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12. challenges

to fight, verbal and written;

13. libels which are equally punishable, whether true or false;

1 Edw. VI. c. 12, which was repealed in the reign of queen' Mary. And now by the statute 5 Eliz. c. 15, the penalty for the first offence is a fine of ten pounds and one year's imprisonment; for the second, forfeiture of all goods and chattels, and imprisonment during life.

12. Besides actual breaches of the peace, any thing that tends to provoke or excite others to break it, is an offence of the same denomination. Therefore challenges to fight, either by word or letter, or to be the bearer of such challenge, are punishable by fine and imprisonment, according to the circumstances of the offence (r). If this challenge arises on account of any money won at gaming, or if any assault or affray happen upon such account, the offender, by statute 9 Ann. c. 14, shall forfeit all his goods to the crown, and suffer two years' imprisonment (14).

13. Of a nature very similar to challenges are libels, libelli famosi, which, taken in their largest and most extensive sense, signify any writings, pictures, or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule (s) (15). The direct tendency of these

(r) 1 Hawk. P. C. 135, 138.

(s) I Hawk. P. C. 193.

(14) An endeavour to provoke another to commit the misdemeanor of sending a challenge to fight, is itself an indictable misdemeanor; Rex v. Philipps, 6 East, 464; 2 Smith, 550. By 9 Geo. IV. c. 31, § 1, " so much of 9 Ann. c. 14, as relates to the forfeiture and punishment of any person assaulting and beating, or challenging or provoking to fight, any other person on account of any money won as therein mentioned," is repealed. As to assaults, generally, see post, 216, 217; 9 Geo. IV. c. 31, § 24 to 27.

(15) See 1 Hawk. P. C. 193; 5 Co. Rep. 125; 1 Salk. 418; 1 Ld. Raym. 416; 4 T. R. 126. On an information for falsely and maliciously

publishing a libel of and concerning the king, by giving it out that his majesty was afflicted with mental derangement, a verdict of guilty having passed against the defendants, it was resolved, 1st. That to assert falsely of his majesty, or of any individual, that he labours under the affliction of mental derangement, is a criminal act, and a malicious intention may be inferred from the mere fact of publication, unless evidence is given by the defendant to rebut such inference; 2d. That such an assertion concerning the king, being in itself mischievous to the public, is an indictable offence, without any allegation or direct proof of a malicious intention; 3d. That where the

libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed. The communication of a libel to any one person is a publication. in the eye of the law (t) (16): and therefore the sending an abusive private letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace (u) (17). For the same reason it is immaterial with

(t) Moor, 813.

(u) 2 Brownl. 151; 12 Rep. 35;

Hob. 215; Poph. 139; 1 Hawk. P. C. 195.

jury desired to know, "Whether, in order to convict a defendant for the publication of a libel, a malicious intention must not have existed in his mind," they were correctly answered by the judge, who told them, that "a person who publishes that which is calumnious concerning the character of another, must be presumed to have intended to do that which the publication is necessarily and obviously calculated to effect, unless he can shew the contrary, and the onus of proving the contrary lies upon him; and 4th. That where the publisher of a libel states, that the fact which he communicates is "from authority," and it turns out that the fact is untrue, he is guilty of a false assertion in the criminal sense of the word; Rex v. Harvey, 3 D. & R. 464; 2 B. & C. 257. The court of King's Bench granted a criminal information against the publisher of a newspaper, for a libel reflecting upon the clergy of a particular diocese, and upon the clergy of the church of England generally, though no individual prosecutor was named, and though the libellous matter was not negatived on affidavit; Rex v. Williams, 1 D. & R. 197; 5 B. & A. 593. Lord Ellenborough, in the King v. Cobbett, expressed himself in these words, (as to exposing persons by signs or pictures,) "No man has a right to render the person or abilities of another ridiculous, not only in publications, but if the peace and welfare of individuals, or of society, be interrupted, or even exposed,

by types and figures, the act, by the law of England, is a libel;" E. T. K. B. 1804.

The court of Common Pleas have decided, "That a justice of the peace has authority to grant a warrant to arrest a person charged with the publication of a libel, and upon the person neglecting to find sureties, may commit him to prison, there to continue till delivered by due course of law; Butt v. Conant, 4 Moore, 195; 1 B. & B. 548.

The court of King's Bench in a recent case have held, that the editor of a newspaper is not by law entitled to publish ex parte statements of a defamatory nature against an individual, although the publication may be a fair account of proceedings before a police magistrate; a police-office not being as matter of right an open court. Quære, whether such a publication would be justifiable, even when the proceedings took place in an open court? Duncan v. Thwaites, 5 D. & R. 447; 3 B. & C. 556. In support of the decision there laid down, that a police-office, or a magistrate's room, is not an open court, see Cox v. Coleridge, 2 D. & R. 86; 1 B. & C. 37.

(16) Delivering a libel, scaled, în one county, for the purpose of its being opened and published by a third person in another county, is a publication; Rex v. Burdett, 4 B. & A. 95.

(17) But such a publication will not support an action; Hob. 215; 2 Esp. 625; Sel. N. P. 939. See 38 Geo. III. c. 78; see, also, Holt, George, and

respect to the essence of a libel, whether the matter of it be true or false (v); since the provocation, and not the falsity, is the thing to be punished criminally: though, doubtless, the falsehood of it may aggravate its guilt, and enhance its punishment (18). In a civil action, we may remember, a libel must appear to be false, as well as scandalous (w): for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, [*151] whatever offence it may be against the public peace and therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But, in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the whole that the law considers. And therefore, in such prosecutions, the only points to be inquired into are, first, the making or publishing of the book or writing; and, secondly, whether the matter

(v) Moor, 627; 5 Rep. 125;
11 Mod. 99.

(w) See vol. III. p. 125.

Mence, on Libel, 1 Russell, 3 Burn, and the other text writers, with the authorities by them collected, on this subject. It had been intended to have glanced here at the leading decisions upon this intricate branch of our criminal law, but they are so very numerous, and have given rise to so many nice and subtle distinctions, that it has been found quite impossible to embody them within the proper limits of a note, with any chance of rendering it useful or even intelligible to the student. For the rules of evidence applicable to libels, see Starkie, Phillipps, and Roscoe, on evidence. following decision upon this subject seems worthy of mention: The defendant had been convicted of publishing a libel, imputing perjury to the prosecutor. Upon his being brought up for judgment, it was proposed, in mitigation of punishment, to read his own affidavit, and those of several other persons, setting forth facts and circumstances, and containing statements which amounted to an asser

The

tion of the truth of the original libel. But the court refused to receive such affidavits. They said the utmost latitude that ever had been, or ought to be allowed to a defendant in such cases, was to read his own affidavit, stating that, at the time when he published the libel, he had reasons for believing, and did believe, the contents of it to be true; that to go the length proposed, would be to allow the defendant to charge the prosecutor with perjury, and in effect to compel the court to try him for that offence upon affidavits ; and that the adoption of such a course would place the prosecutor in a degree of peril and hardship, and would militate against the substantial principles of justice; Rex v. Halpin, 4 M. & R. 8; 9 B. & C. 65.

(18) The words of Lord Mansfield, "the greater truth, the greater libel;" which his enemies wished with much eagerness to convert to the prejudice of that noble peer's reputation as a judge, were founded in principle and supported by very ancient authority.

be criminal and, if both these points are against the defendant, the offence against the public is complete. The punishment of such libellers, for either making, repeating, printing, or publishing the libel, is fine, and such corporal punishment as the court in its discretion shall inflict; regarding the quantity of the offence, and the quality of the offender (x) (19). By the law of the twelve tables at Rome, libels, which affected the reputation of another, were made a capital offence: but, before the reign of Augustus, the (x) 1 Hawk. P. C. 196.

Lord Coke has said, "that the greater appearance there is of truth in any malicious invective, so much the more provoking it is;" 5 Co. 125.

Where truth is a greater provocation than falsehood, and therefore has a greater tendency to produce a breach of the public peace, then it is certainly true that the greater truth, the greater libel. Asperis facetiis inlusus, quæ ubi multum ex vero traxere, acrem sui memoriam relinquunt; TAC. Ann. 15, c. 68. -CH.

(19) Though it has been held, at least for these two centuries, that the truth of a libel is no justification in a criminal prosecution, yet in many instances it is considered an extenuation of the offence; and the court of King's Bench has laid down this general rule, viz. that it will not grant an information for a libel, unless the prosecutor, who applies for it, makes an affidavit, asserting, directly and pointedly, that he is innocent of the charge imputed to him. But this rule may be dispensed with, if the person libelled resides abroad, or if the imputations of the libel are general and indefinite, or if it is a charge against the prosecutor for language which he has held in parliament; Doug. 271, 372.

It had frequently been determined by the court of King's Bench, that the

only questions for the consideration of the jury, in criminal prosecutions for libels, were the fact of publication, and the truth of the innuendoes, that is, the truth of the meaning and sense of the passages of the libel, as stated and averred on the record, and that the judge or court alone were competent to determine whether the subject of the publication was or was not a libel. See the case of the Dean of St. Asaph, 3 T. R. 428. But the legality of this doctrine having been much controverted, the 32 Geo. III. c. 60, was passed, intituled An Act to remove doubts respecting the functions of juries in cases of libels. And it declares and enacts, that on every trial of an indictment or information for a libel, the jury may give a general verdict of guilty, or not guilty, upon the whole matter in issue, and shall not be required or directed by the judge to find the defendant guilty, merely on the proof of the publication of the paper charged to be a libel, and of the sense ascribed to it by the record. But the statute provides, that the judge may give his opinion to the jury respecting the matter in issue, and the jury may at their discretion, as in other cases, find a special verdict, and the defendant, if convicted, may move the court, as before the statute, in arrest of judgment.

This rule has been held not to extend to the queen consort.

punishment, became corporal only (y). Under the emperor Valentinian (2) it was again made capital, not only to write, but to publish, or even to omit destroying them. Our law, in this and many other respects, corresponds rather with

(y)

Quinetiam lex

Panaque lata, malo que nollet carmine quenquam
Describi :-vertere modum formidine fustis.
(z) Cod. 9, 36.

HOR. ad Aug. 152.

A person may be punished for a libel reflecting on the memory and character of the dead, but it must be alleged, and proved to the satisfaction of the jury, that the author intended by the publication to bring dishonour and contempt on the relations and descendants of the deceased; 4 T. R. 126.

It is not a libel to publish a correct copy of the reports or resolutions of the two houses of parliament, or a true account of the proceedings of a court of justice. "For though," as Mr. Justice Lawrence has well observed, "the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public, more than counterbalances the inconveniences to the private persons, whose conduct may be the subject of such proceedings;" Rex v. Wright, 8 T. R. 293.

But this will not apply to the publication of part of a trial, before it is finally concluded; for that might enable the friends of the parties to pervert the justice of the court by the fabrication of evidence, and other impure practices.

Nor ought it to extend to the publication of trials, where indecent evidence must from necessity be introduced; for it would be in vain to turn women and children out of court, if they are afterwards permitted to read what has passed in their absence.

Lord Hardwicke has declared that any publication, which shall prejudice

the world with regard to the merits of a cause before it is heard, is a contempt of the court, in which the cause is pending; and he committed, upon a summary motion only, the parties who had been guilty of such a publication; 2 Atk. 472.

The reason must be much stronger for suppressing partial and premature publications upon subjects, which may be tried by a jury.

The sale of the libel by a servant in a shop, is prima facie evidence of publication in a prosecution against the master, and is sufficient for conviction, unless contradicted by contrary evidence, shewing that he was not privy, nor in any degree assenting to it; Ibid. & 5 Burr. 2686.

When a person is brought up to receive judgment for a libel, his conduct, subsequent to his conviction, may be taken into consideration, either by way of aggravation or mitigation of the punishment; 3 T. R. 432. And when Johnson the bookseller was brought up for judgment for having published a seditious libel, the attorney-general produced an affidavit that the defendant after his conviction had published the same libel in the Analytical Review; M. T. 1798.

An information or an indictment need not state that the libel is false, or that the offence was committed by force and arms; 7 T. R. 4.

Hanging up, or burning, an effigy with intent to expose some particular person to ridicule and contempt, is an offence of the same nature as a libel, and has frequently been punished with great but proper severity.-CH.

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