child with which she was so pregnant as aforesaid, and being wholly unskilled in the said art, &c. of a midwife, and of no ability to perform and execute the duties thereof, and neg*864] lecting and refusing necessary advice and assistance,* on, &c. aforesaid, at, &c. aforesaid, in, for and about the delivery of the said M. D. of the said child with which she was so pregnant as aforesaid, with force and arms unlawfully, wickedly, ignorantly, rashly, injuriously, unskilfully, improperly, unnecessarily and contrary to good practice in the said art, &c. of a midwife, did then and there cut off, tear off, pull off, separate, sever and dismember, the left arm of the said child with which she the said M. D. was so pregnant as aforesaid, and of which child the said M. D. was then and there about to be delivered, and did also then and there unskilfully, &c. and contrary, &c. make use of and apply in and about the said delivery of the said M. D. certain destructive instruments, to wit, a certain instrument called perforating scissors, and also a certain other instrument called a crotchet, and the said several instruments called perforating scissors and a crotchet, did then and there unskilfully, &c. and contrary, &c. introduce, make use of and apply in and to the womb and body of the said M. D. and with the said destructive instruments called perforating scissors and a crotchet, did then and there unlawfully, &c. and contrary, &c. break in pieces, crush and destroy the ribs and other parts of the body of the said male child, with which she the said M. D. was so pregnant, and of which she was so then and thereabout to be delivered as aforesaid, within the womb and body of the said M.D.; by reason and means of which said unlawful, wicked, injurious, &c. cutting off the arm of the said child as aforesaid, and also of the said unlawful, &c. use and abuse of the said several instruments called, &c. as also by reason and means of the breaking in pieces, crushing and destroying the ribs and other parts of the body of the said child as aforesaid, within the womb and body of the said M. D. as aforesaid, the womb, vagina abdomen, and other parts of generation, and of the body of the said M. D. were by the broken bones of the said child, and by the said instruments, called, &c. then and there greatly torn, lacerated, extended, wounded, injured and hurt, and a great and violent effusion and discharge of blood from the womb and body of the said M. D. was thereby then and there occasioned, of which said tearing, laceration, extension, wounding, injuring and hurting of the womb, vagina abdomen, and other parts of generation, and other parts of the body of the said M. D. as aforesaid, and of the great and violent effusion, &c. of blood from the womb and body of the said M. D. occasioned thereby as aforesaid, she the said M. D. from, &c. until, &c. at, &c. did languish, and languishing did live, on which said day of, &c. she the said M. D. at, &c. of the said laceration, &c. of the womb, &c. and of the body of the said M. D. in manner and form aforesaid, and of the* great and violent effusion, &c. of blood, [*865] from the womb and body of the said M. D. died; to the great scandal, infamy and disgrace of human nature, and of the midwives of this kingdom, to the very great damage of the said J. D. in evil example, &c. and against the peace, &c. OFFENCE OF LIBEL. (m.) PRELIMINARY NOTES UPON THE OFFENCE, MODES OF PRO- [*866] SECUTION, VENUE, INDICTMENT, EVIDENCE, VERdict, JUDGMENT AND PUNISHMENT. Offence. In briefly considering the offence of Libel, we will Offence. enquire, 1st. by what mode of expresssion a libel may be conveyed; 2dly, of what kind of defamation it must consist; 3dly, how plainly it must be expressed; 4thly, what mode of publication is essential; 5thly, who are liable to be punished for a libel criminally, either as composer or publisher. I. By what mode of expression a libel may be conveyed. The most simple idea of libel is where the defamatory matter is reduced into writing. But the exhibition of a picture, intimating that which in print would have been libellous, is equally criminal, 2 Campb. 512. 5 Co. 125. but see 3 Campb. 323. So the fixing a gallows at a man's door, the burning him in effigy, or the exhibiting him in any ignominious manner, is indictable as a libel, Hawk. b. 1. c. 73. s. 2. 11 East 227. But mere opprobrious words, unless they are spoken of a magistrate in his official capacity, or tend immediately to provoke a challenge, are not punishable or criminal in the temporal courts, 3 Salk. 190. 2 Camp. 142. II. What kind of defamation a libel must contain. There is, perhaps, no branch of the law which it is so difficult to reduce to any exact principles, or to compress within a small compass as the requisites of libel. All publications denying the Christian religion to be true-all works casting gross ridicule on the church of England-all writings subversive of morality, and tending to inflame the passions by indecent language-are indictable at common law; and publications, the natural tendency of which is to excite sedition, to bring (m) As to this offence in general. see Hawk. b. 1. c. 73. Com. Dig. Libel. Bac. Abr. Libel. Holt on Libels. George on Libel. Starkie on Slan- either the constitution of this country or government in general into contempt, are highly criminal. But it has been laid down that the imputation of mere error in judgment, even to the sovereign himself, if done "with perfect decency and [*867] respect* and without any imputation of bad motives," is not libellous, 2 Campb. 402. The question then with respect to publications on the king and his ministers, is whether bad motives are imputed to them by the writer, and whether they are couched in terms that are decent and respectful. From hence it will follow, that though the tendencies of measures may be discussed with temperance, they must never be imputed to corrupt design, that no member of the government must be charged with corruption, or with a wish to infringe on the liberties of the people: this indeed, follows from the definition of libel itself, as applied to individuals. It is said to be "a malicious defamation tending to blacken the memory of one who is dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule," Hawk. b. 1. c. 73. s. 1. And nothing can be clearer than that truth is no justification of defamatory writings, as far as respects criminal prosecutions, for this reason, that the criminal law subjects libellers to punishment, not as a mode of redress to the party libelled, but on account of such libel having a tendency to occasion a breach of the peace, Bul. N. P. 9. Selwyn, N. P. Libel, 2nd ed. 1047, note 6.: and it has been argued, that as truth is more likely to provoke animosity than falsehood, it is in fact more libellous, 5 Co. 125. Hawk. b. 1. c. 73. s. 6. And, as the officers of state have at least the same privileges with other persons, it follows that to write truth though ever so notorious, respecting them, which tends to "blacken their reputation, and expose them to public hatred, contempt, or ridicule," is, in itself, a libel. It is true the term "malicious" is introduced into the definition by Hawkkins; but in this case as in murder and many others, the quality is rather a legal inference from the crime than one of its constituent parts, Gilbert's cases, L. and E. 190. 1, 2, &c. : indeed there is never any occasion to prove it; and, in the cases of printers and publishers, we find men repeatedly convicted where it is probable they were ignorant of the contents of the papers they were assisting to circulate, 5 Burr. 2686. 20. St. Tr. 803. Cobbet's ed. Whether or not the party acted maliciously makes, therefore no difference in practice. The doctrine of libels is founded solely on a regard to public tranquility it puts the merits and the feelings of individuals out of the question; and this consideration may, in some degree elucidate a subject which, in itself, appears so perplexing. It is further to be collected that, in order to constitute a libel it is not necessary that any thing criminal should be im puted to the party injured; it is sufficient if the writer has exhibited him in a ludicrous point of view, has pointed him out as an object of ridicule* or disgust, has in short, done that which has a natural tendency to excite him to revenge, 2 Wils. 403. Bac. Abr. Libel A 2. 4 Taunt. 355.3 Campb 214. And therefore, words in themselves not scandalous, become criminal if put in writing so that they tend in any degree to a man's discredit, Hardw. 470. Bac. Abr. Libel A. 2. It is also said that this applies still more strongly to persons employed in public capacities, id. ibid. So that to publish any thing which "tends in any degree to the discredit" of the ministry or of public functionaries, whether true or false, is libellous. And this seems to be the true boundary of the freedom of discussion. A greater latitude of observation has, however, been allowed on books, than on characters. When a work is sent into the world, the author subjects it to fair and impartial criticism. "That publication," said Lord Ellenborough, "I shall never consider as a libel, which has for its object not to injure the reputation of any individual, but to correct misrepresentations of fact, to refute sophistical reasonings, to expose a vicious taste in literature, or to censure what is hostile to morality," 1 Campb. 352.: for this purpose the critic may employ ridicule however poignant, 1 Campb. 357. and it is even allowed to attack the author himself, so far as he has mixed himself up with the composition he has thought fit to publish, but the moment the critic travels from the book to follow the writer into his private life, and leaves his works to attack his character, the criticism becomes libellous, 1 Campb. 355. It is laid down generally by the older writers, that it is equally libellous to throw a shade over the memory of the dead as to detract from the reputation of the living, 5 Co. 125. Hawk. b. 1. c. 73. s. 1.; but on the principle which constitutes the criminality of libels, this can only be true when the writing has a tendency to create a breach of the peace, by inciting the friends and relatives of the deceased to avenge the insult offered to the family: and it is therefore now holden to be necessary to aver in the proceedings and prove on the trial, that the publication was intended to create disturbance, to throw scandal on the family or descendants of the party accused, or to induce some one to break the peace for the purpose of vindicating the deceased, 4 T. R. 126. III. How plainly the scandal must be expressed. It seems to be deducible from the cases on this subject, that if the matter be understood as scandalous, and is calculated to excite ridicule or abhorrence against the party intended, it is libellous, however it may be expressed, 5 East 463. 1 Price, 11. [*868] 17. 18. Irony may convey imputations more effectually than direct assertion; thus it has been holden, that where a man [*869] reckons up the acts of charity of another, and then tauntingly adds, "You will not play the Jew nor the hypocrite," evidently insinuating that all his munificence arises from the love of ostentatious display, the publication will be libellous, Hob. 215. So where the writer pretends to hold up the characters of public men to imitation, by praising them for qualities they are charged with wanting, and which from their situations they would not be expected to possess; as if he sets forth an illiterate general as a great scholar, or a statesman accused of wanting active courage as a gallant soldier, he will be considered as imputing to them the want of those endowments as a disgrace, Hawk. b. 1. c. 73. s. 4. And the circumstance of initials being substituted for the name of the party libelled will form no excuse to the writer, if his meaning is sufficiently obvious to the reader, for it would be absurd if that which is sufficiently plain to work all the mischief of a malignant slander, and which all who read it understand, should be regarded as too obscure to be visited by justice, or understood by juries and judges; and therefore the declarations of spectators attending the exhibition of a libellous picture, may be admitted as evidence to shew that the parties intended by the figures are known to common observers, 2 Campb. 512. 5 East 463. The supposed libel must however contain unequivocal expressions of bad character. Formerly it was said no writing could be esteemed a libel except it reflected on some individual; and that mere obscene ribaldry, without reflection on any one, is not an indictable offence, though the party might be compelled to find sureties for his good behaviour, as being a person of ill fame, Hawk. b. 1. c. 73. s. 9.; but it is quite clear that there is not the least ground for this distinction. Immoral publications are punishable-not perhaps so properly under the denominations of libels-because they tend to destroy the morality of public feeling, and to produce many of those crimes which require to be visited with more severe penalties, 2 Stra. 788. ante 46. And treatises against civil government, or hereditary right in general, are indictable upon the same principle with writings which affect individuals. IV. What mode of publication will excuse matter otherwise libellous. It is certain that no allegation, however false or malicious, contained in articles of the peace, in answers to interrogatories, in affidavits duly made, or in any other proceedings in a regular course of justice, will render the party indictable as a libeller, though the offensive matter may be ordered to be struck out, with costs, 4 Co. 14. 2 Burr. 807. Hawk. b. 1. c. 73. s. 8. 1 Saund. 131. n. 1.; nor can any |