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lished, and the particular fact or facts by reason whereof it was for the public benefit that the said matters charged should be published.. Provided always that the truth of the matters charged in the alleged libel complained of by such indictment or information shall in no case be inquired into without such plea or justification.'

The statute does not apply to blasphemous, obscene, or seditious publications. Reg. v. Duffy (1874), 9 Ir. L. R. 329, 2 Cox, C. C. 45; Ex parte O'Brien (1881), 12 L. R., Ir. 29, 15 Cox, C. C. 180.

Truth is no defence, where the statute does not apply. It has been held that a magistrate in a preliminary investigation of a charge of libel has no power to receive and perpetuate evidence of the truth of matters charged. Reg. v. Townsend (1866), 4 Fost. & Fin. 1089, 10 Cox, C. C. 356; Reg. v. Sir Robert Carden (1880), 5 Q. B. D. 1, 49 L. J. M. C. 1, 41 L. T. 504, 28 W. R. 133. By the Newspaper Libel and Registration Act, 1881 (44 & 45 Vict. c. 60, s. 4), the rule upon this point has been altered with respect to the hearing, before a Court of Summary Jurisdiction, of a charge against a proprietor, publisher or editor, or any person responsible for the publication of a newspaper, for a libel published therein. The Court may receive evidence that the publication is for the public benefit, and that the matter is true.

In Reg. v. Holbrook (1879), 4 Q. B. D. 42, 48 L. J. Q. B. 113, 39 L. T. 536, 27 W. R. 313, it was decided that the general authority of the editor of a newspaper to use his discretion in the insertion of articles was not of itself sufficient to debar the proprietor of the newspaper from proving by way of defence, under section 7 of the Act 6 & 7 Vict. c. 96, that the publication was made without his consent, knowledge or authority. In Reg. v. Bradlaugh (1883), 15 Cox, C. C. 217, Mr. Bradlaugh and Mrs. Besant were the proprietors of two papers, A. and B., and Ramsay was their manager. They subsequently made over complete control of the paper A. to Ramsay. In one of the issues of this paper, certain obscene libel appeared and for this Mr. Bradlaugh was prosecuted. He proved that he had no hand in or knowledge of the obscene publication. He was discharged.

Another respect in which a criminal prosecution for libel differs from a civil action for the same cause, is that publication to a stranger is not necessary. It is sufficient if the libel has been shown to the prosecutor himself and to no one else, Hick's Case, Hobart, 215; Clutterbuck v. Chafers (1816), 1 Starkie, 471, 18 R. R. 811; Reg. v. Brooke (1879), 7 Cox, C. C. 25, the reason being that a publication to the party himself tends to a breach of the peace. (See Barrow v. Llewellin, referred to in notes to Nos. 2 & 3, p. 36, ante). On a similar principle, the only ground on which a criminal prosecution will lie for defaming memory of a deceased person is that it was done with a design to

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bring contempt on the family of the deceased, and to stir up the hatred of the King's subjects against them, and to excite his relations to a breach of the peace. R. v. Topham (1791), 4 T. R. 126, 2 R. R. 343. Reg. v. Labouchere (1884), 12 Q. B. D. 320, 53 L. J. Q. B. D. 362, 50 L. T. 177, 32 W. R. 861.

The case of Reg. v. Adams (1888), 22 Q. B. D. 66, 58 L. J. M. C. 1, 59 L. T. 903, 16 Cox, C. C. 544, affords a strange application of this rule. Miss A. advertised for a situation in the Daily Telegraph, and requested the replies to be addressed to "K." at an address where her brother-in-law had an office. The defendant wrote to "K." at the address stating that he had no situation to offer her, but that he would make a proposal for her consideration, — being in effect an immoral and indecent overture. The letter was opened by Miss A.'s sister, who gave it to her husband; and the husband handed it over to the police. Miss A., it appears, never saw the letter. It was held that the defendant had brought himself within the pale of criminal law by having published an indecent libel on Miss A.

By the Libel Law Amendment Act, 1888, s. 8, the permission of a judge has to be obtained previous to the institution of criminal proceedings against a libellor. Such permission is given only when, from the circumstances of the case, a remedy by civil action will not be sufficient. See Ex parte Pulbrook (1892), 1892, 1 Q. B. 86, 61 L. J. M. C. 91, 66 L. T. 159, 40 W. R. 175, 17 Cox, C. C. 464. The reasons for which, previously to this Act, the Court would grant a rule for a criminal information, are fully discussed by Reg. v. Labouchere, supra.

By s. 9 of the same Act, the person prosecuted for libel is declared to be a competent witness.

The 6th section of the Libel Act, 1843, provides that "if any person shall maliciously publish any defamatory libel," he shall be liable to punishment as there mentioned.

In The Queen v. Munslow (C. C. A. 2 Feb. 1895), 1895, 1 Q. B. 758, 64 L. J. M. C. 138, the defendant was convicted upon an indictment under the statute, charging that he "unlawfully did write and publish a certain defamatory libel of and concerning T., according to the tenor and effect following," &c. A motion was made for arrest of judgment on the ground that the indictment did not contain an averment that the defendant published the libel "maliciously." It was held that the section of the statute did not create a new offence, or purport to give any definition of an existing offence; that the word "maliciously" was not therefore necessary to the description of the offence, malice being sufficiently implied by the statement that the defendant published a libel; that the effect of the word "maliciously" being expressed in

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the statute was merely to give the defendant the opportunity of rebutting the legal presumption of malice by showing that the words were privileged or published on a lawful occasion, or that they were true and for the public benefit. The conviction was accordingly affirmed.

AMERICAN NOTES.

The doctrine in question has never been much discussed in this country. The maxim, "The greater the truth the greater the libel," found little footing here after the Revolution, because the common law was generally changed by enactment, either in the constitutional or statutory laws of the States, and the rule was adopted that the truth may always be pleaded in defence. The new doctrine was urged by Alexander Hamilton in the celebrated case of People v. Croswell, in the Supreme Court of New York, 3 Johnson's Cases, 336, in the year 1804, an indictment for libel of President Jefferson. Half a century earlier, Andrew Hamilton, a noted Philadelphia lawyer, had been imported to defend Peter Zenger, a New York printer, on a charge of libel against the government, and he had ably but vainly urged the same doctrine in contravention of the common law rule. Alexander Hamilton's argument, one of the most famous ever delivered in America, produced but a division of opinion among the four judges in the Croswell case, Chief Justice KENT giving an elaborate opinion in favour of the amelioration of the rule now prevailing, and allowing the jury to judge of the combined law and facts. This opinion will always constitute a valuable historical document, and its conclusions are as follows: "Upon every indictment or information for a libel, where the defendant puts himself upon the country, by a plea of not guilty, the jury have a right to judge not only of the fact of the publication, and the truth of the innuendoes, but of the intent and tendency of the paper, and whether it be a libel or not; " and "I adopt, in this case, as perfectly correct, the comprehensive and accurate definition of one of the counsel at the bar (Gen. Hamilton), that the liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals." The indecisive result led to the adoption of a legislative enactment, in 1805, in conformity with Hamilton's contention and Kent's opinion, and this is the nearly universal rule in this country, embodied in many if not in most instances in the constitutions of the States. (See King v. Root, 4 Wendell (New York), 114; 21 Am. Dec. 102.)

The doctrine of People v. Croswell was adopted in Respublica v. Dennie, 4 Yeates (Penn.), 267; 2 Am. Dec. 202, citing the argument of Hamilton, almost with the authority of a judicial decision; but making the absence of evil intent essential to acquittal. In Commonwealth v. Clap, 4 Massachusetts, 163; 3 Am. Dec. 212, (A. D. 1809), it was said: "The publication of a libel maliciously, and with intent to defame, whether it be true or not, is clearly an offence against law, on sound principles," and it was held that after evidence of justifiable purpose the defendant may prove the truth to negative malice. But in State v. Burnham, 9 New Hampshire, 34; 31 Am. Dec. 217, it was said: "If upon lawful occasion for making a publication, he has pubVOL. IX.-13

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lished the truth and no more, there is no sound principle which can make him liable, even if he was actuated by express malice." "It has been said that it is lawful to publish truth, from good motives and for justifiable ends. But this rule is too narrow. If there is a lawful occasion — a legal right to make a publication—and the matter true, the end is justifiable, and that in such case must be sufficient."

In Commonwealth v. Blanding, 3 Pickering (Mass.), 304; 15 Am. Dec. 214 (1825), it was held that ordinarily the truth is not a defence, but that it may be given to negative malice where justifiable purpose is shown, and that its admission is for the Court to determine. (But the law was subsequently changed by statute so that truth, with good motives and for justifiable ends, is a complete justification.)

In Commonwealth v. Morris, 1 Virginia Cases, 175; 5 Am. Dec. 515 (A. D. 1811), it was held that although at common law the truth was no defence and could not be proved, yet as the Constitution derived all power from the people and vested it in the magistrates, "The people have a right to be informed of the conduct and character of their public agents," and on an indictment for libel of public officers the truth is a justification and may be given in evidence.

At an early day the English doctrine was followed in South Carolina, observing: "It is true that a difference of opinion did for some time subsist among the English judges, on the law respecting libels, but this was only on the question whether the Court or the jury should decide on the criminal intent." State v. Lehre, 2 Treadway, 809; 3 Wheeler Crim. Cas. 282 (A. D. 1811). The Court also said that the rule did not originate in the Star Chamber, but in the Roman law, and that "there does not exist in the whole system of our laws a rule better supported by reason than the one under consideration," because the contrary "tends to provoke quarrels and private revenge," and the rule "serves to protect from public exposure secret infirmities of mind and body, and even crimes which have been repented of and forgiven." Shall he be allowed," exclaim the Court, "to disturb the sacred work of reformation, and rob the poor penitent of the blessed fruits of her repentance? Justice, charity, and morality all forbid it; and thank God! the law forbids it also."

In South Carolina, under a constitutional provision that "In all indictments for libel the jury shall be the judges of the law and the fact," it was held that this simply empowered the jury to render a general verdict as in other cases, and that it is still the duty of the judge to declare the law to the jury. State v. Syphrett, 27 South Carolina, 29; 13 Am. St. Rep. 616. But under the Missouri law, whereby "The truth may be given in evidence and shall constitute a complete defence, and the jury under the direction of the Court shall determine the law and the fact," the jury are not bound to accept the instructions of the Court as conclusive, and the Court may so charge them. State v. Armstrong, 106 Missouri, 395; 27 Am. St. Rep. 361.

See note, 21 Lawyers' Rep. Annotated, 509; 4 Lawson's Criminal Defences, p. 608; 2 Bishop's Criminal Law, sect. 919-921. The latter author observes that the legislatures here have generally "adopted a sort of middle course,"

No. 16.- Rex v. Grant. - Notes.

and allowed the truth in "defence only when the further fact appears that the publication was made with good motives and for justifiable ends." Mr. Townshend says that truth is by statute or constitution a defence in Kansas, Louisiana, Maryland, Virginia, Connecticut, Georgia, Indiana, Mississippi, Missouri, New Jersey, North Carolina, Tennessee, Vermont, and District of Columbia, New York, Rhode Island, Pennsylvania, Minnesota, Florida, and we find that it is made admissible by constitution in Alabama, Arkansas, California, Colorado, Delaware, Illinois, Kentucky, Maine, Michigan, Montana, Nebraska, Ohio, South Carolina, Texas, West Virginia, Wisconsin, and Wyoming. Some constitutions allow the evidence without regard to the motive of the publication, and some explicitly make the jury judges of the law as well as the fact.

Mr. Bishop attributes the modern change of doctrine on this subject to the rise of newspapers. He says: "In the early periods, when the law was receiving its shape from the pressure of outward needs, the newspaper was unknown. Then a written statement by one of an unwelcome truth concerning another did no good since it did not reach the eyes of the public. But it did tend most powerfully in a semi-barbarous condition of society, to stir up the hot blood of the person against whom it was made. Wisely, therefore, did the Courts in those circumstances forbid the defendant indicted for a libel to rely on its truth in defence. Now all is changed. Our prisons and the gallows itself must be deemed in some respects subordinate to the mightier power of the press, as correctives of the social wickedness of men. Many a wretch has felt the keen exposure of his villany, when voiced from the million-tongued printed page, as no mortal ever felt the sentence bidding him mount the gallows and be hanged. Therefore a different rule should govern this question of libel now, from the one which properly governed it centuries ago."

As to pleading the truth in civil actions, Mr. Townshend says (Slander and Libel, sect. 211), "It is now almost universally conceded that to show the truth of the matter published is a complete defence to an action either of slander or libel." But he adds that the rule "appears to be an innovation, and of comparatively modern introduction," the truth being anciently regarded only in mitigation of damages.

As to the origin of the maxim, the greater the truth the greater the libel, Mr. Townshend makes some interesting observations (Slander and Libel, sect. 211, note), accompanied by quotations from Burns and Tom Moore.

The doctrine has been very little drawn in question recently in the courts, but in Castle v. Houston, 19 Kansas, 417; 27 Am. Rep. 127 (1877), a civil action, it was held that under the constitution of that State, evidence that the matter charged was true did not merely tend to mitigate damages, but was a complete defence in a civil action for damages, although on a criminal prosecution the accused may not be acquitted without proof that the publication was with good motives and for justifiable ends. (See Lanning v. Christy, 30 Ohio State, 115, 27 Am. Rep. 431.