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defendant is evidence.
one case it was held, that proof of the prisoner's cohabiting with and acknowledging himself married to a former wife then living, such assertion being backed by his producing to the witness a copy of a proceeding in a Scotch court against him and his wife for having contracted the marriage improperly (the marriage, however, being still good according to that law) was sufficient evidence of the first marriage ; and upon such evidence, together with due proof of the second marriage, the prisoner was convicted. The point being reserved for the opinion of the judges, the whole (with the exception of Perryn, B., and Buller, J., who were absent), held the conviction proper. Two of them observed that this did not rest upon cohabitation and bare acknowledgment; for the defendant had backed his assertion by the production of the copy of the proceeding: but some of the judges thought that the acknowledgment alone would have been sufficient, and that the paper produced in evidence was only a confirmation of such acknowledgment. (9)
Where it was proved that the prisoner being charged with bigamy made a statement before a justice, in which he expressly declared that he had married his first wife, who was then present, Mr. J. Erskine left the case to the jury, observing, that this was not an incautious statement made without due attention, but that the prisoner's mind was directed to the very point by the charge made against him. (r)
After proof of the first marriage the second wife may be a witness : but it is clear that the first and true wife cannot be admitted to give evidence against her husband. (s)
The prisoner was indicted for having married A. Walker, his first wife, A. Armstrong being alive: the prisoner's first marriage with A. Armstrong was proved. The prisoner's defence was, that the first marriage was void, as A. Armstrong had a husband living at the time, and he proposed to call A. Armstrong to prove that fact; it was objected to her competency, that the fact of her marriage with the prisoner having been proved, she must be taken to be his lawful wife. Mr. B. Alderson was at first inclined to think that she might be examined simply to the fact of her being the wife or not of the prisoner; but after conferring with Williams, J., he determined not to receive her evidence, but to reserve the point. (t)
The true wife cannot be a witness.
(9) Truman's case, Nottingham Spr. Spr. Ass. 1839. It seems quite clear that Assizes, 1795, decided upon by the judges this is the proper course on the general in East. T. 1795, MS. Jud. i East, P. C. principle that everything which a prisoner c. 12, s. 10, p. 470, 471, where see some says against himself is proper for the conremarks as to the admission of a bare ac- sideration of the jury, who are to ascribe knowledgment in evidence in a case of this such weight to it as it may appear to them nature. That it may be difficult to say to deserve. C. S. G. that it is not evidence to go to a jury; but (s) 1 Hale, 693. 1 East, P. C. c. 12, s. that it must be admitted that it may under 9, p. 469, and 1 Hawk, c. 42, s. 8, where circumstances be entitled to little or no it is said that this rule has been so strictly weight; for such aknowledgments made taken that even an affidavit to postpone the without consideration of the consequences, trial made by the first wife has been reand palpably for other purposes at the time, jected, and Old Bailey, Feb. Sess, 1786, is are scarcely deserving of that name in the cited. sense in which acknowledgments are re- (t) Peat's case, 2 Lewin, 288. The ceived as evidence; more especially if prisoner was acquitted. The first impresmade before the second marriage, or upon sion of the very learned Baron seems to occasions when in truth they cannot be said have been the correct one. The only to be to the party's own prejudice, nor so ground on which the witness could be conceived by him at the time.
rejected was, that she was the lawful wife of (r) Rex v. Dennis Upton, Gloucester the prisoner, for “the general rule does not
There is no presumption of law as to the death of a party, without reference to the accompanying circumstances, such for instance, as the age or the health of the party, and the only question is, what inference may fairly be drawn from the evidence? The presumption of innocence cannot shut out the presumption arising from the fact, that the party was alive within a short time of the second marriage. A pauper married E. Meadows, in 1821, who afterwards went abroad, and several letters had been received from her dated from Van Dieman's Land, and one in her handwriting, dated Hobart Town, 17th March, 1831; the pauper married again on the 11th of April
, 1831; it was held that the sessions were warranted in presuming that E. Meadows was alive at the time when the second martiage took place. (u)
The fact of a letter being in the handwriting of a party and dated at a particular time, is evidence that the party was alive at that time. A daughter wrote to her father in America, and in about two months afterwards received a letter in reply in his handwriting, dated the 1st of May, 1836, it was held that this was evidence that he was then alive. (v)
The enactment of the new statute as to punishment is (as we Punishment. have seen), that the offender shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years.
By s. 31, of 9 Geo. 4, c. 31, accessories after the fact are liable to Accessories. be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years.
extend to a wife de facto, but not de jure.” therefore, in Peat's case the witness had 2 Stark. Ev. 402, 2 Ed. In Wells o. been called before her marriage with the Fletcher, 5 C. & P. 12. S. C. M. & Rob.
prisoner had been proved, and she would 99, a woman called for the defendant on have been competent to prove her previous examination on the voire dire, said she had marriage, it is difficult to see how her mar. been married to the plaintiff, and on re- riage with the prisoner having been proved examination that she was married to another before she was called, could render her person previously; but, not seeing him for incompetent, and it certainly would operate thirty years, she thought he was dead, and hardly on a prisoner, if such were the case, therefore married the plaintiff
, but after- for the prosecutor might in the course of his wards found that her first husband was case prove the marriage of the witness living; and Patteson, J., held that the with the prisoner, and the prisoner might witness was competent, as the second mar. have no one except the witness to prove riage was a nullity. If Peat's case had the former marriage. It may be added been an indictment for larceny, and the that Lord Hale, vol. 1, p. 693, says, that a witness called for the prisoner had proved second wife is not so much as a wife de ber marriage to him on the voire dire, facto. C. S. G. Wells v. Fletcher shows that she might (u) Rex o. Harborne, 2 Ad. & E. 540. have been rendered competent by proving
N. & M. 341. her previous marriage, and it is difficult to (v) Reed o. Norman, 8 C. & P. 65. see bow proof by other evidence that she Lord Denman, C. J.; his lordship held in had married the prisoner, whether such the same case, that the postmark was evideuce were given before or after she evidence that the letter was put into the was called, could render her incompetent ; post, but that the letter might have been for her evidence would not be inconsistent written at any time, and therefore proof with such evidence, as it would admit the was given that it was in reply to the marriage with the prisoner, but show that it daughter's letter ; but this seems to have was void. Rex v. Bathwick, 2 B. & Ad. been unnecessary, for the date is primd 639, shows that the competency of the fucie evidence of the time when an instruwife does not depend upon the marshalling ment is written. Rex v. Harborne, Sinof the evidence, or the particular stage of clair v. Baggaley, 4 M. & W. 313. Hunt the case in which she may be called ; if, v. Massey, 5 B. & Ad. 903.
CHAPTER THE TWENTY-FOURTH.
OF LIBEL AND INDICTABLE SLANDER.
What publications in general are libel lous.
It appears to be well settled that publications blaspheming God, or turning the doctrines of the Christian religion into contempt and ridicule, may be made the subject of indictment; and it is now fully established, though some doubt seems formerly to have been entertained upon the subject, that such immodest and immoral publications as tend to corrupt the mind, and to destroy the love of decency, morality, and good order, are also offences at common law. (a) It is also a misdemeanor wantonly to defame or indecorously to calumniate that economy, order, and constitution of things which make up the general system of the law and government of the country. (6) And it is especially criminal to degrade or calumniate the person and character of the sovereign, and the administration of his government by his officers and ministers of state, (c) or the administration of justice by his judges. (d) And the same policy which prohibits seditious comments on the King's conduct and government extends, on the same grounds, to similar reflections on the proceedings of the two houses of parliament. (e) Such publications also as tend to cause animosities between this country and any foreign state, by the personal abuse of the sovereign of such state, his ambassadors, or other public ministers, may be treated as libels. (f). With respect to libels upon individuals, they have been defined to be malicious defamations, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt, and ridicule. (9)
Upon some of these subjects a publication by slander, or words spoken only, though not properly a libel, (h) may be the subject of criminal proceeding, as will be shewn in the course of the chapter.
Of slanderous words.
(a) See the cases collected in 2 Starkie on Lib. 155.
(6) Holt on Lib. 82.
(c) Rex v. Lambert and Perry, 2 Campb.
(d) 2 Starkie on Lib. 194.
(f) Rex v. Peltier, Holt on Lib. 78.
(9) 1 Hawk. P. C. c. 73, s. 1, 2, 3, 7. Bac. Abr. tit. Libel; and see as to libel by a picture, Du Bost v. Beresford, 2 Campb. 511.
(h) A libel is termed Libellus famosus seu infamatoria scriptura, and has been
usually treated of as scandal, written or expressed by symbols. Lamb. Sax. Law, 64. Bract. lib. 3, c. 36. 3 Inst. 174, 5 Co. 125. 1 Lord Raym. 416. 2 Salk. 417, 418. Libel may be said to be a technical word, deriving its meaning rather from its use than its etymology." There is no other name but that of libel applicable to the offence of libelling ; and we know the offence specifically by that name, as we know the offences of horse-stealing, forgery, &c., by the names which the law has annexed to them." By Lord Camden, in Rex v. Wilkes, 2 Wils, 121.
A libel may be as well by descriptions and circumlocutions as in Of the mode express terms; therefore scandal conveyed by way of allegory or of expression. irony amounts to a libel. As where a writing, in a taunting manner, reckoning up several acts of public charity done by a person, said, “ You will not play the Jew, nor the hypocrite," and then proceeded, in a strain of ridicule, to insinuate that what the person did was owing to his vain glory. Or where a publication, pretending to recommend to a person the characters of several great men for his imitation, instead of taking notice of what great men are generally esteemed famous for, selected such qualities as their enemies accuse them of not possessing ; (as by proposing such a one to be imitated for his courage who was known to be a great statesman, but no soldier; and another to be imitated for his learning who was known to be a great general, but no scholar) such a publication being as well understood to mean only to upbraid the parties with the want of these qualities as if it had done so directly and expressly. (i) And, upon the same ground, not only an allegory but a publication in hieroglyphics, or a rebus or anagram, which are still more difficult to be understood, may be a libel; and a Court, notwithstanding its obscurity and perplexity, shall be allowed to judge of its meaning, as well as other persons. (k) So a libel may be by asking questions, for if a man insinuates a fact in asking a question, meaning thereby to assert it, it is the same thing as if he asserted it in terms. (1) And it is now well established that slanderous words must be understood by the Court in the same sense as the rest of mankind would ordinarily understand them. (m) Formerly it was the practice to say that words were to be taken in the more lenient sense; but that doctrine is now exploded : they are not to be taken in the more lenient or more severe sense; but in the sense which fairly belongs to them, and which they were intended to convey. (n)
Upon the same principles it has been resolved that a defamatory Name of the writing, expressing only one or two letters of a name, in such a
in blanks. manner that from what goes before, and follows after, it must needs be understood to signify a particular person, in the plain, obvious, and natural construction of the whole, and would be nonsense if strained to any other meaning, is as properly a libel as if it had expressed the whole name at large ; for it brings the utmost contempt upon the law to suffer its justice to be eluded by such trifling evasions; and it is a ridiculous absurdity to say that a writing which is understood by every one of the meanest capacity cannot possibly be understood by a judge or jury. (o)
(i) i Hawk. P. C. c. 73, s. 4. Bac. Abr. Rex v. Lambert and Perry, 2 Campb. 403. tit. Libel (A) 3.
And in a case of libel, Rex v. Watson and (k) Holt on Libel, 235, 236.
others, 2 T. R. 206, Buller, J, said, (1) Gathercole's case, 2 Lewin, 255, “ Upon occasions of this sort I have never per Alderson, B.
adopted any other rule than that which (m) Woolnoth v. Meadows, 5 East, 463. has been frequently repeated by Lord In this case the defendant had said of the Mansfield to juries, desiring them to read plaintitf, “ that his character was infamous the paper stated to be a libel as men of - that he would be disgraceful to any common understanding, and say whether society--that delicacy forbad him from in their minds it conveys the idea imbringing a direct charge—but it was a male puted.” child who complained to him ;" and these (0) 1 Hawk. P. C. c. 73, s. 5. Bac. words were understood to mean a charge of Abr. tit. Libel (A) 3, where it is said in unnatural practices.
the marginal note that if an application is (n) By Lord Ellenborough, C. J., in made for an information in a case of this
Indictment will lie for a
the contents of a libel are true;
An indictment lies for general imputations on a body of men,
though no individuals be pointed out, because such writings have a libelen a body tendency to inflame and disorder society, and are therefore within
the cognizance of the law. (2) And scandal published of three or four persons is punishable at the complaint of one or more, or all
of them. (9) Actions and It appears to have been considered that the remedies by action indictments and indictment for libels are co-extensive, and may be regarded for libels co
as upon the same footing. (r) The party can- It is quite clear that upon an indictment or criminal prosecution not justify that for a libel the party cannot justify that its contents are true, or
that the person upon whom it is made had a bad reputation. The ground of the criminal proceeding is the public mischief
, which libels are calculated to create in alienating the minds of the people from religion and good morals, rendering them hostile to the government and magistracy of the country, and, where particular individuals are attacked, in causing such irritation in their minds as may induce them to commit a breach of the public peace. The law, therefore, does not permit the defendant to give the truth of the libellous matter in justification ; any attempt at which in the instances of libels against religion, morality, or the constitution, would be attended with consequences of the greatest absurdity; and, in the case of libels upon individuals, might be extremely unjust, and could never afford a substantial defence to the charge. Alibel against an individual
consist in the exposure personal deformity, the actual existence of which would only shew the greater malice in the defendant; and even if it contain charges of misconduct founded in fact, the publication will not be the less likely to produce a violation of the public tranquillity. It has been observed, that the greater appearance of truth there may be in any malicious invective, it is so much the more provoking; and that, in a settled state of government, the party grieved ought to complain, for
every injury done to him, in the ordinary course of law, and not by any means to revenge himself by the odious proceeding of a libel. (s)
kind, some friend to the party complaining reflecting upon a number of people, it reshould, by affidavit, state the having read flects upon all; and readers, according to the libel, and understanding and believing their different opinions, may apply it so. it to mean the party. In one case Lord Rex v. Jonour, 7 Mod. 400. Ellenborough, C. J., held, upon argument, (r, Starkie on Lib. 150, 165, 550, 1 Ed. that the declarations of spectators, while Holt on Lib. 215, 216. Bradley o. Methey looked at a libellous picture in an ex- thuen, 2 Ford's MS. 78. This must be hibition room, were evidence to show that understood, however, of cases where the the figures portrayed were meant to repre- libel, from its pature and subject, inflicts a sent the parties stated to be libelled. Du private injury, and not of those cases in Bost v. Beresford, 2 Campb. 512.
which the public only can be said to be (p) Holt on Libel, 237.
affected by the libel. (9) Id. ibid. In Rex v. Benfield and (s) 1 Hawk. P. C. c. 73, s. 6. Bac. Abr. Sanders, 2 Burr, 980, it was held that an tit. Libel (A) 5. 4 Bla. Com. 150, 15). information lay against two for singing a 2 Starkie on Libel, 251, et seq. Holt on libellous song on A. and B., which first Libel, 275, et seq. But though the truth is abused A. and then B. And it was said no justification in a criminal prosecution, that if the defendants had sung separate yet in many instances it is considered as an stanzas, the one reflecting on A. and the extenuation of the offence; and the Court other on B., the offence would still have of King's Bench has laid down this general been entire. A libel upon one of a body of rule, that it will not grant an information persons, without naming him, is a libel for a libel unless the prosecutor who apupon the whole, and may be so described ; plies for it makes an affidavit asserting and where a paper is published equally directly and pointedly that he is innocent of