defendant in addition to such plea may plead a plea of "Not CHAPTER Guilty" (i). XXXIII. statutory plea. The plea under this section must be "in the manner now Manner of required (k) in pleading a justification to an action for defama- pleading the tion." It must, therefore, be a special plea, setting out the truth of the matters charged and relied on in justification (1). Previous to that statute the truth of the charges contained in a libel was no defence to an indictment or criminal information for publishing it (m). Moreover, the truth of the matters charged as libellous could not be given in evidence under a plea of "Not Guilty"; and no special justification on the ground of such truth could be pleaded. And therefore, when Indispensable the prosecutor has replied to such plea,-that the defendant allegations. wrongfully published the libel without the cause alleged; and issue has been joined upon that replication, the prosecutor is entitled to a verdict, unless the defendant proves to the satisfaction of the jury, the truth of all the material allegations in the plea (n). &c., no Justi It will be observed, that the plea of the truth of the matters Plea of Truth, charged will be no defence unless the publication was for the fication in public benefit. There are indeed cases in which such a plea some cases: would be an aggravation of the libel; as, for instance, where it consists in the holding up of an individual to ridicule, by exposing some personal deformity, in a lampoon or print, the truth of the representation would certainly aggravate the ridicule, and by no means lessen the malice of the author (o). And with respect to libels against religion or morality, the Such as Libels permitting such a defence would be attended with consequences gion or almost too absurd to mention. Suppose a person were to Morality. publish, that no overruling Providence exists; or that, to break a promise or an oath is a virtuous act; could the discussion of such questions be tolerated in a court, or brought to issue before a jury? or would proof that indecent transactions have actually occurred supply any excuse for the public exhibition of them in a print or a pamphlet ? And the same (i) 6 & 7 Vict. c. 96, s. 6. (k) I.e., at the time of passing the Act (24th Aug. 1843). (1) See form of Plea, infra, "Precedents of Pleas." (m) 5 Co. 125, De Libellis Famosis; Lake v. Hatton, Hobart, 252; 11 Mod. 99; R. v. Burdett, 4 B. & Ald. 95. (n) Reg. v. Newman, 1 E. & B, 558. (0) Digest Law Lib. 16; 3 Bac. Ab, F.S. 495; 4 Bac. Ab. 516; The King v. I I against Reli CHAPTER Nor in case of principles apply to the publication of seditious libels; and so also to blasphemous libels. And where a plea of justification under the above section was pleaded to an indictment for publishing a seditious libel, the plea was held bad, on demurrer, by the Court of Queen's Bench in Ireland (p), as inapplicable to such an indictment, and not contemplated by the statute. CHAPTER Evidence in support of Indictment or Criminal Information for Libel. CHAPTER XXXIV. OF THE EVIDENCE IN SUPPORT OF AN INDICTMENT, WITH respect to the evidence to be adduced in support of a criminal charge, little need be added to the analogous proofs already stated as applicable to civil proceedings; the materials of evidence, and the rules which govern their application, are for the most part common to both. Upon the trial of an indictment or criminal information for publishing a libel, the prosecutor must prove : 1. The fact of publication by the defendant. 2. That the matter charged is a libel. 3. The introductory averments and the innuendoes. 5. The malice of the defendant. 1st. As to the fact of publication by the defendant.—Before the libel can be read against the defendant, primâ facie evidence of publication by him or by his request or authority must be given (a). (p) The Queen v. Duffy, 9 Ir. L. R. 329; 2 Cox, C. C. 45; 6 St. Tr. (N.S.) 303; and see Ex parte O'Brien, L. R. (Ir.) 12 Q. B. 32. (a) Rex v. Almon, 5 Burr. 2689. The evidence of publication has already been adverted to in detail (b). Whatever is a publication sufficient to entitle a plaintiff in a civil action to a verdict, is equally so in a criminal proceeding; with this addition, that the sending of a libel to the individual reflected on, without exposing the contents to a third person, is a sufficient publication to support an indictment; on account of its tendency to provoke that individual to commit a breach of the peace (c). And the defendant may be found guilty of the publishing, and acquitted of the composing, writing or printing of a libel, where they are conjointly alleged (d). As where the record varies from the printed libel, but agrees with the manuscript delivered by the defendant to the printer (e). In the case of libel, publication is nothing more than doing the last act for the accomplishment of the mischief intended by it. The moment a man delivers a libel from his hands, his control over it is gone, he has shot his arrow, and it does not depend upon him whether it hits the mark or not. There is an end of the locus pœnitentiæ; his offence is complete; all that depends upon him is consummated; and from that moment, upon every principle of common sense, he is liable to be called upon to answer for his act (f). And so also if he expose the libel to any person to read, without parting with the possession of it; or if he read it to another, or otherwise in any manner make known its contents, such is, in law, a publication. CHAPTER XXXIV. Publication, what is? usually a question of The question of publication is ordinarily one of mere fact, Publication to be decided by the jury; but this, like all other legal and technical terms, involves law as well as fact; and it is a fact. question for the court, in doubtful cases, whether the facts, when proved, would constitute a publication in point of law. Proof of the publication of a libel may be established by Publication to evidence of sending it to the wife of the person libelled; as in wife, of Libel a case where the defendant was indicted for sending to Lady Caroline Fox a scandalous libel on her husband, a privy councillor (g). on husband. In criminal cases it is necessary to prove a publication Publication in (b) Supra, Chap. XVI., p. 261. (c) 2 Esp. 226; 5 Mod. 163; 12 Co. 35; 1 Hob. 62, 215. (d) R. v. Hunt and another, 2 Camp. 583; R. v. Hart and another, 10 East, 94. (e) R. v. Williams, 2 Camp. 646, cor. Lawrence, J. (f) Vide per Best, J., The King v. Burdett, 4 B. & Ald. 126. (g) Hil. Term. 1 Geo. III. (1761), K. B. MSS. The King v. Bonell, Digest Law of Libels, 82, and 127; and ride supra, p. 269. a particular county. CHAPTER Post-mark. within the particular county. Whenever the publication of a libel has once been authorised by the defendant, he is guilty of a publication in whatever county the libel is afterwards published (). And if a letter be sent by the post, it is a publication by the defendant in any county to which the letter is, in consequence, sent (i). Where the writer of a libel sent it by the post, directed to A. B. in the county B., and it was in consequence sent into the county B., and from thence sent by the post, directed to A. B., in the county M., where A. B. received it, and read it; this was held, to be a publication in the county M. (k). If the libel be dated of a particular place, the date is evidence that it was written there (). It has been said that the postmark upon a letter is not primâ facie evidence to prove that a letter has been put into the post-office at the place denoted by the post-mark (m); it seems, however, from a later authority, that the post-mark is a fact admissible in evidence when corroborated by other circumstances (n). Upon principle, there seems to be little doubt that a post-mark upon a letter in the handwriting of a defendant, and received through the medium of the post, is evidence as a circumstance arising in the usual course and routine of business (o). And where a letter containing a libel was proved to be in the handwriting of the defendant, and addressed to a person in Scotland; that it was received from the C. post-office at H. in Essex, and forwarded to London to be forwarded to Scotland: at the trial the letter was produced bearing the proper post-marks, and with the seal broken and this was held sufficient primâ facie evidence that it was received in due course by the person to whom it was addressed; and of a publication to him (p). The postmark is evidence to show that the letter was in the office whose mark it bears, at the date of the mark (q). It would appear, however, that a post-mark is not to be taken as genuine without regular proof; and if there be any doubt as to the genuineness of the mark, the person who made it is the best witness to call (). (h) B. N. P. 6, Rex v. Middleton; R. v. Johnson, 7 East, 65. (i) R. v. Watson, 1 Camp. 215. (1) R. v. Burdett, 4 B. & Ald. 95. (0) See Fletcher v. Braddyll, 3 Starkie's C. 64. (P) Warren v. Warren, 1 C. M. & R. 250. (g) R. v. Plumer, Russ. & Ry. 264. (r) Abbey v. Lill, 5 Bing. 299; Woodcock v. Houldsworth, 16 M. & W. 124. CHAPTER What is county. A general confession by the defendant that he was the writer of a libel does not amount to an admission that he published it, still less is it a confession that he published it in any par- evidence of ticular county (s). In a subsequent case upon this subject, Publication in a particular which at the time excited much interest, and occasioned much legal investigation and discussion, the points were shortly as follow: The information charged the defendant with composing, writing, and publishing a libel in Leicestershire; A. stated that he received the libel, which was in the handwriting of the defendant, from B., on the 24th of August (t); it was contained in an envelope, which had been destroyed, but which, to the best of the witness's recollection, was addressed to B., who was the professional friend of the defendant; there was no trace of any seal either on the envelope or the paper. The paper was dated Kirby Park, August the 22nd,-Kirby Park (the defendant's seat) being situate in Leicestershire, a hundred miles from London, not far from the boundary between the counties of Leicester and Rutland. The defendant was seen in the county of Leicester, near Kirby Park, on the 22nd and on the 23rd of August, and there was no evidence of his having left the county of Leicester till after the publication (u) of the paper, which took place on the 25th; the only words, either on the paper or envelope, besides the libel, were "Forward this to A." (the witness). The paper was addressed to the electors of Westminster; and A. had no reason for supposing that the defendant intended that it should be published, except that it was so addressed. A. having been required to give up the author, the defendant wrote a letter admitting that he was the author. No evidence was given on the part of the defendant. It was objected at the trial, and afterwards in the Court of King's Bench, after the conviction of the defendant, on a motion for a new trial, that there was no evidence of a publication in Leicestershire. After elaborate argument, it was held, by the majority of the court, that the evidence was sufficient to warrant the conviction; and that if a libel be written (3) The Seren Bishops' case, 4 St. Tr. 304, 4 Jac. II., where the defendants, in Middlesex, admitted their signatures to a petition which had been prepared and signed in Surrey; but it was held, that this was not evidence of a publication of that which was termed (but grossly misnamed) a libel in the county of Middlesex. And see the observations upon this case by (t) A. did not state where he re- (u) I.e., in the public newspapers. |