CHAPTER XV. CRIMINAL LAW. IT is a misdemeanour at common law, punishable on indictment or information with fine and imprisonment, to speak any blasphemous, obscene, or seditious words in the hearing of others. A fortiori, it is a misdemeanour to write and publish blasphemous, obscene, or seditious words. It is a misdemeanour at common law, punishable on indictment or information with fine and imprisonment, to write and publish defamatory words of any living person, or exhibit any picture or effigy defamatory of him. It is not a crime merely to speak such words, however maliciously. A libel on a thing is no crime; and wherever no action would lie without proof of special damage, no indictment or information can be preferred. Whatever words would be deemed defamatory of a living person in any civil action will be held a libel on the trial of an indictment. All the rules laid down in Chapters II., III., VIII., IX., as to Bona Fide Comment, Construction and Certainty, Privilege, and Malice, apply equally to civil and criminal proceedings. It will be an aggravation of the offence, if the person libelled be a foreign prince, statesman or ambassador; for such a libel would embarrass the government, and might disturb the friendly relations between England and that foreign country. (See post, p. 430.) It is a misdemeanour at common law, punishable on indictment with fine and imprisonment, to write and publish defamatory words of any person deceased; provided it be alleged and proved that this was done with intent to bring contempt and scandal on his family and relations and so provoke them to a breach of the peace. (5 Rep. 125a; Hawkins, P. C. i. 542; R. v. Topham, 4 T. R. 126.) It is also a misdemeanour to libel any sect, company or class of men, without mentioning any person in particular; provided it be alleged and proved that such libel tends to excite the hatred of the people against all belonging to such sect or class, and conduces to a breach of the peace. (R. v. Gathercole, 2 Lewin, C. C. 237.) Such intention may sufficiently appear from the words of the libel itself, or it may be proved by the consequences, any, of its publication. if The criminal remedy for libel, as it is the earlier, so it is the more extensive remedy; a libel may be indictable, though it be not actionable. Thus in neither of the above cases would an action lie, for want of a proper plaintiff. (And see R. v. Darby, 3 Mod. 139.) In Reg. pros. Vallombrosa v. Labouchere, 12 Q. B. D. 320; 53 L. J. Q. B. 362; 32 W. R. 861; 50 L. T. 177; 15 Cox, C. C. 415; 48 J. P. 165, the Court expressed some doubt as to whether it was a crime to libel a dead man, but abstained from expressing any decided opinion on the point. This doubt certainly operated as one reason among others for refusing the extreme remedy of a criminal information in that case; and it will thus be very difficult to obtain a criminal information in any subsequent case of libel on a person deceased. But these dicta do not appear to me to at all affect the remedy by way of indictment, and I think the law remains as stated above. See, however, R. v. Ensor, 3 Times L. R. 366. It is not necessary to prove that the libeller in fact desired that a breach of the peace should follow on his publication; that is probably the last thing he wished for; still less is it necessary to prove that an actual assault ensued, though, if it did, evidence of such assault is admissible. (R. v. Osborn, Kel. 230; 2 Barnard. 138, 166.) It is sufficient if the necessary or natural effect of defendant's words is to vilify the memory of the deceased and to injure his posterity to such an extent as to render a breach of the peace imminent or probable. Illustrations. Libel complained of: "On Saturday evening died of the smal!-pox, at his house in Grosvenor Square, Sir Charles Gaunter Nicoll, Knight of the Most Honour . able Order of the Bath, and representative in Parliament for the town of Peterborough. . . . . He could not be called a friend to his country, for he changed his opinions for a red ribbon, and voted for that pernicious object, the excise." It was alleged that this passage was published with intent to vilify, blacken, and defame the memory of the said Sir Charles, and to stir up the hatred and evil will of the people against the family and posterity of the said Sir Charles. An information was granted. R. v. Critchley (1734), 4 T. R. 129, n. But an indictment which alleged that a libel on the late Earl Cowper had been published with intent to disgrace and vilify his memory, reputation, and character, but did not go on to aver any intent to create ill blood or throw scandal on the children and family of Earl Cowper, or to provoke them to a breach of the peace, was held bad, after a verdict of guilty, and judgment arrested. R. v. Topham, 4 T. R. 126. And, à fortiori, to discuss the characters of deceased statesmen and noblemen, as a matter of history, is no crime. Per Lord Kenyon, C. J., ib. 129. But if in discussing the character and policy of William III. and George I., discredit is thrown on the character and administration of the present king (George II.), with intent to spread dissatisfaction among his subjects, the publication is a seditious libel. R. v. Dr. Shebbeare (1758), cited in Lord Mansfield's judgment in The defendant published a sensational account of a cruel murder committed by certain Jews said to have lately arrived from Portugal, and then living near Broad Street. They were said to have burnt a woman and a new-born baby, because its father was a Christian. Certain Jews who had arrived from Portugal, and who then lived in Broad Street, were attacked by the mob, barbarously treated, and their lives endangered. A criminal information was granted, although it was objected that it did not appear precisely who were the persons accused of the murder. R. v. Osborn, Kel. 230; 2 Barnard. 138, 166. It is a crime to write of a Roman Catholic nunnery that it is a "brothel of prostitution;" for this is an aspersion on the characters of the nuns in general, though none are singled out by name. R. v. Gathercole (1838), 2 Lew. C. C. 237. R. v. J. A. Williams (1822), 2 B. & Ald. 595; 2 Townsend's Modern A pamphlet reflecting on the government and asserting that its officers are corrupt, ignorant, and incapable, will be a libel, and punishable as a crime; although no particular member of the government, and no individual officer, is mentioned or referred to. R. v. Tutchin, 14 Howell's St. Tr. 1095; 5 St. Tr. 527; Holt, 56; 2 A notice was posted in church calling attention to certain abuses permitted by "the trustees" of Lambeth workhouse; an information was granted on behalf of the whole body of trustees [although the trustees could not before the Judicature Act have jointly sued for the libel; ante, p. 419]. R. v. Griffin, 1 Sess. Cas. 257. An information was granted for a libel commencing :- "Whereas an East India director has raised the price of green tea to an extravagant rate," although there was nothing to show which particular director was intended. R. v. Jenour, 7 Mod. 400. But an indictment for a libel on 66 even after verdict. 'persons to the jurors unknown” is bad, R. v. Orme (vel Alme) and Nutt, 1 Ld. Raym. 486; 3 Salk. 224. It is a misdemeanour at common law to utter words which amount to a direct challenge to fight a duel, or to utter insulting words with the intention of provoking another to send a challenge. (R. v. Philipps, 6 East, 464, and note on p. 473.) A fortiori, it is a misdemeanour to write a challenge or to consciously deliver a written challenge. And indeed all words which amount to a solicitation to commit a crime, whether spoken or written, are indictable, whether the person solicited commit the crime or not. (R. v. Higgins, 2 East, 5.) It is also said to be a misdemeanour to fabricate and publish false news in writing (Dig. L. L. 23), or to endeavour, by spreading false rumours, to raise or lower the price of food or merchandise. (See R. v. Waddington (1800), 1 East, 143.) According to Scroggs, J., it is a misdemeanour to publish any news at all, though true and harmless. (See 11 Hargrave's St. Tr. 322.) Where eight persons combined to raise the price of Government stocks on Feby. 21st, 1814, by spreading a false rumour of the death of Napoleon Buonaparte, they were indicted and convicted of a conspiracy, for their common purpose was illegal. (R. v. De Berenger, 3 M. & S. 67.) But this is scarcely an authority for holding that the merely spreading a false rumour is in itself indictable. The statutes of Scandalum Magnatum, 3 Edw. I. c. 34; 2 Rich. II. st. 1, c. 5; and 12 Rich. II. c. 11, are set out ante, pp. 134-6; they are, however, practically obsolete. In all the above cases of misdemeanour at common law, the defendant may be fined or imprisoned, or both; but he cannot be sentenced to hard labour. He may also be required to find sureties to keep the peace and to be of good behaviour for any length of time. A married woman could not, before the Married Women's Property Act, be fined; but she could be required to find sureties, though she could not enter into recognizances herself. None of the above offences can be tried at quarter sessions, except an indictment for obscene words; post, p. 471. Certain statutes have been passed in aid of the common law : By the 6 & 7 Vict. c. 96, s. 3, it is a misdemeanour to publish, or threaten to publish, any libel upon any other person, or to threaten to publish, or propose to abstain from publishing, or to offer to prevent the publishing of, any matter or thing touching another, with intent to extort money or gain, or to procure for any one any appointment or office of profit. The offender may be sentenced to imprisonment for any term not exceeding three years, either with or without hard labour. Except under the first clause of the section, the matter or thing threatened to be published need not be libellous; the intent to extort money is the gist of the offence; and a demand of money which defendant honestly believes to be due and owing to him is no evidence of such an intent. (R. v. Coghlan, 4 F. & F. 316.) The commencement of legal proceedings is not "a publishing of any matter or thing" within the meaning of the section. (R. v. Yates and another, 12 Cox, C. C. 441.) A corporation is not a "person within the meaning of this section. (R. v. M'Laughlin, 14 J. P. 291.) By the 6 & 7 Vict. c. 96, s. 4, it is a misdemeanour to maliciously publish any defamatory libel knowing the same to be false; the punishment may be fine or imprisonment, or both, such imprisonment not to exceed two years. By the 6 & 7 Vict. c. 96, s. 5, it is a misdemeanour to maliciously publish any defamatory libel; the punishment. may be fine or imprisonment, or both, such imprisonment not to exceed one year. See the whole statute in Appendix D., post, pp. 716-9. |