b. xvi. tit. 5. ^ i Prescott's 
 Ferd. 261 ; Sismondi, b. iv. c. 4. , . 
 
 6 5 Henry's Hist. Gt. Brit. 338. It is said the first martyrdom m 
 Scotland for religious opinions was that of Eereby at Perth in 1408. — 
 2 FordurCs Scotiehr. 4,41. The Emperor Charles V. decried death 
 and forfeiture of goods as the punishment of converts from the 
 ancient faith. And in 1568 a decree of the Inquisition condemned all 
 the inhabitants of the Netherlands to death as heretics.— 2 Motley's 
 Dutch Bep. 158. 
 
 ^ 8 Inst. 43 ; Fuller's case, 12 Eep. 44. 
 
602 SECURITY OP PUBLIC WOESHIP. [en. viii. 
 
 were burnt for this crime.^ In tte time of James I. a 
 Socinian suffered martyrdom at Smithfield, and that king 
 resolved to make no more martyrs.^ Even before the writ 
 de heretieo comhurendo was abolished, the courts of law 
 often dealt with heresy under the form of seditious or 
 blasphemous libel. In 1665 Keach was convicted of a 
 libel for publishing a book which advocated, that infants 
 should not be baptized, and that Christ would reign on 
 earth personally in the latter day. Hyde, C.J., said these 
 points had all been settled by the Book of Common 
 Prayer; and the sentence was imprisonment for a fort- 
 night, to stand in the pillory with a paper on his head at 
 certain times and places, to pay a fine of 2QI., and to see 
 the book burned by the common hangman.* 
 
 Offence of contravening the Thirty-nine Articles and 
 depraving the Common Prayer. — One specific ecclesi- 
 astical offence created by a statute of Elizabeth is that of 
 any ecclesiastical person, or one holding an ecclesiastical 
 living, advisedly maintaining or affirming any doctrine 
 repugnant to any of the Thirty-nine Articles.* The 
 word " advisedly " means that the words are the delibe- 
 rate act of the accused, and not a casual expression 
 dropped inadvertently. The ecclesiastical court must 
 construe the articles and ascertain the doctrines therein 
 . contained, and how far these have been contravened, in 
 the same way as it construes statutes and written docu- 
 ments.* The punishment is deprivation, and no other 
 punishment can be imposed of a less serious description.^ 
 And though the defendant might revoke his errors before 
 sentence, yet he must do so entirely, and not merely 
 express his regret that he should have committed " what 
 
 1 2 Todd's Cranmer, 417 ; 1 Hallaiji, C. H. c. 2. 
 
 2 Fuller Cent. XVII. p. 64. In 1679 one Hammond was burned 
 at Norwich for denying the Trinity. And in 1588 Francis Kett was 
 burnt for opinions about Christ. — Bliz. Relig. Hist. 364. The last two 
 men burnt for heretical opinions were Legat and Wightman in 1611. 
 — 1 Hallam, Const. H. 611 ; 2 Somers' Tracts, 400. "Perhaps the 
 last capital punishment in a Protestant country for mere heresy was 
 in Geneva in 1632. "--2 Hallam, Lit. Eur. 344. 
 
 3 R. V. Keach, 6 St. Tr. 710. It is also said, that in 1593 Sir T. 
 Davers was committed to the Marshalsea for having, during his 
 travels, kissed the Pope's foot. — 1 Nug. Antiq. 291 (1804) 
 
 < 13 Eliz. c. 12, § 2. 5 Williams v Bp Sali8bury,'2 Moore 
 
 N. S. 377. 6 Heath V Blirdnr. I.f; Mnnrp PHI ' 
 
CH. VIII.] INTERPRETATION OF PRAYER BOOK. 503 
 
 the court says is an error," or that "he was not aware 
 he was offending."' The object for which this offenCe was 
 created is said to be the avoiding of diversities of opinions 
 and the establishing of consent touching true religion, for 
 it was considered that those articles were framed with 
 great care by leading authorities of the Eeformed Church, 
 and contained fundamental truths deducible in their judg- 
 ment from holy Scripture. A stUl better theory on 
 which this offence is based is that which Lord Stowell 
 stated, namely, that " the preaching of diversity of opinions 
 shall not be fed out of the appointments of an established 
 church."^ This charge, however, of contravening the 
 articles must be reasonably definite and specific, so that 
 a court may know wherein the conflict exists, and which 
 of the articles is contravened.* One clergyman, in 1845, 
 had his licence revoked in the first instance on account of 
 doctrines which were said by him to be " maintaining aU 
 Eoman doctrine," without explaining how much or how 
 little of such doctrine he appropriated.* 
 
 Duty of Gowrts in interpreting Articles and Prayer 
 Book. — In applying a law of this kind it is absolutely 
 necessary that the court deciding on the offence should 
 put a construction on the Articles of religion said to be 
 contravened, for unless this is done it is impossible to 
 know, whether there has been a contravention or not. 
 And there are no peculiar rules of construction applicable 
 to the Articles any more than "there are to other written 
 instruments of ordinary composition.^ And as may be 
 supposed, some Articles, like most human compositions, 
 are capable of different meanings, or a meaning i-nde- 
 finite, though indefinite within certain extreme limits.^ 
 For example, it has been held, that the 6th and 20th Articles 
 do not necessarily imply, that every part of the Scriptures 
 was written under the inspiration of the Holy Spirit.' 
 
 1 Ibid. ; King's Proctor v Stone, 2 Hagg. Cons. 4.S0. 
 
 2 King's Proctor v. Stone, 1 Hagg. Cons. 424. Persons reviling the 
 sacrament with contemptuous words or otherwise were punished by- 
 fine and imprisonment. — 1 Ed. VI. c. 1. „ ,. , 
 
 3 Heath v Burder, 15 Moore, P. C. 1 ; Williams v Bp. Salisbury, 
 2 Moore, N. S. 375. * Hodgson » Oakley, 1 Bob. Eoo. 322 ; 
 4 N. of C 180. s Williams v Salisbury, 2 Moore, N. S. 376. 
 
 • 6 Noble V Voysey, 7 Moore, N. S. 167. ^ Williams v Salisbury, 
 2 Moore, N. S. 376. ' 
 
504 SECtJEITY OF PUBLIC WOESHIR [cH. viil. 
 
 And there is nothing repugnant to the Articles in 
 expressing a hope of the. ultimate pardon of the 
 wicked.' 
 
 Another kindred offence is the depravation of the Book 
 of Common Prayer by any parson, vicar, or minister 
 refusing to use it, or his using any other form of prayer.^ 
 And the punishment is imprisonment and loss of one 
 year's profits of the benefice. Moreover, even a layman 
 "who depraves or despises anything in such Common 
 Prayer, or compels or procures a parson to use other forms, 
 incurs a penalty.* And a clerk may be deprived for the 
 first offence, for the ecclesiastical jurisdiction is concurrent.* 
 The clerk may also be suspended for three years, instead 
 of following the punishment assigned by the statute of 
 Elizabeth.^ 
 
 Offences of Immoralit/y, Drunkenness, &c., of Clergy. 
 — Though it might well be, that the clergy should be sub- 
 ject to greater restrictions and punishments than the laity 
 as to certain offences recognised as pre-eminently incom- 
 patible with the sacred ofdce, yet, untO. the statute of 
 Edward I., the clergy were not punishable for these in 
 their own courts; the king's courts, and especially the 
 leets, having power to inquire into them. Express power 
 was, however, conferred on the spiritual judge to punish 
 the clergy for fornication, adultery, and such like.® But 
 fine and imprisonment were not ecclesiastical punishments, 
 and Coke says, that no such power could be granted to 
 ecclesiastical courts except by statute.^ And the statute 
 of Henry VII. first gave power to the bishop to commit to 
 prison priests convicted of incontinency.* And though, 
 the ecclesiastical judge was apt to exceed his jurisdiction, 
 the common law courts were always ready to issi^e a pro- 
 hibition when the line was transgressed, and the matters 
 were such as they themselves could sufficiently deal with ; 
 for example, when the spiritual court professed to bastard- 
 ise the issue of an incestuous marriage instead of confining 
 itself to the punishment of the incestuous person alone.* 
 
 1 Ibid. 2 2 & 3 Ed. VI. e. 1, §§ 2, 3 ; 1 Eliz. c. 2, 8 28 : 
 
 Canon (1603) 6. s ibid. *■ Caudrey's case, 5 Coke, 1. = Sanders 
 V Head, 2 Notes Gas. 355. 6 13 Ed. I. st. 4 ; 2 Inst. 488. 
 
 1 4 Inst. 324. 8 i Hen. VII. c. 7, repealed in 1840 ; 4 Inst. 329. 
 
 s Harris v Hicks, 2 Salk. 548.- 
 
CH. VIII.] CLERGYMAN OUT OF HIS PARISH. 505 
 
 The canon of James I. extended the jurisdiction of eccle- 
 siastical courts over the clergy when they offended as to 
 adultery, disorderly conduct, drunkenness and swearing, and 
 ribaldry, and even usury.' In 1787 a statute prohibited 
 any suit in the ecclesiastical court for fornication or incon- 
 tinence if not brought within eight months, or if the 
 parties had subsec[uently intermarried.^ And yet this was 
 held not to prevent a bishop from punishing an incontinent 
 clerk irrespective of that Act.* Besides the canon already 
 referred to, which made the clergy punishable in the 
 ecclesiastical courts for adultery, swearing, and drunken- 
 ness, another canon went a much greater length, and 
 prohibits the clergy from resorting to a tavern, or giving 
 themselves to any base or servile labour, or playing at 
 cards.* 
 
 Odehrating public worship in cmother parish or 
 another chapel. — It was a very early rule in the Church, 
 that no bishop should invade the parish or diocese of 
 another, but must keep to the gOA^ernment of the people 
 committed to his care.^ No doctrine of ecclesiastical law 
 was more resolut.ely upheld than this, namely, that in 
 each parish the incumbent of the church has the exclusive 
 right to perform the services of the Church, and any 
 other clergyman who invades the parish for a like purpose 
 without leave of such incumbent commits an ecclesiastical 
 offence.® And the leave of the bishop is ineffectual, if 
 the incumbent refuses it.^ Even the incumbent of the 
 parish was held incompetent to of&ciate in a proprietary 
 chapel, though he drew a yearly stipend from the pro- 
 prietors, it being deemed essential that such chapel should 
 be first consecrated, and when it is unconsecrated the bishop 
 can at discretion prohibit any worship being celebrated 
 
 1 Can. 1603, No. 109. So late as 1757 a Methodist preacher was 
 £or incontinence sentenced to penance by the Arches Court. — • 
 Wheatley v Fowler, 2 Lee, 376. 
 
 2 27 Geo. III. c. 44. ^ Burgoyne v Free, 2 Bligh, N. S. 65. 
 
 4 Can. 1603, § 75. Another canon even hints at decent apparel 
 being also compulsorv.— Ibid. § 74. = Theod. Can. a.d. 673 ; 1 Wilk. 
 41. fi Bliss V Woods, 3 Hagg. Eccl. 486 ; Williams « Brown, 1 
 
 Curt. 53. 
 
 7 Carr v Marsh, 2 Phillim. 198. But a lay rector cannot interfere. 
 — D. Portland v Bingham, 1 Sagg. Cans. 157. 
 
606 . SECURITY OF PUBLIC "WORSHIP. [ch. viii. 
 
 therein, by any of the clergy of the Church of England. ^ 
 The bishop cannot license such chapel without the incum- 
 bent's consent, nor is the incumbent's consent sufficient 
 without the bishop's licence.^ To allow another officiatinjg 
 minister in a parish without the incumbent's consent is 
 deemed to interfere with the pastoral duties and also 
 pecuniary rights of such incumbent, and. produces schisms 
 and dissensions.^ Thus in strictness, the consent not only 
 of the incumbent of the parish but also of the bishop is 
 required to justify a clergyman, who is a stranger, in per- 
 forming divine service in such parish, for a bishop of one 
 diocese can at discretion, without cause assigned, inhibit 
 a beneficed clergyman of another diocese officiating or 
 preaching in his own diocese.* And if the service is to 
 be performed in an unconsecrated building the bishop has, 
 as already stated, an absolute discretion to prohibit it.* 
 It was thought, indeed, that after the Toleration Act a 
 minister of the Church of England had the same freedom 
 as dissenting ministers, to preach and do any good of that 
 kind in any locality ; but Lord Hardwicke, L.C., in 1742, 
 corrected this mistake. He said the Act of Toleration 
 was made to protect persons of tender consciences and to 
 exempt them from penalties ; but to extend it to clergy- 
 men of the Church of England who act contrary to the 
 rules and discipline of the Church would introduce the 
 utmost confusion.^ 
 
 1 Moysey v Hillcoat, 2 Hagg. Ecol. 30 ; Hodgson v Dillon, 2 
 Curt. 388 ; Barnes v Shore, 8 Q. B. 640. 
 
 2 Ibid. ; Preeland v Neale, 1 Rob. Eccl. 643. So late as the 
 year 1863 it was necessary to pass an Act of Parliament to authorise 
 the bishop without consent of the incumbent, and, even then only 
 on further conditions, to permit an English service in a chapel in a 
 Welsh parish.— 26 & 27 Vic. c. 82. ■ 
 
 3 Bliss V Woods, 3 Hagg. Ecol. 512. 
 
 * Bp. Down V Miller, 11 Ir. Ch. Ap. 1. It was in 1739 that Wesley, 
 a priest of the Church of England, openly rebelled against the 
 Bishop of Bristol, who had ordered him to quit his diocese, and 
 took to the practice of field-preaching. — 1 Southey^s Wesley, 226, 
 243 ; Wesley' s Journ. 78. And " having the genius of Richelieu for 
 government," he organised a body of nonconformist clergy, who 
 are now a conspicuous power in modern society. — Macaulay's 
 assays. 
 
 ^ Hodgson V Dillon, 2 Curt. 388 ; Sedgwick v Bp. Manchester, 
 38 L. J., Ecc. 30. 6 Trebeo v Keith, 2 Atk. 500. 
 
CH. V]ii.] PUNISHMENTS OE CLEEGy. 507 
 
 Preaching in private houses a/nd buildings. — The 
 71st canon expressly prohibited any minister from preach- 
 ing or administering the holy communion in any private 
 house except in times of necessity. And this necessity 
 ■was explained, namely, where any one was so impotent as 
 to be unable to go to church, or was very dangerously 
 sick. And a private house was deiined to mean a house 
 wherein no chapel was dedicated and allowed by the 
 ecclesiastical laws of the realm ; and even the chaplain 
 was prohibited from preaching except in the chapel of 
 such house. The avowed object of all this was to compel 
 people to go to their parish church, and the piinishment 
 was suspension for the first offence, and excommunication 
 for the second. A private house in short was held to mean 
 strictly a dwelling-house, and hence would not include a 
 dissenting or unconsecrated chapel, so as to save a priest 
 who there officiated from committiug a breach of Church 
 discipline.^ Moreover, by the Act of Charles II. no person 
 was allowed to have divine service performed in his house 
 if there were niore than five persons present besides the 
 family.2 This number was, with great difficulty, afterwards 
 extended to twenty, above which number the place was to 
 be certified and registered,^ and those who permitted such 
 meetings in uncertified places incurred a penalty, not less 
 than 20s. and not greater than 201. All places of religious 
 worship of Protestants, other than those of the Church of 
 England, required to be registered by the same statute of 
 1812.* But in 1855 the necessity of registration of places 
 of religious worship was no longer required when the 
 incumbent of the parish church or his curate, or some one 
 authorised by them, conducted the worship ; or when the 
 congregation or assembly met in a private dwelling-house, 
 or on the premises belonging thereto ; or when the con- 
 gregation or assembly met occasionally in any building 
 not usually appropriated to purposes of religious worship.^ 
 
 Variovs Mnds of pwnishment of the clergy. — The 
 clergy, besides being liable, both civiUy and criminally, in 
 all courts to the same remedies and punishments as . the 
 laity, are subject to various punishments peculiar to their 
 
 1 Barnes v Shore, 1 Eob. Eccl. 382 ; 8 Q. B. 640. ^ 22 Ch. IL 
 
 c 1 3 62 Geo. III. c. 155. The fee was 2s. 6d < 52 Geo. HI. 
 c. 155, § 2. 5 18 & 19 Vic. c. 86., 
 
508 SECURITY OF PUBLIC WORSHIP. [ch. vm. 
 
 own profession. These vary in degree from simple admo- 
 nition to imprisonment and deprivation. Admonition is 
 a mere caution or warning, but disobedience to it amounts 
 to a contempt of court. Suspension is either from oiBce 
 alone, or from office and benefice. The former indicates 
 that the suspended person is prohibited from discharging 
 spiritual functions : while the latter adds the further pro- 
 hibition against receiving the fruits of the benefice. And 
 at the end of the term of suspension a certificate signed by- 
 three clerks is sometimes ordered to be produced attesting 
 the reformation of the offender. Sequestration of the profits 
 of the benefice is either a punishment fer se or added to 
 suspension. Deprivation is the entire dissolution of the 
 connection between the clerk and his benefice and its 
 functions, so that he can neither officiate in it nor enjoy 
 the emoluments. And sometimes to this is added a pro- 
 hibition to officiate within the limits of the depriving 
 authority. The writ of excommunication was also the 
 mode of enforcing sentences. These punishments require 
 to be noticed in their order. 
 
 ExGommunication as punishment. — The punishment 
 of excommunication, which was so formidable a weapon 
 of priestly influence in the middle ages, has lost all its 
 rigour in modern times,^ and it has been turned into a 
 mere mode of imprisonment for six months.^ This writ 
 de excommunicato capiendo was said by Coke to be matter 
 of discretion on the part of the king,^ though the eccle- 
 siastical lawyers claimed that it was ex debito justitice, and 
 that the king could not withhold it.* A statute of Eliza- 
 beth was passed to make the writ 'de excommunicato 
 capiendo more strictly enforcible, and to make the sheriff 
 more easily brought to account for neglecting to arrest the 
 offender. And the cause of the excommunication was to 
 be specified in the significavit.^ But after the lapse of 
 about two centuries it was abolished, except to this extent, 
 that when a decree or order of the ecclesiastical court 
 was disobeyed, and that court certified or made a significavit 
 of the same to the Chancery division within ten days 
 thereafter, a writ de contumace capiendo may issue 
 from such division having the same force as the writ de 
 
 1 See 2 Pat. Com. (Pers.) 240. 2 53 Qgo. III. c. 127, 
 
 3 2 Inst. 630. . * Lind. 351. ^ 5 eHz. c. 23, § 13. 
 
TH. vni.] SUSPENSION OF CLEEGY. 509 
 
 excommunicato capiendo undev the statute of Elizabeth, and 
 the sheriff is hound to execute the writ by arresting the 
 contumacious party.^ This writ may be issued against a 
 person residing anywhere in England or Ireland.^ But if 
 the contumacious person is a peer or member of Parlia- 
 ment, the writ de contumace capiendo is not to be issued, but 
 only a writ of sequestration against the estate or thegoods.^ 
 And a power has been expressly conferred on the Eccle- 
 siastical Court or Judicial Committee of the Privy Council 
 after the imprisonment of the contumacious person to 
 release him at any time with consent of the other parties 
 to the suit.* 
 
 Suspension as a ptmishment. — The punishment of 
 suspension is that which usually is most effective, and is 
 a prohibition against the incumbent exercising his spiritual 
 functions. The sentence of itself operates to incapacitate 
 the party from reaping the emoluments of the benefice, 
 whether a sequestration be issued or not.^ The care of the 
 benefice is then devolved on the bishop, so as to provide for 
 the needs of divine worship while the suspension lasts.* If 
 the clergyman preaches or performs clerical functions during 
 the suspension, or otherwise disobeys any monition, he is 
 guilty of contempt, and is liable to be suspended ah officio 
 et henejido? One characteristic of the sentence of suspension 
 is, that before it can be pronounced the offender must have 
 a previous admonition, otherwise it is good cause of appeal.^ 
 There seems to be no defined limit to the period of suspen- 
 sion, but it is usually confined to short periods of a few 
 months, extending to two or three years. One peculiarly 
 barbarous form of suspension was once applicable to the 
 laity as well as the clergy, which consisted in excluding the 
 offender from entering a church at all — called suspension ab 
 ingressu ecclesice. This punishment, like a minor excommu- 
 nication, was founded apparently on the notion, that the 
 offender was so bad, that he should not have even a chance 
 of hearing anything more for his benefit. It is true the 
 courts seem to have pronounced this sentence only in suits 
 
 1 53 Geo. III. c. 127, §§ 1, 2, 3. ' == 2 & 3 Will. IV. c. 93 § 1. 
 
 3 Ibid ■■ 3 & 4 Vic. c. 93. ^ Morris r Ogden, L. E., 4 C. P. 
 687 ; Bunter v Cresswell, 14 Q. B. 825. « Re, Thakeham, L. B., 
 
 12 Eq. 494. ^ Martin v Mackonochie, 4 Q. B. D. 697. 
 
 » Gibs. 1046. 
 
610 SECUEITY OF PUBLIC WORSHIP. [ra. vni. 
 
 for brawling, which may be presumed to suggest some kind 
 of surety of the peace such as this punishment implied.^ 
 The punishment was expressly authorised by the statute 
 of Edward VI.,^ and no statute has yet expressly repealed 
 the power to inflict ffuch punishment, and which the 
 ecclesiastical court probably still claims.^ 
 
 Sequestration as a pumish/ment.' — The sentence of 
 sequestration is a mode of appropriating the whole profits 
 of the benefice to other uses than those of the incumbent, 
 but always subject to adequate provision being first 
 made for public worship. The bishop acts in such a case 
 in a manner similar to the sheriff in ordinary eases of 
 debtors in possession of real or personal estate.* Seques- 
 tration may be made to reach the clergyman's estates out 
 of the jurisdiction.^ But the debts of the clergy are not 
 allowed to interfere with the services of the Church, so 
 that while a clergyman's benefice must answer for his 
 debts, like the estate of a layman, care is always taken 
 first to keep up the ministrations of the Church, and to set 
 apart a sufBcient sum out of the emoluments for that 
 primary object.^ Hence, instead of the sheriff executing 
 writs of common law courts against the benefice, it is for 
 the bishop to nominate a fit person to be the sequestrator. 
 And when an incumbent is made bankrupt, the sequestra- 
 tor may allow part of the profits to the bankrupt for per- 
 forming the duties of the parish.'' The duty of a seques- 
 trator is to gather the tithes, fruits, and profits, and keep 
 a just account ; and he publishes his appointment in the 
 church, so that all may know his position. The duties are 
 now regulated to some extent by statute.* If the seques- 
 tration remains in force for more than six months, the 
 bishop may inhibit the incumbent from performing clerical 
 serviceiwithin the diocese so long as the sequestration lasts.^ 
 
 1 CKnton v Hatohard, 1 Add. 96 ; Lee v Matthews, 3 Hagg. Ecc. 
 176. 2 5 & g Ed. VI. c. 4. 
 
 ' The Council of Laodioea solemnly decided that heretics ought 
 not to be admitted into a church. — Condi. Laod. o. 6. Nevertheless, 
 some churches had the good sense to avoid the rule. — Bing. Chr. 
 Ant. b. xvi. c. 6. 
 
 * Jud. Act 1875, Apx. ; 1 & 2 Vic. c. 106, §§ 54, 99 ; 12 & 13 Vic. 
 c. 67 ; 34 & 35 Vic. c. 45. s 2 & 3 Will. IV. c. 93. « 32 i& 33 
 Vic. c. 71, § 88. ^ 32 & 33 Vic. c. 71, § 88. » 34 & 35 Vic. 
 
 c. 46. 3 Ibid. § 5. 
 
OH. VIII.] CONTEMPT OF ECCLESIASTICAL COURTS. 511 
 
 Deprivation as a punishment. — The highest punish- 
 ment of the same kind is deprivation, which totally deprives 
 the incumhent of all further connection with the benefice, 
 being in effect a perpetual suspension. It is a punish- 
 ment assigned for disqualification, blasphemy, felony, and 
 the graver moral offences.^ Indeed, conviction for felony 
 or treason ipso facto, if the punishment exceed twelve 
 months' imprisonment, operates as an avoidance of a 
 benefice.^ This heavy punishment of deprivation can be 
 pronounced by the Dean of the Arches sitting by himself.^ 
 Deprivation is now always substituted for the old punish- 
 ment of degradation.* But most of the grounds at common 
 law have been displaced by statutory methods which inter- 
 cept the evil at an^earlier stage. Thus, mere illiteracy, want 
 of age, simony, conviction of treason or felony, are disposed 
 of by statutes. It may be decreed for incontinence and 
 drunkenness.^ Blasphemy, heresy, schism, are also grounds 
 for the punishment.® Speaking, or preaching, or using rites 
 or ceremonies in derogation of the Prayer Book is, on a 
 second conviction, made by statute ipso facto a depriva- 
 tion.^ And other statutes often prescribed this punishment. 
 
 There was also the punishment of degradation, which 
 was the stripping from an ecclesiastic the sacred orders, a 
 punishment now never resorted to, simply because the 
 others amount practically to the same thing. It was done 
 solemnly and publicly, and was purposely accompanied 
 with marks of disgrace.* 
 
 Pwnishment for contempt of Ecclesiastical Court. — 
 A contempt of an ecclesiastical court is committed in the 
 
 1 Noble V Voysey, L. R., 3 Priv. C. 357 ; Bonwell v Bp. London, 
 14 Moore, P. C. 395. 2 33 & 34 yic. 0. 23, § 2. = Bonwell v Bp. 
 London, 14 Moore, P. C. 395. * Claster v H., 1 Robertson, 380. 
 
 « 1 Brownl. 70; 2 Brownl. 37. ^ 39 Ch. IL c. 9. ? 2 & 3 Ed. 
 VI. 0. 1, §§ 2, 3 ; 1 Eliz. o. 2, §§ 2, 3. 
 
 8 The ceremony survives in the popular expression — pulling the 
 man's gown over his ears. The canon law added other grounds of 
 degradation. Marriage or concubinage was deemed suiScient ; and 
 even a contumacious wearing of an irregular habit. — Lindw. 122, 
 127, 128. 
 
 One serious doubt disturbed the canonists as to this sentence, 
 namely, bow many bishops ought to be present and assisting at 
 a degradation. It was agreed, that if the person degraded was a 
 bishop, twelve others should be present ; but if he was only a 
 jresbyter, then six should sufSoe. — Ayliffe, Par. 207. 
 
'512 SECURITY OF PUBLIC "WORSHIP. [ch. viiii 
 
 same circumstances as contempt of any other court. But 
 as an ecclesiastical court is not a court of record, it cannot 
 by its own powers carry out the punishment by imprison- 
 ment. Yet the same thing is done circuitously by the 
 Court of Chancery issuing the necessary process called a 
 writ de excommunicato capiendo on a certificate or significavit 
 of the ecclesiastical judge. And there is power afterwards 
 with consent of the other party to release the party from 
 imprisonment.' A peculiar practice exists in these courts, 
 which consists in adding a monition to a sentence for 
 any of the ordinary offences, and. when this monition is 
 disobeyed the court can, on affidavit and in a summary 
 way, without any fresh suit commenced, sentence the 
 contumacious person to suspension.^ 
 
 Penance, as a pwnishment. — Penance was the familiar 
 punishment imposed by the Church for most of the offences, 
 being founded on the same views of human nature and 
 conduct as the pillory and stocks for civil offences. The 
 chief difference was, that the civil court left the offender to 
 contempt, careless as to what his thoughts may be, whereas 
 the Church used penance as a mode of bringing about a 
 public display of penitence. There was, however, also a 
 private penance, consisting of contrition coupled with a 
 confession of the mouth. The ceremony was even treated 
 as a sacrament, and consisted in the offender putting on a 
 certain garment and making an open acknowledgment of 
 his fault in church ; but a more solemn form of it was per- 
 formed by the penitent going barefooted and clothed in 
 sackcloth. It was deemed part of the correct discipline 
 in early times not to re-admit penitents except in a public 
 manner ; and they were bound with solemn prayers and 
 tears to stand at the altar clothed in sackcloth, the 
 virtue of sackcloth being discovered by the first Council of 
 Toledo.3 And if the offence was very notorious and scan- 
 dalous, the absolution was given still more publicly in 
 presence of the whole people before the reading desk.* 
 The better class of Christians were once all agreed, that 
 the humiliation of a penitent must be sufficiently public. 
 
 1 53 Geo. III. c. 127 ; Hudson v Tooth, 2 Prob. Div. 125. 
 
 2 Martin v Mackonochie, 4 Q. B. D. 697. ' Concil. Tolet. I c 2 
 ■• Concil. Garth. III. c. 32. 
 
 s Cave's Prim. Chr. P. 3, c. 5. In China, the Buddhists atone for 
 
CH. VIII.] PUNISHMENT OF PENANCl 513 
 
 The Ecclesiastical Court all along claimed the privilege of 
 commuting such a punishment for a fine, or rather the 
 delinquent could claim this commutation as a right ; ' and 
 these commutations brought great profit to the Church 
 till the time of the Eeformation. But the scandal of 
 allowing money to be substituted for corporal penance in 
 case of notorious sins long haunted the Church and its 
 archbishops. In 1597 a solemn convocation of the Pro- 
 vince of Canterbiiry ordained, that it should only be allowed 
 with the bishop's leave, and the money was to be given to 
 the poor of the parish or other pious use.^ And the canons 
 of 1640 kept up the ancient prejudice against letting off 
 ofi^enders with a fine, unless the bishop was privy to it.' 
 Even so late as the time of Queen Anne, the convocation 
 made a regulation, that no commutation of penance should 
 be deemed valid without the express written consent of 
 the bishop ; and a faithful register was to be kept of what 
 was done with the money, the destination of which seems to 
 have been deemed a difficult problem.* The Ecclesiastical 
 Court still keeps up the form of reserving this punishment 
 in its armoury. But Lord StOwell, in 1804, somewhat 
 ostentatiously seized upon the excuse of the offender's age 
 and infirmity for remitting the sentence of solemn penance 
 for incest.^ In 1816 a party was ordered to perform 
 penance in the parish church during divine service, so that 
 most of the congregation might see and hear the same.^ 
 In another case, in 1828, the court did not go further than 
 enjoin a penance of asking forgiveness of the aggrieved 
 party in the vestry- room in presence of the clergyman 
 and churchwardens ; but the form of retractation was at 
 the same time compelled.'' In 1835 the judge took upon 
 himself to remit the penance altogether as part of the 
 sentence.* Courts of law in modern times have sometimes 
 been asked to discharge or otherwise protect defendants 
 against irregularities in the attempt to enforce this bar- 
 barous punishment of penance. In one case, in 1823, the 
 
 their sins by expending large sums in highway repairs.— 1 Gray's 
 China, 128. „., „,,„,, 
 
 1 9 Ed. II. c. 2. ^ AylifEe, Par. 414. ' Gibs. Cod. 1045. 
 
 * Gibs. 1046. '"■ Burgess v Burgess, 1 Hagg. Cons. 393. 
 
 6 Blackmore v Burder, 2 PhilHm. 332. ^ Courtail v Homfray, 
 
 2 Hagg. 1. ^ Chick «'Eamsda!e, 1 Curt. 36. 
 
 L L 
 
514 SECURITY OF PUBLIjb WORSHIP. [ch. vih. 
 
 defendant was ordered to perform " the usual penance," tnt 
 he was not told what that was, and ' the court of law re- 
 leased him from imprisonment on that account. • In 
 another case, however, in 1838, When he had been ordered 
 to go to the minister's house and make a confession, though 
 a common law court was asked to say this was illegal, and 
 the defendant said he would be a trespasser if he went into a 
 stranger's house, the process was left undisturbed, it being 
 chiefly a question of costs.^ And though no court will in 
 future be likely to repeat such a sentence, the power to do 
 so has never yet been expressly repfealed. 
 
 Peculiarities in offences of clergy. — In criminal suits 
 against the clergy one characteristic is found which did 
 not belong to ordinary prosecutions in civil courts, much 
 leas in criminal courts, which is this, that if a criminal is 
 found guilty he pays the whole costs, and if he is acquitted 
 or discharged then the promoter pays his costs, though the 
 matter has always been in the discretion of tlie court.^ 
 But a stUl greater peculiarity is, that the bishop has an 
 entire discretion as to allowing a clergyman to be prose- 
 cuted for any criminal offence under the Church Discipline 
 Act.* Another peculiarity of punishment for an ecclesiaS" 
 tical offence is, that as the punishment is deemed mostly 
 only a mode of inducing a penitent state of mind, any 
 ecclesiastical court has power at any time to order the 
 release of the prisoner ; and this again is only allowed on 
 condition that the other party consents.^ But the court 
 seems to insist, that the clerk shall not set up the excuse 
 that he did not know he was offending against the law, and 
 for no better reason than the maxim, that everybody is 
 bound to know the law ; moreover, the court seems not 
 satisfied with an acknowledgment, that the party will not 
 offend in future, but derives satisfaction from making the 
 offender humble himself This revocation of error must 
 be made expressly and unreservedly.^ 
 
 • R. V Maby, 3 D. & R. 570. = Kington v Hack, 7 A. & E 708 
 ^ Bennett v Bonaker, 3 Hagg. Eccl. 66 ; Burder v Hodgson 4 
 
 Notes of C. 492. * Julius v Bp. Oxford, H. L. 23 March! 1880 
 
 5 3 & 4 Vic. c. 93, § 1. 6 Proo.-Gen. v Stone, 1 Haffff. Cons 
 
 424. ^ Heath v Burder, 15 Moore, P. C. 1. 
 
CH. IX.] TOLERATION. 51-5 
 
 'CHAPTEE IX. 
 
 TOLEEATION AND DISSENTEES. 
 
 Intolerance is a law of nature. — If the law of nature 
 be a law, whicli existed as a system of positive rules at 
 some antecedent stage in the progress from barbarism, or 
 if it ever was a historic fact in any age, then the law of 
 intolerance is part of the law of nature.^ There is no 
 country or age recorded until the seventeenth, or rather 
 the eighteenth century, in which it was not deemed the 
 highest wisdom and the most divine justice, that he, who 
 had satisfied himself of the truth of his creed and form of 
 worship, and had power over others, should- insist on these 
 others making themselves equally satisfied also; and on their 
 professing that they could not. or would not do so, should 
 burn them alive or imprison them, or strip them of their 
 property, or deprive them of some means of happiness and 
 comfort, or at least make them in some way feel their 
 inferiority for not thinking and believing what they were 
 told. It scarcely occurred even to those who had the 
 earliest tincture of civilisation, that it was possible for two 
 human beings of different faiths to inhabit the same country 
 without fighting to the last extremity, till the heresy^of the 
 weaker party should be utterly extinguished. That two 
 persons could stand at arms' length, each resolute in denying 
 what the other affirmed, and each becoming the more con- 
 vinced^as the other^grew more confident that such conviction 
 was wrong, — that they could each go about his own business 
 without first coming to extremities about their opposing 
 creeds has been the discovery of a very recent age, and 
 attained only after centuries of experience and reflection. 
 
 1 As to the law of nature, see 1 Pat. Com. (Pers.) 99. 
 
 L L 2 
 
616 .SECURITY OF PUBLIC WORSHIP. [ch. ix. 
 
 All governors confessed to some inexplicable impulse 
 towards orthodoxy, as if some law of moral gravitation 
 drove themselves — and yet not without driving all others 
 also at the same time — towards one and the same central 
 goal. Intolerance or persecution is as clearly the natural 
 condition of barbarians as toleration is that of civilisa- 
 tion ; but the progress from the one to the other has been 
 tortuous, reluctant, and long draw* out. 
 
 The ancients on toleration. — The ancients were un- 
 sparing in their malignity towards heretics.' Plato said 
 that he, who would not submit to the established religion 
 must die or suffer stripes and bonds, or privation of citizen- 
 ship, or loss of property or exile ; ^ and Plato's doctrine 
 ruled the world till the end of the seventeenth century. 
 The Athenian law punished with death the introduction 
 of new deities.* Socrates was made to drink poison for 
 thiS' alleged crime, or at least for attacking the established 
 religion.* Anaxagoras was prosecuted by Cleon for impiety 
 in saying nothing more than that the sun was a fiery ball 
 of iron.^ Anacharsis was put to death by his fellow- 
 countrymen in Scythia, because, having been an intelligent 
 traveller, after returning home he performed rites to 
 foreign gods ; and the same fate befell Scyles for performing 
 rites to Bacchus and wearing Greek clothes.^ The works 
 of Protagoras were publicly burnt, and himself banished, 
 because he declared that he could not make out, whether 
 there were gods or not.^ Alcibiades was condemned and 
 his goods confiscated for making light of the ceremonies of 
 Ceres and Proserpine.^ The' Eomans also prohibited all 
 new gods- and new rites of worship.^ Suetonius says 
 Tiberius zealously checked those practising foreign rites, 
 and on that account Suetonius viewed him as a masterly 
 governor.^'* Paulus said such persons were banished or 
 
 1 The laws of Menu prohibited the people under the cruellest 
 penalties from acquiring knowledge. If any one were to listen to 
 the reading of the sacred books, burning oil was to be poured into 
 his ears ; and if he committed to memory what he heard he was to 
 be killed— Wikoff, Civ. 2. 
 
 2 Plato, Leg. b. x. 3 Butler's Rom. L. 168. •• Xen. Mem. b. 
 i. c. 1. 5 Diog. Laert. Anax. * Herod, b. iv. ' Diog Laert 
 139, §§ 51, 52. 8 piut. Alcib. 9 Cic. de Leg. b. ii. 8, 19 ; Livy, 
 iv. 30, XXV. 1. 10 Suet. Tib. § 36. 
 
CH. IX.] EAELY VIEWS OP TOLERATION. 517 
 
 put to death because they disturbed weaker minds.^ Trajan 
 thought that he who refused to sacrifice to the gods should 
 be punished with death. The Eomans also burnt magi- 
 cians alive, and those aiding them were crucified.^ The 
 Christians in their turn were, in the early centuries, punished 
 as atheists, or as sorcerers, or magicians, or as given to 
 superstition.* 
 
 The early Christians on toleration. — Bacon says that 
 the quarrels and divisions about religion were evils un- 
 known to the heathen ; the reason was, because th« religion 
 of the heathen consisted rather in rites and ceremonies 
 than in any constant belief.^ This may be true as regards 
 large bodies and sects as contrasted 'with isolated thinkers 
 here and there. The code of Leviticus as to idolaters seems 
 to have been assumed in the early ages of Christianity 
 without any question to be applicable to all ages and cir- 
 cumstances. And it was considered easily adapted to those 
 who were deemed tainted with heresies and dissent. The 
 early Church had an instinctive notion, that there ought to 
 be one faith only, and that variety of customs was a scandal.^ 
 And they all agreed that attendance at church ought to be 
 compulsory, and non-attendance to be punished.® Con- 
 stantine forbade heretics to meet in public -or private, to 
 perform acts of religion.^ And all heretical books were to 
 be burnt. The first edict against the Christians ordered 
 every one who refused to offer sacrifice to be burnt alive, 
 and that their churches should be demolished to the foun- 
 dations.* This persecution was carried out with racks and 
 scourges, with iron hooks and red-hot beds, and with all 
 the variety of tortures which fire and steel, savage beasts, 
 and more savage executioners, could inflict on the human 
 body.* In the fourth century the Council of Carthage had 
 arrived at the clear conclusion, that all schismatics, who 
 died outside of the Catholic Church, were doomed to eternal 
 fire.i" Here and there, but only fitfully, one of the fathers 
 showed an uncertain glimmering of the doctrine of tolera- 
 tion." It was not to be wondered, that, when the Church 
 
 1 Paul. Sent. 5,'23, 17. 2 ibid. 3 Buseb. b. iv. c. 16 ; 
 
 Suet. Nero ; Tacit. Ann. b. xv. c. 44. * Bac. Ess. * Conoil. 
 
 Tolet. IV. c. 2. 6 Bing. Chr. Antiq. b. xvi. c. 8. '' Euseb. Vit. 
 Const, iii. 64. » ^.d. 303, Mosh. Ch. Hist. ^ Gibbon, Rome, o. 16. 
 w 1 Palmer on Church, 13., ^^ Whitby on Heretics ; Jer. Taylor's 
 Lib. Proph. 
 
518 SECUEITY OF PUBLIC WORSHIP. [ch. ix. 
 
 succeeded to civil power, and obtained the ear of kings and 
 emperors, the principle should be acted on of the burning 
 of heretics, and at a later stage of varied penalties for 
 nonconformity and of disabilities of many kinds. The 
 Theodosian code by means of penalties and disabilities 
 attacked those who worshipped with pagan rites in temples 
 their false gods.' The great champion of the doctrine of 
 pursuing heretics with fire and sword, and for thereby 
 propagating Church doctrines, was St. Augustin, who is 
 generally understood to be the chief instructor of those 
 who considered it the duty of civil governments to compel 
 citizens to become good churchmen. Persecution and in- 
 tolerance were soon systematically enforced with unhesi- 
 tating faith as the only true mode of governing men. Near 
 the close of the fourth century bishops began publicly to 
 preside at the execution of heretics.^ And they long felt 
 it a point of duty and honour to deliver up heretics to be 
 punished by the civil power. And soon after the Inquisi- 
 tion was established in 1208 the Fourth Council of the 
 Lateran enjoined all rulers to swear a public oath, that they 
 would labour earnestly to exterminate- heresy.® And the 
 Bull of Innocent III. threatened with excommunication 
 any prince, who failed in this duty. The brutality of 'this 
 spirit was illustrated by the Holy Inquisition in 1568, 
 which sentenced three millions of men, women, and chil- 
 dren, of the Netherlands to the scaffold.* And so entirely 
 was the spirit of persecution part of the daily life of all 
 forms of religion, that when Protestants had the power 
 they were equally unconscious of the folly and criminality 
 of exterminating their own heretics, forgetful of the situa- 
 tion thfJy themselves had once filled. The right and duty 
 of the civil magistrate to punish lieresy was an accepted 
 axiom of most of the Protestant confessions. Luther, 
 Calvin, Beza, and Knox, all treated it as an elementary 
 axiom of faith.' When Calvin burned Servetus for his 
 opinions concerning the Trinity, the leading Eeformers 
 
 1 Theod. Code de Templis. 2 3 MilmaD, Hist. Christ. 60. 
 
 ' It was singular that the laws of Zenghis Khan allowed perfect 
 toleration: a.d. 1206-27.— (?i66on's Eome, c. 64. 
 
 ^ 2 Motley's Dutch Rep-. 155. = deal's Purit. 147 ; 1 Palmer on 
 the Church, 380 ; C. Lewis, Infl. Auth. 292 ; 2 Hallam, Lit. Eur. c. i. 
 § 29 ; 3 ibid. iii. ; 1 Hallam, Const. H. 182. 
 
CH. IX.] STATUTES OP INTOLERANCE. 519 
 
 praised his admirable wisdom and zeal..' Zuinglius alone 
 seemed to repudiate this favourite dogma of relentless per- 
 secution towards the unbelieving.^ The Treaty of Westpha- 
 lia, after the Thirty Years' War, at last seemed to embody 
 the conviction, that it was scarcely the business of govern- 
 ments to set up one form of religion. And it is usually 
 confessed, that the received doctrine in Christian Europe, 
 till the age of the Eeformation, treated religious error as a 
 crime and heresy to be punished like homicide and theft. 
 Conformity — exile, or death, was the alternative.^ 
 
 English statutes of intolerance before William III. 
 — Before 1539 the bishops and clergy by means of excom- 
 munications and other terrors sufficiently potent brought 
 about a kind of uniformity in faith and practice, like their 
 neighbours throughout the world. In that year, after 
 Henry VIII. had consulted the ripest wisdom of convoca- 
 tion, the Act of the Six Articles, called the Bloody Statute, 
 enacted, that those who did hot believe certain doctrines 
 laid down, of which transubstantiation, celibacy of the 
 clergy, and auricular confession, were three, would be treated 
 as heretics ; and it subjected to imprisonment and fine all 
 those who refused or abstained from communion ; and a 
 second offence was declared felony.* Various statutes of 
 Edward VI. and Elizabeth, stiU continuing to deal with 
 the wicked and dangerous practice of seditious sectaries, 
 ended by enacting, that those above the age of sixteen who 
 abstained for a month from attending some church to hear 
 divine service, or who persuaded others not to attend or 
 receive the communion, or who by enticement or allure- 
 ments,- or otherwise, were present at a conventicle under 
 colour or pretence of any exercise of religion, should, after 
 conviction, be committed to prison, there to remain till 
 they made open submission of their conformity, and if 
 they were obstinate for three months more they were to 
 abjure the realm, otherwise to be deemed felons without 
 benefit of clergy.* Under the Act of James I. any bishop 
 or two justices might call upon aliy person above eighteen 
 whom they met in the street, or who was passing through 
 the county and unknown, to state on oath, whether he was 
 
 1 Mackenzie's Calvin, 79. ^ i Lecky, Rat. 420. ^ C. Lewia, 
 Infl. Auth. 292. * 31 Hen. VIII. c. 14. 6 35 Eliz. c. 1. 
 
620 SECURITY OP PUBLIC WORSHIP. [ch. ix. 
 
 a recusant, i. e. neglected to repair to church, and might 
 commit him to prison till the assizes or quarter sessions ; 
 and he was then tried, and if he still refused to answer or 
 to take an oath that he detested the pope and other things, 
 he incurred a premunire, that is to say, forfeited all his 
 property, and was liable to imprisonment for life. And to 
 keep or harbour one who neglected to go to church was a 
 ground of forfeiture of 20/.' 
 
 The Corporation Act of 1661 made it necessary, that all 
 who bore offices of magistracy or places of trust in a cor- 
 poration should first take three oaths, and if within a year 
 before being elected or chosen they had not taken the 
 sacrament according to the rites of the Church of England, 
 their election was to be void.^ 
 
 The Conventicle Act of 1664, passed at the instance of 
 Lord Clarendon to stop the growing and dangerous prac- 
 tices of seditious sectaries, made every meeting of more 
 than five persons (besides the famUy of the house) held for 
 religious purposes, and net in accordance with the liturgy 
 of the Church of England, to be a seditious and unlawful 
 conventicle, and any person taking part in it was punish- 
 able by fine or imprisonment, and on a third offence by 
 transportation for seven years to his Majesty's plantations. 
 And if the sheriff did not see them, or at least cause them 
 
 1 3 Jas. I. c. 4 ; E. « Crook, 6 St. Tr. 202 ; E. ■;; Fell, ibid. 634. This 
 statute was expressly repealed in 1846, 9 & 10 Vic. c. 69, § 1. — In 1660 
 Bunyan was arrested and imprisoned for seven weeks, then tried on 
 an indictment at Bedford Quarter Sessions, charging hiin with 
 devilishly and perniciously abstaining from coming to church to 
 hear divine service, and with being a common upholder of several 
 unlawful meetings and conventicles, to the great disturbance and 
 distraction of the good subjects of this kingdom. He was sentenced 
 to prison for three months, and if he did not. then attend he was to 
 be banished. The sentence of banishment was never execwted, but 
 he was detained in prison from sessions to sessions. At last he was 
 released by the Bishop of Lincoln on taking two bail that he would 
 conform in half a year. 
 
 So Baxter, after being in prison six months,, was released owing to 
 a flaw in the commitnaent. — 1 Baxter, Works, 105. 
 
 2 13 Ch. II. St. 2, c. 1. — This Act was aimed at Nonconformists, 
 whose chief strength lay in towns. After 1715 if the unqualified 
 person entered into office -without the objection being taken he must 
 be amoved within six months, in order to void the election. — 6 Ueo. 
 I. c. 4. No penalty, however, was incurred beyond avoiding the 
 election. 
 
CH. IX.] TEST AND CORPORATION ACTS. 521 
 
 to be actually - embarked for that destination, he for- 
 feited 40Z. And at any moment the justices might break 
 open the house where such conventicle was hpld.' A 
 little later even to meet in a field or place was subject to 
 the same penalty, and to preach there was to incur a 
 penalty of 201. And every constable who did not give 
 information of such meeting incurred a fine of 5U More- 
 over, in 1665, any person who preached in conventicles or 
 meetings, who came within five miles of a town which sent 
 members to Parlianaent, or of a parish or place where he 
 had been once parson, and who did not take an oath ab- 
 horring the traitorous position of taking up arms against 
 his Majesty, and binding him not to endeavour any altera- 
 tion of government in Church or State, incurred a penalty 
 oi4:0l.' 
 
 In 1673, by the Test Act, all persons holding civil or 
 military offices or places of trust under the Crown must 
 take certain oaths, and also the sacrament according to the 
 usage of the Church of England, within six months after 
 admission to the office.* And for neglect the office was 
 avoided, and also penalties incurred; but a few inferior 
 offices were expressly excepted. The doctrine of the law 
 before the Toleration Act, and indeed tUl 1767, was, that 
 it was one's own fault, if he could not take the sacrament, 
 and his refusal or neglect was no excuse or defence.^ The 
 court said, that to plead that kind of excuse was as idle as 
 for a man to plead that lie was a fool, or when he was 
 excommunicated to plead, that that sentence disabled him 
 instead of making it his business to remove the sentence. 
 Thus all dissenters were treated as if they had it in their 
 power to avoid the penalty by taking the sacrament, and 
 were not allowed to set up their scruples as an excuse. 
 
 The Toleration Act of 1688.— During the century 
 preceding 1688, divines and philosophers had begun more 
 and more to reflect on the tyranny, absurdity, and impo- 
 tence of all these statutes of intolerance — a result which 
 was said to be greatly facilitated by the opportunities each 
 rival and discordant sect of Christians had had of 
 oppressing each other alternately. By the invaluable 
 
 1 16 Ch. II. c. 4. 2 A.D. 1670, 22 Ch. II. c. 1. 3 17 Qh. II. c. 2. 
 i 25 Ch. il c. 2. * (1694) R. ■;; Larwood, 1 L. Raym. 29 ; 
 
 4 Mod. 269. 
 
622 SECURITY OP PUBLIC WORSHIP. [oh. ix. 
 
 experience long acquired in watching others doing to 
 them what they were ready to do to others when they had 
 the power, yet which they did not like to submit to 
 themselves, the minds of leading men were opened 
 and their eyes purged. Historians have endeavoured to 
 discover who was the first leader of bodies of men who 
 became possessed of the cardinal principle of toleration, 
 which, like the discovery of a moral law of gravitation, ex- 
 plained phenomena, taught the idleness of fighting against 
 the invincible, and led on the art of agreeing to differ. ' 
 
 The Toleration Act of 1688, reciting the Acts of Eliza- 
 beth, James I. and Charles II., relating to penalties for not 
 attending church, or for lecturing and preaching without 
 signing the Thirty-nine Articles, enacted that the Acts should 
 not extend to persons dissenting from the Church of Eng- 
 land, provided they took certain oaths and declarations as 
 to the Trinity, the Scriptures, supremacy and allegiance, 
 and on such oaths being taken they should be exempted 
 from th6 pains, penalties, or forfeitures. And it was 
 specially declared, that, if any assembly of dissenters should 
 be held with the doors bolted, they should not have the 
 benefit of the Act. Dissenters who had scruples about 
 taking the oaths for the compulsory offices of constables, 
 churchwardens, and overseers, might now serve the same 
 by deputy. And those " pretended " dissenting clergynien, 
 required to subscribe the articles of religion, might omit 
 
 ' Historians have differed as to when Dissent or Nonconformity 
 took possession of large bodies of men as a settled faith. Some say 
 those who objected to transubstantiation under the Bloody Statute 
 of Henry VIII. were the first. Others go back to the Lollards or to 
 the Martyrs in the early centuries. Others point to the Puritans 
 under Elizabeth. 
 
 Mackintosh thought Sir H. Vane had obtained the earliest insight 
 into the new light of toleration ; others have pointed to Queen 
 Elizabeth — 1 Buckle, Misc. W. 88, 92; others to Owen— Oraie's 
 Life of Owen, 102 ; others to William III. — Motley's Dutch Rep. 
 Cromwell and Milton seemed to concede toleration to all but papists. 
 —Whiteloclce, Mem. 499, 576, 614 ; 4 Neal's Puritans, 28, 138, 338 ; 
 Milton, Civ. Pow. Eel. Caus. Chilling-worth was the' great writer 
 whose views were taken up and cii'culated by Hales, Owen, Jeremy 
 Taylor, Burnet, Tillotson, Locke and Temple.— 1 iacfcZe, Civ. 323. 
 Even Locke and William III. and Lord Mansfield seemed to except 
 Roman Catholics from the general rule of toleration, owing to their 
 taint about the Papal supremacy and like doctrines. Hallam thought 
 there ha,d been no real toleration till the reign of George III. 
 
CH. IX.] THE TOLERATION ACT. .523 
 
 three of them. Some special exemptions were allowed to 
 Baptists and Quakers. And finally, a penalty was imposed 
 on all disturhers of any congregation or assembly for 
 religious ■worship. But no such congregation was to be 
 permitted, unless it was certified to the bishop or Quarter 
 Sessions and registered. ' A place for religious worship 
 under this Act was held to mean not a private house where 
 family worship was heldf but a place set apart for large 
 numbers in a public manner.^ As regards the bolting of ' 
 doors, even after a century had elapsed, namely, when the 
 laws of dissenting chapels were revised in 1812, it was still 
 made punishable with a fine of 201. for any person to preach 
 with the doors bolted or barred so as to prevent persons 
 entering.* But at the same time it was decided by the 
 courts, that the certificate of registration of a place of religious 
 worship, or meeting-house, could be had for the asking, and 
 enforced by mandaimos, as the official had no discretion 
 whatever to refuse it.* This law, protecting dissenting 
 chapels of every kind, has been carried out niore sys- 
 tematically and comprehensively in later times. The 
 enactment as to wilfully and maliciously, or contempt- 
 uously disquieting or disturbing any meeting, assembly, or 
 congregation of persons assembled for religious worship, 
 or the disturbing, molesting, or menacing any preacher, 
 teacher, or person ofSciating, was extended to all meetings, 
 assemblies, or congregations whatsover of persons lawfully 
 assembled for religious worship, and their preachers, 
 teachers,'or persons, officiating.* And though places regu- 
 larly kept for religioms worship must still be certified and 
 registered with the bishop or archdeacon, or at 'Quarter 
 
 1 1 W. & M. St. 1 c. 18. " The Toleration Act is very imperfect. 
 It is based on the theory that persecution is the general rule and 
 toleration is the exception. The freedom was capricious. The 
 Quaker had the full benefit of the Act; but not those who deny 
 some of the articles. It removed a vast mass of evil without 
 shocking a vast mass of prejudice. The English in 1689 were by no 
 means disposed to admit the doctrine, that religious error ought to 
 be left unpunished."— Maca(u%'« Hist. c. 11. Mrs. Barbauld seems 
 entitled to the credit of saying, that toleration in worshipping God 
 was the same thing as toleration in using our limbs.— i/rs. Barb. 
 Address 1790. 
 
 2 2 Atk 499. 3 52 Geo. III. o. 155, § 11. ■* Green v Pope, 
 1 L. Raym. 125; R. w Derbyshire, 1 W. Bl. 606; 4 Burr. 1991. 
 5 9 & I'O Vic. o. 69, § 4. 
 
524 SECURITY OP PUBLIC WORSHIP. [ch. ix. 
 
 Sessions, for which a payment of 2s. &d. is the fee (no 
 discretion being allowed to the officer to refuse such regis- 
 tration)/ still if the place is only occasionally used for 
 religious worship, or if the place is a private dwelling, or 
 the premises belonging thereto, then no registration is 
 needed and no penalty is incurred.^ ' 
 
 Progress of legislative toleration after William III. 
 — The crude Toleration Act of William III. was little 
 more than a beginning of a recognition of the actual 
 existence of such persons as dissenters and their liberty 
 of worship in conventicles or chapels, while a vast area 
 of .intolerance as virulent as ever was left untouched, 
 more especially that en;braced in the Test and Corpo- 
 ration Acts, and what related to Eoman Catholics. In 
 dealing with all nonconformists a broad distinction was 
 long kept up between Eoman Catholic and the Protestant 
 dissenters, the former being persecuted under a separate 
 series of statutes much m.ore severely than their fellow 
 recusants. 
 
 One retrograde step occurred in 1719, when mayors, 
 bailiffs, or magistrates were prohibited from attending a 
 dissenting place of worship in their official robes, the penalty 
 being the loss of their office.^ Another retrograde step 
 taken, though apparently without any intention to aggrieve 
 dissenters, was the statute of 1753, which, while reforming 
 the marriage laws, made' it compulsory for all persons, 
 including dissenters, to enter into the marriage contract 
 only by attending the parish church and according to the 
 English Church service. * 
 
 The first statute of relief of any importance after the 
 statute of 1688 was that of 1779, when it was declared 
 in favour of those who scrupled to subscribe the Thirty- 
 nine Articles, which all dissenting preachers and lecturers, 
 and teachers of youth, were bound to do, that they might 
 escape doing so by subscribing another oath set forth in 
 that Act, which oath, among other things, required that 
 the signatory was a " Christian and Protestant, and believed 
 that the Scriptures contained the revealed will of God."^ 
 Another still more important Act of 1812 wholly repealed 
 the Conventicle and Five Mile Acts already mentioned. 
 
 1 52 Geo. III. 0. 155. ' 2 18 & 19 Vic. c. 88. 3 5 Geo I c 4 
 * 26 Geo. II. 0. 33. 5 19 (jeo_ ni. c. 44. ' " ' 
 
(?H. IX.] LEGISLATIVE TOLERATION. 525 
 
 Still it was at the same time declared, that no religious 
 assembly of Protestants exceeding twenty in number 
 should meet without the place of meeting being first 
 registered and certified with the bishop or Quarter Ses- 
 sions, under a penalty of 201} But if so registered, then the 
 dissenters and, their clergy would escape all penalties 
 mentioned in the Toleration Act of 1688. 
 
 Moreover, before the passing of either of these two last 
 relief Acts a practice began, about 1729, for the legislature 
 to pass indemnity Acts to protect those who had neglected 
 to qualify for offices, and aliowing_ further time so as to coin- 
 ply with the Acts. A regular series of these annual Acts 
 began in 1745, having been occasional before that time,^ 
 and they continued to 1829. These indemnity Acts may 
 be viewed as an unconscious homage to the advancing 
 spirit of toleration. 
 
 The courts of law, after the Toleration Act, also cleared 
 up some points left somewhat obscure by the numerous 
 and confused statutes heaped one upon another relating to 
 oaths and penalties. A great relief was declared to have 
 been obtained by nonconformists by a decision of Holt, 
 C.J., in 1704, when it was sustained as a valid excuse for 
 not attending the parish church, as ordered by the statutes 
 of Elizabeth, that the defendant regularly attended some 
 other church of his own, even though he did not take the 
 oaths of the Toleration Act.^ But a still more important 
 advance was made by a decision of Lord Mansfield in 
 1767. The Oity of London at one time took advantage of 
 the Corporation Act of 1661 to raise money by appointing 
 dissenters to the office of sheriff and then fining them 
 because they could not take the requisite oaths, and so 
 could not serve the office.* A bye-law of the Corporation 
 made in 1748 had imposed a fine of 600^. on any " able 
 and fit person " who, after being nominated, refused to 
 serve. This being disputed by a dissenter named Evans 
 
 1 52 Geo. III. c. 155. ^ ig Qgo. IL c. 11. 
 
 3 Britain v Standish, Oas. Holt, 141. 
 
 * It .was said, that these accumulated fines, exacted in the City 
 of London from persons refusing to qualify for the office of 
 sherifE, were spent in building the new Mansion House. In six 
 years the fines amounted to 15,000Z. The house was thence 
 sometimes called the Palace of Intolerance. — 18 Pari. Deb. (2) 1003. 
 
526 SECURITY OF PUBLIC WOESHIP. [ch. tx. 
 
 as an illegal bye-law in a cause which had been taken by 
 writ of error to the House of Lords, after three solemn 
 arguments, JiOrd Mansfield laid down the law, that the 
 Toleration Act rendered that which before was illegal now 
 legal. That the dissenters' way of worship was permitted 
 and allowed by that Act ; that it was not only exempted 
 from punishment but rendered innocent and lawful. That, 
 in fact, it was established, and it was put under the protec- 
 tion, and was not merely under the connivance of the law. 
 That therefore a dissenter, when prosecuted for the fine, was 
 entitled to plead as a defence that he was a dissenter and 
 had not taken the sacrament, and so was not " fit and able " 
 to serve the office. And Lord Mansfield further observed 
 that persecution, or attempts to force conscience, will never 
 produce conviction, and are only calculated to make hypo- 
 crites or martyrs.^ But the final repeal of the Test and 
 Corporation Acts, after 160 years' experience, was accom- 
 plished in 1828 ; and there was then an end of excluding 
 dissenters from reaching the offices to which these oaths and 
 sacraments had been made conditions precedent, and which 
 barred their entrance to those places of trust to which all 
 honest citizens naturally aspire.^ And finally, in 1846, 
 every penalty whatsoever for recusancy, or non-attendance 
 at church, or nonconformity, not already repealed, was 
 wholly repealed thenceforth.^ And while the Universities of 
 Oxford and Cambridge, and Durham, had been opened to 
 dissenters [so far as taking degrees, in 1854 and 1855, this 
 was carried further in 1871, so as to enable them to share 
 in all the rights and privileges of graduates, and as to 
 holding offices which other laymen may hold.* And the 
 
 1 Harrison v Evans, 16 Pari. Hist. 325 ; 3 Bro. P. C. 465. 
 
 And yet L. Mansfield, in another case thirteen years later, 
 seemed to make an exception in regard to Roman Catholics. 
 " Where the safety of the state is not concerned, my own opinion is, 
 that men should not be punished for mere matter of conscience 
 and barely worshipping God in their own way ; but where, what 
 is alleged as matter of conscience, is dangerous or prejudicial to 
 the state, which is the case of Popery, the safety of the state is 
 the supreme law, and an erroneous religion, so far as upon princi- 
 ples of sound policy that safety requires, ought to be restrained 
 and prohibited."— E. v Lord G. Gordon, 21 St. Tr. 646. 
 
 2 9 Geo. IV. c. 17. ^ g & iq yjc. c. 59. " 17 & 18 Vic 
 c. 81 ; 18 & 19 Vic. c. 88 ; 34 & 35 Vic. c. 26. 
 
CH. IX.] PUBLIC OPINION ON TOLERATION. 527 
 
 advantages of public and endowed schools were equally 
 extended to them in 1868 and 1869.^ 
 
 Progress of public opinion after Toleration Act. 
 — From and after the period of the Eevolution, from time 
 to time champions of toleration arose, first among great 
 writers, and at a later date in Parliament itself, who 
 saw the futility of the Statutes of Intolerance. Locke, 
 following Chillingworth, had urged that " All the life and 
 power of religion consists in the inward persuasion of the 
 mind; and it is impossible for the understanding to be 
 compelled to the belief of anything by the force of the 
 magistrate's power." ^ He also taught, that " every man has 
 the care of his own eternal happiness, the attainment 
 whereof can neither be facilitated by another man's in- 
 dustry, nor the loss of it turn to another man's prejudice, 
 nor the hope of it be forced from him by any external 
 violence."* It is true that leading statesmen, a century 
 later, adhered to the older opinions. Lord North, in 1790, 
 still represented, as Blaekstone himself had also done a 
 little before that time, that the Test Act was the great 
 hulwark of the Constitution; while Pitt urged, that to 
 allow dissenters to hold office in the civil service or the 
 army, or in corporations, was the same thing as to allow 
 them to subvert the establishment of the country." On 
 the other hand Beaufoy, at the same date, urged that the 
 Test Act had " degraded the sacrament into a qualification 
 for gauging beer-barrels and soap-tubs, and for seizing 
 smuggled beer." And Locke himself had long before 
 observed, that the sacrament was required to be taken as a 
 qualification to get alehouse licences.^ Fox also urged 
 tiiat " Intolerance proceeded on the grand error, that one 
 man could judge better of the religious opinions of another 
 than that other himself could do ; and all this was deduced 
 merely from the supposed tendency and not from any 
 actual conduct.''^ He contended that " it was not in the 
 power of man to surrender his opinion, and therefore the 
 society which demanded him to make this sacrifice de- 
 manded an impossibility. What, then, did this lead to ? 
 
 1 31 & 32 Vic. cc. 32, 118 ; 32 & 33 Vic. cc. 66, 58, and amending 
 acts. 2 Letters, Toler. » Ibid. ^ 28 Pari. Hist. 409. 
 
 5 6 Locke's Wks. 372. « Fox, C.J., 28 Pari. Hist. 388, 1366 ; 
 
 29 Pari. Hiat. 1376. 
 
528 SECURITY OF PUBLIC WORSHIP. [ch. ix. 
 
 That 110 man shall be deprived of any part of his liberty 
 ■with respect to his opinions, unless his actions, derived 
 from such opinions are clearly prejudicial to the state. In 
 this 'Country we were governed by King, Lords, and Com- 
 mons. No man would contend that any of these powers 
 was infallible. Then _why should the members of the 
 Established Church proceed as if they were infallible ? for 
 so they did, if they claimed exclusive privileges and en- 
 forced penalties on those who differed from them. An 
 establishment was only to be maintained on the principle 
 of its being agreeable to the opinion of the majority of the 
 people, and not surely upon the slightest pretence of in- 
 fallibility. To refuse to any man any civil right and an 
 equal participation of civU advantages on account of his 
 religious opinions was in itself persecution. "What was 
 the principle of persecution? The condemnation of a 
 man before he had committed a breach of the law."^ In 
 1812 Lord Grenville told his fellow peers, that it " is the 
 inveterate habit of intolerance to impute to the followers 
 of every rival sect opinions which they disclaim, aijd to 
 deduce from these tenets conclusions which they utterly 
 deny. Justice and charity, on the contrary, give to others 
 the same liberty which we claim for ourselves — the liberty 
 to form our opinions by the light of our own reason, to adopt, 
 to investigate, to interpret for ourselves the tenets which 
 we embrace, and to be credited in our exposition of them 
 until our own practice shall have proved its insincerity."^ 
 Canning, in 1812, also said in the House of Commons, " I 
 assume, as a general rule, that citizens of the same state, 
 subjects living under the same government, are entitled, 
 primd facie, to equal political rights and privileges. And 
 it is also desirable to create and to maintain the strictest 
 union, the most perfect identity of interest and of feeling 
 amongst all the members of the same community."^ And 
 finally, in 1828, Lord J. Eussell urged, that " the con- 
 stitution of this country is intended to give to every man 
 those rewards, that honour, that estimation, to which his 
 character and talent entitle him."* 
 
 1 29 Pari. Hist. 1374. 2 22 Pari. Deb. 668. 3 23 Pkrl. Deb. 635 
 * 95 Pari. Deb. (3) 1260. "The whole of the penal statutes 
 
 against dissenters went upon one unfortunate and absurd mistake. 
 
 Our ancestors, whom (I know not why) we are in the habit of calling 
 
OH. IX.] ■ DISSENTERS' TRUST DEEDS. 529 
 
 Dissenters' trust property and mode of preserving 
 
 it. — Since the passing of the Toleration Act, charitable 
 trusts for. promoting the religious opinions of Protestant 
 dissenters, such as maintaining chapels, schools, and 
 ministers of a certain creed, have been held as valid as 
 any other trusts.^ And though it was once deemed illegal 
 to devote property to the purpose of promoting doctrines 
 contrary to the established religion, persons professing 
 such doctrines might be the subjects of charitable bequests.^ 
 
 When a chapel is erected with or without endowment, 
 the mode of transmitting the property to the successive 
 preachers and their congregations is by a deed vesting the 
 legal estate in trustees with a power of renewing their 
 number on vacancies caused by death, and upon trust to 
 permit the preacher and congregation for the time being 
 to have the use and enjoyment of it. "When the trust is 
 expressed to be in favour of any class of dissenters, the 
 courts will support and carry out such trust. When the 
 words and objects are very vague, as for example " the 
 worship of God" or "for godly learning," it used to be 
 iield that the established form of religion will be preferred. 
 And in like manner where the trustees of a religious 
 charity were to be " honest persons of the parish " the 
 court has held, that dissenters should not be elected.^ And 
 yet, except it be to avoid uncertainty, it is difficxilt now to 
 see, why this exclusiveness should any longer be acted on, 
 since all religio^ns, not involving a criminal offence or breach 
 of the peace, are now equally established. 
 
 Mode of interpreting dissenters' trust deeds. — When 
 the words of the trust are vague, inquiries into collateral 
 
 wise, had considered, that helief was an act of the will and not of 
 the understanding, tjpon that false assumption they had gone on 
 adding penalty to penalty and statute to statute in the vain en- 
 deavour to control, hy fear and by force, what was only to be ef- 
 fected by persua8ion."^i. J. Russell, H.C. 1828, 18 Pari. Deb. (2nd) 
 696. " And who were the individuals exposed to these acts ? The 
 ofiBcers of the army and navy, commissioned and non-commissioned, 
 the officers of the customs and excise, and all in the service of the 
 chartered companies of whatever kind or description." — Ibid. 
 
 1 Att.-Gen.' v Pearson, 3 Meriv. 353. ^ Da Costa v De Pas, 
 
 2 Swanst. 487 n. ; Strauss v Goldsmid, 8 Sim. 614. ^ Baker v 
 
 . Lee, 8 li. L. C. 495. In this case four law peers were equally 
 divided. 
 
 M M 
 
530 SECURITY OF PUBLIC WORSHIP. [ch. ix. 
 
 matters are often necessary, in order to discover what 
 class of dissenters was intended to be benefited. In these 
 inquiries the instrument declaring the trust is always the 
 first matter to be considered, and its interpretation. And 
 if that is doubtful, then the usage of the congregation 
 that has taken place under it is the best guide to the 
 true meaning. In the case of Lady Hewley's charities, 
 she had executed deeds in 1704 and 1707, soon after 
 the Toleration Act, and she described the objects of 
 the trust to be " godly preachers for the time being of 
 Christ's Holy Gospel"; and she ordered none to be ad- 
 mitted, but such as were of "the Protestant religion and 
 able to repeat the Lord's Prayer, the Creed, ten Command- 
 ments, and Bowles' Catechism." At those dates the 
 Unitarian religion was not within the protection of the 
 Toleration Act of 1688, though it was brought within it 
 a century later, namely, in 1813. In course of time the 
 Hewley charity estates became vested in trustees of whom 
 the majority were Unitarians, and the rents were applied 
 for the benefit of 237 chapels. Some thirty-eight of these 
 had at first been Presbyterian congregations, but they 
 afterwards became Unitarians, and these Unitarians were 
 assisted for about seventy years. In a suit to displace the 
 Unitarians, the House of Lords held, that neither Unitarians 
 nor members of the Church of England but Protestant 
 dissenters only were entitled to the benefit of those charities, 
 and all the Unitarian members were accordingly removed 
 from the office of trustees. That result was arrived at, not 
 because Unitarians since 1813 were incapable of being 
 objects of trust as much as any other religious body, but 
 because the extensive evidence brought to bear on the 
 construction of the Hewley deeds showed, that Lady 
 Hewley was a member of a Trinitarian congregation, and 
 the words she used were at the time commonly applied 
 to denote the Presbyterians, Independents, and Baptists, 
 all of whom were believers in the doctrine of the Trinity .i 
 And thus it was, that the Unitarians were excluded. But 
 owing to the hardship of interfering with so long a course 
 of usage, a statute soon afterwards passed in 1844, which 
 regulated in future the construction of these foundations. 
 
 ' Shore v "Wilson, 9 CI. & F. 35j. 
 
CH. IX. J DISSENTING MINISTERS. 531 
 
 It enacted, that all such deeds shall be construed as if 
 the Toleration Acts from 1688 to 1807 had been in force 
 at the founding of the meeting-houses, schools, and other, 
 charitable foundations in question. When no particular 
 religious doctrines or opinions or modes of worship are 
 mentioned expressly, or by reference in the original deeds, 
 then the usage for the twenty-five years immediately pre- 
 ceding the suit is to be taken as conclusive evidence of 
 the meaning, and as to the title to any meeting-house, 
 burial-ground, Sunday or day-school, or ministers house. 
 But whenever thfe deed or will states expressly or by 
 reference the particular religious doctrines or opinions, 
 then those are to be followed, notwithstanding any contrary 
 usage. ^ 
 
 Dissenting congregations and their pastors. — The 
 minister of a meeting-house is only a tenant at will of 
 the trustees, who can therefore at any moment terminate 
 his tenancy by demand of possession, and even without 
 notice. And he cannot claim to hold his ofSee foi? life, 
 even though no offence be proved.^ U'evertheless care 
 will be taken, that a minister is not removed without 
 the rules of the religious body or coHgregation being 
 complied with. If, for example, he cannot be removed 
 legally, except by a decision of the congregation regu- 
 larly convened at a meeting, the charges intended to be 
 brought against him must be specified in the notice calling 
 the meeting, and the minister himself must be apprised of 
 the nature of the charges ; and all the usual forms must be 
 complied with, for this is only in accordance with the 
 ordinary principles of justice.^ Yet when a majority of 
 the congregation has in regular form passed a resolution 
 for the removal of their pastor, it is the business of the 
 courts of law to give effect to it, and prevent his officiating 
 against their will.* The court cannot assume, that a con- 
 gregation so expressing their-wish act capriciously; and 
 there, can be no remedy if they do so. In one case a 
 minority of the trustees of a Baptist chapel called a meet- 
 ing of the congregation, but not according to the ordinances 
 of their society, and elected a, pastor, and the court ordered 
 
 1 7 & 8 Vic. c. 45. 2 Cooper v Gordon, L. B., 8 Eq. 249. 
 
 3 Dean v Benneit, L. R., 6;Ch. 489. * Cooper v Gordon, L. R., 
 Eq. 249. 
 
 M M 2 
 
632 SECDEITY OF PUBLIC WORSHIP. [en. ix." 
 
 them to surrender the chapel to the rest of the trustees, 
 who were to take the proper steps to re-elect a pastor in 
 regular course.^ Sometimes the rules of the religious 
 body with wliich a congregation is connected throw light 
 upon the regular course of proceeding in disputes about 
 appointing a pastor. And whenever the deed of endow- 
 ment neither provides for the succession of trustees nor 
 the- election of a minister, the court will find out a mode 
 of supplying both these wants. Thus in the case of a 
 congregation in London founded in 1769 calling themselves 
 "the Presbytery of the Scotch Church- in London" and 
 conforming to the doctrine and practice of the Church of 
 Scotland, the court said, that those persons, who, though 
 seatholders, did not take the sacrament there, had no right 
 to vote in the election of a minister, because the members 
 who communicated according to the Scotch practice 
 constituted the congregation on such occasions. ^ 
 
 Dissenting congregations changing their creed or 
 wiode of worship. — Courts of law will protect all dissent- 
 ing congregations in the enforcement of their pe.culiar 
 rules and practices, and treat them with the same respect 
 as all voluntary societies are treated, which prefer to 
 manage their own affairs in their own way. There is no 
 authority in the court of law to take cognizance of the 
 rules of a voluntary society entered into merely for 
 the regulation of its own affairs, save only so far as it 
 may be necessary, that they shoixld do so for the due 
 disposal or administration of property. If funds are 
 settled, to be disposed of amongst members of a voluntary 
 association according to their rules and regulations, then 
 the court must necessarily take cognizance of these rules 
 and regulations for the purpose of satisfying itself who is 
 entitled to the funds. So if the rules of a religious 
 association prescribe who shall occupy a house, or to have 
 the use of a chapel or other building. On this principle, 
 it is, that the courts have administered funds held in trust 
 for all dissenting bodies. There is no direct power in the 
 court to decide whether A or B holds a particular status 
 according to the rules of a voluntary association. But if 
 a fund held in trust has to be paid over to the person who, 
 
 1 Perrv v Shipway, 4 De G. & J. 353. * Leslie ii Birnie, 
 
 2 Euss. 114. 
 
CH. IX.] DISSENTERS CHANGING CKEED. 533 
 
 according to the rules of the society, fills that character, 
 then the court must makedtself master of the questions 
 necessary to enable it to decide, whether A or B is- the 
 party so entitled. The only remedy which the member of 
 a voluntary association has when he is dissatisfied with 
 the proceedings of the body with which he is connected 
 is to withdraw from it. If, connected with any office in a 
 voluntary association, there is the right to the enjoyment 
 of any pecuniary benefit, including under that term the 
 right to the use of a house or land or a chapel or a school, 
 then incidentally the court may have imposed on it the 
 duty of inquiring as to the regularity of the proceedings 
 affecting the status in the society of any individual mem- 
 ber of it.i It is a general rule, that when the trust 
 funds have been settled on a definite religious body, the 
 congregation cannot divert the property into a different 
 channel or apply them to a different sect without an Act 
 of Parliament.^ In a case in 1860 the trusts of a chapel 
 were declared to be for the use of a congregation, of Par- 
 ticular Baptists. The congregation became divided as to 
 the doctrine of a strict and free communion. Since 1746 
 the congregation had acted on the doctrine of strict com- 
 munion, but a majority in 1860 resolved to act on a free 
 communion. The court held, that, whether the majority 
 could make this change, depended on whether the doctine 
 was an essential and fundamental doctrine of that faith. 
 According to the evidence it was proved not to be so ; and 
 therefore the court protected the majority in making the 
 change desired by them.^ In another modern case trusts 
 had been established in 1716 and 1803 for the benefit of 
 " the congregation called Presbyterians " in Devizes. Long 
 before that date some Baptists had associated themselves 
 with that congregation, and since 1803 the members had 
 been Baptists. In 1865 a congregation calling itself 
 Presbyterian now claimed the property. But the court 
 held, that the use of the term Presbyterian did not repre- 
 sent any particular religious doctrines or mode of worship ; 
 and therefore the Baptists having held the property for 
 forty-five years were entitled to retain it.* 
 
 ' L. Cranworth, Forbes v Eden, 2 Pafers. Ap. 1450; L. E., 1 Sc. 
 Ap. 568. 2 Att.-Gen. v Market Boswoith, 36 Bcav. 306. ' Att.- 
 Gen. V Gould, 28 Beav. 485. ■" Att.-Gen. i; Bunce, L. E., 6 Eq. 563. 
 
534 SECURITY OF PUBLIC WORSHIP. (ce. ix. 
 
 Hence in the case of a dissenting congregation being 
 desirous to change its creed and mode of worship, it is 
 not a question of a majority or a minority of the congre- 
 gation so desiring it; but it is a question, whether their 
 trust is specific enough to prevent it ; and if so, then any 
 one of the congregation can insist on preserving the 
 original trust as it was. It is true that entire unanimity 
 in a congregation may sometimes succeed ; because then 
 there would be no one having sufficient interest to interfere 
 and set the law in motion against their acts. 
 
 Oivil and religious freedom of dissenters and 
 Churchmen. — It has been seen, that the Toleration Act of 
 1688 first recognised attendance at dissenting chapels as 
 a valid excuse for escaping the penalties incurred by not 
 attending the parish church. This relieved the Protestant 
 dissenters to a considerable extent, and allowed them to 
 meet in conventicles, provided they took certain- oaths and 
 held their religious meeting with open doors. In 1779 
 dissenting ministers were allowed, on taking an oath that 
 they were Christians and Protestants, freely to teach youth. 
 And in 1812 the Conventicle Act and Five Mile Act 
 were repealed ; and this left them to hold conventicles with- 
 out restriction, provided these were registered with the 
 bishop. And finally in lg29 the Test and Corporation 
 Acts were repealed, which prevented dissenters filling 
 offices in the army and navy and magistracy and in corpo- 
 rations. In 1846 every kind of penalty for not conforming 
 to the Church was repealed.^ Lastly, in 1871 they were 
 allowed to enter the Universities of Oxford and Cambridge 
 and take their degrees and enjoy the privileges thereto 
 attaching.2 And in 1867 those dissenters who were 
 magistrates were allowed to enter their own chapels in 
 their official robes of office.* And in 1836 they were no 
 longer bound to go to the parish church, to be married 
 according to the forms of the Church of England.* The 
 result is, that Protestant dissenters enjoy all the liberty 
 and have the same advantage in filling all the offices of 
 social and political life as freely as Churchmen. What- 
 ever property they choose to dedicate for worship or 
 education, they can do therein as they think fit ; the law has 
 
 1 9 & 10 Vio. c. 59. 2 34 & 35 Vic. c. 26. ^ 30 & 31 vic. c 
 76, § 4. 1 6 & 7 Will. IV. c. 85. 
 
CH. IX.] FEEKDOM OF DISSENTERS. 535 
 
 nothing to say to the ol)ject, the manner, or the jnachinery, 
 unless and until they qnarrel about their rights amongst 
 themselves. They in fact manage entirely their own 
 affairs in their own "way, having only the same kind of 
 pTotection from the law, as other persons have according 
 to their respective employments and acquisitions. The 
 dissenting clergy, -while enjoying liberty to conduct their 
 public worship according to their own forms, whether 
 these are adopted by each separate congregation, or by 
 synods of many congregations, are bound only by mutual 
 contract to adhere to certain rules of doctrine and discipline. 
 All the restrictions they are subject to are of their own 
 adoption and choice. On the other hand, the clergy of 
 the Church of England are bound down by rigid statutes 
 in all that they do — in the enjoyment of their property, 
 their maintenance, their rites and ceremonies, their vest- 
 ments and the doctrine they shall profess and teach, so 
 that no deviation from the standard appointed for them 
 can be allowed. And so multiplied and minute are these 
 restrictions, that they occupy a large space and fill many 
 chapters in the laws of the land, and the enforcement of 
 these laws requires frequent aid from the courts, and a 
 large variety of officers and assistants, as has already been 
 set forth. But the substantial right which Churchmen and 
 dissenters now enjoy is one and the same, that is to say, 
 each can in peace and security join in that form of worship 
 which he considers best, and incurs no liability or risk, 
 and loses no worldly advantage, and is subject to no draw- 
 back in doing so. They have both arrived, s6 to speak, at 
 the same goal, neither being allowed to interfere with the 
 other, or make each other any longer afraid. The only 
 restriction on dissenters is the trifling homage they pay to 
 order, by registering their chapels and holding their ser- 
 vices with open doors. In all other respects they may he 
 said to be as free in the exercise of their public worship 
 as any member of the community in the exercise of his 
 trade or profession. 
 
 Quakers and Unitarians as dissenters. — The Quakers 
 were the first of the dissenters to express a decided anti- 
 pathy to church rates and tithes. They are said to have 
 assumed the offensive, and to have gone to churches to 
 assail the preachers and excite disturbances. During the 
 
536 . SECURITY OF PUBLIC WORSHIP. [ch. ix. 
 
 Protectorate 3,173 of them were imprisoned, whipped, and 
 pilloried for these offences.^ In the time of Charles II. 
 they were punished with imprisonment and transportation, 
 if they refused to take a judicial oath.^ But two Acts of 
 William III. allowed them to make an affirmation instead 
 of such oath, also to serve compulsory offices by deputy.^ 
 A bill to relieve them in some particulars as to oaths 
 and as to the mode of paying tithes was opposed in vain 
 by the London clergy as endangering the maintenance of 
 the clergy by tithes, " and as dispensing with oaths, which 
 God himself instituted as the surest bond of fidelity 
 among men."* They were soon also allowed to make 
 declarations of fidelity in lieu of oaths of supremacy and 
 allegiance.^ The proceedings as to tithes were varied as 
 regards them, as stated in a previous chapter." They were 
 allowed to find substitutes to serve in the militia and 
 kindred acts.'' And the Marriage Act of 1753 did not 
 interfere with their customs of marriage, though it did not 
 spare most other dissenters.^ And even the Acts of 1836 
 with amendments left their marriages alone, provided only 
 that due notice is given to the superintendent registrar of 
 the district ; and the marriages may take place in their 
 own meeting-houses.* And when a Quaker was elected a 
 member of Parliament in 1833, he was found entitled on 
 making his solemn affirmation to enter and take his seat.'" 
 In all other respects the Quakers are on the same footing, 
 so far as their religion is concerned, as other dissenters. 
 
 Unitarians were in 1813 relieved from the punishment 
 assigned to blasphemy against the Trinity by the statute 
 William III." And in other respects they do not differ 
 from other dissenters. Their grievances in relation to Lady 
 Hewley's charities led to an amendment in the laws, as 
 already stated, which was at the same time communicated 
 to all other dissenters. 
 
 Roman Catholics as dissenters.^-lt is necessary to 
 notice one class of dissenters at greater length. Eoman 
 
 1 Skeat's Hist. 70. 2 13 & 14 Ch. II. c. 1 ; 16 Ch II c 4 
 
 3 7 & 8 Will. III. c. 34. < 7 Pari. Hist. 942. That bilfpassed 
 the House of Lords by 62 to 21. * g Qg^ j gt_ 2, c 6 ^ gee 
 ante, p. 467. ^ 42 Geo. IIL o. 90, § 50. » 26 Geo. II. c. 33, S 18 
 
 9 6 & 7 Will. IV. c. 85, § 2 ; 35 Vic. c. 10 w H. C. 14 Feb. 1833. 
 
 " See ante, p. 64. 
 
CH. IX.] QUAKERS AND ROMAN CATHOLICS. 537 
 
 Catholics were included among those who did not conform 
 to the Church of England, by absenting themselves, and 
 not taking oaths when these were necessary ; and a dis- 
 tinct series of statutes, from the time of Edward VI., have 
 dealt with them, so that they for centuries stood by them- 
 selves, singled out from all other dissenters by the severity 
 and long continuance of the penalties, disabilities, actions, 
 and indictments, which were aimed at them. And their 
 case was an excellent example of the slow degrees by 
 which they ultimately have obtained a toleration almost 
 identical with other dissenters. And for that reason, if for 
 no other, the lessons to be deduced from their history are 
 of permanent use, and very fit to be remembered. The reason 
 of this severity was the supposed inveterate attachment of 
 Eoman Catholics to the Pope, and their allegiance being 
 supposed to be given first to him. It was high treason to 
 pretend to absolve any within the realm from their natural 
 obedience, or tb move them to obey the see of Kome, or 
 even to be reconciled to that communion.' And that law 
 continued till 1791,^ and in some points tiU 1846.® Hence 
 Popery used to be spoken of in courts as a standing con- 
 spiracy against the state as well as religion.* Papists were 
 deemed, almost by a rule of law, to be constantly engaged 
 in dissuading people from their natural allegiance. Coke 
 said, that Papists were lepers of the soul, and that it was 
 the practice of the courts not to accept Popish recusants as 
 witnesses or sureties. And he told a group of such persons 
 it was far safer for them to lie in prison than to be at large 
 and not to conform themselves.^ And this condition de- 
 barred them from practising any of the leading professions.^ 
 
 " 1 23 Eliz. c. 1 ; 3 Jas. I. c. 4. ^31 Geo. III. c. 32. ^ 9 & 10 
 Vic. c. 69. ■• Thornby v Fleetwood, 10 Mod. 117. ' Att.-Gen. 
 V Griffith, 2 Bulst. 155. 
 
 s 3 Jas. I. c. 5, § 5. Burke said that in his time " no man 
 thought of any danger from the machinations of the Pope. Why 
 then should a danger be pretended, which did not exist, and pretended 
 merely for the sake of persecution ? Why should we heap oath 
 upon oath, as if we wished at all events to pick a quarrel with our 
 Roman Catholic brethren ? Did not this look like the effects of that 
 green-eyed monster ' jefilousy,' whose suspicions it was utterly im- 
 possible to remove ? The Pope, politically speaking, was as dead as 
 the Pretender, and as dead as Pope Julius Cresar,"— 28 Farl. Deb. 
 1371. 
 
538 SECURITY OF PUBLIC WORSHIP. [ch. ix. 
 
 Popish recusants refusing to attend church. — A 
 
 series of statutes, as already mentioned, from Edward VI. 
 to William III. punished all persons who, from any cause 
 of a religious nature, refused to attend the parish church. 
 Till the statute of 35 Elizabeth, c. 2, all persons refusing 
 to attend church were called recusants ; but a distinction 
 was then made between Protestant and Popish recusants. 
 The former were practically relieved from all these 
 penalties by the Toleration Act of 1 William and Mary. 
 It was otherwise with Papists. A Popish recusant when 
 once convicted was called a Popish recusant convict, who 
 was liable to a fine of 2QI. per month. He could not hold 
 any offices or employments ; he could not keep arms in his 
 house ; he could not sue in courts of law ; he could not 
 travel five miles from home, unless by licence, rmder a 
 penalty of forfeiting all his goods. A married woman when 
 a recusant convict forfeited two-thirds of her dower : she 
 could not be executor or administrator to her husband, 
 and during her marriage might be kept in prison for life, 
 unless and until the husband paid for her IQl. per month, 
 or gave up a third part of her lands. Besides the general 
 offence of Popish recusancy, the recusant convict also in- 
 curred a fine for not marrying according to the rites of the 
 Church of England, and the wife was deprived of her 
 dower.i So there was a fine for not having his children 
 baptized in the Church of England.^ And even when he 
 died, his executor was harassed by another fine for not 
 burying the corpse in a Church of England grave.* Nor 
 was the recusant convict allowed to come to the court of 
 the sovereign or sit in either House of Parliament, under 
 a penalty of 500/. ; or to come within ten miles of London 
 unless it was his only dwelling, under a penalty of 100/. ; 
 and any two justices, or the mayor and his bailiffs, could at 
 discretion search for, seize, and burn, all his pictures, beads, 
 altars, and reliques.* A Popish recusant convict had to 
 abjure the realm in three months after conviction ; and if 
 he did not depart, or if he returned without leave, he was 
 declared a felon without benefit of clergy.^ 
 
 Romish priests and teachers. — The opien exercise of 
 
 1 .3 Jas. I. c. 5. 2 Ibid. § 14. s Ibid. § 15. * Ibid. 
 5 The rich Catholics were said to compound with Queen Elizabeth 
 for the penalties. — 4 Strype, 197. 
 
OT. IX.] ROMAN CATHOLICS. 539 
 
 the Roman Catholic religion was punished also severely. 
 If any English Eomish priest came from abroad, and did 
 not conform to the English Church in three days, he was 
 guilty of high treason. Any schoolmaster educating Roman 
 Catholic children was fined, for not conforming, a sum of 
 forty shillings a day; and the parents were iined 101. a 
 month. If the parents sent the children abroad to be 
 educated they forfeited 1001. ; and the children could not 
 inherit, or purchase, or enjoy, lands or legacies. And to 
 say mass was punishable by a fine of 200 marks, and to 
 hear it by a fine of 100 marks.^ So late as 1700 a Popish 
 bishop or priest celebrating mass within the realm was 
 punishable with perpetual imprisonment,^ It was at first 
 also made a penal offence for Roman Catholics to teach 
 youth without a licence from the bishop or ordinary.* 
 The punishment seemed to be aimed chiefly at public 
 teachers or those employed in noblemen's or gentlemen's 
 families.* But soon even private teachers- required to get 
 a licence from the bishop.^ And perpetual imprisonment 
 came to be the punishment for neglect.* By the second 
 Relief Act of 1791, it was still the law, that no Roman 
 Catholic could keep a school, or receive the child of a 
 Protestant father into his school,, unless its description was 
 -registered at the quarter sessions ; and this last restriction 
 was only repealed in 1832 and 1846.^^ And by the Act 
 of 1829, the Roman Catholic archbishops and bisliops were 
 prohibited by a penalty from using the same ecclesiastical 
 titles for the same province and bishopric as in England 
 and Ireland.^ 
 
 Gifts for purposes connected with Roman Catholic ser- 
 vices were first made void by the statutes of Henry VIII. 
 and Edward VI.* The later Act treated as gifts to super- 
 stitious uses any gifts for the benefit of the souls of the 
 dead, as by masses, or the perpetual maintenance of lamps or 
 candles in churches or chapels, and vested the property in 
 
 1 1 Eliz. e. 2, and statutes down to 1 Geo. I. c. 13. Ml & 12 
 Will III. c. 4, S 3. 3 2.S Eliz. c. 1. ■* 1 Jas. I. u. 4. 
 
 » 13 & 14 Ch: II. c. 4, § 11. 6 11 & 12 Will. in. c. 4. 
 
 7 31 Geo. m. c. 32, § 16^ 2 & 3 Will. IV. c. 115; 9 & 10 Vic. 
 c. 59. * 10 Geo. IV. c. 7, § 24. In 1851 another Act was passed, 
 14 &'l5 Vic. c. 60, but was repealed in 1871, 34 & 35 Vic. c. 63. 
 
 " 23 Hen. VIII. c. 10 ; 1 Ed. VI. c. 14. 
 
540- SECUBITY OF PUBLIC WORSHIP. [ch. ix. 
 
 the king. But in 1860 a statute enacted, that no existing 
 or future gift of real or personal estate for any lawful 
 charitable trust for the exclusive benefit of persons pro- 
 fessing the Eoman Catholic religion should be invalidated, 
 merely because the same estate is also subjected to trusts 
 for superstitious uses, and the court is to separate the 
 lawful from the unlawful purpose.' And various rules are 
 laid down in the same statute tending to protect these 
 gifts, thereby placing them on the same footing as in case 
 of other dissenters. 
 
 Oaths required from Roman Catholics. — One great 
 engine of persecution against all dissenting sects was the 
 exacting of oaths, and punishing those who could not or 
 would not take them. The Gunpowder Plot suggested the 
 necessity of oaths of allegiance.^ The Roman Catholics 
 seemed not to object to take the oath of allegiance,^ or the 
 oath of abjuration.* But the Oath of supremacy which 
 varied in form under Elizabeth and James, and William 
 III., was what could not be got over. The substance of it 
 was, that no foreign prince had any power or authority, 
 ecclesiastical or spiritual, within the realm. This oath 
 could be tendered at any time by two justices of the peace 
 without any preliminary notice or summons ; and refusal 
 made the party a popish recusant convict, and as such 
 liable to all the punishments and disabilities of that state. 
 The refusal of that oath prevented the party from exercis- 
 ing any of the legal professions or voting at elections. The 
 refusal to take the sacrament under the Corporation Act, 
 13 Charles II., prevented the Pi.oman Catholics holding 
 any offices in corporations. And under the Test Act of 
 25 Charles II. c. 2, they were precluded from holding any 
 office civil or military under the Crown. The oath against 
 transubstantiation, and against the invocation of saints, and 
 against the mass, imposed by 30 Charles II. st. '2, c. 1, 
 kept the Eoman Catholics from sitting in either Houses of 
 Parliament for 150 years, until they were restored in 1829 
 by the Catholic Emancipation Act.^ 
 
 Roman Catholics holding property . — The consequences 
 of inability to take oaths affected also the holding of 
 
 1 23 & 24 Vic. c. 134. 2 7,'Collier, Eccl. Hist. 346, ed. 1846 
 
 3 1 Geo. I. St. 2, c. 13. < 6 Geo. III. c. 53. ^ 10 Geo. IV. 
 
 c. 7, § 2. 
 
CH. IX.] ' ROMAN CATHOLIC RELIEF. 541 
 
 property. Ev&n so late as 1700, a person educated in or pro- 
 fessing the Popish religion, who did not, in six months after 
 he was eighteen years of age, take the oaths of allegiance, 
 supremacy, and transubstantiation, ceased to he entitled to 
 any lands, estates, or interests in land. He was inca- 
 pable of devising, or inheriting, or purchasing, or enjoy- 
 ing ; and his next of kin, if a Protestant, could enter into 
 possession and enjoy without rendering any account.^ 
 Moreover, Catholics could not, and still cannot exercise the 
 right of nomination to a benefice in the Church of England 
 if they have advowsons ; and they paid double land-tax. 
 By a statute of 1 George I. c. 13, they were bound under 
 a penalty to register their names and estates ; and by a 
 statute of 3 George I. c. 18, they must enrol all their 
 deeds and wills, otherwise these would be void. It was 
 not till 1829 that the capacity to hold and acquire real 
 property was restored to Popish subjects,- and they were 
 then put on the same footing as other subjects, ^ and 
 the same has still later been made the rule as to their 
 education and charities.^ 
 
 Relief to Roman Catholics hy degrees. — Penalties 
 upon penalties fell upon, the Eoman Catholics from 
 the time of Edward YI. to the time of George I., with- 
 out a sign of abatement or deduction. The Toleration 
 Act of 1 William and Mary was for Protestant dissen-' 
 ters only. An Act of 1716 partially prevented sales by 
 Papists of their real estate from being questioned; and 
 this was a first contribution of relief.* In 1778 a new 
 form of oath was made for Eoman Catholics, which omitted 
 allusion to the Pope's spiritual jurisdiction, or only stated, 
 that the Pope of Eome had no temporal or civil jurisdic- 
 tion within the realm ; and on taking this oath they were 
 allowed to inherit or purchase l^nds, and send their chil- 
 dren to school, and to say and hear mass without a penalty.^ 
 In 1791 another oath was made for Eoman Catholics, 
 slightly varying the terms once more, and adding in plain 
 wo°ds, that the deponent professed the Eoman Catholic 
 religion; and on taking this oath he was no longer punishable 
 i'or not attending the parish church ; he might attend his 
 own place of worship, and if the doors were not locked and 
 
 ■1 11 & 12 Will. IIL c. 4. ^ 10 Geo. IV. c. 7 
 
 » 2 & 3 Will. IV. c. 115. ■• 3 Geo. L c. 18. = is Geo. IIL c. 60. 
 
542 SECURITY OF PUBLIC WORSHIP. [oh. ix. 
 
 the chapel had no steeple or bell, he need not after that 
 date take the oath against transubstantiation, and incurred 
 no penalty for corning to court ; he need no longer register 
 his deeds and wills, and might practise as a barrister or 
 solicitor without taking the oath of supremacy or the oath 
 against transubstantiation.^ The places of worship used 
 by Eoman Catholics required, by a statute of 1791, to be 
 certified to the quarter sessions or to the bishop ; and the 
 names of the priests also must have been recorded at 
 quarter sessions.^ But at last, in 1832, Eoman Catholics 
 were made subject to the same laws as the Protestant 
 dissenters, in respect to their schools and places for religious 
 worship, education, and charitable purposes.^ This regis- 
 tration of places of worship is still the law, and any person 
 suffering an unregistered assembly in his house as well as 
 the officiating preacher or teacher incurred large penalties.* 
 And by the Act of 1791 the molesting of Eoman Catholic 
 congregations was punished as in the ease of churches and 
 dissenting chapels.* By another Act of 1817, Eoman 
 Catholics might enter the army or navy as officers without 
 taking the oaths and declarations required under former 
 Acts.® These Acts, coupled v/ith the repeal of the Test and 
 Corporation Acts in 1828,^ and the Catholic Emancipation 
 Act of 1829,8 and the Eeligious Disabilities Eepeal Act 
 in 1846,^ put. the Eoman Catholics, substantiaUy on the 
 same footing as Protestant dissenters. The chapel must 
 still be registered, as was enacted in 1791. And though 
 the enactment of 1791 which forbade a steeple and bell 
 to be used to their chapels, has never, been expressly 
 repealed, it was impliedly repealed in 1832.1" Notwith- 
 standing the emancipation of Catholics in 1829 from the 
 long chain of penal and disabling statutes, they were still 
 expressly required by oath to repudiate certain doctrines 
 supposed to be part of their religion, as to the right of 
 murdering princes, or the Pope's civil jurisdiction in the 
 United Kingdom, and the right to subvert the present 
 Church establishment, and the right to disturb or weaken 
 
 1 31 Geo. ITT. c. 32. 2 Ibid. § 5. » 52 Geo. HI. c. 155, § 2 ; 
 2 & 3 Will. IV. c. 115, § 1. 4 52 Geo. TIT. c. 155, §§ 2, 11. 
 
 6 31 Geo. HI. 0. 32 ; 9 & 10 Vic. c. 59. « 67 Geo. til. c. 92. 
 T 9 Geo. IV. c. 17. 8 jo (jgo. IV. c. 7. » 9 & 10 Vic. c. 69. 
 10 2&3Will. IV. c. 115, § 1. 
 
CH. IX.] JESUITS. 543 
 
 the Protestant religion.' But this oath has in turn been 
 repealed, and nothing but an oath of allegiance is left. 
 The statute of 1829 expressly enacted, that Roman Catholics 
 might vote at elections.^ And a mayor or corporate officer 
 was liable to a penalty if he attended in his official robe any 
 other plac'e of worship than an established church.^ But 
 that also was repealed in 1867.* The facilities for mar- 
 riage of Eomau Catholics do not now materially differ from 
 those of other religious bodies. Any Eoman Catholic place 
 of worship can be registered for the purpose of solemnizing 
 marriages.^ And if the registrar attend, the ceremony may 
 be conducted according to the rites of the Catholic Church.* 
 The disabilities of Catholics extended far and wide, and 
 struck at all classes. The sovereign must neither profess 
 the Popish religion nor marry a Papist." And the regent 
 is restricted in like manner.^ Nor can a Eoman Catholic 
 hold the office of Lord Lieutenant of Ireland or Lord Chan- 
 cellor of Great Britain, or lligh Commissioner to the 
 General Assembly of the Church' of Scotland.^ In 1829 
 Eonian Catholics were admitted to civil and military offices 
 under the Crown, on taking the oath appointed by that Act,i** 
 and now without the oath." As the clergy of the Church 
 of England are expressly disqualified from becoming mem- 
 bers of the House of Commons, so are Eoinan Catholic 
 priests, whether priests before or after their election.^^ In 
 this particular they are subject to a restriction which has 
 no place with Protestant dissenters. And in like manner 
 Eomish priests are disqualified from being councillors or 
 aldermen in municipal corporations.^^ On the other hand, 
 they share with the clergy of the Church of England and 
 dissenting'ministers the exemption from serving as jurymen 
 and as churchwardens and parochial officers, i* 
 
 Jesuits. — Jesuits and seminary and other priests, 
 
 1 10 Geo. IV. c. 7. " Ibid. c. 7, § 5. ^ 5 q^o. I. c. 4 ; 
 
 10 Geo. IV. c. 7, § 26. ^ 30 & 31 Vic. c. 75, § 4. 
 
 5 6 & 7 Will. IV. c. 85, § 18 ; 7 Will. IV. c. 22, § 35. 
 
 6 7 Will. IV. c. 22. 7 12 & 13 Will. III. c. 2, § 2; 31 Geo. III. 
 c. 32, § 12. 8 10 Geo. IV. c. 7, § 12. 
 
 9 10 Geo. IV. c. 7 § 12. A Roman Catholic was allowed to be 
 Lord Chancellor of Ireland after 1867.— 30 & 31 Vic. c. 76, § 1. 
 
 i» 10 Geo. IV. c. 7, § 10. " 34 & 35 Vic. c. 48. 12 10 Geo. IV. 
 c 7, § 9 ; 41 Geo. III. c. 63. See ante, p. 481. " 5& 6 AVill. IV. 
 c 76, § 28. 1* 31 Geo. III. c. 32, § 8. 
 
644 SECURITY OF PUBLIC WORSHIP. [ch. ix,' 
 
 professed by authority derived from the see of Eome, were 
 forbidden to enter the realm, except licenced by the bishop 
 and two county justices.^ It was also forbidden to send 
 relief out of the realm to Jesuits or priests who had been 
 born within the realm. ^ And what was meant was made 
 more clear by imposing a heavy penalty, also a ■ disability 
 to inherit or hold property, on all who sent their children 
 or wards to be educated in a foreign Popish college or 
 seminary.^ And with a view to intercept this baneful 
 tendency, neither woman nor child under twenty- one was 
 to be allowed by means of vessels to pass the seas without 
 a licence of the sovereign and of six privy councillors.* 
 And all the parties concerned were punished ; the child 
 especially forfeiting all his property, the next of kin mean- 
 while succeeding and possessing it till the child complied 
 with the law.^ And with like views, those sending chil- 
 dren abroad to Popish colleges and seminaries, or sending 
 money to maintain them there in learning involved for- 
 feiture of property and other disabilities.^ On the other' 
 hand, if the child of Popish parents who was refused a 
 proper maintenance became disinclined to embrace the. 
 Popish religion, and chose to complain to the lord chancellor, 
 the latter could order a maintenance.^ The relief given 
 in 1791 did not extend to legalising the foundations or 
 endowments of existing or future religious orders bound 
 by monastic or religious vows ; and all trusts of real or 
 personal property were treated as void whether express or 
 by way of secret trust.' A Jesuit or male regular, if resi- 
 dent in the United Kingdom, was expressly required by 
 the Act of 1829 to register his place of residence, name, 
 and age, and the name of his immediate religious superior 
 in the order, with the clerk of the peace.^ And even when 
 they were natural born subjects, if they had been abroad 
 before 1829, and had afterwards returned to the realm, the 
 same restriction was imposed on them. And for a limited 
 time the secretary of state could give a licence to other 
 Jesuits to come into the realm.^" To be a Jesuit, except 
 
 1 27 Eliz. c. 2. 2 Ibid. § 6. 3 1 Jas. I. c. 4 ; 11 & 12 Will III 
 c. 4, § 6. * Ibid. 5 3 Jag. I c. 5, § 16. 6 3 Ch. I. c. 2. 
 7 11 & 12 Will. III. c. 4, § 7. .8 31 Geo. III. c. 32, 8 17 
 
 9 lOGeo. IV. 0. 7, §28;2&3WilI. IV. c. 115, 84 " 
 
 1° 10 Geo. IV. c. 7. 
 
CH. IX.] JEWS. 545 
 
 under the restrictions mentioned, and to be found in the 
 realm, or even to become a Jesuit after 1829 in the realm 
 was to be guilty of a misdemeanour, and in some of the 
 cases liable to banishment for life.' And if the banished 
 Jesuit would not depart, the Crown in privy council 
 might direct him to be conveyed to any place beyond 
 the realm.^ 
 
 The above form ail the main peculiarities which distin- 
 guished, and still in some instances distinguish, Eoman 
 Catholics from other dissenters. 
 
 Jews and their religion. — One other class of non- 
 conformists stands out from all the rest, distinguished 
 by many peculiarities, especially in their ancient treat- 
 ment. The literature of early Christians shows a singular 
 want of charity towards the Jews, and the canons of 
 Egbright, Archbishop of York, in the eighth century, for- 
 bade Christians even to eat with them.^ By some un- 
 accountable reasoning, it came to be a current maxim in 
 the time of Edward the Confessor, that the Jews, with all 
 their possessions, belonged to the king, as his villeins or 
 bond slaves.* William the Conqueror is said to have 
 encouraged that people to come to England, and John 
 treated them treacherously. The wealth which some of 
 them, notwithstanding much loss from extortion, had 
 already accumulated about the time when the Crusaders 
 .went forth to fight the Saracens, excited envy, and the 
 needy enthusiasts of that time thought it no robbery or 
 murder to despoil of both lives and goods the descendants 
 of the original wrongdoers in that quarrel.^ The people, 
 seeing the Jews so treated, began to think they had au- 
 thority to ill-treat and to pillage and murder them also. 
 Even ordinances were passed, that no Christian should 
 nurse the child of a Jew, or eat with them, or live in the 
 same house, or marry with them ; and oh failure to obey 
 these edicts their goods were to be confiscated.^ In the 
 reign of Edward I. a statute passed with the view of 
 
 1 10 Geo. IV. c. 7, §§ 29, 3V32. « ibid. § 35. 3 ^.d. 760, 
 1 Wilt. Cone. 11. * Spelm. Cone. 623. 
 
 5 Chron. Walt. Hem. c. 43. One thousand five hundred Jews 
 were ' massacred at York in these senseless outbursts of long 
 smouldering antipathy in the time of Riehard l.— Walt Hem. c. 44. 
 
 6 Claus. Eot. 37 Heri. VTILm. 18; Maddox, Exch. 155. 1R9. 
 
546 SECURITY OP PUBLIC WORSHIP. [en. ix. 
 
 checking the practice of usury, and by which the old 
 severities were kept alive.^ The same people were also 
 directed, by force if necessary, to attend lectures delivered 
 with the intention of converting them.^ The advantage -of 
 conversion was, that when the Jew became a Christian 
 the king was deemed entitled to seize and confiscate the 
 whole estate; but after a time it was provided that the 
 convert may keep half of the estate. Another peculiarity 
 attending the law of the Jews was as to their marriages; 
 They were excepted from the restrictions of the English 
 Mariiage Act of 1753, and continued to be married 
 according to rules of their own, these marriages being 
 deemed valid and treated on the same footing as foreign 
 marriages. • In 1836, when the marriage laws were re- 
 vised, Jewish marriages were allowed to be continued 
 according to their own usages, provided only both parties 
 were of the Jewish religion, and provided notice to the 
 superintendent registrar was given.^ 
 
 Early expulsion of the Jews from England. — A 
 clamour anciently arose, that all the Jews should be ex- 
 pelled; and Edward I. acquired popularity by issuing a 
 proclamation and afterwards a decree to that effect in 
 1290.* And this was acted on, so that it was estimated 
 about 16,000 left the country at that date. It is related 
 that they did not return for 360 years, till Oliver Crom- 
 well was asked to secure liberty of conscience to them. 
 Opinions were then divided both among the civilians 
 and the clergy, and after consulting all the wise men 
 of the day, the Protector came to no definite conclu- 
 sion.^ But soon after the Eestoration a few Jews came 
 into England without observation, and settled there, and 
 though the House df Commons in 1670 made some inquiry 
 
 1 18 Ed. I. m. 6, Rot. CI. ^ jjot. Pat. 8 Ed. I. m. .B7 
 3 6 & 7 W. H. c. 85, § 2 ; 3 & 4 Vic. c. 72 ; 19 & 20 Vic. c. 119, 
 § 22. It was felony for a Christian to marry a Jew, and the 
 ofEending party was ordered to be burnt, the only reason given 
 by Coke being, that Jews were infidels and infidels were aliens, and 
 aliens could be prohibited by the king from trading or entering into 
 contracts with the subject. — 2 Inst. 509 ; 3 Inst. 89 ; JFleta B. I. 
 c. 35. Coke's notion that Jews were indelibly aliens was mostly 
 dispelled by a judgment of Lord Hardwicke & Willes, C. J.^- 
 Omychund v Barker, Willes, 540 ; 1 Ath. 21. 
 * Ann. Wav. 242. ^ Blunt's Hist. Jews, 70. 
 
CH. IX.] JEWS. 547 
 
 into their numbers, it took no definite step to interfere 
 ■with them. 
 
 Contracts and property of the Jews. — At the time of 
 the Conquest and before it, the Jews, as already mentioned, 
 were treated as the king's villeins or bond slaves. But 
 this was merely a convenient theory to justify an arbitrary 
 confiscation of their property, when the king felt the 
 need of money. Richard I. ordered a register to be kept 
 of their lands, houses, mortgages, and possessions ; and the 
 Crown even went the length of constituting a special, branch 
 of the Court of Exchequer to facilitate the execution of 
 .these tyrannical edicts, ^his was called the Exchequer of 
 the Jews, having its own justices, who executed the king's 
 writs, and supervised most of the transactions of that 
 .people.^ The kind of law these justices administered was 
 different from the common law, being varied by customs 
 which were then supposed to be grateful to the people 
 dealt with ; and the jurisdiction by degrees absorbed nearly 
 every kind of business. And many idle and frivolous 
 distinctions were laid down in royal charters, and practised 
 by these nondescript judges as to the kind of evidence ad- 
 missible in certain contracts and ui certain phases of litiga^ 
 tion between Jews and Christians. But as the fundamental 
 idea was, that Jews were slaves, the superstructure of folly 
 raised thereon can only interest antiquarians. It was only 
 in accordance with these early prejudices, that there should 
 be restrictions on the liberty of Jews acquiring and holding 
 lands in England ; though -Bract on, indeed, as if removing 
 a misconception current in his day, takes care to say, that 
 there was nothing then to restrain them.^ The ordinance 
 or statute of Henry III. was long thought expressly to 
 restrict Jews from holding freehold estate in lands, or from 
 acquiring more land in the city of London.* And another 
 statute of Edward II. prohibited them from alienating 
 their lands without a special licence of the king, though 
 they might buy the houses they lived in, in cities and 
 boroughs.* They were prohibited from usurious contracts 
 or from taking more than a moiety of the lands or goods 
 of Christians for their debt. Their right to purchase land 
 long was treated as a moot question, and divided lawyers in 
 
 1 Madd. Hist. Exch. ' Bract, b. ii. c. 5, § 6. ' 55 Hen. III. 
 < Stat, de Judaismo, 17 Ed. II. 
 
 N N 2 
 
548 SECURITY OF PUBLIC WORSHIP. [ch. ix. 
 
 1753, and long afterwards.^ And the Test and Corporation 
 Acts and other statutes of intolerance kept them out of all 
 public offices. And when the Toleration Act began to 
 recognise Protestant dissenters in 1688, it was doubted 
 whether it protected Jews ; and even when Koman Catholics 
 were so largely and conspicuously relieved in 1829, the 
 disabilities of the Jews were still left out of view.^ 
 
 Civil and religious liberty of Jews. — The time at last 
 arrived when intolerance yielded to the call of reason and 
 justice. In 1839 Jews were admitted to hold offices in 
 corporations.^ In 1846 they were put on the same footing 
 as Protestant dissenters in respect to their schools, places 
 for religious worship, education, and charitable purposes, 
 and the property held therewith.* After the House of 
 Commons had passed a bill nine times to admit the Jews 
 as members, and after that House was about to proceed by 
 way of resolution to modify its oath, the House of Lords 
 withdrew all further opposition, and a statute authorised 
 their admission into either House of Parliament in 1858.® 
 They shared the entire advantages of admission to the 
 Universities of Oxford and Cambridge in 1871. And in 
 that year the very highest offices in the kingdom were 
 thrown open to them.^ 
 
 It may thus be said that, except in one or two par- 
 ticulars relating to Roman Catholics, and in the matter of 
 the burial of dissenters in parish churchyards, religion is 
 
 1 14 Pari. Hist. 1368. Romilly thought they could not hold lands. 
 —25 Pari. Deb. (2) 429. 
 
 '■' At the passing of the repeal of an Act allowing Jews to be 
 naturalised a peer proposed, that the House should consult the 
 judges, in the time of Holt, C. J., whether a Jew could, under the 
 then existing law, hold land in England ; but the judges were not 
 consulted, as they were thought not to be bound to answer questions 
 except upon a pending bill. The opinions of the profession of that 
 day seemed to be against any then existing restriction on Jews 
 acquiring land. The latest Naturalisation Act declares that aU 
 aliens now may hold real estate the same as natural born 
 British subjects. — 33 & 34 Vic. c. 14. A wealthy Jew hating dis- 
 inherited his daughter for becoming a convert to the Christian re- 
 ligion, a statute was passed to enable the Lord Chancellor in these 
 cases to order a maintenance to be settled on such children in 
 future. — 1 Anne c. 30 ; this was repealed in 1846. 
 
 3 8 & 9 Vic. 0. 52. 4 9 & 10 Vie. c. 59, § 2 ; 18 & 19 Vic. c. 88. 
 
 6 151 Pari. Deb. (3) 1371 ; 154 ibid. 14; 21 & 22 Vic. cc.48, 49; 
 ?.B & 24 Vic. c. 63. « 34 & 35 Vic. c. 48. 
 
CH. IX.] STREET PREACHING. 549 
 
 DO longer a ground of disability or disadvantage of any 
 kind to any citizen ; and all naodes of public worship are' 
 protected with impartial hand by the law. 
 
 Street preaching. — "We have now seen, that the progress- 
 of toleration begun in 1688, and marching on against fre- 
 quent impediments ever since, and not yet quite ended, has 
 practically pxit all religions and modes of worship on one 
 level, and under the impartial protection of the same law; 
 It is true, aU these modes of faith, whether embodied in 
 an elaborate ritual or simpler forms — in the cathedral or 
 parish church, the Eoman Catholic chapel, the synagogue, 
 the meeting-house, the conventicle, are such as are prac- 
 tised by large congregations in fixed places of worship. 
 There is still a more primitive and simpler form of public 
 worship tlian any of those, which requires a few last words 
 of notice. This is that mode of worship conducted by 
 street preachers, who have no fixed abode, and no regular 
 flock, but who go out into the hedges and ditches, stand ia 
 fields and alleys and at street corners, wherever two or three 
 can be brought together as a beginning of an audience 
 often fit though few — who pursue a self-imposed vocation 
 unconsecrated, unlicensed, unbeneficed, unpaid — without 
 retinue, without oblations, and without hope of reward — 
 crying in the wilderness, and fed by the ravens. Though 
 these men were once justly feared by Governments, and 
 played great parts in the silent revolutions of opinion, and 
 in the resolute protests against former tyranny and in- 
 tolerance, they also now share like the regular army of 
 priests and pastors in the comprehensive freedom of speech 
 and thought established, and within the reach of all alike. 
 The Conventicle Act of Charles 'II. put heavy penalties on 
 those who preached in fields and at corners without a licence 
 and a ritual, but that Act was, as already stated, repealed 
 after 150 years' experience, in 1812 ; and there has been 
 no practical restriction on street preaching since the latter 
 date. It is true that inasmuch as these preachers are often 
 in the eye of the law trespassers on land, they may occa- 
 sionally be subject to an action at law, when they without 
 permission exercise their gifts in places which are not 
 highways, and over which the freeholder has, or may re- 
 sume means of possession. And wlien they collect crowds 
 on highways in such positions and times as to create a 
 
550 SECURITY OF PUBLIC WORSHIP. [ch. ix. 
 
 sensible obstruction to those who are using the highway, 
 they are liable to be summoned under the Highway and 
 Turnpike Acts, for the obstruction so caused, as was noticed 
 on an earlier page, as to the holding of public meetings.^ 
 But though they may, when so summoned, be fined a small 
 sum, yet, as a general rule they cannot be arrested sum- 
 marily by constables or other persons, as is too often 
 attempted or threatened, unless some local act in force at 
 the place in question expressly authorizes this to be done. 
 And courts and magistrates can judge of the very tem- 
 porary character of the obstruction, if anyj which is usually 
 caused, and can estimate how seldom that is substan- 
 tial or worthy of reprehension ; and they have it in their 
 discretion to discourage frivolous interferences with an 
 employment which can seldom do harm, and often is of 
 striking advantage to such casual audiences as can be 
 collected. And this treatment is that which is most be- 
 coming in a country, whose institutions are stable enough 
 to withstand all the random shocks which can be caused 
 by free voices from the crowd on any subject whatever. 
 
 ' See ante, p, 22. 
 
INDEX. 
 
 Abandoning copyright, 261 ; 
 patent, 336. 
 
 Abinger, L., on reputation, 7 ; 
 on physical force demonstrations, 
 85. 
 
 Abridgement, as infringing copy- 
 right, 292 ; action for, 296. 
 
 Acting a novel, if an infringement, 
 294 ; of dramas, 294, 303. 
 
 Action for libel, 262 ; for infringe- 
 ment of copyright, 295. 
 
 Actors, fund for decayed, 305 ; 
 treated as vagi'ants, 306 ; ancients 
 treated as disreputable, 308 ; 
 women, first time, 309 ; right to 
 applaud and hiss, 310. 
 
 Addison on House of Commons, 
 107 ; on Sunday, 353. 
 
 Addresses, copyright in, 265, 
 
 Advertisement, duty on newspapers, 
 67 ; railway, of convicted per- 
 sons as a warning, 165 ; of clerk 
 not being authorised to collect 
 money, 169. 
 
 Advowsons, number of, and in whose 
 hands, 397 ; origin of, 390 ; kinds 
 of, 391 ; as appurtenant to land, 
 391 ; may be severed from land, 
 391 ; not a profit of land, 391 
 cannot be granted for years, 
 391 ; clergy purchasing, 392 
 infant making presentation, 393 
 widows and bankrupts and mort- 
 gagors presenting, 393 ; death of 
 
 . owner of, 393 ; executor of patron 
 can present, 393 ; giving to 
 . parishioners, 394 ; oestuique trust 
 nominating, 394 ; coparceners 
 holding,395; corporations having, 
 
 395 ; Crown is paramount patron, 
 
 396 ; held by Papists, 396 ; uni- 
 versities then nominate, 39fi ; as 
 donatives, 397 ; simony as to 
 
 presentations, 398 ; sale of, when 
 incumbent in dying state, 401 ; 
 resignation bonds, 401 ; statute 
 making bonds valid if for a near 
 relative, 403 ; vacancy and ex- 
 change of benefices, 404 ; usui-pa- 
 tion of benefices, 405 ; presenta- 
 tion of priest to benefice, 421. 
 
 Allybone, J., as to criticising 
 government, 78. 
 
 Almanacs, copyright in, 247, 282. 
 
 Alms in church, 468. 
 
 Altering patent, 339. 
 
 Ancients, on freedom of speech and 
 thought, 42 ; on public opinion, 
 76 ; on libels against the Sove- 
 reign, 87 ; their punishments for 
 libel, 224; as to festivals and 
 holidays, 353 ; as to swearing, ■ 
 365 ; officers of church inferior to 
 priests, 407 ; as to disqualifica- 
 tions of candidates for holy 
 orders, 420 ; on celibacy, 482 ; 
 onheresy,501 ; on toleration, 516. 
 
 ^tUne, Queen, bounty, 439. 
 
 Apology for libel in newspaper, 
 238. 
 
 Apostacyas crime, 62. 
 
 Appeal from Ecclesiastical Courts, 
 493. 
 
 Apples, tithe of, 457. 
 
 Archbishop, visitor of bishops, 408 ; 
 precedence of, 408. 
 
 Archdeacon, his jurisdiction, 415:; 
 appointed by bishop, 415 ; appeal 
 to bishop, 416, 493. 
 
 Arrest, of seditious and blasphemous ' 
 libellers, 97 ; of libeller by judge's 
 warrant, 212. 
 
 Articles, contravening the, 502. 
 
 Assignment of copyright in MS., 
 260 ; in printed book, 279 ; in 
 diama.s, 303 ; of iiatent right, 334. 
 
562 
 
 ' INDEX. 
 
 Attoniey-Geueral's ex officio infor- 
 mation, 99 ; origin of practice, 
 100; procedure on, lul ; policy 
 of, 102. 
 
 Augustus first watched defamatory 
 libels, 43. 
 
 Authors, criticisms on, 138 ; ridicule 
 of, 171 ; who are, 271 ; when 
 not having first copyright, 281 ; 
 contracts of, with puhlisheis, 300 ; 
 joint adventure with publisher, 
 300. 
 
 Bacon on amending laws of church, 
 Preface, vi. 
 
 Bakers' work on Sunday, 356. 
 
 Baldacchino, if legal, 431. 
 
 Bank Holidays as to bills of ex- 
 change, 361. 
 
 Bankrupt, calling a tradesman, 176, 
 178 ; owner of MSS. becoming, 
 263 ; owner of copyright of 
 printed book becoming, 279. 
 
 Baptism, duty of clergy as to, 471. 
 
 Baptists, Inscription on tombstone, 
 434 ; see Dissenters. 
 
 Barbauld on toleration, 523. 
 
 Baxter tried for reflecting on govern- 
 ment, 78 ; as recusant, 620. 
 
 Bees, tithe of, 457. 
 
 Behaviour, security for, as punish- 
 ment for libel, 148, 212, 226. 
 
 Bells of church, 430. 
 
 Benefices, 390 {see Advowsons, 
 Church, Clergy') ; presentation 
 of |)riest to, 421 ; pluralities, 
 444 ; union of, 445. 
 
 Biblej ridiculing and denying, 66 ; 
 copyright in, 284. 
 
 Bill of exchange on Sunday, 361. 
 
 Bill of Bights as to right of petition- 
 ing, 33. 
 
 Birmingham, example of seditious 
 libel there, 83. 
 
 Bishop, as to obedience to law, 78 ; 
 libelling for seeking preferment, 
 112; and clergy anciently lived 
 together, 389 ; advowsou of one 
 Who is appointed, 396 ; originail 
 mode of appointing, 407 ; is the 
 king's judge in ecclesiastical 
 Causes, 408 ; subject to arch- 
 bishop, 408 ; appointment by 
 congl d'ilvre, 409 ; consecration 
 of, 409 ; as peer of Parliament, 
 410 ; cannot sit on trial of peers 
 
 for capital offences, 410 ; depriva- 
 tion, 411 ; powers and duties of, 
 411; vacancy in office, 413 ; may 
 now resign, 414 ; may appoint 
 suffragan, 414; power to order' 
 employment of curates, 417 ; as 
 to qualifications of priests, 422, 
 424 ; license for non-residence, 
 440 ; committing waste, 442; 
 old law as to hunting, 487 ; juris- 
 diction of, 493 ; has veto in 
 criminal suits against clergy, 497 ; 
 old law as to conviction of, 497 ; 
 prohibiting clergymen in his 
 diocese, 505. 
 
 Bishops, petition against sitting of, 
 in Parliament, 36. 
 
 Bishops, Seven, tried for abusing 
 petitioning, 33 ; tried for libel, 
 78 ; required to give sureties of 
 peace, 212. 
 
 Blasphemy, law as to, 61 ; apostacy, 
 62 ; early statutes, 6:3 ; ex- 
 isting statutes as to, 64 ; common 
 law as to, 65 ; power of juries as 
 to, 66 ; remedy for, 67 ; punish- 
 ments for, 68 ; arresting speakers 
 and writers of, 97. 
 
 Bond fide travellers on Sunday, 
 364. 
 
 Bonds, resignation, 401. 
 
 Books, criticisms of, 138 ; early 
 practice as to fixing price of, 242 ; 
 modem practice as to, 274 ; what 
 are, 271, 274 ; see Copyright. 
 
 Bookseller, how far liable for libels 
 sold, 159. 
 
 Booths for plays, 309. 
 
 Breach of peace, if libel is, 148, 227. 
 
 Breach of privilege, 106 ; instances 
 of committal, 110, 112 ; modes 
 of punishing, 114 ; House order- 
 ing Attorney-General to prose- 
 cute, 114. 
 
 Bread Acts as to Suodity, 357. 
 
 Bunyan, imprisonment of, 520. 
 
 Burdett, Sir F., petitions as to, 36 ; 
 committal of, 113 ; trial for, and 
 place of trial, 213. 
 
 Burke, on stirring up discontent, 
 79 ; on ex officio informations, 
 102 ; on argued judgments, 121 ; 
 on libel law, and juries, 220 ; on 
 grades of clergy, 406 ; on church 
 establishments, 475, Preface, ix. ; 
 on persecuting Papists, 537. ■ 
 
INDEX. 
 
 553 
 
 Buiuiiig libels, 228 ; heretics, 501. 
 Business, slandering one in, 175. 
 
 Caiens, L., on trade mark, 343. 
 
 Calling names, how far libellous, 
 
 - 164, 168. > 
 
 Camden, L., on seditious lihel, 80 ; 
 on House of Commons, 108 ; on 
 privilege of Parliament, 202 ; on 
 juries in libel cases, 220, 221 ; 
 on copyright, 267. 
 
 Canning on toleration, 528. 
 
 Canon law, alleged divine origin of, 
 379. 
 
 Canons of English Convocation how 
 far binding, 383 ; if new can be 
 made, 384 ; Parliament can alter, 
 386 ; two modern canons made, 
 386 ; how far part of common 
 law, 472. 
 
 Catholics, see Boman Catholics. 
 
 Celibacy of clergy, 482. 
 
 Censorship of the press, early prac- 
 tice, 50 ; abolition, 61 ; of plays 
 still retained, 305; of tomb- 
 stones, 433. 
 
 Ceremonies of public worship, 472 ; 
 leading, 474 ; test of legal, 477 ; 
 remedy for changing, 498. 
 
 Certifying places of worship, 607. 
 
 Chairman of public meeting, powers 
 of, 27. 
 
 Chamberlain, L., licenses plays, 
 307 ; also theatres, 308. 
 
 Chapel of ease, 417. 
 
 Chapter, Dean and, 414. 
 
 Character, personal, how acquired 
 and protected, 8 ; master's libel 
 excused in giving servant'soharac- 
 ter, 186. 
 
 Charities of dissenters, 530 ; Lady 
 Hewley's, 530. 
 
 Charles I., libel on, 89. 
 
 Charles II., libel on, 89. 
 
 Chart, copyright in, 312. 
 
 Chartist petition, signatures to, 
 35 ; arresting lecturers on, 97. 
 
 Chastity, slander on, when a cause 
 of action, 174. 
 
 Chatham, L., on bold language at 
 public meetings, 85. 
 
 Chelmsford, L., on Sunday Acts, 
 358. 
 
 Chesterfield, L., opposing the dra- 
 matic censorship, 306. . 
 
 Chiiliiigworth on religious belief, 
 Preface, viii. ; on toleration', 522. 
 
 Christian religion, public denial of, 
 64 ; blasphemy as to, 66 ; statutes 
 against, 67. 
 
 Christianity, if part of law of 
 England, 351. 
 
 Church and state, meaning of words, 
 371 ; supposed alliance between, 
 372 ; alleged submission of clergy, 
 372 ; Royal supremacy in church 
 affairs, 374 ; coronation oath, 
 376 ; meanings of word ' ' church, " 
 376; ProtestantEpiscopal Church, 
 376 ; doctrines of, how far pro- 
 tected by law, 378 ; alleged divine 
 origin of canon law, 379 ; councils 
 and convocations of, 380-386 ; 
 general control of property and 
 ecclesiastical commissioners, 387 ; 
 Henry IV. asked to seize i evenues, 
 388 ; origin of parishes, 389 ; 
 advowsons, 390-400 ; presenta- 
 tion of ;priest to, 421 ; parson's 
 freehold in, 427 ; consecration of, 
 428 ; rates, 429 ; repairs of, 429 ; 
 bells, 430 ; organ, 430 ; altar and 
 holy table, 431 ; ornaments in, 
 
 431 ; baldacchino, 431 ; reredos, 
 stations of cross, cracifix, flowers, 
 
 432 ; collecting alms in, 468 ; 
 ceremonies in, 476 ; proces-sions 
 in, 477 ; cross, kneeling, incense, 
 &c., 477 ; exempt from poor rate, 
 488 ; order in seats and pews, 
 435 ; right to keys of, 435 ; com- 
 pelling attendance at, 619. 
 
 Church Discipline Act, 497. 
 
 Churchwardens, duties-, 434 ; breaks 
 iug into church, 435 ; duty as to 
 pews, 435 ; order in church, 435 ; 
 
 . dissenter as, 435. 
 
 Churchyard, inscription on tombs 
 in, 433 ; repair of fences, 436. 
 
 Clarendon's History, copyright of, 
 268. 
 
 Clergy {see also Church), being 
 libelled, 163 ; slandered for im- 
 morality, 176 ; libelling their 
 parishioners, 191 ; slandering 
 from pulpit, 206 ; once bound to 
 read Act against profane swearing, 
 367 ; alleged submission of, 372 ; 
 bound by canons, 383 : purchasing 
 advowson or presentation, 392 ; 
 how far, bound to obey . bishxip, 
 
554 
 
 INiJEX: 
 
 412 ; numbers of, in England and 
 Wales, 418 ; residence of, 438 ; 
 dilapidations, 441 ; letting of 
 clergy house, 443 ; pluralities, 
 444 ; union of benefices, 446 ; 
 tithes, 447 ; rectors and vicars, 
 451 ; diities as to communion, 
 baptism, marriage, 470 ; varying 
 public worship, 475 ; position of, 
 during public worship, 478 ; vest- 
 ments of, 478 ; engaging in trade, 
 480 ; farming land, 481 ; enter- 
 ing Parliament, 481 ; holding 
 municipal offices, 482 ; celibacy 
 of,- 482, 484 ; recreations of, 
 486 ; exemption from taxes, 487 ; 
 receiving confessions, 488 ; re- 
 signing office, 489; remedy 
 against, under Church Discipline 
 Act, 497 ; under Public Worship 
 Act, 498 ; committing criminal 
 offences, 498 ; schism and heresy, 
 498 ; contravening Thirty-nine 
 Articles, 503 ; immorality and 
 drunkenness of, 504 ; performing 
 service in another parish, 505 ; 
 excommimication, suspension, de- 
 privation, 509 ; peculiarities in 
 procedure against, 514 ; costs as 
 to, 514. 
 
 Clerk receiving a libel on his 
 master, 157- 
 
 Clubs with unlawful objects, 24. 
 
 Coaches on Sunday, 358. 
 
 Cobbett's libel on L. Hardwicke, 
 L.L., 94, 170. 
 
 Cockbui-n, C.J., on criticising public 
 men, 92. 
 
 Coffee-houses, if king could shut 
 up, 19. 
 
 Collecting alms in church, 468. 
 
 Commendam, benefices held in, 405. 
 
 Comments on judges, 124. 
 
 Commission, High Court, 495. 
 
 Committal for breach of privilege, 
 110. 
 
 Common Prayer, copyright in, 284; 
 authority of, 475 ; depraving of, 
 502. 
 
 Commons, House of, iiTesistible 
 power, 106, 108 ; if it can go 
 wrong, 108 ; publishing debates 
 in, 115 ; see Parliament. 
 
 Communion, duty of clergy as to, 
 470 ; ceremonies during, 478 ; 
 vestments during, 478 
 
 Commutation of tithes, 461. 
 
 Complaints to official superior, if 
 libellous, 193. 
 
 Confession at bar of Parliament, 
 120 ; clergy receiving, 488. 
 
 GongS d'Hire as to bishops, 409. 
 
 Congregations, disturbing, 489 ; 
 of dissenters appointing pastors, 
 531 ; changing their creed, 532. - 
 
 Consecration of bishops, 409 ; 
 of priests, 423 ; of churches, 
 428 ; bishop prohibiting service 
 in unoonsecrated building, 605. 
 
 Conspiracy to hiss an actor, 311. 
 
 Constitution, libels on the, 95. 
 
 Contagious disease, libel imputing,' 
 179. 
 
 Contempt of Court, 121 ; instances 
 of, 122 ; law reports not con- 
 tempts, 126 ; premature repoits, 
 
 127 ; summary punishment for, 
 
 128 ; publishing early report of 
 long trial, 129 ; what courts can 
 commit for contempt, 130 ; ex 
 parte cases, 130 ; for acts out of 
 court, 132 ; what courts can com- 
 mit, 134 ; punishment for, 135 ; 
 of inferior judges and courts, 
 136. 
 
 Contempt of Parliament, 106 ; see 
 Privilege. 
 
 Contracts of printers arid custom of 
 trade, 48 ; of authors and pub- 
 lishers, 300. 
 
 Contradicting a libel, effect of not, 
 216. 
 
 Conventicle at first deemed sedi- 
 tious, 78. 
 
 Conventicle Act, 520, 524. 
 
 Convocation, origin of, 381 ; power 
 to make canons, 382 ; power to 
 make new canons, 384 ; as means 
 of checking heresy, 386 ; appeal 
 from inferior courts, 493. 
 
 Coparceners having advowson, 395. 
 
 Copying a libel, how far criminal, 
 168. 
 
 Copyright, as a property, 14 ; first 
 notions of, in English law, 241 ; 
 early statutes as to, 242 ; first 
 Act of Anne on, 243 ; its pro- 
 visions, 244 ; its practical ettect 
 6n authors, 245 ; progi-ess of 
 early decisions as to, 246 ; 
 reasons why copyright does not 
 ditter from other rightsj 248 ; 
 
INDEX. 
 
 555 
 
 Talfourd, Lamdor, and Disraeli 
 on, 249 ; reasons alleged for con- 
 fiscating copyright, 249; what 
 is meant hy perpetual copyright, 
 251 ; as easily identified as other 
 properi^y, 252; Erie, J., on copy- 
 right, 253 ; chief cause of differ- 
 ences between early judges as to, 
 254 ; false analogies in early 
 treatment of, 255 ; not a mono- 
 poly, 256 ; nature of, in MS., 
 258 ; lending MS. ]to friends, 
 258 ; assigning MS., 260 ; if 
 there can be dedication of MS. 
 to public, 261 ; publishing MS. 
 against owner's will, 262 ; bank- 
 ruptcy of owner of MS., 263 ; 
 in lectures and addresses, 265 ; 
 in unpublished letters, 266 ; if 
 letters are joint property of writer 
 and receiver, 268 ; publishing 
 letters without writer's consent, 
 270 ; inlettersto newspapers, 270 ; 
 who is an author and what is 
 literature, 271 ; first publication 
 in United Kingdom, 272 ; inter- 
 national, 272 ; treaties as to in- 
 ternational, ^^3 ; fixing price of 
 books and compelling republica- 
 tion, 274 ; what is a book, 274 ; 
 in newspapers, 275 ; in blas- 
 phemous, immoral, and seditious 
 books, 276 ; date of publication, 
 277 ; registering books, 278 ; as- 
 signment of, 279 ; is personalty, 
 279 ; when author has not radical 
 right, 281; of Crown, 281; of 
 University, 283 ; of Crown in 
 Bible and Prayer Book, 284 ; 
 Crown copyright in statutes and 
 proclamations, 285 ; in law 
 books, 285 ; Infringement of, 
 generally, 287 ; irt Directories, 
 and quasi-mechanical books, 
 289 ; infringement by books on 
 same subject, 290 ; infringement 
 by copying title of book, 290 ; 
 infringement by way of a review, 
 291 ; infringement by adding 
 notes, 291 ; infringement by 
 abridgment, 292 ; infringement 
 by importing pirated copies, 293 ; 
 interference with, by recitation 
 and dramatising, 294 ; remedy 
 by action for infringement, 295 ; 
 by* penalties; 297; remedy by 
 
 injunction for infringement, 297; 
 in periodicals, 299 ; in dramas, 
 301 ; in engravings, maps, charts, 
 312 ; in lithographs, 312 ; in 
 paintings, drawings, and photo- 
 graphs, 314 ; in sculptures, 316 ; 
 in designs, 317 ; distinguished 
 
 ■ from patent right, 319. 
 
 Coronation oath, 376. 
 
 Coroner, right to regulate entry of 
 public, 126 ; not liable for slander, 
 197, 
 
 Corporation Act of 1661, 620 ; in 
 city of London, 525. 
 
 Corporations, libelling and being 
 libelled, 153. 
 
 Correspondence, copyright in, 266. 
 
 Costs, in criminal prosecutions for 
 libel, 230 ; in actions for libel 
 and slander, 240 ; in criminal 
 suits of clergy, 514. 
 
 Councils of church, 380. 
 
 Counsel in courts slandering third 
 parties, 185. 
 
 County Court judge can in some 
 oases commit for contempt, 136 ; 
 not liable for slander, 197. 
 
 Court, contempt of, 121 ; right of 
 public to enter, 125 ; publishing 
 premature reports, 128 ; reports 
 of ex parte proceedings, 130 ; 
 reports where no jurisdiction in, 
 131 ; contempt for acts out of, 
 133 ; what courts can commit for 
 contempt, 135 ; iaferior courts 
 and judges, 136. 
 
 Cranworth, L., on trademark, 340 ;' 
 on Christianity as part of the 
 law, 352 ; on dissenters' mode of 
 worship, 533. 
 
 Credence table, legal, 431. 
 
 Creditor libelling his debtor, 191. 
 
 Creed of dissenters, changing of, 
 532. 
 
 Crime, libel or slander imputing, 
 163. 
 
 Criminal information for libel, 99, 
 207 ; offences of clergy, 497. 
 
 Cross, legality of, in churches, 432, 
 477 ; sign of, 477. 
 
 Crown, speech not gift from, 4 ; 
 right to petition, 30 ; prerogative 
 as to press, 46 ; license as to 
 publishing news, 55 ; proclama- 
 tion of, as to seditious libels, 84 ; 
 libels on, 85 ; older doctrines as 
 
556 
 
 INDEX. 
 
 to libels on, 87 ; libels on James 
 I., Charles I., Charles II., 89 ; 
 Wilkes's libel on, 89 ; Junius's 
 libel on, 90 ; libelling the king 
 as insane, 91 ; statutes as to 
 intimidating, 91 ; copyright of, 
 281 ; copyright in almanacs, 282 ; 
 may use patents without pay- 
 ment, 320. 
 
 Cniciflx in church, 432. 
 
 Curate, perpetual, 416 ; has not a 
 benefice, 417 ; stipendiary, 417 ; 
 bishop may order employment of, 
 417 ; bishop may revoke license 
 of, 418 ; stipend of, 418 ; num- 
 bers of in England, 418 ; right to 
 chair at a vestry, 438. 
 
 Curran on liberty of press, 41. 
 
 Cursing, 364; punishment, 365. 
 
 Custom of trade of printers, 48 ; as 
 to tithes, 462 ; as to dissenters' 
 trusts, 530. 
 
 Custos montm, doctrine of, 69. 
 
 Damages, in actions for libel, 239. 
 
 Dead, libels on the, 154. 
 
 Dean and Chapter, 414 ; their pre- 
 ferments, 415 ; regulation of 
 estates and endowments, 415 ; 
 rural, 416 ; of peculiars, 416. 
 
 Debates in Parliament, publication 
 of, 115. 
 
 Debating societies, lawfulness of, 
 26 ; on Sundays, 361. 
 
 Dedication of MS. to public, 261 ; 
 of patent, 336. 
 
 Defamation, see Libel. 
 
 Definition of liberty of press, 38 ; 
 blasphemous libel, 62, 65 ; im- 
 moral libel, 70 ; of seditious libel, 
 80 ; of personal libel, 144. 
 
 Degradation, a punishment of 
 clergy, 511. 
 
 Del., word denoting engraver's 
 mark, 314. 
 
 Delegates, court of, 494. 
 
 Denman, L., as to ex officio infor- 
 mation, 103. 
 
 Deprivation as a punishment, 511. 
 
 Desecration of church, 428. 
 
 Dilapidations, ecclesiastical, 441, 
 443. 
 
 Directories, copyright in, 289. 
 
 Disraeli on copyright, 249. 
 
 Dissenters, intolerance as to, 515 ; 
 Toleration Act, 621 ; registration 
 
 of meeting-houses, 523'; disturb- 
 ing worship, 623 ; serving as 
 sheriffs, 525 ; trust property and 
 mode of preserving it, 529 ; inter- 
 pretation of deeds of trust, 529 ; 
 their charities, 530 ; length of 
 possession of property, 631 ; 
 mode of appointing pastors, 531 ; 
 changing their creed, 533 ; their 
 civil and religious freedom, 534 ; 
 marriages of, 534 ; Quakers and 
 Unitarians, 535 ; Roman Catho- 
 lics as, 536 ; Jews as, 545 ; street 
 preachiig, 649. 
 
 Distress, recovery of tithe rent- 
 charge by, 466. 
 
 Disturbance of public meeting, 27 ; 
 of di'S'ine' service, 489, 523. 
 
 DiviAe origin of canon law, 379 ; 
 of tithes, 449. 
 
 Divine service, disturbing, 489. 
 
 Donative advowsons, .397 ; origin 
 of, 397. 
 
 Doors of dissenting chapels to be 
 open, 523, 635, 541. 
 
 foamaS, copyright in, 301 ; assign- 
 ment of, 303 ; infringement of 
 right in, 304. 
 
 Dramatising a novel, if an infringe- 
 ment, 294. 
 
 Ducki% of scolds, 147. 
 
 Easter diies, recovery of, 466. 
 
 Ecclesiastical commissioners, 388 ; 
 extent of property, 388. 
 
 Ecclesiastical courts, remedy for 
 defa;mation in, 208 ; criminal 
 jurisdiction of, 497 ; interpreting 
 Prayer-book, 503. 
 
 Ecclesiastical jurisdiction, early 
 notions, 370 ; generally, 491 ; 
 appealifrom courts, 493 ; watched 
 by temporal courts, 494 ; excesses 
 of, 495. 
 
 Ecclesiastical laws subject to amend- 
 ment, 350. 
 
 Editor of newspaper, how far liable 
 for libels, 161 ; calling one a felon 
 editor, 165. 
 
 Egyptians, trial of the dead by, 154. 
 
 Election of vestries and corporation 
 officers on Sunday, 355. 
 
 Ellenborough, L., on poor men as 
 politicians, 79 ; definition of a 
 seditious libel, 80 ; as to libelling 
 the king, 91 ; as to ridiculing 
 
INDEX. 
 
 557 
 
 miniaters of state, 94 ; on repeat- 
 ing a libel, 183. 
 
 Enchantment, pretending powers 
 of, 368. 
 
 Engravings, copyright in, 312 ; 
 registration of, 313. 
 
 Elitertaiument, houses of, on Sun- 
 day, 361. 
 
 Episcopal church, 376 ; divine 
 right of, 379. 
 
 Erie, J., on copyright, 253. 
 
 Erskine, on right to reputation, 6 ; 
 
 ■ on right of petitioning, 34 ; on 
 liberty of the press, 40 ; on 
 blasphemy, 65 ; as to bold lan- 
 guage at public meetings, 85, 86 ; 
 on free discussion, 96 ; on law 
 not punishing the thoughts, 157 ; 
 on liability of shopkeepers for 
 libels sold, 159 ; contention of, as 
 to juries in libel cases, 218, 220. 
 
 JEr officio information for seditious 
 libel, what, 99 ; origin of, 100 ; 
 procedure in, 101 ; policy of, 102. 
 
 Exchange of benefices, 404. 
 
 Excommunication as punishment, 
 508. 
 
 Excusable libels on privileged occa- 
 
 < sions, 184, 
 
 Extending patent, 339. 
 
 Factory work on Sunday, 358. 
 
 Faculty to alter parts of church, 
 413 ; discretion of bishop as to, 
 412 ; churchwardens' duty to 
 get, 413 ; granting a pew, 436. 
 
 False news, early doctrines as to 
 publishing, 53 ; maliciously pub- 
 lishing, 56. 
 
 Farming, clergy as to, 481. 
 
 Fees, baptism and surplice, 467. 
 
 Felon, calling one a, if actionable, 
 165. 
 
 First-fruits in benefices, 404. 
 
 Fish, catching, on Sunday, 360. 
 
 Five Mile Act, 621. 
 
 Flogging, public writer discussing, 
 79. 
 
 Foreign author of book, 272 ; foreign 
 inventor of patent, 328 ; owner 
 of trademark, 341. 
 
 Forgery of trademark, 345 ; of 
 artist's marks on pictures, 345 ; 
 of mark on engraving, 314. 
 
 Forms of legal writs, copyright in, 
 
 ■•■ 28?. 
 
 Fortune-telling, punishment, 308. 
 
 Fox, C. J., on restrictions on public 
 meetings, 20 ; on liberty of the 
 press, 42 ; on libelling the Kevo- 
 lution, 96 ; on toleration, 527. 
 
 Fox's Act as to libel cases, nature 
 of contention, 217. 
 
 France, free press in, 46 ; harassing 
 public writers, 79. 
 
 Frankalmoigue, 427. 
 
 Freehold of parson in church and 
 churchyard, 427 ; in churchyard 
 as to inscriptions on tombs, 433 ; 
 estate in tithes, 464. 
 
 Freemasons' meetings not unlawful, 
 25. 
 
 Friends, slander causing loss of, no 
 cause of action, 174 ; libel, when 
 excused as between, 189. 
 
 Game catching on Sunday, 359. 
 
 Glebe land, letting of, 443 ; clergy 
 farming, 481. 
 
 Good Friday, L. Mansfield sitting 
 on, 361. 
 
 Gordon riots and rights of petition- 
 ing, 33 ; putting down, 35. 
 
 Gouty, calling a gi-eat man, 181. 
 
 Government, criticising, 76 ; early 
 views as to writing against, 77 ; 
 libels on ministers of state, ' 92 ; 
 libels oh the constitution, 95. 
 
 Grenville on toleration, 528. 
 
 Guizot on the Eeformation, Pref. viiL 
 
 Habeas Cokpttr, sued by those com- 
 mitted for'breach of privilege, 110. 
 
 Hackney coaches on Sunday, 358. 
 
 Hale, G.J., on privilege of Parlia- 
 ment, 111 ; on particularity in 
 the laws, Preface, xiii. 
 
 Hall, R. , on stirring public discon- 
 tent, 79. 
 
 Handwriting of libel, how proved, 
 159. , 
 
 Hardwicke, JL., on liberty of press, 
 38. 
 
 Hatred and contempt, as caused by 
 libel, 169. 
 
 Heir of dead person libelled, 155. 
 
 Heresy, if Convocation can check, 
 386 ; trial and punishment for, 
 499 ; reason for burning for, 501. 
 
 High Commission Court, 495. 
 
 Highway, public meetings held on, 
 21 ; preaching on, 549. 
 
558 
 
 INDEX. 
 
 Hissing plays, 310. 
 
 Holland, L., on ex officio infor- 
 mations, 101. 
 
 Holt, C.J., as to reflections on 
 government, 92; as to ridicule 
 teing cause of action, 170 ; on 
 Parliamentary privilege, 199 ; as 
 to dissenters, 525. 
 
 Holy orders, indelibility of, 489 ; 
 see Clergy. 
 
 Holy table in churcli, 431. 
 
 Hone's trial for blasphemy, 66. 
 
 Hops, tithe of, 450, 464. 
 
 House of Commons and of Lords, 
 see Parliament. 
 
 House of Lords {see Parliament), 
 appointing reporter of state trial, 
 129, 287. 
 
 Hunt, Leigh, libel as to flogging, 94. 
 
 Hunt, trial in 1820 for secQtion, 21. 
 
 Hunting of clergy, 486, 
 
 Immobal libels, 69 ; definition of, 
 70 ; seizing and destroying, 70 ; 
 punishment of, 71. 
 
 Importation of printed copies as 
 infringement, 293. 
 
 Imprisonment, arresting libellers, 
 
 212 ; limit of, for libel, 225. 
 Impropriation of tithes, 452. 
 License in church, 477. 
 Incontinence, punishment for, 496. 
 Indelibility of holy orders, 490.- 
 Indemnity Acts for dissenters, 525. 
 Independents, see Dissenters. 
 Indictment for libel, 210 ; form of, 
 
 213 ; punishment, 223 ; costs on, 
 230. 
 
 Induction of priest to benefice, 425. 
 
 liifant signing presentation, 393. 
 
 Inferior officers of church in ancient 
 times, 407. 
 
 Information, ex officio for libel, 99 ; 
 policy of, 102 ; criminal for Hbfil, 
 207 ; form of, 213. 
 
 Infringement of copyright, 287 ; 
 by books on same sflbject, 290 ; 
 by copying title, 290 ; by a 
 review, 291 ; by adding notes, 
 291 ; by memory or recitation, 
 294 ; action for, 295 ; injunction 
 for, 297. ' 
 
 Infringement of patent, 336. 
 
 Inhabitant, right to pew, 436. 
 
 Injunction, not allowed for libel, 
 
 ' 230 ; for infringement of copy- 
 
 right, 297 ; for infringement of 
 
 patent, 337. 
 Innkeeper and land fide traveller, 
 
 364. 
 Innuendo in pleading in action foj 
 
 Hbel, 234. 
 Inquisition, the, 518, 
 Institution of priest to benefice, 425. 
 Interrogatories in actions for libel, 
 
 ,237. 
 Intimidating the sovereign, 81, 
 Intolerance a law of nature, 516; 
 
 statutes of, 519 ; see Toleration 
 
 and Dissenter. 
 Inventor of patent, 319. 
 
 Jeffreys, C.J., as to false news, 
 55 ; as to the doctrine of Queen's 
 Bench being custos morum, 69, 
 
 Jesuits, 543. 
 
 Jews, their Sabbath, 354 ; their 
 religion, 545 ; ancient treatment 
 of, 546 ; contracts and property 
 of, 547 J their civil and religious 
 liberty, 548, 
 
 Johnson, Dr., parliamentary de;r 
 bates by, 117. 
 
 Joint owners in patent, 330, 334. 
 
 Jones Gale, breach of priyilega by, 
 120. 
 
 Judge, what, can commit for con- 
 tempt, 135 ; not liable for slander, 
 195 ; when may be committed by 
 Parliament for molesting bflScers, 
 201 ; warrant of, to arrest libeller, 
 212 ; their views as to juries in 
 libel cases, 217 ; his function in 
 libel criminal cases, 222 ; func- 
 tions of, in actions for libel, 238 ; 
 copyright in their judgments, 
 286. 
 
 Judicial Committee of Privy 
 Council, appeal to, 494. 
 
 Judicial proceedings," slander in 
 coarse of, 1 95. 
 
 Junius, his secret, 58 ; his libel on 
 the king, 90 ; his power and 
 secrecy, 103. 
 
 Jurisdiction of Parliament and 
 courts in conflict, 108, 202. 
 
 Jury, importance of, in seditious 
 libels, 81, 82; functions of, in 
 deciding libel cases, 217; power 
 in jury cases, 221 ; finality of 
 verdict in libel cases, 222. 
 
 Justice of the peace, whether he 
 
Ij^DEX. 
 
 559 
 
 can pommit for contempt, 136 ; 
 libeliing him, 179; not liable for 
 slander in course of duty, 197 ; 
 charge of libel before, 210 ; 
 origin of jurisdiction over libels, 
 211 ; licensing theatres, 309 ; 
 liable to fine, if he do not fine 
 swearers, 366 ; jurisdiction of, in 
 tithe rentcharge, 466. 
 
 Kf.eping a place, meaning of words, 
 309. . ■ ■ : ' ■ 
 
 Kentish petition proceedings, 35. 
 
 Kenyon, L., as. to seditious libel, 
 81 ; as to patents, 322 ; on 
 Sunday Acts, 357. 
 
 Keys of church, right to, 435. 
 
 King, the, see Crownj 
 
 Kneeling at bar of. Parliament as 
 punishment, 119 ;. of clergy dur- 
 ing service, 477. 
 
 liAME, calling oneii 171. 
 
 Laudor on copyright at common 
 
 law, 249. . ; 
 
 Lansdown, L., as to seditious libel, 
 
 81. ' 
 Latin grammar, copyright in, 283. 
 Laughing at a libel, if a publica- 
 tion of it, 158. 
 Law does not punisk the thoughts, 
 
 157. 
 Law books, right to print 
 
 formerly, 117; copyright in, 
 
 285. 
 Law courts and Parliament con- 
 trasted, 107. 
 Law courts and legal business on 
 
 Sunday, 360. 
 Law reports, copyright in, 28G ; 
 
 copyright in head-notes to, 293. 
 Laws of God as part of law, 
 
 351. 
 Lay rector, 452. 
 Learning of priests, examined by 
 
 bishop, 422. 
 Lease of ecclesiastical property, 
 
 443. 
 Lectures, copyright in, 265. 
 .Lecturers in Church of England, 
 
 419 ;. licensed by bishop, 419 ; 
 
 approval by bishop, 425. 
 Lecturing, public, 13 ; places for, 
 
 29 ; admission to, 30 ; riot at, 
 
 30. 
 Letters, copyright in unpublished. 
 
 . 265 ; if they are joint pnjperty 
 of -vcriter and receiver, 268; pub- 
 lishing without writer's consent, 
 270 ; copyright in letters to news- 
 papers, 270. 
 Letting ecclesiastical property,443. 
 Zexet consuetudo Parliamenti, 111. 
 Libel, blasphemous, 61, 67 ; obscene 
 and immoral, 69 ; seditions, 74 ; 
 on Parliament, 105 ; ridicule 
 of author by critics, 139'; on 
 personal reputation, 141 ; defi- 
 nition of, 144 ; -distinction of 
 slander, 145, 146 ; if scolding is, 
 147 ; threat to publish, 148 ; if 
 constructive breach of peace, 148 ; 
 if malice is ingredient, 149 ; con- 
 straction of, 151 ; medium of 
 libellous act, 152 ; libelling 
 classes of persons, 153 ; libels on 
 the dead, 154 ; publication essen- 
 tial to, 156 ; if publication is per 
 se a crime, 157 ; mode of proving 
 publication, 159 ; liability of 
 bookseller and siopkeeper, 159 ; 
 liability of proprietor of news- 
 paper for, 160 ; liability of third 
 person for causing publication, 
 162 ; imputing crime, 163 ; 
 mere scurrility, 164 ; of offences 
 past and jjunished, 165 ; what 
 was once offence, 166 ; attempts 
 to commit crime,, 167 ; not clearly 
 imputing crime, 167 ; calling 
 scurrilous names, 168 ; exposing 
 to hatred and contempt, 169 ; 
 imputing immorality or un- 
 chastity, 172 ; the kind of special 
 damage following on charge of 
 immorality, 173 ; words imputing 
 unchastity when printed, 175 ; 
 libel on professional conduct, 175 ; 
 rival tradesmen .slandering each 
 other, 178 ; defaming one holding 
 public office, 179 ; libelling one 
 holding office of profit, 180 ; 
 action of scandalum magnatum, 
 180 ; repeating a slander or libel, 
 182 ; excusable libels on privi- 
 leged occasions, 184 ; excuse in 
 giving servant's character, 186 ; 
 excuse in confidential communi- 
 cations, 189 ; excuse in protect- 
 ing pecuniary interest, 191 ; 
 excuse in self-defence, 192 ; pri- 
 vileged occasion not. to be abused 
 
560 
 
 INDEX. 
 
 to cloak malice, 192 ; complaints 
 to official superior, when libellous, 
 193 ; excuse in judicial proceed- 
 ings, 196 ; excuse of, in justices 
 of feace and coroners, 197 ; 
 excuse in publishing speech 
 delivered'in Parliament, 197 ; ex- 
 cuse in publishing Parliamentary 
 papers, 199 ; mode of Parliament 
 protecting printers of papers, 
 200 ; excuse in publishing law 
 reports, 203; excuse in publishing 
 reports of public meetings, 204 ; 
 excuse in slandering from pulpit, 
 206 ; remedies for, 207 ; old 
 remedy iu Ecclesiastical Court, 
 208 ; remedy by criminal in- 
 formation, 208 ; conditions of 
 granting, 208 ; remedy by indict- 
 ment, 210 ; jurisdiction of jus- 
 tices of peace over, 211 ; arrest 
 of libeller, 212 ; form of indict- 
 ment and information, 213 ; how 
 far trnth of libel a defence, 213 ; 
 defence that libel was published 
 for public benefit, 215 ; effect of 
 not contradicting, 216 ; functions 
 of juries in deciding libel cases, 
 217 ; unsatisfactory state of law 
 before Fox's Act, 219; practice 
 since Fox's Act, 220 ; finality 
 of verdict of juiy in, 222 ; pun- 
 ishment of, 223 ; pillory for, 
 225 ; limit of imprisonment for, 
 225 ; mitigation of punishment 
 for, 226 ; security for good be- 
 haviour as punishment, 226 ; 
 seizing and destroying blasphe- . 
 moils and seditious, 228 ; ordering 
 libel to be burnt, 228 ; no sum- 
 mary remedy or injunction for, 
 230 ; costs on criminal prosecu- 
 tions for, 230 ; remedy for slander 
 and libel by action for damages, 
 232 ; the pleadings iu sucii 
 actions, 233 ; defence to action 
 that libel is true, 234 ; evidence 
 on actions, 235 ; when libel said 
 to be substantially true, 236 ; 
 interrogatories and evidence iu 
 cases of libel, 237 ; defence for 
 libels in newspapers, 237 ; func- 
 tions of judge in trial of actions 
 for, 238 ; damages in actions for, 
 239 ; limitation of time for 
 actions, 239. 
 
 Liberty of press defined, 38 ; see 
 Press. 
 
 License to hold public meetings, 
 20 ; to keep theatres, 309 ; to 
 use patent, 335 ; for non-resi- 
 dence, 440. 
 
 Licensing Act of 1662, 45 ; as to 
 public-houses on Sunday, 363. 
 
 Literature, what is, 274. 
 
 Lithographing copy is infringe- 
 ment, 296. 
 
 Littledale, J., as to seditions libels, 
 83. 
 
 Locke on toleration, 527. 
 
 London city fining; dissenters, 525. 
 
 Luther on heresy and persecution, 
 Preface, x. ; his Table Talk and 
 copyright of Captain Bell therein, 
 243 ; as to ceremonies, 472 ; on 
 indelibility of holy orders, 490. 
 
 Lyndhurst on Copyright Act of 
 Anne, 243 ; copyright is not 
 monopoly, 256. 
 
 Maoaulay on publishing parlia- 
 mentary debates, 116 ; on tolera- 
 tion, 523. 
 
 Mackintosh on liberty of press, 41 ; 
 as to criticising' government, 75 ; 
 on definition of seditious libel, 
 80 ; on juries in libel oases, 221. 
 
 Magnatum, s'comdaliim,, 180. 
 
 Malice in libels, what, 142 ; when 
 privilege used to cloak, 193. 
 
 Manager of theatre, his copyright, 
 281 ; his powers, 310. 
 
 Mansfield, L., as to criticising 
 government, 75 ; on sedition and 
 high-treason, 80 ; as to ex officio 
 prosecutions, 103 ; as to military 
 commanders libelling each other, 
 194 ; doctrine as to juries in libel 
 cases, 218 ; on Sunday Acts, 357 ; 
 sitting on Good Friday, 361 ; on 
 toleration, 525; on Roman Catho- 
 lics, 526. 
 
 Mansion House and dissenters, 525. 
 
 Manuscript, copyright in, 258 ; lend- 
 ing to friends, 258 ; copyright in, 
 assignable, 260 ; dedication of, to 
 public, 261 ; lithographing, 263 ; 
 bauki'uptcy of owner of, 263. 
 
 Market garden, tithe of, 466. 
 
 Marriage, lost by a slander on one's 
 morality, 172 ; duty of clergy as 
 to, 471 ; of clergy, 482 ; of dis-" 
 
INDEX. 
 
 601 
 
 senters, 634 ; of Quakers, 536 ; 
 of Jews, 646. 
 Married woman suing for slander of 
 
 chastity, 172, 174. 
 Master, libel excused in giving ser- 
 vant's character, 186 ; officiously 
 informing ahout servant's mis- 
 conduct, 188. 
 
 Mayor attending meeting-houses, 
 524, 543. 
 
 Meeting, public, generally, 12 ; 
 freedom of, 19 ; if king's license 
 ever needed, 20 ; the first held, 
 20 ; once not allowed without 
 magistrates' license, 20 ; Fox as to 
 restrictions on, 20 ; restriction as 
 to place of, 21 ; held on high- 
 way, 22 ; in public parks, 22 ; 
 ■within a mUe of Parliament, 24 ; 
 in societies and clubs, 24; de- 
 ' bating societies, 26 ; protection 
 against disturbance, 27 ; chair- 
 man's powers, 28 ; lectures and 
 addresses at, 29 ; to petition 
 Crown and Parliament, 30 ; pro- 
 clamation of Crown as to seditions, 
 84 ; sedition at, 85 ; bold lan- 
 guage at, 85 ; reports of, not pro- 
 tected, 204. 
 
 Meeting-house, registration of, 525. 
 
 Member of Parliament committing 
 breach of privilege, 113. 
 
 Merchandise Marks Act, 345. 
 
 Military men, libellous complaints 
 between, 194. 
 
 Milk, tithe of, 460. 
 
 Milton, liberty of thought. Preface, 
 xiv. 
 
 Mines, working in, on Sunday, 358 ; 
 working, on ecclesiastical pro- 
 perty, 442. 
 
 Ministers of State, libels on, 92 ; 
 of dissenting congregations, how 
 appointed, 531. 
 
 Mixt tithe, 456. 
 
 Modus of tithe, 461 ; when rank, 462. 
 
 Monasteries, suppression of, 485. 
 
 Monboddo, L., on copyright, 258. 
 
 Monition in Ecclesiastical Courts, 
 512. 
 
 Monopoly, copyright is not, 256, 
 319 J statute of, 323. 
 
 Monument inscriptions, 433. 
 
 Mortgage of advowson, 393. 
 
 Municipal offices, clergy holding, 
 482. 
 
 New invention, what is, 325. 
 
 News, early doctrine as to publish- 
 ing, 52 ; statutes as to false 
 news, 63; right to publish 
 generally, 54 ; Soroggs and 
 Jeffreys as to, 65 ; maliciously 
 publishing false, 56 ; special laws 
 as to newspapers, 56 ; earliest 
 newspapers, 56 ; freedom to 
 publish, and suppression, 57. 
 
 Newspapers, special laws as to, 56 ; 
 stapip duty on, 57; advertise- 
 ment duty, 57 ; paper duty, 57 ; 
 suppression of, 67 ; discovery of 
 proprietors of, 58 ; postage faci- 
 lities, 68 ; advertisement for 
 stolen property, 59 ; publishing 
 debates in Parliament, 115 ; 
 publishing trials at law, 128 ; 
 comments on public officers, 136 ; 
 comments on books and pictures, 
 138 ; proof of libel published in, 
 169, 161 ; liability of proprietor 
 of, for libels, 160 ; third party 
 causing libel to be inserted in, 
 162 5 defence of libels in, 237 ; 
 apology for libel in, 238 ; copy- 
 right in letters to, 270 ; copy- 
 right in newspapers, 275. 
 
 North, L., as to petition for dis- 
 solution, 34 ; as to ex officio 
 informations, 103. 
 
 Novel, dramatising, not an in- 
 fringement, 295. 
 
 Novelty as an element of patent, 
 325. 
 
 Oath, unlawful societies and clubs 
 with, 24 ; profane and cursing, 
 364 ; of supremacy, 376 ; coro- 
 nation, 376. 
 
 Obscene libels and publications, 
 69 ; see Immoral. 
 
 Obventions, recovery of, 466. 
 
 Offences of clergy, 497. 
 
 Offerings or Easter dues, 466. 
 
 Offertory in church, 468. 
 
 Office, slandering one in his, 180. 
 
 Officers in church inferior to priests 
 in ancient times, 407. 
 
 Official superior, libellous complaint 
 to, 193. 
 
 Opera, copyright in, 302 ; re- 
 quires license, 307. 
 
 Orator, copyright of, in speeches, 
 262. 
 
 O 
 
562 
 
 INDEX. 
 
 Ordinary calling on Sunday, 356. 
 
 Organ in.chiiroh, 430. 
 
 Ornaments- in churcli, 431 ; inert 
 
 and active, 432 ; crucifix, 432 ; 
 
 stations of cross and reredos, 432 ; 
 
 flowers, 432 ; rubrics as to, 480, 
 
 Paintino, libel by, 152 ; copy- 
 right in, 314 ; imitating marks 
 of painter ou, 315. 
 
 Palmistry, offence of, 369. 
 
 Pantomime requires license, 307. 
 
 Paper duty, repeal of, 57. 
 
 Papers, wearing, as punisbment, 
 1U3. 
 
 Papers, Parliamentary, protected, 
 though libellous, 200. 
 
 Papists holding advowsons, 396 ; 
 see Korrjan Catholics. 
 
 Parishes, origin of, 389 ; smallest 
 in England, 390 ; clergy in- 
 vading another, 505. 
 
 Parishioners electing parson, 394 ; 
 ballot lawful, 394; electing 
 lecturers, 419. 
 
 Parke, B., ou patents, 322. 
 
 Parks, public, meetings held in, 
 22. 
 
 Parliament, public meetings with- 
 in a mile of, 24 ; right to petition, 
 30 ; resolution of, as to seditious 
 libel, 85 ; and law courts con- 
 trasted, 107 ; privilege of, 106; 
 early instances of 109; punish- 
 ment of breach of privilege, 
 114 ; publishing debates in, 116 -; 
 punishing for breach of privilege, 
 119 ; if pillory is legal punish- 
 ment of Parliament, 119 ; speech 
 delivered in, publication of, 197 ; 
 excuse of Khels in papers ordered 
 by, 199 ; protection of its officers 
 in publishing papers, 200 ; con- 
 flict with courts ended by a 
 statute, 203 ; clergy entering; 
 481; Roman Catholics, 540; 
 Jews, 648. 
 
 Parodies of Scripture, Hone's trial 
 for, 06. 
 
 Parsonage, see Residence. 
 
 Parson's freehold in church, 427 ; 
 division into rectors and vicars, 
 451. 
 Partners being libelled, 153. 
 
 Paten, elevation of, in church, 477. 
 Patent right, generally, 16, 318; 
 
 distinguishedfromcopyright,319 ; 
 from monopolies, 319 ; confusion 
 in early ideas of, 321 ; Kenyon, 
 Parke, Tenterden, as to, 322; 
 not a spepies of contract, 322 ; 
 subject m, 323 ; implies some- 
 thing corporeal and material, 324 ; 
 novelty as an element, 325; utility 
 as an ingredient, 327 ; prior pub- 
 lication of, 327 ; including several 
 distinct things, 329 ; for joint in- 
 vention, 330 ; for a principle or 
 process, 330 ; requirements of 
 the specification, 331 ; must state 
 what is new and old, 332 ; in- 
 telligible to workmen, 333 ; good 
 faith in disclosing, 333 ; regis- 
 tration of, 334 ; more than twelve 
 persons may hold, 334 ; assign- 
 ment of, 334 ; bankruptcy of 
 ■ owner, 334 ; joint owners in, 334 ; 
 assignment of, 834 ; license 
 to use, 335 ; abandonment of, 
 336 ; infringement of, 336 ; in- 
 junction against infringement, 
 337 ; questions for jury on trial 
 of action, 338 ; extending, alter- 
 ing, and repealing, 339. 
 
 Paterines, a blasphemous sect, hoW 
 treated, 68. 
 
 Patron, 390 ; see Advowson. 
 
 Payment into court in actions for 
 Ubel, 238.' 
 
 Peace, breach of, if libel is, 148, 
 227. 
 
 Pecuniary interest often excuses 
 libel, 191. 
 
 Peer, wi-iting life of, when dead, 
 156 ; libelling by saying he re- 
 sembles the devil, 170 ; scandal- 
 ising them, 181 ; actions by, for 
 scandal, 182. 
 
 Penance as a punishment, 611. 
 
 Penitence, public, 612. 
 
 Pensions for tithes, recovery, 
 466. 
 
 Periodicals, copyright in, 299 ; 
 registration at Stationers' Hall, 
 299. 
 
 Perjury in Ecclesiastical Courts, 
 496. 
 
 Perpetual curates, 416 ; not re- 
 movable, 416 ; requires no in- 
 stitution, 426 ; vicar, 452. 
 
 Persecution, St. Austin on, 518 J 
 L. Mansfield as to, 526. 
 
INDEX. 
 
 503 
 
 Personal tithe, 456, 461. 
 
 Perturbation of pew, action for. 
 437. 
 
 Petition to Crown and Parliament, 
 13 ; right to, 30 ; statutes as to, 
 32 ; signatures to, 32 ; Bill of 
 Eights as to, 33 ; must be respect- 
 ful, 34 ; Kentish, 35 ; Chartist, 
 35 ; Gordon riots, 35 ; as to Sir 
 F. Burdett, 36 ; against bishops, 
 36 ; fraud in signatures, 37 ; 
 reports of meetings to, 205. 
 
 Pews, right to, 436. 
 
 Photograph, copyright in, 314 ; is 
 infringement of painting, 814. , 
 
 Pictures, criticisms on, 188 ; libels 
 in foi-m of, 162. 
 
 Pig, tithe of, 462. 
 
 Pillory, for seditions libel, 103 ; 
 for breach of privilege, if legal, 
 119. 
 
 Pitt, libel on, for corruption, 95. 
 
 Players anciently treated as in- 
 famous, 308. 
 
 Plays, copyright in, 301 ; assign- 
 ment of, 303 ; assignment of 
 right in, 304; censorship of, stUl 
 retained, 305 ; hissing at, 310. 
 
 Pluralities, 444. 
 
 Poor rate, clergy liable to, 488. 
 
 Pope, the, prohibiting boots, 50 ; 
 his jurisdiction in England, 370 ; 
 could neither fine nor imprison, 
 371. 
 
 Pope's letters, copyright in, 268. 
 
 Popery, see Eoman Catholics. 
 
 Position of clergyman in com- 
 munion, 478. 
 
 Post office, facilities for newspapers, 
 59 J security of letters sent by, 
 60. 
 
 Potatoes, tithe of, 450, 456, 459. 
 
 Prsedial tithes^ 456. 
 
 Prayer for the Eoyal Family, 
 476. 
 
 Prayer-book, as. to worship, 474 ; 
 depravation of, 504. , 
 
 Preaching in private houses, 507 ; 
 Dissenting and Test Act, 524 ; in 
 streets, 549. 
 
 Presbyterian charities, 530 ; see 
 Dissenters. 
 
 Prescriptive pew, 43S. 
 
 Presentation, 390 {see Advowson, 
 Benefice) ; must be in writing, 
 422. 
 
 Press, liberty of, general restric- 
 tions, 14 ; defined, 38 ; L. Hai-d- 
 wiclce on, 38 ; Erskine on, 40 ; 
 Curran and Mackintosh on, 41 ; 
 Fox and Sheridan on, 42 ; the 
 ancients on, 42 ; introduction of, 
 in England, 44 ; Licensing Act 
 of 1662 as to, 45 ; censorship of, 
 50; special Jaws as to newspapers, 
 53, 56 ; restrictions on, as to 
 blasphemy, 61 ; some advantages 
 of, 79 ; reports of Parliamentary 
 debates, 115 ; reports of courts 
 of justice, 126 ; inferior courts, 
 136 ; comments on public ofiicers, 
 137; on persons challenging pub- 
 lic noticBi 137 ; comments on 
 books, pictures, &c., 138. 
 
 Priests, separate order of, 406 ; 
 qualifications of, 420 ; ancient 
 rules as to, 421 ; prcsentatioli to 
 benefice, 421 ; fitness for institu- 
 tion, 422 ; iDishop must state 
 reasons of rejection, 423 ; ordina- 
 tion of, 423 ; institution and 
 induction; 425 ; freehold in 
 church, 427. 
 
 Principle, patent for a, 330. 
 
 Printers, early restrictions on num- 
 ber of, 43 ; Licensing Act of 
 1662 as to, 45 ; to keep copies of 
 prints, 47 ; contracts of, 48 ; 
 immoral works, 48 ; registration 
 of presses, 49 ; kneeling at bar 
 of Parliament, 120 ; protected in 
 publishing parliamentary papers, 
 200. 
 
 Printers, Queen's, copyright in 
 Bible and Common Prayer, 284. 
 
 Private houses, preaching in, 507. 
 
 Privilege of Parliament, 106; 
 punishment for, ll9 ; conflict 
 with courts as to, 200. 
 
 Privileged occasioii, in case of 
 libel, 184 ; not to be abused to 
 cloak malice, 192. 
 
 Privy Council, appeal to, from 
 Ecdlesiastical Courts, 494. 
 
 Process, patent for a, 330. 
 
 Protiessions, public, iii streets, le-" 
 gality, 24 ; in church, 477. 
 
 Profanation of Sabbath, 362; see 
 Sunday. 
 
 Profane swearing, 364; punish- 
 ment, 365. 
 
 Profession, slander on one s, 175. 
 
564 
 
 K^DEX. 
 
 Profit, slandering one holding office 
 of, 180. 
 
 Prohibition to ecclesiastical courts, 
 495 ; as to tithe, 456. 
 
 Prophesying, early statutes against, 
 54. 
 
 Proprietors of newspapers, how 
 discovered, 58. 
 
 Prostitute, calling a woman, 168. 
 
 Prostration of clergymen in worship, 
 477. ^ 
 
 Protecting pecuniary interests ex- 
 cuses libel, 191. 
 
 Protestant Episcopal Church, 376. 
 
 Public benefit, defence of libel being 
 published for, 215. 
 
 Public, dedication of MS. to, 261. , 
 
 Public-houses on Sunday, 363. 
 
 Public libraries, gift of books to, 
 by authors, 274. 
 
 Public meeting, free speech at, 12 
 {see Meeting) ; sedition at, 85 ; 
 reports of, 204. 
 
 Public men, libels on, 92 ; persons 
 challenging public notice, 137. 
 
 Public opinion, the ancients on, 76 ; 
 views about, 77. 
 
 Public parks, meetings in, 22. 
 
 Public right :of entering courts of 
 justice, 125. 
 
 Public taxes, clergy as to, 487. 
 
 Public use of a patent, 328, 329. 
 
 Public worship, see Worship. 
 
 Public "Worship Act, 498. 
 
 Publication of news, early notions 
 of, 53 ; of Parliamentary debates, 
 115 ; of trials in courts of Justice, 
 126 ; of a libel, when necessary, 
 156 ; mode of proving, 158 ; 
 when ■ a defence, if for public 
 benefit, 215 ; first, of book in ^ 
 United Kingdom, 272 ; date of, 
 277 ; effect of, as regards use of 
 book, 288 ; prior of, a patent, 
 o27. 
 
 Pulpit, slandering from, 206. 
 
 Punishment for blasphemy, 68 ; 
 for immorality and obscenity, 
 71 ; for seditious libel; 103 ; for 
 breach of privilege, 119 ; kneel- 
 ing at bar of Parliament, 319 ; 
 of, libel,, 223 ; of heresy, 501 ;,of 
 clergy, 507., 
 
 Puritans, petitions to the king, 
 legality of, 88. 
 
 QuAKEBS, recovering tithes from, 
 467 ; their protection as to re- 
 ligion, 535. 
 
 Quarter Sessions Court can commit 
 for contempt, 135. 
 
 Queen Anne's Bounty, 439. 
 
 Queen's printer's copyright in Bible 
 and Common Prayer, 284. 
 
 Railway travelling on Sunday, 
 
 359. 
 Eebuilding church, 428. 
 Eecitation of book no infringement, 
 
 294. 
 Recognisance for good behaviour in 
 
 libel, 148, 212, 226. 
 Recreations of clergy, 486. 
 Kector, lay, freeholdin church, 429 ; 
 
 in churchyard, 433 ; tithes of, 
 
 452. . ■ 
 Rectors distinguished from vicars, 
 
 451 {see Clergy) ; numbers of, 
 
 452. 
 Rectory, see Residence. 
 Recusants, statutes as to, 519 ; see 
 
 Roman Catholics and Dissenters. 
 Reformers, intolerance of, 518. 
 Registration of printing presses, 
 
 49 ; of copyright, 278 ; of patents, 
 
 334 ; of trademarks, 343 ; of 
 
 places of worship, 507. 
 Relatives, libel excused as to, 189. 
 Religion, origin of, 350 ; Guizot, 
 
 Chesterfield, Wordsworth, on, 
 
 351. 
 Religious houses and tithes, 452 ; 
 
 orders of Roman Catholics, 544. 
 Rent for license of patent, 335. 
 Rentchargo tithe, 462; finality of 
 
 settlement, 463 ; recovery by 
 
 distress, 465. 
 Repairs of church, 429. 
 Repealing a patent, 339. 
 Repeating a slander of libel, 182. 
 Reporter, right to enter courts, 
 
 125 ; to report law courts, 126 ; 
 
 daily reports of long trials, 129 ; 
 
 reports must be fair, 131 ; ver- 
 batim, not required, 132. 
 Reports of Parliamentary debates, 
 
 115, 119 ■; of courts of law, 203; 
 
 of public meetings, 204. 
 Repsesentation of a play as copy- 
 right, 302 ; as requiring license, 
 
 810. 
 Reputation, Erskine's account of, 
 
INDEX. 
 
 565 
 
 6 ; iow acqmred, 7 ; likened to 
 property, 7. 
 
 Eeredos in church, 432. 
 
 Residence of clergy, 438 ; repairs, 
 438, 441 ; license for non-resi- 
 dence, 440 ; dilapidations in, 441 ; 
 modern remedy, 443 ; letting 
 and alienation of, 443 ; plurali- 
 .ties, 444. 
 
 Resignation bonds, general, 401 ; 
 special, 402 ; of office by bishop, 
 414 ; by priest, 482. 
 
 Revels, master of the, 305. 
 
 Review of book as infringement of 
 copyright, 291. 
 
 Ridicule of author by critic, 139 ; 
 how far actionable for libel, 169. 
 
 Riot at public meeting, 28 ; at public 
 lecture, 30 ; at theatre, 311. 
 
 Roman Catholic holding advowsons, 
 396 ; excepted from Toleration 
 Act, 522 ; former punishments 
 of, 537; Popish recusants and 
 their punishments, 538 ; sitting 
 in Parliament, 538 ; schools, 
 540 ; charities and gifts to, 
 639 ; oaths required from, 
 540 ; oath ■ of supremacy, 640 ; 
 holding property, 540 ; relief to, 
 by degrees, 541 ; registration of 
 places of worship, 542 ; Emanci- 
 pation Act, 642 ; marriages of,, 
 543 ; may hold nearly all offices, 
 543 ; Jesuits, 543. 
 
 Eomilly, on discussing consti- 
 tutional questions, 113 ; on con- 
 fession of offence at bar of 
 Parliament, 120., 
 
 Rural dean, 416. 
 
 Russell, Lord J. , on power of House 
 of Commons, 106 ; on privilege- 
 of Parliament, 202 ; on tolera- 
 tion, 528. 
 
 Sabbath, profanation of, 352 ;, see 
 
 Sunday. 
 Sacheverell's impeachment, 97. 
 Sackcloth in penance, 512. 
 Sacrilege, 434. 
 St. Austin on heresy, 518. 
 Scandalum magnatum, early 
 
 statutes as to, 63 ; action of, 
 
 180. _ 
 Scattering libels in crowds, 157. 
 Schism, offence of, 498. 
 Schoolboeks, copyright in, 275. 
 
 Schoolmaster, clergy as, 481. 
 
 Scolding an indictable offence, 
 147 ; ducking as punishment, 
 147. 
 
 Scots, ancient punishment of blas- 
 phemy, 68 ; of libel, 224 ; views 
 of copyright, 257 ; copyright in 
 Bible, 284 ; as to players, 308 ; 
 as to laws relating to Sunday, 
 365 ; witch-finding in, 368 ; 
 prayers for royal family, 476. 
 
 Scripture, inspiration of, 603. 
 
 Scroggs, C, as to false news, 55 ; 
 suppressing newspapers, 58 ; pro- 
 hibiting reports of trials, 126 ; 
 profane swearing, 365. 
 
 Sculpture, copyright in, 310. 
 
 Scurrility, words if not libellous, 
 164 ; calling names, 168. 
 
 Secretary of State opening post 
 letters, 60 ; arresting by general 
 warrant seditious authors, 97 ; 
 committing seditious libellers, 
 98 ; writing to, complaining of 
 inferior officer, 193. 
 
 Sedition, generally, 5 ; citizens' 
 right to comment on all pub- 
 lic men, 74 ; Swift and Lord 
 Mansfield and Mackintosh as to 
 this, 76 ; views as to public 
 opinion, 76 ; the ancients as to 
 this, 76 ; early comments on 
 public affairs, 77 ; finding fault , 
 with government, 78 ; defining 
 seditious libel, 80 ; Lord Ellen- 
 borough, Camden, and Kenyon 
 and Lord Lansdowne as to this, 
 81 ; essence of such libel, 81 ; 
 correct definition of, 83 ; procla- 
 mations of Crown as to, 84 ; 
 House of Commons resolution as 
 to, 85 ; public meetings seditious, 
 85 ; physical force demonstra- 
 tions, 86 ; unpublished writing 
 as seditions, 86 ; libels on the 
 sovereign, 86 ; older doctrines as 
 to libels on sovereign, 87 ; modern 
 cases of seditious writings against 
 Crown, 89 ; speaking against 
 Crown, 92 ; seditious libels against 
 ministers of state, 92 ; Cobbett's 
 libel, 94 ; libel on Pitt, 94 ; libels 
 on constitution, 95 ; examples of 
 these, 96 ; arresting seditious 
 speakers, 97 ; ex officio informa- 
 tion for, 99 ; procedure in, 101 ; 
 
566 
 
 INDEX. 
 
 policy of, 102 ; punishment for 
 seditious libel, 103 ; libels on 
 Parliament, 106 ; early instances 
 of breach of privilege, 109 ; 
 power of Parliament, 110 ; in- 
 stances of libels on Parliament, 
 112 ; modes of punishing breach 
 of privilege, 115 ; seizing and 
 destroying libels, 228 ; ordering 
 libels to be burnt, 228. 
 Seizing immoral libels, 70 ; blas- 
 phemous libels, 228. 
 Sequestration as punishment, 510. 
 Sermon, Parson Prick libelling "by 
 
 a, 152. 
 Servant receiving a libel for master, 
 157 ; libel by master in giving 
 character of, 186 ; officiously in- 
 forming against, to his master, 
 188. 
 Several offences on one day, ti'ading 
 
 on Sunday, 358 ; oaths, 366. 
 Shaving on Sunday in Scotland, 
 
 355. 
 Sheriff punished by Parliament and 
 
 courts of law, 200. 
 Shopkeeper, how far liable for libels 
 
 sold, 169. 
 Simony as to presentations, 398 ; 
 in ancient times, 398 ; statutes 
 against, 399; construction of, 
 399 ; gift to patron's wife, 400 ; 
 sale of advowson or presentation 
 when incumbent in dying state, 
 400 ; practice of resignation 
 bonds, 401 ; statute making valid 
 these bonds if for near relatives, 
 403; remedy for, 403. 
 Six Acts in 1819) what, 20. 
 Six Articles Act, 519. 
 Slander, 141 ; distinguished from 
 libel, 144 ; from scolding, 147 ; 
 see also Libel: 
 Societies and clubs, when unlawful, 
 
 24 ; debating; when lawful> 26. 
 Socrates on free speech, i: 
 Solicitor, one friend consulting 
 
 another about a, 189. 
 Song, libel by a, 152. 
 Sorcery, pretending to, 368. 
 Southey's copyright in JVat Tyler, 
 
 276. 
 Sovereign, see Crown. 
 Speaker of House of Commons sued 
 
 for libel, 199. 
 Specification of patent, 331, 
 
 Speech, tendency to free, 3 ; how 
 first treated, 4 ; essential re- 
 straints on, 6 ; double aspect of, 
 11 ; distinguished from writing, 
 10 ; in Parliament, publication 
 of, 197. 
 Speeches, oratory's copyright in, 262. 
 Spirits of dead, messages from, 369. 
 Stage play requires license, 307 ; 
 
 what it includes, 307. 
 Stage right in dramas, 294. 
 Stamp Act as to newspapers, 57. 
 Stanhope, L., on liberty of press. 
 
 Preface, xiv. 
 State and Church, 371, 372. 
 Stationers' Company and Licensing 
 Act of 1662, 45 ; first charter of, 
 243 ; registration of copyright 
 with, 278 ; of assignment of, 
 279 ; registration of copyright in 
 paintings, 315. 
 Stations pf.the cross in churches, 
 
 432. 
 Statutes, copyright in, 285 ; right 
 
 to arrange and digest, 285. 
 Stolen property, advertisement for, 
 
 59 ; pretending to find, 368. 
 Strangers in Parliament, motion to 
 
 exclude, 118. 
 Street preaching, 549. 
 Submission of the clergy, 372. 
 Suffragan bishops, 414. 
 Sunday, ancient law as to, 352 ; 
 early English laws as to, 354 ; 
 fairs and markets on, 355 ; Puri- 
 tan views of, 355 ; election of 
 vestries and corporation officers 
 on, 355; general work and selling 
 goods on, 356 ; works of one s 
 ordinary calling, 356; bakers' 
 work on Sunday, 356 ; pro- 
 fessional work on, 357 ; factory 
 work on, 358 ; one penalty re- 
 coverable for work on, 358 ; 
 leave to prosecute for offences on, 
 358 ; travelling on, 358 ; hackney 
 coaches on, 358 ; stage coaches 
 and railways on, 359 ; sports and 
 games on, 359 ; theatres, killing 
 game and fish on, 359 ; law 
 courts sitting, and legal business 
 on, 360 ; bills of exchange on, 
 361 ; houses of entertainment 
 and debating societies on, 361 ; 
 opening public-houses on, 363 ; 
 bondjide travellers, 364. 
 
INDEX. 
 
 567 
 
 Suppression of newspapers, 57. 
 
 Supremacy in church affairs, 374 ; 
 oath of, 376. 
 
 Sureties for good hehaviour in case 
 of libel, 148, 212; as part of 
 punishment, 226. 
 
 Suspension of clergy, 509. 
 
 Swearing profanely, 364 ; punish- 
 ment, 365. 
 
 Swift as to criticising government, 
 74. 
 
 Table, on Communion, 478. 
 
 Talfourd on common law copyright, 
 249. 
 
 Taxes, exemption of clergy from, 
 487. 
 
 Tenterden, L. , on liability of shop- 
 keepers for libels, 160, 
 
 Tenths transferred to Crown, 404. 
 
 Test Act, 621 ; repeal, 526. 
 
 Theatres reqtdre license, 308 ; 
 ancient laws as to, 308 ; applaud- 
 ing and hissing at, 310 ; con- 
 spiracy to hiss, 311 ; opening on 
 Sunday, 359. 
 
 Thief, calling one a, 164. 
 
 Thought, its chief medium, 10 ; in 
 meetings, 12. 
 
 Thurlow on juries in libel cases, 
 220. 
 
 Tinioleon on free speech, 4. 
 
 Tities, origin of, 447; enforced by 
 legisktive power, 448 ; impro- 
 pHators of, 452 ; common law as 
 to, 453 ; divine right of, 453 ; 
 presumptions as to, 455 ; 
 not assignable in gross, 455 ; 
 classes of, 456 ; great and small, 
 456 ; difBculties in applying law, 
 456 ; of houses, 456 ; of wood, bees, 
 apples, 457 ; recovery of, 458 ; 
 mode of setting out and delivery, 
 458 ; vexatious delivery, 459 ; 
 of milk, 460 ; personal, 461 ; 
 modus substituted for, 461 ; in 
 London, 462 ; commutation rent- 
 charge, 462 ; freehold estate on, 
 464 ; recovery of tithe rent- 
 charge by distress, 465 ; pensions 
 and Easter dues, 466 ; Quakers, 
 recovery from, 467. 
 
 Title of hook, infringement by 
 copying, 290. 
 
 Toleration Act does not affect clergy 
 discipline, 506 ; the ancients on. 
 
 616 ; early Christians on, 517 ; 
 statutes of intolerance, 619 ; Test 
 and Corporation Acts, 521 ; the 
 Toleration Act of William III., 
 621 ; toleration after "William 
 III., 624 ; progress of public 
 opinion on, 527. 
 
 Toll, exemption oi clergy from, 
 487. 
 
 Tombstone, inscriptions on, 433. 
 
 Town hall, public meetings in, 22. 
 
 Trade, slandering one in his, 175 ; 
 rival tradesmen slandering each 
 other, 178. 
 
 Trademark, generally, 16 ; object 
 and origin of, 340 ; Lords Cran- 
 worth and Westbury on, 340 ; 
 distinguished from patent, 341 ; 
 identifying maker of goods, 
 341 ; infringement of, 342 ; need 
 not be fraudulent, 342 ; regis- 
 tration of, 343 ; usual character- 
 istics of, 344 ; part of goodwill, 
 344 ; usually protected by in- 
 junction, 344 ; offences as to, 346. 
 
 Trading on Sunday, 366 ; of clergy- 
 men, 480. 
 
 Travelling on Sunday, 368; bond 
 fide, 364. 
 
 Treaties on international copyright, 
 272. 
 
 Trial, jnew, in libel cases, 223 ; see 
 Jury. 
 
 Trinity, denial of, 64. 
 
 Trusts, for dissenters, 529 ; mode 
 of interpreting, 529; length of 
 possession of, 531. 
 
 Truth of libel, not a good defence 
 to indictment, 214. 
 
 Turnips, tithe of, 460, 459. 
 
 Tutchiu's libel on the government, 
 93. 
 
 Unifoemity, statute ot, fixed 
 
 canons and doctrines, 385 ; on 
 
 ceremonies, 472. 
 Union of benefices, 445. 
 Unitarians, not chargeable with 
 
 blasphemy, 64 ; their charities, 
 
 530 ; their religion, 636. 
 University, copyrights of, 283 ; 
 
 presenting to, benefices of Papists, 
 
 396. 
 Unlawful societies and clubs, 24. 
 Utility as ingredient of patent, 
 
 327. 
 
568 
 
 INDEX. 
 
 Vacancy in benefices, 404 ; in 
 
 bishoprics, 413. 
 Vestments of clergy, 479. 
 Vestry, meeting of, 437 ; rector or 
 
 vicar ought to be chairman, 438 ; 
 
 discretion as to adjourning, 438. 
 Vicars, distinguished from rectors, 
 
 461 ; number of, 462. 
 
 Wafebs, legality of, in com- 
 munion, 478. 
 
 "Walpole, Sir R., on publishing 
 Parliamentary debates, 117. 
 
 Waste and dilapidations in ecclesi- 
 astical property, 442. 
 
 Wedderburn on ex officio informa- 
 tions, 102 ; on state of law as to 
 juries in libel cases before Fox's 
 Act, 219. 
 
 Wesley resisting order of bishop, 
 506. 
 
 Westbury, L., on trademark, 340. 
 
 Westminster Hall, first public 
 meeting in, 20 ; public meeting 
 within a mile of, 24. 
 
 Wife, libelling husband to, 157 ; 
 suing for slander on chastity, 
 174. 
 
 Wikoff on number of sects. Preface, 
 vii. 
 
 Wilkes, public meetings began 
 
 about, 20 ; libel on sovereign, 
 89 ; number of libels in his time, 
 103 ; Ordering his libel to be 
 burnt, 229. 
 
 Willes, J., on copyright, 256. 
 
 Witch, calling one a, not now 
 actionable, 166 ; old acts against, 
 366 ; punishment of, 367. 
 
 Witness not liable for slander, 195. 
 
 Woman suing for slander on her 
 morality, 173 ; on stage, 309 ; 
 as oficers in church, 407. 
 
 Wood, tithe of, 457. 
 
 Words are transient compared with 
 print, 145. 
 
 Work on Sunday, 366. 
 
 Worship, public tendency to, 349 ; 
 ecclesiastical i laws subject to 
 amendment, 350 ; uniformity in 
 ceremonies of, 472 ; mode fixed 
 by statute, 473 ; leading cere- 
 monies in, 476 ; position of 
 clergyman during, 479 ; vest- 
 ments of clergy in, 479 ; dis- 
 turbance of, 489, 523. 
 
 Worship, Public, Act, 498. 
 
 Writing and print used in 'same 
 sense in libel, 144 ; written and 
 spoken slander, 144. 
 
 Writs and legal business on Sunday, 
 361. 
 
 THE END. 
 
 LONDON : R. CLAY, SONS, AND TAYLOR, BREAD HTREET HILL.