« EelmineJätka »
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 Persons trans. “ are convicted of grand or petit larceny.” By the second section ported and
of this statute any person ordered to be transported by virtue of returning, felony without the act, and being afterwards at large within Great Britain, without clergy. 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.
s. 9. p. 469. and i Hawk. c. 42. s. 8. Feb. Sess. 1786, is cited. where it is said that this rule has been (2) And by 19 Geo, 3. c. 74. s. 3. a so strictly taken that even an affidavit moderate fine or whipping in the manto postpone the trial made by the first ner therein specified may be substiwife has been rejected, and Old Bailey, tuted for the burning.
CHAPTER THE TWENTY-FOURTH.
OF LIBEL AND INDICTABLE SLANDER,
It 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 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 economy, order, and constitution of things which make up the general system of the law and government of the country. (6) 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 Star- 4 Bac. Abr. Libel, p. 449.; and see as to kie on Lib. 486 to 504.
libel by a picture, a late case, Du Bost (b) Holt on Lib. 82.
v. Beresford, 2 Campb. 511. (c) Rex v. Lambert and Perry, 2 (h) A libel is termed Libellus famoCampb. 398.
sus seu infamatoria scriptura, and has (d) Starkie on Lib. 532.
been usually treated of as scandal (e) Starkie on Lib. 535.
wrillen or expressed by symbols. Lamb. in Rex v. Peltier, Holt. on Lib. 78. Sax. Law, 64. Bract. lib. 3. c. 30. 3 Rex v. D'Eon, 1 Blac. R. 517.
lost. 174. 5 Co. 125. 1 Lord Raym. (C) I Hawk. P. C. c. 73. s. 1, 2, 3, 7. 416. 2 Salk. 417, 418. Libel may be VOL. I.
Of the mode of expression.
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 said to be a technical word, deriving "licacy forbad him from bringing a its meaning rather from its use than its “direct charge but it was a male etymology. “There is no other name "child who complained to him ;" and “ but that of libel applicable to the these words were understood to mean “offence of libelling and we know a charge of unnatural practices.
the offence specifically by that name, (m) By Lord Ellenborough, C. J. in
stealing, forgery, &c. by the names 403. And in a case of libcl, Rex v.
“sort I have never adopted any other
"rule than that which has been freAbr. Libel, (A) 3. p. 453.
quently repeated by Lord Mansfield (1) Holt on Libel, 235, 236.
"to juries, desiring them to read the
“common understanding, and say
Name of the person
libelled in blanks.
writing which is understood by every one of the meanest capacity
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
for libels coas upon the same footing. (9)
extensive. It is quite clear that upon an indictment or criminal prosecution The party canfor a libel the party cannot justify that its contents are true, or not justify that that the person upon whom it is made had a bad reputation. The the contents of ground of the criminal proceeding is the public mischief which a libel are true; 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) I Hawk. P. C. c. 73. s. 5. 4 Bac. B., which first abused A, and then B. Abr. Libel (A) 3. p. 453., where it is And it was said that if the defendants said in the marginal note that if an ap- had sung separate stanzas, the one replication is made for an information flecting on A. and the other on B., the in a case of this kind, some friend to offence would still have been entire. the party complaining should, by affi- A libel upon one of a body of persons, davit, state the having read the libel, without naming him, is a libel upon and understanding and believing it to the whole, and may be so described ; mean the party. In a late case Lord and where a paper is published equally Ellenborough, C. J., held, upon argu- reflecting upon a number of people, it ment, that the declarations of specta- reflects upon all: and readers, accordtors, while they looked at a libellous ing to their different opinions, may picture in an exhibition room, were apply it so. Rex v. Jenour, 7 Mod. evidence to sbew that the figures pour: 400. trayed were meant to represent the par- (q) Starkie on Lib. 150, 165, 550, ties stated to be libelled. Du Bost v. Holt on Lib. 215, 216. Bradley v. MeBeresford, 2 Campb. 512,
thuen, 2 Ford's MS. 78. This must be 10) Holt on Libel, 237.
understood, however, of cases where (p) Id. ibid. In Rex v. Benfield the libel, from its nature and subject, and Sanders, 2 Burr. 980, it was held inflicts a private injury, and not of that an information lay against two those cases in which the public only for singing a libellous soug on A. and can be said to be affected by the libel.
plain, for every injury done to him, in the ordinary course of law, and not by any means to revenge himself by the odious proceed
ing of a libel. (r) Nor that it It should seem that a party will not be excused by shewing that was copied from some
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 Ĝ. 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 King.
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) | Hawk. P.C c. 73. s. 6. 4 Bac. davit asserting directly and pointedly Abr. Libel (A) 5. p. 455. 4 Bla. Com. that he is innocent of the charge im150, 151. Starkie on Libel, 556. et seq. puted to him. This rule, however, Holt on Libel, 275, et seq. But though may be dispensed with if the person the truth is no justification in a cri- libelled resides abroad, or if the imminal prosecution, yet in many in- putations of the libel are general and stances it is considered as an extenua- indefinite, or if it is a charge against tion of the offence; and the Court of the prosecutor for language which he King's Bench has laid down this gene- has held in parliament. 4 Bla Com. ral rule, that it will not grant ad in- 151, note (6). Dougl. 271, 372. formation for a libel unless the prose- (8) Lewis v. Walter, 4 B. & A. 605., & cutor who applies for it makes an affi- see M Gregor v. Thwaites, 3 B. & C. 24.