thing be charged as libellous, which is contained in a petition to either house of parliament, however it may affect indivi- [*870] duals, 1 Lev. 240. 1 Saund. 132.; and the reason of this is manifest, because the courts of justice and the great council of the state, are the constitutional tribunals to which grievances should be preferred, and to bring alledged wrongs under their notice, is to support and not to break the peace; since their discussion puts an end to the dispute. So no presentment of a grand jury can be libellous, Moor, 627. And it has been laid down by some of the older writers that no want of jurisdiction in the court before which a complaint is preferred, will take away this protection; because the mistake on this subject is not to be attributed to the error of the party himself, but of his legal adviser, see Hawk. b. 1. c. 73. s. 8. 1 Saund. 131. n. 1.: but it is contended by Hawkins that where it appears from the whole circumstances of the case, that the prosecution is commenced for the mere purpose of libelling, and without any intention to proceed in it, such an abuse and mockery of public justice should not become a shelter for the guilt which, in reality, they increased, id. ibid. and cases there cited.

If a person not only charge another with improper conduct in the course of a judicial proceeding, but afterwards publish it to the world, he will be as much guilty of a libel as if it had arisen directly from the invention of its author, 1 Saund. 133. Hawk. b. 1. c. 73. s. 12. Thus a peer or member of parliament, though privileged to speak his sentiments in the house, may be guilty of a libel by publishing it, however correctly, to the world, 1 Esp. Rep. 228. And if defamatory matter, in the form of a petition to parliament be delivered to any other person except members, the circulation will be criminal, 1 Saund. 131. 1 Sid. 414. Hawk. b. 1. c. 73. s. 12. Even the mere publication of the proceedings at a public office on the examination of a party accused of a crime is illegal, especially if accompanied with observations tending to prejudice the mind of the public against him, 2 Campb. 563. And an order made by a corporation and inserted in their books, that a person against whom a jury have given large damages on an action for a malicious prosecution, has been actuated by motives of public justice, is libellous, as tending to throw discredit on judicial proceedings, 2 T. R. 199. But the delivery of printed copies to all the members and the necessary exposure of the manuscript to the compositors and other workmen concerned in printing it, are not indictable offences, 1. Lev. 240. 1. Saund. 133.

V. Who are liable to be punished criminally for a libel, either as composers or publishers. Without a publication of some kind, the offence of libel is not complete; but the sending a letter to the Crim. Law.

VOL. III.

PP

[*871] party himself, filled with abusive language, is indictable because it tends to provoke him to break the peace in order to revenge the insult he has thus received, 2 Barnard, 102. Hawk. b. 1. c. 73. s. 11. 6 East, 464.; indeed it now appears that the finding the paper in the handwriting of the defendant is such prima facie evidence of a publication by him, as to admit the writing to be read to the jury, 5 Burr. 2689. The mere transcribing, however, of a libel, does not amount to publication, but is a fact from which the jury may infer it according to the circumstances before them, 9 Co. 59. 3 Campb. 210. It is laid down by Lord Coke that to read a libel, or to hear it read, without a previous knowledge of its malignity, or to repeat in order to ridicule or censure it in the hearing of others, is not criminally to publish it, 9 Co. 59. b.; and it has been said that to repeat a libel in mere jest and merriment, is not an indictable offence, Moor, 627: but this may well be disputed; at least if the mirth be directed against the object and not the author of the libel, since there is nothing which tends more to exasperate than ridicule, Hawk. b. 1. c. 73. s. 14. The party who writes a libel dictated by another, with discretion to understand its naturehe who originally procures it to be composed--he who actually composes it he who prints or procures it to be printed -he who publishes or causes it to be published, all, in short, who assist in framing or in diffusing it, are implicated in the guilt of the offence, 1 Salk. 417. Hawk. b. 1. c. 73. s. 10. 2 Campb. 512. but see 3 Campb. 323. And it is no excuse for a printer or publisher, that he was ignorant that he was affording the means of circulating; and even though he is absent from the office or shop at the time, he will be held criminally liable, 20 St. Tr. 803. and see Cuthell's case, Ersk. Speeches, and Lovell's case, and 3 M. and S. 11, 12, &c.

Modes of

tion.

Modes of prosecution.-In cases where the libel is directed prosecu- against the king or his government, the offender is usually prosecuted by ex officio information in the king's bench, filed by the attorney general: the modes of proceeding in which case are detailed in the first volume. When the slander more immediately affects an individual, he may either prefer a bill of indictment in the usual course, or move for leave to file a criminal information in the crown-office: but the court will exert a discretionary power in deciding whether they will thus sanction a prosecution, and will frequently deny it where an indictment might well be supported. Thus, where the application is made a long time after the publication complained of, where too great strictness would discourage use ful investigations, or where the libellous matter is true, an information will not be granted: 1 Stra. 498. Andr. 290. and therefore where the libel contains a direct charge which it

lies in the power of the applicant to deny if false, the court [*872] will require a positive affidavit that the charge is unfounded: Dougl. 284. but where the person slandered is in a foreign country at a great distance so that he cannot make affidavit, where the allegations of the libel go to general character and not to particular facts, to which it would be absurd to require a denial, where the imputation is of seditious language in parliament, which no one can impute, because nothing that passes there is liable to question, such affidavit will not be required. Dougl. 387. ante 1 vol. 857. An indictment seems, however, to be the most easy, as it is the most constitutional remedy.

Indictment or Information.-Venue. It seems that, in case Indictof a libellous letter, the venue may be laid either in the ment. county where it was written and put into the post-office, or in that where it was delivered to the party to whom it was addressed. 1 Campb. 215. 2 Campb. 506. 1 Leach, 143. But the post-mark is not sufficient evidence of a publication in the county whence it is supposed to come on account of the possibility of forgery. 1 Campb. 215. Nor is a mere acknowledgment of the defendant in the county where the venue is laid sufficient to give the court jurisdiction to determine the charge. 7 East, 68. If, however, a person in Ireland procure another to publish a libel in Westminster, he may be indicted in Middlesex. 7 East, 68. 3 Smith, 97. 9. 1 Esp. Rep. 63. 6 East, 589, 590.

Charge, &c. In an indictment for a libel against a parti- Charge, cular individual, his name should be inserted; for if it be &c. stated merely as against certain persons, the proceedings will be invalid. When two persons are guilty of the publication of a libellous song, by singing at the same time, they may be joined in the same proceedings. 2 Burr. 983. It is proper to charge that the defendant composed, printed, and published a libel, because if it appears that he did either, the indictment will be sufficiently supported: ante 1 vol. 251, 296. 2 Campb. 584, 646. but if it be stated in the disjunctive that he composed, &c. or caused to be composed, the allegation will be too uncertain. 8 Mod. 330. ante 1 vol. 236. There is no occasion to allege that the offence was committed with force and arms since the publication of a libel is not a breach of the peace, but only tends to produce it. 7 T. R. 4. Nor is it necessary to state that it was done falsely, because falsehood is no requisite of libel, id. ibid. and if it were, the inference would be that the calumny was false till the contrary appear; but the word maliciously, or falsely, or some other epithet equivalent to it has been holden to be material.

But the most important part of the indictment is, the set

[*873] ting forth the matter charged as libellous. (n) Such circumstances should be previously stated by way of inducement as will be necessary to explain its meaning; and the whole should be so explained by innuendoes as to charge its import as scandalous and criminal. The nature and office of innuendoes must therefore become the objects of a short ininquiry. Style, 392. An innuendo is an averment to explain the defendant's meaning by reference to matter previously introduced into the proceedings. It is necessary only where the intent may be mistaken, or where it cannot be collected from the libel itself. Cowp. 679, 683. 5 East, 463. The practice of overloading the record with innuendoes to explain facts which need no explanation has been recently censured by Lord Ellenborough, who observed that it seemed to proceed on the supposition that the court had no discernment, and the jury no understanding. It is necessary where the words of a writing are general, ironical, or spoken by way of allusion or inference, so that though any man reading it will perceive its offensive meaning, it is by connecting it with some facts or associations not expressed in words but which they necessarily present to the mind. In this case an explanation must be put on the record; because the jury can take cognizance of nothing but what is there stated with legal precision. Cowp. 683. This certainty, it is the object of an innuendo to mark out with the utmost distinctness. It is only explanatory of matter already expressed, which it applies to the part that is ambiguous; but it neither alters nor enlarges the sense of previous averments. 2 Salk. 513. 1 Saund 243. n. (4.) Not only is it unable to create that which did not exist, but it cannot render that certain that before was doubtful, or make that clear which was previously obscure. 5 East, 469. Its simple object is to reduce a natural to a legal certainty: it signifies no more than id est, or scilicet, that such a person means a particular person, or such a thing a particular thing, and must have precedent matter to which it refers. 4 Co. 17 b. Every thing, therefore, intended to be thus alluded to must be stated previous to the innuendo, which is to apply it to the matter charged as libellous. 8 East, 427.6 T. R. 691. Thus, it is erroneous to charge that the defendant said of another, he burnt my barn, adding by way of innuendo, meaning, my barn full of corn," because this is not an explanation of what was said before, but an addition to it. 4 Co. But had it been averred in the introduction that the defendant had a barn full of corn, and that in a conversation

20. a.

(n) As to the meaning of the terms
purport," "tenor," &c. which are

used to preface the statement, see 1 vol. 233, 4, 5.

respecting that barn the words were uttered, the innuendo* [*874] would have been good, and by coupling the libel with the inducement, the sense would have been complete. Cowp. 684. Thus also where in an information for a libel on the justices of Suffolk, it was not stated that the libel was "of and concerning the justices of Suffolk; but an innuendo was introduced averring that certain orders mentioned in the writing, meant orders made by the justices of the peace for the county of Suffolk, the judgment was arrested. Sayer, 280. But had the libel been stated to be of and concerning the justices of Suffolk, or had the libel itself said in any part, that the order was made by the justices, the proceedings would probably have been holden valid: for in Horne Tooke's case, where he was charged in an information with a libel in publishing that Americans had been inhumanly murdered by the king's troops, which was averred to be "of and concerning his majesty's government and the employment of his troops," it was moved in arrest of judgment that there was no averment or innuendo to shew that the employment of the troops was by the king's authority, but it was holden sufficient with reference to the introduction: Cowp. 672. 11 Harg. St. Tr. 291. so where a libel prosecuted respected the management of the navy, and in the introductory part it was described as " of and concerning the royal navy of this kingdom and the government of the said navy." Though the term navy in libel was only explained by the innuendo as "meaning the royal navy of this kingdom," the information was holden proper. 5 Harg. St. Tr. 590. A similar determination took place in The King, v. Matthews, where the words of the seditious matter were "from the solemnity of the chevalier's birth; and if hereditary right be any recommendation, he has that to plead in his favour;" the indictment charged them to have been written " of and concerning the pretender," and "of and concerning his right to the crown of Great Britain ;" and the innuendoes on the term "chevalier," &c. referred to this introductory averment; the charge was regarded as having been specified with sufficient precision. 9 Harg. St. Tr. 682. And whenever the innuendo is erroneous in consequence of its going beyond its office, if the libel be clear to a common intent without it, the defective part may be rejected as surplusage. 8 East, 427. Cro. Car. 512. Cowp. 275. 5 East. 463.

It may be collected from the cases on the subject of innuendoes that it is very material to state that the libel was of and concerning the party intended. If the libel be in a foreign language, it should be set forth in such language as written, and though it is usual to add a translation, this is said not to be requisite or safe; it is however, the practice