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fully without excuse is in law malicious. And even if it could be
an excuse, that the publisher held what he published to be true,
it is not so if he professes to publish it from authority. A news-
paper contained this paragraph: “the malady under which his
“ Majesty labours is of an alarming nature (meaning insanity): it
“ is from authority we speak.” At the trial of the indictment for
this publication, the jury asked if a malicious intention were ne-
cessary to constitute a libel; to which Abbott, C. J. answered,
that a man must have intended to do what his act was calculated
to effect; and the jury found the defendant guilty. Upon a motion
for a new trial it was admitted that the paragraph was libellous,
but it was urged that malice was essential to make the defendant
criminal; that he believed the King to have been so afflicted, and
that the answer to the question by the jury was incorrect. But
the court thought otherwise, as the defendant must know if he
spoke from authority, and could have proved it : and if malice
were a question of fact, a man must be presumed to have intended
to produce the effect which his act will naturally produce; and
libelling without excuse is legal malice. (b) In some cases, how-
ever, the paper or other matter may be libellous only with refer-
ence to circumstances which should be laid before the jury by
evidence. In an action for a libel it appeared that the plaintiff,
an attorney, was employed by one Nash to bring an action against
an executor; and that the defendant, who was employed to adjust
the executor's accounts, finding that an action was about to be
commenced against the executor, wrote a letter to Nash blaming
him for allowing the plaintiff to sue, and containing this passage,
“ If you will be misled by an attorney, who only considers his own
“ interest, you will have to repent it; you may think when you
“ have once ordered your attorney to write to Mr. G., he would
“ not do any more without your further orders; but if you once
“ set him about it, he will go any length without further orders.”
And it was held that the question whether this letter applied to
the plaintiff individually, or to the profession at large, was pro-
perly left to the jury (f)

As the defendant is not allowed to prove the truth of the libel- Defendant's lous matter in justification of his conduct, (g) the evidence which evidence. can be adduced on his behalf at the trial will in general be confined to a very narrow compass. There inay, however, be cases of a publication in point of law, where no criminal intention can be imputed to the party; as where a person delivers a letter without knowing its contents, or delivers one paper instead of another;(h) and evidence to such effect may be produced. But it is not competent to the defendant to prove that a paper similar to that, for the publication of which he is prosecuted, was published on a former occasion by other persons, who have never been prosecuted for it. (i) It was held, in a case where the supposed libel was (6) Rex v. Harvey, 2 B. and C. 257. jury.

f) Godson v. Home, 3 Moore, 223. (B) Ante, p. 211. Aud it sees that in this case if the (h) By Lord Kenyon, C. J. in Rexr'. point had been made at the trial, Topham, 4 T. R. 127, 128. Rex v. whether this was a confidential com. Nutt, Fitz. 47. And see anie, p. 212, munication or not, such point would el sequ. pot Decessarily have been left to the (1) Rex v. Holt, 5 T. R. 436...,

contained in a newspaper, that the defendant had a right to have read in evidence any extract from the same paper, connected with the subject of the passage charged as libellous, although disjoined from it by extraneous matter, and printed in a different character. (k) Though the defendant cannot have the assistance of counsel to examine the witnesses, and reserve to himself the right of addressing the jury; yet if he conducts his defence himself, and any point of law arises which he professes himself unable to argue, the court will hear this argued by his counsel. (1)

If a libel inputes to a man a triable offence, proof of the truth of such imputation is inadmissible; for it would be trying the question behind the man's back, and creating a prejudice upon it. Where a libel imputed murder to certain soldiers, evidence was offered of the truth of such imputation, and rejected : and the court of King's Bench were unanimous that such evidence was rightly rejected; for the persons charged might afterwards come to be

tried, and might be prejudiced by the previous inquiry. (2) Verdict. It had been held in many cases, that, on trials for libels, the give a general

facts of writing, printing, or publishing, and the truth of the verdict upon innuendoes inserted in the proceedings, were the only matters to the whole be submitted to the consideration of the jury: but the justice of matter put in issue.

such doctrine being questioned and ably arraigned, (m) the statute 32 Geo. 3. c. 60. was passed, which enacts “that on every such « trial, the jury sworn to try the issue may give a general verdict "" of guilty or not guilty, upon the whole matter put in issue upon s such indictment or information; and shall not be required or -“ directed, by the court or Judge before whom such indictment or .« information shall be tried, to find the defendant or defendants « guilty, merely on the proof of the publication by such defendant “ or defendants of the paper charged to be a libel, and of the sense « ascribed to the same in such indictment or information.(n) “ But it provides also, that the court or Judge before whom such «« indictment or information shall be tried, shall, according to their -« or his discretion, give their or his opinion and directions to the

" jury, on the matter in issue between the king and the defendant -« or defendants, in like manner as in other criminal cases." (0)

It appears to have been considered that the Judge may tell the jury that they are to take the law from him, unless they are satis

fied that he is wrong. (y) Judgment. The judgment in cases of libel is in the discretion of the court,

"as in most other cases of misdemeanors; and usually consists of fine, imprisonment, and the finding sureties to keep the peace. (P)

(k) Rex v. Lambert and Perry, 2 cases. And section 4. provides that Campb. 398.

defendants may move in arrest of ; (l) Hex v. White,'s Campb. 98. judgment as before the passing of the i fox) Rex v. Burdett, 4 B. and A. 95. act.

(in) See ihe celebrated speeches of (y) Rex v. Burdett, 4 B. and A. 95. Mr. Erskine, in the case of the Dean (p) i Hawk. P.C. c. 73. s. 21. 4 Bac. of St. Asaph, 1 vol. of Ridgway's col. Abr., Libel (C) p. 459. Rex v. Midp. 234, and 264.

dleton, Fort. 201. As to the punish(n) S1,

ment of leasing-making sedition and " ) S. 2. By s. . it is provided that blasphemy in Scotland, see 6 Geo. 4. the jury may find a special verdict, in c. 47. their discretion, as in other criminal . ..... . . . . . *

itious

anishment.

HU

In some cases prior to the statute 56 Geo. 3. c. 138. the offender was also sentenced to the pillory.

In the case of a blasphemous or seditious libel, a second offence In cases of is more highly punishable by 60 Geo. 3. and I Geo. 4. c. 8. s. 4. blasphemous which enacts, that if any person shall be legally convicted of har

libel a second ing composed, printed, or published, any blasphemous libel, or any offence is such seditious libel as aforesaid (i.e. by s. 1. a libel tending to bring punishable by into hatred or contempt the person of his Majesty, his heirs or ba successors, or the regent, or the government and constitution of the united kingdom, as by law established, or either house of Parliament, or to excite his Majesty's subjects to attempt the alteration of any matter in church or state, as by law established, otherwise than by lawful means), and shall after being so convicted offend a second time, and be thereof convicted before any com-, mission of oyer and terminer, or gaol delivery, or in the court of King's Bench, such person may on such second conviction be adjudged, at the discretion of the court, either to suffer such punishment as may now by law be inflicted in cases of high misdemeanors, or to be banished from the united kingdom and all other parts of his Majesty's dominions for such term of years as the court in which such conviction shall take place shall order. And the fifth section further enacts, that in case any person, so sentenced to be banished, shall not depart from the united kingdom within thirty days after the pronouncing such sentence, for the purpose of going into such banishment, his Majesty may convey such person to such parts out of the dominions as his Majesty, with the advice of his privy council, shall direct. The sixth section of the statute enacts, that if any offender, who And an of..

fender ordered shall be so ordered by any such court to be banished, shall, after te

e Danished, shall, arter to be banished, the end of forty days from the time such sentence and order has and being at been pronounced, be at large, within any part of the united king- large atter the

end of forty dom, or any other part of his Majesty's dominions, without some ; lawful cause, before the expiration of the term for which such hiš Majesty's offender shall have been so ordered to be banished, “every such dominions, “ offender being so at large as aforesaid, being thereof lawfully mo “ convicted, shall be transported to such place as shall be ap“ pointed by his Majesty for any term not exceeding fourteen “ years.” And such offender may be tried either before any justices of assize, oyer and terminer, great sessions or gaol delivery, for the county, &c. where such offender shall be apprehended, or where he was sentenced to banishment: and the clerk of assize, &c. is required to give a certificate containing the effect and substance only (omitting the formal part) of every indictment and conviction of such offender, and of the order for banishment, to the justices of assize, &c. where such offender shall be indicted, and such certificate is to be sufficient proof of the conviction and order for banishment of such offender. A similar provision is also made as to a certificate of every in- Certificate of

m foriner convicdictment and conviction of any offender convicted of having com- tanto la posed, &c. any blasphemous or seditious libel, which is to be given evidence. by the officer having the custody of the records, upon the request of the prosecutor on his Majesty's behalf, to the justices of assize,

pe trans

orted.

&c. where such offender shall be indicted for any second offence, and is to be sufficient proof of the conviction of such offender. (a)

By this statute, in all cases in which any verdict or judgment by default shall be had against any person for publishing any blasphemous or seditious libel, the Judge or court may make an order for the seizure and carrying away and detaining all copies of the libel in the possession of the party, or of any other person

named in the order for his use. (6) Affidavits in If a libel imputes to a man a triable offence, affidavits of its initigation of truth cannot be given in evidence in mitigation of punishment. punishment.

But if a libel imports to be founded on certain newspaper reports,
affidavits of the existence of such newspaper reports are admissible:
and in such case affidavits of the falsehood of such reports cannot
be received in aggravation. A libel imported to be founded on cer-
tain newspaper reports, and upon the foundation of those reports
charged certain troops with acts of murder: after conviction the
defendant offered affidavits that the newspapers did contain those
reports, and also other affidavits that the facts were true. The
former affidavits were received, because they explained the situa-
tion in which the defendant stood at the time he wrote the libel,
and shewed the impression under which he wrote : but the latter
were rejected, because the receiving them might deprive of a fair
trial persons who might afterwards be tried for the murders; and
if murders were committed, the proper course was to prosecute
and bring to a fair trial, not to libel and create an unfair preju-
dice.(9)
(a) s. 7.

By s. 10. the punishment of persons
10) See s. 1, 2. and also s. 3. as to convicted of libel in Scotland is not to
Scotland. S. 8 and 9. provide for the be altered.
Jimitation of actions brought for any (9) Rex v. Burdett, 4 B. and A. 314.
thing done in the execution of the act.

CHAPTER THE TWENTY-FIFTH.

OF RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES.

The distinction between these offences appears to be, that a riot is a tumultuous meeting of persons upon some purpose which they actually execute with violence; a rout is a similar meeting upon a purpose which, if executed, would make them rioters, and which they actually make a motion to execute; and an unlawful assembly is a mere assembly of persons upon a purpose which, if executed, would make them rioters, but which they do not execute, nor make any motion to execute. (a) These offences may be treated of more at large in the order in which they have been mentioned.

I. A riot is described to be a tumultuous disturbance of the Of a riot. peace by three persons or more, assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprize of a private nature, and afterwards actually executing the same, in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful. (6)

In some cases, in which the law authorizes force, it is not only where the lawful, but also commendable, to make use of it; as for a sheriff law authorizes

* force, an asor constable, or perhaps even for a private person, to assemble a sembling will competent number of people in order with force to suppress rebels, not be riotous. or enemies, or rioters; and afterwards with such force actually to suppress them; or for a justice of peace, who has a just cause to

(a) I Hawk. P. C. c. 65. s. 1, 8, 9. · would probably be deenied most cor. 3 Inst. 176. 4 Blac. Com. 146. rect at ihe pres:nt time. , It should be

(b) I Hawk. P. C. c. 65, s. I. Three observed, however, that riot has been persons or more is the correct descrip- described differently by high authotion of the number of persuns neces- rity. In Regio. v. Soley and olhers, 11 sary to constitute a riotous meeting ; Mod. 1:6. Holt, C. J. said, " The books but it should be observed, that in “are obscure in the definition of riots. Hawkins (C. 65. s. 2, 5, 7.) the words "I take it, it is not necessary to say “more than three persons" are three "they assembled for that purpose, but times over inserted instead of three “there must he an unlawful assembly ; “ persons or more ;" which in 5 Buro. “and as to what act will make a riot, Just. Riot, S. J. is remarked as an in- " or trespass, such an act as will make stance that, in a variety of matter, it “a trespass will make a riot. If a is impossible for the mind of man to “number of men assemble with arms, be always equally attentive. The de "in terrorem populi, though no act is scription of riot stated in the text, and “done, it is a riot. If three come out taken from the work of Mr. Serjeant "of an ale-house, and go armed, it is Hawkins, is submitted as that which *a riot."

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