defendant has employed an editor for the management of a particular department of the newspaper, and has entrusted to him the business of deciding what articles should be inserted in the paper, is not necessarily proof of the defendant's having consented to the publication of the libel by him (k). This defence is available in all cases of criminal libel, blasphemous, seditious, or otherwise (7).

ARTICLE 8.-Libel or no libel a question for the jury.

On the trial of every indictment or information the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information (m).

NOTE. This famous provision was passed, it will be remembered, in the reign of George III., mainly through the instrumentality of Mr. Fox, and is contained in the statute known as Fox's Libel Act (32 Geo. 3, c. 60). Prior to this provision becoming law it had come to be the practice for the judge, and not the jury, to decide whether the words complained of were or were not a libel, inasmuch as, on proof of publication by the defendant of the words complained of, and of the sense ascribed to them in the indictment or information, the judge would, as in the famous trial of the Dean of St. Asaph (n), direct the jury

(k) Per Cockburn, C. J., and Lush, J.; Mellor, J., diss., in Reg. v. Holbrook, supra.

(1) Reg. v. Bradlaugh and others (1883), 15 Cox, C. C. 217; Reg. v. Ramsey and Foote (1883), 48 L. T. 734; 1 C. & E. 132; 15 Cox, C. C. 231.

(m) 32 Geo. 3, c. 60 (Mr. Fox's Act), s. 1.

(n) Rex v. Shipley (1784), 4 Dougl. 73; 21 St. Tr. 1043; 3 T. R. 428, n.

to find the defendant guilty. The judge is, of course, still at liberty to explain to the jury any point of law, and, if he thinks it proper to do so, he may state his own opinion (0), but the jury "are the sole judges of the guilt or innocence of the defendant . . . . [they] are the judges of law and fact, and on them rests the whole responsibility. In this sense the jury are the true guardians of the liberty of the press " (p). It may be mentioned that sect. 3 of the Act expressly reserves the right of the jury to find " special verdict in their discretion, as in other criminal

а

(p) Per Fitzgerald, J., in Reg. v. Sullivan (1868), 11 Cox, C. C. 52.

APPENDIX A.

66

HEARING BEFORE STIPENDIARY MAGISTRATE OR JUSTICES OF THE PEACE.

ON a charge of libel before a stipendiary magistrate or two justices of the peace, the defendant usually appears in answer to a summons; but if he does not do so the Court may, if satisfied that the summons has been duly served upon him, proceed to hear the case although he is not present, or-the course generally adopted in practiceissue a warrant for his apprehension, under 11 & 12 Vict. c. 42, s. 1. At common law, upon the hearing there are only two questions for the consideration of the Courtfirst, whether the matter complained of was libellous, and secondly, whether the publication of it was brought home to the accused" (a). After hearing the complainant's case the Court will inquire of the accused whether he wishes to call any witnesses (b), and evidence on his behalf will then be admissible to prove that the words complained of are no libel (Part I., Article 1; Part II., Article 1, note); that they do not relate to the complainant (Part I., Article 2); that they were not published by the accused (Part II., Article 3); that their publication is absolutely privileged (Part I., Articles 15, 16); or a fair and bonâ fide comment on a matter of public interest (Part I., Article 13). The Court will then

(a) Per Cockburn, C. J., in Reg. v. Curden (1879), 5 Q. B. D. 6, 7; 49 L. J. M. C. 1; 41 L. T. 504; 14 Cox, C. C. 359; 28 W. R. 133. (b) 30 & 31 Vict. c. 35, s. 3.

either dismiss the case, or, if satisfied that there are reasonable grounds for doing so, will commit the accused for trial.

So much, then, for the jurisdiction at common law. Let us now proceed to consider what alterations have been introduced by statute. In the first place, by sect. 4 of the Newspaper Libel and Registration Act, 1881 (44 & 45 Vict. c. 60), "a Court of summary jurisdiction, upon the hearing of a charge against a proprietor, publisher, or editor, or any person responsible for the publication of a newspaper, for a libel published therein, may receive evidence as to the publication being for the public benefit, and as to the matters charged in the libel being true, and as to the report being fair and accurate, and published without malice, and as to any matter which under this or any other Act, or otherwise, might be given in evidence by way of defence by the person charged on his trial on indictment, and the Court, if of opinion after hearing such evidence that there is a strong or probable presumption that the jury on the trial would acquit the person charged, may dismiss the case."

This section effected a great change in the law so far as the press were concerned. Its object is to enable a magistrate, upon the hearing of a charge of libel against any of the persons mentioned, to receive and hear such evidence as would be admissible on the trial of an indictment for libel, and, if he should be of opinion that at the trial the defendant would be acquitted, to dismiss the case. "Independently of statute the magistrate could not receive evidence of the truth of the libel " (c), because that was no defence to criminal proceedings. "The question then arises, whether [sect. 6 of] Lord Campbell's Act (d) enables him to do so. In my opinion," says Cockburn, L. C. J., "it does not, because the defence founded upon the truth

(c) Per Cockburn, C. J., in Reg. v. Carden (1879), 5 Q. B. D. 6, 7; 49 L. J. M. C. 1; 41 L. T. 504; 14 Cox, C. C. 359; 28 W. R. 133. (d) See p. 85, infra.