The Pamphlet Collection of Sir Robert Stout: Volume 72
The New Zealand press has for years appealed to the Government and to the Legislature to assimilate the law of libel in this colony to that which now obtains in the United Kingdom. New Zealand has stood still for 50 years in regard to legislation on this subject, and the result is that it has been left far in the rear of the enlightened legislation of the Mother Country within that period. The libel laws of New Zealand are a disgrace to the country—their existence reflect on the intelligence of the country. They would not for a moment be tolerated by public opinion page 9 at Homo. They are obsolete, barbarous, and unjust. The injustice and unreasonableness of the law has been conceded repeatedly by the Government, and by each branch of the Legislature, yet the law still remains unaltered. This year the Premier gave a pledge in writing that he would endeavour to effect the necessary reform. That pledge he has falsified. The press asked Ministers for bread. The virtual reply, despite the Premier's plighted word, is that a stone has been hurled at the press with all the force of malice which a narrow-minded and vindictive Minister could give it. Instead of a measure to place the press of the colony on terms of equality with the British press, in the enjoyment of similar liberty, coupled with protection against blackmailers, there has been introduced a Bill to render the press of this colony subject to restrictions which are unknown to the law of any other civilised community. No such law as that with which Mr. McKenzie wishes to fetter the press with has ever been known before. His Bill is a unique Legislative production. It proposes to impose restrictions such as have never even been suggested in the most severe press laws passed in England since Henry VII. practically introduced the art of printing. The Licensing Acts of 1662 and 1665 imposed no such restriction, the Star Chamber never enforced such provisions, nor did it ever occur to the infamous Jeffreys or the brutal Scroggs, who hated and feared the liberty of the press as much as the Hon. John McKenzie does, that such restrictions were necessary or desirable. History records the names and acts of many enemies to the press—men who sought to curb its power, fetter its action, and gag its voice. The end of all such attempts has been the same—defeat, discomfiture, and utter failure, coupled with loss of popular respect and deprivation of power. No public man ever yet sought to destroy or curtail the liberty of the press without suffering ignominious defeat in the unequal combat, and covering himself with shame and dishonour. It has been well said by a great writer—"To learn the principles of a man in office, a single question will suffice. If he will concur in putting matters on such a footing with respect to the liberty of the press that no man shall have more to fear from writing against Government or Ministers than for writing in their favour, the Government which he desires to see established is Liberal and Constitutional; if not, he is anxious to maintain a Despotic Government, however he may gloze the fact over to others or himself." Judged by this standard, the Hon. "Junius" McKenzie stands revealed to the world in his latest Bill not only as a terrible Tory in disguise," but as an opponent of Liberal and constitutional government—a would-be despot. If Messrs, McKenzie and Seddon were well-read men, knowing something of the constitutional history of the Empire in the government of a small portion of which they have been called on to bear a part, they would not need to be reminded of the struggles which have been gone through or the blood which has been shed by their forefathers in the effort to establish civil and religious liberty on a firm basis wherever the English tongue is spoken. For the sake of liberty of thought, liberty of speech, liberty of conscience, and liberty of worship, men have gladly laid down their lives, and by their blood secured the rights they contended for. The liberty of the press—the right to print what men have a right to say, to think, and to believe—embraces and embodies all the other liberties which are essential to the freedom of man. As John Milton said—"To prevent men thinking and acting for themselves by restraints on the press is like the exploits of that gallant man who thought to pound up the crows by shutting his park gates." This is the task the Hon. John McKenzie, aided by his Ministerial colleagues, has set himself. He would curb, fetter, and destroy the liberty of the press, in order the better to gag freedom of thought and speech and impound liberty of page 10 conscience. The method he has resorted to has, as we have said, the charm of novelty in repressive legislation. He attacks the liberty, through the anonymity, of the press. He seeks to impose upon the New Zealand press a system which has obtained in France, not through the operation of any law, but as a development of characteristic national individual vanity, and desire for personal applause. The French press laws do not require signed articles, although most French writers and papers (not all) do sign their articles. Mr. McKenzie desires to make compulsory in New Zealand what is optional in France, and to impose on New Zealand papers and writers a system which is quite foreign to the genius of the people, and which if enforced would effectually undermine and ultimately destroy the influence, freedom, and independence of the press in any British community. Speaking before the Institute of Journalists in Lincoln's Inn Hall in September last, M. Zola, in an exhaustive paper, dealt very ably with the question of the anonymity of the press, and the relative advantages and disadvantages of the French and English systems of journalism. We will first of all take the French system of signed articles. M. Zola says "it is to the interest of writers to sign their articles." The celebrity thus attained is, he thinks, "a delicious reward for a life of effort." If a writer signed his articles, "it would be he who would reap the reward of his talents, at least in part, and not the newspaper, which now takes the whole profit." M. Zola does not like the quiet, humdrum life of an English press writer. "No responsibility, no duels, no actions at law." He thinks the system destroys individuality, and lessens individual power. But, on the other hand, says M. Zola, "it is very certain that the British press owes to anonymity its power, its unquestionable authority. If the writer loses his personality, he at the same time gains perfect freedom. . . . Himself being sunk, he need no longer fear being disagreeable to anybody, may praise or blame without incurring any responsibility, and is shielded from all venal temptations." In France, "personal questions dominate, and we go into ecstasies of devotion to the new god who happens to pass. Signing secures success, so articles are signed. It may be that you see the whole race here in this craving to fight in the front rank, the face uncovered, and in the glory that is therefore to be won by hurling one's name into the midst of the conflict. I am well aware of all that may be said against that political press which signed articles have given us. It has lost its authority; it has completed the destruction of Parties; it is as often as not a more brawl in which the great interests of the country are lost sight of amid abominable personal squabbles. The spectacle truly is heartrending; it must convey a frightful impression of us abroad, and you would not have to press me hard to force me to the conclusion that anonymity alone would restore honesty and disinterestedness to our political newspapers." This is the French system as delineated by a distinguished French journalist. Such is the system which the Hon. John McKenzie seeks to force on the New Zealand press in order to banish honesty and disinterestedness from its utterances, and so destroy its power and influence. The Times, in its review of M. Zola's speech, declares that he has on these points arrived at "very sound and satisfactory conclusions. . . . The subordination of individual personalities to a system and a policy renders the typical English newspaper a great organism, with a continuous life, independent of personal changes, with traditions, methods, and character peculiar to itself. M. Zola was right when he laid stress on the fact that it is anonymous journalism which gives stability and solidity to the English press." To prevent the New Zealand press being stable, solid, honest, disinterested, and independent, is the object of Mr. McKenzie's Bill to destroy its anonymity. He fears the press as the fearless exponent of public thought, the ever watchful page 11 guardian of public liberty, and the bulwark of civil and religious freedom. Hence he seeks to sap its influence and destroy its power.
To establish the dangerous character and demonstrate the impotent folly of Mr. McKenzie's attack on the liberty of the press of this colony it is only necessary to prove two propositions. The first is, that the liberty of the press is synonymous with, and inseparable from, the freedom of thought, of speech, and of conscience necessary to the maintenance of civil and religious liberty. The second point is, that the anonymity of the press is essential to its freedom and independence. It is not necessary that we should enter into any elaborate argument on our own part to sustain either proposition. The questions of principle involved have been long ago determined by a consensus of enlightened public opinion. The wisest statesmen, the most enlightened jurists, the greatest constitutional writers and authorities, have expressed themselves with no uncertain voice upon these points, and in words far more eloquent, far more telling, and far more convincing than any which we could use. And their words have this additional weight, that they are not uttered for any Party purpose or inspired by any personal interest. They are not words used in the heat of political strife, or in defence of any threatened interest, but are the calm, deliberate expression and formulation of immutable principles—the assertion of great rights, on the maintenance of which the dearest liberties of the human race depend. As Mr. McKenzie's Bill conflicts hopelessly with all these principles, nothing more is needed to stamp it as a radically dangerous measure, a menace not only to the liberty of the press, but to the freedom of the people. Mr. McKenzie, in his ignorant restiveness under criticism and animosity towards press critics, has overlooked what a great Constitutional writer terms "the fundamental truth, settled after centuries of misguided zeal and energy, that thought and speech are beyond the reach of all Governments and laws, and cannot be extinguished or dictated to except at the expense of life itself; that therefore it is idle, impotent, and vain for the law to attempt to do what is impossible, and that it is the highest wisdom to confine itself to the narrowest province of regulating by the smallest number of restrictions the enjoyment and exercise of this natural illimitable force." Paterson, in a well-known work on Public Liberty, writes: "While the liberty of speech is coveted by the people as indispensable to their living under any well-balanced system of Government, much more so is the liberty of the press, which is nothing more than the expansion of the other by mechanical means, thereby intensifying and making universal what might otherwise be spent on a small and isolated group of listeners. When any person is free to publish whatever he deems interesting or valuable, either as a mode of procuring profit to himself or as a means of influencing the minds and will of his fellow-citizens on matters on which union and combination can effect great results, this is the highest mark of freedom, and when once enjoyed by a people will not easily be relinquished, and any attempt to tamper with it will provoke unappeasable clamour and resistance. The freedom of the press, like the great discoveries of science, has been arrived at by painful steps and slow." And still again the same authority says:—"And yet this simple proposition that thought and speech are free has beed arrived at only after the painful experience of ages. . . . Whether this conflict is yet at an end everywhere, some Governments at least have long ago surrendered, being satisfied that they have met a force which they can neither conquer nor annihilate. They have learnt that it is idle, impotent, and vain to continue the conflict longer on the old basis, and therefore they admit that the primary right of all men is to think and say what they like, both about themselves and everybody else, and for page 12 this simple and all-sufficient reason, that no power known to mankind has been discovered strong enough to compel them to abstain." The basis of the liberty of the press is thus defined by Lord Erskine:—"Every man not intending to mislead but seeking to enlighten others with what his own reason and conscience, however erroneously, have dictated to him as truth, may address himself to the universal intelligence of a whole nation either upon the subject of government in general or upon that of his own individual country. He may analyse the principles of its constitution, point out its errors and defects, examine and publish its corruptions, warn his fellow-citizens against their ruinous consequences, and exert his whole faculties in pointing out the most advantageous changes in establishments which he considers to be radically defective or sliding from their object to abuse. All this every subject of this country has a right to do if he contemplates only what he thinks would be for its advantage, and but seeks to change the public mind by the conviction which flows from reasonings dictated by conscience." Another authority says: "The liberty of the press means the liberty of publishing whatever any member of the public thinks fit, without any preliminary license or qualification whatever, and subject only to this restriction, that if he goes to an extreme in making blasphemous, immoral, seditious or defamatory statements, that he maybe punished afterwards by indictment, information, or by action for such excess." Another eminent writer quoted in Parliamentary History writes to this effect:—"The greatest enjoyment that rational and sensible creatures are capable of is to employ their thoughts on what subject they please, and to communicate them to one another as freely as they think them; and herein consists the dignity and freedom of human nature, without which no other freedom can be secure. For what is it that enables a few tyrants to keep almost all mankind in slavery, but their narrow and wrong notions of government, which is owing to the discouragement they lie under of mutually communicating, and consequently of employing their thoughts on political matters, which, did they do, it is impossible that the bulk of mankind should have suffered themselves to be enslaved from generation to generation. But the arts of State in most countries being to enslave the people or to keep them in slavery, it became a crime to talk, much more to write, about political matters, and ever since printing has been invented there have been in most cases State licensers to hinder men from writing freely about government, for which there can be no other reason but to prevent the defects of either the Government or the management of it being discovered and amended." Finally, so far as this branch of the subject is concerned, we quote again from Parliamentary History the noble words uttered in Parliament by Charles James Fox:—"English freedom does not depend on the Executive Government, nor upon the administration of justice, nor upon one particular and distinct part, nor even upon forms, so much as it does upon the general freedom of speech and of writing. Speech ought to be completely free. The press ought to be completely free, when any man may write and print what he pleased, though he is liable to be punished if he abused that freedom. This is perfect freedom. I have never heard of any danger arising to a free State from the freedom of the press or freedom of speech; so far from it, I am perfectly clear that a free State cannot exist without both. It is not the law that is to be found in books that constitutes, that has constituted, the true principle of freedom in any country at any time. No, it is the energy, the boldness of a man's mind which prompts him to speak, not in private, but in large and popular assemblies, that constitutes, that creates in a State, the spirit of freedom. This is the principle that gives life to liberty. Without it the human character is a stranger to freedom. As a tree that is injured at the root, page 13 with the bark taken off some of its branches, may live for a while, and some sort of blossom may still remain, but it will soon wither, decay, and perish; so take away the freedom of speech or of writing, and the foundation of all your freedom is gone. You will then fall and be degraded and despised by all the world for your weakness and your folly in not taking care of that which conducted you to all your fame, your greatness, your opulence and prosperity." As so how far anonymity is necessary to preserve the freedom, independence, purity, and influence of the press, we shall have something to say and authorities to quote on a future occasion. What we have already said and quoted may aid in making Mr. McKenzie realise the true character of the attempt on which he has embarked, and the disastrous consequences to the public, rather than to the newspapers, which would result if success were to attend his efforts—a contingency which, fortunately, is practically impossible.
This is true liberty: when freeborn men,
Having to advise the public, may speak free;
While he who can, and will, deserves high praise,
Who neither can, nor will, may hold his peace,
What can be juster in a State than this?
"Here shall the press the people's right maintain,
Unawed by influence and unbribed by gain."
The title of Mr. McKenzie's Press Bill is a misnomer. It should be termed "A Bill to prohibit anonymous writing." It in no way limits the law of libel, as would naturally be inferred from the title. On the contrary, it attaches privilege to certain forms of libel which would not now be privileged—that is, it gives privilege, where the publication is without malice, to the paper which publishes a signed libel, which is not given under the present law. This would most materially extend instead of limiting the publication of libels. But it is evident that the Bill as originally drafted was intended to cover much wider ground than is included in the six clauses of the Bill which are now left. The title was devised to cover this wider ground. Mr. McKenzie desired to define libel and limit the right of free and independent criticism. Probably when the Bill came before Cabinet his better-informed colleagues intervened to prevent him making them and himself more utterly ridiculous than is done by the six clauses which now constitute the Bill. The greatest modern statesmen, the most learned jurists, the most advanced legislatures of the old world, have shrunk from the task of defining libel, either by legislation or judicial decision. Verily, it is true that fools rush in where angels fear to tread, or a possibly illiterate Minister or Ministers in a small colony would not have dreamt of attempting the delicate and practically impossible task of formulating a general definition. Ignorant and weak-minded men very easily grow puffed up in their own conceit, and then they become exceedingly thin-skinned. When the bubble of their self-importance is pricked, their vanity wounded, and their actions or utterances subjected to well-deserved criticism, their galled withers wince, and they at once begin to complain that the criticism is scurrilous or libellous. Probably in the whole range of the English language there are no two words more often misapplied by public men than these words, scurrilous and libellous. The more thoroughly just, the more entirely deserved a criticism or a censure may be, the more likely is its object to declare it to be libellous and scurrilous. The most scathing criticism is possible without trenching on either scurrility or libel; and we are glad to say that only in very rare instances indeed does press criticism, however severe, justify the application to it of either of the two descriptive terms. They are used and applied simply to divert attention from the truth and justice of what has been said, and in default of any reasonable or plausible reply or defence on the merits or facts. As to libel and the possibility of page 16 giving it a legal definition, a great authority has declared that "no man can tell precisely what is or what is not a libel." Bentham once, with caustic humour, defined a libel to be "anything that may at any time displease anybody." This is the sort of definition which Mr. McKenzie would no doubt have liked to put in his Libel Limitation Bill had he been allowed. Possibly he would have substituted the word "Ministers" for "anybody." We do not suppose he would have proposed to limit the power which members of Parliament now possess, and sometimes use, of making the most false and libellous statements with impunity, under protection of Parliamentary privilege, against those who may chance to incur their enmity. Prior to 1792 Judges used to direct juries as to what was libel. In that year Fox's Act was passed, which gave the jury the sole power of saying whether any publication was a libel. This provision affords one of the greatest possible protections to the freedom of the press and liberty of thought and speech. The Judges, for a time, struggled to retain their former power, but in the end they had to yield to the jury the right of determining what was libellous. Lord Denman has said that "if a judge told a jury that an article was in point of law a libel, he virtually repealed Fox's Act." No doubt Mr. McKenzie would like to give Ministers or Judges the power. Lord Camden has explained why it should be jealously preserved to juries. He did so in these memorable words:—"Who shall have the care of the liberty of the press—the judges, or the people of England? The jury are the people of England. The judges are independent men. Be it so. But are they totally beyond the possibility of corruption from the Crown? Is it impossible to show them favour in an any way whatever? The truth is they possibly may be corrupted. Juries never can. What would be the effect of giving judges the whole control of the press? Nothing would appear that could be disagreeable to the Government. As well might an Act of Parliament pass that nothing shall be printed or published but panegyrics on Ministers. In the full catalogue of crimes there is not one so fit to be determined by a jury as libel." In precisely the same spirit is Wedderburn's declaration that "libel is founded entirely on public opinion. There is no other standard by which it can be measured or ascertained. Who, then, so proper as the people to determine the point?" Lord Kenyon, C.J., gave an admirable definition of the liberty of the press and what constitutes libel, in these words:—"After all, the truth of the matter as to the liberty of the press is very simple when stripped of all the ornaments of speech, and a man of plain common sense may easily understand it. It is neither more or less than this—a man may publish anything which twelve of his countrymen think is not blameable, but that he ought to be punished if he publishes what is blameable. This in plain common sense is the subject of all that has been said upon the subject." Sir John Macintosh, an eminent authority, has declared that "Those who slowly built up the fabric of our law never attempted anything so absurd as to define by any precise rule the obscure and shifting boundary which divides libel from history or discussion." Curran referred to the question in these words:—"The liberty of the press—that sacred palladium which no influence, no power, no Minister, no Government—which nothing but the depravity, or folly, or corruption of the jury, can destroy." How valuable is the liberty of the press, existing under the protection of public opinion, and resting not upon the dictum of authority, not defined by law, not subject to the definition of Ministers, legislatures, or Judges, but in every instance dependent on the unbiassed interpretation of a jury, Sheridan has shown in impassioned words. Addressing the House of Commons, he said—"Give me the liberty of the press, and I will give to the Minister a venal House of Peers. I will give him a corrupt and servile page 17 House of Commons. I will give him the full swing of the patronage of office. I will give him the whole host of Ministerial influence. I will give him all the power that place can confer upon him to purchase up submission and overawe resistance, and yet, armed with the liberty of the press, I will go forth to meet him undismayed—I will attack the mighty fabric he has raised with that mightier engine. I will shake down from its height corruption, and bring it beneath the ruins of the abuses it was meant to scatter." It is scarcely necessary for us to say more to show how dangerous is Mr. McKenzie's desire to limit and define libel by Act of Parliament.