preliminary to a final inquiry, as at a police office or on a coroner's inquisition (j).

Indictment.]-An indictment for a libel must set out the libellous matter, with such inuendoes as may show on the record that it is of and concerning the prosecutor, and that it contains matter calculated to render him odious or ridiculous; and with such inducements of prefatory matter, as may support such necessary inuendoes. Where the matter is clearly defamatory, it is absurd and dangerous to incumber the record with inducements and inuendoes: but it is sufficient to set out the libel, alleging it to be of and concerning the party libelled (k). But where inuendoes are absolutely necessary to explain the sense, by reference to something which would be understood by the readers, but which does not appear on the face of the libel itself, and must therefore be shown by evidence to the jury, care must be taken to introduce proper averments of the facts, to which the inuendoes may refer, as an inuendo enlarging the sense is vicious (1). To enter into all the niceties of the law on this subject would be far beyond the compass of this work; but these general remarks may be found useful.

Verdict.]-It was formerly a matter of much dispute whether the question as to the libellous character of a publication indicted was for the determination of the court or of the jury; but this question has been set at rest by 32 G. III. c. 60, commonly called Mr. Fox's Libel Bill, by which it is declared and enacted, that in all trials for libel on an issue joined between the king and the defendant, " 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 court to find the defendant guilty merely on the proof of the publication, and of the sense ascribed to the alleged libel." The court may, however, still direct the jury, in their discretion; and the jury may, if they please, find a special verdict.

Punishment.]-The punishment of libel is by fine and imprisonment, in the discretion of the court. To these, in cases of sedition and blasphemy, the pillory was sometimes added, but this is now abolished (m);

(j) R. v. Lee, 5 Esp. Rep. 123; R. v. Fisher and others, 2 Campb. 563; Duncan v. Thwaites, 3 B. & C. 556; 4 Dowl. & Ry. 695; Macgregor v.

Thwaites, 3 B. & A. 24.

(k) Jones v. Stevens, 11 Price, 235.
(1) R. v. Horne, Cowp. 684.
(m) 7 W. IV. & 1 V. c. 23.

and in this case, the court has no power to add hard labour to the

sentence.

Indictment for a Libel on a private Individual (n).

That C. D. late of, &c. unlawfully and maliciously devising, contriving, and intending to scandalize, vilify, and defame one A. B. and to bring him into public scandal, infamy, and disgrace, and to injure, prejudice, and aggrieve him the said A. B., on, &c. with force and arms, at, &c. aforesaid, unlawfully and maliciously did compose and publish, and cause and procure to be composed and published, a certain false, scandalous, malicious, and defamatory libel of and concerning the said A. B., containing therein, amongst other things, the false, scandalous, malicious, defamatory, and libellous words and matter following of and concerning the said A. B., that is to say [here state the libellous matter, with the necessary inuendoes], which said false, scandalous, malicious, and defamatory libel, he the said C. D. afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, unlawfully, wickedly, and maliciously did send and cause to be sent to one E. F. in the form of a letter addressed to the said E. F., and did thereby then and there unlawfully, wickedly, and maliciously publish, and cause to be published, the said libel, to the great damage, scandal, infamy and disgrace of the said A. B., and against the peace, &c.

Indictment for Publishing and Selling an obscene Libel.

That A. B. late of, &c, being a person of a wicked and depraved mind and dispo sition, and unlawfully, wickedly, and impiously designing, contriving, and intending to vitiate and corrupt the morals of the subjects of our sovereign lady the Queen, and to debauch, poison, and infect the minds of the youth of this kingdom, on, &c. at, &c. did unlawfully, wickedly, and impiously publish and sell, and cause and procure to be published and sold, a certain filthy, bawdy, and obscene libel, entitled, "The History of Fanny Hill," in which said libel are contained, amongst other things, divers lewd, impure, and obscene matters, that is to say, in one part thereof, according to the tenor following, viz. [here set out one of the passages]; and in another part thereof (0), according to the tenor following, viz. [here state the other libellous part]; against the peace, &c.

And the jurors, &c. that the said A. B. afterwards, that is to say, on, &c. aforesaid, at, &c. aforesaid, did unlawfully, wickedly, and knowingly publish and sell, and cause and procure to be published and sold, a certain other obscene libel, entitled, "The History of Fanny Hill," in which said last-mentioned libel are contained amongst other things, divers wicked, impure, and obscene prints; against the peace, &c.

Indictment for exposing to Sale an obscene Print.

That H. T. late of, &c. on, &c. and on divers other days and times between that day and the day of taking this inquisition, at, &c. aforesaid, unlawfully, wickedly,

(n) Before the prosecutor can be admitted to read the paper charged as libellous, he must give prima facie evidence of a publication by the defendant. This may be either positive in itself, or

be inferred from facts which are not conclusive; 5 Burr. R. 2689; 4 T. R. 126; 4 Esp. R. 248.

(0) See Tabart v. Tipper, 1 Campb.

352.

deliberately, and advisedly did publish, expose, and show to the sight and view of many of the liege subjects of our said lady the Queen, divers, to wit, six obscene, filthy, and indecent prints, representing men and women in attitudes, situations, and practices of great and scandalous obscenity, lewdness, and indecency; to the great corruption of the morals and manners of her majesty's liege subjects, and against the peace, &c.

And the jurors, &c. that the said H. T. afterwards, to wit, on, &c. at, &c. aforesaid, unlawfully, wickedly, deliberately, and advisedly did utter and publish divers, to wit, six other obscene, filthy, and indecent prints, representing men and women in attitudes, situations, and practices of great and scandalous obscenity, lewdness, and indecency; against the peace, &c.

Indictment for a Libel, by hanging the Prosecutor in Effigy. That B. B. late of N. in the county of N., cordwainer, being a person of a wicked and malicious mind and disposition, and unlawfully, wickedly, and maliciously devising, contriving, and intending to injure, oppress, aggrieve, and vilify the good name, fame, credit, and reputation of G. H., surgeon, and to bring him into great scandal, infamy, contempt, ridicule, and disgrace, on, &c. at, &c. aforesaid, did unlawfully, wickedly, and maliciously make, and cause to be made, a certain gibbet, and also a certain effigy or figure, intended to represent the said G. H., the said effigy or figure having in one of its hands a certain instrument, commonly called a clyster pipe, and in the other of its hands a parchment label, with the letters G. H. inscribed on it; and afterwards, to wit, on the same day and year aforesaid, at N. aforesaid, in the county aforesaid, unlawfully, wickedly, and maliciously erected, set up, and fixed, and caused and procured to be set up, erected, and fixed, the said gibbet or gallows in and upon a certain piece of ground near to a certain common queen's highway, there commonly called the London-road, passing through the town of N. aforesaid, in the county aforesaid, and kept and continued, and caused and procured to be kept and continued, the said gibbet so there erected, set up, and fixed as aforesaid, for a long space of time, to wit, for the space of three days then next following, and during that time, to wit, on the day and year aforesaid, and on every day between that day and the day of the said month of then next following, at N. aforesaid, in the county aforesaid, unlawfully and wickedly, and maliciously hung up and suspended, and caused and procured to be hung up and suspended, the said effigy or figure so having in one of its said hands the said clyster pipe, and in the other the said label, so intended to represent the said G. H., to and upon the said gibbet, and kept and continued, and caused and procured to be kept and continued, the said effigy or figure intended to represent the said G. H. as aforesaid, so hung up and suspended as aforesaid, for a long space of time, to wit, for the space of twelve hours on each of those respective days, and during those times on those respective days, there unlawfully, wickedly, and maliciously published and exposed the said gibbet, with the said effigy or figure, so intended to represent the said G. H. as aforesaid, thereto suspended, to the sight and view of divers and very many of the liege subjects of our said lady the Queen, passing and repassing in and along the common queen's highway aforesaid; to the great scandal, infamy, ridicule, and disgrace of the said G. H., and against the peace, &c.

Indictment for a Libel on a Lady deceased, accusing her of

Incontinence.

That A. B. late of, &c. wickedly and maliciously contriving and intending to injure, defame, disgrace, and vilify the memory, reputation, and character of E. D. late of, &c. widow, deceased, relict of M. J. D. esquire, late of, &c. also deceased, and to bring the family and descendants of the said E. D. into great scandal, infamy, and contempt (p), and to cause it to be believed that the said E. D. in her life-time was a person of depraved, vicious, and lewd mind and disposition, and incontinent behaviour, and destitute of conjugal affection and fidelity towards her said husband, the said M. J. D., and that the said E. D. had led a wicked, profligate, and adulterous course of life, and had been continually from the time of her marriage with the said M. J. D. till near the time of her decease addicted to promiscuous and adulterous intercourse with divers menial servants in the service of her the said E. D. on, &c. at, &c. wickedly, maliciously, and unlawfully did print and publish, and cause to be printed and published in a certain newspaper called and entitled, &c. a certain false, scandalous, and malicious libel of and concerning her the said E. D. [here set forth the libel with the necessary inuendos] ; to the great disgrace and scandal of the memory, reputation, and character of the said E. D., and against the peace (q), &c.

SECTION XIX.
NUISANCES.

Indictable Nuisance, what.]-A common nuisance is an offence against the public, either by doing a thing which tends to the annoyance of the queen's subjects, or by neglecting to do a thing which it is the duty of the party to do, and which the public good requires. The principal cases of nuisance consist,—

1. In omitting to repair Public Highways or Bridges.

2. In obstructing, encroaching on, or annoying the Public in using Public Highways, Bridges, or Shores.

3. In carrying on unwholesome Occupations near to Public Ways or Habitations; keeping Brothels, dangerous Animals, &c.

1. Nuisance by omitting to repair Public Highways and Bridges.The consideration of prosecutions for the non-repair of highways and bridges differs essentially from that of other parts of the criminal law; for though in form they are criminal proceedings, in practice they are usually resorted to as modes of trying disputed questions of liability to repair.

(p) The words in italics form a necessary allegation of the indictment for libelling a deceased person, R. v. Topham, 4 T. R. 126.

(9) The excitement to the relations of

the deceased to break the peace, is the very gist of an indictment for libelling a person who is no longer alive to feel or resent the injury, ibid.

D D

We have seen that no inhabitant of the county in which a nuisance arises from want of repair of a bridge ought to sit as a juror at the trial (r), though both at common law and by statute (s) he may be examined there as a witness. On this account, as well as in all cases in which a difficult question of liability to repair a road or a bridge is pointed out as likely to arise, such indictments when found at the sessions are generally removed into the court of queen's bench by certiorari issued at the instance of either party (t). The record is then sent down to be tried on the civil side at the assizes; either in the adjoining county, or some other place where an impartial trial can be had (u). But as the court has thrown out that the removal of such indictments by certiorari has perhaps been too lax, specific grounds on which legal difficulties will occur, must be stated (v).

But it may be useful to give here a general outline of the law on this subject.

What are Public Ways and Bridges.]-And, first, it may be proper to observe that no prosecution in any form can be sustained for the omission to repair any way or bridge (w) but such as is public, for the

(r) Reg. v. Wilts (Inhabitants of County of), 6 Modern, 307. Vin. Ab. tit. Evidence (G 25).

(s) 1 Ann. st. 1, c. 18, s. 5:-" And whereas many private persons or bodies politic or corporate are of right obliged to repair such decayed bridges and the highways thereunto adjoining; but because the inhabitants of the county, riding, or division in which such decayed bridge or highways lie have not been allowed upon informations or indictments brought against such persons, &c. for not repairing such decayed bridges and the highways thereunto adjoining, by the judges before whom such information or indictment is to be tried, to be legal witnesses; it is enacted and declared, that in all informations or indictments to be brought and tried in any of her majesty's courts of record at Westminster, or at the assizes or quarter sessions of the peace, the evidence of the inhabitants, being credible persons, or any of them, of the town, corporation, county, riding, or division in which such decayed bridge or highway lies, shall be taken and admitted in all such cases in the courts aforesaid, any custom, rule, order, or usage to the contrary notwithstanding."

(t) Subject to the recognizance re

quired by 5 & 6 W. & M. c. 11, s. 6; and certiorari will not be granted if the affidavit does not state specific grounds on which legal difficulties will occur, R. v. Joule, 5 Ad. & E. 539; Nev. & Per. 28, (an indictment for obstructing a highway); and see Reg. v. Josephs, 8 Dowl. P. C. 118. So as to bridges; R. v. Cumberland (Inh.), 6 T. R. 194; 3 B. & P. 354 (notwithstanding 1 A. c. 18, s. 5); 6 Mod. 191, 307; 1 Salk. 350; Stra. 177; 2 Burr. 859; 1 Hawk. c. 77, s. 6.

(u) 6 Mod. 307; 1 Stra. 177; 2 Burr. 859, 860; 1 Hawk. c. 77, s. 6; R. v. Cumberland (Inh.), 6 T. R. 194; R. v. Oxfordshire (Inh.), 4 B. & Cr. 194; 6 Dowl. & Ry. 231, indictment tried in Gloucestershire.

(v) R. v. Joule, 5 Ad. & El. 539, indictment for obstructing a highway; and see Reg. v. Josephs, 8 D. P. C. 118. So as to bridges; R. v. Cumberland (Ink.), 6 T. R. 194; 3 B. & P. 154 (notwithstanding 1 A. c. 18, s. 5); 6 Mod. 191, 307; 1 Salk. 350; Stra. 177; 2 Burr. 859; 1 Hawk. c. 77, s. 6.

(w) A bridge may be a common highway, Regina v. Sainthill, Ld. Raym. 1174; but county bridges are not within the new Highway Act, 5 & 6 W.IV.c.50, unless so specially mentioned (id. s. 5).