18 &c. Proceedings in a Court of JUSTICE. CHAP. 7. fhall be exhibited, will make it a Libel; because the MifIf Profecu- take of the Court is not imputable to the Party, but to his Counfel. But if it fhall manifeftly appear, that a profecution is intire falfe, malicious and groundless, and commenced, not a with a Defign to go through with it, but only to expofe the Defendant's Character, under the Shew of a legal Proceeding, Serjeant Hawkins fays, he cannot fee any reason why fuch a mockery of public Juftice should not rather aggravate the Offence, than make it ceafe to be one, and make fuch Scandal a good Ground for an Indictment at the Suit of the King, as it makes the Malice Indictment of their Proceeding a good Foundation of an Action on the and Action. Cafe at the Suit of the Party, whether the Court had a Jurifdiction, of the Caufe or not. Hawk. Pl. Cr. 194, Grand Jury's 195. Chap. 73. Sect. 8. But it feems that no Prefentment Prefentment by a Grand Jury can amount to a Libel; because it would no Libel. be of the utmost ill Confequence any way to discourage Such Scan dal good Ground for Difficult to learn the tion of Lake called in them from making their Inquiries with that Freedom, which is neceffary for the public Good, by making them liable to Prosecutions on account of fuch Inquiries. Hawk. Pl. Cr. Abr. 224. Chap. 73. Sect. 7. but in the Book at Large it is Sec. 8. 3 Bac. Abr. 495. The above Cafe of Lake v. King is reported by fo many, and fo differently, that it is with Difficulty we learn, that Adjudica- it was adjudged for the Defendant, and that the Publicav. King. tion of the Petition was held lawful; but it imports us little Law of it of to know the Law of it, becaufe one may venture to say no great it will never come into Practice again. The Reader will Importance. find, in examining the feveral Reports of this Cafe, that Jurifdiction the Jurifdiction of the Houfe of Commons was called fomeof the Houfe what in Question, and Arguments were made in Favour of of Commons the Plaintiff, from the Complaint being made to a Court Question. that had not Power to redrefs it. But a top has been put to all fuch Proceedings for the future, by the interpofition All Petitions of the Commons: They refolved that all Fetitions to them to the Com- were lawful, or at least only punishable by themselves, by mons lawful. the Vote of the 9th of February, 8. W. 3. in the Cafe of Kemp v. Gee, in which Gee is voted guilty of a Breach of Privilege, in fuing Kemp and others for a Libel, which fuppofed Libel was contained in a Petition by them prefented to the House for Redrefs of Grievances. See Lord Ch. Juft. Holt's excellent Argument in the famous Cafe of Afbby v. White, it is verbatim in that Judge's Life lately published, Fol. 72 to 88. Cafe of Gee. Abby v. СНАР. I CHA P. VIII. DISPOSAL of LIBEL S. Libel against a private F one finds a Libel against a private Man, he may either burn it, or deliver it to a Magiftrate immediate- Man may be ly; but if it concerns a Magiftrate, or other public Per- burnt or defon, he ought immediately to deliver it to a Magiftrate, livered to a that the Author may be found out. 15 Vin. Abr. 88. pl. 3. 3 Bac. Abr. 497. Magistrate. a But it has been fince faid, that the not delivering it to a Magiftrate was only punishable in the Star-Chamber, and that the bare having a Libel in one's Poffeffion was no offence. Vent. 31. But by latter Refolutions, it is faid to The bare be Evidence of his being Author or Publisher, for though Poffeffion of he never publishes it, yet his having it in Readiness for vidence of that Purpose, if any Occafion fhould happen, is highly being the criminal, and tho' he might defign to keep it private, yet Author or after his Death it might fall into fuch Hands as might be injurious to the Government, and therefore Men ought not to be allowed to have fuch evil inftruments in their keeping, &c. Trinity Term 9 Wil, & Mar. 1698. K. B. Carth. 409, 410. 12 Mod. 220. Lord Raym. 417. The King v. maft be ei T has been already obferved, that a Libel may be ex-Libeller preffed not only by Printing or Writing, but alfo by ther theCon Signs or Pictures; but it feems that fome of thofe Ways triver Proare effentially necessary; and it is laid down in Lamb's curer, or Cafe, 9 Co. 59. Mo. 813. pl. 1100. that every Perfont convicted of a Libel must be the Contriver, Procurer, or Publisher thereof. 3 Bac. Abr. 495. It hath been strongly urged, that he who writes a Libel, dictated by another, is not guilty of the compofing and making thereof, because it appears that another is the Author or Contriver; but herein the Court held, that the writing being the effential Part of a Libel, the reducing it into writing, in the first Instance, was a making, and differ C 2 ed Publither. other writes approves ed from a transcribing; and according to the Report of this Cafe, in 5 Mod. 163 to 167. it was held, that if one If one dic- (a) dictates and another writes, both are guilty of maktates and an- ing it, for he fhews his approbation of what he writes. So if one repeats, another writes a Libel, and a third a Libel,both are guilty of what is written, they are all Makers of it, as all who making it. concur and affent to the doing of an unlawful Act are guilMurdering a ty. See Ld. Raym. 418. and murdering a Man's ReputaMan's Re- tion by a Libel, may be compared to murdering a Man's putation Perfon, in which all who are prefent and encourage the murdering A&t are guilty, though the wound was given by one only. his Perfon. Hilary Term 7 Wil. 3. 1701. K. B. 5 Mod. 167. Comb. 359. The King v. Pain. compared to under a When a Li- It is faid by Holt Ch. J. that when a Libel appears unbel appears der a Man's Hand-writing, and no other Author is known, Man's Hand he is taken in the Manner, and it turns the Proof upon writing, he him; and if he cannot produce the Compofer, it is hard is taken in to find that he is not the very Man. Ld. Raym. 417. 2 Salk. 419. 12 Mod. 220, 221. the Manner. Finding a writing a king. draws In And it is faid to have been refolved by the Court, that in Man guilty Libels making is the genus, compofing or contriving is one Libel only, Species, writing a fecond Species, and procuring it to be is finding written a third Species: And finding a Man guilty of writhim guilty of one Spe- ing only, is finding him guilty of one Species of (b) makcies of ma-ing. 2 Salk. 419. Lord Raym. 418. 12 Mod. 220. But yet in fome Cafes, the writing of a Libel may be Clerk who a lawful or innocent Act, as by the Clerk that draws the dictment, Indictment, or by a Student or Reporter, who takes Notes Student or of it, because it is not done ad Infamiam of the Party; but who takes abstractedly confidered, the writing a Copy of a Libel is Notes, law- writing a Libel, becaufe fuch Copy contains all Things ful Writers neceffary to the Constitution of a Libel, viz. the scanda lous Matter, and the Writing; and it has the fame pernicious Confequence, for it perpetuates the Memory of the Thing, and fome Time or other comes to be published. Lord Raym. 416, 417. 2 Salk. 418. 12 Mod. 220. Reporter of Libels. Copying a writing it. Comb. 359. (4) But in Carth. 4c6. it is faid, that he who dictated cannot be indicted for this Libel, because he did not write it, and that therefore if the Writer could not, the Crime would go unpunished. (b) Mr. Juftice Rokeby faid, if A. invents the Matter, B. makes Rhime of it, and C. writes it, every one, in common Unde itanding, may be diftinguithed by fome fpecial Term, as A. the Inventor, B. the Poet, C. the Writer, though the Law denominates them all Makers. Lord Raym. 418. The Libel Mak The most material Point fettled by these two Cafes, is, Writer of a that Writing being the Effence of a Libel, the Person er of it, unwho appears to have once written a Libel fhall be confider- lefs Author ed as the Maker of it, if no other be produced as the Au- produced. thor. Lord Chief Justice Holt held, that whoever had a The bare Libel found upon him, was to ftand in the Place of, and Poffeffion of be confidered as the Maker, until he produced another; deemed crifor if he was not the Maker, he ought to have difpofed of minal. the Libel as the Law directs, and the Omiffion of his Duty shall be taken for a Prefumption of his Guilt. a Libel Laws crimi The writing against the known Laws is held to be cri- Writing aminal, 4 Read. Stat. Law 155. for the Laws are the only gainst the Means to preserve the Peace and Order of every Go- nal. vernment, and therefore whatever expofes them, prevents the Peace and Order of the Government to be kept. Barnard. K. B. 163. Fitzgib. 65. Ventr. 293. 3 Keb. Rep. 607. pl. 53. 2 Rol. Abr. 78. pl. 2. ΤΗ CHA P. X. PUBLICATION. Libel, HE reading of a Libel in the Presence of another, Reading a without knowing it before to be a Libel, or the laughing at Laughing at a Libel read by another, or the faying that it, &c. no fuch a Libel is made of 7. S. whether fpoken with or Publication. without Malice, amounts not to a Publication of it. 3 Bac. Abr. 497. no ways pu Alfo it is held, that he who repeats Part of a Libel in Repeating a Merriment, without any Malice or Purpose of Defamati- Libel in on, is no way punishable. M. 627. But Serjeant Haw- Merriment kins fays, that the Reasonableness of this Opinion may nifhable; justly be questioned, for that Jefts of this Kind are not to but of this be endured, and the Injury to the Reputation of the Par- Opinion ty grieved, is no way leffened by the Merriment of him makes a who makes fo light of it. Hawk. Pl. Cr. 196. Chap. 73. Doubt. Sect. 14. Hawkins But it feems to be agreed, if he who hath either read a Lending or Libe! himself, or hath heard it read by another, do after- fhewing a wards maliciously read or repeat any Part of it in the Pre- Libel is a fence of others, or lend or thew it to another, he is guilty of an unlawful Publication of it. 3 Bac. Abr. 497. Writing Publication. Copying a Writing the Copy of a Libel is not a Publication therePublication of fo faid by Holt Ch. Juft. and that writing the original of it. Libel itself is the fame; and if a Publication of it has been proved, it is Evidence that the Publication was by him who had it in his Cuftody. 12 Mod. 220. Lord bel without Raym. 416. 2 Salk. 418. Having Co Py of a Li difcourfing The finding two or three Copies of a Libel in a Perof it, or delivering it,no fon's Chamber, without difcourfing of it, or delivering of Publication. it out, is no Publication. 12 Vin. Abr. 228. pl. 1. Expofing It has been often adjudged, that the exposing a Copy of copy of a fcandalous a Letter fent to another perfon, which contains fcandalous Letter, is Matter, is publishing a Libel; but I don't remember to Publishing & have read, that the Receiver of a Letter is restrained Though the from publishing or fhewing it, if it be directed to him Receiver of tho' feveral Circumftances and Accidents may happen reftrained to make fuch fhewing and publishing very fcandalous to from fhew- the Writer, and then it would feem that he might have an ing it, yet Action, if he could lay it to his Damage. Quare de hoc. See Chap. 2. Libel. a Letter not Quare, whether un der fome particular Circumftan ces an Action would not lie? CHA P. XI. TERS. ; Printing a Libel is publishing it. Publication. PRIN (a) PRINTING a Libel is publishing it, 4 Read. 155. and if a Man is not able to give Account how he came by it, it makes him the Printer, Delivery by and of confequence the Publisher. So the Delivery by a Printer to Printer to S. is a Publication by the Printer, and the Bookfeller a Receiver is an Actor in that Publication, if he does not If a Libel be forthwith carry it to a Magiftrate: If a libellous Paper be found in a found in a Man's Custody, (as upon a Shelf in one's House Shop, or in or Shop, which was S's Cafe) it fhall be thought he any one's printed it, unless he can give a good Account how he Houfe or cu came by it, to excufe himfelf. By Parker Ch. Juft. stody, he Hillary Vacation 3 Geo. 1717. at Guildhall Sittings K. B. Bookfeller's will be deemed the Printer, unlefs good (a) But it hath been held, that the bare printing of a Petition to a ComProof to the mittee of Parliament, (which would be a Libel against the Party complaincontrary. ed of, if it were made for any other Purpole than as a Complaint in a Course of Justice,) and delivering Copies thereof to the Members of the Committee, fhall not be looked upon as the Publication of Libel, in as much as it is juftified by the Order and Courfe of Proceedings in Parlia ment, whereof the King's-Courts will take judicial Notice. 3 Bac. Abr. 498, 12 Via. |