For a long time, and during a critical period in our history, the question who were the proper judges of the character of the matter charged in an indictment as libellous-the court or the jury-was much contested, and eminent judges ruled that the fact of writing, printing, or publishing the alleged libel and the truth of the innuendos inserted in the indictment, were alone to be submitted to the jury,—that with the guilt or innocence of the accused generally they had no concern (a). The important question thus agitated was settled by Mr. Fox's Libel Act, the 32 Geo. 3, c. 60, intitled "An Act to remove Doubts respecting the Functions of Juries in case of Libel." This statute, after reciting that "doubts have arisen," whether on the trial of an indictment or information for making or publishing any libel, where an

*issue is joined between the crown and the defendant, on the plea of [*176]

not guilty, "it be competent to the jury, impannelled to try the same, to give their verdict on the whole matter in issue," proceeds to declare (b) and enact, "that on every such trial, the jury sworn 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." But it is provided, that the court shall direct the jury according to their discretion, as in other criminal cases (c); that the jury shall have the same liberty as in regard

(a) R. v. Dean of St. Asaph, 21 St. Tr. 837; R. v. Woodfall, 20 Id. 895; R. v. Cuthell, 27

Id. 641.

(b) In R. v. Cobbett, 29 St. Tr. 1, 49, Lord Ellenborough, C. J., thus addressed the jury in reference to the above enactment:"I never doubted that an English jury had the right of judging in these cases, not only of the fact of publication, but also of the nature and construction of the thing published. The Act of Parliament is merely declaratory;

and, had it not passed, I should nevertheless have submitted the whole case to your consideration. On the three following points you have to exercise your judgment:-first, the preliminary allegations and innuendos; secondly, the fact of publication; thirdly, the quality and sense of the thing published. This is the matter at issue."

(c) See further as to the duty of the judge at a trial for libel, post, p. 178.

has been limited by statutory or constitutional provisions, substantially to the effect that the truth may be given in evidence as a defense, when it appears that the publication was made with good motives and for justifiable ends. See Com. v. Snelling, 15 Pick. (Mass.) 337; Com. v. Bonner, 9 Metc. (Mass.) 410; Barthelemy v. People, 2 Hill, 248; State v. White, 7 Ired. (N. C.) 180. Among the States adopting this limitation of the common-law rule may be mentioned Maine, Massachusetts, New York, Pennsylvania, Ohio, Delaware, Michigan, Indiana, Illinois, Kentucky, Arkansas, and Mississippi.

A statute of the United States applicable to the District of Columbia provides that "the truth may be given in evidence under the general issue as a justification of the alleged libel; and if it appears that the matter charged as libelous was true, or published with good motives or justifiable ends, the defendant shall be acquitted." Stat. of Feb. 25, 1865; 13 Stat. at Large, ch. 58, p. 439.

If the publication be malicious, the defendant is guilty of libel although the words be true, and were uttered under a sense of duty. Gage v. Robinson, 12 Ohio, 250; Com. v. Sanderson, 3 Penn. Law Jour. 259; People v. Stone, 5 Boston Law Rep. 153. And this rule is in no way affected by the fact that by the law the truth is in such case admissible. Stow v. Converse, 4 Conn. 17; Com. v. Snelling, 15 Pick. (Mass.) 337; Root v. King, 7 Cow. 613; Sterling v. Sherwood, 20 Johns. 204. So where a party attempts to justify by proving the truth, the justification must be as broad as the charge. It is not sufficient to show that part of the matter is true. State v. Burnham, 9 N. H. 34; Usher v. Severance, 20 Me. 9.

to other offences of finding a special verdict, and the defendant the same right of moving in arrest of judgment, which was allowed him before the passing of the statute.

Whether, however, a particular publication be so far noxious in its bearing and tendencies, as to amount in the abstract to a libel, is a pure question of law. But if the publication in consideration of law be libellous, then it is a question of fact for the jury, whether it was wilfully and maliciously published, subject, however, to the ordinary presumption of law, that in the * absence of proof to the contrary, a man intends that which is the [*177] natural consequence of his act. Proof of the public sale or exposal to sale of a libellous paper in the defendant's shop by his servant is at common law sufficient prima facie evidence to convict the master of the house or shop of a publication. In such a case publication by the servant is presumed to be with the assent of the master, and so to have been equivalent to publication by him (d). However, in this particular a material change for the better has been made by the stat. 6 & 7 Vict. c. 96, s. 7, which provides, that 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 did not arise from want of due care or caution on his part. (679)

The criminal procedure for any libel inserted in a newspaper has been much facilitated by express enactment. The principal statute now operative upon this subject is the 6 & 7 Will. 4, c. 76 (e), which in substance provides that, where the libel complained of is contained in a newspaper, and the defendant is indicted for having printed and published it, in order to prove the defendant to be printer, publisher, or proprietor of the newspaper, a certified copy of the affidavit, filed at the stamp-office in pursuance of sec. 6 (which mentions the names and places of abode of the printer, publisher, and proprietors of the paper, title of the paper, and the place where it is printed), will be conclusive evidence against the persons who signed the affidavit, and primá facie evidence against others therein mentioned, of a publication by the parties described therein as printer, publisher, and so forth, in a news[* 178] paper, entitled in the same manner as that mentioned in the affidavit, and bearing the same names as the printer and publisher, and the same place of printing (f); and this certified copy, on proof of the signature of the officer making it, is evidence, not only of the contents of the affidavit, but also of its having been duly sworn by the persons who appear by the copy to

*

(d) R. v. Almon, 20 St. Tr. 803, 38, 842; R. v. Cuthell, 27 Id. 641; R. v. Lovett, 9 C. & P. 462.

(e) See also 60 Geo. 3, c. 9, s. 8; 11 Geo. 4 & 1 Will. 4, c. 73. (f) S. 8.

(679) It has uniformly been the law in this country, even in the absence of any statutory guarantee, that it is the right of the jury to give their verdict on the whole issue, and to decide the question whether the matter charged be libelous or not, as well as the question of fact as to the publication and the truth of the innuendoes. State v. Allen, 1 McCord (S. C.), 525 ; State v. Lehre, 2 Brev. (S. C.) 446; 2 Whart. Crim. Law, § 2584. See People v. Crosswell, 3 Johns. Cas. 337.

have sworn it (g). By the 13th sect. of the same statute, the printer or publisher of every newspaper is obliged to deliver at the stamp-office one of the papers so published, signed by him, with his name and place of abode; and the commissioners of stamps, on application by any person, are required to produce the same in evidence, or may give it to the person applying for that purpose, on receiving reasonable security for its return (h).

The office of the judge who presides at a criminal trial is in general to define the crime; the province of the jury being to find whether or not the accused person has committed that particular offence. By Mr. Fox's Act, as already stated (i), the practice at a trial for libel was assimilated to that which in other cases had obtained. Neither the jury nor the parties consequently can require from the court any specific and direct opinion upon the case sub judice, but the course has long been for the judge 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 have been proved to their satisfaction. "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 enquiry, is of that character, and would be likely to produce that effect, is a question upon which

a jury is to * exercise their judgment, and pronounce their opinion [*179]

as a question of fact" (j). The judge, as a matter of advice to them in deciding that question, may indeed give his own opinion as to the nature of the publication, but is not bound to do so as a matter of law (k).

At common law the punishment for libel is fine, and the finding sureties to keep the peace (7); and now, as we have seen, the publication of a defamatory libel, with knowledge of its falsehood, subjects the offender to imprisonment not exceeding two years, and fine (m). And the malicious publication of any defamatory libel renders the party liable, on conviction, to fine or imprisonment, or both, the imprisonment not to exceed the term of one year (n).

In the above and the other cases formerly considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is essential to the nature of a free state; but this consists in laying no previous restraints upon publications not in allowing freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution (0),

*

is to subject freedom of sentiment to the prejudices of one man, and [*180] make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects. A man may be allowed to keep poisons in his closet, but not publicly to vend them as cordials. And the only plausible argument heretofore used for restraining the just freedom of the press, viz., that it was necessary to prevent the daily abuse of it-will entirely lose its force, when it is shewn (by a seasonable exertion of the laws) that the press *cannot [*181] be abused to any bad purpose, without incurring a suitable punishment: whereas it never can be used to any good one, when under the control of an inspector. So true will it be found, that to censure the licentiousness, is to maintain the liberty, of the press.

printers, and of presses which each should employ, and prohibited new publications, unless previously approved by proper licensers. On the demolution of this odious ju. risdiction in 1641, the long parliament of Charles I. after their rupture with that prince, assumed the same powers as the starchamber had exercised with respect to the licensing of books; and in 1643, 1647, 1649, and 1652 (Scobell, i. 44, 134; ii. 88, 230) issued their ordinances for that purpose, founded principally on the starchamber decree of 1637. In 1662 was passed the statute 13 & 14 Car. 2, c. 33, which (with some few alterations) was

(680)

copied from the parliamentary ordinances. This act expired in 1679, but was revived by statute 1 Jac. 2, c. 17, and continued till 1692. It was then continued for two years longer by statute 4 Will. & M. c. 24; but though frequent attempts were made by the government to revive it, in the subsequent part of that reign (Com. Journ. 11 Feb. 1694; 26 Nov. 1695; 22 Oct. 1696; 9 Feb. 1697; 31 Jan. 1698), yet the parliament resisted it so strongly, that it finally expired, and the press became properly free in 1694; and has ever since so continued.

(680) This subject, "the liberty of the press," will be found elaborately discussed in the following cases: People v. Croswell, 3 Johns. Cas. 336; S. C., 3 Wheeler's Crim. Cas. 329; Thomas v. Cromwell, 7 Johns. 264; King v. Root, 4 Wend. 113. And see Cramer v. Riggs, 17 Wend. 209; Steele v. Southwick, 9 Johns. 214; Scheckell v. Jackson, 10 Cush. (Mass.) 25; Robbins v. Treadway, 2 J. J. Marsh. (Ky.) 540; Sandford v. Bennett, 24 N. Y. (10 Smith) 20; Reade v. Sweetzer, 6 Abb. N. S. 9, note; More v. Bennett, 48 N. Y. (3 Sick.) 472.

An editor may comment freely on the acts of government, officers or individuals, and indulge in occasional mirth and wit, and it is only when the character of the publication is malicious, and its tendency to degrade and excite to revenge, that it is condemned by the law, and subjects the publisher to prosecution. Tappan v. Wilson, 7 Ohio, 190, 193.

* CHAPTER XI.

OFFENCES AGAINST PUBLIC TRADE.

[*182]

OFFENCES against public trade, so far as they fall within the scope of this portion of our Commentaries, may very briefly be discussed:

I. Smuggling is the offence of importing goods without paying the duties. imposed thereon by the laws of the customs and excise, or of importing or exporting goods which are prohibited. This was from time to I. Smuggling. time restrained by statutes, which have been recast and consolidated in the 16 & 17 Vict. c. 107, whereby persons are to be adjudged guilty of felony:

1. Who, to the number of three or more armed with firearms or other offensive weapons, are within the United Kingdom, or within the limits of any port, harbour, or creek thereof, assembled in order to be aiding and assisting in the illegal landing, running, or carrying away of any prohibited goods, or goods liable to duties which have not been paid, or secured, or in rescuing or taking away such goods after seizure from the officer of the customs or other officer authorised to seize the same, or from any person or persons employed by them or assisting them, or from the place where the same have been lodged by them, or in rescuing any person who may have been apprehended for an offence made felony by any act relating to the customs, or in preventing the apprehension of any person guilty of such offence, and any persons who, to the number of three or more, so armed as aforesaid within the United Kingdom, or within the limits of any port, harbour, or creek thereof, are so aiding or assisting (a).

[*183]

2. Any person who, in company with more than four others, is found with any goods liable to forfeiture under any act relating to the customs or excise, or in company with one other person within five miles of the sea-coast or of any navigable river, and carrying offensive arms or weapons, or disguised in any way (b).

By the 244th section, any person who, after sunset and before sunrise, between the 21st of September and 1st of April, or after eight in the evening and before six in the morning, at any other time in the year, makes, aids, or assists in making any signal, on board any vessel, or on any part of the coast of the United Kingdom, or within six miles of the coast, for the purpose of giving notice to any person on board any smuggling vessel, is rendered guilty of a misdemeanor (c).

II. Another offence against public trade is fraudulent bankruptcy, in connection with which I shall here barely mention the several spebankruptcy. cies of fraud taken notice of by the statute law.

II. Fraudulent

(a) S. 248. Punishment: penal servitude for life, or for not less than fifteen years; or imprisonment for not more than three years. (b) S. 250. Punishment: penal servitude for not more than seven, nor less than five

years.

As to the offence of shooting at revenue vessels, or officers of the customs, post, chap. 13.

(c) Punishment: a fine of 100%., or imprisonment with hard labour for any term not exceeding one year.