Vol. VI.],

’ SUPREME COURT, Charlottetown, June 30. l L

:3 , TRIAL 13—53 LIBEL. THE QUEEN V. LIACLEAN.

“THIS was an action brought at the suit of the Crown against Duncan Maclean, Esq., a Member of the House of Assembly, upon a criminal information filed against liitn by the Attorney General, for tlte publication of a libel upon the Government oftltis Colony. The libel complained offormed one ol'u series ol'Resoluti‘ons paSsetl at a public iiieetinu held on the 28th February last, at New London,“ which District Mr. Macleiiii represents in the House of Assembly. ' The‘

i Resolutions Were lhrwiirded to Mr. Maclean, who was in‘ Charlottetown at the time, the Legislature being then in Sos- sioti, with a request that he would furnish :1 copy to each of the printers, for— insertion iii their respectiVe newspapers. Mr: Maclean accordineg called upon two ofthc printers with them, both of whom reliised to print the Resolution

, referred to, giving as their reason, that they considered it. contained a libel'i‘ipon the government. Thus it appears that the libel was not actually printed, but as Mr. Maclean took it to two different printing offices for that purpose, the Crown officers, deeming that to amount to an act ol'pulilica- thin-instituted the present proceedings against him, upon which‘he put in a plea of'not guilty.- A Special Jury, at the. instance of the, Crown, was summoned to try the case. The prosec'titioti was conducted by the Atlornev and the Solicitor Generals, with wl.o':it wasMr. E. Palmer. 'Tllt‘. defence was conducted by the Defendant himself, assisted by Mr. Young. The following gentlemen composed the Jury :—

‘ Joseph lIolroyd; John T. Thomas; Edward Roberson, Newlown; Donald Mackiiilay, York River; Roderick Mitc- kiniion; Joltn Roper; 'I‘liouias Fiister, Statiliope; Henry Stamper; William Inman, Sable; \Villiant White, Ship- huiltler; John ' ‘liornton, Priticetown Road; John Stewart,

Hurbour’s-uioutli.

~ Mr. PALMER read the information, consisting of five dift. ferent counts, which it is unnecessary to enumerate, R§,3tl|6 gist ofthe charge will appear iii the course oftlte proceed- Inf-3i?- . i I

. The SOLICITOR-GENERAL rose to address the Jury. , Never, be said, since he came to this Island, had a Jury been - called tipuit to decide upon a case of greater importance than the present. The charge is, that the Defendant has published a libel on the Government of this Colony, than which nothing could have a more pernicious tendency. Front the days ol'aucient Rome to the present time, all civi- lized Governments had been protected against libellers. While the law allows you to point out the evils which exist, and the way in which they may be remedied, itprevents the artful aiid seditious from spreading disaffectiou among the people, by charging the Government with being actuated by corrupt motives. So far from wishing tostlppresi free dis- cussioii, Government not only |)Bl'lllll$t—II courts inquiry. .You may point out its faults and its follies, but the law says, you shall not attribute wicked and sordid motives to the Officers of Government. Ifa charge is brought against the > Government of being so actuated, it is not by the areas of _tho people that the subject is to be discussed; individuals are not to constitute themselves both aceuscrs and judges. The proper place for the discussion oftuicli subjecls'is the House of Representatives; there the most unlimited freedom ofspeoclruitiynbo indulgadin, and it is for that body to pre- fer an impeachment, iftliuy we cause for so doing. Indivi-

‘ duals are itot rojudge in such a oasis. Suppose a person iti- Jures you, the law docs not pertiiit you to right your‘selves There is the proper tribunal for that purpose, and to it you mustapply for redress: aliil so with the Government, when its conduct is arraigned. He wished-to call the attention of the Jury to the line ofdistitiutiou which the Law draws be- tween a free and fair discussion ollpublic melt and measures, ofthe acts and proceedings of Government, and an impro- per and criminal use ol'tliat privilege. So long as the Go- vernment is not brought into contempt, it in all well enough, but endeavour, by your publications, to make the people bo- lieve that the Government is actuated by base and sordid motives, and you overstep the bounds within which we are required to confine ourselves.~ Evert the truth iii no justifi- cation ol'a'libel in the eye oftho law—but he would ask, is -.there a man in the Island who can conscientiously sathat he believes this libel to be true? ' He did not believe there was one. Still we all know how credulous mankind are, and how prone to lend it willing ear to charges oflhis descrip- lion—could you persuade any number of persons to believe that such charges were well founded, would not such per— sons heldosirous, on the first fitting occasion, to do all iii their power tosubvert such a. Government? He did not Wish to

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[cool and candid inquiry into the merits oftlte case—and if he failed to make it appcai‘ras clear as the sun at noonilay, that this was a libel of'tltc grossest kind, let them acquit the defendant; biit'if proved, and that it was published by him, 'then,‘ whatever reluctance you may feel, you cannot do other- wise than find him guilty. fl'lJ information charges the defendant with the publica- .tion ol'a lit-cl, in delivering to Mr. Cooper and Mr. Inge the following Resolution, for insertion iii theirrcspectivo new:- papers: _ Resecven, That the government of this Colony. unlike that of arty other Colonv, did nulguvcrn for the benefit oftlte majority oftlte people, butifor the benefit of a couple ofduzen of land speculators, their cuitnexi‘ ns. depenr‘onls and parasizcs. ‘ t This is the libel complained of. Now, in trying it, the test ii. thin—~00“ it imputc base and unworthy motives, and is

wards the Government? If so,.it is quite immaterial whit- thor- it barbelievc‘d or not. If it- is calculated to produce‘tlio ‘ofl'i'cts opined”th lawpronotincu it a libel, and the Jury, "by virtue of'tlieir oaths, must find a verdict accordingly. And 'il it possible to-say that it iii not a libel? Pitt it to yourselves ind say, would you be inclined to submitto such a Govern- tnctit? Here the Solicitor-Gotisral quoted from Starkie on libel, Who says, the test of illegalin must depend on the 91,1»er to thuquestiori, “ Has the publications plain tenden- ,1! to produce public mischief, by perverttiigdlio mind oftho ,guhject,.and creating ageneral dissatisfaction towards go- fl’or‘n merit ?” '

In another case, referred to in Starkio, p. 526——

‘l A person delivered a ticket up to the minister after a sermon, wherein he desired him to take notice, that offences passed now without manual from the civil magistrate, and to quicken‘ihu civil magistrate to his duty, &c. This was held to be a. libel, filltmgll no magistrates in particular were mentioned, iind though II} will not ayetred that the magistrate suffered these vices know- ‘lngl '. > And llmr'grnun'd of the conviction has been slated I” be, lhpt the general misrepresentation _of-,lh'er government or state of the nation, or inutinumt hints, te‘nd in "flip, aiscoltleul and sedi- pt-n in the people, and that the gaitarlljiy‘brifha reflectioninado itthe inure dangerous,‘liuce it had it‘liadeffectoit the whole frame pfgovernmont." ' . _ ‘ , y " -’ .-

. Tho Resolution‘chargel the Government: with-governing, untfor. the benefit of the majority, ‘t butlfor ",6, 1mm“, of I “all” Ol'doz‘” °E hmd' 'Pw‘llumrl, their connexionit, do- W'Idflllsa ‘nd' lumkliefin "Phil was a can ten thousand times "stronger than the‘one'he hadcited ; for that case'ouly imputed negligence tothe Government; huthere Government fluidltar‘ed‘witha qri

AND ,

~PRINCEEDWARD ISLAND ADVERTISER.

CHARLOTTETOWN, SATURDAY, JULY :3, l8-’t8.

glittlllimggéglgpgérhilpdseoiqg, lpow dangerous it must be John lugs was the first called. Examined by the Solicitor “m” M] d. _ we sing of society, were the 1 General. Is the publislioroftlie Islander, nsivspaper. The ’ a ' se itious allowed Willi impunity to poison the , defendant handed him some Resolutions to publish ; lie ip‘inds of _others by the dissemination of such assertions as, Seemed to be aware of‘tlieir nature. Defendant pointed otit :I ese. ,If charges. of this kind are to hit preferred againstgytwo oftlie Resolutions to witness; thinks they were IllQ'Slli ie goveintnent, it is on the floorof llll! house, when the-and 9th. Defeiidattt said that he had been at Mr. Cooper’s Rel’fesefltutives of the people are here assembled in their i with them, who refused to insert them; and that if he (wit- Legislative capacity, it ought to be done, Here the most tiess) had any objection to publish them, it was unnecessary ample freedom ofspeech is then allowed; our line conutitu- llo leave them with liim;nnd be said something to him about. tioii guarantees this. This‘tlien is t e place to bring such acting independently. \Vitness told him he thouglitl charges forward, because iii the House of Assembly tliere,thosc two resolutions were libellous; that he considered: are always members ready to explain rttatters,and to vindi- -, one of them was a libel on the government. Defendanti cute government when unjustly assailed. If not true, the smiled, and said there was no such thing. He did not leavei explanation goes abroad Willi the charge, and we liave'the gtbeui in the office. Several of his subscribers having com- bane and the antidote both before us. He would now citelplained that tho Resolutions were not pilliliSIIC‘l, Will'essl another case, tliatpf John 'I‘uchin. This was the pole star I called oti Mr. Macleaii, and told him that he ought to lenvel for the guidance of both 'jndge and jury in cases of libel. ' them with him, that he might be abloto exp.ain why he hadl Judge iIolt, iii summing tip, observetlf— \ not pultliSlitéd them. Some time after, he called and loltl, A u '1‘” 5",. 1h", 0mm,” “mama are uppummd ,n naminmmr “mm, them at the office. (Here he handed in the Resolutionsl is certainly a reflection on the government. prersons should not M“ Momgmnel’yv "‘ "lel‘lber ofll‘ie Assembly. “'38 -Wl[l| Ml'- hu pulled to account for possessing the people with an ill opinion .I‘luclean cite of the times he called with the Resolutionsp ofthe government, tio government can subsist; nothing can he is not certain whether the first or second time. Does not? worse to any governinunLtlian to endeavour to produce animosi: recollect whether any other person was iii the oflice or not ties as to the management ofil‘; this has always been looked up- at [he “mm Thinks,“ was about the 13th of March. 'I'hel 0" a. 1' crime: and “0 S‘WETF'UW‘ 0"" he 5"“! ""lP'Sll be llunlSh' papers have been iii bis(wititess’s) tossession ever since. ed. Now, you are. to consider whether these words I have read 0. ~ 1 l ,0 yw d“ n”, m", m ham a" i“ "pinion 0mm adminmmion 0,. toss crammed by .l.r. Young. . ,he gm.emmenLn_S,M/éie,IL 528. Is not sure whether the deletidiint read the Resolutions. He (the Solicittheanl) would 8min read me Resohh wlieirlie firstlirouglit them, or whether he Witness’rcad theml firm. ("mag-"m, he wéum s“ m mg ."r in the words of luutsell. Defendant put his fiiigcroti the two. “ bpn asketl Lord H0“ “Now yymhre m "insider anal!" thpse words ll he had taken the opinion of Counsel on the sulqect, \\‘ll—‘ 1 have "ma to ym; do “m "and m be (it a" mro Mn" ohhe tiese spill he did. not tliiitk he was bound to answerthat (pres-i administration oftlii- government " gl‘lie celebriitcd Cohbctt “on: “'8 sallc'tol' General an"! I" would make "0 Oluecuou . , g - h - _' , _ , to It!!! answering the question, if he thought proper; but the; was tried upon an information for publishing a libel in the l

. . , , question was not pressed. Two or three days elapsed beforel

“ g 1 . . . ' l Weekly Register, entitled Jnverna. Lord Lllenborough, he went to Mr, Macleun’s lodgings. Iii certain lieliroitght llicin l to summing up to thc _]tll‘ , observed,

. _ to the office—two or three days frotn the time witness firstl “ It is no new doctrine, that ifa publication be calculated to

alienate the affections uflhe people by bringing the government litlo discsleem, whether the, expedient be by ridicule or obloquv, tho person, so conducting himself, is exposed to the infliction: of the. law." .

Iftliis Resolution now before us (said the Solicitor-General) be not it libel, then every man who has been convicted oflibel, has been wrongfully and unlawfully convicted. Let it go forth to the world that Inch calumnies may be written and

were published.

JAMES Ii. Coopnn was the next witness called. Is printer of the Colonial Herald, newspaper. Mr. Miiclcan brought a number ol'Resolutionsto his oflice, and wished hinito publish them. an action for libel if he did.

lmmmhefl wnh .‘mlmnlly-nnd it wns very “‘3' ,'0 mislead uan from the office then. Is not quite sure whether they the multitude With stich statements a! that contained iii the “,eré ‘ever hmuum “Mk ,0 the 0mm “flu,” or not- Be-m'a ‘ l" ' ' a ' 5

Resolution. when there was no one present either ready or willingr to refute them—and who would answer for the wide spreading effects of such a line of conduct? He called upon them, then, for the protection oforder,aiid lbrtlie well-being of society, to show by their verdict that they were determin- ed to maintain‘m‘ _ipremacy of the laws.

Haviiigtlius= . rIy shown that the paper was ofii lililellous character, he would proceed to consider the second point, namely, whether the defendant had been guilty of publish- iiig it? He was not charged with being: the author nfit; but iii the eye of the law, the man who publishes a libel is just as guilty as he who wrote it. Mr. Mai-lean first took the ‘paper alluded to to M 1'. Cooper, and desired to have it in- serted in his paper. He afterwards took it to the printing office of Mi‘. lugs, another publisher, and made a similar re- quest. lfit was not actually [N‘llllel—;ll‘ll did not obtain a wider circulation—it was more owingto the good sense of the printers than to any want of zeal oti the part ofthe de- fendant. He had shot his arrow, and it was not his fault ifit did not hit the mark; he had at least made the attempt.

asked iftlie Resolutions were in the same state now as when he first saw them—witness answered that that question brought to his recollection that the Resolutions had been taken away from the office, and again brought back by Mr. Mai-lean, limit the circuitistauce, that the signature to a let- terprelixed to the Resolutions when he first read them, lpiil been obliterated iii the interim—John Mackenzie was the name that was obliterated. Mr. Marleen seemed to he awpre ol'tlie nature ufllin Resolutions. Had some conver- sation with him on the subject.

Mr. Mtcutn, addressing the Court, snitl—«Doeming this prosecution a violation of my privilege as a member of the Colonial Parliament, I have to move the Court that the At- torney General be directed to sitter a iiolli prosequi in this ac- tion. I am aware that privilege will not, and Ought not to protect a member of parliament maliciously to revilc private character, as in the case of Wilkes, who was prosecuted for writing and publishing an obscene and lilalphenious pam- phlet upon it spiritual peer, for which lie was prosecuted,

{he/ram.“

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Refused to do so, conceiving he would be subject to} Thinks Mr. Miiclean took them i

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presented the resolution in question to both papers not! I must confess that I felt amazod to perceive the slavery of‘ the press to he so complete, and the thraldom of the psoplo‘ so perfect, that the papers did not dare to publish an cpl» iiion expressive of'dissntisfactio'ii with the conduct of tho existing Government of this colony, which I certainly would have done had I been in possession of‘a press. ‘ This, Gentlemen, is what is called an ex oflizt’o prosecution, or information, as the term is generally softened into; which, by the bye, is somewhat of'a bull, because the peculiarity and uppi'essiveness of such measures consist in the Altorrioy General assuming the power without any information what- ever, aud arbitrarily committing it British subjeét for trial, up~ on it criminal charge, without the intervention of a grand- jury, that guardian ol'our personal freedom and liberty. The“ «J: oficios maybe traced to the dark ages of feudal slavery, when men in England were sold like the beasts oft'ne field, the‘ sovereign and his courliers being frequently the onlyjudges-of the alleged offence. They wore instruments of tyranny which were understood to have been wrung from tliat'ill fated Prince, Charles the First, on the abolition of the court? of'Siar Chamber ; and they were revived alter the restore-5

ltioii of his son, although at that time that great Judge, Sir’

Mathew Hale, declared “they ~were unlawlul, and could not stand.” Upoti the abdication of James the Gecond, one of' the articles of the Bill of Rights by which the crown was tendered to. William of Orange, was “Iiilbrniations in tho!

crown office shall cease.” Strange to say, however, they.

were renewed by Lord ChiefJustice Holt not long after-

wards,wlio perhaps deemed a departure from the constitu- I

tioti at that time to be a necessary evil, in order to counter-7 act the machinations of a powerful party to replace tho exiled family of the Stewarts upon the throne. Sir-co that time they have been occasionally acted upon by government in cases of alleged libel; but their legality and constitu- tionality have been severely questioned in England itsolfl

saw them. Wait iii 'ormed by Mr. Macleal‘i, when he called land their use declared to be incompatible with the existeuco_ at. his lodgings, that the Resolutions were at Mr. Cooper’s, ‘ of free institutions. The only defence ever let tip for them! but that he would get them for him. The other Resoliiiions‘ has been their possible public neceswy Inseasnns ol'extroim

,hazm'd; but, if] he rightly inlbriiied,during the long admi- , itistration of William I’m, a period so dangerous, that even lour national existciiceavas at stake, that great statesman, sn- ylisfied ol’lhe uneonstitutionality'ol'tllose e1- oflict'opro‘secutionq ‘ never in a single instance litid recourse to them. They were revived in considerable vigour during Lord Liverpool’s ad. lltlllilsll‘ullull; but as might be expected, were not attended ; with the desired results; and I am not aware that the Bri- {iislt Government has put one in force for alleged. political glibal for the last twenty years. It isfa‘r too wise not to know glint! ear ofiicio prosecutions may produce discontent, but can- t not support its power. and therefore lrents‘poljticul libel: 1 with disregard and contempt. 'I'l'lell' nature is well descri- ‘_bed_ in a late Novascotian, which Says “an ex qfiicio infor— i“ tnaliou is an engine of oppression and tyranny, instrumen- i“ titlly wielded by the Attorney General—tho e1 qflicio mode” “ofprosecution is never resorted to, except when the milk. “ ions of power are afraid oftlii- independence and integrity ofa Grand Jury.” Were this case determined against me, the , rights atid privileges of British subjects in this colony would be at an end ; and the Government has been involuntarily compelled to pay the Grand and Petit Juries of'this Island the high compliment of supposing'thctn incapable of'returu- ling a verdict subversive of all freedom; and l confidently! 'Irllst, gentlemen ol'tlio Special Jury, that tho rightspf your fellow subjects will be equally sale in your hands.

In the next place, gentlemen, I shall show you that those ycriminal ex oflicio prosecutions for alleged political libel, do

..r

The delivery to the printers was a' publication, as far as the defenilant was concerned, just as much as ifit had been in- serted in a thousand newspapers. From the authorities he had to quote, he felt quite satisfied that he would be able to bring the charge home to the defendant, not only to the su-

wlietlisr before or. after his expulsion from Parliainothdomm' and “ever did apply ,0 ,he Colonial. Sedmon may

can?” we .N'm' “ll-"Tm howl‘ivgr‘ in Which heplmd “3° m" l Government, btit finding fault with the public conduct of out “an”! m I'lw' "m °"Iy [he Mm'Str-V.’ hm “'0 .h'” “"3"”; l bordinate public servants, such as the Governor of's Colony, and for which he was committed, alter the claim ofpertlego 10,. his Execmivo Council, by no mam," of mans “mm-"n.

"m rewllecl' 1" Wilma“; "mm". No' 45’ of“ periodic"! l consist iii disseminating bail opinions ofthe Queen and ban

say one word to excite their feelings—lie only wished for 3

its tendency such as to excite distrust and disaffectlon to-_

' ' = i . them to violate the sanctity of an oat ‘ m. of 9’9 9mm”, mlammd“ Y°uil them, and would proceed to call the mdence.

had been argued by some of the ablest lawyers in England; and after three days deliberation, LOI'ii Chief Justice Pratt and all the Judges unanimously found, that Wilkes’s coni-

tisfartioti ofthc jury, btit he thought he would‘be able to convince the defendant liimselfofit; although he was aware that “A man convinced against his will, In ol'tlie same opinion still."

The Solicitor-General then cited several cases as to the act of publishiiw. Ifii libel were stolen, it is not considered it publication, but ifa single copy reach a single person with intent to publish, it is enoung Starkie mentions a case where a slander wasx contained in a letter addressed to the plaintiff himself. The plaintiff’s clerk was in the habit of opening sneli efthe plaintiff’s letters as were not marked “private,” and the clerk swore that the defendant was aware ol'this circumstance. This was held to be a publication. On the trial ofSir Francis Bitrdett, who, great and power- fill n he was, was convicted and punished for publishing a libel on the government, Mr. Justice Bet-it said, the mere transmission ofa letter by post was, in his opinion, a publi- cation. Publication is nothing more than the last act of do- ing a mischief; the offence is then complete; and has not Mr. Mitcl‘ean done civery thing in'liis power to give publicity to this libel, Jost'as tiiuch as ifit had been bruited abroad in a thousand newspapers? '