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publication of a libel if a party take a copy of it, provided he never
publishes it:(m) but a person who appears once to have written a libel,
which is afterwards publisheh, will be considered as the maker of it,
unless he rebut the presumption of law by showing another to be the
author, or prove the act to be innocent in himself.(?() For by Holt, C. J.,
if a libel appears under a man's handwriting, and no other author is
known, he is taken in the manner, and it turns the proof upon him ;
and if he cannot produce the composer, it is hard to find that he is not
the very man.(o) Where the manuscript of a libel was in the hand-
writing of the defendant, and a printer had printed 500 copies from it,
300 of which had been posted about Birmingham, but there was no
evidence to connect the defendant with the printing or the posting,
except the handwriting, it was held, that there was evidence to go to
the jury that it was published by the defendant, (^j)

The reading of a libel in the presence of another, without previous
knowledge of its being a libel, or the laughing at a libel read by another,
or the saying that such a libel is made by J. S., whether spoken with or
without malice, does not amount to a publication. And it has also been
held, that he who repeats part of a libel in merriment, without any
malice or purpose of defamation, is not punishable : though this has
been doubted, (j) But it seems to have been agreed that if he who hath

(.;■) Rex V. Paine, 5 Mod. 1G5, 1G7.

(k) Lord Tenterden, C. J., and Ilolroyd, J., in Piex v. Burdctt,' 4 B. & A. 9-5. Lord Ten-
terden said "The composition of a treasonable paper intended for publication, has, on more
than one occasion, been held an overt act of high treason, although the actual publication
has been intercepted or prevented, and I have heard nothing on the present occasion to con-
vince my mind, that one ■who composes or writes a libel with intent to defame, may not,
under any circumstances, be punished, if the libel be not published." Ilolroyd, J., said,
"Where a misdemeanor has been committed by writing and publishing a libel, the writing
of such a libel so published is in my opinion criminal, and liable to be punished by the law
of England as a misdemeanor, as well as the publishing it." And again, "The composing
and writing, witli intent and for the purpose above stated, of a libel proved to have been
published by the defendant, is in my opinion of itself a misdemeanor, in whatever county
the publishing of it took place. Upon the principle that an act done, and a criminal inten-
tion joined to that act, are sufficient to constitute a crime, {ante, p. 48,) is should seem that
writing a libel with intend to defame is a crime." C. S. G.

(l) Hex V. Rosenstein,2 2 C. ct P. 414, Park, J. J. A. This count seems clearly bad, on
the ground that no act was charged; it is precisely similar to Rex v. Stewart, ante, p. 48.
C. S. G.

(m) Com. Dig. tit. Libel (B) 2. Lamb's case, 9 Co. 59G, Cut see Rex v. Beare, 2 Salk.
417. 1 Lord Rayra. 414.

(n) Bac. Abr. tit. Libel (B) 1, Lamb's case, 9 Co. 59. The writing a libel may be an
innocent act in the clerk who draws the indictment, or in the student who takes notes of it.
But in a late case (Mahoncy v. Bartlcy, Campb. lilO,) Wood, B., held, on the trial of an
action for a libel, in the shape of an extra-Judicial affidavid sworn before a magistrate, that
a person who acted as the magistrate's clerk was not bound to answer whether by the defen-
dant's orders he wrote the affidavit, and delivered it to the magistrate, as he might thereby
criminate himself.

(o) Rex V. Beare, 1 Lord Raym, 417. 2 Salk. 417.

Ip) Reg. V. Lovett,' 9 C. & P. 402, Littlcd.ale, J.

(q) Bac. Abr. tit. Libel (B) 2. This is doubted in 1 Hawk. P. C. c. 73, s. 14, on the ground
that jests of such a kind are not to be endured, and that the injury to the reputation of the
party grieved is no way lessened by the merriment of him who makes so light of it.
' Eng. Com. Law Reps. vi. 431. - lb. xii. 190. » n,. xxxviii. 183.



249



OF LIBELS. — EVIDENCE OF



[book II.



*250



either read a libel himself, or hath heard it read by another, do after-
wards maliciously read or repeat any part of it in the presence of others,
or lend or show it to another, he is guilty of an unlawful publication of
it.(r) In a late case, however, of an action for libel contained in a cari-
cature print, where the witness stated, that having heard that the
defendant had a copy of this print, he went to his house and requested
liberty to see it, and that the defendant thereupon produced it, and
pointed out the figure of the plaintiff and the other persons it ridiculed,
*Lord Ellcnborough, C. J., ruled, that this was not sufficient evidence
of publication to support the action, (.s)

Proof that the libel was contained in a letter directed to the party, and
delivered into the party's hands, is sufficient proof of a publication upon
an indictment or information. (/)f And delivering a libel sealed, in
order that it may be opened and published by a third person in a distant
county, is a publication. (?() The production of a letter containing a
libel, with the seal broken, and the post-mark on it, is primiX facie
evidence of publication, {x)

In an information for a libel against the doctrine of the Trinity, the
witness of the crown, who produced the libel, swore that it was shown
to the defendant, who owned himself the author of that book, errors of
the press and some small variations excepted. The counsel for the
defendant objected that this evidence would not entitle the attorney-
general to read the book, because the confession was not absolute, and
therefore amounted to a denial that he was the author of that identical
book. But Pratt, C. J., allowed it to be read, saying he would put it
upon the defendant to show that there were material variances, (j/)

It seems to be agreed, that not only he who publishes a libel himself,
but also he who procures another to do it, is guilty of the publication ;
and it is held not to be material whether he who disperses a libel knew
any thing of the contents or effects of it or not, for that nothing would be .
more easy than to publish the most virulent papers with the greatest



Acknow-
ledgment
of defend-
ant.



Procuring
another to
publish is
a publica-
tion.



(r) Bac. Abr. tit. Lihel (B) 2.

(«) Smith V. Wood, 3 Campb. 323. And see Rex v. Paine, 5 Mod. 165, where a qu. is
made in the margin, whether a person who has a libellous writing in his possession, and
reads it to a private friend in his own house, is thereby guilty of puhlishing it.

(0 1 Hawk. P. C. c. 73, s. 11. Bac. Abr. tit. Libel (B) 2. Ante, p. 244, n. (/), Selw. N.
P. 1050, n. (9). And see ante, 244. A further publication is necessary to support an action.
Thus it has been held that where the action was brought for a libel contained in a letter
transmitted by the defendant to the plaintiff, by means of a third person, it is a question
for the jury whether there has been any publication except to the plaintiff himself, and that,
if there has not, the defendant is entitled to their verdict. Clutterbuck v. Chaffers,' 1 Stark,
R. 471. But in another case of an action for a libel contained in a letter written by the
defendant to the plaintiff, it was holden that proof that the defendant knew that the letters
sent to the plaintiff were usually opened by his clerk, was evidence to go to the jury, of the
defendant's intention that the letter should be read by a third person. Delacroix v. Theve-
not,2 2 Stark. R. 63.

(m) Rex V. Burdett,3 4 B. & A, 95, joosi!, 258.

[x) Warren v. Warren, 4 Tyrw. 850. 1 C, M, & R. 360. Shipley v. Todhunter,* 7 C. &
P. 680.

{y) Rex V. Hall, 1 Str. 416.

_ t [The State v. Avery, 7 Conn. 266. Swindle v. The State, 2 Yerger, 581. Depositing a
libel (which was in the form of an anonymous letter,) in the post-office, where it was mailed
and despatched, together with the fact of its production by the plaintiff, on the trial, is suf-
ficient evidence of its publication, without the oath of the person to whom it was addi-essed,
who, living out of the State, was out of the jurisdiction of the court, Callan \. Gaylord,
3 Watts, 321.]

' Eng. Com. Law Reps. ii. 471. 2 ih. jji. 245. » lb. vi. 431.

■» lb, sxxii. 685.



CHAP. XXIV.] MAKING AND rUBLISHING. 250

security, if the concealing the purpoit of them from an illiterate pub-
lisher would make him safe in dispersing them.(.:) Where a reporter
to a newspaper proved that he had given a written statement to the
editor of the paper, the contents of which had been communicated to
him by the defendant for the purpose of such publication, and that the
newspaper then produced was exactly the same, witli the exception of
some slight alterations, not affecting the sense ; it was held that what
the reporter published, in consequence of what passed with the defend-
ant, might be considered as published by the defendant; but that the
newspaper could not be read without producing the written account
delivered by the reporter to the editor. («)

Upon this foundation it has for a long time been held tliat the buying PuMica-
of a book or paper containing libellous matter, in a *booksel]er's shujt, |j'"^||jge^ig„
is sufficient evidence to charge the master with the publication, although and propri-
it does not appear that he knew of any such book being there, or what^tors^of
the contents thereof were, and though he was not upon the premises, jiaj.or.^,
and had been kept away for a long time by illness; and it will not be *25l
presumed that it was bought and sold there by a stranger ; but the
master must, if he suggests any thing of this kind in his excuse, prove
it.(/>) So the proprietor of a newspaper is answerable criminally as well
as civilly for the acts of his servants in the publication of a libel, although
it can be shown that such publication was without the privity of the
proprietor ;(c) for a person who derives profit from, and who furnishes
means for carrying on the concern, and entrusts the conduct of the pub-
lication to one whom he selects, and in whom he confides, may be said
to cause to be published what actually appears, and ought to be answer-
able, although it cannot be shown that he was individually concerned in
the particular publication ;(f?) and these are acts done in the course of
the trade or business carried on by the master. But there may be cases
in which the presumption arising from the proprietorship of a paper may
be rebutted, (e) In a case of an action for a libel, where it appeared
upon the evidence thit the defendant, a tradesman, was accustomed to
employ his daughter to write his bills and letters; that a customer, to
whom a bill written by the daughter had been sent by the daughter, sent
it back on the gi'ound of the charge being too high, and that the bill
was afterwards returned to the customer inclosed in a letter also written
by the defendant's daughter, and being a libel upon the plaintiff who

(z) Bac. Abr. tit. Libel (B) 2. 1 Hawk. P. C. c. 73, s. 10.

(a) A'lams v. Kelly,' R. & M. N. V. C. 157.

(6) Bac. Abr. tit. Lif^d (B) 2. Rex v. Nutt. Fitzgib. 47. 1 Barnard, K. B. "00. 2 Scs3.
Cas. 33. pi. 38. And see also Rex v. Almon, 5 Burr. 2086. And by Lord Hardwickc, in 2
Atk. 472. "Though printing papers and pamphlets is a trade by which persons get their
livelihood, yet they must take care to use it with prudence and caution ; for if they print
any thing that is libellous, it is no excuse to say that the printer had no knowledge of the
contents, and was entirely ignorant of its being libellous."

(c) Rex V. Walter, 3 Esp. N. P. C. 21. And in Rex v. Dod,"2 Sess. Cns. 33, pi. 38, Lord
Raymond, C. J., said, it had been ruled that where a master lived out of town, and liis tr.'idc
was carried on by his servant, tlie master would be chargeable if his servant should publish
a libel in his absence. In 1 Hawk. P. C. c. 73, s. ](), (edit. 7,) is the following marginal
note; " But if a printer is confined in a prison to which his servants have no access, and
they publish a libel without his privity, the publication of it shall not be imputed to him.
AVoodfall's case, Essay on Libels, p. 18. Scd vide Salmon's case, B. R. Ilil. 1777, and Rex
V. Almon, 6 Burr 2087."

(dy Rex V. Gutch,2 Moo. & M. 433, Lord Tenterden, C. J.

{e) Rex V. Gutch, Moo. & M. 438, Lord Tenterden, C. J., and see Rex t-. Almon, 5 Burr,
2G80.

• Eng. Com. Law Rep. xxi. 403. ^ lb. xxii. 352.



251 ' OF LIBELS. — EVIDENCE OP [BOOK II.

had inspected and reduced the hill for the customer; it was holden that

this was not sufficient evidence to go to a jury, cither of command,

authority, adoption, or recognition by the defendant. (/)

6 & 7 W. 4, The proceedings against the printers, publishers, and proprietors of

c. 76, faeih- newspapers for any libel contained in such papers were much facilitated

4o+g^ pro-

ceedings by the 88 Geo. 3, c. 78, which is repealed by the C & 7 Wm. 4, c. 76 ;
agiiinst the Gth section of which enacts, " Tliat no person shall print or publish,
!tc" of ' <^^ shall cause to be printed or published, any newspaperf^) before there
news- shall be delivered to the commissioners *of stamps and taxes, or to the
Ncfper'son propcr authorized officer at the head office for stamps in Westminster,
to print or Edinburgh, or Dublin respectively, or to the distributor of stamps or
publish a q{]^qy proper officer appointed by the said commissioners for the purpose
until a in or for the district within which such newspaper shall be intended to
declaration j^g printed and published, a declaration in writing containing the several
and deliv- matters and things hereinafter for that purpose specified ; that is to say,
ered at the every such declaration shall set forth the correct title of the newspaper
office!*' *° which the same shall relate, and the true description of the house or
*252 building wherein such newspaper is intended to be printed, and also of
the house or building wherein such newspaper is intended to be pub-
lished, by or for or on behalf of the proprietor thereof, and shall also set
forth the true name, addition, and place of abode of every person who is
intended to be the printer, or to conduct the actual printing of such
newspaper, and of every person who is intended to be the publisher
thereof, and of every person who shall be a proprietor of such newspaper
who shall be resident out of the United Kingdom, and also of every
person resident in the United Kingdom, who shall be a proprietor of the

(/) Harding v. Greening,' 8 Taunt. 42, And it was also held in this case that the
daughter could not be compelled to prove by whose direction the letter was written. The
answer would tend to fix herself with the crime of writing it.

(ff) By sec. 4, and schedule A, the Avord newspaper inclvides any paper containing public
news, intelligence, or occurrences printed in any part of the United Kingdom to be dispersed
and made public.

Also any paper printed in any part of the United Kingdom, weekly or oftener, or at
intervals not exceeding twenty-six days, containing only or principally advertisements.

And also any paper containing any public news, intelligence, occurrences, or any remarks
or observation thereon, printed in any part of the United Kingdom for sale, and published
periodically or in parts or numbers, at intervals not exceeding twenty-six days between the
publication of any two such papers, parts, or numbers, where any of the said papers, parts,
or numbers respectively shall not exceed two sheets of the dimensions hereinafter specified
(exclusive of any cover or blank leaf, or any other leaf upon which any advertisement or
other notice shall be printed), or shall be published for sale for a less sum than sixpence,
exclusive of the duty by this act imposed thereon: provided always, that no quantity of
paper less than a quantity equal to twenty-one inches in length and seventeen inches in
breadth, in whatever way or form the same may be made or may be divided into leaves, or
in whatever way the same may be printed, shall, with reference to any such paper, part, or
number as aforesaid, be deemed or taken to be a sheet of paper :

And provided also, that any of the several papers hereinbefore described shall be liable to
the duties by this act imposed thereon, in whatever way or form the same may be printed
or folded, or divided into leaves or stitched, and whether the same shall be folded, divided,
or siitched, or not.

Uze7npiions.

Any paper called " Police Gazette, or Hue and Cry," published in Great Britain by
authority of the Secretary of State, or in Ireland by the authority of the Lord Lieutenant.

Daily accounts or bills of goods imported and exported, or warrants and certificates for
the delivery of goods, and the weekly bills of mortality, and also papers containing any lists
of prices current, or of the state of the markets, or any account of the arrival, sailing, or
other circumstances relating to the merchant ships or vessels, or any other matter wholly
of a commercial nature ; provided such bills, lists, or accounts do not contain any other
matter than what has been usually' compi-ised therein.

1 Eng. Com. Law Rep. iv. 13.



CHAP. XXIV.] MAKING AND PUBLISHING. v 252

same, if the number of such last-mentioned persons (exclusive of the
printer and publisher) shall not exceed two, then of such two persons,
being such proprietors resident in the United Kingdom, the amount of
whose respective proportional sliarcs in the property or in the profit or
loss of such newspaper sliall not be less than the proportional sliarc of
any other proprietor thereof resident in the United Kingdom, exclusive
of the printer and publisher, and also where the number of such proprie-
tors resident in the United Kingdom shall exceed two, the amount of
the proportional shares or interests of such several proprietors whose
names shall be specified in such declaration : and every such declaration
shall be made and signed by every person named therein as printer or
publisher of the newspaper to which such declaration shall relate, and
by such of the said persons named therein as proprietors as shall be
resident within the United Kingdom ; *and a declaration of the like *253
import shall be made, signed, and delivered in like manner whenever Fresh de-
and so often as any share, interest, or property soever in any newspaper [' ^u"*''"" j
named in any such declaration shall be assigned, transferred, divided, or in certain
changed by act of the parties or by operation of law, so that the rcspec- cases,
tive proportional shares or interests of the persons named in any such
declaration as proprietors of such newspaper, or cither of them, shall
respectively become less than the proportional share or interest of any
other proprietor thereof, exclusive of the printer and publisher, and also
■whenever and so often as any printer, publisher, or proprietor named in
any such declaration, or the person conducting the actual printing of tlie
newspaper named in any such declaration shall be changed, or shall
change his place of abode, and also whenever and so often as the title
of any such newspaper or the printing office or the place of publication
thereof shall be changed, and also whenever in any case, or on any occa-
sion for any purpose, the said commissioners, or any officer of stamp
duties authorized in that behalf, shall require such declaration to be
made, signed, and delivered, and shall cause notice in writing for that
purpose to be served upon any person, or to be left or posted at any
place mentioned in the last preceding declaration delivered as aforesaid,
as being a printer, publisher, or proprietor of such newspaper, or as
being the place of printing or publisliing any such newspaper respect-
ively ; and every such declaration shall be made before any one or more Before
of the said commissioners, or before any officer of stamp duties or other ^^^"i"^^-
person appointed by the said commissioners, either generally or specially „j.p {^ ^,3
in that behalf; and such commissioners or any one of them, and such made,
officer or other person, are and is hereby severally and respectively
authorized to take and receive such declaration as aforesaid." (A)

By sec. 8, " all such declarations as aforesaid shall be filed and kept Declnra-
in such manner as the commissioner of stamps and taxes shall direct for i',""/ *° ^l"

. filon, and

the safe custody thereof; and copies thereof, certified to be true copies certified,

as by this act as directed, shall respectively be admitted in all proceedings, cT'es to be
• •/ 1 • • , 1 ^ '' ■ , , / 1- °' admitted in

civil and criminal, and upon every occasion whatsoever, touching any evidence

newspaper mentioned in any such declaration, or touching any publiea- npiinst the

tion, matter, or thing contained in any such newspaper, as f "^nt-lusivc jj^^"""^ ^j^^

evidence of the truth of all such matters set forth in such declaration as same.

are hereby required to be therein set forth, and of their continuance

(h) The same section makes persons knowingly and wilfully making; false or defective
declarations guilty of a misdemeanor ; and sec. 7 imposes a penalty of 60/. on any person
knowingly and wilfully publishing a newspaper where a declaration has not been made.



253 Of LIBELS. — EVIDENCE OF [BOOK II.

respectively iu the same conditiou 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 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 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
*254 *^^ same newspaper, in which *the person sought to be affected on such
Commis- trial did not join; and the said commissioners, or the proper authorized
sioners, officer by whom any such declaration shall be kept according to the
liver certi- directions of this act, shall, upon application in writing made to them or
fied copies j^im respectively by any person requiring a copy certified according to
tions, and this act of any such declaration as aforesaid, in order that the same may
the same to be produced in any civil or criminal proceeding, deliver such certified
in evi- copy or cause the same to be delivered to the person applying for the
deuce. same upon payment of the sum of one shillling, and no more; and in all
proceedings upon all occasions whatsoever a copy of any such declara-
tion certified to be a true copy under the hand of one of the said com-
missioners, or of any officer in whose possession the same shall be, upon
proof made that such certificate hath been signed with the handwriting
of a person described in or by such certificate as such commissioner or
officer, and whom it shall not be necessary to prove to be a commissioner
or officer, shall be received in evidence against any and every person
named in such declaration as a person making or signing the same as
sufficient proof of such declaration, and that the same was duly signed
and made according to this act, and of the contents thereof; and every
such copy so produced and certified shall have the same effect for the
purposes of evidence against any and every such person named therein
as aforesaid, to all intents whatsoever, as if the original declaration of
which the copy so produced and certified shall purport to be a copy had
been produced in evidence, and been proved to have been duly signed
and made by the person appearing by such copy to have signed and
After pro- made the same as aforesaid ; and whenever a certified copy of any such
duction of declaration shall have been produced in evidence as aforesaid against
ration, and ^^7 person having signed and made such declaration, and a newspaper
a newspa- shall afterwards be produced in evidence intituled in the same manner
tuledVs" ^^ *^® newspaper mentioned in such declaration is intituled, and wherein
therein the name of the printer and publisher and the place of printing, shall be
i^ shalTnot *^^ ^^^^ ^^ ^^^ name of the printer and publisher and the place of print-



Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 1) → online text (page 45 of 154)