others, 62 L. T. 570; 6 Times L. R. 248.) But, before the defendant is committed for trial, he must be asked whether he desires to call any witnesses. (30 & 31 Vict. c. 35, s. 3, Russell Gurney's Act.) The defendant may then call witnesses to prove that he did not publish the libel, that it does not refer to prosecutor, that it is on the face of it a fair and bonâ fide comment on certain well-known or admitted facts of public interest, &c.

Upon the hearing of a charge against a proprietor, publisher, or editor, or any person responsible for the publication of a newspaper, for a libel published therein, a different procedure may be adopted. The Court may, by virtue of sect. 4 of the Newspaper Libel and Registration Act, 1881, "receive evidence as to the publication being for the public benefit, and as to the matters charged in the libel being true, and as to the report being fair and accurate and published without malice, and as to any matter which under this or any other Act or otherwise might be given in evidence by way of defence by the person charged on his trial or indictment; and the Court, if of opinion after hearing such evidence that there is a strong or probable presumption that the jury on the trial would acquit the person charged, may dismiss the case." This section only applies to the proprietor, publisher, editor, and possibly the printer of a newspaper; hence, the actual composer of every libel, and all persons concerned in the publication of any libel which has not appeared in a newspaper, are still bound by the former procedure. Moreover, the section only enables a magistrate to receive and record such evidence as would be admissible, if proper pleas be filed, on the trial of an indictment for the same libel. It does not make evidence admissible to prove the truth of a blasphemous, obscene, or seditious libel. Thus, upon an application to a magistrate to commit the proprietor of a newspaper for trial for a seditious libel, the defendant cannot give evidence either of the truth of the libel, or that its publication was for the public benefit. (Ex parte O'Brien, 12 L. R. Ir. 29; 15 Cox, C. C. 180.)

When the case does not come within this section, the accused may not give any evidence before the magistrate of the truth of the matters charged in the libel, unless the information charges him with an offence under sect. 4 of Lord Campbell's Act. "The duty and province of the magistrate before whom a person is brought, with a view to his being committed for trial or held to bail, is to determine, on hearing the evidence for the prosecution and that for the defence, if there be any, whether the case is one in which the accused ought to be put upon his trial. It is no part of his

province to try the case. That being so, in my opinion, unless there is some further statutory duty imposed on the magistrate, the evidence before him must be confined to the question whether the case is such as ought to be sent for trial, and if he exceeds the limits of that inquiry, he transcends the bounds of his jurisdiction. This case was one of a charge of libel, and the magistrate had to inquire, first, whether the matter complained of was libellous, and, secondly, whether the publication of it was brought home to the accused, so far as that there ought to be a committal. Independently of statute, the magistrate could not receive evidence of the truth of the libel. The question then arises whether Lord Campbell's Act enables him to do so. In my opinion it does not, because by the provisions of the Act the defence founded upon the truth of the libel does not arise at that stage, and cannot be put forward before the magistrate. Suppose the defendant had succeeded fully and entirely in showing the truth of the libel. What then would have been the duty of the magistrate? He would nevertheless have been bound to send the case for trial, because by the statute the truth of the libel does not constitute a defence until the statutory conditions are complied with, and they cannot be complied with at that stage of the inquiry." (Per Cockburn, C.J., in R. v. Sir Robert Carden (Labouchere's Case), 5 Q. B. D. 6, 7; 49 L. J. M. C. 1; 28 W. R. 133; 41 L. T. 504; 14 Cox, C. C. 359.) And this decision was followed in R. v. Flowers (44 J. P. 377); there the defence was that the libel was a fair criticism on a public entertainment, and the magistrate excluded evidence of the facts commented on, and disallowed all cross-examination thereon; and it was held that he was right in so doing. But when the defendant is charged before the magistrate with an offence under the 4th section of Lord Campbell's Act, that is, with maliciously publishing a defamatory libel knowing the same to be false, then it is open to the defendant to call evidence of the truth of the libel, so as, if possible, to reduce the charge to the minor offence. (Ex parte Ellissen (not reported), approved by Lush, J., in R. v. Carden, 5 Q. B. D. 11, 13.)

The defendant may himself in every case make a statement before the magistrate. And by sect. 9 of the Law of Libel Amendment Act, 1888, and again by the Criminal Evidence Act, 1898, the defendant and his or her wife or husband may go into the box and give evidence. This right is especially valuable where the defendant himself has seen or heard something justifying the libel.

Cases of libel were never disposed of summarily by the magistrate or justices in Petty Sessions. It is true that there is authority for

holding that in some cases of libel, if there is any danger of a breach of the peace, the justices have the power to demand sureties of good behaviour from the libeller, instead of committing him for trial; and may themselves, in default of such sureties, commit him to gaol. (Haylock v. Sparke, 1 E. & B. 471; 22 L. J. M. C. 67; 16 J. P. 308, 359; 17 J. P. 262, overruling the dictum of Lord Camden in R. v. Wilkes, 2 Wils. 160; and see R. v. Summers, 1 Lev. 139, and R. v. Shuckburgh, 1 Wils. 29.) Such power, if any, was never exercised; it was regarded as a violation of the principle of Fox's Libel Act, that libel or no libel is a question for the jury. But now, by sect. 5 of the Newspaper Libel and Registration Act, 1881, "If a Court of summary jurisdiction upon the hearing of a charge against a proprietor, publisher, editor, or any person responsible for the publication of a newspaper for a libel published therein is of opinion that though the person charged is shown to have been guilty the libel was of a trivial character, and that the offence may be adequately punished by virtue of the powers of this section, the Court shall cause the charge to be reduced into writing and read to the person charged, and then address a question to him to the following effect:-'Do you desire to be tried by a jury, or do you consent to the case being dealt with summarily?' and, if such person assents to the case being dealt with summarily, the Court may summarily convict him and adjudge him to pay a fine not exceeding fifty pounds. Sect. 27 of the Summary Jurisdiction Act, 1879, shall, so far as is consistent with the tenor thereof, apply to every such proceeding." But this procedure can only be adopted where the defendant is the proprietor, publisher, editor, or perhaps the printer of a newspaper within the meaning of the Act. The writer of the libel must be committed for trial in the usual way.

If the magistrate decide to dismiss the case, the prosecutor may still, under sect. 2 of the Vexatious Indictments Act (22 & 23 Vict. c. 17), which, by sect. 6 of the Act of 1881, is made applicable to every libel, require the magistrate to bind him over to prosecute and the magistrate thereupon must take the prosecutor's recognigance and forward the depositions to the Court in which the indictment will be preferred. But in that case the prosecutor, if unsuccessful, will have to pay all the defendant's costs. 30 & 31 Vict. c. 35, s. 2.)

(See

If the magistrate decide to send the case for trial, the defendant is entitled to be bailed. Reasonable, but not excessive, bail should be demanded, and it is for the justices to determine whether the sureties offered are sufficient. If no sufficient bail can be

found, the accused must be committed to prison; but if sufficient sureties come forward the magistrates have no discretion but to allow the defendant to be at large on bail.

In the case of an obscene libel the prisoner may be committed for trial to the Quarter Sessions; in every other case he must be sent to the Assizes or Central Criminal Court. (5 & 6 Vict. c. 38, s. 1.) As to Ireland, see Re Armstrong, 9 Cox, C. C. 342.

As to the powers of magistrates, &c., in the case of obscene books and prints, see ante, p. 474. In the case of a seditious libel there is no power to issue a search warrant to seize the author's papers. (Leach's Case, 11 St. Tr. 307; 19 Howell's St. Tr. 1002; Entick v. Carrington and others, 11 St. Tr. 317; 19 Howell's St. Tr. 1029.)

Indictment.

This

Counsel must next be instructed to draft the indictment. requires care, as the old rules of pleading apply in all their strictness. The words must be set out verbatim, however great their length. (Bradlaugh and Besant v. The Queen, 3 Q. B. D. 607; 48 L. J. M. C. 5; 26 W. R. 410; 38 L. T. 118.) Any material variation between the words as laid in the indictment and the words proved at the trial will still be fatal, in spite of the powers of amendment given by the 14 & 15 Vict. c. 100, s. 1. (See Re Crowe, 3 Cox, C. C. 123; R. v. Fussell, 3 Cox, C. C. 291.) In the one case, however, of an obscene libel, it is no longer necessary to set out in the indictment the obscene passages in full. It is "sufficient to deposit the book, newspaper, or other documents containing the alleged libel with the indictment or other judicial proceeding, together with particulars showing precisely, by reference to pages, columns, and lines, in what part of the book, newspaper, or other document the alleged libel is to be found, and such particulars shall be deemed to form part of the record." (Law of Libel Amendment Act, 1888, s. 7.) The decision in Bradlaugh and Besant v. The Queen is so far overruled. It is unfortunate that the section does not extend to blasphemous as well as to obscene libels.

If the words are in a foreign language, they must be set out in the original, and a correct translation added. (Zenobio v. Axtell, 6 T. R. 162; R. v. Goldstein, 3 Brod. & B. 201; 7 Moore, 1; 10 Price, 88; R. & R. C. C. 473.) The indictment must expressly charge the defendant with "publishing;" as merely writing a libel is no crime. (R. v. Burdett, 4 B. & Ald. 95.) It must also

declare that the libel was written and published "of and concerning the prosecutor." The omission of those words was held fatal in R. v. Marsden, 4 M. & S. 164; 3 Russ. on Crimes, 209; and in R. v. Sully, 12 J. P. 536. But if it sufficiently appears from other allegations in the indictment to whom the libel refers, it will be held good. (Gregory v. The Queen, 15 Q. B. 957; 15 Jur. 74; 5 Cox, C. C. 247.) The indictment must also aver all facts necessary to explain the meaning of the libel and to connect it with the person defamed; for sect. 61 of the Common Law Procedure Act, 1852, applies only to pleadings in civil cases, so that in an indictment an innuendo still requires a prefatory averment to support it. Hence there is still considerable technicality in criminal pleading; although modern judges will never be quite so strict as their predecessors. (See ante, pp. 130, 132.) The innuendo can only explain and point the defamatory meaning of the words; it must not introduce new matter. The judgment of De Grey, C.J., in R. v. Horne ((1777) Cowp. 682; 11 St. Tr. 264; 20 How. St. Tr. 651), "has universally been considered the best and most perfect exposition of the law on this subject." (Per Abbott, C.J., in R. v. Burdett, 4 B. & Ald. 316.) Extrinsic facts must be averred where without such averments, the libel would appear innocent or unmeaning. (R. v. Yates, 12 Cox, C. C. 233.) But where the writing on the face of it imports a libel, no innuendo is necessary, nor any introductory averments. (R. v. Tutchin, (1704) 14 How. St. Tr. 1095; 5 St. Tr. 527; 2 Lord Raym. 1061; 1 Salk. 50; 6 Mod. 268; Holt, 424.) See further as to the office of the innuendo, ante, p. 110. In 1652, Rolle, C.J., laid it down that "in an indictment a thing must be expressed to be done falso et malitiose, because that is the usual form." (Anon., Style, 392.) But in R. v. Burks (7 T. R. 4), the Court of King's Bench decided that in an information, at all events, it is unnecessary to allege that the libellous matter is false. And the Court of Crown Cases Reserved has decided that if an indictment under sect. 5 of Lord Campbell's Act charges the defendant with having published a libel "unlawfully," the omission of the word "maliciously" is immaterial. (R. v. Munslow, (1895) 1 Q. B. 758; 64 L. J. M. C. 138; 43 W. R. 495; 72 L. T. 301.) Still, it is always safer to aver that the defendant published the libellous words "falsely and maliciously;" if for no other reason, "because that is the usual form."

In some few cases it is necessary to aver a special intent. Thus, Abbott, J., held in R. v. Wegener (2 Stark. 245), that where a letter is sent direct to the prosecutor, and published to no one else, an