publishing a libel without his privity; in which case, it is there said, the libel shall not be imputed to him. The defendant may likewise give evidence to show that the libel was privileged. As to this, we need only refer the reader to what has been said, in preceding chapters of this work, upon privileged publications. PART IV. CHAPTER XI Privilege. The defendant may also prove that the libel is not capable other grounds of the innuendos laid in the indictment, and that it does not of defence. refer to the prosecutor or to the transactions averred; and he may negative the material facts averred. may be read. For the purpose of showing the intention of the defendant, Other passages and explaining the meaning of the libel, he is entitled to from book, &c. have other passages from the book or newspaper, which contains the libel, read; and it is doubtful whether he may not explain his meaning by other works of his. (a) So much as to the defence allowed by the common law. Now, under Lord Campbell's Act, the defendant may, at Plea justifying his peril in case he fail, plead a justification of the libel, in addition to the plea of not guilty. The 6th section of that Act (b) enacts, "that 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 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: (a) Rex v. Lambert and Perry (2 Camp. 398). (b) 6 & 7 Vict. c. 96. libel. PART IV. Provided, also, that in addition to such plea it shall be comCHAPTER XL petent 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 for the defendant to make, under such plea, to any action or indictment or information for defamatory words or libel." Applies only to personal libels. All material allegations must be proved. It is obvious, from the very nature of the case, that this section only applies to libels of a personally defamatory character; for the words require not only that the matter should be true, but that it should be for the public benefit that it should be published; and it would be absurd for any court of justice gravely to inquire whether the publication of blasphemous, obscene, or seditious matter were conducive to the public good. (a) The plea must set out the particular facts which are relied upon as proving the truth of the libel, and also the facts which render the publication for the public benefit; and the defendant must prove all the material allegations of the plea to the satisfaction of the jury, or the prosecutor will be entitled to the verdict. So that, if the libel contain several imputations, and the plea alleges the truth of all, if the evidence fail as to any of them, the verdict must be entered generally against the defendant, although the jury should find some of the imputations true. (b) "It has uniformly been held that, even in a civil action for libel, the plea of justification is one and entire. It raises only one issue; and, unless the whole plea is proved, that issue must be found for the plaintiff. Some difference of opinion has prevailed as to how far a partial proof of the justification ought to operate in reduction of damages; but all authorities agree that there can be no partial finding for the defendant on the ground that the justification is partially established. In a criminal prosecution for a libel, had liberty been given by the Legislature to plead the truth as a defence, without any special direction as to the proceedings in case the whole plea is not proved, the jury could have had no right to find that a part of the justification is proved; for there are no damages to be assessed, and the sentence to be pronounced rests exclusively with the court. But all doubt upon the subject is removed by the express enactment that, whereever there is a conviction after a plea of justification, the court, in pronouncing sentence,' shall consider whether the guilt of the defendant is aggravated or mitigated by the said (a) See Reg. v. Duffy (2 Cox Crim. Cas. 45). (b) Reg. v. Newman (1 E. & B. 558). .... PART IV. plea and by the evidence given to prove or disprove the same.' . . . . It is quite clear that the opinion expressed by CHAPTER XI. the jury on any particular parts of the plea (the whole not being proved) could not be entered on the record." (a) In the next chapter will be seen more fully the " manner now required in pleading a justification to an action." allowed of libel lished without taken. It is not competent to the defendant to prove that the Proof not imputations contained in the libel have been previously having been published by other persons, and that the prosecutor, know- previously pubing of them, has not taken proceedings against the publisher. proceedings Lord Campbell, C.J., refused to admit evidence of this nature on the trial of Dr. Newman for libelling Dr. Achilli; (b) and Coleridge, J., on motion for a rule for a new trial on the ground that the evidence was wrongly rejected, said, "It is said that you are to infer the truth of the statement made by one set of witnesses against the statement made by another set, because the same circumstances with respect to the same party have been stated before, and that this, having been brought to the knowledge of the party, he submitted. The fallacy is in the word 'submission." It comes to this only, that he did not prosecute. There may have been many reasons for that-the anonymous nature of the article, the inability to fix on any particular person, the ignorance whether the charge proceeded from a man of character, the poverty of the party himself, and many other circumstances that might be suggested, preventing a man from instituting proceedings in a court of justice on the first occasion on which the charge was made." (c) The causes which led to the passing of Fox's Libel Act Fox's Libel Act. are matter of history. Erskine, by his intrepid and persistent defence of the Dean of St. Asaph, contributed perhaps more than any man, save Lord Camden, to gain this security for the Press, which, according to Lord Campbell, in effect defines a libel to be "a publication which, in the opinion of twelve honest, independent, and intelligent men, is mischievous, and ought to be punished."(d) on whole The first section declares and enacts "That on every such Jury may give a trial" (i.e., trial of an indictment or information for the general verdict making or publishing any libel), "the jury sworn to try the matter in issue. 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 the defendants guilty, (a) Per Lord Campbell, C.J., 1 El. & Bl. 577. (b) 1 E. & B. 269. (c) Id. 272. (d) 5 Lives of the Chancellors, 350. M M PART IV. merely on the proof of the publication by such defendant or CHAPTER XI. defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or informs- ! tion." Court or judge may give opinion on Sect. 2 provides, "That on every such trial the court or judge before whom such indictment or information shall be matter in issue. 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." Special verdict. Commitment. Acquittal is final. This enactment does not oblige the judge to give his opinion as to whether the publication is a libel, but leaves it to his discretion in each particular case. (a) By the 3rd section the jury are empowered to find s special verdict, as in other criminal cases. Where defendant is convicted on a criminal information, unless the prosecutor consents to his being bailed, it is a matter of course that he should be committed pending the consideration of the judgment. (b) Should the jury acquit the defendant, the matter is deter mined for ever; for the court will never grant a new trial, after an acquittal upon an indictment or information for a felony or misdemeanor, even where there has been a misdirection, (c) except where the case is of the nature of a civi action, such as an indictment for the non-repair of a highway. Lord Campbell, in discharging a rule for a new trial, on an indictment for obstructing the navigation of a stream or sheet of water, said :(d) "The ground of my decision is that this is a criminal proceeding, and that the defendant ought not to be put twice in peril for the same cause. That rests upon a maxim of English law which will, I hope, always be held sacred. I, for my own part, reprobate the recent speculations as to the propriety of granting a new trial after acquittals for felony or murder. If there be an improper conviction, it should be set aside; but I hope the same practice will never prevail in the case of an acquittal When an indictment is instituted purely to raise a question of civil right, I agree with the doctrine which I have found established. But where a real offence is charged, it would be creating a dangerous precedent to grant a new trial after an acquittal." We have quoted this judgment (a) Baylis v. Lawrence (11 A. & E. 920). PART IV. because some text books lay it down as the better opinion that the court may grant a new trial after an acquittal in CHAPTER XI. all cases of misdemeanor. There are certainly no modern cases to support this view: and so far back as the 12th Car. 2, its correctness was denied. (a) When Fox's Bill was before the House of Lords, Lord Thurlow wanted to introduce a clause to authorise the court to grant a new trial, if it should be dissatisfied with the verdict given for the defendant; but Lord Camden, who had charge of the bill in the Upper House, emphatically refused to consent. (b) ment or for While, however, the Act gave to the Press the security of Motion in a real trial by jury, it did not take away the protection of mer the judges, granted on motions in arrest of judgment, and new trial. for a new trial, The 4th section provides, that in case the jury finds the defendant or defendants guilty, he or they may move in arrest of judgment, on such ground and in such manner as by law might have been done before the passing of the Act. This motion must be grounded on some objection appear- Grounds of ing on the face of the record. Mere formal defects cannot be taken advantage of in such a motion; for, by the 25th section of 14 & 15 Vict. c. 100, every objection to any indictment for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash the indictment, before the jury shall be sworn, and not afterwards; and every court before which such objection shall be taken for any formal defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared. to be motion. judgment. Where, from want of proper introductory averments and Arrest of innuendos, the matter on the record does not appear libellous, the court will arrest judgment; and it may be that in some cases, where prosecutions are instituted for alleged libels, no innuendos, or averments could put a libellous gloss on the matter. The Dean of St. Asaph succeeded upon a motion in arrest of judgment, upon the ground that the indictment did not contain a sufficient charge of libel of and concerning the King and his Government. Mr. Justice Willes intimated an opinion that if the indictment had been properly drawn (a) See Rex v. Read (1 Lev. 9; see also 2 Burr. 665; Rex v. Mann, 4 M. & S. 337; Rex v. Wandsworth, 1 B. & Ald. 63). (b) 29 Parl. Hist. 1537. |