« EelmineJätka »
Acknowledge ment of the defendant.
Procuring another to publish is a publication,
ing a libel sealed, in order that it may be opened and published by a third person in a distant county, is a publication. (a)
In an information for a libel against the doctrine of the Trinity, the witness for the crown, who produced the libel, swore that it was shewn to the defendant, who owned himself the author of that book, errors of the press and some small variations excepted. The counsel for the defendant objected that this evidence would not entitle the attorney-general to read the book, because the confession was not absolute, and therefore amounted to a denial that he was the author of that identical book. But Pratt, C. J. allowed it to be read, saying he would put it upon the defendant to shew that there were material variances. (h)
It seems to be agreed, that not only he who publishes a libel himself, but also he who procures another to do it, is guilty of the publication ; and it is held not to be material whether he who disperses a libel knew any thing of the contents or effects of it or not, for that nothing would be more easy than to publish the most virulent papers with the greatest security, if the concealing the purport of them from an illiterate publisher would make him safe in dispersing them. (i)
Upon this foundation it has for a long time been held that the buying of a book or paper containing libellous matter, in a bookseller's shop, is sufficient evidence to charge the master with the publication, although it does not appear that he knew of any such book being there, or what the contents thereof were, and though he was not upon the premises, and had been kept away for a long time by illness; and it will not be presumed that it was bought and sold there by a stranger; but the master must, if he suggests any thing of this kind in his excuse, prove it. (k) So the proprietor of a newspaper is answerable criminally as well as civilly for the acts of his servants in the publication of a libel, although it can be shewn that such publication was without the privity of the proprietor. (1) These are acts done in the course of the trade
Publication by booksellers and proprietors of newge papers.
Clutterbuck v. Chaffers, 1 Stark. R. “phlets is a trade by which persons 471. But in another case of an action "get their livelihood, yet they must for a libel contained in a letter written “ take care to use it with prudence by the defendant to the plaintiff, it “and caution ; for if they print any was bolden that proof that the de- thing that is libellous, it is no excuse fendant knew that the letters sent to “ to say that the printer had no knowthe plaintiff were usually opened by ledge of the contents, and was enhis clerk, was evidence to go to the “tirely ignorant of its being libellous.” jury, of the defendant's intention that (1) Rex v. Walter, 3 Esp. N. P. C.21. the letter should be read by a third And in Rex v. Dod, 2 Sess. Cas. 33. pl. person. Delacroix v. Thevenot, 238. Lord Raymond, C. J., said, it had Siark. R. 63.
been ruled that where a master lived (a) Rex v. Burdett, 4 B. & A. 95. out of town, and his trade was carried post. 240.
on by bis servant, the master would be (h) Rex v. Hall, i Str. 416.
chargeable if his servant should pub(i) 4 Bac. Abr. Libel, (B) 2. p. 458. lish a libel in his absence. In 1 Hawk. 1 Hawk. P.C. c. 73. s. 10.
P. C. c. 73. s. 10. (edit. 7.) is the fol(4) 4 Bac. Abr. Libel, (B) 2. p. 458. lowing marginal note :-“ But if a Rex v. Nutt, Fitzgib. 47. | Barnard. '' printer is confined in a prison to K. B. 306. 2 Sess. Cas. 33. pl. 38. And “which his servants have no access, see also Rex v. Almon, 5 Burr. 2686. "and they publish a libel without his And by Lord Hardwicke, in 2 Atk. 472. “privity, the publication of it shall • Though printing papers and pam- “not be imputed to him. Woodfall's
or business carried on by the master. But in a case of an action for a libel where it appeared upon the evidence that the defendant, a tradesman, was accustomed to employ his daughter to write his bills and letters; that a customer, to whom a bill written by the daughter had been sent by the daughter, sent it back on the ground of the charge being too high, and that the bill was afterwards returned to the customer inclosed in a letter also written by the defendant's daughter, and being a libel upon the plaintiff who had inspected and reduced the bill for the customer: it was holden that this was not sufficient evidence to go to a jury, either of command, authority, adoption, or recognition by the defendant.(m)
The proceedings against the printers, publishers, and proprie- 38 G. 3. c. 78. tors of newspapers for any libel contained in such papers are much facilitates profacilitated by the statute 38 Geo. 3. c. 78., which enacts that no gainstprinters, person shall print or publish any newspaper until an affidavit, or &c. of newspaaffirmation in case of a Quaker, shall have been delivered at the pers. stamp office, setting forth the names, additions, &c. of the printer, publisher, and of two of the proprietors ;(n) that such affidavit or affirmation shall be filed, and the same, or certified copies thereof, shall
, in all proceedings, civil and criminal, touching any newspaper therein mentioned, be received as conclusive evidence of the truth of the matters contained in such affidavit or affirmation against the persons swearing, who shall have signed and sworn or affirmed them, and against proprietors named therein as proprietors, &c. but who shall not have signed, &c. unless such persons shall have delivered to the commissioners, previously to the date of the newspaper in question, an affidavit or affirmation of their having ceased to be printers, &c. of such paper.
The eleventh section enacts, that after any such affidavit or Sect. 11. affirmation, or a certified copy thereof, shall have been produced After producin evidence against the persons who signed, &c., or are therein davit or copy, named, and after a newspaper shall be produced in evidence inti- and a paper tuled in the same manner as the newspaper mentioned in such intituled as affidavit or copy, and wherein the name of the printer, &c., and tioned, &c. it “case, Essay on Libels, p. 18. Sed vide tended to be printed, and the title of “ Salmon's case, B. R. Hil. 1777. and such paper. If the proprietors exceed “Rex v. Almon, 5 Burr. 2687." two, then two, whose proportional
(m) Harding v. Greening, 8 Taunt. shares in the property shall not be less 42. And it was also held in this case than the proportional share of any that the daughter could not be com- other proprietor, exclusively of printer pelled to prove by whose direction the and publisher, shall be named and deletter was written. The answer would scribed in the affidavit or affirmation. tend to fix herself with the crime of This affidavit or affirmation must be writing it.
renewed as often as the printer, &c. (n) The substance of sect. 2. et seq. shall change their abode or printing is, that the affidavit or affirmation shall office, or as often as commissioners set forth the real and true names, ad- for stamp-duties shall require. It must ditions, description, and places of be signed by the parties making it, and abode of the printer, publisher, and of taken by a commissioner or person all the proprietors, if they do not ex. specially appointed by commissioners. ceed two, exclusively of printer and Aod it must be sworn by all the parpublisher'; if they do, then of two such ties, if they do not exceed four; if proprietors, exclusively of printer and they do, then by four, who shall give publisher ; specifying the amount of notice to the other parties not swearshares, the true description of the house ing, under a penalty of 501. or building wherein such paper is in
shall not be the place of printing shall be the same, it shall not be necessary necessary to
for the prosecutor to prove that the newspaper to which such trial prose the per 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 A certified co- affidavit or affirmation shall be delivered to the person applying py to be delivered on pay
for the same, by the commissioners or officers by whom they shall ing Is. 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 affidavits certified
“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 officers in whose custody
signed with the handu riting of the person or persons making they shall be, 66 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 affirmations had been produced in evidence.
The seventeenth section provides, that every printer or pubOne of the
lisher shall, within six days after the publication, deliver to the newspapers to be delivered
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. and within two
of abode; and in case any person shall apply to the commissioners,
&c., in order that such newspaper may be produced in evidence, wards it may
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
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
c. to be deemed papers containing any public news, intelligence, or occurrences,
or any remarks or observations thereon, or upon any matter in benewspapers, church or state, printed in any part of the united kingdom for provisions of 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 pers.
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 taken to
and made part of this act. No quantity of paper less than a quantity 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
of the statute,
paper 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 and must corthe 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 ment ; its contents.(s) The libellous matter must be set out in the indict ment;(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- (s) 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- (2) Tabart v. Tipper, 1 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 Campb. 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
(e) Rex v. Burdett, 4 B. & A. 95. qualifies the rest, it may be given in (w) Rex v. Burdett, 4 B. & A. 95., cvidence, 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, 1 Campb. 215. (6) Case of the Seven Bishops, 12 St. Lord Ellenborough, C. J. said the postTri. 354.
mark might have been forged.