4. Prosecution of libellers.

Publication.

In an action for a libel contained in an article against church rates, written by the defendant, and published in the T. S. newspaper, the MS. in the hand-writing of the defendant, addressed "To the editor f the T. S.," and sent to the T. S. office, is evidence to shew that the de fendant intended the article to be published in that newspaper. The plaintiff may also, for the same purpose, give in evidence hand-bills a the same subject, published by the defendant about the same time; a to shew that the libel was published with an intent to injure the pla tiff, evidence may be given that one of the hand-bills was carried ba wards and forwards before his door. (Bond v. Douglas, 7 C. & P.&; As to what amounts to a publication of a libel see ante, 1207. The publication must be proved to have taken place in the county in whi the venue is laid.

If a letter containing a libel have the post-mark on it, this is pr facie evidence of its having been published. (Shipley v. Todhanie, C. & P. 680).

Evidence that the libel was written by defendant's daughter, v was authorized to make out his bills, and write his general lettes business, is not sufficient to charge the defendant, unless it can be shar that such libel was written with the knowledge, or by the procureRKI of the defendant. (Harding v. Greening, 1 Moore, 477; 8 Torst. £ S. C.)

In an action against A. for publishing a libel, evidence sufficient ₺ 3 to a jury is furnished by proof that a libel was actually published; th it was a printed paper since destroyed; that it corresponded w printed paper produced; and that A. printed a paper corresponder d that produced, and sent 300 to a shop, from whence a pers publishing the libel procured it; and that the libel was on t taken from a parcel apparently containing 300. (Johnsat 7 Ad. & E. 233, n.)

If the manuscript of a libel be proved to be in the hand-wr defendant, and it be also proved to have been printed and this is evidence to go to the jury that it was published by the although there be no evidence given to shew that the printing lication were by the direction of the defendant. (Reg. v., & P. 462; and see Bond v. Douglas, 7 Id. 626).

In order to shew that the defendant had caused a printed inserted in a newspaper, a reporter to the paper was called, that he had given a written statement to the editor of the the contents of which had been communicated by the defenda purpose of such publication, and that the newspaper produced actly the same, with the exception of one or two slight alter affecting the sense-It was held, that what the reporter p might be considered as published by the defendant; but that paper could not be read in evidence, without producing the account delivered by the witness to the editor. (Adams v. Âo M. C. N. P. 157).

In an action for a libel, written in a disguised hand, it w to put into the hands of the jury a book, in which were entre witness swore that he saw the defendant make at the time, in the jury might compare those entries with the libel:-Be could not be done. The witness having stated, that he br libel to be in the hand-writing of the defendant, although disguised, a letter which he also stated to be the defendant's not disguised, was offered in evidence, on the ground that it some of the subjects mentioned in the libel. It was objected ground that it would have the same effect, and was evide for the same purpose as the book which had been rejected: the letter must be received in evidence, and that, being once in it could not be withdrawn from the consideration of the jury. dington v. Cousins, 7 C. & P. 595).

of libellers.

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, 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 indictment or information for the publication of a libel, under the plea of not guilty, evidence shall have been given which shall establish a presumptive 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.

Evidence to rebut prima facie case of agent.

publication by an

(7). The trial.

of the power of a jury in cases of

A great alteration took place, many years ago, in the trials for libels. It had been held, in many cases, that the facts of writing, printing, or publishing, and the truth of the innuendoes inserted in the proceedings, 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."

66

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."

(8) Costs.

Defendant entitled to, on acquittal of a private libel.

(9). The punish

ment.

Mr. Starkie, in his Treatise on Evidence, makes the following observe tion on the effect of this statute:-" Whether a particular publication! be so far noxious in its bearing and tendencies, as to amount, in the stract, to a libel, is a pure question of law, just as much as it is a qu tion of law, what will constitute an assault. If the publication, in or sideration of law, be libellous, then it is a question of fact for the jer, whether it was wilfully and maliciously published; subject, howeve 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 the means which he employs. It follows, that neither the jury nor the parties have a right to expect from the Court any specific and dre opinion upon the whole of the case, or any other than that which s ordinarily given, at the discretion of the Court, to the jury, in par cases, with respect to the verdict which they ought to find, in point f law, as dependant and contingent upon their conclusions, in points fact, drawn from the alleged libel itself, and all the circumstances of case, as to the meaning, motives, and intention of the defender. (Starkie on Evid. Part IV. 882. And see R. v. Holt, 5 T. R. 46; & v. Burdett, 4 B. & Ald. 95; 1 Saund. 132 b, n. (k) ).

It was, it seems, considered, in one case, that this statute does n apply to civil proceedings, and the question of libel or no libel is the Court. (Levy v. Milne, 4 Bing. 199; 12 Moore, 418. And see v. Templar, 2 Jur. 137). But even in civil proceedings it is a for the jury to determine whether the article was written lous intent and meaning. (Empson v. Fairfax, K. B., 14 Ja It is competent to a judge, in an action for libel, to leave to the jury without stating his opinion as to whether the amounts to a libel or not. (Baylis v. Lawrence, 3 P. & D.528; 11 46 & El. 920, S. C.)

The judge is not bound to state to the jury, as matter of law, vi the publication complained of be a libel or not; but the prope is for him to define what is a libel in point of law, and to to the jury to say whether the publication in question falls definition; and, as incidental to that, whether it is calculated the character of the plaintiff. (Parmiter v. Coupland, 6 M. & W.

8. COSTS ON PROSECUTION.

By the 6 & 7 Vict. c. 96, s. 8, "in the case of any indictmen formation by a private prosecutor for the publication of any dentr libel, if judgment shall be given for the defendant, he shall bes to recover from the prosecutor the costs sustained by the said ant by reason of such indictment or information; and that, special plea of justification to such indictment or informatio issue be found for the prosecutor, he shall be entitled to re the defendant the costs sustained by the prosecutor by reas plea, such costs so to be recovered by the defendant or pre spectively to be taxed by the proper officer of the Court before t the said indictment or information is tried."

As to costs in general, see tits. "Costs," Vol. II.; "Certiorari,
As to costs on a criminal information, see ante, 919.

9. PUNISHMENT For Libel, Seizure of COPIES, &c. The offenders may be condemned to pay such fine, and als such corporal punishment as to the Court, in its discretion, proper, according to the heinousuess of the crime, and the cir of the offender. (1 Hawk. c. 73, s. 16). The Court also freque 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 person, being convicted thereof, shall be liable to be imprisoned in the common gaol or house of correction for any term not exceeding two years, and to pay such fine as the Court shall award."

By sect. 5, "if any person shall maliciously publish any defamatory libel, every such person, being convicted thereof, shall be liable to fine or imprisonment, or both, as the Court may award, such imprisonment not to exceed the term of one year."

of libellers. False defamatory libel punishable by imprisonment and fine. Malicious defamatory libel, by im

prisonment or

fine.

A defendant has been allowed to prove, that he had stopped the sale Mitigation of, of a libellous publication, with 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. & Ald. 95).

Court to make or

der for seizure of copies of libel in

possession of persons against whom been had, &c.

verdicts shall have

Stat. 60 Geo. III. & 1 Geo. IV. c. 8, s. 1, reciting, "That it is ex- Seditious and blas pedient to make more effectual provision for the punishment of blasphemous libels. phemous and seditious libels," enacts, "that from and after the passing of this act [30th December, 1819], in every case in which any verdict, or judgment by default shall be had against any person for composing, printing or publishing any blasphemous libel, or any seditious libel, tending to bring into hatred or contempt the person of his Majesty, his 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 have 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, or if, after judgment shall have been entered, the same shall be reversed upon any writ of error, all copies so seized shall be forthwith returned to the person or persons from whom the same shall have been so taken as aforesaid, free of all charge and expense, and without the payment of 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

Copies of libels so seized to be restored if judgment for defendant; otherwise to be Court shall direct.

disposed of as

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 shal to publish. be given shall order and direct."

Second conviction.

Certificate to be

of former libel.

Sect. 3 empowers the Court of Justiciary in Scotland to make order for seizing copies of libels, &c.

By sect. 4, it was enacted that any person convicted a second me of publishing a blasphemous or seditious libel should, at the discon of the Court, be adjudged either to suffer such punishment as might law be inflicted in cases of high misdemeanour, or to be banished from the United Kingdom and all other parts of his Majesty's dominions fr such term of years as the Court should order. But this enactment, so far as it related to the sentence of banishment, is repealed by the Il Geo. IV. & 1 Will IV. c. 73, s. 1.

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 f fender shall have been convicted of having composed, printed or pulis ed any blasphemous or seditious libel, shall, upon request of the pro cutor on his Majesty's behalf, make out and give a certificate in w ing, signed by him, containing the effect and substance only ( the formal part) of every indictment and conviction of such offent to the justices of assize, oyer and terminer, great sessions, or gal livery, where such offender or offenders shall be indicted for any s offence of composing, printing or publishing any blasphemous or tious libel; for which certificate six shillings and eightpence, sad more, shall be paid, and which certificate shall be sufficient proce conviction of such offender."

Limitation of actions.

▾ Sic.

Venue.

General issue may be pleaded.

Double costs.

Newspapers.

Publishing or threatening to publish a libel, or

Sect. 8. "Any action and* suit which shall be brought against any justice or justices of the peace, constable, pear for t other person or persons, within that part of Great Britain land, or in Ireland, for anything done or acted in pursuanc shall be commenced within six calendar months next after the mitted, and not afterwards; and the venue in every such a suit shall be laid in the proper county where the fact was co and not elsewhere; and the defendant or defendants in every s or suit may plead the general issue, and give this act and the matter in evidence at any trial to be had thereupon; and if tion or suit shall be brought or commenced after the time lin bringing the same, or the venue shall be laid in any other place aforesaid, then the jury shall find a verdict for the defendant ants; and in such case, or if the jury shall find a verdict for fendant or defendants upon the merits, or if the plaintiff or pa shall become nonsuit, or discontinue his, her or their actions i pearance, or if, upon demurrer, judgment shall be given g plaintiff or plaintiffs, the defendant or defendants shall have costs, which he or they shall and may recover in such and manner as any defendant can by law in other cases." See m 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 in to punishment for libels.

As to the penalty for printing or publishing any seditions under colour of its having been printed in a foreign paper, "Newspapers," post, Vol. V.

V. Publishing or threatening to publish, &c., a extort Money.

Stat. 6 & 7 Vict. c. 96, s. 3, enacts, "that if any person shall or threaten to publish any libel upon any other person, or shall es