being justices as aforesaid of the county of aforesaid, who had then and there assembled and met together, with purpose and intent to authorize and empower certain persons, then and there also assembled and attending, to keep respectively in their respective parishes within the said county of certain common inns and alehouses, as by the laws of this realm the said justices as aforesaid were authorized and empowered to do, at which said session so then and there holden as aforesaid, before the justices above named, and others their fellows as aforesaid, came A. B. late of, &c.; and the said A. B. on being then and there, to wit, at the said session so holden as aforesaid, before the said justices as aforesaid, demanded a licence from the said P. Q., R. S., and X. Y. and others their fellows so as before assembled, in order that he the said A. B. might be authorized and empowered, at a certain house known and distinguished by the sign of the White Swan, at, &c. to sell ale for and during the year next ensuing: but the said P. Q., R. S., and X. Y. and others their fellows so then and there assembled, being justices of our said lady the Queen for the county of aforesaid, then and there refused to grant any leave, licence, or authority to the said A. B. to sell ale at — aforesaid, in the county aforesaid, for the sald year then next ensuing; whereupon the said A. B. wickedly and maliciously intending to traduce the authority, and impede the proceedings, as well as to vilify the characters, of the said justices, so being then and there in the due and proper execution of their duties, uttered and pronounced, and loudly published to the said justices so assembled and met together as aforesaid, in the presence and hearing of divers of her majesty's liege subjects, these false, scurrilous, and contemptuous words of and concerning the said P. Q., R. S., and X. Y. and others their fellows, justices as aforesaid, then and there assembled, and of and concerning the execution of their said duties, that is to say, "you are all (meaning the said P. Q., R. S., and X. Y. and others their fellows then and there assembled) a parcel of tyrannical villains, and ought to be hanged for depriving a poor man of his bread," (meaning that the said P. Q., R. S., and X. Y. and others their fellows, then and there assembled, ought to be hanged for depriving him the said A. B. of his bread, by refusing him the said A. B. a licence to sell ale, which he the said A. B. had then and there required from them the said P. Q., &c. and which they the said P. Q., R. S., X. Y. and others their fellows, justices as aforesaid, had then and there refused to grant to him the said A. B.) ; in disturbance of the administration of justice, and against the peace, &c. (8). (s) Scandalous aspersions of a magistrate in the execution of his office, are regarded as criminal, and subject the offender to punishment, at the discretion of the court in which he is convicted; Holt on Lib. 153; 1 Russell, C. & M. 328. And, to these, the rule is strictly confined; for, if the language, however opprobrious, apply only to the justice in his private capacity, no indictment can be supported. So that, if a man at a parish meeting apply to an absent magis trate abusive names, as if he say, "if he is a sworn justice, he is a rogue and a forsworn rogue," or if he apply to him the names of ass, fool, coxcomb, or blockhead, no indictable offence will have been committed; 2 Stra. 1157-8; 2 Salk. 698; 2 Campb. 142. And it seems that to render any words thus indictable, they must be spoken to the magistrate, and not in his absence; 2 Campb. 142; 2 Stra. 1157; 1 Stra. 420-1. 3. OFFENCES AGAINST PUBLIC DECENCY. Indictment for digging up and taking away a Dead Body from a Churchyard (t). That A. B. late of, &c. on, &c. with force and arms, &c. at, &c. the churchyard of and belonging to the parish church of the same parish there situate, unlawfully did enter, and the grave there, in which the body of one M. B. deceased had lately before then been interred, and then was, with force and arms unlawfully, voluntarily, wilfully, and indecently did dig, open, and afterwards, to wit, on the same day and year aforesaid, with force and arms, at, &c. the body of him the said M. B. out of the grave aforesaid unlawfully and indecently did take and carry away; against the peace, &c. Indictment for preventing the Interment of a Dead Body by an Arrest. That A. B. and C. D. on, &c. with force and arms, at, &c. in, &c. a certain dead body, to wit, the body of M. B. then and there being, unlawfully and wickedly did arrest (u), take, and carry away, and cause and procure to be arrested, taken, and carried away, with an unlawful and wicked intention, to prevent the interment and burial of the said dead body of the said M. B. which ought to have been done and performed according to the rites and ceremonies of the church of that part of this realm called England; against the peace, &c. Indictments for keeping a Common Brothel, or Disorderly House :— See post, tit. NUISANCE. Indictment for Bathing publicly near Public Ways and Habitations. That H. O. G. late of unlawfully, deliberately, and wilfully did expose and exhibit himself naked, near to, and in front of, divers houses of the liege subjects of our said lady the Queen, situate at, &c. aforesaid, and also near to a certain public and common queen's highway there, and also in the presence of divers liege subjects of our said lady the Queen, both male and female, with intent to vitiate and corrupt the morals of her majesty's liege subjects, and against the peace, &c. (v). (t) This has always been holden a misdemeanour indictable at common law; 4 Bla. Com. 235; 2 T. R. 733; R. v. Lynn; and so was selling the dead body of a person, capitally convicted, for dissection, whether there was direct evidence or not that the defendant sold the body for lucre and gain and for dissection; R. v. Cundick, 1 D. & R. N. P. C. 13; Graham, B. If the shroud, coffin, or any other chattel accompanying the dead body be taken away, with intent to steal, such taking is a larceny. See 2 & 3 W. IV. c. 75. Anatomy schools. (u) A vulgar notion at one time prevailed, that it was lawful to arrest the corpse of a person deceased for a civil debt due from the party in his life time. Indeed it was not till of very late years that the notion was in any degree exploded. But it is now clearly ascertained, that no such practice is lawful; and indeed that to prevent the body from being interred, is an offence against decency, and as such indictable under the class of misdemeanours; Jones v. Ashburnham, 4 East R. 465; Young's case, 2 T. R. 734; 2 Bla. Com. 472, 8th ed.; 1 Burn's Ecc. Law by Tyrwhitt, 258, 259. (v) Undressing on a beach and bathing in the sea, so near inhabited houses as to be distinctly visible from them, is And the jurors, &c. that the said H. O. G. on, &c. at, &c. unlawfully, deliberately, and wilfully did expose himself naked to divers of her said majesty's liege subjects; against the peace, &c. Indictment for indecently Exposing the Person in indecent Postures (w). That H. O. G. late of, &c. and intending, as much as in him lay, to vitiate and corrupt the morals of her majesty's liege subjects, and to stir up and excite in their minds filthy, lewd, and unchaste desires and inclinations, on, &c. at, &c. unlawfully, wickedly, deliberately, and wilfully did expose and exhibit his private parts, in an indecent posture, situation, and practice, to divers of the liege subjects, both male and female, of our said lady the Queen, with intent to vitiate and corrupt the morals of her majesty's liege subjects, and to stir up and excite in their minds filthy, lewd, and unchaste desires and inclinations; against the peace, &c. SECTION XVIII. LIBELS. Consideration confined to private Libels.]-As indictments for libels on the government and religion have been already noticed, as for offences against public decency, our consideration in this place is restricted to libellous attacks on individuals, which have been always holden indictable in consequence of their tendency to provoke the parties libelled to commit a breach of the peace. This imputed tendency runs through the whole system of the law of criminal libel, and may account for, if it does not justify, some of the anomalies with which it has been frequently charged. Offence.]-Libels may be defined as malicious defamations, made public either by printings, writings, signs, or pictures, tending to expose some living person or body of persons to ridicule or odium, or to blacken the reputation of some person who is dead, and thereby to incite the party libelled in the first instance, and surviving relations in an offence, though the houses are recently erected, and the bathing at that place was previously general; R. v. Crunden, 2 Campb. 89. (w) When an indictment contained two counts, two instances of exposure were allowed to be given in evidence, viz., one on each of two separate days, or two separate instances on the same day; for, as the day laid in the first count was immaterial, exposure on another day may be proved on that count. Then as the second count charged the offence as done on the " day and year on aforesaid," a second exposure, viz. the day laid in the first count may be shown; and if different days are laid in different counts, any number of acts of exposure may be shown; Rowbattel's case, 1 Lewin's Cr. R. 83. the last, to break the peace. To constitute a libel, then, the matter must be defamatory; the mode of publishing it by writing, printing, signs, or pictures; and the publication must be what the law has (rather perhaps to the confusion of the subject) termed malicious. 1. The Matter must be defamatory; but it need not contain a charge of an indictable offence; it is sufficient if it holds up an individual to contempt or ridicule (x). And it is not necessary that the matter should be directly expressed; for if it is conveyed by insinuation or fable, or in the form of ironical praise, so that the meaning is palpable to the common understanding of those who are acquainted with the party, the writer will be equally liable to punishment (y). Nor can he protect himself by the use of initials, or by any other act, if he conveys a defamatory meaning to the apprehension of his readers (z). 2. The Matter must be published and expressed by some visible Sign, Images, or Pictures; for mere words spoken of a private individual, however scandalous, are never the subject of indictment (a). But the exhibition of a libellous picture; the fixing a gallows at a man's door; and the burning him in effigy, amount to libels, and subject the offender to criminal proceedings (b). It is a sufficient publication of libellous matter to send it written in the form of a sealed letter to the party libelled, in order to prosecute an indictment or information, although this would not be a sufficient publication to sustain an action for damages (c). The sale of a libellous pamphlet in the defendant's shop by his agent there for his benefit is said to be a sufficient publication by the defendant, although he was not privy to the contents or sale (d). The delivery of a newspaper to the officer at the stamp-office is a sufficient proof of publication to sustain an indictment for a libel inserted in its columns (e). The usual proof of publication in newspapers is that afforded by 38 G. III. c. 78, requiring an affidavit of proprietorship, printing, and publishing, to be filed at the stamp-office, and making a certified copy of such affidavit primá facie evidence to charge the parties therein described as the pro (x) Bac. Abr. Libel, (A). (z) See Woolnoth v. Meadows, 5 East, R. 464. (a) 3 Salk. 190; 2 Campb. 142. b) Hawk. B. 1, c. 73, s. 2. (c) Phillipsv. Jansen, 2 Esp. Rep. 624. (d) R. v. Cuthell, see 3 Erskine's Speeches, 156; Doctor and Student, Dial. II. cap. 42, 16th edit. p. 235; R. v. Gutch, M. & M. 433, 437 ; AttorneyGeneral v. Siddon and Binns, 1 Tyr. R. 41; Attorney General v. Riddell, 2 id. 523; Colburn v. Patmore, 4 Tyr. 838; Garth v. Howard, 8 Bing. 451; 1 Moo. & Sc. 628. (e) R. v. Amphlet, 4 B. & C. 35; 6 Dowl. & Ry. 125.. prietors, printers, or publishers, with the publication of any newspaper which may be produced, bearing the same title, and purporting to be published at the same place (ƒ). 3. The Intent must be what the Law terms "Malicious;" but this word is used in senses so different from its popular acceptation, that it might have been well if another had been adopted for the purpose. Malice against the individual is certainly not necessary to sustain an indictment for libel; for it may, and often does, happen, that the party responsible for a libel on private character of the foulest nature, is wholly unacquainted with the party libelled, and has no desire to injure him, but publishes the scandal merely for the sake of obtaining profit by pandering to the appetite of the public for personal details. The law, in fact, considers every unwarranted attack on the character of an individual, by printing, or writing, as malicious, that is, as published with an evil or bad intention; and therefore, perhaps, if the word "unlawful" had been used in denoting such writings as, being defamatory and unauthorized by any legal occasion, are indictable, much confusion might have been avoided. What Publication warranted.]-If, then, a published writing be defamatory, the only remaining question is, whether it is warranted by the circumstances of its publication. No such publication is warranted by its truth; for truth is, at least, as much calculated to produce a breach of the peace as falsehood, and, therefore, has been said by some great authorities to be more libellous (g); though the court of queen's bench will never grant a criminal information for a libel without the fullest and most explicit denial on oath, by the complainant, of all the charges which the libel contains. But the publication of defamatory matter may be warranted by circumstances; as where it is written bona fide to put another, who is interested in the character of the party defamed, on his guard; or where it is necessarily published in court on a judicial proceeding. And, probably, a full and fair report of the entire proceedings of a court of final adjudication might be held justifiable, though injurious to the characters of individuals (h), if not containing blasphemous or indecent matter (i). Yet it has been holden that no such protection is afforded to the publication of proceedings (f) Mayne v. Fletcher, 9 B. & C. 382; 4 Man. & Ry. 311; R. v. Frances, 2 Ad. & El. 49; 4 Nev. & Marc. 251; R. v. Donnison, 4 B. & Ad. 699; Cook Ward, 6 Bing. 414; 4 Moo. & Pa. 99. V. (g) 5 Co. 125; Hawk. B. 1. c. 73, s. 6. |