« PreviousContinue »
A defendant was tried for publishing a letter purporting to be the re- 4. Prosecution solutions of a body of persons calling themselves the general convention, of libellers. and in one part of it stated that an outrage had been committed on the people of Birmingham by a force “ acting under the authority of men who, when out of office, sanctioned and took part in the meetings of the people.” A witness for the Crown stated in his cross-examination, that he had formerly belonged to the convention, but had since resigned, and had become a town councillor of Birmingham. It was proposed to ask him further, in cross-examination, as to what he said at a meeting at which the convention was agreed on, but which took place nearly a year before the publication of the alleged libel :-Held, that this could not be done. (Reg. v. Collins, 9 C. & P. 456).
If defendant alleges, in mitigation, that a libellous book was published against him by plaintiff, and, in support of such case, a bookseller produces, from his own possession, a printed book, stating his belief, that it is one of a number of copies published at his shop, this is not evidence for the jury that another book with the same contents was actually published. (Watts v. Fraser, 7 Ad. & El. 223).
As to the proof of publication in a newspaper, see tit. “ Newspapers,” In newspapers. Vol. V. pp. 207, 208). By 6 & 7 Vict. c. 96, s. 7,“ whensoever, upon the trial of any indict- Evidence to rebut
prima facie case of ment or information for the publication of a libel, under the plea of not primi arte ca
publication by an guilty, evidence shall have been given which shall establish a presump- agent. tive case of publication against the defendant by the act of any other person by his authority, it shall be competent to such defendant to prove that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part.”
6. THE TRIAL. A great alteration took place, many years ago, in the trials for libels. 17). The trial. It had been held, in many cases, that the facts of writing, printing, or of the power of a publishing, and the truth of the innuendoes inserted in the proceedings, liben.
jury in cases of were the only matters to be submitted to the consideration of the jury. (1 Barn. 304; 9 Harg. St. Tri. 255; R. v. Withers, 3 T. R. 428).
But by stat. 32 Geo. III. c. 60, s. 1, after reciting, that “doubts have 32 Geo. III. c. 60. arisen whether on the trial of an indictment or information for the making or publishing any libel, where an issue or issues are joined between the King and the defendant or defendants, on the plea of not guilty pleaded, it be competent to the jury impanelled to try the same, to give their verdict upon the whole matter in issue,” it is enacted, “that, on every such trial, the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information; and shall not be required or directed, by the Court or judge before whom such indictment or informtion shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information.”
Sect. 2. “On every such trial, the Court or judge before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and directions to the jury on the matter in issue between the King and the defendant or defendants, in like manner as in other criminal cases."
Sect. 3. “Nothing herein contained shall extend, or be construed to extend, to prevent the jury from finding a special verdict, in their discretion, as in other criminal cases.”
Sect. 4. “In case the jury shall find the defendant or defendants guilty, it shall and may be lawful for the said defendant or defendants to move in arrest of judgment, on such ground and in such manner as
4. Prosecution by law, he or they might have done before the passing of this act; ay of libellers. thing herein contained to the contrary notwithstanding."
Mr. Starkie, in his Treatise on Evidence, makes the following oberry tion on the effect of this statute:-“ Whether a particular publicatiu be so far noxious in its bearing and tendencies, as to amount, in the xstract, to a libel, is a pure question of law, just as much as it is a ças tion of law, what will constitute an assault. If the publication, in er sideration of law, be libellous, then it is a question of fact for the joy whether it was wilfully and maliciously published; subject
, howere to the ordinary presumption of law, that, in the absence of proof to the contrary, a man intends that which is the natural consequence of de means which he employs. It follows, that neither the jury me tite parties have a right to expect from the Court any specific and dire opinion upon the whole of the case, or any other than that which ordinarily given, at the discretion of the Court, to the jury, in para cases, with respect to the verdict which they ought to find, in pules law, as dependant and contingent upon their conclusions, in point fact, drawn from the alleged libel itself, and all the circumstances of a case, as to the meaning, motives, and intention of the decade. (Starkie on Evid. Part IV. 882. And see R. v. Holt, 5 T. R. 4*,} v. Burdett, 4 B. & Ald. 95; 1 Saund. 132 b, n. (k)).
It was, it seems, considered, in one case, that this statute does se apply to civil proceedings, and the question of libel or no libel is om Court. (Levy v. Milne, 4 Bing. 199; 12 Moore, 418. And see Rama v. Templar, 2 Jur. 137). But even in civil proceedings it is a casa for the jury to determine whether the article was written lous intent and meaning. (Empson v. Fairfax, K. B., 14 d. * It is competent to a judge, in an action for libel, to leave 2 to the jury without stating his opinion as to whether they amounts to a libel or not.° (Baylis y. Lawrence, 3 P.& D. 13, 1.b & El. 920, S. C.)
The judge is not bound to state to the jury, as matter of larve the publication complained of be a libel or not; but the is for him to define what is a libel in point of law, and tas to the jury to say whether the publication in question fails : definition; and, as incidental to that, whether it is calculated the character of the plaintiff. (Parmiter v. Coupland, 6.M.8 TS
8. Costs on PROSECUTION, (8) Costs.
By the 6 & 7 Vict. c. 96, s. 8, “in the case of any indicteer Defendant entitled formation by a private prosecutor for the publication of acy dit to, on acquittal of a private libel. libel, if judgment shall be given for the defendant, he shall be
to recover from the prosecutor the costs sustained by the same ant by reason of such indictment or information; and that
, er special plea of justification to such indictment or informatizi* issue be found for the prosecutor, he shall be entitled to make the defendant the costs sustained by the prosecutor hy reaca isi plea, such costs so to be recovered by the defendant or pre* spectively to be taxed by the proper officer of the Court being the said indictment or information is tried.”
As to costs in general, see tits. “ Costs,” Vol. II.; “Certiorari.
(9). The punish-
9. PUNISHMENT For Libel, SEIZURE OF COPIES, &c. The offenders may be condemned to pay such fine, and ais de such corporal punishment as to the Court; in its discretion, she proper, according to the heinousuess of the crime, and the circle of the offender. °(1 Hawk. c. 73, s. 16). The Court also frequedat quires the defendant to give sureties for the peace.
By the 6 & 7 Vict. c. 96, s. 4, “ if any person shall maliciously pub- 4. Prosecution lish any defamatory libel, knowing the same to be false, every such per- of libellers. son, being convicted thereof, shall be liable to be imprisoned in the
False defamatory common gaol or house of correction for any term not exceeding two libel punishable by years, and to pay such fine as the Court shall award.”
imprisonment and By sect. 5, "if any person shall maliciously publish any defamatory Malicious desama
Malicious defamalibel, every such person, being convicted thereof, shall be liable to fine torshipeline boy
prisonment or or imprisonment, or both, as the Court may award, such imprisonment fine. not to exceed the term of one year.”
A defendant has been allowed to prove, that he had stopped the sale Mitigation of, of a libellous publication, with a view to mitigation of punishment in case of conviction, and to avoid the expense of bringing the fact before the Court by affidavit. (R. v. Hone, Guildhall, Hilary T. 1817; 3 Chit. C. L. 877, a.) But the truth of the libel could be set up in mitigation before the 6 & 7 Vict. c. 96, s. 6, ante, 1217. (R. v. Halpin, 4 Man. & R. 8; 9 B. & C. 65, S. C.; R. v. Burdett, 4 B.'s Ald. 95).
Stat. 60 Geo. III. & 1 Geo. IV. c. 8, s. 1, reciting, “That it is ex. Seditious and blaspedient to make more effectual provision for the punishment of blas- phemous libels. phemous and seditious libels,” enacts, “ that from and after the passing Court to make orof this act [30th December, 18197, in every case in which any verdict,
der for seizure of
copies of libel in or judgment by default shall be had against any person for composing, possession of per. printing or publishing any blasphemous libel, or any seditious libel, sons against whom
verdicts shall have tending to bring into hatred or contempt the person of his Majesty, his been had, &c. heirs or successors, or the regent, or the government and constitution of the United Kingdom as by law established, or either House of Parliament, or to excite his Majesty's subjects to attempt the alteration of any matter in church or state as by law established, otherwise than by lawful means, it shall be lawful for the judge or the Court before whom or in which such verdict shall have been given, or the Court in which such judgment by default shall be had, to make an order for the seizure and carrying away and detaining in safe custody, in such manner as shall be directed in such order, all copies of the libel which shall be in the possession of the person against whom such verdict or judgment shall have been had, or in the possession of any other person named in the order for his use; evidence upon oath having been previously given to the satisfaction of such Court or judge, that a copy or copies of the said libel is or are in the possession of such other person for the use of the person against whom such verdict or judgment shall have been had as aforesaid ; and in every such case it shall be lawful for any justice of the peace, or for any constable or other peace officer acting under any such order, or for any person or persons acting with or in aid of any such justice of the peace, constable or other peace officer, to search for any copies of such libel in any house, building or other place whatsoever, belonging to the person against whom any such verdict or judgment shall have been had, or to any other person so named, in whose possession any copies of any such libel, belonging to the person against whom any such verdict or judgment shall have been had, shall be ; and in case admission shall be refused or not obtained within a reasonable time after it shall bave been first demanded, to enter by force by day into any such house, building or place whatsoever, and to carry away all copies of the libel there found, and to detain the same in safe custody until the same shall be restored under the provisions of this act, or disposed of according to any further order made in relation thereto.”
Sect. 2. “ If in any such case as aforesaid judgment shall be arrested, Copies of libels so or if, after judgment shall have been entered, the same shall be reversed seized to be re
stored if judgment upon any writ of error, all copies so seized shall be forthwith returned to for dcfendan the person or persons from whom the same shall have been so taken as otherwise to be
disposed of as aforesaid, free of all charge and expense, and without the payment of Court shall direct. any fees whatever; and in every case in which final judgment shall be entered upon the verdict so found against the person or persons charged
5. Publishing, with having composed, printed or published such libel, then all copies or threatening so seized shall be disposed of as the Court in which such judgment sati to publish. be given shall order and direct.”
Sect. 3 empowers the Court of Justiciary in Scotland to makt oder
for seizing copies of libels, &c. Second conviction. By sect. 4, it was enacted that any person convicted & seront une
of publishing a blasphemous or seditious libel should, at the desta of the Court, be adjudged either to suffer such punishment as mich in law be inflicted in cases of high misdemeanour, or to be banished tha the United Kingdom and all other parts of his Majesty's dominkta such term of years as the Court should order. But this enactmtrt far as it related to the sentence of banishment, is repealed by the l!
Geo. IV. & 1 Will IV. c. 73, s. 1. Certificate to be Sect. 7. “The clerk of assize, clerk of the peace, or other clerk ? given of conviction officer of the Court having the custody of the records
, where any a fender shall have been convicted of having composed, printed or pe ed any blasphemous or seditious libel, shall, upon request of the price cutor on his Majesty's behalf, make out and give a certificate in se ing, signed by him, containing the effect and substance only (outs the formal part) of every indictment and conviction of such ot-te to the justices of assize, oyer and terminer, great sessions, or gas livery, where such offender or offenders shall be indicted for any reai offence of composing, printing or publishing any blasphemous oe ** tious libel; for which certificate six shillings and eightpenice
, sad son more, shall be paid, and which certificate shall be sufficient prxc * * *
conviction of such offender.” Limitation of ac. Sect. 8. “Any action and* suit which shall be brought a nesas
against any justice or justices of the peace, constable,
shall be commenced within six calendar months next after the Venue.
mitted, and not afterwards; and the venue in every such asi?
suit shall be laid in the proper county where the fact was cosas General issue may and not elsewhere ; and the defendant or defendants in every sos be pleaded. or suit may plead the general issue, and give this act and the most
matter in evidence at any trial to be had thereupon ; and if s. tion or suit shall be brought or commenced after the time lies bringing the same, or the venue shall be laid in any other place that aforesaid, then the jury shall find a verdict for the defendante des ants ; and in such case, or if the jury shall find a verdict im fendant or defendants upon the merits, or if the plaintif or jack shall become nonsuit, or discontinue his, her or their actions pearance, or if, upon demurrer, judgment shall be given in
plaintiff or plaintiffs, the defendant or defendants shall have* Double costs. costs, which he or they shall and may recover in such and **
manner as any defendant can by law in other cases." See 2011 double costs, the 5 & 6 Vict. c. 97, s. 2, ante, 1043.
Sect. 9 relates to the limitations of actions, &c., in Scotland.
Sect. 10. Nothing in the act is to alter the law of Scotland
to punishment for libels. Newspapers. As to the penalty for printing or publishing any seditive 3*,
under colour of its having been printed in a foreign paper 45 “ Newspapers," post, Vol. V.
V. Publishing or threatening to publish, &c., a 20
eftort Money. Publishing or Stat. 6 & 7 Vict. c. 96, s. 3, enacts, “that if any person ska publish a libel, or or threaten to publish any libel upon any other person, or stai
or indirectly threaten to print or publish, or shall directly or indirectly 6. Forms. propose to abstain from printing or publishing, or shall directly or indirectly offer to prevent the printing or publishing, of any matter or gain frog roub. Ching touching any other person, with intent to extort any money or lishing any thing,
with intent to execurity for money, or any valuable thing from such or any other per
tort money, puson, or with intent to induce any person to confer or procure for any nishable by impri
sonment and hard person any appointment or office of profit or trust, every such offender,
labour. on being convicted thereof, shall be liable to be imprisoned, with or vithout hard labour, in the common gaol or house of correction, for any term not exceeding three years: Provided always, that nothing nerein contained shall in any manner alter or affect any law now in Force in respect of the sending or delivery of threatening letters or writings."
The warrant in the case of Butt v. Conant, (1 B. & B. 548; 4 Moore, 195, S. (1). Warrant to C.), ante, 1210, dated 6th March, 1817, at the public office Bow-street, was di. apprehend for a
libel. rected _" To all constables and others his Majesty's officers of the peace, whom Et may concern,” (commanding them to take and bring before the defendant, or some other of his Majesty's justices of the peace, the body of the plaintiff ], " to answer all such matiers or things as, on his Majesty's behalf, shall on oath be objected against him, for that he, on the 5th March instant, did publish, and cause to be published, a certain wicked, scandalous, and malicious libel, imputEng the crime of robbery to Edward Lord Ellenborough, Lord Chief Justice of Fris Majesty's Court of King's Bench; and another wicked, scandalous, and nalicious libel, imputing to Robert Henry Lord Castlereagh, that he had stated
gross falsehood to the House of Commons, to answer his own purposes ; and o the said Edward Lord Ellenborough, that he had unjustly convicted the plaintiff, to make money of him ; against the peace of our said lord the King, his crown and dignity." See forms as to blasphemous libels, tit. “Blasphemy," Vol. I.
Commencement as usual, ante, p. 54, (No. 1).]-on the day of (2). Commitment A. D. — , at the parish of — , in the said county, wickedly, maliciously, and for a seditious
libel. seditiously did write and publish a certain false, wicked, malicious, scandalous, lib and seditious libel of and concerning our sovereign lady the now Queen and her government. And you, the said keeper, &c. [Conclude as usual.]
Commencement as usual, ante, 54, (No. 1).]-on the day of — , A. D. (3). Commitment , at the parish of — , in the said county, wickedly, maliciously, and sedi. for seditious
words. Liously, in the presence and hearing of divers liege subjects of our sovereign lady the now Queen, did publish, utter, pronounce, and declare certain scandalous, wicked, malicious, and seditious words, of and concerning our said lady the Queen and her government. And you, the said keeper, &c. [Conclude as usual.]
- The jurors for our lady the Queen upon their oath present, that A. (4). Indictment 0., late of the parish of — , in the county of — [gentleman], not having the for a seditious
libel. fear of God before his eyes, but moved by the instigation of the devil, and falsely and maliciously contriving and intending to bring our said lady the Queen into hatred and infamy amongst her subjects, and to move sedition amongst the sub. jects of our said lady the Queen, did, on the day of — , in the year of the reign of our lady the now Queen Victoria, with force and arms, at the parish aforesaid, in the county aforesaid, falsely, seditiously, and maliciously write and publish, and cause to be written and published, a certain false, sedi. tious, and scandalous libel, intituled, &c.; in which said libel are contained, among other things, divers false, seditious, scandalous, and malicious matters, according to the tenor following, to wit, --. And in another part of the same