that the origin of the action or of the crime begins. And there is no material difference in this case between spoken and written or printed words, for both must reach a third person. If it were held otherwise, a man would be punished for his thoughts, and not for his overt acts. The law however cares nothing for the secrets of the mind, so long as they bear no outward fruit in the conduct. Much therefore depends on what is the kind of publication used in each case. It is true that the publication required in a letter which provokes a breach of the peace is sufficient, if the letter is sent to the party intended, though nobody else knew of it.' The reason in that case has been suggested to be, that the person becomes so uneasy, that he cannot help showing it to others, and so it becomes published in effect. But the great majority of libels have little to do with provoking a breach of the peace, any more than other illegal acts. A common mode of 4 circulating libels in the time of Henry VIII., before printing became a settled occupation, was to scatter the written or printed leaves amid crowds and processions on public occasions.3 And Coke says the duty of persons who found these things was to deliver them to the magistrate. When therefore a libel about A is sent direct to A alone, it is not published, and so is not actionable.5 Yet if the libellous letter, though addressed to A, would in ordinary course be opened by A's clerk or servant, and if it is so opened, and this practice was known to L, the libeller who sent it, this is some evidence of publication by L. And if a libel is sent to A's wife about A, this is also a sufficient publication, for a third party has been reached. Whether publication is per se the crime of libel.It was laid down by the Star Chamber, that every one 1 "The noble, dignified, and humane policy of the law soars above the little irregularities of our lives, and disdains to enter our closets without a warrant founded upon complaint. Constructed by man to regulate human infirmities, and not by God to guard the purity of angels, it leaves to us our thoughts, our opinions, and our conversations, and punishes only overt acts of contempt and disobedience to her authority."-Ersk. Speeches. 2 R. Wegener, 2 Stark. 245. 3 Darcy Markham, Hob. 120 Cro. Ch. 121. 4 Haliwood's Case, 5 Co. 125. 5 Phillips v 6 Delacroix Thevenot, 2 Stark. 63. Jansen, 1 Esp. 625. who shall be convicted ought to be a contriver of the libel, or a procurer of the contriving of it, or a malicious publisher of it, knowing it to be a libel. If he writes a copy of it and does not publish it to others, or if he hears, or reads, or laughs, at it, this is said by Coke to be no publication of it. Holt, C. J., seemed to go the length of holding, that the mere committing of libellous words to writing was per se the offence, and hence he held, that if a jury found the fact of writing or even copying libellous words, this was equivalent to a verdict of guilty. Thus the judge said, "The mere having of such writings in his custody is highly criminal, for notwithstanding he might design to keep them private, they might after his death fall into such hands as might be injurious to Government." And hence the collecting and transcribing of libels for the purpose of publishing them was deemed criminal, though no publication should ever take place, since men ought not to have such evil instruments in their keeping. In one case it was proved, that the defendant, a clergyman, wrote down a libel against King William and Mary, while a person unknown dictated the words to him, and so the clergyman acted only as penman. And the court decided, that this differed from the case of an amanuensis-that the real author did not make the libel, because he did not write it; and that unless this clergyman could be punished, then nobody could. So the clergyman was held guilty of writing and publishing. In 1792, when the judges' opinions were asked at the time of Fox's Bill being considered, ten judges treated the crime as practically consisting in the mechanical act of publication of the libel. And on the point being again solemnly argued in Sir F. Burdett's case in 1820, the court held an intermediate opinion, namely, that when a man puts his libellous letter into the post, this is equivalent to publication, for it is the first and irreversible step of the mechanical process.* Mode of proving publication of libel.—While more 1 Lamb's case, 9 Co., 59 b. Hudson differs from Coke, and says the Star Chamber used to hold it settled, that to hear a libel sung or read, and to laugh at it and make merriment with it, was a publication in law. Hudson's Star Ch., c. 11. 3 R. v 2 R. v Beare, 12 Mod. 221; 2 Salk. 419; 1 L. Raym. 414. Paine, Carth. 405. R. v Burdett, 4 B. & Ald. 95. than mere authorship is necessary in order to prove publication, and while the libel is still in the desk of the writer, it is not published, yet cases have occurred where something is deemed equivalent to delivery by the author to a third party. Thus proof that a libel has been published by B, and that in B's house a manuscript in L's handwriting is found nearly identical with the published copy, is admissible evidence that L published it.1 And the mode of proving handwriting in these cases does not differ from that in other cases.2 But it is no prima facie evidence of publication that B, having a printed copy, on request shows such copy of the libel to another.3 Nor is it any evidence of publication by B that the libel is in the handwriting of B's clerk or amanuensis.+ Liability of bookseller and shopkeeper for libels sold. The bookseller is a publisher as well as the author and printer. With regard to selling a libellous book or paper, if in the ordinary course of business any servant sells it in a shop, this is deemed an act of publication by him who keeps the shop, whether he knew anything personally about the subject matter or not, unless he can prove that he expressly ordered the contrary, or that there was some trick or collusion against him.5 Erskine urged, in such a case, that if without the knowledge of the shopkeeper his servant sold a copy, the shopkeeper could at 1 Tarpley v Blabey, 2 Bing. N. C. 437; R. v Lovett, 9 C. & P. 463. Where the only evidence that the defendant J. S. was the publisher of a newspaper was, that some one bought a copy in the office, and that his name was in the footnote at the end described as that of publisher, this was held no legal evidence of J. S. having published it.-R. Stanger, L. R., 62 B., 352. Smith Wood, 3 Camp. 323. Harding Greening, 1 Moore, 479. Nothing could surpass the skill with which the Star Chamber obtained evidence of the authorship of a libel. HUDSON says that "In a case, 7 Hen. VIII., for the discovery of the handwriting of a libel, the books of all the tradesmen in London were to be viewed with two aldermen and a knight appointed by the Privy Council, to confer the hands and manner of writings at the Guildhall, whither they were to be brought, sealed for that purpose only. This was done for the discovery of the author."-Hudson's Star Ch., c. 11. 5 R. v Tutchin, 14 St. Tr. 1112; R. v Almon, 20 St. Tr. 838. And see 16 Parl. Hist. 1156. most be guilty only of negligence, and ought not to be deemed guilty of maliciously publishing. And he referred to the analogous case of homicide, being murder or manslaughter according to the circumstances. But Lord Kenyon, C. J., said there was ample evidence of publication, and therefore of malice.1 Erskine urged in vain, that this was an exception to the general rule, that there is no criminal liability for the act of a servant without some participation of the master. At one time the mere fact of publishing a seditious libel, or even mechanically printing it, as a compositor does in the service of a master printer, without being cognisant of the libel, was indiscriminately held a criminal offence, irrespective altogether of the question of intention in the printer.2 And though counsel urged, that if this were so, then the postboy who carried the bag of letters would be equally liable, the judge said the case of the postboy must be considered when it arose, but the compositor was liable. At a later date it was conceded, that, though no trick had been shown, there may be such a thing as an unintentional or inadvertent publication in some cases, however much the law leans against any such lenient inference. And it was still later allowed, that a porter from a coach office, who merely carries a parcel of libels, of the contents of which he knew nothing, might escape the guilt, if a jury on the evidence thought he knew nothing about them.1 And the judges, in 1820, were satisfied, that the boy who carries a letter to the post is not the person who publishes, but only the person who sent the boy and gave it to him.5 Liability of proprietor of newspaper for libel therein. Again, Lord Kenyon, C. J., said the proprietor of a newspaper was answerable criminally as well as civilly for the acts or misconduct of his servants or agents in conducting such newspaper. That, he said, was the opinion of Lord Hale, Powell, J., and Foster, J., and all the high authorities had acted on it for a century. And when the 1 R. Cuthell, 27 St. Tr. 662; 6 Camp. L. Ch. 518. Clerk, 1 Barn. 304; R. v Nutt, Ibid. 306; Fitz. 47. Topham, 4 T. R. 127. 4 Day Bream, 2 M. & Rob. 55. J., R. v Burdett, 4 B. & Ald. 126. 9 R. v 3 R. 5 Best, 6 R. Walter, 3 Esp. 21. LORD TENTERDEN, C. J., defended this doctrine thus: "This was not a different principle from that which libel is published in a newspaper, the sale of every copy of the paper is deemed a fresh publication and a fresh cause of action.1 And though the party libelled sent an agent to the newspaper office to buy a copy and it was bought, this was deemed a publication, for, as far as regarded the libeller, the injurious act was complete on delivery to such agent. Any person who sends the newspaper to a third party is also a person who publishes it.3 Indeed one judge said, that "not only the party who originally prints, but every party who utters, sells, gives, or lends a copy of an offensive publication is liable to be prosecuted as a publisher."4 Publishers and sellers of defamatory libels may, in some cases, escape liability.-The harshness of this rule of the law by which indiscriminate liability is imputed to the nominal publisher, or printer, or bookseller, whether he personally knew anything of the contents of the paper sold or printed, has been modified in criminal prosecutions by the Statute of 1843. Whenever on a trial of an indictment or information a presumptive case against the defendant is made out owing to a publication. through another person by his authority, the defendant may prove, that such publication was made without his authority, consent, or knowledge, and not from any want of due care or caution on his part.5 And therefore where a proprietor of a newspaper took charge only of one department, but left the editing to a paid editor, who inserted a libel when such proprietor was absent and knew nothing of the matter, it was held, that the latter was prevails in all other criminal cases. The rule is conformable to principle and to common sense. Surely a person who derives profit from and who furnishes means for carrying on the concern and entrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears; and he ought to be answerable, although it cannot be shown, that he was individually concerned in the particular publication. It would be exceedingly dangerous to hold otherwise, for then an irresponsible person might be put forward, and the person really producing the publication, and without whom it could not be published, might remain behind and escape altogether."R. Gutch, 1 M. & M., 437. 1 D. Brunswick v Harmer, 14 Q. B. 189. Burdett, 4 B. & Ald. 126. 2 Ibid. R. v ▲ Bayley, J., R. v Carlile, 3 B. & Ald 169. 56 & 7 Vic. c. 96, § 7. M |