CHAPTER XXXIII. under this warrant, seized Mr. Leach and imprisoned him for some time; but on its being found that he was neither author, printer, nor publisher, he was discharged by the Earl of Egremont's order, without even having appeared before him. After a verdict for the plaintiff, in an action for false imprisonment against the King's messengers, the defendants carried the matter, by a bill of exceptions, to the Court of King's Bench; when the single point decided was, that the defendants could not justify, inasmuch as they had not acted in obedience to the warrant (o). A warrant was issued in the name of the Duke of Newcastle, one of the Secretaries of State, directed to two of the king's messengers, requiring them, taking a constable, to make a diligent search in the house of Dr. Earbury (p), the author of a treasonable paper, entitled "The Royal Oak Journal," for all papers of whatsoever kind in his custody, and to bring the said papers before him; the messengers, without taking a constable to their assistance, entered the defendant's house, seized his papers, and brought them before Mr. De La Faye, who was the Duke's secretary, and a justice of the peace. The defendant afterwards applied to the Court of King's Bench to have his papers restored to him, insisting that a Secretary of State could not legally grant a warrant to seize a person's papers. Lord Hardwicke, C.J., said, that as to seizing the defendant's papers he would not give any opinion whether it was legal or not, that the Court of King's Bench could not grant a rule upon the messenger who did seize them, to restore them; and therefore, that the question was not properly before the court for their determination. But in the Search warrant great case (q) of the seizure of papers, it was decided, that a of Secretary of State held Secretary's warrant to search for papers was illegal; and Lord illegal. Camden, C.J., observed, "If this point should be determined in favour of the jurisdiction, the secret cabinets and bureaus of every subject in the kingdom will be thrown open to the search and inspection of a messenger, whenever the Secretary of State shall think fit to charge or even suspect a person to be the author, printer, or publisher of a seditious libel." "There is no authority to show that libels might be seized, (0) By a resolution of the House of Commons it was declared, that general warrants in the case of libel are illegal. Journ. Ho. Com., 22 April, 1766. And such were, by a subsequent resolution, declared to be illegal in all cases. Ibid., 25 April, 1766. (1) Entick v. Carrington and others, CHAPTER Libels indictable at Common Law. When a libel may be indictable though except the opinion of the twelve judges at the close of the reign of Charles II., who gave it as their opinion that no one could legally expose to the public anything that concerned the affairs of the public, without licence from the King. This was quoted by Scroggs, C.J., on the trial of Harris for a libel, who extended the doctrine to the seizure of all books, pamphlets, and writings on matters of public concern" (r). "Upon the whole, we are of opinion that the warrant to seize and carry away the parties' papers in case of a seditious libel, is illegal and void." And the House of Commons (s) afterwards came to a resolution declaring the seizure of papers, in case of libel, to be illegal. As to the seizure of obscene books, pictures, prints, &c., summary powers are given to justices, by statute, to give authority, by special warrant, to any constable or police officer, to enter any house, &c., to search for and seize such (t). As to Proceedings by Indictment.-As a general rule, all libels on individuals are prima facie indictable: for the publi cation, without lawful justification, of matter (whether true or false) defamatory of another, has a tendency to create ill-blood, and to provoke the person defamed to avenge the injury by an attack on the libeller. It has therefore been long estab lished by law, that libel is a public offence for which a remedy is given by indictment at common law. And it has been held that where a party may be indicted for any written defamation, an action may also be maintained at the suit of the party injured (u). But this is not strictly accurate. According to more recent authorities, where an action will lie for libel, there (generally) an indictment will also lie. But the converse will not hold (x). An indictment will lie in some cases where an action will not; as in those cases where not actionable. the only publication is to the party libelled, an indictment will lie; but no action can be sustained; the primary ingredient to sustain it being wanting: (viz.)—publication by the defendant to a third party. So also in some cases where the libel is true; proof that it is true is an answer to an action at law; but not so to an indictment, unless it was for the public benefit that the libellous matter should be published; in which (r) Ibid., 19 How. St. Tr. 1070-1. (t) See 20 & 21 Vict. c. 83, supra, (u) Skin. 123; 2 Wils. 204; 4 Com. Dig. tit. Libel, C. 3; 7 Bac. Ab. tit. (a) 3 Mod. 139; Com. Dig. tit. "Libel," A. 2. case such a defence must be specially pleaded in accordance with the Libel Act, 1843 (y). In no other case is the truth of the libel any defence to an indictment. CHAPTER XXXIII. indictment no A party proceeding by indictment for libel, is not thereby Proceeding by deprived of his remedy by action-at-law; but in the case of a waiver of criminal information being granted, the applicant must waive right of action. his right of action, if so required by the court (2). But the proceeding by indictment is no waiver of such right. The prosecutor may indict for the public offence, and sue for damages for the defamation of his character (a). cases indict An indictment will not lie for mere words not reduced into Slander, when writing (b), unless they be seditious, blasphemous, grossly im- and in what moral, or addressed to a magistrate in the execution of his able. office; or uttered as a challenge to fight a duel, or with an intention to provoke another to send a challenge (c). But verbal accusations, or threats to accuse a person of crime, with intent to extort money or other property, are indictable by statute as felony (d). Libels indictable by statute. Any defamatory libel, published maliciously, is indictable by Defamatory statute (e), as well as at common law. And if published "knowing the same to be false," the statutory punishment on conviction is more exemplary (f). It is a misdemeanour at common law, to publish a defamatory libel, whether false or not: and therefore, on an indictment charging the defendant with publishing a defamatory libel "knowing the same to be false," he may be convicted of the lesser offence of publishing a defamatory libel; though the jury negative the scienter of the defendant (g). But where the commitment charges an offence only under section 5, the defendant cannot be indicted under section 4 (except under the conditions stated in the Vexatious Indictments Act); and therefore, if in such a case, the indictment charges an offence under both sections, it is bad; unless amended by striking out the charge under section 4 (h). It (y) 6 & 7 Vict. c. 96, s. 6. (-) Supra, p. 453. (a) 2 Wils. 204; 4 Com. Dig. tit. Libel, C. 3; 3 Blac. Com. 125; 7 Bac. Abr. tit. Slander, 255; Skin. 123; 2 Brownl. 151; and ride t Q. B. D. 42; 48 L. J. Q. B. 113. (b) 2 Salk. 417; R. v. Langley, 6 Mod. 125. (c) R. v. Philipps, 6 East, 464. (7) 24 & 25 Vict. c. 46, s. 47. (g) Bouler v. The Queen, 21 Q. B. D. (h) Vide 44 & 45 Vict. c. 60, s. 6; and Reg. v. Felbermann and another, 51 J. P. 168; and see Boaler v. Holder and others, 54 L. T. 298; 51 J. P. 277. CHAPTER Publishing, or threatening to publish a Libel, or proposing to abstain from money, &c. will, however, be too late to raise an objection by writ of error after conviction, that as to one of the counts the requirements of the Vexatious Indictments Act have not been complied with (i). Such an objection, to be available, should be taken at the trial, by motion to quash the indictment (i). It is also an indictable offence, to threaten to publish defamatory matter, with intent to extort money, &c. (k). So that whether a libel or not, if the threat to publish, or proposal to abstain from publishing, be with intent to extort publishing any- money or goods, or security for money, or any valuable thing, thing, with intent to extort or with intent to induce any person to procure for another an office of profit, etc., the offence will be complete (1). But it has been ruled that a count under this section, charging the defendants with unlawfully offering to prevent the publishing, and with threatening to publish certain matters touching the prosecutor, with intent to extort money, cannot be supported by evidence of an attempt to obtain the money by inducing the prosecutor to believe that an information would be laid against him by one G. for an offence relating to the post-horse duties, and that the defendants had the means of preventing the proceedings, and would prevent them on being paid a pound or two (m). Accessories to the publication of a libel. Defendant residing out of jurisdiction. Corporation, liability of, All who are accessories to the publication of a libel, are liable to be indicted as principals: for according to the general rule of law, in misdemeanours all accessories are principals (n). And therefore all who are in any degree accessory to the publi cation of a libel, or who are in any way concerned in the composition, writing, or printing thereof, with a view to publication, and all who by any means conduce to the publication, are considered in law as principals in the act of publication, and liable to be indicted as such (o). And a person residing out of the jurisdiction may be indicted for the publication of a libel within the jurisdiction, though he be only an accessory to such publication (p). A corporation may be liable to an indictment for libel (q) for the publi- not only in their collective or corporate capacity when the cation of a libel. (i) Boaler v. The Queen, 57 L. J. (k) 6 & 7 Vict. c. 96, s. 3. (m) Reg. v. Yates and another, 6 (n) See The Queen v. Greenwood, 2 Den. C. C. 453. (0) R. v. Benfield, 2 Burr. 983, pl. 3. (p) Rex v. Johnson, 6 East, 583; 7 East, 65. (1) As to the process against a body corporate to compel appearance to an indictment, see the C. O. R. 1906, r. 87. libel has been so published, but also in their individual capacity (1). CHAPTER XXXIII. An indictment for a libel on several persons, to the jurors Libels on a Class or body. unknown, is bad (s); but a libel upon one of a body of persons, without naming him, is a libel upon the whole, and may be so described. And, accordingly, where a libel was published of an East India Director, but without naming any director in particular; it was held, to be equally applicable to everyone of the directors of the East India Company; and the court made a rule absolute for a criminal information against the defendant for printing and publishing a libel on the Directors of the East India Company (t). Indictment by An indictment for libel may be removed by certiorari into Removal of the King's Bench Division (u), or to the Central Criminal Court (x), if good cause be shown for such removal. And any indictment for libel found by the grand jury at the Central Criminal Court, may also, by the same process, be removed into the King's Bench Division (y). But where the indictment was for the publication of a blasphemous libel, by a bookseller at Manchester, the court refused to remove it, as it was not alleged that the defendant could not have a fair trial at the Salford Sessions, nor that difficult points of law were likely to arise at the trial (~). The proceedings relating to the application for, and removal of indictments by certiorari are now regulated by the Crown Office Rules, 1906 (a). As to the technical mode of framing an indictment for libel, Mode of a few observations, supported by authorities on the subject, ment for libel. framing indictmay here be useful. Since a criminal proceeding is in its nature local, the offence Venue. must be laid, and proved to have been committed, in the county within which the bill is preferred (b). But if a person write a libel in one county and publish it in another, he may be indicted in either county (c). And if a () Vide Rex v. Watson, 2 T. R. 199: also supra, p. 231; and see an American case to same effect, State v. Atchison, 3 Lea, 729; 31 Am. Rep. 663. ($) Rex v. Orme (or Alme) and Nutt, Ld. Ray. 486; 3 Salk. 224. (t) The King v. Jengur, 7 Mod. 400; and ride The King v. Hatchard, infra, p. 493. (u) 5 B. & Adol. 354. (r) 19 & 20 Vict. c. 16, s. 1. (b),4 Read. St. Law, 155; 8 Mod. (c) R. v. Burdett, 3 B. & Ald. 717 ; 4 B. & Ald. 95. |