as where a person *delivers a letter without knowing its contents, or delivers [*371 one paper instead of another; (a) and evidence to such effect may be produced. Where, therefore, an action was brought against the porter of a coach for a libel contained in a hand-bill, which he had delivered tied up in a paper parcel, evidence was admitted that he delivered the parcel in the course of his business without any knowledge of its contents. (b) 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. (c) It was held, in a case where the supposed libel was 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 disjointed from it by extraneous matter, and printed in a different character. (d) 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.(e)

If a libel imputes to a man a triable offence, proof of the truth of such imputation is inadmissible [without a plea of justification,] 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 rejected; for the persons charged might afterwards come to be tried, and might be prejudiced by the previous inquiry.(ƒ)

Where a libel stated that there was a riot a Carmarthen, and that a person fired a pistol at an assemblage of persons, and it was proposed to prove the truth of these facts in order to enable the jury to decide whether the remarks in the libel were not within the limits of free discussion, it was held that the evidence was inadmissible, for the jury were to judge upon the examination of the libel itself (g)

Where an information for a libel states that certain transactions took place, and that the libel was published of and concerning them, and then sets out the libel as referring to them, and general evidence is given in proof of such transactions on the part of the prosecution, the defendant cannot, therefore, give evidence of the particular nature of those transactions so as to bring into issue the truth or falsehood of the libel. But if such evidence were adduced, bona fide, to show that the transactions referred to in the alleged libel are not the same with those which the information supposes it to have had in view, it is admissible.(h)

*It had been held in many cases, that, on trials for libels, the facts of [*372 writing, printing, or publishing, and the truth of the innuendos inserted in the proceedings, were the only matters to be submitted to the consideration of the jury: but the justice of such doctrine being questioned and ably arraigned, (i) the 32 Geo. 3, c. 60, was passed, sec. 1 of 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 defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information." By sec. 2, "the Court, or judge before whom such indictment or information shall

(a) By Lord Kenyon, C. J., in Rex v. Topham, 4 T. R. 127, 128; Rex v. Nutt, Fitz. 47. And see ante, p. 248, et seq.

(b) Day v. Bream, 2 M. & Rob. 54. Patteson, J., who said "primâ facie he was answerable, he had in fact delivered and put into publication the libel complained of, and was therefore called upon to show his ignorance of the contents."

(c) Rex v. Holt, 5 T. R. 436.

(d) Rex v. Lambert,

(g) Rex v. Brigstock, 6 C. & P. 184 (25 E. C. L. R.), Patteson, J.

(h) Rex v. Grant, 5 B. & Ad. 1081 (27 E. C. L. R.).

Campb. 398.

(i) See the celebrated speeches of Mr. Erskine, in the case of the Dean of St. Asaph, Ridgway's Col., pp. 234, 264, vol. 1.

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."()

In criminal cases the judge is to define the crime, and the jury are to find whether the party has committed that offence; this Act made it the same in cases of libel, the practice having been otherwise before. (1) 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. Whether the particular publication, the subject of inquiry, is calculated to injure the reputation of another, by exposing him to hatred, conteinpt, or ridicule, is a question upon which a jury is to exercise their judgment, and pronounce their opinion, as a question of fact. The judge, as a matter of advice to them in deciding that question, may give his own opinion as to the nature of the publication, but is not bound to do so.(m)1

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 satisfied that he is wrong.(n)

The judgment in cases of libel at common law 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. (o) In some cases prior to the 56 Geo. 3, c. 138, the offender was also sentenced to the pillory. Judgment was given on each of four counts of an information that the defendant be imprisoned on *373] the first count" for the space of two months now *next ensuing;" on the second count, "for the further space of two months, to be computed from and after the end and expiration of his imprisonment" for the offence mentioned in the first count; on the third count, for the further space of two months, to be computed in like manner from the end of the imprisonment on the second count; and on the fourth count, for the further space of two months, to be computed in like manner from the end of the imprisonment on the third count. The third count was adjudged on error to be insufficient: but it was held, that the sentence on the fourth count was not thereby invalidated, and that the imprisonment on it was to be computed from the end of the imprisonment on the second count.(p)

In the case of a blasphemous or seditious libel, the 60 Geo. 3, & 1 Geo. 4, c. 8, s. 4, made a second offence punishable by banishment from the King's dominions, or such punishment as might be inflicted in cases of high misdemeanor; but the 11 Geo. 4 & 1 Will. 4, c. 73, s. 1, repealed "so much and such parts of that Act as relate to the sentence of banishment for the second offence;" consequently the common law punishment alone remains.(g)

(k) Sec. 3 provides that the jury may find a special verdict, in their discretion, as in other criminal cases. And sec. 4, that defendants may move in arrest of judgment as before the passing of the Act.

(1) Per Parke, B., Parmiter v. Coupland, 6 M. & W. 105.

(m) Parmiter v. Coupland, supra; Baylis v. Lawrence, 11 A. & E. 920 (39 E. C. L. R.) ; Paris v. Levy, 9 C. B. (N. S.) 342 (99 E. C. L. R.).

(n) Rex v. Burdett, 4 B. & A. 95 (6 E. C. L. R.).

(0) 1 Hawk. P. C. c. 73, s. 21; Bac. Abr. tit. Libel (C.); Rex v. Middleton, Fort. 201; Reg. v. Dunn, 12 Q. B. 1026 (64 E. C. L. R.). As to the punishment of leasing-making sedition and blasphemy in Scotland, see 6 Geo. 4, c. 47.

(p) Gregory v. Reg. 15 Q. B. 974 (69 E. C. L. R.).

(7) A certificate of every indictment and conviction of every offender convicted of having composed, &c., any blasphemous or seditious libel, is, by sec. 2, to be given 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, &c., where such offender shall be indicted for any second offence, and is to be sufficient proof of the conviction of such offender. And in all cases in which any verdict or judgment by default shall be had against any person

1 In an indictment for a libel, the indictment must set forth matter on its face libellous, in which case the court is to judge whether it be so or not, or it must aver that the matter charged, though not on its face libellous, was intended in fact to be so, and then the question is to be submitted to a jury: State v. White, 6 Ired. 418.

Most important alterations have been made in the law of libel, since the last edition, by Lord Campbell's Act, and it has been thought best to insert it, and the decisions upon it, in this place. By that Act, (r) 6 & 7 Vict. c. 96, s. 3, [*374 *If any person shall publish or threaten to publish any libel upon any other person, or shall directly or indirectly threaten to print or publish, or shall directly or indirectly propose to abstain from printing or publishing, or shall directly or indirectly offer to prevent the printing or publishing, of any matter or thing touching any other person, with intent to extort any money or security for money, or any valuable thing from such or any other person, or with intent to induce any person to confer or procure for any person any appointment or office of profit or trust, every such offender, on being convicted thereof, shall be liable to be imprisoned, with or without hard labor, in the common gaol or house of correction, for any term not exceeding three years: provided always that nothing herein contained shall in any manner alter or affect any law now in force in respect of the sending or delivery of threatening letters or writings."

Sec. 4. "If any person shall maliciously publish any defamatory libel knowing the same to be false, every such person, being convicted thereof, shall be liable to be imprisoned in the common gaol or house of correction for any term not exceeding two years, and to pay such fine as the Court shall award."

Sec. 5. "If any person shall maliciously publish any defamatory libel, every such person, being convicted thereof, shall be liable to fine or imprisonment or both, as the Court may award, such imprisonment not to exceed the term of one year."

Sec. 6. "On the trial of any indictment or information for a defamatory libel, the defendant having pleaded such plea as hereinafter mentioned, the truth of the matters charged may be inquired into, but shall not amount to a defence, unless it was for the public benefit that the said matters charged should be published; and that to entitle the defendant to give evidence of the truth of such matters charged

for publishing any blasphemous or seditious libel, the judge or court may make an order for the seizure and carrying away and detaining all copies of the libel in the possession of the party, or of any other person named in the order for his use. See secs. 1, 2, and also sec. 3, as to Scotland. Secs. 8 and 9 provide for the limitation of actions brought for anything done in the execution of the Act. By sec. 10 the punishment of persons convicted of libel in Scotland is not to be altered.

(r) Sec. 1, for the better protection of private character, and for more effectually securing the liberty of the press, and for better preventing abuses in exercising the said liberty," enacts, "that in any action for defamation it shall be lawful for the defendant (after notice in writing of his intention so to do, duly given to the plaintiff at the time of filing or delivering the plea in such action), to give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so, in case the action shall have been commenced before there was an opportunity of making or offering such apology."

Sec. 2. In an action for a libel contained in any public newspaper or other periodical publication it shall be competent to the defendant to plead that such libel was inserted in such newspaper or other periodical publication without actual malice, and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, he inserted in such newspaper or other periodical publication a full apology for the said libel, or, if the newspaper or periodical publication in which the said libel appeared should be ordinarily published at intervals exceeding one week, had offered to publish the said apology in any newspaper or periodical publication to be selected by the plaintiff in such action; and that every such defendant shall upon filing such plea be at liberty to pay into court a sum of money by way of amends for the injury sustained by the publication of such libel, and such payment into court shall be of the same effect and be available in the same manner and to the same extent, and be subject to the same rules and regulations as to payment of costs and the form of pleading, except so far as regards the pleading of the additional facts herein before required to be pleaded by such defendant, as if actions for libel had not been excepted from the personal actions in which it is lawful to pay money into court under an Act passed in the session of Parliament held in the fourth year of his late Majesty, intituled 'An Act for the further Amendment of the Law and the better Advancement of Justice;' and that to such plea to such action it shall be competent to the plaintiff to reply generally, denying the whole of such plea." By the 8 & 9 Vict. c. 75, s. 2, the defendant is to pay money into court when the plea is filed; and see 15 & 16 Vict. c. 76, s. 70.

as a defence to such indictment or information it shall be necessary for the defendant, in pleading to the said indictment or information, to allege the truth of the said matters charged in the manner now required in pleading a justification to an action for defamation, and further to allege that it was for the public benefit that the said matters charged should be published, and the particular fact or facts by reason whereof it was for the public benefit that the said matters charged should be published; to which plea the prosecutor shall be at liberty to reply generally, denying the whole thereof; and that if after such plea the defendant shall be convicted on such indictment or information it shall be competent to the Court, in pronouncing sentence, to consider whether the guilt of the defendant is aggravated or mitigated by the said plea, and by the evidence given to prove or to disprove the same: provided always, that the truth of the matters charged in the alleged libel complained of by such indictment or information shall in no case be inquired into without such plea of justification: provided also, that, in addition to such plea, it shall be competent to the defendant to plead a plea of not guilty: provided also, that nothing in this Act contained shall take away or prejudice any defence under the plea of not guilty which it is now competent to the defendant to make *375] under such plea to any action or indictment or information for defamatory

words or libel."

Sec. 7. " Whensoever, upon the trial of any indictment or information for the publication of a libel, under the plea of not guilty, evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, it shall be competent to such defendant to prove that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part."

Sec. 8. "In the case of any indictment or information by a private prosecutor for the publication of any defamatory libel, if judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs sustained by the said defendant by reason of such indictment or information; and that upon a special plea of justification to such indictment or information, if the issue be found for the prosecutor, he shall be entitled to recover from the defendant the costs sustained by the prosecutor by reason of such plea, such costs so to be recovered by the defendant or prosecutor respectively to be taxed by the proper officer of the Court before which the said indictment or information is tried."

Sec. 9. "Wherever throughout this Act, in describing the plaintiff or the defendant, or the party affected or intended to be affected by the offence, words are used importing the singular number or the masculine gender only, yet they shall be understood to include several persons as well as one person, and females as well as males, unless when the nature of the provision or the context of the Act shall exclude such construction.""

The prisoner was indicted in various counts for publishing, or threatening to publish, or to abstain from publishing, a certain matter, or a false and scandalous libel with intent to extort money from one W. Gee, and in other counts for publishing a certain false and scandalous libel; every count set out in hæc verba the words published. One of the publications was, "W. Gee, Solicitor, Bishop Stortford. To be sold by auction, if not previously disposed of by private contract, a debt of the above, amounting to £3197, due upon partnership and mortgage transactions." The other was similar, but stated the amount to be £3900. Bramwell, B., was of opinion that these publications were not libellous, as each was a mere offer on the face of it to sell an alleged debt, which it did not necessarily imply an inability to pay, and did not, on the evidence, appear to be false. But he left the case to the jury, telling them what the law in his opinion was, and leaving them to apply it. Bramwell, B., also held that, assuming the intent to extort money were proved, it was not necessary that the matter threatened to be published should be libellous, as the 6 & 7 Vict c. 96, s. 3, has the words "any matter." On the evidence, Bramwell, B., was of opinion that there was no intent to extort money, but only to extort accounts.(rr)

(rr) Reg. v. Coghlan, 4 F. & F. 316.

Where one count charged the defendants with offering to prevent the publishing, and another with threatening to publish certain matters of the prosecutor with intent to extort money, and the defendants appeared to have attempted to obtain money from the prosecutor by leading him to believe that an information for an offence relating to the post-horse duties would be laid against him, and that they would prevent it if he paid them a sum of money, it was held that the evidence did not support the counts.(8)

It has been held in Ireland that to an indictment for publishing in a newspaper "a certain false, defamatory, malicious and seditious libel" concerning Her Majesty's Government and the Parliament of the United Kingdom, with intent to create disaffection and hatred to Her Majesty's Government and the Parliament, a special plea of justification cannot be pleaded under the 6 & 7 Vict. c. 96, s. 6.(t)

Where to a criminal information for a libel the defendant pleaded a justification, alleging that the imputations contained in the libel were true, it was held that it was not competent to the defendant to prove that imputations identical with those in the libel had been previously published in a book.(u)

Where a justification is pleaded under the 6 & 7 Vict. c. 96, s. 6, to an information for a defamatory libel, and the libel contains several distinct imputations, and the plea alleges the truth of *all, and is traversed generally, if the evidence [*376 fail as to any one of them the verdict will be entered generally against the defendant. Where, therefore, upon the trial of such an issue upon such a plea, evidence was offered in support of some only of the imputations, and the jury found that only one of the imputations upon which evidence was offered was proved, the verdict was entered for the Crown generally; for all authorities agree that there can be no partial finding for a defendant on the ground that a justification is partially established. (v)

By the express enactment that, wherever there is a conviction after such a plea of justification "the Court, in pronouncing sentence," shall "consider whether the guilt of the defendant is aggravated or mitigated by the said plea, and by the evidence given to prove and disprove the same," the Court is to consider the evidence on the one side and the other, and to form their own conclusion whether it aggravates or mitigates the guilt of the defendant, and they are to apportion the punishment accordingly. The evidence, as it appears on the notes of the judge who presided at the trial, comes in place of affidavits in aggravation and mitigation of punishment when sentence is to be pronounced, and by that the sentence is to be regulated, and not by any declaration of the jury as to the credit which they think ought to be given to the witnesses (w)

In such a case the defendant may, in mitigation of punishment, show by affidavit that after the publication, but before pleading, information was given to him which, if true, would have supported an allegation in the plea, evidence having been given at the trial to account for the nonproduction of proof, but no evidence in support of the allegation itself. But where a document, which would have supported the plea, has been rejected at the trial for want of authentication by the place of custody or otherwise, its contents are not admissible in confirmation of the defendant's own affidavit that such a document was communicated to him before pleading.(x)

If a libel imputes to a man a triable offence, affidavits of its truth cannot be given in evidence in mitigation of punishment But if a libel imports to be founded on certain newspaper reports, affidavits of the existence of such newspaper reports are admissible; and in such case affidavits of the falsehood of such reports cannot be received in aggravation. A libel imported to be founded on certain newspaper reports, and upon the foundation of those reports charged certain troops with acts of murder: after conviction the defendant offered affidavits that the newspapers did contain those reports, and also other affidavits that the facts were true. The former affidavits were received, because they explained the situation in which the

(8) Reg. v. Yates, 6 Cox C. C. 441.

(t) Reg. v. Duffy, 2 Cox C. C. 45.

(u) Reg. v. Newman, 1 E. & B. 268 (72 E. C. L. R.). See ante, p. 371.
(v) Reg. v. Newman, 1 E. & B. 558 (72 E. C. L. R.).
(w) Ibid.

(x) Ibid.