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1 Edw. VI. c. 12, which was repealed in the reign of queens Mary. And now by the statute 5 Eliz. c. 15, the penalty for the first offence is a fine of ten pounds and one year's imprisonment; for the second, forfeiture of all goods and chattels, and imprisonment during life.

12. Besides actual breaches of the peace, any thing that tends to provoke or excite others to break it, is an offence of the same denomination. Therefore challenges to fight, either by word or letter, or to be the bearer of such challenge, are punishable by fine and imprisonment, according to the circumstances of the offence (r). If this challenge arises on account of any money won at gaming, or if any assault or affray happen upon such account, the offender, by statute 9 Ann. c. 14, shall forfeit all his goods to the crown, and suffer two years' imprisonment (14).

13. Of a nature very similar to challenges are libels, libelli famosi, which, taken in their largest and most extensive sense, signify any writings, pictures, or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule (s) (15). The direct tendency of these

33. libels which are equally punishable, whether true or false;

(r) I Hawk. P.C. 135, 138.

($) 1 Hawk. P. C. 193.

(14) An endeavour to provoke ano- publishing a libel of and concerning ther to commit the misdemeanor of the king, by giving it out that his masending a challenge to fight, is itself an jesty was afflicted with mental derangeindictable misdemeanor; Rex v. Phi. ment, a verdict of guilty having passed lipps, 6 East, 464; 2 Smith, 550. By against the defendants, it was resolved, 9 Geo. IV. c. 31, § 1, “ so much of Ist. That to assert falsely of his ma9 Ann. c. 14, as relates to the forfeiture jesty, or of any individual, that he laand punishment of any person assault- bours under the affliction of mental deing and beating, or challenging or pro- rangement, is a criminal act, and a voking to fight, any other person on malicious intention may be inferred account of any money won as therein from the mere fact of publication, unmentioned,” is repealed.

As to as

less evidence is given by the defendant saults, generally, see post, 216, 217; to rebut such inference; 2d. That 9 Geo. IV. c. 31, § 24 to 27. such an assertion concerning the king,

(15) See 1 Hawk. P. C. 193; 5 being in itself mischievous to the pubCo. Rep. 125; 1 Salk, 418; 1 Ld. lic, is an indictable offence, without Raym. 416; 4 T. R. 126. On an in- any allegation or direct proof of a maformation for falsely and maliciously licious intention ; 3d. That where the

libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed. The communication of a libel to any one person is a publication in the eye of the law () (16): and therefore the sending an abusive private letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace (u) (17). For the same reason it is immaterial with

(t) Moor, 813.
(u) 2 Brownl. 151 ; 12 Rep. 35;

Hob. 215; Poph. 139; 1 Hawk. P. C. 195.

jury desired to know, “ Whether, in by types and figures, the act, by the order to convict a defendant for the law of England, is a libel ;" E. T. publication of a libel, a malicious in- K. B. 1804. tention must not have existed in his The court of Common Pleas have mind,” they were correctly answered decided, “That a justice of the peace by the judge, who told them, that "a has authority to grant a warrant to person who publishes that which is ca- arrest a person charged with the publilumnious concerning the character of cation of a libel, and upon the person another, must be presumed to have in neglecting to find sureties, may comtended to do that which the publica- mit him to prison, there to continue till tion is necessarily and obviously calcu- delivered by due course of law; Butt v. lated to effect, unless he can shew the Conant, 4 Moore, 195; 1 B. & B. 548. contrary, and the onus of proving the The court of King's Bench in a recontrary lies upon him ; and 4th. That cent case have held, that the editor of where the publisher of a libel states, a newspaper is not by law entitled to that the fact which he communicates publish er parte statements of a defais “ from authority," and it turns out matory nature against an individual, that the fact is untrue, he is guilty of although the publication may be a fair a false assertion in the criminal sense account of proceedings before a police of the word; Rerv. Harvey, 3 D. & R. magistrate; a police office not being as 464; 2 B. & C. 257. The court of matter of right an open court. Quære, King's Bench granted a criminal in- whether such a publication would be formation against the publisher of a justifiable, even when the proceedings newspaper, for a libel reflecting upon took place in an open court ? Duncan the clergy of a particular diocese, and v. Thwaites, 5 D. & R. 447; 3 B. & upon the clergy of the church of C. 556. In support of the decision England generally, though no indivi- there laid down, that a police-office, or dual prosecutor was named, and though a magistrate's room, is not an open the libellous, matter was not nogatived court, see Cor v. Coleridge, 2 D. & R. on affidavit ; Rex v. Williams, 1 D. & 86; 1 B. & C. 37. R. 197; 5 B. & A. 593. Lord Ellen- (16) Delivering a libel, scaled, in borough, in the King v. Cobbett, ex- one county, for the purpose of its being pressed himself in these words, (as to opened and published by a third person exposing persons by signs or pictures,) in another county, is a publication ; “No man has a right to render the Rer v. Burdett, 4 B. & A. 95. person or abilities of another ridiculous, (17) But such a publication will not not only in publications, but if the support an action; Hob. 215; 2 Esp. peace and welfare of individuals, or of 625; Sel. N. P. 939. See 38 Geo. society, be interrupted, or even exposed, 111. c. 78; see, also, Holt, George, and

respect to the essence of a libel, whether the matter of it be true or false (v); since the provocation, and not the falsity, is the thing to be punished criminally: though, doubtless, the falsehood of it may aggravate its guilt, and enhance its punishment (18). In a civil action, we may remember, a libel must appear to be false, as well as scandalous (w): for, if the charge be true, the plaintiff has received no private injury,

and has no ground to demand a compensation for himself, [*151] whatever *offence it may be against the public peace : and

therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the whole that the law considers. And therefore, in such prosecutions, the only points to be inquired into are, first, the making or publishing of the book or writing; and, secondly, whether the matter

(v) Moor, 627 ; 5 Rep. 125 ;
11 Mod. 99.

(w) See vol. III. p. 125.

Mence, on Libel, 1 Russell, 3 Burn,
and the other text writers, with the
authorities by them collected, on this
subject. It had been intended to have
glanced here at the leading decisions
upon this intricate branch of our cri-
minal law, but they are so very nume-
rous, and have given rise to so many
nice and subtle distinctions, that it has
been found quite impossible to embody
them within the proper limits of a
note, with any chance of rendering it
useful or even intelligible to the stu-
dent. For the rules of evidence ap-
plicable to libels, see Starkie, Phil.
lipps, and Roscoe, on evidence. The
following decision upon this subject
seems worthy of mention: The de-
fendant had been convicted of pub-
lishing a libel, imputing perjury to
the prosecutor. Upon his being
brought up for judgment, it was pro-
posed, in mitigation of punishment, to
read his own affidavit, and those of se-
veral other persons, setting forth facts
and circumstances, and containing state-
ments which amounted to an asser-

tion of the truth of the original libel. But the court refused to receive such affidavits. They said the utmost latitude that ever had been, or ought to be allowed to a defendant in such cases, was to read his own affidavit, stating that, at the time when he published the libel, he had reasons for believing, and did believe, the contents of it to be true; that to go the length proposed, would be to allow the defendant to charge the prosecutor with perjury, and in effect to compel the court to try him for that offence upon affidavits ; and that the adoption of such a course would place the prosecutor in a degree of peril and hardship, and would militate against the substantial principles of justice ; Rer v. Halpin, 4 M. & R. 8; 9 B. & C. 65.

(18) The words of Lord Mansfield, “ the greater truth, the greater libel ;" which his enemies wished with much eagerness to convert to the prejudice of that noble peer's reputation as a judge, were founded in principle and supported by very ancient authority,

be criminal : and, if both these points are against the defendant, the offence against the public is complete. The punishment of such libellers, for either making, repeating, printing, or publishing the libel, is fine, and such corporal punishment as the court in its discretion shall inflict; regarding the quantity of the offence, and the quality of the offender (2) (19). By the law of the twelve tables at Rome, libels, which affected the reputation of another, were made a capital offence : but, before the reign of Augustus, the

(x) I Hawk. P. C. 196.

Lord Coke has said, “ that the only questions for the consideration of greater appearance there is of truth in the jury, in criminal prosecutions for any malicious invective, so much the libels, were the fact of publication, and more provoking it is ;" 5 Co. 125. the truth of the innuendoes, that is, the

Where truth is a greater provoca- truth of the meaning and sense of the tion than falsehood, and therefore has passages of the libel, as stated and a greater tendency to produce a breach averred on the record, and that the of the public peace, then it is certainly judge or court alone were competent true that the greater truth, the greater to determine whether the subject of the libel. Asperis facetiis inlusus, quæ ubi publication was or was not a libel. See multum er vero trarere, acrem sui memo- the case of the Dean of St. Asaph, riam relinquunt; Tac. Ann. 15, c. 68. 3 T. R. 428. But the legality of this Ch.

doctrine having been much controver(19) Though it has been held, at ted, the 32 Geo. III. c. 60, was passed, least for these two centuries, that the intituled An Act to remove doubts retruth of a libel is no justification in a specting the functions of juries in cuses criminal prosecution, yet in many in- of libels. And it declares and enacts, stances it is considered an extenuation that on every trial of an indictment or of the offence ; and the court of King's information for a libel, the jury may Bench has laid down this general rule, give a general verdict of guilty, or not viz. that it will not grant an informa- guilty, upon the whole matter in issue, tion for a libel, unless the prosecutor, and shall not be required or directed who applies for it, makes an affidavit, by the judge to find the defendant asserting, directly and pointedly, that guilty, merely on the proof of the pubhe is innocent of the charge imputed lication of the paper charged to be a to him. But this rule may be dispen- libel, and of the sense ascribed to it by sed with, if the person libelled resides the record. But the statute provides, abroad, or if the imputations of the that the judge may give his opinion to libel are general and indefinite, or if it the jury respecting the matter in issue, is a charge against the prosecutor for and the jury may at their discretion, language which he has held in parlia- as in other cases, find a special verdict, ment; Doug. 271, 372. *

and the defendant, if convicted, may It had frequently been determined move the court, as before the statute, by the court of King's Bench, that the in arrest of judgment.

This rule has been held not to extend to the queen consort.

punishment became corporal only (y). Under the emperor Valentinian (2) it was again made capital, not only to write, but to publish, or even to omit destroying them. Our law, in this and many other respects, corresponds rather with

(y)

Quinetiam lea
Panaque lata, malo quæ nollet carmine quenquam
Describi :-vertere modum formidine fustis.

(z) Cod. 9, 36.

Hor. ad Aug. 152.

A person may be punished for a libel the world with regard to the merits of a reflecting on the memory and character cause before it is heard, is a contempt of of the dead, but it must be alleged, the court, in which the cause is pendand proved to the satisfaction of the ing; and he committed, upon a summary jury, that the author intended by the motion only, the parties who had been publication to bring dishonour and con- guilty of such a publication ; 2 Atk. tempt on the relations and descendants 472. of the deceased; 4 T. R. 126.

The reason must be much stronger It is not a libel to publish a correct for suppressing partial and premature copy of the reports or resolutions of the publications upon subjects, which may two houses of parliament, or a true ac- be tried by a jury. count of the proceedings of a court of The sale of the libel by a servant in a justice. “For though,” as Mr. Jus- shop, is primâ facie evidence of publicatice Lawrence has well observed, “ the tion in a prosecution against the master, publication of such proceedings may be and is sufficient for conviction, unless to the disadvantage of the particular contradicted by contrary evidence, shewindividual concerned, yet it is of vast ing that he was not privy, nor in any importance to the public that the pro- degree assenting to it; Ibid. & 5 Burr. ceedings of courts of justice should be 2686. When a person is brought up universally known. The general ad- to receive judgment for a libel, his convantage to the country in having these duct, subsequent to his conviction, may proceedings made public, more than be taken into consideration, either by counterbalances the inconveniences to way of aggravation or mitigation of the the private persons, whose conduct may punishment; 3 T. R. 432. And when be the subject of such proceedings;" Johnson the bookseller was brought up Rer v. Wright, 8 T. R. 293.

for judgment for having published a seBut this will not apply to the publi- ditious libel, the attorney-general procation of part of a trial, before it is final- duced an affidavit that the defendant ly concluded ; for that might enable the after his conviction had published the friends of the parties to pervert the jus- same libel in the Analytical Review; tice of the court by the fabrication of M. T. 1798. evidence, and other impure practices. An information or an indictment need

Nor ought it to extend to the publica- not state that the libel is false, or that tion of trials, where indecent evidence the offence was committed by force and must from necessity be introduced ; for arms; 7 T. R. 4. it would be in vain to turn women and Hanging up, or burning, an effigy children out of court, if they are after- with intent to expose some particular wards permitted to read what has passed person to ridicule and contempt, is an in their absence.

offence of the same nature as a libel, Lord Hardwicke has declared that and has frequently been punished with any publication, which shall prejudice great but proper severity.-CH.

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