criminal law, to write and publish defamatory words of "certain Jews lately arrived from Portugal, and living near Broad Street," although no particular Jew was named (d), similarly, where a certain nunnery was libelled, although no reference was made to any special individual (e).

NOTE 2.-The subject of procedure is not, properly speaking, the subject of this work, but it may, perhaps, be useful to give a brief outline of the different steps to be taken in each case according as the prosecution proceed by way of information or indictment.

I. Where the proceedings are by way of information. A criminal information may be (a) ex officio, i. e., filed by the Attorney-General,-a course which is however only adopted in very serious and pressing cases of a public nature, and the latest example of which was in 1830; or (b) filed by the Queen's coroner and attorney by "express order of the Queen's Bench Division in open Court" (f). In the latter case, counsel for the prosecution must, "within a reasonable time after the offence complained of," move the Divisional Court upon affidavits for an order nisi, calling upon the defendant to show cause why an information should not be filed (Crown Office Rules, 1886, r. 48). The rule nisi, if granted, is then drawn up and served on the defendant who shows cause. If the rule is then made absolute, the prosecutor enters into a recognizance of 507., effectually to prosecute such information, and to abide by and observe such orders as the Court shall direct," and then proceeds to trial as directed by the Crown Office Rules, 1886. The trial itself is precisely similar to the trial of an indictment (as to which, see infra), except that in ex officio informations the Crown has the right of reply, even though no witnesses be called for the defence.

(d) Rex v. Gathercole, supra.

(e) Rex v. Osborn, supra.

(f) 4 Will. & Mary, c. 18, s. 1; Crown Office Rules, 1886, r. 46.

II. Where the proceedings are by way of indictment, the prosecutor must

(a) Obtain an order from a judge in chambers under

sect. 8 of the Law of Libel Amendment Act, 1888, provided that the libel has been published in a newspaper as defined by that Act (Article 4, infra, and note thereto);

(b) Charge the defendant before a magistrate (see Appendix A., p. 69, infra); and if he obtain a committal,

(c) Prefer an indictment before the grand jury, when, if a true bill be found, he will

(d) Proceed to trial before a judge and jury at the Central Criminal Court or the Assizes, as the case may be.

The prosecution must satisfy the jury that the words complained of are libellous, that they referred to the prosecutor, and were so understood by those to whom they were published (Part I., Article 2), that they were published by the defendant (Part II., Article 3), and published moreover by him in the county in which the venue has been laid. As to the defences which may then be set up, see Part II., Article 5, infra.

ARTICLE 2.-Blasphemous, seditious, and obscene words, &c.

The publication of a blasphemous (g), seditious (h), or obscene (i) representation in writing,

(g) Rex v. Williams (1797), 26 How. St. Tr. 656; Rex v. Carlile (1819), 3 B. & Ald. 161; 1 Edw. 6, c. 1, s. 1; 2 & 3 Edw. 6, c. 1, ss. 2, 3; 1 Eliz. c. 2, ss. 2, 3; 13 Eliz. c. 12, s. 2; 14 Car. 2, c. 4, s. 1; 9 Will. 3, c. 35; 53 Geo. 3, c. 160.

(h) 60 Geo. 3, and 1 Geo. 4, c. 8, s. 1.

(i) Rex v. John Wilkes (1770), 4 Burr. 2527; Dig. 22, 69; 2 Wils. 151; Rex v. Curl (1727), 1 Barnard. 29; 2 Strange, 788; Rex v. Stuart, 3 Chit. Crim. L. 887; Reg. v. Carlile (1845), 1 Cox,

printing, or other material form is a crime, punishable by fine and imprisonment, for which proceedings may be taken either by way of information or indictment.

As to the meaning of the term "publication," see Part II., Article 3, and of the words "representation in writing, printing, or other material form," see Part I., Article 1, note.

NOTE 1.-It is difficult to precisely define the meaning of the word "blasphemous" in the above article, but it would seem that to come within that meaning the matter published must relate to God, Jesus Christ, the Holy Ghost, the Bible, the Book of Common Prayer, or Christianity in general (k), and the publication must be made. with intent to wound the feelings of believers, or to lead astray the uneducated. This particular intent is the gist of the offence, and is usually inferred from the intemperate and scurrilous tone adopted by the defendant. In the absence of such an intent there is no blasphemy. In the words of Best, C. J., "every man may fearlessly advance any new doctrines, provided he does so with proper respect to the religion and government of the country" (1), or as Erskine, J., put it in a later case "by the law of this country, every man has a right to express his sentiments in decent language" (m), and finally to quote the latest expression of judicial opinion on the subject, that of the present Lord Chief Justice in Reg. v. Ramsey and Foote (n), "If the decencies of controversy are observed, even the fundamentals of religion may be attacked without a person being guilty of blasphemous libel.”

C. C. 229; Reg. v. Hicklin (1868), L. R. 3 Q. B. 360; 37 L. J. M. C. 89; 18 L. T. 398; 11 Cox, C. C. 19; 20 W. R. 607.

(k) See note (g), ante.

(1) Rex v. Burdett (1820), 4 B. & Ald. 132.

(m) Reg. v. Adams (1842), Trial of Holyoake, London, 1842. (n) (1883), 48 L. T. 379; 1 C. & E. 146; 15 Cox, C. C. 231.

NOTE 2.-For a representation to be "seditious" it must be published with intent "to bring into hatred or contempt or to excite disaffection against the person of her Majesty, her heirs or successors, or the government and constitution of the United Kingdom as by law established, or either House of Parliament, or the administration of justice, or to excite her Majesty's subjects to attempt, otherwise than by lawful means, the alteration of any matter in church or state by law established, or to raise discontent or disaffection amongst her Majesty's subjects, or to promote feelings of ill-will and hostility between different classes of such subjects" (o).

NOTE 3.-As to what constitutes an "obscene" representation we cannot do better that quote the words of Cockburn, L. C. J., in Reg. v. Hicklin (p), who said, "I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall." The question of what circumstances will be sufficient to justify the publication of obscene matter is a difficult one. Mr. Justice Stephen in his Digest of the Criminal Law (9), has dealt with it at length and comes to the conclusion that "a person is justified in publishing obscene books, papers, writings, prints, pictures, drawings, or other representations, if their publication is for the public good, as being necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature or art, or other objects of general interest; but the justification ceases if the publication is made in such a manner, to such an extent, or under such circumstances, as to exceed what the public good requires in regard to the particular matter published."

(0) Stephen's Digest of the Criminal Law, 4th ed. Art. 93. See also 60 Geo. 3 & 1 Geo. 4, c. 8, s. 1, at p. 76, infra.

(p) (1868), L. R. 3 Q. B. 360; 37 L. J. M. C. 89; 18 L. T. 398; 11 Cox, C. C. 19; 20 W. R. 607.

(2) 4th ed. Art. 172, and Note v.

As to the power of a stipendiary magistrate or two justices of the peace to suppress and destroy obscene publications, see 20 & 21 Vict. c. 83, in Appendix B., p. 91, infra.

As to summary conviction for affixing to any wall, fence, hoarding, &c., or publishing, any picture, or printed or written matter, which is of an indecent or obscene nature, see the Indecent Advertisements Act, 1889, 52 & 53 Vict. c. 18, set out in Appendix B., p. 107, infra.

NOTE 4.-It should be noticed that a defendant is not allowed to set up as a defence to a blasphemous, seditious or obscene libel that it is true and that it is for the public benefit that it should be published (").

ARTICLE 3.-Publication.

In criminal cases it is not absolutely necessary that there should be publication, i. e., a communication of the words complained of to some third party -it is sufficient if the words complained of be communicated to the prosecutor himself, provided that their natural tendency is to provoke the prosecutor, and excite him to commit a breach of the peace (s).

NOTE.-It must also be remembered that in criminal cases the question of publication is entirely a question for the jury (Article 8, infra), not as in civil cases (Part I., Article 4), partly for the judge and partly for the jury. With the exception of this difference, and that pointed out

(r) Cooke v. Hughes (1824), Ry. & M. 115; Reg. v. Duffy (1870), 9 Ir. L. R. 329; 2 Cox, C. C. 45; Ex parte O'Brien (1883), 12 L. R. Ir. 29; 15 Cox, C. C. 180.

(8) Rex v. Garret, Hicks' case (1618), Hob. 215; Poph. 139; Clutterbuck v. Chaffers (1816), 1 Stark. 471; Rex v. Wegener (1817), 2 Stark. 245; Phillips v. Jansen (1798), 2 Esp. 624; Reg. v. Brooke (1856), 7 Cox, C. C. 251.