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Function of judge on criminal trial for libel.-Now that Fox's Act has decided that both fact and law must be left to the jury on the issue of guilty or not guilty, in criminal proceedings for libel, the chief point left to the judge by that Act was, how far he should state his own opinion to the jury. Lord Kenyon, C. J., said he was conmanded by the Libel Act to state to juries what his opinion was as to the alleged libellous paper; and he gave his opinion in one case that it was a libel, but the jury found that it was not. And his practice was always to state his own opinion in such cases; and so it was the practice of Lord Ellenborough, C. J., the next judge in succession, as he told Hone on his trial. He said such had been the law before Fox's Act, as to the duty of judges, and that Act made no difference in the matter. And Lord Campbell said, that other judges took the same view of their duty. But modern judges act otherwise. The rule followed by judges in other criminal cases is for the judge not to give his opinion on the very same matter as that on which the jury are required to give theirs. He explains collateral matters, strips the evidence of what is inadmissible and irrelevant, but he refrains from giving his individual opinion as to guilt or innocence, for that would be to influence the jury and prejudice their minds. And this view is taken in harmony with the spirit of Fox's Act, in apportioning the duty between the judge and the jury.

Finality of verdict of jury on indictment.-Though in civil actions the verdict of a jury may be set aside as in other cases for misdirection and other contingencies, it is

their very prejudices, taken from the mass of the people and immediately returning to that mass again."-Sir J. Mackintosh, R. v Peltier, 28 St. Tr. 529.

1 R. v Perry, 22 St. Tr. 953. 2 Hone's Trial.

C. JJs. 51.

3 3 Camp.

4 Baylis Lawrence, 11 A. & E. 920. "It has been the course for a long time for a judge in cases of libel, as in other cases of a criminal nature, first to give a legal definition of the offence, and then to leave it to the jury to say whether the facts necessary to constitute that offence are proved to their satisfaction, and that whether the libel is the subject of a criminal prosecution or civil action."--Parmiter v Coupland, 6 M. & W. 198.

LORD DENMAN said, that, when a judge told the jury, that the paper was in point of law a libel, he virtually repealed Fox's Act.-1 L. Denman, Mem. 200.

different when a criminal trial has taken place on an ordinary indictment at the assizes. In the case of acquittal the rule is well established, that whether there has been misdirection on the part of the judge or any other irregularity, yet if the verdict is one of acquittal, the Court will not open up that verdict, but treat it as final and irreversible, the rule being, that no defendant shall be put in peril twice by a criminal trial for the same cause.1

If the verdict has been that of "guilty," the main step next open to the defendant is a motion to arrest the judgment, but this is only competent when there is on the face of the record nothing alleged which a court of law can see to be libellous. Thus when the Dean of St. Asaph had been found guilty of a seditious libel, it was shown afterwards that on the face of the record the words were not libellous, and so the defendant had judgment in his favour. And this arrest of judgment is no bar to a fresh indictment. The arrest of judgment in such cases must be moved for before sentence is passed.

But while such is the practice in ordinary indictments, whenever a criminal information has been filed and tried, or the indictment has been previously removed by certiorari into the Queen's Bench division, and there tried also, one advantage is, that a new trial may be moved for on the ground of misdirection and the other grounds available in civil actions. Nevertheless, no new trial will be granted after a verdict of acquittal.5 And one of the peculiarities is, that during this application for a new trial the defendant must be personally in court. The reason for this is said to be, that the party having been convicted, and so liable to punishment, might otherwise escape.7

The punishment of libel.-Though the development of the law of libel has been slow, yet the existence of the crime known by this name had in ancient as well as modern times attracted great attention, and much variety of

1 R. v Russell, 3 E. & B. 942; R. v Cohen, 1 Stark. 516. 2 R. v Dean of St. Asaph, 21 St. Tr. 1043; Hearne v Stowell, 12 A. & E. 731. Winsor v R., L. R., 1 Q. B. 395; Vaux's Case, 4 Rep. 45. 4 R. v Holt, 5 T. R. 436; R. v Newman, 1 E. & B. 270; R. v Whitehouse, Dearsl. 1; R. v Fowler, 4 B. & Ald. 273. Manor, 4 M. & S. 337; R. v Sutton, 5 B. & Ad. 52. 6 R. v Askew, 3 M. & S. 9; R. v Fielder, 2 D. & R. 46. 7 Rowland's Case,

2 Den. 372.

5 R. v

treatment is observable. The ancients as usual were severe and cruel in their punishments. By the laws of Alfred in cases of public libel, the tongue was cut out, subject to its redemption with the price put on the head. And the laws of Edgar and Cnut were the same. The Star Chamber, besides fine and imprisonment inflicted on infamous libellers and scandalers of the state, the loss of ears; and for false scandal on the judges and on great personages, branding on the face and slitting of the nose.* Coke says, libelling

3

1 By the law of Moses, though calumny and false accusations were denounced, it is not clear whether any punishment was inflicted. But the slandered party was held justified in beating the slanderer, provided he did not render him a cripple or kill him; whereas, if the accusation were true, the slanderer could not be punished.— Michaelis Com. Art. 291 § 2. Deut. xxii. 13, 19. Exod. xxii. 28. Among the Gentoos, to accuse a Brahmin of the weightier crimes, subjected the accuser to have his tongue cut out, and a hot iron of ten fingers' breadth thrust into his mouth.-Gent. Code, c. 51. The Lydians, according to Coke, bled the slanderer in the tongue and the listener in the ear.-12 Rep. 35. By the laws of Athens only penalties were inflicted, and these varied in severity according to the gravity of the imputed offence. Thus, to assert that a soldier threw away his shield involved a penalty of 500 drachmas. By the laws of the Twelve Tables, the penalty of fustigation was imposed on the more atrocious calumniators, and they were incapable of making a will.— xii Tables, c. 9. A false witness was thrown from the Tarpeian rock (A. Gell. xx), though at a later period the punishment was arbitrary (1,16 D. de test). In the Roman law there was no distinction between criminal and civil liability-a fine as well as a sum in name of damages, both being competent. And the ground of action was always viewed rather as an insult to the person than a depreciation of the personal estate of the party slandered CICERO said the Decemvirs made libel a capital offence.-Aug. Civ. Dei ix. 6. The Scotch had an iron collar called a branks, attached by a chain to a pillar or tree and fixed round the neck of scolding women, and those convicted of slander and defamation, and a gag entered the mouth and bridled the tongue.-Burgh Rec. Aberd, and Edin. 2 Wilson's Prehist. Ann. 516, 522.

2 Wilk. Leg. Ang. Sax. 41; 2 Inst. 227. 3 Ibid.

4 Hudson's Star Ch. p. iii. c. 23. In one case where the blasphemous libel consisted "of raising Judaism up from death and forbidding the eating of swine's flesh," Draske the libeller was sentenced by that court to be fed with swine's flesh while in prison.—Ibid. p. ii. c. Ì. When Sir T. More was Chancellor, he, in the same court, sentenced two publishers of Tindal's Bible to ride round the city with their faces to the horses' tails, wearing papers on their heads, and with some of the books tacked to their gown, which they were ordered to consign to the flames.

and calumniation is an offence against the law of God. He also mentions as punishments, loss of ears as well as pillory in the case of exorbitant libels against private persons.1 It appears that the first libeller sentenced to the pillory by

the Star Chamber was Baker in 1562.2 For a seditious libel against the judges and Privy Council, one Perkins was fined £3,000; and for writing an abusive letter to an earl, the defendant was fined £5,000, besides being ordered to acknowledge on his knees his offence to the king and the lords of the court.3 And Sir W. Williams, Speaker of the House of Commons, was in 1685, for publishing Dangerfield's Narrative by order of the House, fined £10,000 by the Court of Queen's Bench.*

As to corporal punishment, the pillory was apparently deemed the appropriate punishment or part of it, and was part of the common law punishment and long practised.5 And in 1789 the publisher of the Times was ordered for libels on two royal dukes to stand in the pillory at Charing Cross. But it was before that time an unreliable mode of punishment. When Williams, the printer of the North Briton, No. 45, was sentenced and put in the pillory, the mob greeted him with acclamations and raised £200 for him on the spot. In 1791 Macdonald A. G. told the House of Commons, that there had been in the preceding 31 years, 70 prosecutions for libel, of which 50 were convictions, and in five cases pillory had been added to imprisonment.6 The punishment of pillory was however wholly abolished in 1816.7

It is not unusual to suppose, that there is no limit to the discretion of the court as to the extent of the punishment, whether in the amount of the fine or the length of the imprisonment, which may be imposed for libel, such being what is called the punishment at common law.8 It is true, that in the case of defamatory libels there is now an extreme limit to imprisonment. For the term has been, since 1843, by statute for such libels expressly limited to one year; except where the defendant publishes the libel knowing it to be false, and in that case to two years.9

15 Rep. 125.

R.

Hist. 586.

23 Inst. 220. 3 Dig. L. Lib. 109, 114. Williams, 2 Show. 471. 5 5 Co. 125 c. 6 29 Parl. 7 56 Geo. III. c. 138; 1 Vic. c. 23. 8 See 2 Pat.

Com. (Pers.) 222. 9 6 & 7 Vic. c. 96, §§ 4, 5.

Q

Mitigation of punishment for libel.-Owing to the indefinite powers of courts to punish, and owing to the peculiar circumstances under which most libels are published and their intimate connection with the motives and conduct of the libeller, great scope is given to the defendant who is found guilty to satisfy the court, that the punishment should be smaller than the court may be inclined to. Hence before sentence the defendant may produce affidavits of all mitigating circumstances, and his counsel may comment on these materials and urge every topic of excuse and palliation; and the prosecutor may do the contrary in his own interest.1 A usual topic for the defendant to urge is, that after discovering his liability he did all in his power to stop the further mischief, or to retract and apologise, and he may even show, that he was misled and honestly believed at the time that he was right. And a like latitude is allowed, on the other hand, to the prosecutor to refute all these contentions and suggestions.3

Security for good behaviour part of punishment.— Over and above the proper punishment for libel, it was laid down by the judges when consulted in 1808 by the House of Lords, that on any conviction for misdemeanour the court may not only insist on the defendant after his allotted imprisonment entering into his own recognizances to be of good behaviour for a reasonable time, but also to have two sufficient sureties besides.4 This reasonable time has never been defined. Wilkes was ordered to find security for good behaviour for seven years; and Horne Tooke to find security for three years; and Lord George Gordon for fourteen years. And in 1819 the court went the length of fining a man convicted of blasphemous libel a sum of £1,500, also sentencing him to three years' imprisonment, and after that to find sureties for good behaviour for the term of his life.8

6

This recognizance seems to arise out of the old

notion

2 R. v

3 R. v

1 R. v Bunts, 2 T. R. 683; R. v Wilson, 4 T. R. 487. Halpin, 9 B. & C. 66; R. v Newman, 1 E. & B. 581. Pinkerton, 2 East, 357. 4 R. v Hart, 30 St. Tr. 1131, 1344; 47 Lords J. 271. 54 Burr. 2527. 6 20 St. Tr. 788. 7 22 St. Tr. 175. 8 R. v Carlile, 3 B. & Ald. 167. See generally as to surety for good behaviour.-1 Pat. Com. (Pers.) 203.

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