And as to the plea of the said A. B., by him secondly above pleaded, the said E. F. saith that by reason of any thing in the said second plea of the said A. B. above pleaded in bar alleged, our said Lady the Queen ought not to be precluded from further prosecuting the said indictment against the said A. B.; because he saith that he denies the said several matters in the plea by the said A. B. alleged to be true, and saith that the same are not true, as in the said plea is above alleged; and this he the said E. F. prays may be enquired of by the country. And the said A. B. doth the like. Therefore let a jury, &c.

I know of no instance of a replication of de injuria in criminal cases; and even if there were, yet as the defendant in this case justifies under a statute, that form of replication could not here be adopted. I have therefore followed the directions of the statute, which, after giving directions for the plea, says" to which plea the prosecutor shall be at liberty to reply generally, denying the whole thereof;" it then adds, 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.

Evidence under the General Issue, for the Prosecution.

The publication, &c.] Where the general issue is pleaded, the prosecutor always begins. And to maintain the indictment, he must first prove publication; for unless the libel have been published, those who have composed, written, or printed it, are not punishable. But upon publication being proved, the prosecutor may proceed to give evidence against any of the defendants who may have composed, written, or printed the libel; for they are all principals, and all may be included in the same indictment.

Publishing it in a newspaper is deemed a publication by the proprietor; R. v. Walter, 3 Esp. 21; and if the defendant procured it to be published in a newspaper, it is a publication by him. Adams v. Kelly, Ry. & M., N. P. C. 157. 1 Hawk. c. 73, s. 10. The sale of it in a bookseller's shop is a publicasion by the bookseller. But it is provided, by stat. 6 & 7 Vict. c. 96, s. 7, that whensoever upon the trial of an 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

that the said publication did not arise from want of due care or caution on his part. The libel, if contained in a letter, may be published even by sending the letter to the prosecutor himself. 1 Hawk c. 73, s. 11. In the case of a newspaper, the prosecutor may prove the purchasing of it at the shop or place of publication of the defendant; or he may give in evidence a certified copy of the defendant's declaration of his being the printer or publisher of the paper, procured from the Stamp office, and a copy of the newspaper containing the libel, intituled as therein mentioned, in which case it will not be necessary to prove the purchase of the paper. 6 & 7 W. 4, c. 76. 88. 6—8. And in all cases, the publication must be proved to have been in the county in which the venue is laid. See ante, p. 68.

And as the jury, on not guilty pleaded, are enabled, if the matter published be really not a libel, to give a general verdict of not guilty, although the publication be proved, and are therefore in some degree judges of the law as well as of the fact, it is necessary to state here, shortly, what in law is deemed a defamatory libel on an individual. Writings against individuals, or against any body of persons, such, for instance, as the clergy of a diocese, R. v. Williams, 5 B. & A. 595, accusing them of any offence punishable by law, or imputing to them conduct calculated to degrade them in the eyes of mankind, or expose them to public hatred, contempt, or ridicule, are deemed libels; and as they tend to provoke a breach of the peace, are, if published, punishable as misdemeanors, as above mentioned. 1 Hawk. c. 73, s. 1. So libels may be expressed by signs or pictures, caricatures, hanging in effigy, &c. Id. 88. 2, 3. And, if in writing or printing, it is immaterial whether they be expressed in direct terms, or by way of implication, or ironically, or the like, Id. 8. 4, and see R. v. Kinnersley, 1 W. Bl. 294, R. v. Benfield, 2 Burr. 985, or whether the prosecutor be named expressly, or by initials, or in any other manner showing that it is intended to apply to him. 1 Hawk. c. 73, s. 5.

So publishing libellous matter, reflecting upon the conduct of a person deceased, is in like manner punishable, if it be such as is calculated to incite his surviving relations to a breach of the peace, or expose them to the hatred of the people or their neighbours. See R. v. Topham, 4 T. R. 126.

So, publications tending to degrade and defame persons in considerable stations of power or dignity in foreign countries, may be treated as libels, on the ground that they may tend to involve this country in disputes and war. R. v. Peltier, Starkie on Libel, 218.

That defendant knew it to be false.] This may be proved from the admissions or overt acts of the defendant, or by proof

of any other facts from which the jury may infer it. The prosecutor should first prove that the matter of the libel is false in fact; or the jury may presume it, from the defendant not having specially pleaded the truth of the libel in his justification.

Evidence under the General Issue, for the Defendant.

Denial of publication.] In ordinary cases, the defendant may prove that he did not publish the libel, or write or print it; and we have seen (ante, p. 318) that where, although published by another, and presumptive proof is given that it was published by his authority, he may prove that it was published without his authority, consent, or knowledge. But where it is published in a newspaper, and a certified copy of the defendant's declaration is produced, it is conclusive of his being the printer or publisher of the paper.

Privileged communication.] Where a man gives a true character of a servant, Child v. Affleck, 9 B. & C. 403,-where A. writes to B., complaining of the conduct of a person employed by both of them, in a matter in which they are jointly interested, McDougal v. Claridge, 1 Camp. 267,a communication from a person, desired by a master to inform him of any breach of duty by his servant, Cockayne v. Hodgkinson, 5 Car. & P. 543,-a complaint made to a superior officer of an inferior, bonâ fide and for the purpose of obtaining redress, Woodward v. Lander, 6 Car. & P. 548. Fairman v. Ives, 5 B. & A. 642,-a letter written to a relation, informing her of the character of the person she was about to marry, Todd v. Hawkins, 8 Car.&P. 88,-and the like, are privileged communications, and are not the subject of an indictment for a libel. This is a good defence, therefore, under the general issue.

Proceedings in Parliament.] If a member of Parliament, in speaking in either House, make use of defamatory language with respect to an individual, there is no remedy for it, civil or criminal. So, where papers are published by order of either House, which happen to be defamatory of a private individual, -if he take any proceedings civil or criminal against the publisher, then, upon the latter producing to the court a certificate under the hand of the Lord Chancellor or of the Speaker of the House of Commons, verified by affidavit, stating that the paper in question was published by the defendant by order of the House, the court shall immediately stay the proceedings, which shall thereupon be deemed to be finally determined. 3 & 4 Vict. c. 9. But if a member of Parliament

publish his own speech, R. v. Creevey, 1 M. & S. 273, or if any other person publish it, and it be libellous, it will be no answer to an indictment for the libel, to say that the member was privileged in speaking the matter published in his place in Parliament. So, a person presenting a petition to Parliament, is not liable to indictment or action, if it happen to reflect upon the character of another; 1 Hawk. c. 73, s. 8; and the same, if the party have the petition printed, and distribute copies amongst the members; Id. s. 15; but if he deliver a copy to any other person, he will be just as liable to punishment as for any ordinary publication. Id. s. 12.

Proceedings in courts of justice.] No false or scandalous matter contained in articles of the peace exhibited to justices, or in any other proceeding in a regular course of justice, will make the complaint amount to a libel. 1 Hawk. c. 73, s. 8. And the same, as to statements in the presentment of a grand jury, Id.,-in the finding or judgment of a court martial, Jekyll v. Sir John Moore, 2 New R.341,1 Russ. 224, 225,in affidavits filed or made use of in court, Astley v. Young, 2 Burr. 817,-and the like. But if those, or any other proceedings in courts of justice be published out of court, the party will be liable to indictment, as he would for any other publication of the same libellous matter. R. v. Carlisle, 3 B. § A. 167. R. v. Fleet, 1 B. § A. 379.

What no justification.] But it will be no excuse that the defendant copied the libel from another publication, although he mentioned the source from which he derived it. 1 Russ. 223.

Evidence in respect of the Special Plea.

In support of the plea, stating the truth of the libellous matter, ante, p. 317, the defendant must prove the truth of all the passages which are libellous. If he do not, and the matter he fails to prove be libellous, he must be convicted, and his proof of part can only be taken into consideration by the court in passing judgment; but if the only part he fails to prove, happen not to be libellous, his justification of that part may be rejected as surplusage, and he will be entitled to judgment on that issue.

The prosecutor, on the other hand, will be entitled to disprove the plea, by showing that all the passages in the libel, alleged by it to be true, are false.

Verdict, Judgment, and Costs.

Verdict.] It was holden at one time, that what is or is not libel, was matter of law on the face of the record, for the con

sideration of the court; that the province of the jury was contined to the finding of the fact of publishing and the truth of the innuendoes; and that if the matter published were not a libel, the defendant after conviction might move in arrest of judgment. 1 Hawk. c. 73, s. 16. 5 Burr. 2666. R. v. Dean of St. Asaph, 3 T. R. 428 n. R. v. Withers, 3 T. R.428. But by stat. 32 G. 3, c. 60, s. 1, it was enacted that upon every trial on an indictment or information for a libel, the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue, and shall not be required or directed by the judge to find the defendant guilty, on proof merely of his having published the libel, and of the sense ascribed to the same by such indictment or information. But it is provided that the judge shall, according to his discretion, give his opinion and directions to the jury, in like manner as in other criminal cases; Id. 8. 2; and the jury may, in their discretion, find a special verdict; Id. s. 3; or after a verdict of guilty, the defendant may move in arrest of judgment, as formerly. Id. s. 4.

Judgment.] The punishment for libel at common law, was fine or imprisonment, or both. But the punishment now, so far as respects imprisonment, is limited: by stat. 6 & 7 Vict. c. 96, s. 4, if any person maliciously publish a defamatory libel (meaning the ordinary cases of libels against individuals), the punishment shall be fine or imprisonment or both, the imprisonment not to exceed one year; and by sect. 5, if any person shall maliciously publish a defamatory libel, knowing the same to be false, imprisoment for not more than two years and fine.

And if, after a special plea of justification, averring the truth of the libel, the defendant shall be convicted, 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 disprove the same. 6 & 7 Vict. c. 96, s. 6.

Costs.] If the defendant be acquitted, he shall be entitled to recover from the prosecutor the costs he shall have sustained by reason of the indictment; and in the case of a special justification, if the issue thereon be found for the prosecutor, he shall be entitled to recover from the defendant the costs he shall have sustained by reason of such plea:-such costs so to be recovered by the defendant or prosecutor respectively, to be taxed by the proper officer of the court where the indictment is tried. 67 Vict. c. 96, s. 8.