Punishment. 66 Though the statute 1 Jac. 1. c. 11. enacts, that persons offending against it shall suffer death as in cases of felony, clergy is not thereby taken away; and the punishment for bigamy by the 18th Eliz. c. 7. s. 2, 3. was burning in the hand and imprisonment not exceeding a year. (2) But the statute 35 Geo. 3. c. 67. s. 1., reciting that the punishment of persons convicted under the act of 1 Jac. 1. c. 11. had not proved effectual, enacts, "that if any per"son or persons within his Majesty's dominions of England and "Wales, being married, or which hereafter shall marry, do, at any "time from and after the passing of this act, marry any person or persons, the former husband or wife being alive, and shall be in "due manner convicted thereof under the said act, shall be sub"ject and liable to the same penalties, pains, and punishments, as, by the laws now in force, persons are subject and liable to who are convicted of grand or petit larceny." By the second section of this statute any person ordered to be transported by virtue of felony without the act, and being afterwards at large within Great Britain, without lawful cause, before the expiration of the term, is declared to be guilty of felony, and made liable to suffer death without benefit of clergy. And (by s. 3.) the trial for such offence may be in the county where such person was convicted and ordered to be transported, or in the county, within England and Wales, where such person shall be apprehended: and, in the latter case, provision is made for certifying a transcript of the former proceedings as evidence upon the trial. Persons transported and returning, clergy. s. 9. p. 469. and 1 Hawk. c. 42. s. 8. Feb. Sess. 1786, is cited. (z) And by 19 Geo. 3. c. 74. s. 3. a moderate fine or whipping in the manner therein specified may be substituted for the burning. CHAPTER THE TWENTY-FOURTH. OF LIBEL AND INDICTABLE SLANDER. Ir appears to be well settled that publications blaspheming God, or What publicaturning the doctrines of the Christian religion to contempt and tions in generidicule, may be made the subject of indictment; and it is now ral are libelfully established, though some doubt seems formerly to have been lous. entertained upon the subject, that such immodest and immoral publications as tend to corrupt the mind, and to destroy the love of decency, morality, and good order, are also offences at common law. (a) It is also a misdemeanor wantonly to defame or indecorously to calumniate that œconomy, order, and constitution of things which make up the general system of the law and government of the country. (b) And it is especially criminal to degrade or calumniate the person and character of the sovereign, and the administration of his government by his officers and ministers of state, (c) or the administration of justice by his Judges. (d) And the same policy which prohibits seditious comments on the king's conduct and government extends, on the same grounds, to similar reflections on the proceedings of the two houses of Parliament. (e) Such publications also as tend to cause animosities between this country and any foreign state, by the personal abuse of the sovereign of such state, his ambassadors, or other public ministers, may be treated as libels. (f) With respect to libels upon individuals, they have been defined to be malicious defamations, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt, and ridicule. (g) Upon some of these subjects a publication by slander, or words of slanderous spoken only, though not properly a libel, (h) may be the subject of words. criminal proceeding, as will be shewn in the course of the Chapter, (a) See the cases collected in Starkie on Lib. 486 to 504. (b) Holt on Lib. 82. (c) Rex v. Lambert and Perry, 2 Campb. 398. (d) Starkie on Lib. 532. (e) Starkie on Lib. 535. (f) Rex v. Peltier, Holt. on Lib. 78. Rex v. D'Eon, 1 Blac. R. 517. 4 Bac. Abr. Libel, p. 449.; and see as to (h) A libel is termed Libellus famo- (g) Hawk, P. C. c. 73. s. 1, 2, 3, 7. 416. VOL. I. P Of the mode of expression. Name of the person libelled in blanks. A libel may be as well by descriptions and circumlocutions as in express terms; therefore scandal conveyed by way of allegory or irony amounts to a libel. As where a writing, in a taunting manner, reckoning up several acts of public charity done by a person, said, "You will not play the Jew, nor the hypocrite," and then proceeded, in a strain of ridicule, to insinuate that what the person did was owing to his vain glory. Or where a publication, pretending to recommend to a person the characters of several great men for his imitation, instead of taking notice of what great men are generally esteemed famous for, selected such qualities as their enemies accuse them of not possessing; (as by proposing such a one to be imitated for his courage who was known to be a great statesman but no soldier, and another to be imitated for his learning who was known to be a great general but no scholar) such a publication being as well understood to mean only to upbraid the parties with the want of these qualities as if it had done so directly and expressly. (i) And, upon the same ground, not only an allegory but a publication in hieroglyphics, or a rebus or anagram, which are still more difficult to be understood, may be a libel; and a Court, notwithstanding its obscurity and perplexity, shall be allowed to judge of its meaning, as well as other persons. (k) And it is now well established that slanderous words must be understood by the Court in the same sense as the rest of mankind would ordinarily understand them. (1) Formerly it was the practice to say that words were to be taken in the more lenient sense; but that doctrine is now exploded: they are not to be taken in the more lenient or more severe sense; but in the sense which fairly belongs to them, and which they were intended to convey. (m) Upon the same principles it has been resolved that a defamatory writing, expressing only one or two letters of a name, in such a manner that from what goes before, and follows after, it must needs be understood to signify a particular person, in the plain, obvious, and natural construction of the whole, and would be nonsense if strained to any other meaning, is as properly a libel as if it had expressed the whole name at large; for it brings the utmost contempt upon the law to suffer its justice to be eluded by such trifling evasions; and it is a ridiculous absurdity to say that a "licacy forbad him from bringing a "direct charge-but it was a male "child who complained to him ;" and these words were understood to mean a charge of unnatural practices. (m) By Lord Ellenborough, C. J. in Rex v. Lambert and Perry, 2 Campb. 403. And in a case of libel, Rex v. Watson and others, 2 T. R. 206, Buller, J. said, “Upon occasions of this "sort I have never adopted any other "rule than that which has been frequently repeated by Lord Mansfield "to juries, desiring them to read the paper stated to be a libel as men of common understanding, and say "whether in their minds it conveys the “idea imputed." 66 Indictment writing which is understood by every one of the meanest capacity cannot possibly be understood by a Judge or jury.(n) An indictment lies for general imputations on a body of men, will lie for a though no individuals be pointed out, because such writings have a libel on a body tendency to inflame and disorder society, and are therefore within of men. the cognizance of the law. (0) And scandal published of three or four persons is punishable at the complaint of one or more, or all of them. (p) It appears to have been considered that the remedies by action Actions and and indictment for libels are co-extensive, and may be regarded indictments as upon the same footing. (q) It is quite clear that upon an indictment or criminal prosecution for a libel the party cannot justify that its contents are true, or that the person upon whom it is made had a bad reputation. The ground of the criminal proceeding is the public mischief which libels are calculated to create in alienating the minds of the people from religion and good morals, rendering them hostile to the government and magistracy of the country; and, where particular individuals are attacked, in causing such irritation in their minds as may induce them to commit a breach of the public peace. The law, therefore, does not permit the defendant to give the truth of the libellous matter in justification; any attempt at which in the instances of libels against religion, morality, or the constitution, would be attended with consequences of the greatest absurdity; and, in the case of libels upon individuals, might be extremely unjust, and could never afford a substantial defence to the charge. A libel against an individual may consist in the exposure of some personal deformity, the actual existence of which would only shew the greater malice in the defendant; and even if it contain charges of misconduct founded in fact, the publication will not be the less likely to produce a violation of the public tranquillity. It has been observed that the greater appearance of truth there may be in any malicious invective, it is so much the more provoking; and that, in a settled state of government, the party grieved ought to com (n) 1 Hawk. P. C. c. 73. s. 5. 4 Bac. Abr. Libel (A) 3. p. 453., where it is said in the marginal note that if an application is made for an information in a case of this kind, some friend to the party complaining should, by affidavit, state the having read the libel, and understanding and believing it to mean the party. In a late case Lord Ellenborough, C. J., held, upon argument, that the declarations of spectators, while they looked at a libellous picture in an exhibition room, were evidence to shew that the figures pourtrayed were meant to represent the parties stated to be libelled. Du Bost v. Beresford, 2 Campb. 512. (0) Holt on Libel, 237. (p) Id. ibid. In Rex v. Benfield and Sanders, 2 Burr. 980, it was held that an information lay against two for singing a libellous song on A. and B., which first abused A. and then B. (g) Starkie on Lib. 150, 165, 550, for libels coextensive. The party cannot justify that the contents of a libel are true; Nor that it was copied from some other work. King. plain, for every injury done to him, in the ordinary course of law, and not by any means to revenge himself by the odious proceeding of a libel. (r) It should seem that a party will not be excused by shewing that the libel with which he is charged was copied from some other work, even though he may have stated it to be merely a copy, and disclosed the name of the original author at the time of its publication. Thus, where to a declaration for a libel published in a newspaper it was pleaded that the libel was originally published in the Hampshire newspaper by G. M., and that at the time of publication by the defendant it was stated in such publication that it was copied from that newspaper, and that pursuant to the statute 38 Geo. 3. c. 78. the said G. M. had made an affidavit that he was the publisher of the Hampshire newspaper, and still remained so at the time of publication of the libel; the Court held that the plea was bad, inasmuch as the publication by the defendant did not specify by name G. M. as the original publisher of the libel, but only named the journal: and it was intimated by some of the learned Judges (though not decided, as such a decision was not required by the case) that even if G. M. had been named by the defendant when the latter published the libel, such publication, being of written slander, could not have been justified. (s) But there are some circumstances which will protect a publicaPetition to the tion from being deemed libellous. A petition to the King to be relieved from doing what the King has directed the party to do, if bona fide and in repectful terms, is no libel, though it call in question the legality of the King's direction. James II. published a declaration of liberty of conscience and worship to all his subjects, dispensing with the oaths and tests prescribed by statutes 25 & 30 Car. II., and directed that it should be read two days in every church and chapel in the realm, and that the bishops should distribute it in their dioceses that it might be so read. The Archbishop of Canterbury and six bishops presented a petition to the King praying that he would not insist upon their distributing and reading it, principally because it was founded on such a dispensing power as had often been declared illegal in parliament, and that they could not in prudence, honour, or conscience, so far make themselves parties to it as to distribute and publish it. This petition was treated as a libel: they were taken up for it; and, not choosing to give bail, were sent to the Tower, and tried. The publication was proved; and Wright, C. J., and Allibone, J., thought it a libel: but Holloway and Powell, Js., thought other (r) 1 Hawk. P. C c. 73. s. 6. 4 Bac. Abr. Libel (A) 5. p. 455. 4 Bla. Com. 150, 151. Starkie on Libel, 556. et seq. Holt on Libel, 275, et seq. But though the truth is no justification in a criminal prosecution, yet in many instances it is considered as an extenuation of the offence; and the Court of King's Bench has laid down this general rule, that it will not grant an information for a libel unless the prosecutor who applies for it makes an affi davit asserting directly and pointedly that he is innocent of the charge imputed to him. This rule, however, may be dispensed with if the person libelled resides abroad, or if the imputations of the libel are general and indefinite, or if it is a charge against the prosecutor for language which he has held in parliament. 4 Bla Com. 151, note (6). Dougl. 271, 372. (s) Lewis v. Walter, 4 B. & A. 605., & see M'Gregor v. Thwaites, 3 B. & C. 24. |