It is not competent to a defendant charged with having published a libel, to prove that a paper, similar to that for the publication of which lie is prosecuted, was published on a former occasion by other persons who have never been prosecuted for it.
The punishment of libellers for either making, repeating, printing, or publish ing the libel, is fine, and such corporal punishment (as imprisonment, pillory, &c.) as the court in its discretion shall inflict ; regarding the quantity of the of fence, and the quality of the offender. Also, if booksellers, &c. publish or sell libels, though they know not the contents of them, they are punishable.
It has been held that writing a sedi tious libel is not an actual breach of the peace: and that a member of par liament writing such a libel is entitled to his privilege from being arrested for the same.
In informations, the libel must be set out correctly, according to the words or the material sense.
It has been frequently determined, that in the trial of an indictment for a libel, the only questions for the consider ation of the jury are, the fact of publish ing, and the truth of the innuendoes ; that is, the truth of the meaning, and sense of the passages of the libel, as stated and averred in the record ; whether the mat ter be or be not a libel, is a question of law for the consideration of the court. But the statute 32 Geo. III. c. 60, after reciting that "doubts had arisen whether on the trial of an indictment or informa tion for the making or publishing any li bel, where an issue or issues are joined between the King and the defendant on the plea of not guilty pleaded, it be com petent to the Jury, impannelled to try the same, to give their verdict upon the whole matter in issue," 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 mat ter put in issue, upon such indictment or information ; and shall not be requir ed or directed by the court or judge, before whom the indictment, &c. shall be tried, to find the defendant guilty, merely on the proof of the publication by such defendant, of the paper charg ed to be a libel, and of the sense ascribed to the same in such indictment." But it
is provided by the said statute, that the court or judge shall, according to their discretion, give their opinion and direc tions to the jury on the matter in issue, as in other criminal cases, that the jury may also find a special verdict ; and that, in case the jury shall find the defendant guilty, he may move in arrest of judg ment, as by law he might have done be fore the passing of the act.
It has, in the case of the King v. Lord George Gordon ; and the King v. Peltier, been held, that a writing tending to de fame the Sovereign of a foreign country, is a libel punishable in England. The law was not questioned in the first case; in the second the punishment was not en forced. We think there are many serious arguments against the doctrine.
In the case of Gilbert Wakefield, and of Hart and White, recently, although the offences were committed, and the trials had in Westminster and London, the defendants were committed to Dor chester and Gloucester gaols, to render their confinement the more irksome and severe.
We have thus briefly endeavoured to select the principal authorities under the law of England, with respect to libels, and we are free to confess, that unless ju ries boldly assert the right of judging ac cording to the general intention and ho nest view of the writer, rather than upon casual expressions, and the subtle innuen does of an information, there will be found little actual liberty of the press, ex cepting what is allowed by the lenity of an attorney general.
For the law is strictly, that any thing which affects the character of an indivi dual, or reflects on the government, is a and with such a restraint we hold the right of free discussion upon a frail tenure. The abSolute freedom of the press can, we think, never be fully ob tained while truth continues to be a libel; and it is remarkable, that in former times, libels were charged as false, scandalous, and malicious writings; in the time of Lord Coke, the doctrine was laid down, that the falsehood of a libel was immate rial ; and very recently, the word " false," has been omitted in the informations filed by the present Attorney General, Sir Vi cary Gibbs.