CRITICISM OR TREASON 53 



individual conceived that he was committing no offence, yet 

 he might speedily find himself imprisoned for a supposedly 

 innocent, or even meritorious act. 



To a considerable extent, then, the law relating to publi- 

 cation of criticism is ex post facto and on that account to be 

 deprecated. In this respect, however, it is not dissimilar to the 

 law relating to criminal libel, to which every one is accustomed. 

 In the instance of civil libel there is abundance of principle 

 and precedent upon which to draw, but in the case of criminal 

 libel a statute enjoins upon the judge a course of action which 

 is analogous to the performance of a scientific experiment. 

 Just as the scientific man when confronted with a problem 

 which is not governed by ascertained principles makes a 

 test, so in the case of the libel the judge carries out a test 

 by which he discovers the attitude of the average mind towards 

 the matter with which he is dealing. He submits it to a dozen 

 citizens, who between them are taken to represent the juridical 

 average man and who determine exclusively whether guilt 

 is present or absent. If in the special circumstances of the 

 case before it, the jury considers that the writing was not 

 blameworthy, a verdict of " not guilty " follows. If the jury 

 thinks the libel ought not to have issued, condemnation 

 proceeds. It becomes then a question of what the jury thinks 

 ought not to have taken place ; and where questions of " ought " 

 arise, law vanishes, and, as a guide to future action, no court 

 precedent is available. 



Similarly, where a British subject, not under naval or 

 military incapacity, is to be tried for a press offence, the 

 jury would consider what the present and immediate circum- 

 stances dictate to be reasonable and proper. Guidance is to 

 be expected from military experts, guidance which would 

 naturally vary from time to time and place to place, possibly 

 from witness to witness. 



Although it is unlikely that where important issues were 

 involved the evidence of the naval or military expert would be 

 given publicly or subsequently published in the press so 

 that the public could learn what they may or may not discuss 

 or criticise, yet it is clear that the standard by which the citizen 

 has ultimately to adjust his conduct and to measure his action 

 is that which the expert deems right and proper at the time 

 and place and in view of all the circumstances. 



