ry, and if the defendant rebuts the imputation of malice, and proves that what he uttered is true, he is guilty of no offence, and cannot be pronounced guilty by the verdict of his peers.

3. The highest evidence of what the common law is, are the ancient statutes as well as records of the realm. Now, from these statutes we learn, that the falsity of the charge was always a material ingredient in a libel. Thus, the Statute of Westm. 1, Edw. 1, c. 34, recites, that "there had been oftentimes found in the country, devisors of tales, whereby occasion of discord had many times arisen between the king and his people, or great men of the realm; and it enacts, that none thereafter be so hardy as to publish any false news or tales, whereby such discord may grow, and he that doth so, shall be imprisoned until he produce his author." The same offence, similarly described, is recognised by the statutes of 2 Rich, II. c. 5; 12 Rich, II. c. 11, and 2 Ph. & M. c. 3. The last of these statutes enacts, that "if any person be convicted of speaking maliciously, of his own imagination, any fulse, seditious and slanderous news or tales of the king or queen, he shall be set in the pillory, &c." "We find solitary instances," says Chancellor Kent, "in the reigns of Mary and Elizabeth, of prosecutions, at common law, under the statutes; but the Star Chamber, about that time, from its more summary proceedings and violent maxims, began to monopolize the whole jurisdiction of slander and libel." Lord Coke, in his commentaries on the statute of Westm. 1, uniformly describes the offence, by the epithets false and feigned, and says, that "no punishment was inflicted, by this statute, upon the devisor of such false scandal, but he was left to the common law to be punished. according to the offence, which was aggravated inasmuch as it was prohibited by statute," clearly showing, that the statute was in affirmance of the common law; and this ground is distinctly taken by Judge Atkins, in the case of Townsend vs Hughes. The form of the record of a conviction of John Northampton, in the king's bench, for a libellous letter upon the Court, Coke, 3 Inst. p. 174, states that the libel was false; quæ litera continet in se nullam veritatem.

4. We can trace the origin of the contrary doctrine to the arbitrary precedents introduced by the Court of Star Chamber, a court without a jury, and which adopted, as its

forms of proceeding, those of the civil and not the common law. The two cases which introduced this heresy, were Breverton's case, 2 Jac. I., and the case 5 Co. 125 ; 3 Jac. I. It was a clear innovation upon the doctrine of the common law, and was denounced and resisted as such with great firmness. During the reign of this Court, the liberty of the press was virtually abolished, and, equally so, under the reign of the Stuarts, by the licensing laws of Parliament, and the imprimaturs of the government, borrowed from the Inquisition.

5. In the case of the Seven Bishops, in K. B. 4 St. Trials, the ground was taken, that it was immaterial whether the libel was true or false. In charging the jury, one of the judges placed the question altogether on the quo animo of the defendants; whilst another (Mr. Justice Powell) told the jury, that to make a libel, it must be false, it must be malicious and it must tend to sedition. The defendants were acquitted. Fuller's case, 2 St. Tr. 422-4, is a most important one for the settlement of this question. Chancellor Kent tells us, it was a prosecution at common law. The defendant being without counsel, Chief Justice Holt addressed him in these words: "Can you make it appear that these books are true? If you take it upon you to write such things as you are charged with, it lies upon you to prove them," and much more to the same purpose, making the essence of the libel its falsehood. In Franklin's case, the counsel for the defendant offered to prove that the libel was true. Lord Chief Justice Raymond overruled the evidence, saying it was immaterial whether the facts charged were true or false. "Then," said the counsel for the defence (Mr. Bootle,) "I submit whether this will not tend to the utter suppression of the liberty of the press!" We affirm, without the fear of contradiction, that Franklin's was the first case, in a court of common law, where such a doctrine was laid down, and the first in which the jury were prohibited from judging of the criminality of a libel. Upon the trial of John Horne, before Lord Mansfield, for a libel, (11 St. Tr. 283,) the defendant was permitted to call witnesses to prove the truth of the libel. In 1792, this point was made a question in the House of Lords, when very Lord Camden said, "A paper that tended to excite sedition was libellous: but a paper that reflected upon the conduct of ministry, that pointed out their base and mischievous pro

ceedings, that went to open the eyes of the world, ought not to be considered libellous. The jury must judge of the seditious tendency of the libel. Some would have every censure on the measures of government a libel. If this were the case, the voice of truth would cease to be heard amidst the notes of adulation. It ought to be left to a jury to decide, whether what was called calumny, was well or illfounded."

This is precisely the ground taken in this country. We are happy that the authority of the common law is on our side. If it were not, we should not be bound to abide by its dictates. It is essential to the very existence of liberty, that the press should be free; that every question of public interest, whether it relates to the qualifications of candidates for office, the measures of parties or the measures of government; the constitntionality of laws; their administration; the decisious of courts and judges under the laws; and that all other subjects relating to the public management of affairs, should be fully and freely canvassed, under those limitations only which truth and honesty impose. This is especially necessary in a country where the people govern themselves by laws of their own appointment,--where ignorance of the law excuses no man, and where all public officers are responsible to the people for their conduct, and removable from office for misconduct. A press that is not free to utter the truth in respect to matters of public interest, has no freedom and no power, and is utterly contemptible. We conclude this article in the words of Jefferson,-than whom no person ever suffered more from the vituperation of a party press. "Error of opinion," says he, in his bold manner, "may be always tolerated when reason is left free to combat it. The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide, whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter."

ERRATA.-Page 262, 18 lines from the bottom, for "any just cause why a jury should," read "any just cause why a jury should not."

Howitt's Homes of the Poets.

269

ART. IX.-CRITICAL NOTICES.

1.-Homes and Haunts of the most eminent British Poets. By WILLIAM HOWITT. Two vols. 8vo. New-York: Harper & Brothers. 1847.

THE author of these volumes is well known by several publications, of no very high merit, but pleasing, and winning for themselves at once, all the popularity they were likely to have. Such were the "Book of the Seasons"-the "Student's Life in Germany" and the "Visits to Remarkable Places." The author has been something of a traveller abroad, and a great rambler at home, and his books have all grown out of his rovings. former. They are not very compact, or consistent, and the attempts We suppose the latter were made with an eye to the at very fine writing, which are frequent enough, are generally decided failures. But they have many companionable qualities; the descriptions of nature are often fresh and lively, and the sketches of man, not without vivacity and even force. Mr. Howitt is, besides, a passionate literary antiquarian, and has thus become possessed of a great deal of knowledge that is rare, and that has an interest for almost body. All this is gathered together in the volumes before us. He has coursed over the British Isles with a perseverance quite wonderful,— every mounting every hill, tracking every stream, scouring every village, for remains, traditions, traces of the lives of the poets, and whatever he has found, and also much that he has not found, he has reported here at sufficient length.

It is sad enough, to see how little time has suffered to survive of what comes properly under the title of his book-the "Homes and Haunts of the Poets." Doubtless this is owing to the fact, that as to "homes," the greater part of the poet's never had any,-and that their "haunts" were too commonly taverns, which are, at any rate, not built for posterity. There is, however, still standing in London, a portion of the identical inn, from which Chaucer started with his merry company for Canterbury- —no longer an inn, but melted into other buildings, and given to other uses. thought to have been owned by Chaucer. The ruins of Spencer's castle There even stands the wall of a castle which is in Munster, where he composed the Faerie Queene, are still visible. The house where Shakespeare was born, is still standing. These are specimens of the antiquarian treasures, dug up by Mr. Howitt. Clearly, not much can be made of them. But the country still remains-the scenes loved and frequented and studied by the poets, and that furnished their material Parnassus and Castaly. Even here, however, change has been busy and often blotted out every trace. Enough remains to furnish forth a good many pages of description, but much too little to fill two large volumes, and not unfrequently wearisome even in the space it does occupy.

After all, the author is driven to biography, and we have accordingly, in no regular order or proportion, a sketch of the lives of the Poets, and critical estimates of their works, preceding, following or intermixed with descriptions of the places where they lived, and of such remains of their familiar haunts, as still survive. If the plan had been more regular, and carried out with more simplicity, the book would have been far more satisfactory. In some cases, we have a complete set of dates, in others there are almost none. Some of the articles assume the character of declamations on a party question, and others pretend to a very high and tolerant philosophy. The greater portion of the critical estimate of Milton, is a sort of indignant reply to a single sentence in Johnson's Life of that poet. Nearly the whole of the chapter on Shakespeare, is given up to an arraignment of the British nation, for allowing the descendants of that poet's sister, to live in poverty, and to a very original scheme of the author, for setting the matter right. Shelley was expelled from college for atheism-a very absurd proceeding certainly, as absurd, as to forbid a man to go to church, or to read the Bible, because he is a sinner,--but nevertheless, it was according to the laws of the University. Mr. Howitt treats the proceeding and those concerned in it, not merely with reprobation, but with brutal abuseliterally, "brutal," for he calls them hogs, and takes it as proof of their acting from base motives, that one of them became a Bishop in the course of time! This fierce and blind partisanship deforms not a few of the pages of these volumes. Compare his sketches and estimate of Swift and of Shelley. It happened to the Dean, that two very respectable ladies (whom the gods call "Stella" and "Vanessa," but known to mortals as Miss Johnson and Miss Vanhomrigh), fell desperately in love with him, and that he tried to keep up a platonic friendship with them both, without marrying either! For this he is rated as a blackhearted villain, and the melancholy madness that shrouded his last years, is traced to the atrocious wickedness of these love affairs. Shelley married very early; was the father of two children; deserted his wife and eloped with Miss Godwin, whom he married afterwards, when the other, in a state of desperation, had committed suicide,—and for all this, he is placed by Mr. Howitt, in that very select circle of English poets, who may be looked up to, as examples of domestic propriety!

This may suffice to show how far Mr. Howitt is from possessing the calm and impartial qualities of a judge. But he is a pleasing narrator, and his sketches of literary life, where party feeling does not interfere, to fill his soul with theatrical tempests, are very entertaining. His narrations and descriptions connected with the early life of Scott, of Byron, of Coleridge, and of Crabbe, are admirably done, and altogether, his volumes, however they make one angry now and then, are well worth reading.