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Blavatsky William Q. Judge Charles Johnston D. Judge D. Home Articles Articles by H. Blavatsky [Crimes of Preachers in the United States]. Leave a Reply Cancel Reply Your email address will not be published. The Writings of H. Books by H. Sinnett Secret Doctrine Dialogues Articles by H. We have observed that the crime encompasses much more than the crime of defamatory libel. We shall see that even to view the crime and tort of defamation as the intersection of the criminal and tortious systems in this context is inaccurate for the crime and the tort differ in a number of respects.
We commence our examination of this crime with a summary of its historical development. We emphasize that this is not purely an academic exercise. The rules governing the different sub-crimes are frequently complex and sometimes difficult to justify. The picture becomes at once clear when one sees the origin of a particular rule, whether due to judicial reaction or political pressure, and this in turn points the way to reform. More importantly, the context in which a crime develops may of itself provide reasons for consideration of its abolition.
We then go on to consider the present law governing each of the branches of the crime of libel. There follow four corresponding chapters in which we draw some comparisons with other jurisdictions, consider the consitutional implications, examine the defects of the present law and present our tentative recommendations for reform. We emphasise that the proposals for reform contained in this Consultation Paper are provisional in their nature. We invite written submissions in relation to any of these proposals and the material contained in this Consultation Paper. Any such submissions received by us will be assessed with great care before we present our final proposals to the Attorney General.
We would be grateful if submissions on the Consultation Paper were sent to us at the Commission's Offices not later than Wed. The earliest form of libel known to English law was an offence of a criminal nature known as scandalum magnatum slander of magnates. The mischief the statute was sought to prevent was therefore causing a loss of faith in the government or the monarch.
Thus the earliest form of libel was a seditious libel, and since it was punishable by imprisonment, it can be classified as a criminal offence. However, if a person was the victim of some other form of defamation, he was obliged to go to the Ecclesiastical Courts, for, under medieval law, no remedy was offered in respect of the other forms of defamation. Holdsworth, History of the English Law This jurisdiction was gradually taken over from the Ecclesiastical Courts, whose jurisdiction began to wane after its peak towards the end of the 15th century.
Slander, it must be said, had not yet taken on its present-day meaning of spoken words or other transient forms of communication. At this time the action was applicable to both written and spoken defamation. The modern distinction between libel and slander was not introduced until after the Restoration. In the common law courts, because the action was the action on the case, the gist of the action was damage to the victim of the slander.
Damage was limited to its narrow proprietary sense. However, the action proved so popular that the Courts deemed it necessary to restrict the number of actions, and they did so by means of a number of principles. One of these was the rule of minor sensus , under which words alleged to be defamatory per se would be held non-defamatory if it were at all possible to find an innocent meaning.
This rule would have been unobjectionable if it had been restricted to genuinely doubtful cases, but its actual use shows the twisting of words and strict interpretation more in the nature of construction of documents and pleadings, often with absurd results. One would have thought that this was a clear accusation of killing, yet it was moved in arrest of judgement that the words were not actionable, because it was not averred that the cook was killed, but argumentative!
A second restriction on the action was the rule requiring special damage to be shown unless the statement fell into one of the following categories; statements imputing a crime, statements imputing incompetence in a trade or. This prompted Sir F. A further set of rules to restrict actions in the common law courts were the rules on repetition.
It was laid down by Coke in The Earl of Northampton's Case 8 that if A published that he heard B say that C was a traitor, he would not be liable if he proved he actually heard B say this. A would be liable only if he did not identify the original author. It was not until the 19th century that the view emerged that repetition of a libel would render the speaker liable, even if he identified the original source of the statement.
A feature of the common law on defamation thus developed prior to the merging of jurisdictions was the complexity and volume of cases used as precedents, which was extremely inhibiting to development. The action, surrounded by this morass of rules and cases, was unsatisfactory. It was partly for this reason that the courts were subsequently to develop different rules for written defamation. The old body of rules continued to apply to spoken defamation, which was eventually affected to some degree by the developments in relation to the tort of libel.
However, the distinction between the two forms of communication and the two distinct sets of rules continues to be a feature in the modern law of defamation. These would later form the categories of slander actionable per se, to which the Slander of Women Act added a fourth category. Holdsworth, History of the English Law , at p In , Caxton set up the first printing press at Westminster and in , the Star Chamber was set up in order to monitor and suppress criticism of Church and State, which were at that which were at that time closely interwoven.
The primary libels with which it was concerned were therefore libels of a seditious or blasphemous nature. However, the Star Chamber also wished to suppress duelling, which was the fashionable means of vindicating attacks upon honour or reputation, and to this end it also punished defamatory libels i. In , the Star Chamber held in the celebrated case of De Libellis Famosis 10 that it was an offence to defame the deceased Archbishop of Canterbury.
The nature of the tasks of the Star Chamber and common law courts were therefore altogether different; while the Star Chamber was attempting to discourage matter which either threatened state security or might cause a breach of the peace, the common law courts were concerned with rectification of damage done to the reputation of an individual. Small wonder, therefore, that the tort and crime of libel have but a single point of intersection, namely defamatory libel, and this by reason only of the fact that this form of libel would injure reputation as well as tending to cause a breach of the peace.
It may also be noted that the classification of the crime of libel into four sub-categories did not crystallise until the 19th century; until then, the distinction was rather between libels of a political and libels of a personal nature. The rules in the Star Chamber developed differently from those in the common law courts.
For example, it was sufficient if the libel were published to the victim only; neither did it matter whether the victim was alive or dead. This merely reinforces the obvious fact that the developing criminal offence of libel had little to do with reputation and much more to do with maintenance of the public peace.
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The Court of Star Chamber was abolished in After the Restoration, its criminal jurisdiction in respect of libel was inherited by the. Court of King's Bench. The result was that the pre-existing civil law of defamation and the inherited criminal jurisdiction in libel were administered by one and the same court. It was inevitable that the two sets of rules would interact. Indeed, defamation was one of a number of wrongs or offences in this position, namely in respect of which the Star Chamber and the common law courts had respectively developed a set of rules, both of which influenced the subsequent common law.
The criminal aspect of defamation was largely influenced by the Star Chamber rules, and the civil aspect by the common law rules. The interaction of the two sets was marked not only by the retention of the separate crime and tort, but also by the growth of the distinction between libel and slander. The existing form of civil defamation required such proof, while the crime did not.
The answer, as history has shown, was that the tort of written defamation libel was held actionable per se. Holdsworth attributes this step in part to the fact that the existing civil law and the action on the case had resulted in a highly unsatisfactory body of law from which the Court wished to free itself, and in part to the pressing need to suppress duelling effectively.
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In order to achieve the latter aim, it was necessary to make the action more accessible, and the removal of the need to show damage was the first step in this direction. The conclusion that libel was actionable per se was not reached at once. First, it released the tort of libel from the network of rules and distinctions which had choked its rational growth. Second, the feature of actionability per se threw a new emphasis on the insult aspect of the tort. It therefore achieved a clean break with the pre-existing civil law, albeit at the expense of creating an arbitrary distinction between the two forms of communication, and one which would later be exacerbated by the development of more sophisticated forms of communication.
The cross fertilisation of the two sets of rules was not complete, however; for example, spoken words defamatory of a private person were held not to be a crime 17 whereas seditious or blasphemous words or words likely to cause a breach of the peace were indictable. We have noted the absorption of the crime of libel from the Star Chamber to the common law courts and some of the effects of the interaction of the criminal and civil rules.
We must now return to the development of the various types of criminal libel. Inherited from the Star Chamber were the seditious, defamatory, and blasphemous forms of libel. In , the category of obscene libel was recognized for the first time. At the beginning of the century, Holt CJ had been of the view that obscene matter was an issue for the ecclesiastical courts 18 Obscene libel was first recognized as a common law offence in the decision in Curl's Case However, the offence of obscene libel does not appear to have been prosecuted with any enthusiasm until the 19th century, when prosecutions became more frequent due, indirectly, to the changed climate in society, and resulting directly from the efforts of the Society for the Prevention of Vice, founded in The year saw the first major piece of legislation on obscenity, and obscene libel appears to have been proceeded against under its provisions rather than through the medium of obscene libel.
The hey-day of the offence of obscene libel may therefore be said to be the first half of the 19th century. The first type of case was known as private or personal libel, the second as political or public. R v Penny 1 Ld. Holdsworth observes that the heads of political libel included the publication or utterance of words which were seditious, obscene or blasphemous, or the utterance of words that would lead to a breach of the peace.
The offence of sedition or seditious libel is clearly interwoven with prevailing theories of ruler and ruled, and such theories, it has been said, 23 fall into two broad categories. The first says that the ruler is superior to his subjects and inherently wise and just. It would therefore be unthinkable to criticise his actions or person. The second view is that the ruler represents the will of the people and is the instrument through which they express their wishes on means of government. Criticism and guidance from the people would therefore not only be permissible but is necessary to maintain a healthy relationship between the two parties.
It is clear that English history has moved from the extremes of the first theory gradually into the second. However, during the 17th and early 18th centuries, the former view would have been the dominant one, and accordingly government critics would have been prosecuted with zeal. In keeping with these sentiments, the common law courts willingly accepted the rules imposed by the Star Chamber, that truth was no defence, that publication to a third party was not necessary, that the death of the victim was not a bar to prosecution, and that the author and publisher were guilty in equal degrees.
Furthermore seditious words uttered orally were indictable. Indeed the judges used the Licensing Acts , until their expiration in , to implement the policy that the publication of any matter without government authority was illegal. During the troubled times between the Jacobite Rising of and the passage of the Reform Act , there was a large number of prosecutions. See also, Spencer,  Crim LR Holdsworth Histor of the English Law , Many of these cases were not brought on indictment, but instead on the Attorney General's ex officio information, for which no leave of the court was required.
Additionally, it was usual to summon a special jury to hear the case which, being composed of wealthy persons, was more likely to be out of sympathy with critics of the Government. The eagerness of the political establishment to suppress dissent manifested itself in the interacting roles of judge and jury, which in turn influenced the mental elements of the crime.
Whether this was rhetoric or whether it indicated a requirement of intention was of little importance when the Court was arbiter of both fact and law, as was the Star Chamber. However when the spheres of fact and law were placed in the separate hands of judge and jury in the Common Law Courts, the issue of intention became more relevant. For if it were a requirement that the matter bearing a seditious meaning was published with intent, this would be a question of fact for the jury. By contrast, if the crime were constituted merely by publishing seditious matter, the only question of fact for the jury would be whether there was publication, the judge deciding whether the meaning of the words was in law a seditious libel.
Clearly there is quite a difference between a jury deciding whether there has been publication and its deciding whether there has been publication with seditious intent. In the latter case, the jury would have much more influence in the outcome of the case.
It seems that the dominant view was to limit the jury's function to merely answering the question of whether there was publication. One such prosecution resulted in the conviction for libel of Johnson J. This state of the law harmonised admirably with the current views as to the relations of rulers to their subjects. But, when those views changed, it gradually came to be wholly out of touch with current public opinion.
The law as to what amounted to a seditious libel, having been formed in the period when the ruler was regarded as the superior of his subjects, assorted badly with the new view that he was their agent or servant. Therefore the desire for greater freedom of speech than the existing law allowed, took the technical form of the contention that the seditious, defamatory or otherwise malicious intention with which a libel was published, was the essence of the offence, and so a matter of fact for the jury. If the fresh input of juries altered the nature of libel trials, it did not initially stem the flood of political libel prosecutions.
Indeed the category seems to have been expanded to cover not only criticism of the home government but also criticisms of foreign rulers with whom the British Government was seeking favour. After the Great Reform Act of , a more liberal political climate prevailed and prosecutions for political libel lost prominence. This fact was reflected in the Report of the Select Committee of the House of Lords on Defamation which confined its attention to the law affecting private cases. Its recommendations had little to do with seditious and blasphemous libels or defamatory libels of public officials, and its views were reflected in the Libel Act Holdsworth, History of the English Law , at See, for example, 28 St.
The law of political libel has fallen from its position of prominence into gradual disuse, although it has never been expressly overruled or discredited. We may now take up the thread of the history of blasphemous libels from the time this jurisdiction was taken over by the common law courts from the Court of Star Chamber and the Ecclesiastical courts.
The first indictment for blasphemy appears to have been Taylor's case, 30 in which Sir Matthew Hale is reported as saying;. The Christian religion is a part of the law itself. The doctrine laid down in Taylor's case was affirmed in the decision in R v Woolston , 32 which concerned writings attacking the miracles of Christ, for the purpose, according to the author, of showing that they were allegorical representations of religious truths.
The defendant was fined, and sent to prison for a year, to be released upon his finding sureties for good behaviour throughout life, which he never found. Raymond LCJ stated:. However, the words were incorrectly translated to mean the Bible, altering the meaning of the statement entirely, and giving it the meaning expressed by Hale, However, it seems unlikely that the statement of Hale was influenced solely by Sir Henry Finch since it was in harmony with prevailing theories of Church and State.
Hale's view must have been influenced more by the views on the intermingling of Church and State which surrounded him, rather than a mistranslation of an individual author. Fitzgibbon 64, 2 Strange, , 1 Barnardiston , In both of the cases mentioned, the language used could be considered scurrilous and offensive, and this fact can of course be used to say, as it was in Bowman , that the older cases punished offensive speech and not questioning of doctrine per se.
There were numerous prosecutions for blasphemous libel in England at the end of the eighteenth and beginning of the nineteenth centuries, including the celebrated prosecution of Williams, publisher of Paine's Age of Reason , where the prosecution for the Crown was conducted by Thomas Erskine, the leading advocate of the day.
It seems that in this period Woolston's case was relied on to prohibit all denials of Christianity. He added, however, that no person should be in a position to enforce such sounds and sights on unwilling ears. When he became a legislator in India, Lord Macauley included in his Code a provision making it an offence to utter words within the hearing of another or make any gesture in the sight of another, with the deliberate intention of wounding the religious feelings of that other.
Nonetheless the nineteenth century evidenced a shift in attitude so that blasphemy was constituted only where there was scurrilous language, and the perception arose that indications in previous cases that all denials of Christianity were automatically blasphemous were merely obiter dicta. We will see portions of Starkie's writings quoted in judgments in a later chapter. The continuing trend of tolerance of temperate discussion in religious matters is evidenced by the ruling of Lord Denman in R v.
Hetherington , 37 although the accused was in fact convicted and sentenced to four months' imprisonment. The trial of Pooley 38 in saw Coleridge J. The next major turning point was the trial of Ramsay and Foote , the publishers of a weekly paper containing offensive caricatures of religion. The prosecution in R v Gott in was the last prosecution for blasphemous libel in England prior to Whitehouse v Lemon 41 , which we will discuss in our Present Law chapter.
It appears that the earliest reported case of a prosecution in the Irish common law courts was the trial in of Thomas Emlyn, some 30 years after Taylor's case was decided in England. I am not called upon to give any opinion whether that prosecution was right or wrong; but it proves this, which is of great importance, that as the law was then administered, it was blasphemy to deny the Divinity of Christ; and Mr. Emlyn was accordingly convicted of blasphemy in the Queen's Bench, on that ground, and suffered a long imprisonment, and a fine of considerable amount.
I know this as a matter of fact in this cause. Mr Emlyn had not spoken with irreverence of Christ; his was a candid inquiry and he could not be convicted on that ground; but his defence was inadmissible by law, and he was convicted. The next stepping stone in Irish law for the offence of blasphemy appears to have been in , the case of Brother John.
He was found guilty. However the importance of the case lies in the charge to the jury by Baron Lefroy:. It is not because fallible man cannot agree upon the translation of a portion of the Scriptures, that they are to be treated with this want of reverence; that because it is not a particular translation, it shall be treated with such vilification. Is it to be held that, when the law of the land sanctions a certain version, and calls it the authorised version, it is to be said that any man, be his opinions what they may, shall pour contempt upon it, and thus be guilty of a violation of the law?
Is he to be at liberty to throw that book into the fire, and say that he vilify that book which the law has sanctioned? It has been said to you that this act must be done with intent, and on that the law is clear; every man is presumed to understand the consequences of his own acts.
If a man can throw a book into the fire, whether it be the Douay Bible or the authorised version, and if you believe that he did not intend any contempt, then you should acquit him Att Gen v Drummond, 1 Dr and War at In a Redemptorist Father by the name of Reverend Petcherine burned a Bible by mistake among a bundle of other books. Baron Green approved the above statements by Baron Lefroy to the effect that intention to burn the Bible was necessary. From this sparse authority it would seem that by the time the Bowman case came before the House of Lords in England, the offence of blasphemous libel could be committed by any attack or denial of Christian doctrine, and that no emphasis was laid on the manner in which the attack was made.
While it has been suggested that Bowman v Secular Society Limited was not part of Irish law prior to the enactment of the Constitution of the Irish Free State, not being a decision on an appeal from Ireland, the better view would appear to be that all decisions of the House of Lords formed part of the law of Ireland carried over by that Constitution and subsequently by the Constitution of Ireland, unless, of course, the principle laid down was inconsistent with the Constitution. Apart from that consideration, if a case had arisen between Bowman in and , it seems likely that an Irish court would have found the views in Bowman persuasive.
We will examine this issue when we come to state the present law of blasphemous libel. In modern times the victim of a private libel will usually resort to a civil action in order to obtain damages which at law represent vindication of the plaintiffs reputation. It is highly unusual for a private individual to initiate criminal proceedings in respect of defamatory libel in Ireland, and in England there have been only a handful of cases in recent years.
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At one time, prosecutions in respect of private libels were common and were indeed preferred to the civil action. When the King's Bench inherited the jurisdiction of criminal libel from the Star Chamber, it recognized libel prosecutions at the suit of private citizens in order to provide an alternative remedy to the practice of duelling. Some of the causes celebres are discussed by Spencer in the two publications referred to at footnote 21 above. This leads to one notable difference between the tort and the crime of defamation, namely that oral defamation is a tort slander while oral defamation is not a crime.
In , Labouchere's case 49 severely limited the availability of criminal informations in libel cases, holding that the court should in general exercise its discretion against the granting of an information at the suit of a private individual. Following this decision, the normal procedure was by way of indictment.
Given that the crime consists of written defamation only, it is not surprising that the press has played a large role in shaping the law of criminal defamation. In the seventeenth century, private prosecutions against newspapers appear to have been rare. Newspapers were few, their circulation limited, and their expression strictly curtailed by censorship. It was the eighteenth century that saw a boom in private prosecutions Spencer attributes this to a number of factors.
Also, the aristocracy tended to be the victims of defamatory attacks, and many of these were opposed to newspapers and advocated their suppression on principle. There is also the fact that, as a wealthy class, the aristocracy would not have been attracted by the lure of money. Thirdly, a criminal court could make a libeller find securities for future good behaviour, whereas the common law court could not order an injunction.
Perhaps one of the main attractions, however, was the rule that truth was not a defence in a criminal prosecution for libel. If a person had something to hide, he was well-advised to bring a criminal prosecution rather than a civil action. Indeed, in , we find a Parliamentary exchange stating that a prosecution by indictment for libel is practically admission of the truth of the libel.
Spencer estimates that by the 's, although criminal prosecutions were still popular, they were becoming less frequent and civil actions more popular. Their complaints included the following:. The fact that in an unsuccessful civil action the defendant would recover costs, whereas he would bear his own costs in a criminal prosecution even if he were acquitted.
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The rule that a master was liable for the acts of his servants; which had even been held to lead to a conviction of a bookseller although he had expressly forbidden an assistant to sell the pamphlet in question in his absence. The rule that truth was not a defence. Another newspaper editor was convicted of libel when he exposed the fact that a man who had obtained a teaching post at a school had been convicted of forgery in France and sent to work on the roads with a ball and chain on his ankle, even though the French court furnished a certificate of his conviction and sentence.
The rule was a constant worry even to those who were not actually fined or imprisoned because of it. In , The Times exposed a monumental commercial fraud, and in recognition of this public service the City of London erected a memorial to the occasion. Boyle the swindler sued the editor of The Times , who was thus able to plead justification.
But the editor and his solicitor lived in fear and trembling throughout lest Boyle should decide to prosecute, and that the editor might therefore go to prison. In , Lord Tenterden CJ made matters worse, if possible, by ruling that the truth of the libel was not even admissible as evidence in mitigation of sentence.
Looked at from any angle, the rule was utterly indefensible though as with most indefensible rules, there were plenty of contemporary lawyers to defend it. As far as the press was concerned its only redeeming feature was that it was so bad that sometimes it was good; some people who might otherwise have prosecuted for libel sued instead, because a prosecution was often interpreted as a tacit admission of the truth of the accusation.
Johnson quoted by Lord Denman, Parl Deb, vol. Because of these complaints , a number of Bills were introduced to alleviate the position of the press, including Bills by Henry Brougham and Daniel O'Connell. Following the Report of this body on the law of defamation, Lord Campbell with the help of Starkie drafted a bill which became the Libel Act This addressed a number of the complaints voiced. Section 8 gave the successful defendant costs, section 7 mitigated the vicarious liability rule, and section 6 introduced truth as a defence, albeit with an additional requirement that the matter be shown to be published for the public benefit.
The provisions will be considered in detail below, but the Act may be noted for the present as remedying a number of the primary defects in the law of criminal libel, and marking a major turning point in the history of private prosecutions. After the press continued to complain about matters of detail in the law of criminal libel, such as the position in relation to reports of public meetings, the obscurity of the vicarious liability provision in the Act, and the fact that a prosecutor could leave a prosecution hanging in mid-air.
However, perhaps a more fundamental change could now be seen in the attitude of the journalists and editors themselves as to their role and its corollaries, which included a questioning of the very principle of criminal liability;. Whereas in earlier years, running a newspaper was a 'fringe' activity, with overtones of the pillory and public disgrace, it was now quite respectable.
The press took itself correspondingly more seriously. Obviously, this affected the extent of the changes it was prepared to ask for. Less obviously, it also affected how it sought to bring those changes about. Whereas formerly, the press interest lobbied others who promoted changes in the general law, it was now represented in Parliament by a powerful group of MP's who were newspaper proprietors.
The press interest now promoted the changes it wanted by itself.
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And, like other powerful interest groups in later years, it eventually took to seeking, not alterations in the general law, but exemptions from it in favour of itself. This had a powerful effect on the future history of criminal libel. In , a group of Irish lawyers in Parliament unsuccessfully attempted to introduce a Bill to restrict private libel prosecutions by requiring the consent of the Attorney-General, and to confer a privilege in respect of reports of public meetings. It was re-introduced in succeeding vears but opposition to it was strong.
Its recommendations were implemented in a bill,. The Act represented a compromise between advocates of the press and their opponents. It enacted two significant provisions, the first conferring limited privilege on reports by newspapers of public meetings, the second requiring the consent of the Director of Public Prosecutions, in England, and the Attorney General, in Ireland, for prosecution of a newspaper.
Opponents of the press succeeded in having commenced a scheme of registration so that the proprietorship of newspaper would be ascertainable. Unexpectedly, the Act saw an increase, rather than a decrease, of prosecutions for criminal libel. It may be that this had little to do with the law, and more to do with trends in journalism. A number of new newspapers were set up, among them the magazine Truth founded by Henry Labouchere, which were devoted to uncovering the scandals of late Victorian England. They produced the type of material likely to encourage prosecution.
The presence of Henry Hawkins as judge at the Old Bailey contributed to a judicial atmosphere hostile to newspapers, while the accession of Sir Augustus Stevenson to the office of the DPP in facilitated the obtaining of permission to commence prosecution. It was at this point that Lord Coleridge stepped in, holding in one of the leading cases R v. Labouchere 56 that the judicial discretion to grant a criminal information in private prosecutions should be severely curtailed.
As an opponent of the practice of bringing criminal prosecutions for libel, he continued to make such prosecutions difficult, and in Wood v Cox , 57 he deprived the plaintiff of his costs and expressed his disgust at the giving of his fiat by the DPP. At the time, the House of Lords was debating a bill on civil libel.
Lord Coleridge introduced an amendment, which ultimately became the provision that no prosecution could be commenced against a newspaper without the leave of a judge in chambers, although it appears the original proposed amendment would have given this discretion additionally to the Attorney-General. Spencer records that the 's saw a number of financier cases, involving allegations of fraud, but that after these criminal libel prosecutions against newspapers appear to have died out.
However, they continued against individuals in relatively large numbers until Since the Second World War, the offence of criminal libel has taken a back seat to civil proceedings. One of the major factors in causing the decline in press libel prosecutions was the requirement of the judge's consent. Also, damage awards in civil cases began to increase from about onwards, thereby providing a bait to take the civil route. We have now examined the development of the two forms of political libel, and private libels.
It is time to turn our attention to the later developed crime of obscene libel. When the control of literature was given to the Court of Star Chamber, the censorship exercised was aimed at religious and political comments Matters of sexual explicitness or indecency do not appear to have been considered a problem of importance. Throughout the Elizabethan era, censorship was increased by the granting of a charter to the Stationers' Company, which rooted out undesirable books; by the licensing of books by designated censors, such as the Archbishop of Canterbury; and by the institution of the office of Master of Revels and the requirement that plays be sent for advance scrutiny.
Censorship continued to be aimed at the political and the religious. The abolition of the Star Chamber was soon followed by the re-introduction of licensing in , and the passing of the Licensing Act This Act was again confined to religious and political factors. The first case in which indecency divorced from a political or religious context appears to have been central is that of R v Sedley 58 in Sir Charles Sedley and some aristocratic companions are said to have outraged the crowd by appearing drunk and naked on the balcony of a London tavern and performing gestures of an obscene and offensive character.
Sedley was fined and gaoled for a week for a breach of the peace. Nonetheless, as we shall see, it was a supposed lack of jurisdiction over spiritual matters which made the court dismiss the prosecution in a case some 45 years later. The later part of the seventeenth century saw a shift in attitude towards obscenity, and witnessed the formation of a number of societies for the censorship of immorality. Official censorship was extended to include immorality. It was not until , however, that an opportunity arose for the courts to deal with an obscene text, James Read's Fifteen Plagues of a Maidenhead.
The Court of Queen's Bench dismissed the indictment stating:. Plagues of a Maidenhead is not indictable, but punishable only in the Spiritual Court. Powell J expressed the view that the absence of a person who had been libelled made it impossible to call this a libel:. It is stuff not fit to be mentioned publicly; if there should be no remedy in the Spiritual Court, it does not follow there must be a remedy here. In contrast, seditious words could be called libel because, even if a particular person is not attacked, there is at least an identifiable collective entity.
The rationale of that offence was the supposed impact of such words on society, rather than the hurt or harm caused to any person spoken of. Henry Parker and Robert Hallowell both murdered their sons fearing they could not provide for them. The widower Alfred Bligh murdered his three children because he worried he would lose his job and subject them to a life of poverty. In an attempt to explain the act, Richard Oakes wrote a letter to his brother detailing his family's struggle to avoid destitution.
The Oakes were found guilty but insane and sent to Broadmoor. These cases — and the fact the judiciary declared these crimes acts of insanity — indicate the association of economic failure with personal failure in nineteenth-century cultures of masculinity. Such instances suggest, I would argue, that the desire to provide for one's family was not purely a bourgeois construct of masculinity, but a paternal impulse shared by working-class men.
This emphasis in the courtroom and the press on a man's failure to secure employment or to provide for his child shifted attention from the murdered child to the father. In their studies of infanticidal women Ann Higginbotham and Aeron Hunt suggest that journalistic and judicial attributions of infanticide to illegitimacy and insanity deflected attention from the actual cause of the crime, poverty. The press, however, still managed to avoid the issue by casting defendants as insane.
In was not just poverty that prevented men providing for their families; drunkenness was also a problem. Alienists and physicians echoed the animalistic imagery of temperance literature. In George Wilson wrote:. Intoxication to the ordinary observer, is loss of self-control; to the physician, it is the physiological effect of alcohol on the brain.
Usually, drunkenness is merely regarded as a vicious habit; scientifically, it is a reduction of mental capacity due to deterioration of the brain tissue. In line with this scientific approach, physicians established different forms of alcohol-induced mental disease. This included delirium tremens , a form of temporary insanity classified by T. At his trial Seyman's neighbours testified that they no longer witnessed the once loving father playing with his son, nor had he been going to work. In Happy Homes , J. Regardless of the cause of insanity, the case files suggest that murderous fathers were depressed, regretful and introverted.
It was the job of the medical officers at Broadmoor to restore them to the confident, industrious and caring men they once were. Although home to criminal lunatics, Broadmoor resembled many other asylums built in the Victorian period and epitomized the Victorian obsession with moral management, which recognized patients' individual, social and occupational needs. Male patients were expected to work in the asylum and were employed at the shoemaker's shop or the tailors, on the asylum farm, in the gardens or as bricklayers or carpenters.
Thus Broadmoor promoted those attributes, including temperance and industriousness, which had previously identified each of the patients examined here as good fathers. The medical reports in patient case files show that when they were committed to Broadmoor, the causes of insanity attributed to paternal child-murderers generally corresponded with what had been argued at their trials and revolved around poverty, domestic troubles and intemperance. When committed, the majority of paternal child-murderers were downcast, regretful and melancholic.
He was verbally aggressive, refused to get out of bed and would not work. This led Medical Superintendent Dr. Bligh eventually settled down and was conditionally discharged on 2 February to the care of his sister and brother-in-law. Joseph Wood and Robert Hallowell were also eventually discharged after they too settled down and learnt a trade. Obtaining discharge was more complex than proving one's ability to work and it was particularly hard for patients with a history of intemperance.
In , three years after his committal, Robert Jones was considered sane and the question of his discharge was raised. During his time in Broadmoor Jones had been industrious, but Medical Superintendent Brayn erred on the side of caution. Patients were discharged into a society in which alcohol was increasingly linked to concerns of racial fitness and national efficiency. I hereby solemnly promise that, in the event of my conditional discharge from Broadmoor Asylum being sanctioned, I will abstain from all intoxicating drink; and I fully and clearly understand that such discharge will be liable to be revoked at any moment if I fail to keep to the above promise.
If these promises were broken, the warrant of conditional discharge was revoked and the patient returned to Broadmoor. The period between patients' arrival and discharge varied. The admission registers for Broadmoor do not list the exact crimes of all the patients committed, but an approximation of the average confinement of child murderers can be established using details of the stays of 85 male child-murderers committed between and and female child-murderers committed between and recorded in the registers. Those paternal child-murderers who were conditionally discharged spent an average of eleven years in Broadmoor, whilst their female counterparts spent an average of ten years in the asylum.
Maternal child-murderers were 1. In his study of the discharge of infanticidal women from Broadmoor and Perth asylum, Jonathan Andrews shows that once some women had passed childbearing age and the risk of puerperal insanity they were no longer deemed a threat to society and were discharged. This 2. This suggests that sex was less influential in determining the release of female infanticidal patients than in other criminal lunacy cases. Both men and women who killed their children had a better chance of release than the average Broadmoor patient of the same gender, but having murdered one's own child appears to have made more difference to a man's chance of release than to a woman's: paternal child-murderers were 3.
A patient's release was of course dependent upon factors other than sex or crime: their mental and physical wellbeing whilst in the asylum and the availability of friends or relatives willing and able to care for patients upon their discharge were also taken into consideration by the medical officers and by the Home Office. Fathers who had been kind, attentive, hardworking, and temperate prior to murdering their children tended to be found insane when tried for their murder.
Once in Broadmoor, it was these same positive characteristics echoing nineteenth-century descriptions of ideal fatherhood that helped determine their discharge from the asylum. Comparing the representation of insane fathers with that two other groups of men who murdered children - childless men and convicted fathers — makes clear just how important nineteenth-century beliefs about fatherhood were in the treatment of child-murder cases. Research by A. Hammerton, Ginger Frost and Martin Wiener indicates that Victorian judges attempted to improve working-class behaviour through the courts by condemning violent behaviour as unmanly.
The working and middle classes were intolerant not only of the domestic abuse of women, as scholars have shown, but also that inflicted on children. An examination of press reports and Old Bailey Proceedings Online OBPO shows that the nature of the crimes committed by childless men and convicted fathers, their motivations for the crime, their previous character, and demeanour in the courtroom were all subject to scrutiny. In condemning the behaviour of these men the press, judges, and juries helped to define appropriate male behaviour, including what made a good father.
Press representations of child murder differed according to who committed the crime: insane paternal child-murderers tended to be described as pensive and quiet, whereas childless men were seen as savage beasts fuelled by passion. He was found insane. She told the court:. On Saturday morning I woke up. I heard my brother make a noise in his throat as if he was going to be sick. I then saw some blood about him. He was lying at the side of the bed. His head was hanging down, and my father was stooping over him.