merely spoken, it would not be actionable without special damage. 2 H. Bl. 531. But no indictment will lie for mere words not reduced into writing. 2 Salk. 417; Langley's case, 6 Mod. 125; unless they be seditious, blasphemous, grossly immoral, or uttered to a magistrate in the execution of his office, or uttered as a challenge to fight a duel, or with an intention to provoke the other party to send a challenge. Archb. Pl. 577, 7th ed.

With regard to libels on the memory of persons deceased, it has been held, that a writing reflecting on the memory of a dead person, not alleged to be published with a design to bring scandal or contempt on the family of the deceased, or to induce them to break the peace, is not punishable as a libel (1). Topham's case, 4 T. R. 127; and see Taylor's case, 3 Salk. 198; Holt on Lib. 230, 2d ed.

A libel upon a foreigner is indictable. Thus, Lord George Gordon was found guilty upon an information for a libel on the Queen of France; 2 Stark. on Slander, 217, 2d ed.; and informations have also been granted for libels upon the characters of the Emperor of Russia, and of Napoleon. Id. In the latter case, Lord Ellenborough appears to have considered the situation of the individual as forming the ground of the decision. "I lay it down as law," he says, "that any publication which tends to disgrace, revile, and defame persons of considerable situations of power and dignity in foreign countries, may be taken to be and treated as a libel, and particularly where it has a tendency to interrupt the amity and peace between the two countries."

It is not necessary that the libel should reflect upon the character of any particular individual, provided it immediately tend to produce tumult and disorder; 2 Stark. on Slander, 213, 2d ed.; although the contrary was formerly held. Hawk. P. C. b. 1, c. 28, s. 9. Thus an information was granted for a libel, containing an account of a murder of a Jewish woman and child, by certain Jews lately arrived from Portugal, and the affidavits set forth, that certain persons recently arrived from Portugal had been attacked by the mob and barbarously treated in consequence of the libel. Osborne's case, Sess. ca. 260.; Barnard. K. B. 138, 166.

Informations at the suit of public bodies upon the application of individuals presiding over them, have been frequently granted by the Court of King's Bench. Campbell's case, Bell's case, Holt on Lib. 240, 2d ed.; William's case, 5 B. and A. 595 (a).

The punishment for a libel is fine or imprisonment, or both.

Proof of introductory averments.] Where the indictment contains introductory averments, inserted for the purpose of explaining and pointing the libel, such averments must be proved as laid. It frequently happens that the libel is directed against the prosecutor in a particular character, and an intent to libel him in that character is averred. In such case, it must be made to appear, that the prosecutor bore that character. But in general where the character is a public one, it will be sufficient if it appear that the prosecutor has acted in it, and it will not be necessary to give strict evidence of his appointment, ante, p. 7 and p. 16. Thus, if the indictment *allege that the prosecutor was at the time of [*598] (1) Commonwealth v. Taylor, 5 Binn. 281.

(a) Eng. Com. L. Rep. vii. 200.

the supposed injury, a magistrate, or a peace officer, it is sufficient to show that he previously acted as such. Berryman v. Wise, 4 T. R. 366; 2 Stark. on Slander, 2, 2d ed.

Where the title to the particular situation is not the subject of any express documentary appointment, the acting in the situation is, of course, the only evidence which the fact admits of. 2 Stark. Ev. 860, 1st ed.

Whether a person practising as a physician, and libelled in his character as such, was bound to prove, by strict evidence, the introductory averment that he was a physician, was long a matter of doubt. In a case at Nisi Prius, Buller, J., required such proof to be given; Pickford v. Gutch, 1787; 2 Stark. on Slander, 3, (n.) 2d ed.; but in a subsequent case, the Court of Common Pleas was equally divided upon the point. Smith v. Taylor, 1 N. R. 196. It has, however, been decided by the Court of King's Bench, in a very late case, that to support an averment that the party was a physician, it is necessary to give regular evidence that he possessed lawful authority to practice as such, and that proof of his in fact practising as such is insufficient. Collins v. Carnegie, 1 A. and E. 695 (a); 2 Nev. and M. 703.

In order to prove the prosecutor to be an attorney, an examined copy of the roll of attornies, signed by the plaintiff, is sufficient. So the book from the master's office, containing the names of all the attornies, produced by the officer in whose custody it is kept, is good evidence, together with proof that the party practised as an attorney at the time of the offence. Crossley's case, 2 Esp. 526; Lewis v. Walter, 3 B. and C. 138 (b); Jones v. Stevens, 11 Price, 1251. The stamp office certificate, countersigned by the master of the Court of King's Bench, is sufficient prima facie evidence of the party being an attorney of that court. Sparling v. Heddon, 9 Bingh. 11 (c).

Where the indictment specifies the particular mode in which the party was invested, with the particular character in which he has been injured, it will, as it seems, be necessary to prove such a descriptive allegation with all its circumstances, although a more general allegation would have been sufficient; for though a totally irrelevant allegation may be rejected as surplusage, one which is material and descriptive of the legal injury must be proved as laid. 2 Stark. on Slander, 8, 2d ed.

In all cases where the libel itself is an admission of the particular character alleged, further proof of such particular character is unnecessary. Thus where, in an action for words spoken of the plaintiff, as an attorney, it appearing that they contained a threat to have the plaintiff struck off the roll of attornies, it was held unnecessary to give any, proof of the plaintiff's professional character. Berryman v. Wise, 4 T. R. 366. So where the words were, "He is a pettifogging, bloodsucking attorney." Armstrong v. Jordan, cor. Hullock, 2 Stark. on Slander, 11, (n.) 2d ed. Where the declaration alleged that the plaintiff held a certain office and [*599] place of *trust and confidence, to wit, the office of overseer of a certain common field, and the alleged libel treated the plaintiff as holding an office of public trust, and charged him with not having given a proper account of the public property, the libel itself was held to be evidence of the introductory averment, though the plaintiff's own witnesses proved that the office was not one of trust and confidence, and that he

(a) Eng. Com. L. Rep. xxviii. 180.. (b) Id. x. 36. (c) Id. xxiii. 245.

was not trusted with the receipt of money. Bagnall v. Underwood, 11 Price, 621.

In the same manner where the libel admits any other of the introductory averments, such averments need not be proved. Where the declaration averred that the plaintiff had been appointed envoy by certain persons exercising the powers of government in the republic or state of Chili, in South America, the libel stating that the plaintiff had colluded to obtain money in the matter of a loan, for the republic or state of Chili, was held to be sufficient proof of the existence of such a state. Yrisarri v. Clement, 3 Bingh. 432 (a). So where a libel alleged that certain acts of outrage had been committed, and there was a similar introductory averment, it was held that the latter required no proof. Sutton's case, 4 M. and S. 548, see ante, p. 103. If an introductory averment be immaterial, it may be rejected as surplusage, and need not be proved; and, in general, where it is not matter of description, it is divisible, and part of it only may be proved. Vide ante, p. 91.

The averment that the libel was published "of and concerning" the prosecutor, or "of and concerning" the particular matters averred, must be proved as laid.

The declarations of spectators, while viewing a libellous picture publicly exhibited in an exhibition room, were admitted by Lord Ellenborough, as evidence to show that the figures portrayed were meant to represent the parties alleged to have been libelled. Dubois v. Beresford, 2 Campb. 512.

Proof of publication in general.] All who are concerned in publishing a libel are equally guilty of a misdemeanor; Bac. Ab. Libel. (B.) 1 Russell, 234; but the writing or composing a libel, without a publication of it, is not an offence. The mere writing a defamatory libel, which the party confines to his own closet, and neither circulates nor reads to others, is not punishable. Paine's case, 5 Mod. 165, 167. So the taking a copy of a libel is not an offence, unless the person taking the copy publishes it. Com. Dig. Libel, (B. 2).

The question of publication is ordinarily one of mere fact, to be decided by the jury; but this, like all other legal and technical terms, involves law as well as fact, and it is a question for the court in doubtful cases, whether the facts when proved constitute a publication in point of law (1). 2 Stark. on Slander, 311, 2d ed.

With regard to the acts which constitute a publication, it has been held that a man who acts as servant to the printer of the libel, and claps down the press, is punishable, though it do not appear that he clearly knew the import of the libel, or that he was conscious *he was doing any [*600 ] thing wrong. Clark's case, 1 Barnard. 304. To this decision, however, Mr. Serjeant Russell has, with much reason, added ́a quære. 1 Russell,

234.

Production of a libel, and proof that it is in the handwriting of the defendant, afford a strong presumption that he published it. Beare's case, 1 Lord Raym. 417. So printing a libel, unless qualified by circumstances, will, prima facie, be understood to be a publishing, for it must be

(1) Resp. v. Davies, 3 Yeates, 128. Southwick v. Stevens, 10 Johns. 442.

(a) Eng. Com. L. Rep. xiii. 36.

600

delivered to the compositor, and the other subordinate workmen. Per Cur. Baldwin v. Elphinstone, 2 W. Bl. 1038. A delivery of a newspaper (containing a libel,) according to the provisions of the 38 Geo. 3, c. 78, to the officer of the Stamp-office, has been held a publication, though such delivery was directed by the statute, for the officer had an opportunity of reading the libel. Amphlitt's case, 4 B. and C. 35 (a); see also Cook v. Ward, 6 Bingh. 408 (b). If a letter containing a libel, have the postmark upon it, that is prima facie evidence of its having been published. Warren v. Warren, 1 C. M. & R. 360; 4 Tyr. 850. Shipley v. Todhunter, 7 C. and P. 680 (c).

It is said, by Mr. Justice Fortescue, to have been ruled that the finding of a libel on a bookseller's shelf, is a publication of it by the bookseller. Dodd's case, 2 Sess. Ca. 33; Holt's L. of L. 284, 2d ed.

The reading of a libel in the presence of another, without knowing it to be a libel, with or without malice, does not amount to a publication. 4 Bac. Ab. 458; Holt's L. of L. 282, 2d ed. But if a person, who has either read a libel himself, or heard it read by another, afterwards maliciously reads or repeats any part of it to another, he is guilty of an unlawful publication of it. Hawk. P. C. b. 2, c. 73, s. 10.

Although, in civil cases, publication of a libel to the party libelled only is not sufficient to support an action, yet in criminal cases such publication will maintain an indictment or information (1). Hawk. P. C. b. 1, c. 73, s. 11; 1 Russ. 235. Wegener's case, 2 Stark. N. P. C. 245 (d). But such publication must be alleged to have been sent, with intent to provoke the prosecutor to a breach of the peace, and not with intent to injure him in his profession, &c. Wegener's case, supra.

Where the libel is in a foreign language, and it is set out in the indictment, both in the original and in a translation, the translation must be proved to be correct. In a case of this kind, an interpreter being called, 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. Peltier's case, Selw. N. P. 987.

Where the libel has been printed by the directions of the defendant, and he has taken away some of the impressions, a copy of those left with the printer may be read in evidence. Watson's case, 2 Stark. N. P. C. 129 (e), ante, p. 4. In order to show that the defendant had caused a libel to be inserted in a newspaper, a reporter to the paper was called, who proved that he had given a written statement to the editor, the contents of which had been communicated by the defendant for the purpose [ *601] of publication; and that the newspaper produced was exactly the same, with the exception of one or two slight alterations not affecting the sense; it was held, that what the report published might be considered as published by the defendant, but that the newspaper could not be read in evidence, without producing the written statement delivered by the reporter to the editor. Adams v. Kelly, Ry. and Moo. N. P. C. 157 (ƒ).

Where a libel is printed, the sale of each copy is a distinct publication, and a fresh offence; and a conviction or acquittal on an indictment for publishing one copy, will be no bar to an indictment for publishing ano

(1) Swindle v. The State, 2 Yerger, 581. State v. Avery, 7 Conn. 266.

(a) Eng. Com. L. Rep. x. 275. (b) Id. xix. 117. (e) Id. xxxii. 685. (d) Id. iii. 335. (e) Id. iii. 280. (f) Id. xxi. 403.

ther copy. Carlisle's case, 1 Chitty, 451 (a), 2 Stark. on Slander, 320, 2d ed.

Proof of publication of libels contained in newspapers.] The proof of the publication of libels contained in newspapers was facilitated by the 38 Geo. 3, c. 78, but that act has been repealed by the 6 & 7 Wm. 4, c. 76, and provisions of a similar nature substituted.

By s. 6, of the recent statute, before any newspaper shall be printed, a declaration in writing shall be delivered at the Stamp-office, made and signed by the printer or publisher and proprietors of such newspaper, as therein directed, which declaration shall set forth the title of the newspaper, and of the house or building wherein it is intended to be published; and also the name, addition and place of abode of the printer and publisher thereof, and of the proprietors, if they, exclusive of the printer and publisher, do not exceed two, and if they do, then of two proprietors resident in the united kingdom, and their proportional shares. On a change of ownership, a fresh declaration is to be made, and every person knowingly or wilfully making a false or defective declaration shall, on conviction, be deemed guilty of a misdemeanor.

By s. 7, persons printing or publishing, or selling or delivering out any newspaper before such declaration is made, shall forfeit 50l. a day.

By s. 8, "all such declarations as aforesaid shall be filed and kept in such manner as the commissioners of stamp and taxes shall direct for the safe custody thereof; and copies thereof, certified to be true copies as by this act is directed, shall respectively be admitted in all proceedings, civil and criminal, and upon every occasion whatsoever, touching any newspaper, mentioned in any such declaration, or touching any publication, matter, or thing contained in any such newspaper, as conclusive evidence of the truth of all such matters set forth in such declaration as are hereby required to be therein set forth, and of their continuance respectively in the same condition down to the time in question, against every person who shall have signed such declaration, unless it shall be proved that previous to such time such person became lunatic, or that previous to the publication in question on such trial such person did duly sign and make a declaration that such person had ceased to be a printer, publisher, or proprietor of such newspaper, and did duly *deliver the [ *602 ] same to the said commissioners or to such officer as aforesaid, or unless it shall be proved that previous to such occasion as aforesaid a new declaration of the same or a similar nature respectively, or such as may be required by law, was duly signed and made and delivered as aforesaid respecting the same newspaper, in which the person sought to be affected on such trial did not join; and the said commissioners, or the proper authorized officer by whom any such declaration shall be kept according to the directions of this act, shall, upon application in writing made to them or him respectively by any person requiring a copy, certified according to this act, of any such declaration as aforesaid, in order that the same may be produced in any civil or criminal proceeding, deliver such certified copy, or cause the same to be delivered to the person applying for the same, upon payment of the sum of one shilling, and no more; and in all proceedings and upon all occasions whatsoever a copy of any such decla

(a) Eng. Com. L. Rep. xviii. 135.