The law of libel in Ireland was formerly very loose and badly understood, and the courts there had no particular propensity for multiplying legal difficulties on ticklish subjects.
The judges were then dependant; a circumstance which might have partially accounted for such causes being less frequent than in later times: but another reason, more extensively operating, was, that in those days men who were libelled generally took the law into their own hands, and eased the King’s Bench of great trouble by the substitution of a small-sword for an information, or a case of pistols for a judgment;—and these same articles certainly formed a greater check upon the propagation of libels than the twelve judges and thirty-six jurors, altogether, at the present day; and gave rise to a code of laws very different from those we call municipal. A third consideration is, that scolding-matches and disputes among soldiers were then never made matters of legal inquiry. Military officers are now, by statute,[[69]] held unfit to remain such if they fight one another, whilst formerly they were thought unfit to remain in the army if they did not: formerly, they were bound to fight in person; now, they can fight by proxy, and in Ireland may hire champions to contest the matter for them every day in the week, (Sunday excepted,) and so decide their quarrels without the least danger or one drop of bloodshed. A few able lawyers, armed with paper and parchment, will fight for them all day long, and, if necessary, all night likewise; and that, probably, for only as much recompense as may be sufficient to provide a handsome entertainment to some of the spectators and pioneer attorneys, who are generally bottle-holders on these occasions.
[69]. See the Mutiny Act.
Another curious anomaly is become obvious. If lawyers now refuse to pistol each other, they may be scouted out of society as cowards, though duelling is against the law! but if military officers take a shot at each other, they may be dismissed from the army, though fighting is the essence and object of their profession: so that a civilian, by the new lights of society, changes places with the soldier;—the soldier is bound to be peaceable, and the civilian is forced to be pugnacious—cedent arma togæ. It is curious to conjecture what our next metamorphosis may be!
The first publication which gave rise (so far as I can remember) to decided measures for restraining the Irish press, was a newspaper called “Hoy’s Mercury,” published above fifty years ago by Mr. Peter Hoy, a printer, in Parliament-street, whom I saw some time since in his shop, on Ormond Quay, in good health, and who voted for me on the Dublin election of 1803.
In this newspaper Mr. Hoy brought forward two fictitious characters—one called Van Trump, the other Epaphroditus Dodridge. These he represented as standing together in one of the most public promenades of the Irish capital; and the one, on describing the appearance, features, and dress of each passer-by, and asking his companion—who that was?—received, in reply, a full account of the individual, to such a degree of accuracy as to leave no doubt respecting identity—particularly in a place so contracted as (comparatively speaking) Dublin then was. In this way as much libellous matter was disseminated as would now send a publisher to gaol for half his life; and the affair was so warmly and generally taken up, that the lawyers were set to work, Peter Hoy sadly terrified, and Van Trump and Epaphroditus Dodridge banished from that worthy person’s newspaper.
But the most remarkable observation is, that so soon as the Irish judges were, in 1782, made by statute independent of the crown, the law of libel became more strictly construed, and libellers more severely punished. This can only be accounted for by supposing that, while dependent, the judges felt that any peculiar rigour might be attributed, in certain instances, less to their justice than to their policy; and, being thus sensitive (especially in regard to crown cases), they were cautious of pushing the enactments to their full scope. After the provision which rendered them independent of the ruling powers, this delicacy became needless:—but, nevertheless, a candid judge will always bear in mind, that austerity is no necessary attribute of justice, which is always more efficient in its operation when tempered with mercy. The unsalutary harshness of our penal code has become notorious. True, it is not acted up to; and this is only another modification of the evil, since it tempts almost every culprit to anticipate his own escape. On the continent it is different. There, the punishment which the law provides is certainly inflicted: and the consequence is, that in France there is not above one capital conviction to any twenty in England.
The late Lord Clonmel’s[[70]] heart was nearly broken by vexations connected with his public functions. He had been in the habit of holding parties to excessive bail in libel cases on his own fiat, which method of proceeding was at length regularly challenged and brought forward; and, the matter being discussed with asperity in parliament, his lordship was restrained from pursuing such courses for the future.