Front Page Titles (by Subject) 29.: PLACE'S ON THE LAW OF LIBEL MORNING CHRONICLE, 1 JAN., 1824, P. 2 - The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I
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29.: PLACE’S ON THE LAW OF LIBEL MORNING CHRONICLE, 1 JAN., 1824, P. 2 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I 
The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).
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PLACE’S ON THE LAW OF LIBEL
This review deals with a subject that occupied much of James Mill’s attention. The anonymous pamphlet (by Francis Place, as Mill certainly knew) is made up of eight parts published in the British Luminary and Weekly Intelligencer in weekly first-page, unsigned instalments from 3 Nov. to 22 Dec., 1822, under the title “Constitutional Association. Practice of the Courts.—Trial by Jury in Libel Cases,” plus an article added for the pamphlet publication. Francis Place (1771-1854), “the Radical tailor of Charing Cross,” was a loyal associate of Bentham and James Mill, and championed popular causes throughout his life. Mill again reviewed Place’s pamphlet (with Richard Mence’s The Law of Libel) in “Law of Libel and Liberty of the Press,” Westminster Review, III (Apr. 1825), 285-321 (CW, Vol. XXI, pp. 1-34). The unsigned review in the Morning Chronicle is headed “On the Law of Libel, with Strictures on the Self-Styled Constitutional Association, pp. 73. London, John Hunt, 1823” and is described in Mill’s bibliography as “A review of Place’s pamphlet on the Law of Libel which appeared in the Chronicle of January 1st 1824”
(MacMinn, p. 5).
this pamphlet consists of a series of Essays, all of which, except the last, appeared some months ago in a periodical publication. We recommend it strongly to the attentive perusal of every one who desires to know the extent of that boasted liberty of the press, which, we are taught to believe, is the birthright of Englishmen. He will learn from this pamphlet, that the rulers of this country possess as great a power of suppressing obnoxious publications by fine and imprisonment as they can desire: that the comparative free discussion which we enjoy exists only by connivance, and would not exist at all, were it not forced upon the Government by an enlightened public opinion.
A short abstract will convey a better idea, than any general remarks, of the view taken of the subject in this very able production.
There is no statute law on the subject of libel. There is nothing but common or unwritten law. Where the law is unwritten, definition is evidently impossible; much more, accurate and precise definition. What is to be gathered from precedents and cases can be known only to lawyers. Jurymen are not lawyers. They cannot therefore judge for themselves whether a publication is or is not libellous, but are compelled to decide the one way or the other, according to the directions of the Judge. Now, the Judge, in giving these directions, not only is not restrained by any definition of libel, but is not even restrained by precedents and cases; since there is scarcely a single point of law, on both sides of which many decisions are not to be found. Whether then the Judge shall direct the Jury to decide according to the precedents on one side, or according to the precedents on the other, depends almost entirely upon his own good will and pleasure. The law of libel, therefore, is actually and in fact made by the Judge.
When a person is tried for publishing a libel, some one swears that he has purchased a book, and the Judge tells the Jury that he considers it to be a libel. But does the Judge tell the Jury what a libel is? No; for there is no definition of it. If, therefore, the Jury find the prisoner guilty, it is not upon the testimony of witnesses, but upon the authority of the Judge. The witness swears that the prisoner sold the book; but to sell a book is not punishable, unless that book is a libel. For the fact of its being so, the Jury have nothing but the word of the Judge. The latitude which Judges allow themselves in declaring publications to be libellous, may be judged of by the example of the late Lord Ellenborough, who said that a libel was any thing which hurts the feelings of any body.1 Under this definition, if it be one, it is easy to see that all publications disagreeable to the Government may be included. The only legal check, then, upon the Judge, is the disposition of the Jury to set aside his opinion, and refuse to consign a man to imprisonment and fine, merely upon the faith of the Judge’s opinion. But there is a mode of rendering this check equally nugatory with all others, and this mode is constantly resorted to in cases of libel. It is by employing a packed Special Jury. The pamphlet before us contains the most complete exposure in the smallest compass which we have yet seen, of the packing system.2 It investigates the origin of the practice, demonstrates that it was originally an abuse, that the grounds on which it was professedly introduced, have long since ceased to exist, and that Special Jurymen, far from being, as in theory they ought to be, superior in education and respectability to the Common Juries, are for the most part greatly deficient in both. It also explains the mode in which the system is acted upon at present. The Special Jury list is composed in counties, of freeholders; and in Middlesex, of some descriptions of leaseholders also; in London, it consists of all whom it is thought proper to term merchants. From this list, the Jury is selected; in Middlesex and London, by the Master of the Crown Office, who names forty-eight persons, twelve of whom form the Special Jury. It is proved in this pamphlet, from indisputable authority, that the Juries are constantly selected out of a certain very small number of persons known to the selector, who make it a regular trade; and as each receives a guinea for every cause he decides, we leave it to the reader to judge how often he will return a verdict contrary to the will of his employers, knowing well that if he does so, he will be summoned no more.
Since the publication of the bulk of these Essays in The British Luminary, the subject of Special Juries has been brought before the House of Commons; and the facts stated above were met by protestations of the unblemished integrity of Mr. Lushington, the present Master of the Crown Office.3 This, it is to be observed, is the constant practice of all the defenders of abuses; they always endeavour to turn a public into a personal question; to confound attacks upon a system, with attacks upon the character of individuals. We will not merely say that the administration of justice ought not only to be pure, but unsuspected, and that suspicion of injustice is an evil, second only in magnitude to injustice itself: we will not content ourselves with saying, that if Mr. Lushington be a man of honour, future Masters of the Crown Office may be otherwise. We will not confine ourselves to these arguments, though these, were there no others, would be conclusive. We cannot sufficiently reprobate the principle itself, of endeavouring to deter men from exposing a bad system, lest their strictures should be construed into imputations upon the character of individuals.
We assert, that, if a public officer is placed in a situation where his employers will expect him to serve them at the expence of the public—where he must content them or forfeit his subsistence, evil cannot fail to ensue. We are told, in reply, that Mr. Lushington is a pure, a virtuous, an honourable man, and the upshot of the whole is, that we are to surrender up our liberty and our property into the hands of this honourable man; that we are to trust him with a power over us, which no man could, consistently with prudence, confide to his own brother. We give Mr. Lushington full credit for as much virtue as falls to the share of any other man.—But we confess, we think it rather too much for Mr. Lushington’s friends, in his behalf, to lay claim to more, and to think him insulted if the public does not acquiesce in this modest claim. Really, one would think, to hear this language, that a preference of their private interest to that of the community, were something totally unheard of in public men; and that there were no instances of persons who have acquitted themselves admirably well of the ordinary duties of life, but who, nevertheless, when their subsistence depended upon their becoming instruments of misgovernment, have easily persuaded themselves that it was their duty to do so. We do not blame Mr. Lushington for doing what every man in his situation would do: but we cannot help reminding his overwarm supporters, that for men to strain every nerve for the attainment and preservation of power, which never can be desired for any good purpose, is not the conduct of all others best calculated to raise an expectation, that if allowed to retain it they will not make a bad use of it.
If they could prove that Mr. Lushington cannot abuse his power, they would not take so much pains to prove that he will not. But we are to believe that the situation holds out temptations against which no virtue would be proof, save his who actually holds the situation. Another succeeds him; that other is equally immaculate. By this argument, if such it can be called, no abuse would ever be reformed: for there must always be some one in a situation to profit by it; and if the honour of one man is a sufficient guarantee against abuse, it were an affront to suppose that the honour of another was inferior. What tyranny, what oppression, might not be justified in this way? You dare not accuse the man; and if you accuse the system, you are met with protestations that the man is perfectly immaculate.
Where has Mr. Lushington given proofs of such exalted heroism? It is easy to ascertain whether he prefers the public interest to his own, for if so, his salary still remains untouched in the Exchequer. But there is no need of surmises, when facts are before us. Let us look to the list of those who have served on Special Juries for the last ten years:—Let us ask ourselves how it happens that the same small number of men have been always summoned?4 What Judge would listen to attestations of character, when he has positive evidence before him? Nay, the very circumstance of Mr. Lushington’s still remaining Master of the Crown Office, is in itself a sufficient proof that his conduct has been conformable to the interests of his employers: unless Ministers also lay claim to the same super-human virtue for which we are to give credit to Mr. Lushington?
It is probable that this gentleman sincerely believes the custom of packing juries to be right; at all events, we are sure, that he never would set up for himself the same lofty pretensions which are set up for him by his over officious friends; that he desires to be judged by his actions, not by the allegations of his friends as to his character; and that, if he is wise, he wishes for nothing more strongly than to be relieved from a duty which it is scarcely possible to execute without incurring a degree of odium, which, we have no reason to believe, that he personally deserves.
[1 ]See the Charge to the Jury in the Trial of William Cobbett, 1804, by Edward Law (1750-1818), Lord Ellenborough, Lord Chief Justice, in State Trials, ed. Howell, Vol. XXIX, col. 49. Mill is taking the quotation from Place, p. 9.
[2 ]Place, pp. 36-50. The practice of having specially qualified jurors began in the seventeenth century, with the particular procedures Mill mentions being laid down in a declaration by the Court of King’s Bench in 1670. The practice was given statutory sanction by 3 George II, c. 25 (1730). Both Place and Mill are indebted to Bentham’s The Elements of the Art of Packing, as Applied to Special Juries, Particularly in Cases of Libel Law (1821), in Works, Vol. V, pp. 61-186.
[3 ]In a speech of 28 May, 1823 (PD, n.s., Vol. 9, cols. 563-7), on special juries (introducing a petition from John Hunt), Joseph Hume was thought to have impugned the integrity of Edmund Henry Lushington (1766-1839); Lushington was defended by his friends, George Richard Philips (1789-1883), then M.P. for Steyning (ibid., cols. 567-8), and Thomas Creevey (1768-1838), then M.P. for Appleby (ibid., col. 568).
[4 ]For information about the revelations of abuses found by the inquiry by the Court of Common Council of London referred to by Place, see “Special Juries,” The Times, 12 Dec., 1817, p. 3.