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of the libel does not arise at that stage and cannot be put forward before the magistrate. Suppose the defendant had succeeded fully and entirely in showing the truth of the libel; what, then, would have been the duty of the magistrate ? He would nevertheless have been bound to send the case for trial, because by the statute the truth of the libel does not constitute a defence until the statutory conditions are complied with, and they cannot be complied with at that stage of the inquiry" ©).
It is clear, then, that the only cases in which a magistrate can receive evidence of the truth of the libel are, (1) where the defendant is charged under sect. 4 of Lord Campbell's Act with maliciously publishing a defamatory libel, knowing the same to be false (f); and (2) 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, by virtue of sect. 4 of the Newspaper Libel and Registration Act, 1881. It must be remembered that this section is, however, limited in its application, owing to the special meaning to be attached to the term "newspaper.' (See Part I., Article 16, Note 1, p. 28, supra.) If there be a committal the accused will be released on reasonable bail. If, on the other hand, the case be dismissed, then, inasmuch as by sect. 6 of the Newspaper Libel and Registration Act, 1881, every libel is to be deemed an offence within the Vexatious Indictments Act, 1859 (22 & 23 Vict. c. 17), the Court may be required to take the recognizance of the prosecutor to prosecute the charge. ... and to transmit such recognizance . . . . and depositions to the Court in which such indictment ought to be preferred.”
Lastly, we may notice that by sect. 5 of the Newspaper Libel and Registration Act, 1881 (44 & 45 Vict.
(e) See note (c), ante.
(f) Ex parte Ellisen, not reported, approved by Lush, J., in Reg. v. Carden (1879), 5 Q. B. D. 11, 13.
c. 60), where the party charged is the proprietor, publisher, editor, or any person responsible for the publication of the newspaper in which the libel has appeared, he may, after
, he is shown to have been guilty, and if the Court thinks the libel trivial, elect to be summarily dealt with-in which case the Court may summarily convict him, and adjudge him to pay a fine not exceeding 501. It is difficult, however, to see the practical utility of the above provision, for it is only applicable when the Court of summary jurisdiction “is of opinion .. that the libel was of a trivial character," and it is surely most improbable that in such a case the judge in chambers would make the preliminary order for a criminal prosecution, which must be “ first had and obtained ” under sect. 8 of the Law of Libel Amendment Act, 1888. (See Part II., Article 4.)
PAGE 32 Geo. 3, c. 60 (Fox's Act).
73–74 39 Geo. 3, c. 79
74–75 60 Geo. 3 & 1 Geo. 4, c. 8
..76—78 6 & 7 Will. 4, c. 76, s. 19
78 2 & 3 Vict. c. 12
.79-80 3 & 4 Vict. c. 9
80-82 6 & 7 Vict. c. 96 (Lord Campbell's Act)
.83–87 8 & 9 Vict. c. 75
.87-89 9 & 10 Vict. c. 33
.89-90 11 & 12 Vict. c. 12
90–91 15 & 16 Vict. c. 76, s. 61
91 20 & 21 Vict. c. 83
.91-95 44 & 45 Vict. c. 60 (Newspaper Libel and Registration Act, 1881)....95—102 51 & 52 Vict. c. 64 (Law of Libel Amendment Act, 1888)
...103-106 52 & 53 Vict. c. 18 (Indecent Advertisements Act, 1889).
Mr. Fox's Act, 32 GEO. III. c. 60.
in cases of Libel. WHEREAS doubts have arisen whether on the trial of an Preamble. indictment or information for the making or publishing On the trial
of an indictany libel, where an issue or issues are joined between the ment for a king and the defendant or defendants, on the plea of not libel the jury
may give a guilty pleaded, it be competent to the jury impanelled to general ver
dict try the same to give their verdict upon the whole matter whole matter in issue: Be it therefore declared and enacted by the king's put in issue, most excellent Majesty, by and with the advice and con- be required sent of the Lords spiritual and temporal, and Commons, by the Court in this present Parliament assembled, and by the authority defendant
guilty merely of the same, that on every such trial, the jury sworn to
on proof of try the issue may give a general verdict of guilty or not the publicaguilty upon the whole matter put in issue upon such in- the sense dictment or information ; and shall not be required or in the infordirected, by the Court or judge before whom such indict- mation. ment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged
and shall not
tion and of
ascribed to it
to be a libel, and of the sense ascribed to the same in such
indictment or information. [Page 66, supra.]. But the Court
2. Provided always, that, on every such trial, the Court shall give their opinion or judge before whom such indictment or information and directions shall be tried, shall, according to their or his discretion, on the matter in issue as in give their or his opinion and directions to the jury on other criminal
the matter in issue between the king and the defendant
or defendants, in like manner as in other criminal cases. Jury may find
3. Provided also, that nothing herein contained shall a special
extend or be construed to extend to prevent the jury from finding a special verdict, in their discretion, as in other
criminal cases. [Page 66, supra.] Defendants
4. Provided also, that in case the jury shall find the may move in arrest of defendant or defendants guilty, it shall and may be lawful judgment, as for the said defendant or defendants to move in arrest of before passing this Act. judgment on such ground and in such manner as by law
he or they might have done before the passing of this Act; anything herein contained to the contrary notwithstanding
39 GEO. III. c. 79.
Not to extend 28. Nothing in this Act contained shall extend, or be to papers printed by
construed to extend, to any papers printed by the authoauthority of rity and for the use of either House of Parliament. Printers to 29. Every person who shall print any paper for hire, keep a copy
reward, gain or profit, shall carefully preserve and keep of every paper they print, one copy (at least) of every paper so printed by him or and write
her, on which he or she shall write, or cause to be written thereon the name and
or printed, in fair and legible characters, the name and abode of their employer.
place of abode of the person or persons by whom he or she shall be employed to print the same, and every person printing any paper for hire, reward, gain or profit, who shall omit or neglect to write, or cause to be written or
201. for neg
printed as aforesaid, the name and place of abode of his or Penalty of her employer on one of such printed papers, or to keep or lect or represerve the same for the space of six calendar months fusing to next after the printing thereof, or to produce and show
copy within the same to any justice of the peace, who, within the said six months. space of six calendar months, shall require to see the same, shall for every such omission, neglect, or refusal, forfeit and lose the sum of twenty pounds. (Page 5, supra.)
31. Nothing herein contained shall extend to the im- Not to extend pression of any engraving, or to the printing by letter- to impressions
of engravings, press of the name, or the name and address, or business or or the printprofession, of any person, and the articles in which he ing names deals, or to any papers for the sale of estates or goods by auction or otherwise.
34. No person shall be prosecuted or sued for any Prosecutions penalty imposed by this Act, unless such prosecution shall to be com:
menced within be commenced, or such action shall be brought, within three months
after penalt three calendar months next after such penalty shall have is incurred. been incurred.
35. And any pecuniary penalty imposed by this Act, Recovery of and not exceeding the sum of twenty pounds, shall and penalties. may be recovered before any justice or justices of the peace for the county, stewartry, riding, division, city, town, or place in which the same shall be incurred, or the person having incurred the same shall happen to be, in a summary way.
36. All pecuniary penalties herein before imposed by Application this Act shall, when recovered in a summary way before of penalties. any justice (a), be applied and disposed of in manner hereinafter mentioned; that is to say, one moiety thereof to the informer before any justice, and the other moiety thereof to his Majesty, his heirs and successors (6).
(a) See 9 & 10 Vict. c. 33, s. 1, at p. 89, infra.
(6) The above sections are re-enacted by the 32 & 33 Vict. c. 24, Sched. II.