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The guardians of the union or parish in which the child

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may be living must institute the prosecution, and pay the costs thereof out of their funds.

ARTICLE 266.

MASTERS NOT PROVIDING FOR APPRENTICES-ABANDONING CHILDREN UNDER TWO.

Every one commits a misdemeanor, and is liable upon conviction thereof to a maximum punishment of five years penal servitude,

2 who unlawfully abandons or exposes any child being under the age of two years, whereby the life of such child is endangered or its health has been or is likely to be permanently injured.

The words "abandoned" and "expose" include a wilful omission to take charge of the child on the part of a person legally bound to do so, and any mode of dealing with it calculated to leave it exposed to risk without protection.

Illustrations.

(1.) 3B, A's wife, living apart from A, leaves C their child, nine months old, lying in the road outside A's door. A, knowing its position, lets it lie there from 7 p.m. till 1 a.M. A's mother, D, knowing the child is there, and being in her house, acts in the same way as A. A has abandoned and exposed C, but D has not, as she was under no legal obligation to take charge of C.

(2.) A sends B, her child five weeks of age, packed up in a hamper as a parcel, by railway to C, B's putative father, giving directions to the clerk to be very careful of the hamper, and send it by the next train. The child reaches C safely. A has abandoned and exposed B.

"Shall." Does this mean that no one else may do so?

224 & 25 Vict. c. 100, s. 27. Part of sect. 26 refers to the same subject. See Art. 239 (d.), p. 175.

3 R. v.

White, L. R. 2 C. C. R. 311.

R. v. Falkingham, L. R. 2 C. C. R. 222.

CHAPTER XXXII.

*LIBELS ON PRIVATE PERSONS.

ARTICLE 267.

DEFINITION OF LIBEL.

THE word "libel" means

(a.) the offence defined in this Article.

(b.) Anything by the publication of which the offence is committed.

1 Every one commits the misdemeanor called libel who maliciously publishes defamatory matter of any person, or body of persons, definite and small enough for its individual members to be recognised as such, in or by means of anything capable of being a libel in the second sense of the word.

The publication of a libel on the character of a dead person is not a misdemeanor unless it is calculated to throw discredit on living persons.

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Illustrations.

(1.) A religious society called the S. Nunnery, consisting of certain nuns and other persons, may be libelled though no individual is specially referred to.

(2.) A libel may be published against "certain persons lately arrived from Portugal and living near Broad Street," though no particular person is mentioned or referred to.

*See Note X.

"If it be done

11 Hawk. P. C. 542. As to what can be a "libel" see Article 268. As to "publishes," see Article 270; "maliciously," see Article 271. As to libels on the dead see R. v. Topham, 4 T. R. 126. Lord Kenyon's words are, with a malevolent purpose to vilify the memory of the deceased with a view to injure his posterity, then it is done with a design to break the peace." As the design to break the peace is only a legal fiction, and as men intend the natural consequences of their acts, this is equivalent to what is stated in the text.

2 R. v. Gathercole, 2 Lew. 237.

3 R. v. Osborne, 2 Keb. 230.

ARTICLE 268.

THINGS CAPABLE OF BEING LIBELS.

1 Any words or signs conveying defamatory matter marked upon any substance, and any thing which by its own nature. conveys defamatory matter, may be a libel in the second sense of the word before mentioned. Words spoken can in no case be a libel, although they may convey defamatory

matter.

Illustration.

A letter or passage in a book or newspaper, words written on a wall, a picture, a gallows set up before a man's door, may be a libel.

ARTICLE 269.

DEFAMATORY MATTER.

2 Defamatory matter is matter which, either directly or by insinuation or irony, tends to expose any person to hatred, contempt, or ridicule.

Illustrations.

The following are instances of defamatory matter:

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A question suggesting that illegitimate children were born and murdered in a nunnery;

4"A adds to his other vices ingratitude";

5"A will not play the fool or the hypocrite" (meaning that he would); "A has the itch, and smells of brimstone";

An imputation that A (a clergyman) poisoned foxes in a hunting country and hung them by the neck, and was himself hung in effigy for so doing.

13 Russ. Cr. (5th ed.) p. 178; 1 Hawk. P. C. 452; Folkard's Starkie, 151. As to cases in which words spoken amount to a criminal offence, see Articles 67, 91, 161.

2 Folkard's Starkie, 156, 157.

3 R. v. Gathercole, 2 Lew. C. C. 255.

Cox v. Lee, L. R. 4 Ex. 284.

1 Hawk. P. C. 543.

Villars v. Moristen, Holt, 216.

R. v. Cooper, 8 Q. B. 533. I think it might, under special circumstances, be a libel to say of a person a thing apparently quite inoffensive. Suppose, for instance, a man wrote of another "his name is A," meaning that his real name was A, and that the name of B, by which he passed, was falsely assumed, would not this be a libel?

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ARTICLE 270.

PUBLICATION DEFINED.

1To publish a libel is to deliver it, read it, or communicate its purport in any other manner, or to exhibit it to the person libelled, or any other person, provided that the person making the publication knows, or has an opportunity of knowing, the contents of the libel [(SUBMITTED) if it is expressed in words, or its meaning if it is expressed otherwise].

2 A libel published in the ordinary course of the business of any person whose trade it is to deal in articles of the kind to which the libel belongs, is deemed to be published, not only by the person who actually sells or exhibits it, but also by his master if his master has given him general authority to sell or exhibit for his master's profit articles of that kind.

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Provided that whenever, upon the trial of any person for the publication of a libel, evidence has been given which establishes a presumptive case of publication against the defendant by the act of any other person by his authority, the defendant may 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.

* If the proprietor of a newspaper or other periodical work gives general authority to an editor to manage the paper, it is a question of fact whether the proprietor authorized the editor to publish the libel which is the subject of the indictment or information. Authorization is not to be presumed from the mere fact that the general control of the paper was

1 R. v. Burdett, 4 B. & Ald. 95. A libel published to the person libelled is a misdemeanor, because it tends to a breach of the peace, but it is not actionable, as it cannot injure the reputation of the person libelled.

2 Cases in Folkard's Starkie, 427-8; and especially R. v. Almond, 5 Burr. 2686. 36 & 7 Vict. c. 96, s. 7. Probably the effect of such proof would be to excuse the master, though the Act does not say so. See R. v. Almond as to the rule before the statute.

R. v. Holbrook, L. R. 4 Q. B. D. 42.

left to the editor, but may be inferred from circumstances shewing that the proprietor permitted the editor to publish libels, or was indifferent as to whether libels were published by him or not.

Illustrations.

(1.) 'A delivers to Ban open letter, of which A is the author, containing matter defamatory of C. A has published a libel.

(2.) A posts to B a sealed letter, of which A is the author, and which contains a libel on C. It seems that the posting of the letter is in itself

a publication (quære).

(3.) The postman delivers to B the letter mentioned in the last illustration. The postman has not published the letter, but A has.

(4.) A bookseller's shopman sells a libellous book over the counter in the ordinary course of business; both the shopman and the bookseller have published the libel.

ARTICLE 271.

WHEN A LIBEL IS MALICIOUS.

2 The publication of a libel is malicious in every case which does not fall within the provisions of some one or more of the six articles next following.

ARTICLE 272.

PUBLICATION OF THE TRUTH.

3 The publication of a libel is not a misdemeanor if the defamatory matter is true, and if the publisher can shew that it was for the public benefit that such matter should be published.

All these Illustrations are founded on R. v. Burdett, 4 B. & Ald. 95. (1) is assumed by all the judges; (2) is doubted by Bayley, J., p. 153; (3) is given by Best, J., p. 126.

2 In Bromage v. Prosser, 4 B. & C. 247, which is a leading case on the subject, Bayley, J., says, "Malice . . . in its legal sense means a wrongful act done intentionally and without just cause or excuse." From the nature of the case the publication of a libel must be an intentional act. The next six Articles sum up the different states of fact which have been held to constitute "just cause or excuse" for publishing libels. In Bromage v. Prosser and many other cases, much is said of malice in law and malice in fact, of privileged publications, &c., &c.; but a sufficiently simple and intelligible result has at last been reached by very circuitous roads. See Note X.

3 Effect of 6 & 7 Vict. c. 96, s. 6.

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