defendant at all. Should the justices commit the defendant for trial, the latter has a right to be admitted to bail, and no discretion to refuse moderate bail is given to them.2

In some very aggravated cases the justices however, besides taking bail for the defendant to appear and answer at the trial, or instead of committal for trial, may exact sureties of the peace in the meantime. This is not a matter of course, and is only justifiable if the justices are satisfied, that the libel and the conduct of the defendant are such, that it can be reasonably inferred, that the defendant will assault or threaten the prosecutor in the meantime. And this will probably seldom be made out; nor indeed is any collateral restraint of this kind on the defendant required, when he is once committed for trial, seeing that such committal is itself a binding him over to good behaviour till the trial. And justices may in some cases also bind over the defendant to find sureties for good behaviour for a reasonable fixed time.1

5

Arrest of libeller by judge's warrant.-In 1808 power was given to a judge of the Queen's Bench division to issue his warrant to apprehend any person charged with misdemeanour, including libel, and when the party is apprehended and brought before a justice of the peace, the latter may commit the party, in default of two sureties, to appear and answer the charge. And it was once keenly debated how far it was lawful, before indictment found, to arrest a libeller on the old theory prevalent in the time of the trial of the Seven Bishops, that a libel was a constructive breach of the peace. But, as already stated, justices, in the ordinary way, may now often apprehend a defendant when the charge of the offence has been made before them.

1 R. v Carden, 4 Q. B. D. 1.

3 See 1 Pat. Com. (Pers.) 192, 206.

11 & 12 Vic. c. 42, § 23.

Haylock v Spark, 1 E. & B. 471. When the seven bishops were pressed by James II. to enter into a recognisance, they answered that there was no precedent for a member of the House of Peers being bound in recognisance for a misdemeanour, even if their refusal was a misdemeanour. The LORD CHANCELLOR JEFFREYS said there were precedents for it, but being desired to name one, he named none. The Archbishop thereon declared he had the advice of the best counsel and they had warned him of this.-Clarend. St. Letters.

5 48 Geo. III. c. 58, § 1. 6 23 Parl. Deb. 1094; 36 Parl, Deb. 1170; 2 Pat. Com. (Pers.) 152.

Form and trial of the indictment or information for libel.-One rule as to the form of indictment or information has hitherto been, that the very words of the libel must be set out, and not merely their purport, for the court must be able to judge whether the words are libellous, and is not bound to take the prosecutor's construction of them. And if the words are not so set out, then, after verdict of guilty, such verdict will be set aside either in arrest of judgment or on error. Thus, when the defendant had been indicted for an obscene libel contained in a book, but the words of the book were not all set out in the indictment, the court on error reversed the judgment. An indictment for libel cannot be tried at quarter sessions unless the libel is obscene; this rule being laid down by statute probably because such trial frequently involves questions of law of an intricate nature.2 And in order to comply with the rule as to indictments requiring to be preferred in the county where the offence is committed, it is held that the place of offence is either the place where the libel was composed with the intent to publish it elsewhere, or the place where it was actually published, and the latter is generally chosen.3 Indeed, it was strenuously urged in the prosecution of Sir F. Burdett, in 1820, that there was no crime till the actual publication, and what preceded that stage was no more indictable or cognisable by the law than the secret thoughts of the mind; and hence that the place of actual publication was the only place where the offence was committed. But the Court held, that the mere composing in one place with an intent to publish in another place, followed up by the actual publication in that other place, rendered the offence indictable in either of the two places. In ordinary cases the indictment can only be tried at the assizes or the Central Criminal Court, but if a criminal information has issued, or the indictment has been removed by certiorari, then it may be tried in the Queen's Bench division, and with the benefit of a special jury.

How far truth of the libel is a defence in criminal proceedings. Whether the truth of the libel could formerly be proved in answer to an indictment or criminal

1 Bradlaugh v R., 3 Q. B. D. 625; Wright v Clements, 3 B. & Ald. 503. 25 & 6 Vic. c. 38. 3 R. v Burdett, 4 B. & Ald. 95. • Ibid.

information has long been disputed. The early statutes as to scandalum magnatum seem to have assumed that the libel was false, and the epithet "false" was part of the old description of the offence. The Roman law seemed not clear as to the truth of the libel being any defence. And Hudson took credit for the Star Chamber having discovered the important truth, that a libel is not the less a libel that it is true, as if the doctrine had only been then recently established. Coke also says, that a libeller was not allowed to prove the truth of the libel, because he ought not to have revenged himself against the libelled party in this way, which was like taking the law into his own hands. Yet Bacon blamed Coke for this doctrine about truth being an inadmissible defence, showing that the doctrine had never been clearly settled.3

The first clear enunciation of the rule has been ascribed to Lord Raymond, C. J. In the case of R. v Franklin, part of the defence was, that the libel was not proved to be false. The Attorney-General Yorke said it mattered not whether it was true or false, and that it was for the judge to say if it was a libel, and not for the jury. Lord Raymond, C. J., said

1 Hudson's Star Ch. c. 11. 2 5 Co. 254.

3 Bac. Letters. The defender of the Star Chamber gave his reasons for this doctrine thus: "As to the gross error that has crept into the world, that it is not a libel if it be true, it hath ever been agreed that it is not the matter but the manner which is punishable. For libelling against a common strumpet is as great an offence as against an honest woman, and perhaps more dangerous to the breach of the peace. For as the woman said she would never grieve to have been told of her red nose if she had not one indeed, neither is it a ground to examine the truth or falsehood of a libel, because it it is sub judice, whether it be a libel or not. For that takes away subjectum quæstionis, and determines it to be no libel by admitting the defendant to prove the truth, and the defendant in that case ought to plead a justification and demur in law; but if he pleads not guilty, the question is gone whether it be a libel or not."-Hudsons's Star Ch. p. ii. c. 11. In the Seven Bishops case, POWELL, J., and HOLLOWAY, J., held that falsehood was a necessary ingredient of a libel; and so HOLT has said. But at the date of Fox's bill the judges gave their opinion, that falsehood was not necessary to be alleged.— 19 Parl. Deb. 599. Lord MansFIELD, C. J., said in 1770 that the word "false" had been for many years left out in the information as being superfluous. R. v Almon, 20 St. Tr. 837. It was said that Lord Mansfield was not quite accurate, as the word was inserted at least in R. v Owen, 18 St. Tr. 1203 (A.D.) 1752.

the jury had only to be satisfied that the publication was in fact made, and that the inuendoes were proved; but as to the writing being a libel, it was for the judge alone, as a matter of law, and if he went wrong on the law, the court could correct him. The jury, in that case, found a verdict of guilty of publishing the libel.1 In a case of 1789, the judges were consulted, and all held, that the truth of a libel was not to be left to the jury on the trial of an indictment or information; that that doctrine was firmly settled, and was essential to the good order of society. That the word "false" was found in all the ancient forms of informations and indictments, but that that word was applicable not to the propositions contained in the paper, but to the aggregate criminal result, just as the words "false traitor" were always used. That the information would be good without the use of the word "false," which was a merely formal epithet. A criminal intention need not be proved, except where a special statute requires it, for a libel is a firebrand, and he who scatters it scatters death.2

Whatever may have been the time when truth ceased to be allowed as a defence to a criminal proceeding, its sound policy, as the general rule, has been vindicated. The reason given is, that if the truth of a libel were a defence, it would cause the prosecutor to explain away points in his former history, which had long been forgotten and should not be revived, and the knowledge of which could be of no possible use except to rake up old scandals and gratify the malignity of some personal enemy.3

Defence of publication by reason of public benefit.— A new defence not known to the common law, but of great importance in a free country, where the discussion of every subject interesting to one's fellow-citizens is part of daily

1 It appeared from the case of R. v Perry, 5 T. R. 454, that a rule to set aside the verdict in Franklin's case was discharged. The defendant was sentenced to pay a fine of 1007., to be imprisoned for one year, and to find surety for good behaviour for seven years (himself and two others).-R. v Franklin, 17 St. Tr. 676. In a case in 1735 of R. v Zenger, 17 St. Tr. 678, another attempt was made to prove the truth of the libel, and the court of New York (which professed to administer English law) declared that the truth could not be allowed to be proved. The jury in that case took the matter into their own hands, and found the prisoner not guilty."

R. Stockdale, 22 St. Tr. 302.

3 34 Parl. Hist. 392.

life, was introduced in 1843 by the Libel act. It is true that the defence is only allowed in criminal proceedings for a defamatory libel, but as these often nearly touch the liberties of all, this is a substantial boon; and moreover, in civil actions, the same defence is practically open under another name-that of justification on the ground that the libel was true.1 This is the kind of defence which often arises when newspaper attacks upon character are complained of, and the main difficulty is, whether the whole scope of the article or comment is to impute some conduct which, if true, would injure private character. The defence is, that on any trial of an indictment or information for a defamatory libel, the defendant may plead, that the publication of the alleged libel was true, and was for the public benefit. In order to know how far this defence may be urged, it is necessary to decide what is a defamatory libel; because the defence is only allowed in such a case. And a defamatory libel, as already noticed, does not include a seditious, blasphemous, or obscene libel. Another peculiarity relating to the justification of the truth of a libel is, that, as it is seldom confined to one fact but to several, the whole of the main facts must be stated in the pleading, so as to let the adversary know in time, and be prepared to disprove them; and the whole must also be proved, as it is not enough to prove only a few of the imputations. And while in civil actions a partial justification is no defence, yet it sometimes mitigates damages; so in criminal proceedings a like partial justification may be taken into consideration in mitigating the punishment, though sometimes it has the contrary effect also of aggravating it.2

Effect of not contradicting or promptly prosecuting defamation. Another circumstance sometimes met with among the defences of those charged with criminal proceedings for defamation is, that the person defamed has long known of the imputation, and has not hitherto contradicted or refuted it; in other words, it is urged that silence under calumny implies consent, and implies an admission that the libel is true. This is a common weapon of defence, highly prized and daily used among

16 & 7 Vic. c. 96. 2 R. v Newman, 1 E. & B. 559.