PART IV. such witnesses as shall, in the opinion of the justices, give CHAPTER XL evidence in any way material to the case, or tending to prove the innocence of the accused, shall be bound by recognisance to appear and give evidence at the trial. Advantages of going into evidence for defence. Bail. Requiring sureties for good behaviour. There are several advantages gained by going into evidence before the magistrate, supposing there to be a legitimate defence. The witnesses are bound over to appear at the trial; and, their evidence having been taken down in the same way as the evidence for the prosecution, there is no danger of their being tampered with in the meantime. In case of their death before, or serious illness at the time of, the trial, their depositions may be put in evidence, and, if they appear at the trial, the judge has power to allow their expenses, which could not be done unless they had been bound over. If the justices decide to send the case to trial, the defendant is entitled, as a matter of right, to be bailed; as at common law every misdemeanour is bailable, and libel is not one of those which have been excepted by statute. (a) The bail demanded must be reasonable; and the only question the justices have to determine is, the sufficiency of the sureties they cannot enter into any investigation of the character or opinions of the sureties.(b) Besides the power of demanding bail from the accused, to answer an indictment for libel, justices have claimed the right to determine themselves whether the defendant has been guilty of publishing a libel; and, instead of sending him to trial, to require sureties of good behaviour, and in default to commit him to prison. Lord Camden, in the case of Rex v. Wilkes, (c) strenuously denied that a libeller could be bound to find surety of the peace, saying there was only one authority for the proposition" the case of the seven bishops, where three judges said that surety of the peace was required in the case of libel; Judge Powell, the only honest man of the four judges, dissented; and I am bold to be of his opinion, and to say that the case is not law. Upon the whole, it is absurd to require surety of the peace in the case of a libeller." In Butt v. Conant, (d) the authority of this statement was denied, Park, J., being very wroth with Lord Camden for his "denunciation of dishonesty against men who, from no other part of their lives, nor from anything appearing in the particular case, deserved such a stigma:" but the only point decided in Butt v. Conant was, that a justice of the peace has power to issue his warrant for the arrest of a (a) 11 & 12 Vict. c. 42, s. 23. (c) 2 Wils. 151. (b) Reg. v. Badger (4 Q. B. 472). (d) 1 B. & B. 548. person charged with having published a libel, and, in default of bail, to commit him for trial. There is, however, one, and only one, direct modern authority in support of the doctrine that justices of the peace may demand sureties of good behaviour from persons whom they may adjudge guilty of defamatory libels. Haylock v. Sparke, (a) the case which evoked this decision, was an action of trespass brought against the late Chancellor of the Diocese of Ely, who was justice of the peace for the Isle of Ely. Upon the plaintiff being brought before him, charged with having written on the pavement "Donkey Watt, the Railway Jackass," referring to a Mr. Watt, the master of the railway station at Ely, the justice ordered him to find two sureties, and to enter into his recognisance to keep the peace for three months, and, upon his refusing to do so, committed him to gaol. The warrant was signed on the 30th of April, 1852, and on the 6th of May, the plaintiff was brought up on habeas corpus before Coleridge, J., and discharged. The warrant was afterwards brought up by certiorari and quashed, and this action was then commenced; the defendant pleading not guilty (by statute). On the trial before Pollock, C.B., among other points which were taken for the defendant, it was argued that he had acted within his jurisdiction, and, the declaration not being in case, and not averring malice, that the action failed under stat. 11 & 12 Vict. c. 44, s. 13. The learned Chief Baron held that there was no jurisdiction, but directed a verdict for the defendant, on the ground that the notice of action required by the statute ought to have been given after the warrant was quashed. The Court of Queen's Bench held that the notice was properly given, but that a justice of the peace has jurisdiction to require sureties for good behaviour in some cases of libel against private individuals; and that, if that were true, the defendant had jurisdiction in the matter out of which the action arose; and, though the proceedings were informal, and there was, in the opinion of the court, a great want of discretion in requiring sureties upon such an occasion, the action would not lie. We are not aware that since this case there has been another instance of an alleged libeller being required to find sureties for good behaviour; and it by no means follows, because the court has decided that justices of the peace have a bare jurisdiction, and that, to support an action against them for its indiscreet exercise, malice must be alleged and proved, that the judges would not find reasons (a) 1 E. & B. 471. L L PART IV. CHAPTER XI. PART IV. to reverse their judgment. Be that as it may, the power has CHAPTER XL only to be brought into use to be abolished, either by the Legislature or by the force of public opinion, as it would never be tolerated that in a matter so essentially concerning the liberty of the subject, magistrates should usurp the functions of the jury, and establish a new censorship of the press. Obscene publications. Indictment need not be preferred libeller. The powers given to stipendiary magistrates and to any two justices of the peace by the Act, "for more effectually preventing the sale of obscene books, pictures, prints, and other articles," have been sufficiently pointed out, ante, p. 314-318. III. INDICTMENTS. In the last section it was observed that the power of before arrest of justices of the peace to commit for trial on a charge of publishing a libel had been disputed in the case of Butt v. Conant. (a) It was there contended by Vaughan, Sergt., in a very instructive argument, that the law required an indictment to be found before the justices of the peace could cause the accused to be apprehended. It has been pointed out that this contention did not prevail with the court, and that a modern statute had removed all doubt upon the point. Preferring indictment before grand jury direct. Jurisdiction of Quarter Sessions. Venue. Originally, when it was desired to indict a libeller, the prosecutor went directly before the grand jury and preferred a bill, without the intervention of the magistrates; and that course of procedure may be, and still is, frequently adopted, as the offence of libel is not included in the Vexatious Indictment Act. (b) In the present section we propose to deal with the points which it is necessary to keep in mind in drawing an indictment or criminal information for libel. An indictment for composing, printing, or publishing blasphemous, seditious, or defamatory libels cannot be tried at sessions; (c) but obscene libels are within their jurisdiction. The bill must be preferred in the county where the publication, which is relied on, was made; but it often happens that the defendant has, by one act, published the libel in two counties. Thus, in Rex v. Burdett, (d) the Court (Bayley, J., dubitante) held that posting a sealed letter was a publication in the county where the post-office was situate, and that (a) 1 B. & B. 548. See ante, p. 511. (b) 22 & 23 Vict. c. 17. PART IV. where a defendant writes a letter in one county with the intent to publish it in another, and does afterwards publish CHAPTER XI. it there, he may be indicted in either county. The most convenient course is to lay the indictment in the county where the libel was made manifest, or "published" in the popular sense of that word. (a) The indictment must charge that the defendant "did Indictment publish;" as merely writing a libel is not a misde- "publication." meanor. (b) must charge The libel itself must be accurately set out, either by tran- How libel may scribing it verbatim or by setting out the particular words be set out. complained of; and if there are several libellous passages in different parts of the writing, they should be set out in the following manner: "In a certain part of which said libel there was and is contained," &c., " and in a certain other part of the said libel there was and is contained," &c.(c) language. If the words complained of are in a foreign language, they Libel in foreign must be set out in the original, with a correct translation. (d) A mistranslation may vitiate the indictment. (e) charge publica person libelled. The indictment should charge the libel to have been written Indictment must and published "of and concerning" the person libelled. tion "of and In the case of Rex v. Marsden (f) the omission of those concerning words was held fatal, upon the ground that, without them, it did not conclusively appear that no other person than the prosecutor could have been intended, although it was averred that the defendant intended to vilify the prosecutor, he having been Mayor of Colchester, and to cause it to be believed that he, "as such mayor," had practised corruption, and been guilty of abuse in respect to granting a licence to one J. L. to retail beer; and although innuendos pointed the different parts of the libel to the prosecutor, and to the granting of the licence. The indictment must contain averments of any facts Innuendoes. which are necessary to connect it with the prosecutor or the subject of the libel. An innuendo means nothing more than the words “id est," "videlicet," or "meaning," or " aforesaid," as explanatory of a subject-matter sufficiently expressed before; as-" such a one," meaning the defendants, or "such a subject," meaning the subject in question. (a) As to the venue in the case of indictments preferred at the Central Criminal Court, see 4 & 5 Will. 4, c. 36, s. 3; and Reg. v. Gregory (7 Q. B. 274; 14 L. J. 82, M. C.). (c) 1 Camp. 353. (b) Reg. v. Burdett (4 B. & Ald. 95). PART IV. Inasmuch as an innuendo is only used as a word of explaCHAPTER XI. nation, it cannot extend the sense of the expressions in the libel beyond their own meaning, unless something is put on the record for it to explain. Where innuendo is unnecessary. Innuendo bad repugnant to Thus, in an action upon the case against a man for saying of another, "He has burnt my barn," the plaintiff cannot there, by way of innuendo, say, "meaning his barn full of corn, " because that is not an explanation of what was said before, but an addition to it. But if, in the introduction, it had been averred that the defendant had a barn full of corn, and that, in a discourse about that barn, the defendant had spoken the words charged in the libel of the plaintiff, an innuendo of its being the barn full of corn would have been good, says De Grey, C.J., delivering the unanimous opinion of all the judges to the House of Lords in the case of Rex v. Horne. (a) Where the writing itself imports a libel no innuendo is necessary. Thus, where it was contended that the words "Frozen Snake" could not be deemed libellous unless shown to be so by an innuendo, Coleridge, J., said: "As to the necessity of an innuendo, the jury and court, in such a case as this, are in an odd predicament if they alone, of all persons, are not to understand the allusion complained of. Suppose the libel had said the plaintiff acted like a Judas, must the history of Judas have been given, and referred to by innuendo? We ought to attribute to a court and jury an acquaintance with ordinary terms and allusions, whether historical, or figurative, or parabolical." (b) If an innuendo is bad, and on the face of it repugnant words of libel to the words of the libel, it may be rejected as surplusage, and, if the words are libellous in themselves, the indictment remains good; (c) but if the words are capable of two senses, and the innuendo ascribes one meaning to them, and is good on the face of it, then it cannot be rejected, but must be proved. (d) Removal of indictment by certiorari. The indictment is frequently removed by certiorari into (a) Cowp. 682. See also the case of Rex v. Burdett (4 B. & Ald. $16). Abbott, C.J., says, with reference to the above-cited language of De Grey, C.J.: "The judgment of which the above is part has universaly been considered the best and most perfect exposition of the law upo this subject." (b) Hoare v. Silverlock (12 Q. B. 633); see Harvey v. French (2 Tyr 585; 1 C. & M. 11). (c) Harvey v. French (1 C. & M. 11; 2 Tyr. 585). Barrett v. Long (3 H. L. Cas. 413). (d) Williams v. Stott (3 Tyr. 688; 1 C. M. 675). |