Coke that libel was a constructive breach of the peace. says slanderous words are not a breach of the recognizance for good behaviour, for though such words are motives and mediate provocations for breaking the peace, yet they tend not immediately to a breach of the peace like a challenge. Again he says, that the judges resolved, that a libellus famosus, that is to say, a published libel, though made only against one individual, excited all those of the same family kindred or society to revenge, and so tended to quarrels and breach of the peace; and if the libel be against a magistrate or other public person, it was a greater offence, for it concerned not only the breach of the peace, but also the scandal of the government. And though the private man or magistrate be dead at the time of the making of the libel, yet it was punishable, for in the one case it stirred up revenge and breach of the peace, and in the other the libeller traduced "the state and government which dies not." "" 1 But this view, that a libel per se is a breach of the peace, or tends to a breach of the peace, is obviously incorrect as a matter of fact, and no rule of law can alter the fact.2 Many libels in no way operate as a breach of the peace, and it would be idle so to regard them. Nevertheless this ancient doctrine was probably at the root of 1 5 Rep. 125. A libel has often been said to be indictable because it tends to a breach of the peace, and such was the view of the older authorities. In Dalton's Justice, c. 124, a libel is defined—a thing tending to the breach of the peace. In Hick's Case (Hob. 215) it is called a provocation to a breach. In R. v Summers, 1 Lev. 139, it was said to be cognisable by justices because it tended to a breach of the peace. In Hawk. P. C., c. 73, § 3, it is called a thing directly tending to a breach of the peace. In R. v Wilkes, 15 Parl. Hist. 1362, the House of Commons resolved that privilege did not apply to publishing seditious libels; and hence that a member of the House might be imprisoned and dealt with in the same way as any member of the public. PRATT, C. J., had held the contrary, because it was no breach of the peace.-R. v Wilkes, 2 Wils. 151. 2 The Peers' protest in the House of Lords, when Wilkes' case was considered, well put this point: "To say that a libel, possibly productive of a breach of the peace, is the very consequence so produced, is, in other words, to declare that the cause and the effect are the same thing. And though one were to add the inflaming epithets of treasonable, traitorous, or seditious to a particular paper, yet no words were strong enough to alter the nature of things."-15 Parl. Hist. 1374. the view, which led judges previous to Fox's Act to adhere to the practice of treating the character of a writing, if libellous or not, as a question of law; and so the functions of juries in such cases were reduced to an absurdity-a result which led the legislature to interfere and put an end to it, as has already been stated. Seizing and destroying blasphemous and seditious libels. Courts of law disclaimed the power to order the libellous document even after verdict to be destroyed.1 But latterly in case of a conviction for blasphemous or seditious libel, the court may now, by statute, after verdict or judgment, order all copies of the libel found in the possession of the defendant, or of other persons for the use of the defendant, to be seized and detained in safe custody, and for this order evidence on oath must be previously given.2 When formal judgment is entered against the defendant, the court is then to dispose of these copies. It was once thought, until Lord Camden showed the illegality of the practice, that a secretary of state could issue a warrant to seize seditious libels in anybody's possession, and search anybody's house in order to find them, But the only power of dealing with libels is as above stated. 3 Ordering libel to be burnt.-One mode of disposing of written or printed libels has apparently been adopted by most nations with singular unanimity, and that is the burning of the obnoxious paper, which has been assumed rather hastily to be a final extinguishment of all the mischief therein contained. Constantine ordered contentious libels to be burnt. And whoever collected and read false libels and did not immediately burn them committed a capital offence. To keep books of magic also was a crime, and they too were ordered to the same fate. 1 R. v Cator, 2 East, 361 3 1 Geo. IV. c. 8, § 2. Theod. b. ix. 41, 34. 5 2 60 Geo. III. & 1 Geo. IV. c. 8, § 1. 4 See 2 Pat. Com. (Pers.) 130. 5 Cod. 6 Paul. Sent. The case of the Roman Senate ordering Labienus' books to be burnt as libellous, was said to have been the first instance of this mode of punishment. The laws of Valentinian and Valens decreed that if a person met with a defamatory libel either in a public or private place even by chance, and did not immediately destroy it but divulged the same, he should suffer death as if he were the author. In our own country burning an obnoxious libel was deemed almost a matter of course. A rule was recog nised that, if the libel refer to a private person, it must be burnt or delivered to the magistrate; if it referred to a public person, it was to be delivered to the magistrate.1 In Queen Anne's reign the decree of the University of Oxford in 1683, respecting passive obedience, was ordered by the House of Commons in 1710 to be burnt by the hands of the common hangman, as contrary to the liberty of the subject and the law of the land. In 1702, a sermon containing reflections on Charles I. was ordered by the House of Lords to the same fate, and the House of Commons did the same with Defoe's ironical satire, which recommended all dissenters to be killed like snakes and toads. And Sacheverell's sermon so treated. was also In 1751 a seditious libel entituled "Constitutional Queries recommended to every true Briton," was ordered by the House of Commons to be burned by the hands of the common hangman in Palace Yard at 1 P.M., and the Sheriff of Middlesex was to attend and cause the same to be burnt accordingly. When Wilkes' libel in the North Briton, No. 45, was brought to the knowledge of the House of Commons in 1763, the House resolved, that it was false, scandalous, and seditious, and tending to excite to traitorous insurrections, and ordered that it should be burnt by the hands of the common hangman in Cheapside.5 But when the sheriff proceeded to see the order executed, the mob were violent and pelted the officials with stones and missiles, the general cry being "Wilkes and liberty; and they burned a petticoat and jack-boots in its stead, and the blame of this led to a parliamentary inquiry of four days. Since that date neither the legislature nor the courts of law have thought fit to return to this primitive experiment. And as Parliament recently gave authority by a statute to magistrates under certain conditions to destroy obscene libels, this may be treated as an implied repeal of the doctrine of the common law as to this kind 1 Wraynham's Case, 2 St. Tr. 1060. Plymley. 36 Parl. Hist. 22, 93. 15 Parl. Hist. 1360. Lett. 147. 6 Rae's " 2 Syd. Smith, P. 14 Parl. Hist. 869. 4 Walp. Wilkes, 53. of burning of other libels, seeing that at best it was but a barbarous usage.1 No summary remedy or injunction for libel or slander-Whatever be the nature of the libel, whether blasphemous, immoral, seditious or defamatory, no power exists in any judge or court to punish summarily that offence, except it be also a contempt of court. It is ar indictable offence or it is nothing, and the usual steps must be taken either by criminal information or indictment, and in the latter case a preliminary hearing before a justice of the peace may be added. But such justice can only commit for trial before the justices of assize. It is true that unlike the other libels an immoral libel may be tried at Quarter Sessions on indictment, but this arises from the jurisdiction being expressly defined by statute for that court.2 Nor will the courts issue an injunction to prevent the publication of a libel, for if this were allowed there would be constant applications of that kind. It is true that Scroggs, C. J., assumed power to suppress a periodical partly on this ground. But he was impeached for this as an illegal exercise of jurisdiction. And such an injunction, though sometimes asked for on the ground of property being thereby injured, has been in modern times refused on the ground that the court is not the censor morum to decide summarily whether a statement is libellous or not; and if it is libellous it must be punished as such by action or indictment. And yet there may be some exceptions, as where some urgent step to preserve property may be involved, and where injunction will not be refused merely because of the libellous character of the act to be restrained.4 Costs in criminal prosecutions for libel.- Where there has been an indictment for libel and verdict either of guilty or not guilty, no provision was made by the common law for costs, and thus any change of this state of things must be due to statutory powers. When the AttorneyGeneral files an ex officio information, it is beneath the dignity of the Crown to pay or receive costs. Where the prosecution was by way of criminal information and the 1 See Stat. 20 & 21 Vic. c. 83, ante, p. 70. 2 See ante, p. 213. 4 Prudential Ins. Co. v Knott, L. R. 10 3 8 St. Tr. 198. Ch. 142. defendant was found guilty and fined, it seems to have been long a rule of practice, that one-third of this fine might be allotted to pay the prosecutor's costs, and if insufficient to do so the Treasury was accustomed to reimburse the prosecutor for the residue. But if no fine was imposed, there was no means of paying costs provided. In 1692 the legislature saw the hardship to which defendants were often put by criminal informations being begun and not proceeded with, thereby causing grievous costs. Accordingly by a statute no prosecutor was afterwards allowed to begin that proceeding without entering into recognisance for 201. to pay the defendant's costs, if the prosecution was not proceeded with. If it was not proceeded with in a year, or if judgment were given for the defendant, then the court was to give the defendant his costs; unless the judge certified, that there was no reasonable cause for the information.2 It is true this enactment has been held not to apply when the trial is at bar, for no other reason but because 207. was seen to be too small a sum to cover the costs of such a mode of procedure. And on the other hand, the defendant could never get more than 207., the amount of the recognisance, and which is usually a mere fraction of the costs he incurs. And this is still the law as to blasphemous, immoral, and seditious libels. With regard, however, to defamatory libels the subject of costs is now regulated more justly by the Statute of 6 & 7 Victoria, cap. 96. Whether the defendant plead the truth of the libel or not in answer to an indictment or information, if he obtain the verdict, he is entitled to his costs.5 And if there was a criminal information the defendant is entitled also to his costs of the rule of court, which must precede the filing of such information. And conversely it was also declared, that whenever the prosecutor succeeded on a plea of justification set up by the defendant of a defamatory libel, then he was to have his costs allowed.7 On one occasion the proprietor of a newspaper, having been indicted and fined for a libel which was inserted without 11 Chitt. Cr. L. 871. 2 4 W. & M. c. 18, § 1. 7 Mod. 47. Q. B. 1077. 3 R. v Clerk, 5 R. v Latimer, 15 4 R. v Brook, 2 T. R. 190. 76 & 7 Vic. c. 96, § 8. |