of France, in which she was represented as the leader of a faction: upon which occasion Ashhurst, J. observed, in passing sentence, that the object of the publication being to rekindle animosities between England and France by the personal abuse of the sovereign of one of them, it was highly necessary to repress an offence of so dangerous a nature: and that such libels might be supposed to have been made with the connivance of the state where they were published, unless the authors were subjected to punishment. (u) So a defendant was found guilty upon an information charging him with having published the following libel: "The Emperor of "Russia is rendering himself obnoxious to his subjects by various "acts of tyranny, and ridiculous in the eyes of Europe by this in"consistency. He has lately passed an edict to prohibit the exportation of deals and other naval stores. In consequence of "this ill-judged law, a hundred sail of vessels are likely to return "to this country without freight." (w) 66 And in a case which occurred shortly afterwards, where the defendant was charged by an information with a libel upon Napoleon Buonaparte, Lord Ellenborough, C. J. in his address to the jury, said, "I lay it down as law that any publication which tends to degrade, revile, and defame, persons in considerable situations "of power and dignity in foreign countries, may be taken to be, "and treated as a libel; and particularly when it has a tendency "to interrupt the pacific relations between the two countries." (x) Having stated the different sorts of publications for which a party may be found guilty of libel, we may mention some of the points relating to the indictment and evidence on a prosecution for this offence. An indictment for a libel must import to whom the libellous matter referred: and stating that the libel was published to defame and vilify J. S., and to bring him into disgrace, and concluding that it was against the peace, and to the great scandal and disgrace of J. S., is not sufficient to shew that the libellous matter referred to J. S. An indictment stated that the defendant intended to vilify W. S., Mayor of Colchester, and a Justice; and in order to cause it to be believed that W. S., as such mayor, had been guilty of great abuse in granting an ale-licence to J. L., and in order to bring him into great disgrace, published a certain scandalous libel, in which said libel was contained, &c., and the libel stated a speech supposed to have been made before the borough magistrates by a fictitious character called Excise, who was supposed to lay before them a case of gross corruption, sanctioned by the mayor, (innuend. the said W. S.) to the great scandal, injury, and disgrace, of the said W. S. The usual allegation, that the libellous matter was of and concerning W. S. was omitted; and, on account of this omission, a rule was obtained for arresting the judgment: and, upon cause shewn, the court held the objection fatal. (i) 1787. (u) Rex v. Lord George Gordon, victed, but never was called upon to to receive the judgment of the court. Shortly after the trial, war broke out between Great Britain and France. (w) Rex v. Vint, 1801. (x) Rex v. Peltier, 43 Geo. 3. Holt on Lib. 78. et sequ. Starkie on Lib. 541, 542. The defendant was con (i) Rex v. Marsden, M. & S. 164. Lord Ellenborough said, that if by Where a libel is charged to be of and concerning the government of the kingdom, though it do not in express terms impute to the government any of the facts which it mentions, the Court is to judge from its whole tenor and import (understanding it as other men would understand it) whether it does not mean to cast that imputation. And as an imputation upon some part of a body of men may be a libel, though it does not define what part it means, an allegation that the defendant published of and concerning the said persons, and an innuendo that he meant the said persons, will be understood to apply to that undefined part. An information stated, that the defendant, intending to excite hatred against the government of the realm, and to cause it to be believed that divers subjects had been inhumanly killed by certain troops of the King, published a libel of and concerning the government of this realm, and of and concerning the said troops, which libel stated, that the defendant saw with abhorrence, in the newspapers, the accounts of a transaction at Manchester, and alleged, that unarmed and unresisting men had been inhumanly cut down by the dragoons, (meaning the said troops,) and then commented strongly upon this being the use of a standing army, and called upon the people to demand justice, &c.; but it did not, in terms, say, that the dragoons acted under the authority or orders of the government. After conviction, a motion was made in arrest of judgment, on the ground that it did not sufficiently appear that the libel was written of and concerning the government, nor of or concerning what troops it was written: but the court held that it was obvious, from its whole tenor and import, that it meant to cast imputations upon the government; that it was a libel to impute crime to any of the King's troops, though it did not define what troops in particular were referred to; and that the innuendo of "the said troops" meant the undefined part of those troops. (k) If one man repeats a libel, another writes it, and a third aption of a libel, proves what is written, they will all be makers of the libel; and it may be laid down generally that all who are concerned in composing, writing, and publishing a libel, are guilty of the misdemeanor, unless the part they had in the transaction was a lawful or an innocent act; (y) and ignorance has been held not to excuse. Thus upon an information against the defendant, for printing and publishing a libel, the evidence was, that he acted as servant to the printer, and clapped down the press; and few or no circumstances were offered of his knowing the import of the paper, or being conscious that he was doing any thing illegal and Raymond, C. J. held, that this made the defendant guilty, and so the jury found him. (a) But there must be a publication; and the mere writing or composing a defamatory paper by any one, which is confined to his closet, and neither circulated nor read to others, will not render him responsible; nor will he be held to have published the paper, if he deliver it, by mistake, out of his Of the making and publica inevitable construction no other per- (k) Rex v. Burdett, 4 B. & A. 314. (y) 4 Bac. Abr. Libel (B). 1. p. 457. (a) Rex v. Clerk, 1 Barnard. 304. Sed. qu. study. (s) And it will not be a publication of a libel if a party takes a copy of it, provided he never publishes it: (a) but a person who appears once to have written a libel, which is afterwards published, will be considered as the maker of it, unless he rebut the presumption of law by shewing another to be the author, or prove the act to be innocent in himself. (b) For by Holt, C. J. if a libel appears under a man's hand-writing, and no other author is known, he is taken in the manner, and it turns the proof upon him; and if he cannot produce the composer, it is hard to find that he is not the very man. (c) The reading of a libel in the presence of another, without previous knowledge of its being a libel, or the laughing at a libel read by another, or the saying that such a libel is made by J. S. whether spoken with or without malice, does not amount to a publication. And it has also been held, that he who repeats part of a libel in merriment, without any malice or purpose of defamation, is not punishable; though this has been doubted. (d) But it seems to have been agreed that if he who hath either read a libel himself, or hath heard it read by another, do afterwards maliciously read or repeat any part of it in the presence of others, or lend or shew it to another, he is guilty of an unlawful publication of it. (e) In a late case, however, of an action for a libel contained in a caricature print, where the witness stated, that having heard that the defendant had a copy of this print, he went to his house and requested liberty to see it, and that the defendant thereupon produced it, and pointed out the figure of the plaintiff and the other persons it ridiculed, Lord Ellenborough, C. J. ruled, that this was not sufficient evidence of publication to support the action. (f) Proof that the libel was contained in a letter directed to the party, and delivered into the party's hands, is sufficient proof of a publication upon an indictment or information. (g) And deliver (z) Rex v. Paine, 5 Mod. 165, 167. (a) Com. Dig. Libel, (B. 2.) Lamb's case, 9 Co. 596. But see Rex v. Beare, 2 Salk. 417. 1 Lord Raym. 414. (b) 4 Bac. Abr. Libel (B) 1. p. 457. Lamb's case, 9 Co. 59. The writing a libel may be an innocent act in the clerk who draws the indictment, or in the student who takes notes of it. But in a late case (Maloney v. Bartley, 3 Campb. 210.) Wood, B. held, on the trial of an action for a libel, in the shape of an extra-judicial affidavit sworn before a magistrate, that a person who acted as the magistrate's clerk was not bound to answer whether by the defendant's orders he wrote the affidavit, and delivered it to the magistrate, as he might thereby criminate himself. (c) Rex v. Beare, I Lord Raym. 417. 2 Salk. 417. (d) 4 Bac. Abr. Libel (B) 2. p. 458. This is doubted in 1 Hawkins, P. C. e. 73. s. 14. on the ground that jests of such a kind are not to be endured, and that the injury to the reputation of the party grieved is no way lessened by the merriment of him who makes so light of it. (e) 4 Bac. Abr. Libel, (B) 2. p. 459. (f) Smith v. Wood, 3 Campb. 323. And see Rex v. Paine, 5 Mod. 165. where a qu. is made in the margin whether a person who has a libellous writing in his possession, and reads it to a private friend in his own house, is thereby guilty of publishing it. (g) I Hawk. P. C. c. 73. s. 11. 4 Bac. Abr. Libel, (B) 2. p. 459. Ante, p. 231 note (k). Selw. N. P. 1050. n. (9). And see ante, 231. A further publication is necessary to support an action. Thus it has been held that where the action was brought for a libel contained in a letter transmitted by the defendant to the plaintiff, by means of a third person, it is a question for the jury whether there has been any publication except to the plaintiff himself, and that if there has not, the defendant is entitled to their verdict. Acknowledgment of the defendant. Procuring another to publish is a publication. Publication by booksellers and proprietors of newspapers. ing a libel sealed, in order that it may be opened and published by a third person in a distant county, is a publication. (a) In an information for a libel against the doctrine of the Trinity, the witness for the crown, who produced the libel, swore that it was shewn to the defendant, who owned himself the author of that book, errors of the press and some small variations excepted. The counsel for the defendant objected that this evidence would not entitle the attorney-general to read the book, because the confession was not absolute, and therefore amounted to a denial that he was the author of that identical book. But Pratt, C. J. allowed it to be read, saying he would put it upon the defendant to shew that there were material variances. (h) It seems to be agreed, that not only he who publishes a libel himself, but also he who procures another to do it, is guilty of the publication; and it is held not to be material whether he who disperses a libel knew any thing of the contents or effects of it or not, for that nothing would be more easy than to publish the most virulent papers with the greatest security, if the concealing the purport of them from an illiterate publisher would make him safe in dispersing them. (i) Upon this foundation it has for a long time been held that the buying of a book or paper containing libellous matter, in a bookseller's shop, is sufficient evidence to charge the master with the publication, although it does not appear that he knew of any such book being there, or what the contents thereof were, and though he was not upon the premises, and had been kept away for a long time by illness; and it will not be presumed that it was bought and sold there by a stranger; but the master must, if he suggests any thing of this kind in his excuse, prove it. (k) So the proprietor of a newspaper is answerable criminally as well as civilly for the acts of his servants in the publication of a libel, although it can be shewn that such publication was without the privity of the proprietor. (1) These are acts done in the course of the trade Clutterbuck v. Chaffers, 1 Stark. R. (a) Rex v. Burdett, 4 B. & A. 95. (h) Rex v. Hall, 1 Str. 416. (k) 4 Bac. Abr. Libel, (B) 2. p. 458. "phlets is a trade by which persons "get their livelihood, yet they must "take care to use it with prudence "and caution; for if they print any 66 thing that is libellous, it is no excuse "to say that the printer had no know'ledge of the contents, and was en"tirely ignorant of its being libellous." 66 (1) Rex v. Walter, 3 Esp. N. P. C. 21. And in Rex v. Dod, 2 Sess. Cas. 33. pl. 38. Lord Raymond, C. J., said, it had been ruled that where a master lived out of town, and his trade was carried on by his servant, the master would be chargeable if his servant should publish a libel in his absence. In 1 Hawk. P. C. c. 73. s. 10. (edit. 7.) is the following marginal note :-" But if a "printer is confined in a prison to "which his servants have no access, "and they publish a libel without his "privity, the publication of it shall "not be imputed to him. Woodfall's ceedings a or business carried on by the master. But in a case of an action for a libel where it appeared upon the evidence that the defendant, a tradesman, was accustomed to employ his daughter to write his bills and letters; that a customer, to whom a bill written by the daughter had been sent by the daughter, sent it back on the ground of the charge being too high, and that the bill was afterwards returned to the customer inclosed in a letter also written by the defendant's daughter, and being a libel upon the plaintiff who had inspected and reduced the bill for the customer: it was holden that this was not sufficient evidence to go to a jury, either of command, authority, adoption, or recognition by the defendant. (m) The proceedings against the printers, publishers, and proprie- 38 G. 3. c. 78. tors of newspapers for any libel contained in such papers are much facilitates profacilitated by the statute 38 Geo. 3. c. 78., which enacts that no gainstprinters, person shall print or publish any newspaper until an affidavit, or &c. of newspaaffirmation in case of a Quaker, shall have been delivered at the pers. stamp office, setting forth the names, additions, &c. of the printer, publisher, and of two of the proprietors; (n) that such affidavit or affirmation shall be filed, and the same, or certified copies thereof, shall, in all proceedings, civil and criminal, touching any newspaper therein mentioned, be received as conclusive evidence of the truth of the matters contained in such affidavit or affirmation against the persons swearing, who shall have signed and sworn or affirmed them, and against proprietors named therein as proprietors, &c. but who shall not have signed, &c. unless such persons shall have delivered to the commissioners, previously to the date of the newspaper in question, an affidavit or affirmation of their having ceased to be printers, &c. of such paper. Sect. 11. After produc The eleventh section enacts, that after any such affidavit or affirmation, or a certified copy thereof, shall have been produced Ae of the affiin evidence against the persons who signed, &c., or are therein davit or copy, named, and after a newspaper shall be produced in evidence inti- and a paper tuled in the same manner as the newspaper mentioned in such intituled as affidavit or copy, and wherein the name of the printer, &c., and tioned, &c. it 66 case, Essay on Libels, p. 18. Sed vide Salmon's case, B. R. Hil. 1777. and Rex v. Almon, 5 Burr. 2687." (m) Harding v. Greening, 8 Taunt. 42. And it was also held in this case that the daughter could not be compelled to prove by whose direction the letter was written. The answer would tend to fix herself with the crime of writing it. (n) The substance of sect. 2. et seq. is, that the affidavit or affirmation shall set forth the real and true names, additions, descriptions, and places of abode of the printer, publisher, and of all the proprietors, if they do not exceed two, exclusively of printer and publisher; if they do, then of two such proprietors, exclusively of printer and publisher; specifying the amount of shares, the true description of the house or building wherein such paper is in tended to be printed, and the title of therein men |