proved in all criminal proceedings, though it never need be in civil. (1 Hume, 342; Borthwick, 190, 195.)

Justification.

But it is in the matter of justification that the main difference lies between civil and criminal proceedings. In a civil trial, as we have seen, ante, p. 170, the truth of the matters charged in a libel is and always was a perfect answer to the action; the plaintiff was never allowed to recover damages for an injury done to a reputation to which he had no right. But in all criminal proceedings the truth of the libel by the common law constituted no defence. The maxim used to be "the greater the truth, the greater the libel; " meaning that the injudicious publication of the truth about A. would be more likely to provoke him to a breach of the peace than if some falsehood were invented about him, which he could easily and completely refute. Accordingly, on a criminal trial, whether of an indictment or an information, no evidence could be received of the truth of the matters charged, not even in mitigation of punishment. But now, by the 6th section of Lord Campbell's Act (6 & 7 Vict. c. 96), “On the trial of any indictment or information for a defamatory libel, the defendant having pleaded such plea as hereinafter mentioned, the truth of the matters charged may be inquired into, but shall not amount to a defence, unless it was for the public benefit that the said matters charged should be published. To entitle the defendant to give evidence of the truth of such matters charged as a defence to such indictment or information, it shall be necessary for the defendant, in pleading to the said indictment or information, to allege the truth of the said matters charged in the manner now required in pleading a justification to an action for defamation, and further to allege that it was for the public benefit that the said matters charged should

be published, and the particular fact or facts by reason whereof it was for the public benefit that the said matters charged should be published; to which plea the prosecutor shall be at liberty to reply generally, denying the whole thereof. If after such plea the defendant shall be convicted on such indictment or information, it shall be competent to the Court, in pronouncing sentence, to consider whether the guilt of the defendant is aggravated or mitigated by the said plea and by the evidence given to prove or disprove the same: Provided always, that the truth of the matters charged in the alleged libel complained of by such indictment or information shall in no case be inquired into without such plea of justification: Provided also, that, in addition to such plea, it shall be competent to the defendant to plead a plea of not guilty: Provided also, that nothing in this Act contained shall take away or prejudice any defence under the plea of not guilty which it is now competent to the defendant to make under such plea to any action or indictment, or information for defamatory words or libel."

And here note that there is still a most important distinction between civil and criminal cases on this point. The mere truth is an answer to a civil action, however maliciously and unnecessarily the words were published. But in a criminal case, the defendant has to prove, not only that his assertions are true, but also that it was for the public benefit that they should be published. Moreover, the statute does not apply in cases of blasphemous, obscene, or seditious words. (R. v. Duffy, 9 Ir. L. R. 329; 2 Cox, C. C. 45; Ex parte O'Brien, 12 L. R. Ir. 29; 15 Cox, C. C. 180.) It does not apply, by its express terms, unless there be a special plea of justification. In short, the truth of the matter complained of "can only become a defence under the statute, and then only when the statutory conditions are complied with." Wherever the Act does not apply, the law remains still as it was settled prior to that Act. Hence a magistrate at the preliminary investigation of a charge of libel, whether under s. 5 of the 6 & 7 Vict. c. 96, or at common law, has

no power to receive and perpetuate any evidence of the truth of the matters charged (R. v. Townsend, 4 F. & F. 1089; 10 Cox, C. C. 356; R. v. Sir Robert Carden, 5 Q. B. D. 1; 49 L. J. M. C. 1; 28 W. R. 133; 41 L. T. 504; 14 Cox, C. C. 359), unless the libel appeared in a newspaper, as to which see s. 4 of the Newspaper Libel Act, 1881, ante, p. 384.

CHAPTER XVI.

BLASPHEMOUS WORDS.

It is a misdemeanour, punishable by indictment and by criminal information, to speak or write and publish, any profane words vilifying or ridiculing God, Jesus Christ, the Holy Ghost, the Old or New Testament, or Christianity in general, with intent to shock and insult believers, or to pervert or mislead the ignorant and unwary. This is the crime of blasphemy, and on conviction thereof the blasphemer may be sentenced to fine and imprisonment to any extent, in the discretion of the Court. Formerly he was frequently also sentenced to the pillory or to banishment.* He may also be required to give security for his good behaviour for any reasonable time after he comes out of prison; and can be detained in prison till such sureties be found. [Thomas Emlyn, in 1703, and Richard Carlile, in 1820, were condemned to find sureties for their good behaviour throughout the remainder of their lives.] Also under the 60 Geo. III. & 1 Geo. IV. c. 8 s. 1 the Court

In Scotland up till the year 1813 blasphemy was in certain circumstances a capital offence. The only person executed for blasphemy appears to have been Thomas Aikenhead, a young student just twenty years of age, and the son of a surgeon in Edinburgh; he seems to have been very harshly, if not illegally, treated; no counsel appeared for him: his crime consisted in loose talk about Ezra and Mahomet and in crude anticipations of Materialism. He was hanged on January 8th, 1697, buried beneath the gallows, and all his moveables forfeited to the Crown. (See Maclaurin's Crim. Cases, 12; 3 Mer. 382, n.) Two other persons were prosecuted-Kinninmouth and Borthwick-but neither was convicted; in the first case the prosecution dropped, while Borthwick fled the country. (Hume on Crimes, II. 518.)

may, after conviction, make an order for the seizure of copies of the blasphemous libel in the possession of the prisoner, or in the possession of any person to his use. (See the Statute in Appendix D. post, p. 712.) The defendant cannot plead a justification: nor can he be permitted at the trial to argue that his blasphemous libel is true. (Per Abbott, L. C. J., in Cooke v. Hughes, R. & M. 115.)

The

The intent to shock and insult believers, or to pervert or mislead the ignorant and unwary, is an essential element in the crime. Actus non facit reum, nisi mens sit rea. existence of such an intent is a question of fact for the jury, and the onus of proving it lies on the prosecution. The best evidence of such an intention is usually to be found in the work itself. If it is full of scurrilous and opprobrious language, if sacred subjects are treated with offensive levity, if indiscriminate abuse is employed instead of argument, then a malicious design to wound the religious feelings of others may be readily inferred. If, however, the author abstains from ribaldry and licentious reproach, a similar design may still perhaps be inferred if it be found that he has deliberately had resort to sophistical arguments, that he has wilfully misrepresented facts within his knowledge, or has indulged in sneers and sarcasms against all that is good and noble; for then it is clear that he does not write from conscientious conviction, but desires to pervert and mislead the ignorant; or at all events that he is criminally indifferent to the distinctions between right and wrong. But where the work is free from all offensive levity, abuse and sophistry, and is in fact the honest and temperate expression of religious opinions conscientiously held and avowed, the author is entitled to be acquitted, for his work is not a blasphemous libel.

"It is, indeed, still blasphemy," says Mr. Justice Erskine in Shore v. Wilson, 9 Clark & Fin., at pp. 524-5, "punishable at common law, scoffingly or irreverently to ridicule or impugn the doctrines of the Christian faith; yet any