PART IV. or of the Clerk of the same House, stating that the report, paper, votes, or proceedings, as the case may be, in respect CHAPTER X. whereof such civil or criminal proceeding shall have been commenced or prosecuted, was published by such person or persons, or by his, her, or their servant or servants, by order or under the authority of the House of Lords, or of the House of Commons, as the case may be, together with an affidavit verifying such certificate; and such court or judge shall thereupon immediately stay such civil or criminal proceeding, and the same, and every writ or process issued therein, shall be, and shall be deemed and taken to be, finally put an end to, determined, and superseded by virtue of this Act." of copies of As to the publication of copies of reports or other papers, Publication sect. 2 enacts "that in case of any civil or criminal pro- reports, &c. ceeding hereafter to be commenced or prosecuted for, or on account or in respect of, the publication of any copy of such report, paper, votes, or proceedings, it shall be lawful for the defendant or defendants, at any stage of the proceedings, to lay before the court or judge such report, paper, votes, or proceedings, and such copy, with an affidavit verifying such report, paper, votes, or proceedings, and the correctness of such copy; and the court or judge shall immediately stay such civil or criminal proceeding, and the same, and every writ or process issued therein, shall be, and shall be deemed and taken to be, finally put an end to, determined, and superseded by virtue of this Act." extracts or As to the publication of abstracts of any such papers, or Publication of extracts from them, sect. 3 provides, "that it shall be lawful, abstracts. in any civil or criminal proceeding, to be commenced or prosecuted for printing any extract from or abstract of such report, paper, votes, or proceedings, to give in evidence under the general issue, such report, paper, votes, or proceedings, and to show that such extract or abstract was published bona fide, and without malice; and, if such shall be the opinion of the jury, a verdict of not guilty shall be entered for the defendant or defendants." Sect. 4 adds, "that nothing contained in the Act is to be deemed, or taken, or held, or construed, directly or indirectly, by implication or otherwise, to affect the privileges of Parliament in any manner whatsoever." The object of giving twenty-four hours' notice, to the object of plaintiff or prosecutor, (a) of the intention to bring the notice. certificate before the court, is not quite clear. It is doubtful whether it gives the plaintiff or prosecutor a right (a) Sect. 1. K K PART IV. CHAPTER X. Older cases. to show cause, and may have been prescribed only to enable him to avoid incurring more costs. (a) The only reported case on this Act is that of Stockdale v. Hansard, (b) where proceedings were stayed upon a certificate of the Speaker of the House of Commons, verified by affidavit, that the publication mentioned in the declaration (a description of which it gave) and in respect of which the action was brought, was published by order and under the authority of the House of Commons. The declaration was verified by affidavit, and appeared to be for the publication of an alleged libel, the description of which corresponded with that in the Speaker's certificate. In 1686, (c) an information having been filed against Sir William Williams, for publishing a libel called "Dangerfield's Narrative," the defendant pleaded that he was at the time of publication (d) Speaker of the House of Commons, and as such had a right to publish the votes and acts of the House, and that the "Narrative" in question was printed and published as parcel of the proceedings; but the court called the plea an idle, insignificant one, and gave judgment for the King, inflicting a fine of 10,000l. on the defendant; the Lord Chief Justice (Wright) asking the defendants' counsel whether an order of the House of Commons could justify a scandalous, infamous, and flagitious libel.(e) This case of Sir William Williams happened, as observed by Lord Kenyon, C.J.,(f) in the worst of times, and the publication was a paper of a private individual published by another individual, under pretence of sanction of the House of Commons. Gross, J., said of the same case (g) that it was declared by a great authority to be a disgrace to the country. In 1799 a criminal information was refused against a bookseller for printing a report of the Committee of Secrecy of the House of Commons, though it reflected on the character of an individual, (h) Lord Kenyon, C.J., observing that as the publication was a true copy of the report, there was not the least pretence for the motion. His Lordship said further: "This is an application for leave to file a criminal information against the defendant for publishing a (a) Per Lord Denman, C.J., Stockdale v. Hansard (11 A. & E. 299). (d) He was not Speaker at the time the case was adjudged. (g) Id. 297. : libel; so that the application supposes that this publication is a libel. But the inquiry made by the House of Commons was an inquisition taken by one branch of the Legislature to enable them to proceed further, and adopt some regulations for the better government of the country this report was first made by a committee of the House of Commons, then approved by the House at large, and then communicated to the other House, and it is now sub judice; and yet it is said that this is a libel on the prosecutor. It is impossible for us to admit that the proceedings of either of the Houses of Parliament is a libel." "Though the defendant," said Lawrence, J., (b) "was not authorised by the House of Commons to publish the report in question, yet, as he only published a true copy of it, I am of opinion that the rule ought to be discharged." PART IV. CHAPTER X. CHAPTER XI. CRIMINAL PROSECUTIONS FOR LIBEL HAVING Considered what constitutes a libel, we have now to inquire how the law against libels is put into motion; what evidence is necessary to prove the charge of publishing a libel; by what means the accused may defend himself; and what penalties are incurred by the guilty. The liabilities of a publisher of a libel are twofold: he is Twofold liable to a criminal prosecution and to a civil action. The present chapter will be devoted to the criminal branch of the subject. liability of publisher. Every publication of a libel, be it on the Christian religion, Criminal on morality, on the Crown, on the Government, on the prosecution. administration of justice, or on a private person, is a criminal offence; and it may be broadly laid down that wherever an action would lie, there an indictment would lie also. But the converse of this proposition is not strictly accurate; for no individual has a right of action against another for publishing a blasphemous, obscene, or seditious libel, unless it contain something reflecting on himself. Again, a libel on a dead man may, (b) under certain circumstances, be indictable, as tending to excite to a breach of the peace, but in no case would an action lie for such a libel, for Actio personalis moritur cum personâ. (a) 8 T. R. 293. (b) Vide ante, pp. 419, 420. PART IV. The criminal law may be set in motion by the AttorneyCHAPTER XL General filing an ex officio information; by an application to the Court of Queen's Bench to order the master of the Crown Office to file an information; by summoning the libeller before a magistrate; or by going direct to the grand jury at the assizes or Central Criminal Court. Various methods of criminal prosecution. Ex oficio information by AttorneyGeneral. In what cases ex officio information granted. The offence is not triable at sessions. We purpose to deal, in the first place, with criminal informations. I. CRIMINAL INFORMATIONS. The Attorney-General has, at common law, the right to file a criminal information for any misdemeanor. (a) This right has several times been attacked in Parliament without success. The House of Commons agreed in 1688, on the recommendation of a committee, that a clause should be inserted in the Bill of Rights abolishing informations in the Court of King's Bench; but it would seem that the House of Lords objected to it. (b) On the 27th of November, 1770, a motion made by Mr. Phipps, in effect to take away the power of the Attorney-General to file criminal informations, was rejected by 164 against 72 votes. (c) And again in 1812, Lord Holland, in the House of Lords, moved the second reading of a Bill having the same object in view. (d) The debates on these occasions are well worthy of attention, showing the strong arguments used by men like Burke, Dunning, Lords Erskine, Holland, and Stanhope, against || this extraordinary prerogative in cases of libel. The Attorney-General exercises this right on his own responsibility, as the Court will never grant an information upon his application, in cases prosecuted by the Crown. (e) He may, if he thinks proper, summon the parties before him to show cause why the information should not be exhibited, before he signs it. (f) his The only libels against which the Attorney-General uses power are those which we have elsewhere termed public, such as blasphemous, seditious, or obscene publications, or libels reflecting on persons exercising public functions. The last instance of such a prosecution, which, after a careful search, we have been able to find, occurred so far back as 1830, when the Attorney-General, Sir James Scarlett, filed three informations against the proprietors and printer of the (a) See Prynn's case (5 Mod. Rep. 459); Show. 106. (b) 13 St. Tr. 1370. (d) 23 Parl. Debates, 1070. (c) 16 Parl. Hist. 1175. (e) Rex v. Phillips and others (3 Burr. 1565 and 4 Burr. 2090). Ib. PART IV. Morning Journal for libels on the King, the House of Commons, the Lord Chancellor, and the Duke of Wellington. CHAPTER XL. These prosecutions were received with universal dislike by all parties in the country. (a) The Solicitor-General, during the vacancy of the office of Attorney-General, may file an ex officio information, and the record need not aver the vacancy.(b) The Attorney-General, if he find the information defective, Nolle prosequi. may enter a nolle prosequi, and prefer a new charge; therefore the court refuses to quash an information, on his motion. (c) defendant. by Before the stat. 60 Geo. 3 & 1 Geo. 4, c. 4, the Attorney- Bringing on of General might keep the information hanging over the head informat of the unfortunate defendant as long as he pleased, but by the ninth section of that statute it is enacted: "That in case any prosecution for a misdemeanour, instituted by the Attorney or Solicitor General, shall not be brought to trial within twelve calendar months next after the plea of not guilty shall have been pleaded therein, it shall be lawful for the court in which such prosecution shall be depending, upon application to be made on the behalf of any defendant in such prosecution, of which application twenty days previous notice shall have been given to the Attorney or Solicitor General, to make an order, if the said court shall see just cause so to do, authorising such defendant to bring on the trial in such prosecution; and it shall thereupon be lawful for such defendant to bring on such trial accordingly, unless a nolle prosequi shall have been entered in such prosecution." of information to defendant. By the same statute (sect. 8) the court are, if required, to Delivery of copy order a copy of the information to be delivered, after appearance, to the defendant or his attorney or clerk, in court, free of expense, provided no copy has previously been given. ex officio The trial is generally at the Nisi Prius sittings of the Trial of Queen's Bench, and is conducted in the same way as an information. indictment for a misdemeanour at the assizes; but the Attorney-General may demand a trial at Bar if he prefers it.(d) General's The Attorney-General is entitled to reply although the Attorneydefendant call no witnesses. This privilege was strongly right to reply. opposed by Horne on his trial for libel, (e) but without effect. (a) 72 Annual Reg. 4. (b) Rex v. Wilkes (4 Burr. 2577, and in error 4 Brown's P. C. 360). (c) Rex v. Stratton (Doug. 240). (e) See 20 How. St. Tr. 660; Cowp. 672. (d) 1 Str. 644. |