magistrates, though requested so to do, refused to hear the complaint against him. This evidence was tendered, not as a justification of the libel, by proving the truth of it, but to enable the jury to decide whether, such alleged facts being really true, the remarks charged as libellous were or were not within the limits of free discussion.

But per Patteson, J., "You have put it very ingeniously, but I cannot receive the evidence. The jury are to judge upon the examination of the libel " itself." (z)

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The defendant was afterwards sentenced to be imprisoned for six months.

The case of the King v. Bradley has sometimes been cited to show that evidence of the truth of the libel was admissible on the trial of an information.

This was an information filed against the defendant for a libel, in which he charged the prosecutor, in very opprobrious terms, with having signed at Paris a commission purporting to have been signed at Jamaica. The defendant having been found guilty, and called up for judgment, the defendant spoke in person in mitigation of punishment, and, having gone into much irrelevant matter, was advised by the court to argue upon the ground of his having been in error in making the charge against the prosecutor, saying that they could not allow him to urge the truth of the charge, and show that the commission was a forgery; that he ought not to be permitted to make the charge now, after having been put to fair proof of it at the trial. (a)

It is obvious, however, that the court here alluded, not to the trial, but to the proceedings upon the appli

(z) But see ante, p. 245.

(a) 2 Man. & Ry. 152.

cation for the criminal information. The law upon this point is too well settled, and the practice too uniform, to admit of doubt.

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In the King v. Burdett (b) one of the objections was, that the judge refused to receive evidence of the truth of the facts alleged, or rather assumed, in the libel. Holroyd, J., in his judgment, remarked upon this objection as follows: "Although the objection was made, it was not even attempted to be supported by argument at the trial. Whatever might be the "result of a due inquiry into these facts elsewhere, it "is clear that that was not the proper place or occa"sion for inquiring into them, nor would the writing "be otherwise than in law a libel. It assumes as true

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a statement most highly calumnious on individuals "and on the government, merely from a statement in "a public newspaper, and without the knowledge "whether it were true or not to any or to what "extent, and indulges in the highest strain of invec"tive, for the purpose of inflaming the public, and "raising in their minds the greatest discontent, "disaffection, and alarm. That is in itself a seditious "libel."

In the same case, and upon the same point, Abbott, C. J., said, "The next ground taken in support of the "motion for a new trial was, that the learned judge "had rejected evidence offered at the trial to prove "that some of the King's subjects had been killed and "wounded by the dragoons on the 16th of August, or, "in other words, that evidence of the truth of the fact

alleged in the libel as the foundation and cause of "the remarks therein contained was tendered, and "refused. I am of opinion that this evidence was

(b) 4 B. & A. 95.

"properly refused. The whole history of the law of "libel shows that such evidence has been almost in

variably refused on all occasions of criminal prose"cution for slanderous observations and remarks upon the administration of the government, or upon "the conduct of public or private men. The reason "of this part of the law has been so often explained "that it is altogether unnecessary to enter into it at "present. I will only quote the opinion of one of the "most eloquent writers of antiquity, who united the "characters of philosopher and statesman. Cicero,

having cited the law of the twelve tables, made for "the punishment of any one' qui carmen condidisset "quod infamiam afferret flagitiumve alteri,' imme"diately subjoins, Præclare judiciis enim ac magis"tratuum disceptationibus legitimis propositam viam "non poetarum ingeniis habere debemus nec probrum "audire nisi ea lege ut respondere liceat et judicio "defendere.' The case of the seven bishops has been " mentioned as an instance of such evidence received

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on the part of a defendant; but in that case the "evidence was not offered to prove any matter of fact "mentioned in the supposed libel, which was a peti"tion to the king, but to show that the king had not "the power of dispensing with an act of parliament, "which was matter of law; and the evidence con

sisted of the records of proceedings in parliament, "and was addressed to the court rather than to the

jury. The case of Mr. Horne, tried before my Lord "Mansfield, was also quoted as an instance of receiving "evidence of facts. Upon looking into that case it appears that Mr. Horne, who conducted his own "defence, did not open his evidence to the jury as

usual, but sat down without proposing to call any "witnesses; and when he afterwards proposed to call

66 some, and the attorney general objected, Lord Mans"field said, 'You had better not object, you had "better hear his witnesses,' and they were accord"ingly examined. Such an instance can, in my

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"opinion, be of no avail against the current of prior "and subsequent practice. It certainly can be of no "avail against the opinion of the judges delivered in "the house of lords in answer to a question on this "particular point, propounded to them by the house 66 on the occasion of the passing the statute 32 G. 3. c. 60., commonly called the libel bill; and the still "more important fact that the legislature, having its "attention directed to this subject at that time, left "the law in this respect in the situation wherein the judges reported it to stand. Another case that "occurred before me was also referred to in that case. However, the truth was not offered in evidence by of defence, but the evidence of the falsehood was adduced by the prosecutor as necessary to support the charge. No objection was made on the "part of the defendant; and although I was not free "from doubt in my own mind, yet, adverting to the "particular nature of the supposed libel, which con"tained little more than a narrative of certain facts supposed to have taken place in one of the West "India islands, I did not think myself warranted in "interposing, under the very peculiar circumstances of "that case; and having received evidence of the false"hood, I should most undoubtedly have received evi"dence of the truth, if any such had been offered on "the part of the defendant." (c)

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way

This being a prosecution for a public libel, the doctrine laid down in this case is still law. (d)

(c) 4 B. & A. 181.

(d) But see ante, p. 245.

CHAPTER XVIII.

OF THE CRIMINAL REMEDY,-CONTINUED.

OF THE TRIAL.

THE only topics which suggest themselves under this head are, the power of the judge to amend the indictment in case of variance between the indictment and the libel, and the respective duties of the judge and the jury in the proceedings anterior to the

sentence.

The former of these has been already noticed when treating of the remedy by civil action. (a) The power of the judge in criminal trials is conferred by the 9th Geo.4. c. 15., and is confined to variances between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon the record. The latter of these topics involves the question, so much contested between lawyers and laymen, Whether it be for the court or the country to decide the question of libel or no libel?

Practically, the court and the jury now have a concurrent jurisdiction in this respect; each having the power to determine the point when it is involved in a question coming before them in the exercise of their ordinary jurisdiction. Upon the question of guilty or not guilty, it is impossible to deny that a jury does now in fact decide whether the publication be or be not a libel; and upon demurrer, or motion in arrest of judgment, the court will entertain and decide the

(a) Ante, p. 172; and also p. 246.