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But it appears to be the better opinion that such post-marks, whether in town or country, proved to be such, are evidence that the letters on which they exist were in the offices to which the postmarks belong at the dates thereby specified.(z) But a mark of double postage having been paid on such letter is not of itself sufficient evidence that the letter contained an enclosure.(a) If a libellous letter is sent by the post, addressed to a party at a place out of the county in which the venue is laid in an indictment for the libel, yet, if it were first received by him within that county, it is a sufficient publication to support the indictment. (x) Owning the signature to a libel is no evidence in what county it was signed. This was held in the celebrated case of the Seven Bishops : but additional evidence being afterwards given that the Bishops applied to the lord president of the council about delivering a petition to the King, and that they were admitted to the King for that purpose in Middlesex, the case was left to the jury. (i) It has been held to be sufficient to prove a defendant to have published a libel without proving him to have composed it, upon a count in an information charging him with having composed, printed, and published” it.(y) So if the defendant is charged by a count in an indictment with having “ composed, printed, and published” a libel, if the evidence be that he only composed and published it, he may be found guilty of the composing and publishing, and acquitted of the printing. (2) Or he may be found guilty of the printing only, upon an indictment for printing and publishing, if the evidence shews him to have assisted in the printing, and to have had nothing to do with the publishing. (h)
If the libel be in a foreign language, as it is necessary that it should be set forth in the indictment in the original language, and also in an English translation, it will be necessary to prove the translation to be correct. Thus upon the trial of an information
(2) Rex v Plumer, Hil. T. 1814. the letters read; and the letters themMS. Bayley, J., and Russ. & Ry. 264. selves containing expressions of the Rex v. Johnson, 7 East. 65 Stark. writer, indicative of his having sent Evid. Pt. IV. p. 853., and Fletcher v. them to the publisher of the register Braddyll, Stark. Evid. App. Io p. 853. in Middlesex for the purpose of pub
(a) Rex v. Plumer, anle, note (z). lication, the whole was evidence suffiSome person who paid or received the cient for the jury to find a publication postage should be called.
by the procurement of the defendant (5) Rex v. Watson, 1 Campb. 215.; in Middlesex. and see Rex v. Middleton, i Str 77. (ii Case of the Seven Bishops, 12 St. In the case of Rex v. Johnson, 7 East. Tri. 183. 65., it was held, where the publisher (y) Rex v. Hunt and another, 2 of a public register received an anony- Campb. 583. mous letter, tendering, certain politi- (z) Rex v. Williams, 2 Campb. 646, cal information on Irish affairs, and Lawrence, J. said, " There is certainly requiring to know to whom letters “no proof that the defendant printed should be directed, to which an an- “the libel in que tion ; but he may be swer was returned in the register, after “acquitted of the printing, and found which he received two letters in the guilty of the composing and publishsame hand-writing directed as men- “ing. Bis delivering the libel in his tioned, and having the Irish post-mark“ own hand-writing to the printer is on the envelopes, which two letters “abundant evidence of the latter ofwere proved to be in the hand-writing “ fence.” A verdict was accordingly of the defendant, the previous letter found and recorded of “Guilly, exhaving been destroyed, that this was a cept as to printing the libel." sufficient ground for the court to have (h) Rex v. Kuell, i Barnard. 303, VOL. I.
are not evi
against the defendant for a libel in the French language on Napoleon Buonaparte, after a witness had proved the purchase of some copies of the book from a certain bookseller, and the bookseller had proved that the defendant was the publisher and had employed him to dispose of the copies on his account, and that he had accounted for them; an interpreter was called, who swore that he understood the French language, and that the translation was correct. The interpreter then read the whole of that which was charged to be a libel in the original; and then the translation was
read by the clerk at Nisi Prius.(a) Depositions Depositions taken before a magistrate are not evidence upon a
trial for a libel; the statute 1 and 2 P. and M. c. 13. and 2 and 3 dence : but a
Ph. and M. c. 10. by which such depositions are made evidence, Gazette, the king's procla- extending only to cases of felony. (b) It has been held that á mation, and a Gazette is evidence to prove an averment in an information for a an act of par. libel, “ that divers addresses, &c. had been presented to his Maliament, are jesty by divers of his loving subjects.” (c) In a recent case, the evidence for
king's proclamation, reciting that it had been represented that certain purposes.
certain outrages had been committed in different parts of certain counties, and offering a reward for the discovery and apprehension of offenders, was held to be admissible evidence to prove an introductory averment, in an information for a libel, that divers acts of outrage had been committed in those parts. (d) And a preumble to an act of Parliament, reciting the existence of such outrages, and making provision against them, was also held to be
admissible for the same purpose. (e) Criminal in- The criminal intention of the defendant will be matter of intentiou of the ference from the nature of the publication. In order to constitute defendant.
a libel, the mind must be in fault, and shew a malicious intention to defame ; for, if published inadvertently, it will not be a libel : þut where a libellous publication appears, unexplained by any evidence, the jury should judge from the overt act; and, where the publication contains a charge slanderous in its nature, should from thence infer that the intention was malicious. (f) The intention may be collected from the libel, unless the mode of publication, or other circumstances, explain it: and the publisher must be presumed to intend what the publication is likely to produce; so that if it is likely to excite sedition, he must be presumed to have intended that it should have that effect. (a) Publishing what is a libel without excuse is indictable, though the publisher be free from what in common parlance is called malice; for defaming wil
(a) Rex v. Peltier, Selw. N. P. 1048. tendered in evidence, to shew, quo (6) Rex v. Paine, 3 Mod. 163. animo the defendant published the (c) Rex v. Holt, 5 T. R. 436. paragraph in question.' Lord Ellen(d) Rex v. Sutton, 4 M. and S. 532. borough said, "No doubt they would (c) Id. Ibid.
“ be admissible in the case of an in(f) By Lord Kenyon, C. J. in Rex “dictment; and so they would here v. Lord Abingdon, 1 Esp. 228. And “shew the intention of the party, if it see Rex v. Topham, 4 T. R. 127. and were at all equivocal; but if they be Rex v. Woodfall, 5 Burr. 2667. In a "not admitted for that purpose, they late case, of an action for a libel con- certainly are not admissible for the tained in the Statesman newspaper, purpose of enhancing the damages." subsequent publications by the defend- Stuari v. Lovel, 2 Stark. R.93. ant in the Stalesinan newspaper were (a) Rex u. Burdett, 1 B. and A. 95. fully without excuse is in law malicious. And even if it could be an excuse, that the publisher held what he published to be true, it is not so if he professes to publish it from authority. A newspaper contained this paragraph: “the malady under which his
Majesty labours is of an alarming nature (meaning insanity): it “ is from authority we speak.” At the trial of the indictment for this publication, the jury asked if a malicious intention were necessary to constitute a libel; to which Abbott, C. J. answered, that a man must have intended to do what his act was calculated to effect; and the jury found the defendant guilty. Upon a motion for a new trial it was admitted that the paragraph was libellous, but it was urged that malice was essential to make the defendant criminal; that he believed the king to have been so afflicted, and that the answer to the question by the jury was incorrect. But the court thought otherwise, as the defendant must know if he spoke from authority, and could have proved it: and if malice were a question of fact, a man must be presumed to have intended to produce the effect which his act will naturally produce; and libelling without excuse is legal malice. (b) In some cases, however, the paper or other matter may be libellous only with reference to circumstances which should be laid before the jury by evidence. In an action for a libel it appeared that the plaintiff, an attorney, was employed by one Nash to bring an action against an executor; and that the defendant, who was employed to adjust the executor's accounts, finding that an action was about to be commenced against the executor, wrote a letter to Nash blaming him for allowing the plaintiff to sue, and containing this passage, “ }f you will be misled by an attorney, who only considers his own “ interest, you will have to repent it; you may think when you “have once ordered your attorney to write to Mr. G., he would “not do any more without your further orders; but if you once “ set him about it, he will go any length without further orders.” And it was held that the question whether this letter applied to the plaintiff individually, or to the profession at large, was properly left to the jury. (f)
As the defendant is not allowed to prove the truth of the libel- Defendant's lous matter in justification of his conduct, () the evidence which evidence. can be adduced on his behalf at the trial will in general be confined to a very narrow compass. There may, however, be cases of a publication in point of law, where no criminal intention can be imputed to the party; as where a person delivers a letter without knowing its contents, or delivers one paper instead of another; (h) and evidence to such effect may be produced. But it is not competent to the defendant to prove that a paper similar to that, for the publication of which he is prosecuted, was published on a former occasion by other persons, who have never been prosecuted for it. (i) It was held, in a case where the supposed libel was
(6) Rex v. Harvey, 2 B. and C. 257. jury.
(f) Godson v. Home, 3 Moore, 223. (8) Ante, p. 211. And it seems that in this case if the (h) By Lord Kenson, C... in Rexr. point had been made at the trial, Tophani, 4 T. R. 127, 128.
Rex v. whether this was a confidential çom- Nuit, Fitz. 47. And see unie, p. 212, munication or not, such point would el sequ. not necessarily have been left to the (i) Rex v. Holt, 5 T. R. 436.
contained in a newspaper, that the defendant had a right to have read in evidence any extract from the same paper, connected with the subject of the passage charged as libellous, although disjoined from it by extraneous matter, and printed in a different character. (k) Though the defendant cannot have the assistance of counsel to examine the witnesses, and reserve to himself the right of addressing the jury , yet if he conducts his defence himself, and any point of law arises which he professes himself unable to argue, the court will hear this argued by his counsel. (1)
If a libel inputes to a man a triable offence, proof of the truth of such imputation is inadmissible; for it would be trying the question behind the man's back, and creating a prejudice upon it. Where a libel imputed murder to certain soldiers, evidence was offered of the truth of such imputation, and rejected: and the court of King's Bench were unanimous that such evidence was rightly reject for the persons charged might afterwards come to be
tried, and might be prejudiced by the previous inquiry. (x) Verdict. It had been held in many cases, that, on trials for libels, the The jury may facts of writing, printing, or publishing, and the truth of the give a general verdict upon
innuendoes inserted in the proceedings, were the only matters to the whole be submitted to the consideration of the jury: but the justice of matter put in issue.
such doctrine being questioned and ably arraigned, (m) the statute 32 Geo. 3. c. 60. was passed, which enacts « that on every such “ trial, 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 ; and shall not be required or “ directed, by the court or Judge before whom such indictment or “ information shall be tried, to find the defendant or defendants “ guilty, merely on the proof of the publication by such deíendant 6 or defendants of the paper charged to be a libel, and of the sense “ ascribed to the same in such indictment or information.” (n) “ But it provides also, that the court or Judge before whom such « indictment or information shall be tried, shall, according to their
or his discretion, give their or his opinion and directions to the “jury, on the matter in issue between the king and the defendant or defendants, in like manner as in other criminal cases." (0)
It appears to have been considered that the Judge may tell the jury that they are to take the law from him, unless they are satis
fied that he is wrong. (y) Judgment.
The judgment in cases of libel is in the discretion of the court, as in most other cases of misdemeanors; and usually consists of fine, imprisonment, and the finding sureties to keep the peace. (P)
(k) Rex v. Lambert and Perry, 2 And section 4. provides that Campb. 398.
defendants may move in arrest of (1) Rex v. White, 3 Campb. 98. judgment as before the passing of the 1.x) Rex v. Burdett, 4 B. and A. 95. aci.
(m) See the celebrated speeches of (y) Rex v. Burdett, 4 B. and A. 95. Mr. Erskine, in the case of the Dean (p) I Hawk. P.C. c. 73. s. 21. 4 Bac. of St. Asaph, 1 vol. of Ridgway's col. Abr. Libel (C) p. 459. Rex v. Midp. 284, and 264.
dleton, Port. 201. As to the punish(n) S 1.
ment of Icasing-making sedition and (O) S. 2. By s. 3. it is provided that blasphemy in Scotland, see 6 Gco. 4. the jury may find a special verdict, in c. 47. their discretion, as in other criminal
In some cases prior to the statute 56 Geo. 3. c. 138. the offender was also sentenced to the pillory.
In the case of a blasphemous or seditious libel, a second offence In cases of is more highly punishable by 60 Geo. 3. and I Geo. 4. c. 8. s. 4. blasphemous which enacts, that if any person shall be legally convicted of hav- onseditious ing composed, printed, or published, any blasphemous libel, or any offence is such seditious libel as aforesaid (i.e. by s. 1. a libel tending to bring punishable by into hatred or contempt the person of his Majesty, his heirs or successors, or the regent, or the government and constitution of the united kingdom, as by law established, or either house of Parliament, or to excite his Majesty's subjects to attempt the alteration of any matter in church or state, as by law established, otherwise than by lawful means), and shall after being so convicted offend a second time, and be thereof convicted before any commission of oyer and terminer, or gaol delivery, or in the court of King's Bench, such person may on such second conviction be adjudged, at the discretion of the court, either to suffer such punishment as may now by law be inflicted in cases of high misdemeanors, or to be banished from the united kingdom and all other parts of his Majesty's dominions for such term of years as the court in which such conviction shall take place shall order. And the fifth section further enacts, that in case any person, so sentenced to be banished, shall not depart from the united kingdom within thirty days after the pronouncing such sentence, for the purpose of going into such banishment, his Majesty may convey such person to such parts out of the dominions as his Majesty, with the advice of his privy council, shall direct. The sixth section of the statute enacts, that if any offender, who And an of,
fender ordered shall be so ordered by any such court to be banished, shall, after
to be banished, the end of forty days from the time such sentence and order has and being at been pronounced, be at large, within any part of the united king- large after the
end of forty dom, or any other part of his Majesty's dominions, without some
days within lawful cause, before the expiration of the term for which such his Majesty's offender shall have been so ordered to be banished, “every such dominions, “ offender being so at large as aforesaid, being thereof lawfully
may be trans
ported. “ convicted, shall be transported to such place as shall be ap“pointed by his Majesty for any term not exceeding fourteen
years.” And such offender may be tried either before any justices of assize, oyer and terminer, great sessions or gaol delivery, for the county, &c. where such offender shall be apprehended, or where he was sentenced to banishment; and the clerk of assize, &c. is required to give a certificate containing the effect and substance only (omitting the formal part) of every indictment and conviction of such offender, and of the order for banishment, to the justices of assize, &c. where such offender shall be indicted, and such certificate is to be sufficient proof of the conviction and order for banishment of such offender. A similar provision is also made as to a certificate of every in- Certificate of
former convicdictment and conviction of any offender convicted of having com
tion to be posed, &c. any blasphemous or seditious libel, which is to be given evidence. by the officer having the custody of the records, upon the request of the prosecutor on his Majesty's behalf, to the justices of assize,