was a question for the jury whether the publication arose from any want of due care or caution on their part. R. v. Holbrook, 3 Q. B. D. 60; 47 L. J. (Q. B.) 85. Upon the second trial, the same facts having been proved as on the first trial, the judge summed up in terms which might have led the jury to suppose that the general authority given to the editor to manage the editorial department of the paper, was per se evidence that the defendants had authorized the publication of the libel within the meaning of 6 & 7 Vict. c. 96, s. 7, and the jury having returned a verdict of guilty, a new trial was granted on the ground of misdirection, Cockburn, C.J., and Lush, J. (Mellor, J., diss.), being of opinion that a general authority to an editor to conduct the business of a newspaper, in the absence of anything to give it a different character, must be taken to mean an authority to conduct it according to law, and therefore not to authorize the publication of a libel. R. v. Holbrook, 4 Q. B. D. 42 ; 48 L. J. ( Q. B.) 113. 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. R. v. Holt, 5 T. R. 436: R. v. Newman, 1 E. & B. 268.

2. He may prove that the words alleged to be seditious, whether spoken or written, are not seditious; and for that purpose a defendant has been allowed to give in evidence other passages in the same speech, newspaper or publication, plainly referring to the subject of the libel in question, or fairly connected with it, though disjoined from it by other matter, and in a different type, in order to prove that his intention was not such as was imputed to him by the prosecution, or that the passage in question would not fairly bear the construction attempted to be given to it. R. v. Lambert & Perry, 2 Camp. 398, 400; 31 St. Tr. 335; 11 R. R. 748.

3. He may show that he was privileged in publishing the matter alleged to be seditious. As, for instance, that it formed part of a speech delivered by him as a member of parliament (1 W. & M. sess. 2, c. 2); but this privilege extends only to his speaking in the house; for if he afterwards publish his speech, he is amenable for it in the same manner as any other person. R. v. Creevey, 1 M. & Sel. 273, 282; 14 R. R. 427: R. v. Lord Abingdon, 1 Esp. 226; 5 R. R. 733: Stockdale v. Hansard, 3 St. Tr., N. S. 723, 882, 896; 9 A. & E. 1; 2 P. & D. 1. The publication in a public newspaper of a faithful report of a debate in either house of parliament is privileged, so that the publisher is not responsible for statements made in the course of the debate so reported and published (Wason v. Walter, L. R. 4 Q. B. 73; 38 L. J. (Q. B.) 34); and the publication of articles fairly commenting upon debates so reported and published is equally privileged. Id. 3 & 4 Vict. c. 9, passed in consequence of Stockdale v. Hansard, ubi supra, provided for staying proceedings in respect of documents laid before either house and published by their authority. This enactment mainly affects defamatory libels, but appears to extend not only to defamatory, but to seditious, obscene, or blasphemous matter contained in such documents.

So, he may prove that the matter alleged to be seditious was contained in a petition to parliament, and published to its members only, or contained in articles of the peace, or in some other regular proceeding in a court of justice (1 Hawk. c. 73, s. 8), or the like. See Fairman v. Ives, 5 B. & Ald. 642; 24 R. R. 514 : M'Gregor v. Thwaites, 3 B. & C. 24; 5 Dowl. & Ry. 447.

With regard to reports of judicial proceedings in newspapers, it is enacted by s. 3 (post, p. 1121) of the Law of Libel Amendment Act, 1888 (51 & 52 Vict. c. 64), that a fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority,

shall, if published contemporaneously with such proceedings, be privileged. As to what is a newspaper, see 44 & 45 Vict. c. 60, s. 1, and 51 & 52 Vict. c. 64, s. 1 (post, pp. 1120, 1121).

At common law, and irrespective of 51 & 52 Vict. c. 64, s. 3 (post, p. 1121), he may prove that it is a fair report of proceedings in a court of justice. See R. v. Wright, 8 T. R. 293; 4 R. R. 649: Lewis v. Walter, 4 B. & Ald. 605; 23 R. R. 415: Chalmers v. Payne, 2 Cr. M. & R. 156: Lewis v. Levy, E. B. & E. 537: Ryalls v. Leader, L. R. 1 Ex. 296; 35 L. J. (Ex.) 185: Milissich v. Lloyds, 13 Cox, 575; 46 L. J. (C. P.) 404. 51 & 52 Vict. c. 64, s. 3, excepts from protection blasphemous and obscene libel, but does not name seditious libel. The privilege at common law and by statute appears to attach whether the report published contains seditious or defamatory or even treasonable matter, if the publication is a fair and bonâ fide report. R. v. Gray, 10 Cox, 184 (Ir.). The publication of the history of a trial, consisting of the facts of the case, and of the law of the case as applied to those facts, is lawful. But the privilege is qualified only, and not absolute, and the fact that the publication incriminated is a fair report of proceedings in a court of justice must not be considered a justification or excuse in all cases. For instance, in the course of a trial it may become necessary for the purposes of justice to hear or read matter of a scandalous, blasphemous, or indecent nature; yet it is not lawful, under the pretence of publishing that trial, to circulate such matter. 51 & 52 Vict. c. 64, s. 3: R. v. Mary Carlile, 3 B. & Ald. 167: R. v. Creevey, 1 M. & Sel. 273, 281; 14 R. R. 427, per Bayley, J.: Steele v. Brannan, L. R. 7 C. P. 261; 41 L. J. (M. C.) 85: Macdougall v. Knight, 14 App. Cus. 194; 58 L. J. (Q. B.) 537; Odgers on Libel (3rd ed.), 283. And a true report of the proceedings in a court of justice sent to a newspaper by a person who is not a reporter on the staff of the newspaper, is not privileged absolutely; and if it be sent from a malicious motive, an action will lie against the sender. Stevens v. Sampson, 5 Ex. D. 53. Until the passing of the Law of Libel Amendment Act, 1888, the publication of reports of ex parte proceedings was discouraged if not held illegal, and the publication of proceedings before justices prior to committal was at least of doubtful legality. See R. v. Parke [1903] 2 K. B. 432, 438, Wills, J. But it is now settled that a fair and accurate report of an ex parte application made to a magistrate in open court is privileged (Kimber v. Press Association [1893] 1 Q. B. 65; 62 L. J. (Q. B.) 152: R. v. Gray, 10 Cox, 184), and this rule appears to apply in all cases where the magistrate has jurisdiction in point of law, although there is what may be called want of jurisdiction, because the facts do not make out the charge. Usill v. Hales, 3 C. P. D. 319; 47 L. J. (C. P.) 323; 14 Cox, 61: Usill v. Brearley, 3 C. P. D. 206; 47 L. J. (C. P.) 380: Lewis v. Levy, E. B. & E. 537; 27 L. J. (Q. B.) 282: and Wason v. Walter, L. R. 4 Q. B. 73, 94; 38 L. J. (Q. B.) 34, 44; where Cockburn, C.J., said, even in quite recent days judges, in holding the publication of the proceedings of courts of justice lawful, have thought it necessary to distinguish what are called ex parte proceedings as a probable exception from the operation of the rule. Yet ex parte proceedings before magistrates, and even before this court, as, for instance, on application for criminal informations, are published every day; but such a thing as an action or indictment founded on a report of such an ex parte proceeding is unheard of, and if any such action or indictment should be brought, it would probably be held that the true criterion of the privilege is not whether the report was or was not ex parte, but whether it was a fair and honest report of what had taken place, published simply with a view to the information of the public, and innocent of all intention to do injury to the reputation of the party affected."

These decisions appear to overrule the opinions at one time expressed that the reports of proceedings (particularly ex parte proceedings) before magistrates were not privileged. See R. v. Fisher, 2 Camp. 563; 11 R. R. 799: R. v. Lee, 5 Esp. 123: R. v. Fleet, 1 B. & Ald. 379; 19 R. R. 344: Duncan v. Thwaites, 3 B. & C. 556, 583: R. v. Parke [1903] 2 K. B. 432, 438.

As to the publication of matters prejudicial to accused persons whose trial is pending, see R. v. Tibbits [1902] 1 K. B. 77; 20 Cox, 70, and post, p. 1095.

A fair and accurate report published in any newspaper of the proceedings of a public meeting and of certain bodies and persons specifically mentioned, and the publication of certain notices or reports issued by certain public officers, have a modified and limited protection afforded by 51 & 52 Vict. c. 64, s. 4 (post, r. 1121). It was formerly no defence to an action or indictment for publishing a libel in a newspaper, that it was a true report of proceedings at a public meeting held under a local improvement act, or the like. Davison v. Duncan, 7 E. & B. 229; 26 L. J. (Q. B.) 104: Popham v. Pickburn, 7 H. & N. 891; 31 L. J. (Ex.) 133.

The defendant is in no case allowed to prove the truth of a seditious libel, in justification of his having published it. 6 & 7 Vict. c. 96, s. 6 (post, p. 1119), permitting a plea that a libel is true, and its publication in the public interest, applies only to defamatory libels, and not to seditious or blasphemous libels. R. v. Duffy, 6 St. Tr., N. S. 303; 2 Cox, 45; 9 Ir. L. R. 329: Ex parte O'Brien, 12 Ir. R. C. L.29; 15 Cox. 180: R. v. McHugh [1901] 2 Ir. Rep. 569. In R. v. Burdett, 1 St. Tr., N. S. 1; 4 B. & Ald. 95, it was held that on an indictment for a seditious libel containing statements involving criminal charges, the defendant could not at the trial or in mitigation prove their truth; but that he could after verdict in mitigation prove that he had read them in newspapers. But the publication in a newspaper of matter which is in itself a seditious libel will not be excused merely on the ground that it is copied from a foreign newspaper as an item of news, although this is a matter for the jury in considering the intention of the defendant; but they must also consider the circumstances under which the matter was copied, the state of the country at the time, the class of persons to whom the newspaper is addressed, and the general tone of the other writings in the newspaper. R. v. Sullivan, 11 Cox, 44 (Ir.). It was held in R. v. McHugh, ubi supra, that the defence of fair comment and absence of malice under 51 & 52 Vict. c. 64, s. 4 (post, p. 1121), is not open on a trial for seditious libel.

The jury may give a general verdict on the whole matter put in issue, and shall not be required by the court to find the defendant guilty merely on proof of the publication, and of the sense ascribed to it in the indictment or information. 32 G. 3, c. 60, s. 1 (post, p. 1118). This is without prejudice to their power to return a special verdict (s. 3), and does not affect the right of the judge to give his opinion and direction to the jury (s. 2), nor the right of the defendant ou conviction to move in arrest of judgment (s. 4), as in other criminal cases.

Indictment for Seditious Words (Common Law).

Central Criminal Court, to wit:-The jurors for our lord the King upon their oath present that J. S., being a wicked, malicious, seditious, and evil-disposed person, and wickedly, maliciously, and seditiously contriving and intending the peace of our lord the King and of this realm

to disquiet and disturb, and the liege subjects of our said lord the King to incite and move to hatred and dislike of the person of our said lord the King, and of the government established by law within this realm, and to incite, move, and persuade great numbers of the liege subjects of our said lord the King to insurrections, riots, tumults, and breaches of the peace, and to prevent by force and arms the execution of the laws of this realm and the preservation of the public peace, on the day of in the year of our Lord, in the parish of A., in the county of S., and within the jurisdiction of the said court, in the presence and hearing of divers, to wit, 200 of the liege subjects of our said lord the King then assembled together, in a certain speech and discourse by him the said J. S. then addressed to the said liege subjects so then assembled together, as aforesaid, unlawfully, wickedly, maliciously, and seditiously did publish, utter, pronounce, and declare with a loud voice, of and concerning the government established by law within this realm, and of and concerning our said lord the King and the crown of this realm, and of and concerning the liege subjects of our said lord the King, committing and being engaged in divers insurrections, riots, and breaches of the public peace, amongst other words, and matter, the false, wicked, seditious, and inflammatory words and matter following, that is to say:— "The late insurrection in Paris has shown how easily a crown can be crumbled. Now is the time to be brave, now is the time to be resolute, and the game's our own. I do not care for those persons who wear other person's clothes; I do not care if what I say is criminal; I shall do all in my power during the next week to put a stop to trade, and urge the Irishmen in London to a rebellion:"-in contempt of our said lord the King, in open violation of the laws of this realm, to the evil and pernicious example of all others in the like case offending, and against the peace of our said lord the King, his crown and dignity. If there be any doubt of being able to prove this precise form of words, you may vary the statement in different counts. For other forms of indictment for seditious words, see R. v. Frost, 22 St. Tr. 471: R. v. Stephens, 3 St. Tr., N. S. 1189: R. v. O'Brien: R. v. Meagher, 6 St. Tr., N. S. 571: R. v. Jones, 6 St. Tr., N. S. 783: R. v. Burns, 16 Cox, 355.

For precedents of indictments for seditious conspiracy, see R. v. Hunt, 1 St. Tr., N. S. 171, 175; 22 R. R. 485: R. v. Feargus O'Connor, 4 St. Tr., N. S. 935, 939: R. v. Thomas Cooper, Id. 1249, 1251, and post, Book. II. Part III., tit. " Conspiracy."

Fine and imprisonment as a misdemeanant of the first division. 40 & 41 Vict. c. 21, s. 40; 61 & 62 Vict. c. 41, s. 6 (ante, p. 988).

Offences against the King's title, prerogative, person, or government, are not triable at quarter sessions. 5 & 6 Vict. c. 38, s. 1 (ante, p. 126).

Evidence.

Prove that the defendant spoke the words set out in the indictment, or at least so much of them as may amount to an indictable offence. R. v. Fussell, 6 St. Tr., N. S. 723: see Cro. Jac. 407. Any variance in substance may be fatal: even where the words were set out in the indictment in the third person, " He is," etc., and proved to have been spoken in the second person, "You are," etc., the variance was held fatal; R. v. Berry, 4 T. R. 217; and where the words set out imported that they were spoken of a thing then present, and the words were proved to have been spoken of a thing not present at the time, the variance was held to be fatal. Walters v. Mace, 2 B. & Ald. 756. The powers of amendment under 14 & 15 Vict. c. 100 (ante, p. 52, et seq.), do not seem to apply where

words are the gist of the offence (see ante, pp. 75, 302). Prove the innuendoes, as in the last precedent, and see the evidence under the last precedent, generally.

Where seditious words are spoken at a meeting, those who do anything, as by expressions of approval, to help the speaker to produce upon the hearers the natural effect of the words spoken, are guilty of uttering seditious words just as if they spoke them themselves. R. v. Burns, 16 Cox, 355, 366, Cave, J., but the merely standing by and saying nothing when the seditious words are spoken does not make the stander-by guilty of uttering seditious words. Id.

SECT. 7.

UNLAWFUL OATHS.

Statutes.

37 G. 3, c. 123 (Unlawful Oaths Act, 1797, s. 1.]-Whereas divers wicked and evil-disposed persons have of late attempted to seduce persons serving in his Majesty's forces by sea and land, and others of his Majesty's subjects, from their duty and allegiance to his Majesty, and to incite them to acts of mutiny and sedition (see 37 G. 3, c. 70, post, p. 1004), and have endeavoured to give effect to their wicked and traitorous proceedings, by imposing upon the persons whom they have attempted to seduce the pretended obligation of oaths unlawfully administered; be it enacted, etc., that any person or persons who shall, in any manner or form whatsoever, administer or cause to be administered, or be aiding or assisting at, or present at and consenting to, the administering or taking of any oath or engagement purporting or intended to bind the person taking the same to engage in any mutinous or seditious purpose, or to disturb the public peace, or to be of any association, society, or confederacy formed for any such purpose, or to obey the orders or commands of any committee or body of men not lawfully constituted, or of any leader or commander or other person not having authority by law for that purpose, or not to inform or give evidence against any associate, confederate, or other person, or not to reveal or discover any unlawful combination or confederacy, or not to reveal or discover any illegal act done or to be done, or not to reveal or discover any illegal oath or engagement which may have been administered or tendered to or taken by such person or persons, or to or by any other person or persons, or the import of any such oath or engagement, shall, on conviction thereof by due course of law, be adjudged guilty of felony, and may be transported for any term of years not exceeding seven years; and every person who shall take any such oath or engagement, not being compelled (see s. 2, infra) thereto, shall, on conviction thereof by due course of law, be adjudged guilty of felony, and may be transported for any term of years not exceeding seven years. [Penal servitude was substituted for transportation by 20 & 21 Vict. c. 3, ante, p. 235.]

Sect. 2.]-Persons compelled to take such oath not justified or excused unless within four days they declare the same.

Sect. 3-Aiders and abettors.]-Persons aiding and assisting at, or present at, and consenting to, the administering or taking of any such