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the truth of such imputation, and rejected: and the Court of King's Bench were unanimous that such evidence was rightly rejected; for the persons charged might afterwards come to be tried, and might be prejudiced by the previous inquiry, (m)
Where a libel stated that there was a riot at Carmarthen, and that a person fired a pistol at an assemblage of persons, and it was proposed to prove the truth of these facts in order to enable the jury to decide whether the remarks in the libel were not within the limits of free discussion, it was held that the evidence was inadmissible, for the jury were to judge upon the examination of the libel itself. (n)
Where an information for a libel states that certain transactions took place, and that the libel was published of and concerning them, and then sets out the libel as referring to them, and general evidence is given in proof of such transactions on the part of the prosecution, the defendant cannot, therefore, give evidence of the particular nature of those transactions so as to bring into issue the truth or falsehood of the libel. But if such evidence were adduced, bond fide, to show that the transactions referred to in the alleged libel are not the same with those which the information supposes it to have had in view, it is admissible. (0)
It had been held in many cases, that, on trials for libels, the facts Verdict. of writing, printing, or publishing, and the truth of the innuendoes The jury may, inserted in the proceedings, were the only matters to be submitted verdict upon to the consideration of the jury: but the justice of such doctrine the whole matbeing questioned and ably arraigned, (p) the statute 32 Geo. 3, ter put in issue. c. 60, was passed, which enacts “ that on every such trial, the jury sworn to try the issue may give a general verdict of guilty or not guilty, upon the whole matter put in issue upon such indictment or information ; and shall not be required or directed, by the court or judge before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information.” (9) But it provides also, that “ the Court, or judge before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and directions to the jury, on the matter in issue between the King and the defendant or defendants, in like manner as in other criminal cases." (r) In criminal cases the judge is to define the crime, and the jury The judge is
not bound unare to find whether the party has committed that offence; this act made it the same in cases of libel, the practice having been other- state whether wise before. (s) It has been the course for a long time for a judge, in his opinion in cases of libel, as in other cases of a criminal nature, first to give libel, but he a legal definition of the offence, and then to leave it to the jury to may do so. say, whether the facts necessary to constitute that offence are proved
der this act to
(m) Rex v. Burdett, 4 B. & A. 95. (n) Rex v. Brigstock, 6 C. & P. 184, Patteson, J.
(0) Rex o. Grant, 5 B. & Ad. 1081.
(P) See the celebrated speeches of Mr. Erskine, in the case of the Dean of St. Asaph, 1 vol of Ridgway's col., p. 234, and 264.
(9) Sec. 1.
(r) Sec. 2. By sec. 3 it is provided that the jury may find a special verdict, in their discretion, as in other criminal cases. And sec. 4 provides that defendants may move in arrest of judgment as before the passing of the act.
(s) Per Parke, B. Parmiter v. Coupland, 6 M. & W. 105.
or seditious libel a second
but is not so Now.
to their satisfaction ; and that, whether the libel is the subject of a criminal prosecution or civil action. Whether the particular publication, the subject of inquiry, is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is a question upon which a jury is to exercise their judgment, and pronounce their opinion, as a question of fact. The judge, as a matter of advice to them in deciding that question, may give his own opinion as to the nature of the publication, but is not bound to do so. (1)
It appears to have been considered that the judge may tell the jury that they are to take the law from him, unless they are satis
fied that he is wrong. (u) Judgment. The judgment in cases of libel is in the discretion of the Court,
as in most other cases of misdemeanors; and usually consists of fine, imprisonment, and the finding sureties to keep the peace. (v) In some cases prior to the statute 56 Geo. 3, c. 138, the offender was
also sentenced to the pillory. In cases of In the case of a blasphemous or seditious libel, a second offence blasphemous
is more highly punishable by 60 Geo. 3, & 1 Geo. 4, c. 8, s. 4,
which enacts, that "if any person shall be legally convicted of havoffence was
ing composed, printed, or published, any blasphemous libel, or any punishable by such seditious libel as aforesaid (i. e. by s. 1, a libel tending to bring banishment,
into hatred or contempt the person of his Majesty, his heirs or successors, or the regent, or the government and constitution of the united kingdom, as by law established, or either house of parliament, or to excite his Majesty's subjects to attempt the alteration of any matter in church or state, as by law established, otherwise than by lawful means), and shall after being so convicted offend a second time, and be thereof convicted before any commission of oyer and terminer, or gaol delivery, or in the Court of King's Bench, such person may on such second conviction be adjudged, at the discretion of the court, either to suffer such punishment as may now by law be inflicted in cases of high misdemeanors, or to be banished (w) from the united kingdom and all other parts of his Majesty's dominions for such terms of years as the
court in which such conviction shall take place shall order.” Certificate of A provision is made as to a certificate of every indictment and former convic- conviction of any offender convicted of having composed, &c., any evidence.
blasphemous or seditious libel, which is to be given by the officer having the custody of the records, upon the request of the prosecutor on his Majesty's behalf, to the justices of assize, &c., where such offender shall be indicted for any second offence, and is to be sufficient proof of the conviction of such offender. (x)
By this statute, in all cases in which any verdict or judgment by default shall be had against any person for publishing any blasphemous or seditious libel, the judge or court may make an order for the seizure and carrying away and detaining all copies of
tion to be
(t) Parmiter v. Coupland, supra.
(w) The 11 Geo. 4 & 1 Wm. 4, c. 73, s. 1, repeals " so much and such parts of this act as relate to the sentence of banishment for the second offence."
(x) Sec. 7. 60 Geo. 3, and 1 Geo. 4, c. 8.
the libel in the possession of the party, or of any other person named in the order for his use. (y)
If a libel imputes to a man a triable offence, affidavits of its Affidavits in truth cannot be given in evidence in mitigation of punishment. mitigation of
punishment. But if a libel imports to be founded on certain newspaper reports, affidavits of the existence of such newspaper reports are admissible : and in such case affidavits of the falsehood of such reports cannot be received in aggravation. A libel imported to be founded on certain newspaper reports, and upon the foundation of those reports charged certain troops with acts of murder : after conviction the defendant offered affidavits that the newspapers did contain those reports, and also other affidavits that the facts were true. The former affidavits were received, because they explained the situation in which the defendant stood at the time he wrote the libel, and shewed the impression under which he wrote; but the latter were rejected, because the receiving them might deprive of a fair trial persons who might afterwards be tried for the murders; and if murders were committed, the proper course was to prosecute and bring to a fair trial, not to libel and create an unfair preju
Where an indictment for a libel on the governor of a parish work- Costs. house was preferred by the direction, and carried on at the expense, of the select vestry
of the parish, and the defendant having removed it into the King's Bench by certiorari was convicted, it was held that the party libelled was not the “party grieved” within the 5 & 6 Wm. & M. c. 11, s. 3, and, therefore, was not entitled to costs. (a)
(y) See sec. 1, 2, and also sec. 3, as to Scotland. Sec. 8 and 9 provide for the limitation of actions brought for anything done in the execution of the act. By s. 10 the punishment of persons convicted of libel
in Scotland is not to be altered.
(2) Rex o. Burdett, 4 B. & A. 314.
(a) Rex v. Dewhurst, 5 B. & Ad. 405. See Reg. v. Hawdon, 3 P. & D. 44.
CHAPTER THE TWENTY-FIFTH.
OF RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES.
actually execute with violence; a rout is a similar meeting upon a (2) purpose which, if executed, would make them rioters, and which
they actually make a motion to execute ; and an unlawful assembly (3) is a mere assembly of persons upon a purpose which, if executed,
would make them rioters, but which they do not execute, nor make any motion to execute. (a) These offences may be treated of more
at large in the order in which they have been mentioned. Of a riot. I. A riot is described to be a tumultuous disturbance of the
peace by three persons or more, assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprize of a private nature, and afterwards actually executing the same, in a violent and turbulent manner, to the terror of the people, whether
the act intended were of itself lawful or unlawful. (6) Where the law' In some cases, in which the Taw authorizes force, it is not only authorizes
lawful, but also commendable, to make use of it; as for a sheriff force, an assembling will or constable, or perhaps even for a private person, to assemble a not be riotous. competent number of people in order with force to suppress rebels,
or enemies, or rioters; and afterwards with such force actually to suppress them; or for a justice of peace, who has a just cause_to fear a violent resistance, to raise the posse, in order to remove a force in making an entry into, or detaining of, lands. Also it seems to be the duty of a sheriff, or other minister of justice, having the execution of the king's writs, and being resisted in endeavouring to execute them, to raise such a power as may effectually enable them to overpower any such resistance; yet it is said not to be lawful for them to raise a force for the execution of a civil process, unless they find a resistance; and it is certain that they are highly punishable for using any needless outrage or violence. (c)
(a) 1 Hawk. P. C. C. 65, s. 1, 8, 9. that which would probably be deemed most 3 Inst. 176. 4 Blac. Com. 146.
correct at the present time. It should be (6) 1 Hawk. P. C. c. 65, s. 1. Three observed, however, that riot has been des. persons or more is the correct description of cribed differently by high authority. In the number of persons necessary to consti- Reg. v. Soley and others, 11 Mod. 116, tute a riotous meeting ; but it should be Holt, C. J., said, “ The books are obscure observed, that in Hawkins (c. 65, s. 2, 5, in the definition of riots. I take it, it is not 7) the words “ more than three persons" necessary to say they assembled for that are three times over inserted instead of purpose, but there must be an unlawful " three persons or more ;" which in Burn's assembly; and as to what act will make Just. tit. Riot, sec. 1, is remarked as an in- a riot, or trespass, such an act as will make a stance that, in a variety of matter, it is trespass will make a riot. If a number of impossible for the mind of man to be always men assemble with arms, in terrorem populi, equally attentive. The description of riot though no act is done, it is a riot. If three stated in the text, and taken from the work come out of an ale-house, and go armed, it of Mr. Serjeant Hawkins, is submitted as is a riot."
It seems to be agreed, that the injury or grievance complained How far the of, and intended to be revenged or remedied by a riotous assembly, object must be
ate must relate to some private quarrel_only ; as the inclosing of nature. Tands in which the inhabitants of a town claim a right of common, or gaining the possession of tenements the title whereof is in dispute, or such like matters relating to the interests or disputes of particular persons, in no way concerning the public. For the proceedings of a riotous assembly on a public or general account, as to redress grievances, pull down all inclosures, or to reform religion, and also resisting the king's forces, if sent to keep the peace, may amount to overt acts of_high treason by levying war against the King. (d)
It seems to be clearly agreed, that in every riot_there must be, As to the some such circumstances either of actual force or violence, or at degree of least of an apparent tendency thereto, as are naturally apt to terror. strike a terror into the people; as the shew of armour, threatening speeches, or turbulent gestures; for every such offence must be laid to be done in terrorem populi. Te But it is not necessary, in order to constitute this crime, that personal violence should have been committed. (S).
Upon these principles, assemblies at wakes, or other festival times, or meetings for the exercise of common sports or diversions, as bull-baiting, wrestling, and such like, are not riotous. (9) And upon the same ground also it seems to follow that it is possible for three persons or more to assemble together with an intention to execute a wrongful act, and also actually to perform their intended enterprize, without being rioters; as if a man assemble a number of persons to carry away a piece of timber or other thing to which he claims a right, and which cannot be carried away without a number of persons, this will not of itself be a riot, if the number of persons are not more than are necessary for the purpose ; and if 4.2. for the purpose there are no threatening words used, nor any other disturbance of
carrying the peace; even though another man has better right to the thing here is ho ferool in carried away, and the act therefore is wrong and unlawful. (b) as proposed of an Much more may any person, in a peaceable manner, assemble a fit what to Sediekon number of persons to do any lawful thing ; as to remove any nose an, who has common nuisance, or any nuisance to his own house or land. And
habifece ? he may do this before any prejudice is received from the nuisance, and may also enter into another man's ground for the purpose.
(c) 1 Hawk. P. C. c. 65, s. 2. 19 Vin. Abr. tit. Riots, &c. (A) 4.
(d) 4 Blac. Com. 147. 1 Hawk. P. C. c. 65, s. 6.
(e) 1 Hawk. P. C. c. 65, s. 5.
(f) Per Mansfield, C. J., in Clifford v. Brandon, 2 Campb. 369.
(9) 1 Hawk. P. C. c. 65, s. 5. But see in 2 Chit. Crim. L. 494, an indictment said to have been drawn in the year 1797, by a very eminent pleader for the purpose of suppressing an ancient custom of kicking about foot-balls on a Shrove Tuesday, at Kingston-upon-Thames. The first count is for riotously kicking about a foot-ball in the town of Kingston ; and the second, for
a common nuisance in kicking about a football in the said town. And in Sir Antony Ashley's case, 1 Roll. R. 109. Coke, C. J., said, that the stage-players might be indicted for a riot and unlawful assembly ; and see Dalt. Just. c. 136 (citing Roll, R.) that if such players by their shews occasion an extraordinary and unusual concourse of people to see them act their tricks, this is an unlawful assembly and riot, for which they may be indicted and fined. 19 Vin. Abr. tit. Riots, &c. (A) 8.
(h) 1 Hawk. P. C. c. 65, s. 5. Reg. v. Soley, 11 Mod. 117. Dalt. c. 137. Burn's Just. tit. Riots, s. 1.