Acknowledgment of the defendant. Procuring another to publish is a publication. Publication by booksellers and proprietors of newspapers. 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 Clutterbuck v. Chaffers, 1 Stark. R. (a) Rex v. Burdett, 4 B. & A. 95. (h) Rex v. Hall, 1 Str. 416. (k) 4 Bac. Abr. Libel, (B) 2. p. 458. "phlets is a trade by which persons 66 'get their livelihood, yet they must "take care to use it with prudence "and caution; for if they print any 'thing that is libellous, it is no excuse "to say that the printer had no know"ledge of the contents, and was en"tirely ignorant of its being libellous." (1) Rex v. Walter, 3 Esp. N. P. C.21. And in Rex v. Dod, 2 Sess. Cas. 33. pl. 38. Lord Raymond, C. J., said, it had been ruled that where a master lived out of town, and his trade was carried on by his servant, the master would be chargeable if his servant should publish a libel in his absence. In 1 Hawk. P. C. c. 73. s. 10. (edit. 7.) is the following marginal note:-"But if a "printer is confined in a prison to "which his servants have no access, "and they publish a libel without his "privity, the publication of it shall "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) ceedings a 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 Salmon's case, B. R. Hil. 1777. and "Rex v. Almon, 5 Burr. 2687." 42. (m) Harding v. Greening, 8 Taunt. And it was also held in this case that the daughter could not be compelled to prove by whose direction the letter was written. The answer would tend to fix herself with the crime of writing it. (n) The substance of sect. 2. et seq. is, that the affidavit or affirmation shall set forth the real and true names, additions, descriptions, and places of abode of the printer, publisher, and of all the proprietors, if they do not exceed two, exclusively of printer and publisher; if they do, then of two such proprietors, exclusively of printer and publisher; specifying the amount of shares, the true description of the house or building wherein such paper is in tended to be printed, and the title of therein men shall not be necessary to prove the purchase of the paper. Sect. 13. py to be deli vered on pay- Copies of affi the place of printing shall be the same, it shall not be necessary for the prosecutor to prove that the newspaper to which such trial relates was purchased at any house, &c. belonging to or occupied by the defendants or their servants, &c. or where they, by themselves or their servants, &c. usually carry on the business of printing or publishing such paper, or where the same is usually sold. The thirteenth section enacts, that a certified copy of any such A certified co- affidavit or affirmation shall be delivered to the person applying for the same, by the commissioners or officers by whom they shall be kept, on payment of one shilling. The fourteenth section enacts, "that in all cases a copy of such affidavit or affirmation, cer"tified to be a true copy, under the hand or hands of one or more "of the commissioners or officers in whose possession the same "shall be, shall, upon proof made that such certificates have been signed with the handwriting of the person or persons making "the same, and whom it shall not be necessary to prove to be a commissioner or commissioners, or officer or officers, be received "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. davits certified by the commissioners or officers in whose custody they shall be, to be sufficient evidence. Sect. 17. within six days sioners, &c. and within two years after wards it may be applied for to be produced in evidence. Certainprinted pamphlets, &c. to be deemed and taken to 66 The seventeenth section provides, that every printer or publisher shall, within six days after the publication, deliver to the commissioners of stamps, at their head office, or to some officer appointed by them, one of the papers so published, signed by the printer or publisher in his handwriting, with his name and place of abode; and in case any person shall apply to the commissioners, &c., in order that such newspaper may be produced in evidence, the said commissioners, &c. shall, at the expense of the party 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. By the 60 Geo. 3. and 1 Geo. 4. c. 9. s. 1. all pamphlets and papers containing any public news, intelligence, or occurrences, or any remarks or observations thereon, or upon any matter in be newspapers, 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 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 within the pers. 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) paper 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, 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. (q) 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 be produced, the 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 indictment; (f) 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 person is to print or publish any newspaper, or any such pamphlet, &c. without having entered into a recognizance or given a bond for securing payment of any fine imposed upon conviction, for printing or publishing any blasphemous or seditious libel. (n) Rex v. Topham, 4 T. R. 126. (0) Rex v. White, 3 Campb. 100. (p) Id. ibid. 99. (4) Rex v. Hart, 10 East, 94. 75. (r) Rex v. Pearce, Peake's N. P. C. (s) By Buller, J., in Rex v. Watson and others, 2 T. R. 201. (t) Rex v. Sacheverell, 15 Sta. Tri. 466. (u) Tabart v. Tipper, 1 Campb. 352. And if it appears upon the proof that parts of the libel which are separated by intervening matter are set forth as if they were continuous, it will be bad, if the sense is altered by the passage And must be proved to have been published in the county. the mere alteration of a single letter, so long as it does not change one word into another, will not vitiate; though the smallest variance, if it renders the meaning different, will be fatal. (a) The libel must also be proved to have been published, by the party accused, in the county laid in the indictment. (b) But if a man write a libel in one county and consent to its publication in another, the consent is sufficient to charge him in the latter county. (c) So if a man write a libel in London, and send it by post addressed to a person in Exeter, he is guilty of a publication in Exeter. (d) And where the defendant wrote a libel in Leicestershire, with intent to publish it in Middlesex, and published it in Middlesex accordingly, and the information against him was in Leicestershire; three of the Judges held the information right: but Bayley, J. doubted. (e) From the same case it appears to have been considered that delivering a libel sealed, in order that it may be opened and published by a third person in a distant county, is a publication in the county in which it is so delivered: and further, that if delivering open were essential, proof that the defendant wrote it in county A., and that C. delivered it unsealed to D. in county B., would be prima facie evidence that the defendant delivered it open to C. in the county A., though there be no evidence of C.'s having been in county A. about the time; or that application had been made to D. to know of whom he received it. The information was in the county of Leicester, for writing and publishing a libel : and it was proved by the date of the letter that the defendant wrote it in that county, and that Bickersteth delivered it to Brooks for publication in the county of Middlesex, it being then unsealed. Bickersteth was not called as a witness; and there was no evidence of his having been in the county of Leicester, or how the libel came to him. The jury were told that as Bickersteth had it open, they might presume that he received it open; and that, as the defendant wrote it in the county of Leicester, it might be presumed that he received it in that county; and the jury accordingly found the defendant guilty. A rule having been obtained for a new trial, three Judges held against the opinion of Bayley, J., that this direction was proper; and they also held that if the delivering open could not be presumed, a delivery sealed with a view to and for the purpose of publication was a publication; and they thought there was sufficient ground for presuming some delivery, either open or sealed, in the county of Leicester. (w) It appears from this case that the dating a libel at a particular place is evidence of its having been written at that place. (x) The post-mark upon a letter has been considered as no evidence for the purpose of proving that the letter was put into the post-office at the place mentioned by such post-mark. (y) (e) Rex v. Burdett, 4 B. & A. 95. (x) Rex v. Burdett, 4 B. & A. 95. (b) Case of the Seven Bishops, 12 St. Lord Ellenborough, C. J. said the postTri. 354. mark might have been forged. |