CHAPTER X. THE REMEDIES FOR LIBEL BY CRIMINAL AND CIVIL Remedies for libel.-A libel, like an assault, has this peculiarity, that either a civil or a criminal remedy may be adopted. It is true that blasphemous, immoral, and seditious libels seldom come home to any one individual, being directed against the public generally. In this latter class of cases the criminal remedy is the only one possible, for no individual can show, that he is more injured than his neighbours by the libellous matter. And, as has already been stated, it is in reference to this class of cases, that the Attorney-General usually files an ex officio information. But where the libel is defamatory of some individual, the party injured has his choice of either a criminal or a civil remedy. The criminal remedy is either by way of criminal information or by way of indictment. And the civil remedy means an action to recover damages proportioned to the injury sustained. And there are other minor remedies incidental to each of these primary remedies. And not only is a libeller subject to either of these remedies, but he is liable to have both put in operation against him, for there is no power to stop both being, at least, commenced concurrently. Though in one sense they are brought on distinct grounds, and both may be pursued together, yet where both are brought, the court cannot, with accuracy, assign the fittest punishment or a jury the appropriate damages, when the remedy is double. Hence if an action has been brought, and also an indictment or criminal 1 See ante, p. 99. information, the court will not pass sentence until either the action has been abandoned or concluded, and will suspend sentence till the event be known.1 Old remedy in Ecclesiastical Court.-It is true that Ecclesiastical Courts could at one time entertain suits for defamation of character in reference to spiritual matters and those only; for if the common law had jurisdiction in respect of the matter, then a prohibition might be obtained to prevent the Ecclesiastical Court entertaining the suit. The Statute of circumspecte agatis recognised this jurisdiction in the Ecclesiastical Courts to deal with defamation, and to punish with penance; but Coke says, that these suits must have concerned merely spiritual matters, such as calling one a heretic, a schismatic, or the like. And even though it was a spiritual matter, still the court could only inflict penance, and could not give damages. For example, to call a prior a rotten churl or a false knave, was no cause for ecclesiastical suit, because it was not spiritual.3 All this jurisdiction of the Ecclesiastical Courts, however, was utterly abolished in 1855.* 5 The remedy by criminal information.-The remedy by ex officio information of the Attorney-General has already been considered. The ordinary remedy of criminal information, though substantially the same in effect as the er officio information, and as an indictment, differs in this respect, that it is granted by the favour of the court, and hence is not granted of course, but requires a preliminary special leave. The court practically confines the remedy to a select class of cases of an urgent kind, the urgency being determined by the character, station, and office of the person libelled, or the peculiar character of the libel itself. Conditions of granting criminal information for libel. As to these criminal informations filed by leave of the court, though it has lately been attempted to restrict the exercise of the discretion of the court to a few select 1 R. v Mahon, 4 A. & E. 575. It is said, that the Greenlanders used to allow an injured person to resent his injuries by giving notice that on a given day he would recite to an audience a libel against the wrongdoer, and then it was deemed mean-spirited not to attend and answer it.-1 Crantz Greenl. 178. 4 18 & 19 2 Palmer Thorpe, 4 Rep. 315. 32 Inst. 492. Vic. c. 41. See ante, p. 99. cases, yet at one time no discrimination was used, and all obtained leave from the clerk of the Crown almost for the asking. This led to frivolous prosecutions, causing great loss and vexation; and in 1693 a Statute was passed, which required leave in open court to be first obtained, and the application must then be made by counsel and supported by affidavits. One peculiarity of this remedy accordingly is, that the party aggrieved cannot apply in person so as to be his own advocate in such matter, for as the prosecution is in the name of the Crown, only a public officer, or counsel, who is also a kind of officer, is deemed entitled to be heard,3 One condition to be fulfilled by those who seek this remedy is, that the party libelled must make an affidavit that the libel is untrue. Hence, in 1780, when it was imputed to the Duke of Richmond that he treasonably sent intelligence to the French, and he applied for a criminal information, he was required first to deny the truth of the imputation. In one case the libel was, that the prosecutor ravished a lady by entering her room and personating her husband; and because he only swore that he did not enter her room "against her will," the rule was refused.5 But this condition may be dispensed with, when the person libelled is abroad, and his friends move in the matter, or when the libel is against a class of persons, or imputes something so general as not to require contradiction; and it is not indispensable, that the conduct of the applicant should be blameless. Another condition of this special remedy is, that no unnecessary delay, after knowledge of the libel, shall take place in applying to the court; and two legal terms next following the publication of the libel have been usually given for the application. Another and important condition is, that the aggrieved party should not have resorted to any other remedy, direct or indirect, as by corresponding with or compounding with his adversary, or writing a defence to the newspapers, or retorting in any manner by way of gratifying his revenge or indignation.1 The court has sometimes tried to lay down a rule as to restricting this remedy according to the subject matter of the libel and the degree of public mischief; but beyond saying, that every common libel is not to be redressed by this special remedy, no precise line has ever been drawn. If the remedy were open to all, the court would practically take on itself the duties of juries and promote endless litigations. It is, nevertheless, in practice confined to libels on persons holding some public position, as magistrates, judges, jurors, and high State officials, whose character and reputation are matter of public concern, and deserve swift and conspicuous redress and protection. When the court has decided, that a criminal information may issue, the prosecutor is bound to enter into his recognisance to prosecute with diligence. On the other hand the defendant may be served with a subpoena from the Crown Office to enter appearance within four days, or he may be at once apprehended on a judge's warrant, and bound over with sureties to appear and answer the information at a time stated.3 This remedy of criminal information, while subject to some conditions, has, at the same time, some advantages in bringing about an apology at an early stage, though such result is not deemed a meritorious ground for the application. Moreover when the defendant comes to show cause against the information being filed, he may practically get rid of the rule, if he can produce affidavits showing the truth of the libel, for then the question can usually only be satisfactorily disposed of by a jury on an ordinary indictment, and the special remedy will be superfluous." Indictment for libel and charge before justices.When the remedy chosen is an ordinary indictment for libel, there is the further choice of proceeding, in the first instance, by summons or warrant before a justice of the peace. As a justice of the peace has jurisdiction to hear all charges for indictable offences, there is no peculiarity in the 1 R. v Lawson, 1 Q. B. 486; R. v Marshall, 4 E. & B. 475. 2 4 & 5 W. & M. c. 18, § 2. The security is only 207., and the court will not order higher security.-R. v Brook, 2 T. R. 190. 3 48 Geo. III. c. 58, § 1. R. v Eve, 5 A. & E. 780. proceeding, as regards the preliminary stage in this offence.1 Preliminary hearing before justices of the peace.A defendant charged before justices of the peace with an indictable offence may usually make the same defence as if he was on his trial before a jury, unless some Statute restricts it. Yet this amplitude is neither necessary nor proper. All that the justices have to do is to see, that there is a prima facie case made out, and it is no part of their business to go minutely into the evidence and weigh the conflicting details, this being the function of the jury assisted by the presiding judge, who alone can do it thoroughly and conclusively. And the defendant is entitled to call witnesses who can give evidence on his behalf. It is true, that this initiatory stage is often the most attractive feature to prosecutors when they elect a criminal remedy, for they consider the publicity and disgrace of being examined before the committing justice as not only easing the smart of indignation, but in some measure enhancing the punishment. The origin of the jurisdiction of justices to arrest libellers and commit them for trial is somewhat obscure, but on a search made for 120 years before 1820, they had exercised the power, and indeed their commission from the first origin of their office in 34 Edward III. embraced all offences connected with a breach of the peace.3 In case of seditious, immoral, and blasphemous libels, as there is substantially no mode of justifying them, witnesses for the defendant can seldom be of use before the committing justices, except to support the denial of publication. But in case of defamatory libels, the defendant was allowed by Statute to plead the truth of the libel and to call evidence in support of such plea at his trial. Nevertheless, as this was only an additional plea for use at the trial, and not before it, it has been held that the benefit of witnesses and evidence on the defendant's behalf to support such plea cannot be anticipated at this preliminary hearing; that they must be reserved for the trial alone, and that the justices ought not to admit any such evidence of the 1 11 & 12 Vic. c. 42. As to see 2 Paters. Com. (Pers.) 152. Conant, 1 B. & B. 571. justices' warrants to arrest libellers |