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occupied by us as the political capital of the country, is not on the high road to India but off it. If on it at all, Cabul and its mountains are only so as Meiringen and the Bernese Oberland are on the way to Italy, a way, but not the way. The true inilitary road to India lies by Herat and Candahar. If there be such a thing as a key to India above the passes, it is this latter city. Our power was maintained here, during the Afghan war and rebellion, not only triumphantly but also beneficially. The awful disasters of Cabul have made us forget the success with which Candahar was held, and the ability with which its civil administration was exercised by Rawlinson. There is no reason whatever to make us shirk and shut our eyes to the contingency —which we trust may never be realised-of a second occupation in the event of a seriously hostile attitude assumed towards us by Russia. The possession of Turkistan, the submersion of the Caucasus, the reduction of Persia to a state of moral vassalage against the grain, we hold to be no hostile attitude, and have been long prepared for them. These things—deplorable as is to us that one particular of the annihilation, in the very teeth of their half-hearted and injudicious bottle-holder, of a European race of warriors and patriots, wild, bold, and primitive as the Germans of Arminius or the Iberians of Viriathus—are not directly alarming to us more than to other Europeans, but they call imperiously for our attention and our pondering well in mind. We are fully confident that our Indian statesmen are herein doing their duty and acquiring the needful knowledge on the subject; and we trust that our home public, augmenting and steadying its interest in the same, will continue to put the best face on the matter, without overstraining and distorting its features into a mere meaningless smile of self-complacency. Russia was not all vice ten years ago, nor is she all virtue now. She may seem, and in some degree is really, modifying her former policy; but she has not yet turned her swords and spears into ploughshares and pruning-hooks. They yet reek with the heart's blood of a most noble European nation. She must be watched, and she must be understood. We do not deplore, nor do we ecstatically admire, but on the whole look favourably, on Jenghiz Khan's reappearance in our day as a Prince of the Empire, a wearer of white gloves, discoursing on potichomanie with Mr. Sala; or on the son of a Kirghiz Khan coming forth as a scientific traveller under the name of Velikhanoff
, and not sparing his fellow tribesmen in his new-born imitative European zeal. The prospect open to us is, under certain conditions, encouraging; and we think that, in this direction at least, Europe and Asia will be benefited, even assimilated, by mutual contact. The Russia of Alexander II, is
not the Russia of Catherine and Potemkin; and she now bids fair to become content with a natural growth where formerly she was barbarously eager to covet and to annex. An attempt now to arrest her progress up to a certain point is, to use the striking metaphor of Abbott, the Khivan, but an attempt to confine a vigorous young forest sapling within the glass walls of a greenhouse, Beyond this we honestly believe that both Russia and England can each, in the long run, be the better for being thus placed on the best behaviour at home and abroad, if only by a respect for the moral leverage which each may exhibit to its former rival as lying in its hand ready for it to exercise over the native population of the other. The victory, if contest there be, will favour the conquering empire at least as much through its sympathy with Asia as through its command of European arts and forces, and it will therefore be a deserved victory.
Art. IX.-1. New Commentaries on the Law of England (partly
founded on Blackstone). By Henry John Stephen, Serjeant-at
Law. Fifth Edition. London, 1863. 2. A Treatise on the Law of Libel and Slander, and incidentally
of Malicious Prosecutions. By Thomas Starkie, Esq., of Lincoln's Inn, Barrister-at-Law. Third Edition. London,
1830. 3. History of Trial by Jury. By William Forsyth. London,
1852. 4. A Bill to amend the Law of Libel, and for more effectually
securing the Liberty of the Press. Prepared and brought in by Sir Colman O'Loghlen, Mr. Longfield, and Mr. Hennessy.
Having to advise the public may speak free,
peace. What can be juster in a state than this? With these noble words from the ‘Suppliants' of Euripides Milton most appropriately begins his Areopagitica, as they admirably foretoken the drift of that grand argument for free printing, in which was set forth, perhaps for the first time, the true principle whereon a most important division of jurisprudence, the law of libel, should be based.
The weightiest of the benefits of free printing he describes as follows:
• For this is not the liberty which wee can hope, that no grievance ever should arise in the Commonwealth, that let no man in this world
expect; but when complaints are freely heard, deeply considered, and speedily reform’d, then is the utmost bound of civill liberty attain'd that wise men look for. .... This I know, that errors in a good government and in a bad, are equally almost incident; for what magistrate may not be misinformed, and much the sooner, if liberty of printing be reduced into the power of a few; but to redress willingly and speedily what hath bin crred, and in highest authority to esteem a plain advertisement more than others have done a sumptuous bribe, is a vertue (honour'd Lords and Commons) answerable to your highest actions, and whereof none can participate but greatest and wisest men.'
Milton, however, was not unaware of the dangers to be guarded against in this coveted state of freedom :
'I deny not,' says he, “but it is of the greatest concernment in the Church and Commonwealth, to have a vigilant eye how bookes demeane themselves, as well as men; and thereafter to confine, imprison, and do sharpest justice on them as malefactors; for bookes are not absolutely dead things, but doe contain a potencie of life in them to be as active as that soule was whose progeny they are.'
The great problem, indeed, is, how to combine the most perfect freedom of discussion with the prevention of publications pernicious to the commonweal and injurious to individuals.
In Milton's time the question was nearly new. A strict censorship of the press (if we may so call it) found a place in the ideal republic of Plato, and seems at all times to have been generally deemed necessary; though some of the greater thinkers, as the Emperor Marcus Aurelius, had occasional glimpses of the truth.
Here, as well as abroad, according to Mr. Serjeant Stephen, the art of printing, soon after its introduction, was looked upon as merely a matter of State, and subject to the coercion of the Crown. It was therefore regulated by the King's proclamations, prohibitions, charters of privilege and of license, and finally by the decrees of the Court of Star Chamber, which limited the number of printers, and also of the presses which each should employ; and prohibited new publications, unless previously approved by the licensers. This odious jurisdiction was abolished in 1641 ; but the Long Parliament, alter their rupture with Charles I., assumed similar powers with respect to licensing books, and in 1643,* 1647, 1049, and 1652, issued their ordinances for that purpose, founded principally on the Star Chamber decree of 1637. In 1662 was passed the Statute 13 and 14 Car. II. c. 33, which, with some few alterations, was copied from the Parliamentary ordinances, This Act expired in 1679, but was revived by a Statute of the first year of James II., and remained in force until 1692, when it was continued for two years longer; but although frequent attempts were made by Government to revive it in the subsequent part of King William's reign, they encountered so strong a resistance, that the Licensing Act finally expired in 1694, when the press became really free.
* The Areopagitici was written as a remonstrance against the first of these ordinances.
Since that time (save as regards documents deemed by the Houses of Parliament to infringe their privilege, a matter foreign to the subject of this article) no preliminary obstacle has been placed in the way of publication,-punishment or the enforcement of damages being relied on for the repression of seditious, blasphemous, obscene, and defamatory compositions.
And this state of things has met with general concurrence, even those who have held the strongest views as to the necessity of punishing libels being entirely opposed to intrusting the authorities with any powers of preventing their publication.
Thus, Lord Ellenborough, by whom so many persons charged with libel were tried and sentenced, announced from the bench that
Liberty of criticism must be allowed, or we should neither have purity of taste or of morals. Fair discussion is essentially necessary to the truth of history and the advancement of science.'
According to Blackstone
• To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and to make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish, as the law does at present, any dangerous or offensive writings, which, when published shall, on a fair and impartial trial, be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty.'
The objection sometimes taken to our law of libel, that it is too vague, is well answered by Mr. Starkie. Absolute and certain prohibitions, as he well shows, are excluded by the very nature of the subject-matter, for if such were imposed, they must either consist in general and peremptory rules, encroaching greatly on the freedom of communication, or in minute and special ones, the particularity whereof would subject them to the easiest evasions. The law might either totally prohibit all discussion on a particular and specific subject, or might go the length of tolerating all that can be said or written upon it; but there are many questions in respect of which total prohibition or entire toleration would be prejudicial to the community. A total prohibition would be inconsistent with the first principle of civil liberty, for a penal restraint would be thereby imposed to a greater extent than was necessary for the welfare of society; on the other hand, there are subjects whereon unrestrained license would be liable to the greatest abuse, and open the door to intolerable mischief.
As, therefore, it is beneficial to society that freedom of communication should be tolerated to a large extent, while, on the other hand, it would be highly inconvenient and mischievous to perinit unbounded license, it becomes necessary to establish a limit; and this must always be a work of great difficulty. A libeller, therefore, has no more right to complain that the law has not specifically laid down what words constitute a libel, than has the creator of a nuisance to plead that the Legislature has not defined what vapours are noxious, or how many cubic feet of them it is lawful to issue.
To this general agreement upon leading principles must be attributed the remarkable fact that, notwithstanding the frequency with which the law of libel has been put in force, and the strong political feelings aroused by the manner in which it has been administered by the Courts, few serious legal difficulties (except in matters of procedure) have, until recently, been encountered in the administration of this branch of our jurisprudence.
Within the last few years, however, several causes have come before our Courts in which the decisions upon questions of law have given rise to much conflict of opinion. But before coming to these controverted matters, it will, perhaps, tend to make the subject more clear to our readers if we briefly sketch the leading principles of the English law of libel.
The legal term libel implies matter written or printed, spoken defamation being denominated slander. But there are kinds of libel which do not, perhaps, come under the head of defamation—viz. seditious, blasphemous, and obscene libels. Of these, however, we do not intend to treat. Prosecutions for them have become rare, and at present that branch of the subject does not seem likely to excite much interest. Libels, defamatory of individuals, public or private, are what now usually come before our Courts of Justice, and upon the due dealing with these depends, in a great measure, the freedom and legitimate influence of the press, and the preservation of the just reputation of individuals, high and low.
There are some remarkable differences in the laws relating to spoken and written defamation. The former (except by the