« EelmineJätka »
shall not be the place of printing shall be the same, it shall not be necessary
fr. for the prosecutor to prove that the newspaper to which such trial prove the purchase of the relates was purchased at any house, &c. belonging to or occupied paper. by the defendants or their servants, &c. or where they, by them
selves or their servants, &c. usually carry on the business of print
ing or publishing such paper, or where the same is usually sold. Sect. 13.
The thirteenth section enacts, that a certified copy of any such tified co- affidavit or affirmation shall be delivered to the person applying py to be delivered on page for the same, by the commissioners or officers by whom they shall ing ls. be kept, on payment of one shilling. The fourteenth section enSect. 14. acts, " that in all cases a copy of such affidavit or affirmation, cerCopies of affi davits certified
6 tified to be a true copy, under the hand or hands of one or more by the com- “ of the commissioners or officers in whose possession the same missioners or « shall be, shall, upon proof made that such certificates have been oncers 10.; "signed with the handu riting of the person or persons making whose custody they shall be,' “ the same, and whom it shall not be necessary to prove to be a to be sufficient « commissioner or commissioners, or officer or officers, be received evidence.
" in evidence as sufficient proof of such affidavit or affirmation, " and that the same was duly sworn or affirmed, and of the con“ tents thereof;” and that such copies shall be evidence that the affidavit or affirmation has been sworn or affirmed according to the act, and shall have the same effect for the purposes of evidence, to all intents whatsoever, as if the original affidavits or affirma
tions had been produced in evidence. Sect. 17. The seventeenth section provides, that every printer or pubUne of the lisher shall, within six days after the publication, deliver to the newspapers to come
edo commissioners of stamps, at their head office, or to some officer within six days appointed by them, one of the papers so published, signed by the to the commis- printer or publisher in his handwriting, with his name and place sioners, &c.
in two of abode ; and in case any person shall apply to the commissioners, years after- &c., in order that such newspaper may be produced in evidence, wards it may the said commissioners, &c. shall, at the expense of the party be applied for to be produced applying, at any time within two years from the publication, either in evidence. cause the same to be produced in court, or deliver the same to the
party applying, taking reasonable security for its being returned. Certainprinted By the 60 Geo. 3. and 1 Geo. 4. c. 9. s. 1. all pamphlets and pamphlets,&c.
C. papers containing any public, news, intelligence, or occurrences, and taken to or any remarks or observations thereon, or upon any matter in benewspapers, church or state, printed in any part of the united kingdom for and within the
sale, and published periodically, or in parts or numbers, at interthe acts relat- vals not exceeding twenty-six days between the publication of any ing to newspa- two such pamphlets or papers, parts, or numbers, where any of
the said pamphlets or papers, parts or numbers, respectively, shall not exceed two sheets, or shall be published for sale for a less sum than sixpence, exclusive of the duty by this act imposed, shall be deemed and taken to be newspapers within the true intent and meaning of the 38 Geo. 3. c. 78. (and several other stamp-acts which are specified) and all other acts of parliament in force relating to newspapers : and all such acts, and all clauses, &c. therein respectively contained, (except where the same may be altered by this act) are to be applied and put in force in relation to all such pamphlets and printed papers as fully and effectually as if all such clauses, &c. were respectively, severally, and separately re-enacted,
and made part of this act. No quantity of paper less than a quintity equal to twenty-one inches in length and seventeen inches in breadth is to be deemed a sheet of paper within the meaning of the act; and no cover or blank leaf or any other leaf upon which any advertisement or other notice shall be printed is, for the purposes of the act, to be deemed a part of any such pamphlet, &c. (m)
Before the statute 38 Geo, 3. c. 78. it was holden, upon an in- Construction dictment for a libel in a newspaper, that evidence that the paper of the statute. had been sold at the office of the defendant, that the defendant, as proprietor of the paper, had given a bond to the stamp-office pursuant to the 29 Geo. 3. c. 50. s. 10. for securing the duties on the advertisements, and that he had from time to time applied to the stamp-office respecting the duties on the paper, was evidence to be left to the jury, to shew that the defendant was the publisher. (n) And since the statute it has been held to be sufficient evidence of a publication at common law to put in the original affidavit of the proprietor stating where the paper was to be published, and to prove that a paper with a corresponding title, containing the libel, was purchased there. (0) This was held in a case where it had been previously ruled that in order to render the certified copy of the affidavit made by the proprietor of a newspaper evidence under the statute 38 Geo. 3. c. 78. it must either appear upon the jurat that the person before whom it was made had authority to take it, or this fact must appear aliunde. (p) It has been ruled that an affidavit according to the statute, together with the production of a newspaper, corresponding in every respect with the description of it in the affidavit, is not only evidence of the publication of such paper by the parties named, but is also evidence of its publication in the county where the printing of it is described to be. (9) And a newspaper may be given in evidence, though it is not one of the copies published, and though it be unstamped at the time of trial.(r)
Upon the trial the libel must in general be produced on the part The libel must of the prosecution, and, after sufficient proof of a publication by
of of a publication by be produced, the defendant, may be read ; and if the libel has merely been respond with exhibited by the defendant, and he refuses on the trial to produce the indictit, after notice for that purpose, parol evidence may be given of me its contents.(s) The libellous matter must be set out in the indictment;(t) and the libel proved must appear to correspond with the statement of it in the indictment, and any variation in the sense between the matter charged and that proved will be fatal.(u) But
(m) Sect. 2, 3. By sect. 8. no per- (r) Rex v. Pearce, Peake's N. P. C. son is to print or publish any newspa- 75. per, or any such pamphlet, &c. with (8) By Buller, J., in Rex v. Watson out having entered into a recognizance and others, 2 T. R. 201. or given a bond for securing payment (1) Rex v. Sacheverell, 15 Sta. Tri. of any fine imposed upon conviction, 466. for printing or publishing any blas- (u) Tabart v. Tipper, i Campb. 352. phemous or seditious libel.
And if it appears upon the proof that (n) Rex v. Topham, 4 T. R. 126. parts of the libel which are separated (0) Rex v. White, 3 Cainpb. 100. by intervening matter are set forth as (p) Id. ibid. 99.
if they were continuous, it will be bad, (9) Rex v. Hart, 10 East. 94. if the sense is altered by the passage
the mere alteration of a single letter, so long as it does not change one word into another, will not vitiate; though the smallest vari
ance, if it renders the meaning different, will be fatal.(a) And must be The libel must also be proved to have been published, by the proved to have been published party accused, in the county laid in the indictment.(6) But if a in the county. man write a libel in one county and consent to its publication in
another, the consent is sufficient to charge him in the latter county. (c) So if a man write a libel in London, and send it by post addressed to a person in Exeter, he is guilty of a publication in Exeter.(d) And where the defendant wrote a libel in Leicestershire, with intent to publish it in Middlesex, and published it in Middlesex accordingly, and the information against him was in Leicestershire ; three of the Judges held the information right: but Bayley, J. doubted.(e) From the same case it appears to have been considered that delivering a libel sealed, in order that it may be opened and published by a third person in a distant county, is a publication in the county in which it is so delivered : and further, that if delivering open were essential, proof that the defendant wrote it in county A., and that C. delivered it unsealed to D. in county B., would be prima facie evidence that the defendant delivered it open to C. in the county A., though there be no evidence of C.'s having been in county A. about the time ; or that application had been made to D. to know of whom he received it. The information was in the county of Leicester, for writing and publishing a libel : and it was proved by the date of the letter that the defendant wrote it in that county, and that Bickersteth delivered it to Brooks for publication in the county of Middlesex, it being then unsealed. Bickersteth was not called as a witness; and there was no evidence of his having been in the county of Leicester, or how the libel came to him. The jury were told that as Bickersteth had it open, they might presume that he received it open; and that, as the defendant wrote it in the county of Leicester, it might be presumed that he received it in that county; and the jury accordingly found the defendant guilty. A rule having been obtained for a new trial, three Judges held against the opinion of Bayley, J., that this direction was proper; and they also held that if the delivering open could not be presumed, a delivery sealed with a view to and for the purpose of publication was a publication ; and they thought there was sufficient ground for presuming some delivery, either open or sealed, in the county of Leicester. (w) It appears from this case that the dating a libel at a particular place is evidence of its having been written at that place. (x) The post-mark upon a letter has been considered as no evidence for the purpose of proving that the letter was put into the post-office at the place mentioned by such post-mark. (y) But it appears to be the better opinion that such post-niarks, whether in town or country, proved to be such, are evidence that the letters on which they exist were in the offices to which the postmarks belong at the dates thereby specified.(z) But a mark of double postage having been paid on such letter is not of itself sufficient evidence that the letter contained an enclosure.(a) If a libellous letter is sent by the post, addressed to a party at a place out of the county in which the venue is laid in an indictment for the libel, yet, if it were first received by him within that county, it is a sufficient publication to support the indictment. (2) Owning the signature to a libel is no evidence in what county it was signed. This was held in the celebrated case of the Seven Bishops : but additional evidence being afterwards given that the Bishops applied to the lord president of the council about delivering a petition to the King, and that they were adınitted to the King for that purpose in Middlesex, the case was left to the jury. (i) It has been held to be suficient to prove a defendant to have published a libel without proving him to have composed it, upon a count in an information charg'ng him with having composed, printed, and published” it.(y) So if the defendant is charged by a count in an indictment with having “ composed, printed, and published” a libel, if the evidence be that he only composed and published it, he may be found guilty of the composing and publishing, and acquitted of the printing. (2) Or he may be found guilty of the printing only, upon an indictment for printing and publishing, if the evidence shews him to have assisted in the printing, and to have had nothing to do with the publishing.(h):
omitted. Id. ibid. It is settled that (c) 12 St. Tri. 331. the whole libel need not be set forth (d) Id. ibid. 332. in the indictment: but if any part (c) Rex v. Burdett, 4 B. & A. 95. qualifies the rest, it may be given in (w) Rex v. Burdett, 4 B. & A. 95., evidence, 2 Salk. 417.
and MS. Bayley, J. (a) Rex v. Beech, 1 Leach. 133. Rex (x) Rex v. Burdett, 4 B. & A. 95. v. Hart, I Leach. 145.
(y) Rex v, Watson, i Campb. 215. (6) Case of the Seven Bishops, 12 St. Lord Ellenborough, C. J. said the postTri. 354,
mark might have been forged.
If the libel be in a foreign language, as it is necessary that it should be set forth in the indictment in the original language, and also in an English translation, it will be necessary to prove the translation to be correct. Thus upon the trial of an information
(z) Rex v Plymer, Hil. T. 1814. the letters read; and the letters themMS. Bayley, J., and Russ. & Ry. 264. selves containing exprcssions of the Rex v. Johnson, 7 East. 65 Slark. writer, indicative of his having sent Evid. Pt. IV. p. 853 , and Fletcher v. them to the publisher of the register Braddyll, Stark. Evid. App. 10 p. 853. ' in Middlesex for the purpose of pub
(a) Rex r. Plumer, anle, note (z), lication, the whole was evidence suffiSome person who paid or received the cient for the jury to find a publication postage should be called.
by the procurement of the defendant (x) Rex v. Watson, 1 Campb. 215.; in Middlesex. and see Rex v. Middleton, i Str 17. (il Case of the Seven Bishops, 12 St. In the case of Rex v. Johnson, 7 East. Tri. 183, 63., it was held, where the publisher (y) Rex v. Hunt and another, 3 of a public rezister received an anony- Campb. 583. mous letter, tendering certain politic (zi Rex v. Williams, 2 Campb. 646, cal information on Irish affairs, and Lawrence, J. said, " There is certainly requiring to know to whom letters “no proof that the defendant printed should be directed, to which an an- “the Tibel in question ; but he inay be swer was returned in the register, after "acquitted of the printing, and found which he received two letters in the "guilty of the composing and publishsame hand-writing directed as men- "ing. His delivering the libel in his tioned, and having the Irish post-mark “own hand-writing to the printer is on the envelopes, which two letters "abundant evidence of the latter of were proved to be in the hand-writing “fence." A verdict was accordingly of the defendant, the previous letter found and recorded of “Guilty, exhaving been destroyed, that this was a cept as to printing the libel." sufficient ground for the court to have ih) Rex v. Kuell, 1 Barnard. 305.
against the defendant for a libel in the French language on Napoleon Buonaparte, after a witness had proved the purchase of some copies of the book from a certain bookseller, and the bookseller had proved that the defendant was the publisher and had employed him to dispose of the copies on his account, and that he had accounted for them; an interpreter was called, who swore that he understood the French language, and that the translation was correct. The interpreter then read the whole of that which was charged to be a libel in the original; and then the translation was
read by the clerk at Nisi Prius.(a) Depositions Depositions taken before a magistrate are not evidence upon a are not evi- trial for a libel; the statute 1 and 2 P. and M. c. 13. and 2 and 3 dence : but a
à Ph. and M. c. 10. by which such depositions are made evidence,
P Gazette, the king's procla- extending only to cases of felony. (b) It has been held that a mation, and a Gazette is evidence to prove an averment in an information for a preamble to :
libel, “ that divers addresses, &c. had been presented to his Ma
66 thot divers adde an act of Parliament, are " jesty by divers of his loving subjects.” (c) 'In a recent case, the evidence for king's proclamation, reciting that it had been represented that certain pur
certain outrages had been committed in different parts of certain counties, and offering a reward for the discovery and apprehension of offenders, was held to be admissible evidence to prove an introductory averment, in an information for a libel, that divers acts of outrage had been committed in those parts. (d) And a preumble to an act of Parliament, reciting the existence of such outrages, and making provision against them, was also held to be
admissible for the same purpose. (e) Criminal in- The criminal intention of the defendant will be matter of in-.
ference from the nature of the publication. In order to constitute defendant.
a libel, the mind must be in fault, and shew a malicious intention to defame; for, if published inadvertently, it will not be a libel : but where a libellous publication appears, unexplained by any evidence, the jury should judge from the overt act; and, where the publication contains a charge slanderous in its nature, should from thence infer that the intention was malicious. (f) The intention may be collected from the libel, unless the mode of public cation, or other circumstances, explain it: and the publisher must be presumed to intend what the publication is likely to produce; so that if it is likely to excite sedition, he must be presumed to have intended that it should have that effect. (a) Publishing what is a libel without excuse is indictable, though the publisher be free from what in common parlance is called malice; for defaming wil
(a) Rex v. Peltier, Selw. N. P. 1048. tendered in evidence, to shew, quo (b) Rex v. Paine, 3 Mod. 163. animo the defendant published the (c) Rex v. Holt, 5 T. R. 436. paragraph in question. Lord Ellen(d) Rex v. Sutton, 4 M. and S. 532. borough said, “No doubt they would c) Id. Ibid.
“ be admissible in the case of an in(f) By Lord Kenyon, C. J. io Rex“ dictment; and so they would here p. Lord Abingdon, 1 Esp. 228. And "shew the intention of the party, if it see Rex v. Topham, 4 T. R. 127. and “were at all equivocal; but if they be Rex v. Woodfall, 5 Burr. 2667. In a “not admitted for that purpose, they late case, of an action for a libel con- “certainly are not admissible for the tained in the Statesman newspaper, “purpose of enhancing the damages." subsequent publications by the defend, Stuart v. Lovel, 2 Stark. R.93. ant in the Statesman newspaper were (a) Rex v. Burdett, 4 B. and A. 95.