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ration certified to be a true copy, under the hand of one of the said commissioners, or of any officer in whose possession the same shall be, upon proof made that such certificate hath been signed with the handwriting of a person described in or by such certificate as such commissioner or officer, and whom it shall not be necessary to prove to be a cominissioner or officer, shall be received in evidence against any and every person named in such declaration as a person making or signing the same as sufficient proof of such declaration, and that the same was duly signed and made according to this act, and of the contents thereof; and every such copy so produced and certified shall have the same effect for the purposes of evidence against any and every such person named therein as aforesaid, to all intents whatsoever, as if the original declaration of which the copy so produced and certified shall purport to be a copy had been produced in evidence, and been proved to have been duly signed and made by the person appearing by such copy to have signed and made the same as aforesaid; and whenever a certified copy of any such declaration shall have been produced in evidence as aforesaid against any person having signed and made such declaration, and a newspaper shall afterwards be produced in evidence intituled in the same manner as the newspaper mentioned in such declaration is intituled, and wherein the name of the printer and publisher, and the place of printing shall be the same as the name of the printer and publisher, and the place of printing mentioned in such declaration, or shall purport to be the same, whether such title, name and place printed upon such newspaper shall be set forth in the same form of words as is contained in the said declaration, or in any form of words varying therefrom, it shall not be necessary for the plaintiff, informant, or prosecutor in any action, prosecution, or other proceeding, to prove that the newspaper to which such action, prosecution, or other proceeding may relate was purchased of the defendant, or at any house, shop, or office belonging to or occupied by the defendant, or by his servants or workmen, or where he may usually carry on the business of printing or [ *603 ]. publishing such newspaper, or where the same may be usually sold; and if any person, not being one of the said commissioners, or the proper authorized officer, shall give any certificate purporting to be such certificate as aforesaid, or shall presume to certify any of the matters or things by this act directed to be certified by such commissioner or officer, or which such commissioner or officer is hereby empowered or intrusted to certify; or if any such commissioner or officer shall knowingly and wilfully falsely certify, under his hand, that any such declaration as is required to be made by this act was duly signed and made before him, the same not having been so signed and made, or shall knowingly and wilfully falsely certify that any copy of any declaration is a true copy of the declaration of which the same is certified to be such copy, the same not being such true copy, every person so offending shall forfeit the sum of one hundred pounds.'
By s. 9, service of legal process, either in civil or criminal suits, at the place of printing or publishing mentioned in the declaration shall be deemed sufficient service.
By s. 10, titles of newspapers and names of printers and publishers are to be entered in a book at the Stamp-office, and persons shall have liberty to inspect it.
Since the passing of the 38 Geo. 3, c. 78, the production of a certified
copy of the affidavit and of a newspaper corresponding in the title and in the names and descriptions of printer and publisher, with the newspaper mentioned in the affidavit, has been sufficient evidence of publication. Mayne v. Fletcher, 9 B. and C. 382 (a); R. v. Hunt, 31 State Trials, 375. But where the affidavit and the newspapers vary in the place of residence of the party; Murray v. Souter, cited 6 Bingh. 414; or in the name of the printing place; Franceys' case, 2 A. and E. 49 (b); it is insufficient. The statute has been held to apply to motions for criminal informations. Donnison's case, 4 B. and Ad. 698 (c); Franceys' case, supra. A newspaper may be given in evidence, though it is not one of the copies published, and though it be unstamped. Pearce's case, Peake,
Proof of publication-by admission of the defendant.] On an information for a libel, the witness, who produced it, stated that he showed it to the defendant, who admitted that he was the author of it, errors of the press and some small variances only excepted. It was objected that this evidence did not entitle the prosecutor to read the book, the admission not being absolute; but Pratt, C. J., allowed it to be read, and said that he would put it to the defendant to prove material variances. Hall's case, 1 Str. 416. An admission of the signature to a libel is no admission of its having been published in a particular county. Case of the seven Bishops, 12 How. St. Tr. 183. An admission of being the publisher of a periodical work cannot be extended beyond the date of such admission. M'Leod v. Wakley, 3 C. and P. 311 (d).
Publication-constructive publication.] It is now well established, that, in order to render a party guilty of publishing a libel, *it is [ *604 ] not necessary that he should be the actual publisher of it, or that he should even have a knowledge of the publication; not only is a person, who procures another to publish a libel, himself guilty of the offence, Hawk. P. C. b. 1, c. 73, s. 10, but a bookseller or publisher, whose servant publishes a libel, is criminally answerable for that act, though it was done without his knowledge. This rule, which is an exception to those which govern the other branches of criminal law, appears to be founded upon a principle of policy, and to have been arbitrarily adopted with the view of rendering publishers cautious with regard to the matters to which they give general circulation. The leading case on this subject is that of Almon's case, 5 Burr. 2689. The defendant, a bookseller, was convicted of publishing a libel in a magazine. The proof of the publication was, that the magazine was bought at his shop. A new trial was moved for, on the ground that the libel had been sent to the defendant's shop, and sold there by a boy, without his knowledge, privity, or approbation; but the court were clear and unanimous in opinion that this libel, being bought in the shop of a common known bookseller and publisher, importing, by its title-page, to be printed by him, was a sufficient prima facie evidence of its being published by him,-not indeed conclusive, because he might have contradicted it, if the facts would have borne it, by contrary evidence. The court regarded the matters urged as grounds for a new trial, merely as an extenuation of the offence. So Lord Kenyon ruled, that the proprietor of
(a) Eng. Com. L. Rep. xvii. 401. (b) Id. xxix. 27. (e) Id. xxiv. 143. (d) Id. xiv. 322.
a newspaper was answerable, criminally as well as civilly, for the acts of his servants or agents in misconducting the paper; adding, that this was not his opinion only, but that of Lord Hale, Justice Powell, and Justice Foster; that it was the old and received law for above a century, and was not to be broken in upon by any new doctrine upon libels. Walter's case, 3 Esp. 21. And the same rule was laid down by Lord Ellenborough. Cuthel's case, White's case, Holt, Law of Libel, 287; 2 Stark. on Slander, 33, 2d ed. In a late case, where it was urged that the rule, respecting the liability of publishers in libel, was contrary to the principle which prevails in all other criminal cases, Lord Tenterden said, "The rule seems to me to be conformable to principle and to common sense. Surely a person who derives profit from, and who furnishes the means of carrying on the concern, and intrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears, and ought to be answerable, although you cannot show that he was individually concerned in the particular publication. It would be exceedingly dangerous to hold otherwise, for then an irresponsible person might be put forward, and the person really producing the publication, and without whom it could not be published, might remain behind and escape altogether." Gutch's case, Moody and M. 433 (a).
It does not appear to be well settled whether a publisher by whose servant a libel has been sold, may exonerate himself from the consequences [*605] of that act, by showing that he has himself in no way *been accessary to the publication. If the libellous work has been sold by the servant in the regular performance of his duty towards his employer, the latter would, as it seems, still be answerable, although he should prove that in fact he was absent from the shop at the time, and that he was wholly ignorant of the contents of the book, and innocent of any intent to disseminate the libel. Dodd's case, 2 Sess. Ca. 33. If, on the contrary, the book was not sold by the servant in the ordinary course of his employment, but clandestinely brought by him to his master's shop, and vended there, in such case the master would not, as it seems, be guilty of the publication, In Almond's case, ante, p. 604, the court appear to have treated the publication by the servant as presumptive evidence only of a publication as against the master, who would be entitled to rebut such presumption; and in one case it seems to have been decided that if a printer is confined in prison, to which his servants have no access, and they publish a libel without his privity, the publication of it shall not be imputed to him. Wood fall's case, Essay on Libels, 18. See also Salmon's case, B. R. H. T. 1777; Hawk. P. C. b. 1, c. 73, s. 10, (n.) 7th ed. So it is said by Mr. Starkie, that the defendant may rebut the presumption by evidence that the libel was sold contrary to his orders, or clandestinely, or that some deceit or surprise was practiced upon him, or that he was absent under circumstances which entirely negative any presumption of privity or connivance. 2 Starkie on Slander, 34, 2d ed. (1).
Where the libel is published by an agent of the defendant, the authority of such agent must be strictly proved. In the case of booksellers and publishers, proof that the party actually vending the libel was a servant in the way of their business, is sufficient, for in such case an au(1) Commonwealth v. Buckingham, 2 Wheeler's C. C. 198.
(a) Eng. Com. L. Rep. xxii. 352.
thority to sell will be implied, but it is not so with regard to other persons. Thus, where it appeared that the libel in question was in the handwriting of the defendant's daughter, who was usually employed by him to write his letters of business; but there was no evidence that the defendant had authorized her to write this particular document, it was held to be no evidence of publication as against him. Harding v. Greening, 1 B. Moore,
Proof of innuendos.] Where, in order to bring out the libellous sense of the words, innuendos are inserted in the indictment, they must, if material, be proved by witnesses acquainted with the parties, and with the transaction to be explained. It is sufficient if such witnesses speak in the first instance as to their belief with regard to the intended application of the words; the grounds of such belief may be inquired into on crossexamination (1). 2 Stark. on Slander, 51, 2d ed. If the witness derives his conclusion from the terms of another libel, with the publication of which the defendant is not connected, this is not sufficient. Bourke v. Warren, 2 C. and P. 307. If a good innuendo, ascribing a particular meaning to certain words, is not supported in evidence, the party will not be permitted to ascribe another meaning to those words. Williams v. *Stott, 1 Crom. and M. 675; Archbishop of Tuam v. Robinson, [*606] 1 Bingh. 17 (b), but see Harvey v. French, 1 Crom. and M. 11. Thus, where the words in fact imputed either a fraud or a felony, but by the innuendo were confined to the latter, Lord Ellenborough ruled that the plaintiff must prove that they were spoken in the latter sense. Smith v. Carey, 3 Campb. 461. If a libel contains blanks the jury ought to acquit the defendant, unless they are satisfied that those blanks are filled up in the indictment according to the sense and meaning of the writer. Per Lord Mansfield, Almon's case, 5 Burr. 2686. It is said by Tindal, C. J., that where words spoken impart in themselves a criminal charge, and the innuendo introduces matter which is merely useless, it may be rejected as surplusage. Day v. Robinson, I A. and E. 558 (c); see also Williams v. Gardiner, Tyr. and G. 578; 1 M. and W. 245; West v. Smith, Tyr. and G. 825.
Proof of malice.] Where a man publishes a writing, which upon the face of it is libellous, the law presumes that he does so with that malicious intention which constitutes an offence, and it is unnecessary on the part of the prosecution to give evidence of any circumstances from which malice may be inferred. Thus, in Harvey's case, it was said by Lord Tenterden, that a person who publishes what is calumnious concerning the character of another, must be presumed to have intended to do that which the publication is necessarily and obviously intended to effect, unless he can show the contrary. Harvey's case, 2 B. and C. 257 (d); Burdett's case, 4 B. and A. 95 (e). In such case it is incumbent upon the defendant, if he seeks to discharge himself from the consequences of the publication, to show that it was made under circumstances which justify it.
(1) Van Veckten v. Hopkins, 5 Johns. 211.
(a) Eng. Com. L. Rep. iv. 13. (b) Id. xv. 350. (c) Id. xxviii. 153. (d) Id. ix. 77. (e) Id. vi. 358.
It is however frequently necessary, upon prosecutions for libel, where the expressions are ambiguous, or the intentions of the defendant doubtful, to adduce evidence for the purpose of showing the malice which prompted the act of publication. Thus, where the occasion of the publication would prima facie justify the defendant, yet, if the libel be false and malicious, it is an offence; in such case, evidence of the malice must be given on the part of the prosecution to rebut the presumed justification. Where the material question, says Mr. Starkie, is whether the defendant was justified by the occasion, or acted from express malice, it seems in principle, that any circumstances are admissible, which can elucidate the transaction, and enable the jury correctly to conclude whether the defendant acted fairly and honestly, or mala fide, and vindictively for the purpose of causing evil consequences. 2 Stark. on Slander, 55, 2d ed. Upon this principle, in an action for libel contained in a weekly paper, evidence was allowed to be given of the sale of other papers, with the same title, at the same office, for the purpose of showing that the papers were sold deliberately, and in the regular course of circulation, and vended in regular transmission for public perusal. Plunkett v. Cobbett, 5 Esp. [ *607 ] 136. So where on the trial *of an action for libel contained in a newspaper, subsequent publications by the defendant in the same paper, were tendered in evidence to show quo animo the defendant published the libel in question, Lord Ellenborough said, no doubt they would be admissible in the case of an indictment. Stuart v. Lovel, 2 Stark.
N. P. C. 93 (a). Again, in the trial of an action against the editor of a monthly publication for a libel contained in it, articles published from month to month alluding to the action, and attacking the plaintiff, are admissible to show quo animo the libel was published, and that it was published concerning the plaintiff. Chubb v. Westley, 6 C. and P. 436 (b). So it was held by Lord Ellenborough, that any words or any act of the defendant are admissible, in order to show quo animo he spoke the words which are the subject of the action. Rustell v. Macquister, 1 Campb. 49. So either the prosecutor or the defendant is entitled to have extracts read from different parts of the same paper or book which contains the libel, relating to the same subject. Lambert's case, 2 Campb. 398.
When the publication is prima facie excusable, on account of the cause of writing it, as in the case of servants' characters, or confidential advice, or communications to persons who ask it or have a right to expect it, malice in fact must be proved. Per Bayley, J., Bromage v. Prosser, 4 B. & C. 256 (c); and see M'Pherson v. Daniels, 10 B. & C. 272 (d). "Where a man has a right to make a communication you must either show malice intrinsically from the language of the letter, or prove express malice." Per Parke, B., Wright v. Woodgate, Tyr. and G. 15.
Proof of intent.] Where the malicious intent of the defendant is, by averment in the indictment, pointed to a particular individual, or to a particular act or offence, the averment must be proved as laid. Thus where the indictment alleged a publication of a libel with intent to disparage and injure the prosecutor in his profession of an attorney, it was held that proof of a publication to the prosecutor only did not maintain the indict
(a) Eng. Com. L. Rep. iii. 261. (b) ld. xxv. 474. (c) Id. x. 321. (d) Id. xxi. 69.