privilege, if it is maintainable on other grounds. Nor do I think the privilege is confined to the superior Courts: it is not the tribunal, but the nature of the alleged judicial proceeding, which must be looked at. The point mainly relied on by the plaintiff was, that the application to the magistrate was ex parte, and as such could not be privileged.

Had the matter before the magistrate been in the nature of a preliminary inquiry, and if the ultimate judicial determination was to remain in abeyance until a further investigation, I should have thought there was authority at any rate for the plaintiff's contention; though how far those authorities might be followed in the present day I think doubtful. But the matter of the application was finally disposed of by the magistrate; and I can find no case where a fair report of a judicial proceeding finally dealing with the matter in open Court has been held libellous. There are authorities which, until they are carefully examined, would seem to support the contention that an ex parte proceeding in Court is not privileged. So far as I can ascertain, these are all cases where the proceeding was preliminary, and where there was no final determination at the time of the alleged libellous report. On the other hand, Curry v. Walter and Lewis v. Levy are strong authorities in favour of the report in this case being protected.

Rule discharged.

[Respective functions of jury and Judge.]

PARMITER v. COUPLAND AND ANOTHER.

EXCHEQUER. 1840.

6 MEESON AND WELSBY 105.

This was an action on the case for a series of libels published of the plaintiff, the late mayor of the borough of Winchester, in the Hampshire Advertiser newspaper, between the 17th of November, 1838, and the 2nd of March, 1839, imputing to him partial and corrupt conduct and ignorance of his duties, as mayor and justice of the peace for the borough. The defendants pleaded not guilty. At the trial before Coleridge, J., at the last Winchester Assizes, the learned Judge, in the course of his summing up, stated to the jury that there was a difference with regard to censures on public and on private persons; that the character of persons acting in a public capacity was to a certain extent 1 1 B. and P. 525.

2 E. B. and E. 537; 27 L. J. R. (Q.B.) 282.

public property, and their conduct might be more freely commented on than that of other persons: and having told the jury what, in point of law, constituted a libel, he left it to them to say whether the publications in question were calculated to be injurious to the character of the plaintiff. The jury having found a verdict for the defendants, a motion was made for a new trial.

PARKE, B. I think there was no misdirection on the part of the learned Judge. One of the grounds upon which this rule was obtained was, that the learned Judge ought to have told the jury that the terms of these papers were libellous, and not to have left that as a question of fact for them to determine. But it has been the course for a long time for a judge, in cases of libel, as in other cases of a criminal nature, first to give a legal definition of the offence, and then to leave it to the jury to say whether the facts necessary to constitute that offence are proved to their satisfaction; and that, whether the libel is the subject of a criminal prosecution, or civil action. A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is a libel. Whether the particular publication, the subject of inquiry, is of that character, and would be likely to produce that effect, is a question upon which a jury are to exercise their judgment, and pronounce an opinion, as a question of fact. The Judge, as a matter of advice to them in deciding that question, might have given his own opinion as to the nature of the publication; but was not bound to do so as a matter of law. Mr Fox's Libel Bill was a declaratory Act, and put prosecutions for libel on the same footing as other criminal cases (32 Geo. III. c. 60).

I also think that there was no misdirection in the other part of the learned Judge's summing up, to which an objection was raised. There is a difference between publications relating to public and private individuals Every subject has a right to comment on those acts of public men which concern him as a subject of the realm, if he do not make his commentary a cloak for malice and slander. But any imputation of wicked or corrupt motives is unquestionably libellous; and such appears to be the nature of the publications here. I do not find that the learned Judge stated otherwise: we cannot therefore grant a new trial as for a misdirection.

PART III.

MODES OF LEGAL PROOF.

SECTION I.

PRESUMPTIONS.

[(A) There is so strong a presumption against the commission of any Crime, that it must be proved beyond reasonable doubt.]

REGINA v. FREDERICK GEORGE MANNING AND MARIA MANNING.

CENTRAL CRIMINAL COURT. 1849. "THE TIMES" for Oct. 27, 1849.

[The two prisoners were indicted, before Pollock, L.C.B., Maule, J., and Cresswell, J., for the murder of Patrick J. O'Connor, a Customs Officer, who was the paramour of the female prisoner. The husband was charged as principal in the first degree, and the wife as aider and abettor. The crime was one of such cold-blooded treachery as to be, as the Lord Chief Baron said, "perhaps one of the most unexampled ever recorded in the history of this country." On this account, and partly also because Mrs Manning (the Mademoiselle Hortense of Dickens' Bleak House) had been a lady's maid in the Duke of Sutherland's family, the case aroused extraordinary interest. At the prisoner's house, where O'Connor had gone to dine as a guest, he was killed by many blows and his body was buried under the kitchen floor. Both the prisoners then fled from London.

Wilkins, Serjt., for the male prisoner, urged that the wife had alone committed the murder; her object being robbery.

Ballantine, for the female prisoner, urged that the crime had been committed by the male prisoner alone, in a paroxysm of jealousy.]

POLLOCK, L.C.B., in the course of summing up to the jury, said:There can be no doubt that Patrick O'Connor was murdered. It has not been suggested by either of the learned counsel for the prisoners that anybody out of the house in which the body was found could

have committed the murder and brought the body and deposited it in the kitchen. There can be no doubt, then, that very grave suspicion must exist against the persons living in the house. The two prisoners appear by different counsel; and each attempts to throw the blame of this dreadful crime upon the other. You, however, must come to a conclusion as to where the guilt rests, and whether it belongs to one or the other or to both.

If you think that one is guilty, and the other innocent of participation in the murder, but cannot possibly decide which is the guilty party, you may be reduced to the alternative of returning a verdict of 'Not guilty' as regards both.

Yet, if you consider that one of them was guilty, it will be for you to consider whether, seeing that the murder was committed in the house where both the prisoners lived, it could possibly have been undertaken by the one without the knowledge of the other.... With respect to any question of doubt, your duty is, calmly and gravely to investigate the case, and to see what is the conclusion impressed upon your minds as men of the world, as men of sense, as men of solid justice. If the conclusion to which you are conducted be that there is that degree of certainty in the case that you would act upon in your own grave and important concerns, that is the degree of certainty which the law requires, and which will justify you in returning a verdict of guilty against one or both of the prisoners. It is not necessary that a crime should be established beyond the possibility of doubt. There are crimes committed in darkness and secrecy, that can only be traced and brought to light by a comparison of circumstances, which press upon the mind more and more as they are increased in number. There are doubts involved, more or less, in every human transaction. We are frequently mistaken as to what we suppose we have seen— still oftener as to what we suppose we have heard. In all the transactions of life there is a certain degree of doubt mixed up. But these are not the doubts upon which you act in deciding upon a case so important as this; important for the public, on the one hand, and for the prisoners on the other. I doubt not that you will discharge your duty. You will consider that you have on the one hand a duty to the public-namely, to take care that the guilty shall not escape; and that, on the other, you have a duty to the prisoners-to take care that they shall not be convicted upon any mere surmises or suspicion, upon rash or light grounds, but only on grave and solid reasons presenting themselves to your understandings and leading you to a satisfactory conclusion that one, or that both, must be guilty of the crime.

[Both prisoners were convicted and executed.]

[Hence the Crown must not only prove the crime, but also identify the criminal.]

THE KING v. RICHARDSON AND ANOTHER.

OLD BAILEY SESSIONS.

1785.

LEACH 387.

At the Old Bailey, in June Session 1785, Daniel Richardson and Samuel Grenow were indicted before Mr Justice BULLER for a highway robbery on John Billings.

It appeared in evidence that the two prisoners accosted the prosecutor as he was walking along the street, by asking him, in a peremptory manner, what money he had in his pocket? Upon his replying that he had only two-pence half-penny, one of the prisoners immediately said to the other, "If he really has no more do not take that," and turned as if with an intention to go away; but the other prisoner stopped the prosecutor, and robbed him of the two-pence half-penny, which was all the money he had about him. But the prosecutor could not ascertain which of them it was that had used this expression, nor which of them had taken the half-pence from his pocket.

THE COURT. The point of law goes to the acquittal of both the prisoners. For if two men assault another with intent to rob him, and one of them, before any demand of money or offer to take it be made, repent of what he is doing, and desist from the prosecution of such intent, he cannot be involved in the guilt of his companion who afterwards takes the money; for he changed his evil intention before the act, which completes the offence, was committed. That prisoner therefore, whichever of the two it was who thus desisted, cannot be guilty of the present charge; and the prosecutor cannot ascertain who it was that took the property. One of them is certainly guilty, but which of them personally does not appear. It is like the Ipswich case, where five men were indicted for murder; and it appeared, on a special verdict, that it was murder in one, but not in the other four; but it did not appear which of the five had given the blow which caused the death. And the Court thereupon said that, as the man could not be clearly and positively ascertained, all of them must be discharged. The two prisoners were accordingly acquitted.