to a breach of the peace, or to stir up hatred toward a class generally.(x) There are certain exemptions from the criminal liability which attaches to matter which is prima facie libelous. We have already seen that a fair literary criticism, however uncomplimentary and unpalatable, is not a libel. Confidential communications are also, in some cases, privileged; for example, by or to those occupying fiduciary positions, as where the defendant, wrote to the employes of the plaintiff to inform them of the malpractices of the latter,(y) or when a master gives what he believes to be a correct character of his servant.(z) Communications made bona fide, with a view of investigating a fact, though injurious to a person's character, are not libelous; for example, an advertisement to ascertain whether the plaintiff had another wife living. (a) The meaning in law of a privileged communication is, a communication made on such an occasion as rebuts the prima facie inference of malice arising from the publication of matter prejudicial to the character of the plaintiff. But he may answer by proving malice in fact.(b) [A fair account of a trial is a privileged communication. But ex parte affidavits or testimony do not come within the privilege; nor does the privilege cover matters which do not form part of the trial.(1) Criticism or expression of opinion upon admitted or established facts is privileged.(2) Liberty of discussion upon public matters is necessary, but libelous statements, made to injure one in office or a candidate for office, are not privileged.(3)] It constitutes a more serious offense to embody the ob (x) R. v. Osborn, 1 Barn. K. B. 138, 166. (a) Delaney v. Jones, 4 Esp. 191. (6) Wright v. Woodgate, 2 C. M. & R. 573. (1) Stanley v. Webb, 4 Sandf. 21; Edsell v. Brooks, 17 Abbott Pr. R. 221; Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548. (2) Fry". Bennett, 3 Bosw. 200 (3) Littlejohn v. Greeley, 13 Abbott Pr. R. 41; Aldridge v. Press Printing Co., 9 Minn. 188; Hunt . Bennet, 19 N. Y. 173. jectionable matter in writing, than merely to give verbal utterance to it. So that an indictment (so also an action) may be maintained for words written, for which an indictment could not be maintained if they were merely spoken ; for example, to write that a man is a swindler.(e) It may be stated generally on the subject of indictable slander.(d) that no words spoken, however scurrilous, even though spoken personally to an individual, are the subject of indictment, unless they directly tend to a breach of the peace, for example, by inciting to a challenge. We must here except words seditious, blasphemous, grossly immoral, or uttered to a magistrate while in the execution of his duty. As to the form in which the libel is expressed, of course it will be none the less an offense because the libelous imputation is conveyed indirectly; for example, by a hint, question, exclamation, irony, etc. And a mere subterfuge, as by writing only a letter or two of the name, will not avail if there be satisfactory evidence of what person is meant. The words used are to be taken in the sense ordinarily understood. Where the libelous signification of the words does not appear on the face of the libel, innuendoes are inserted in the indictment, and proved by the evidence showing the intended application of the words. As to the publication, or making public of the libel. To make a writing a libel it must be published; for the mere writing or composing of a defamatory paper which is never read or divulged to others, or which is delivered simply by mistake, will not amount to a libel. But, on the other hand, a slight circumstance will be sufficient to constitute a publication. Thus communication, though only to a single person, is a publication; and though it be contained in a private letter. We have only to recur to the gist of the offense to understand the reason of this; for, in each case, the act tends to a breach of the peace. The mere publication of matter which on the race of it is libelous, is presumptive evidence of the malice which (c) l'Anson v. Stuart, 1 T. R. 748. (d) "Libel" is the term applied to words written. Slander," to those merely spoken. is necessary to constitute a crime; and therefore the proof of innocence of intention lies on the defendant. But if the writing is prima facie innocent, malice may be proved from special circumstances which may be laid before the jury. The facts to be established by the prosecution are: For a long period it was maintained by the judges and others that it was the province of the jury to deal with the first of these questions only, and that the second was to be determined by the court. But the controversy was settled by Fox's act, (e) which declared and enacted that it was for the jury to determine both questions. So that the jury now gives a verdict of guilty and not guilty on the whole matter in issue, and are not, as formerly, directed by the court to find the defendant guilty if they are satisfied that the writing was published and bore the meaning ascribed to it in the indictment.(f) But of course the court may state its opinion to the jury, though they are not bound to act upon it. Every one who is concerned in the writing or publishing is liable to conviction for the libel. This doctrine has been carried to an absurd extent; so much so that it was held that a mere servant of the printer of a libel, who clapped down the press, was purishable, though it did not at all clearly appear that he know the import of the paper, or that he was conscious he was doing any thing illegal.(g) But this rule has been doubted, though it shows that the court is prepared to go a long way. The proprietor of a newspaper, or other principal, is answerable criminally as well as civilly for the acts of his (e) 32 Geo. 3, c. 60. (f) As the law is now administered, it is a system of ex post facto legislation, applied by the jury to each particular case. A libel considered as a crime has been well described as any thing for having written which a jury thinks a man ought to be punished. Fitz. St. 147. (g) R. v. Clark, 1 Barn. K. B. 304. servant in the publication of a libel.(h) It would be exceedingly dangerous to hold otherwise; for then an irresponsible person might be put forward, and the person really producing the publication, and without whom it could not be published, might remain behind and escape altogether.(i) However, it is now provided that the defendant, principal or agent, may prove that the publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part.(k) Though the statute does not expressly say whether this is a competent defense, or only serves to mitigate.punishment, it seems that it will completely rebut the prima facie presumption of publication. A report published in any newspaper of the proceedings of a public meeting shall be privileged, if such meeting was lawfully convened for a lawful purpose and open to the public, and if such report is fair and accurate and published without malice, and if the publication of the matter complained of is for the public benefit; but this protection will not be allowed to a defendant who has refused to insert in the newspaper in which the libel appeared, a reasonable explanation or contradiction.() Libel is a misdemeanor, punishable in the case of one who publishes a defamatory libel, knowing it to be false, by imprisonment; not exceeding two years, and fine.(m) But if the prosecution do not prove that the defendant knew it to be false, the punishment is fine or imprisonment not exceeding one year, or both.(n) No criminal prosecution can be commenced against any proprietor, publisher, editor, etc., for any libel published in any newspaper without the written fiat or allowance of the Director of Public Prosecutions, or of the AttorneyGeneral. A court of summary jurisdiction may now inquire as to the libel being true or for the public benefit, etc.(0) (h) R. v. Almond, 5 Burr. 2686. (i) Per Tenderten, C. J. R. v. Gutch, Moo. & M. 433. () 44d 45 Vict., c. 60, 8 2. In case of private prosecutions, if judgment is given for the defendant, he is entitled to recover his costs from the prosecutor. And if the defendant has pleaded a justification of the libel (on the ground of truth, etc.), and so has put the prosecutor to extra expense, on his (the defendant) failing to establish his plea, the prosecutor can recover from him the cost occasioned by such plea.(p) An offense which may be regarded as a particular form of libel is punishable in the same way, namely, hanging a person in effigy. The object is to bring contempt upon, or excite indignation against, an individual, and so to incite to a breach of the peace. Another offense connected with libel may be noticed: Publishing, or threatening to publish, or proposing to abstain or prevent from publication, a libel in order to extort money or some other valuable thing, is a misdemeanor punishable by imprisonment not exceeding three years.(q) FORCIBLE ENTRY OR DETAINER. The violent taking, or, after unlawful taking, the violent keeping possession of lands and tenements with menaces, force, and arms, and without the authority of the law. It is no defense to a charge of forcible entry that the accused had been unjustly turned out of possession,(r) inasmuch as he has his remedy at law, and the fact of his right does not diminish the breach of the peace. If there be not employed such force as is calculated to prevent resistance, it is a mere trespass.(s) The offense is a misdemeanor, punishable by fine and imprisonment. The court may summarily restore possession to the person entitled, by a writ of restitution.(t) Blackstone notices certain other offenses which are punishable by fine and imprisonment as misdemeanors against the peace: Riding or going armed with dangerous or unusual weapons, spreading false news, false and pretended prophecies, with intent to disturb the peace. (p) 6 and 7 Vict., c. 96, § 8. (r) 5 Rich. 2, c. 8. (t) v. 21 Jac. 1, c. 15. (9) Ibid., § 3. (s) R. v. Smyth, 5 C. & P. 20L |