Indictment for insulting a justice in the exe cution of his office. That heretofore, to wit, on &c. a special session of the peace was holden at &c. before certain justices of the peace of our Sovereign Lord the King for the said county of — to wit, before P. Q., R. S., and X. Y., and others their fellows, being justices as aforesaid of the county of- aforesaid, who had then and there assembled and met together, with purpose and intent to authorize and empower certain persons, then and there also assembled and attending, to keep respectively in their respective parishes within the said county of- certain common inns and alehouses, as by the laws of this realm the said justices, as aforesaid, were authorized and empowered to do, at which said session so then and there holden as aforesaid, before the justices above named, and others their fellows as aforesaid, came A. B. late of &c.; and the said A. B. on being then and there, to wit, at the said session so holden as aforesaid, before the said justices as aforesaid, demanded a licence from the said P. Q., R. S., and X. Y. and others their fellows so as before assembled, in order that he the said A. B. might be authorized and empowered, at a certain house known and distinguished by the sign of the White Swan, at, &c. to sell ale for and during the year next ensuing; but the said P. Q., R. S., and X. Y. and others their fellows so then and there assembled, being justices of our said Lord the King for the county of aforesaid, then and there refused to grant any leave, license, or authority to the said A. B. to sell ale at aforesaid, in the county aforesaid, for the said year then next ensuing ; whereupon the said A. B. wickedly, and maliciously intending to traduce the authority, and impede the proceedings, as well as to vilify the characters, of the said justices, so being then and there in the due and proper execution of their duties, uttered and pronounced, and loudly published to the said justices so assembled and met together, as aforesaid, in the presence and hearing of divers of his Majesty's liege subjects, these false, scurrilous, and contemptuous words of and concerning the said P. Q., R. S., and X. Y. and others their fellows, justices as aforesaid, then and there assembled, and of and concerning the execution of their said duties, that is to say, "you are all (meaning the said P. Q., R.S., and X. Y. and others their fellows then and there assembled) a parcel of tyrannical villains, and ought to be hanged for depriving a poor man of his bread" (meaning that the said P. Q., R. S., and X. Y. and others their fellows then and there assembled, ought to be hanged for depriving him the said A. B. of his bread, by refusing him the said A. B. a license to sell ale, which he the said A. B. had then and there required from them the said P. Q. &c. and which they the said P. Q., R. S., X. Y. and others their fellows justices as aforesaid, had then and there refused to grant to him the said A. B.) in disturbance of the administration of justice, and against the peace, &c. (x) (x) Scandalous aspersions of a magistrate in the execution of his office, are regarded as criminal, and subject the offender to punishment, at the discretion of the court in which he is convicted; Holt on Lib. 153; 1 Russel, C. and M. 328. And, to these, the rule is strictly confined; for if the language, however opprobrious, apply only to the justice in his private capacity, no indictment can be supported. So that if a man at a parish meeting apply to an absent magistrate abusive names, as if he say, "if he is a sworn justice, he is a rogue and a forsworn rogue," or if he apply to him the names of ass, fool, cox 3. Offences against public decency. Indictments. That A. B. late of &c. on &c. with force and arms, &c. at &c. Indictment for the church-yard of and belonging to the parish church of the same digging up and parish there situate, unlawfully did enter, and the grave there, in taking away a which the body of one M. B. deceased, had lately before then been dead body from a interred, and then was, with force and arms unlawfully, voluntarily, church-yard. (y) wilfully, and indecently did dig, open, and afterwards, to wit, on the same day and year aforesaid, with force and arms, at &c. the body of him the said M. B. out of the grave aforesaid, unlawfully and indecently did take and carry away, against the peace, &c. That A. B. and C. D. on &c. with force and arms at &c. in Indictment for &c. a certain dead body, to wit, the body of M. B. then and there preventing the being, unlawfully and wickedly did arrest, (z) take, and carry away, interment of a and cause and procure to be arrested, taken, and carried away, dead body by an with an unlawful and wicked intention, to prevent the interment and arrest. burial of the said dead body of the said M. B. which ought to have been done and performed according to the rites and ceremonies of the church of that part of this realm called England, against the peace, &c. That G. D. late of &c. on &c. and at divers other days and times Indictment for between that day and the day of taking this inquisition, with force keeping a com and arms, at &c. a certain common bawdy-house, (a) situate in mon brothel. a comb, or blockhead, no indictable offence will have been committed; 2 Stra. 1157, 8; 2 Salk, 698; 2 Campb. 142. And it seems that to render any words thus indictable they must be spoken to the magistrate, and not in his absence. 2 Campb. 142; 2 Stra. 1157; 1 Stra. 420, 1. (y) This has always been holden a misdemeanor indictable at common law; 4 Bla. Com. 235; 2 T. R. 733. If the shroud, coffin, or any other chattel accompanying the dead body be taken away, with intent to steal, such taking is a larceny. (z) A vulgar notion at one time prevailed, that itwas lawful to arrest the body of a person deceased for a civil debt due from the party in his life time. Indeed it was not till of very late years that the notion was in any degree exploded. But it is now clearly ascertained, that no such practice is lawful, and indeed that to prevent the body from being interred, is an offence against decency, and as such indictable under the class of misdemeanors; 4 East, R. 465 ; 2 T. R. 734. (a) Every brothel is necessarily a disorderly house, but every disorderly house is not necessarily a brothel; and though the proof of one may fail, the evidence may be sufficient to maintain a charge of the other. It is always, therefore, prudent in an indictment for keeping a brothel to add, by way of second count, the succeeding indictment for keeping a disorderly house. It has been decided that a wife may be indicted either separately, or with her husband, for keeping a brothel, because the charge Indictment for keeping a disorderly house. in the town of certain street, called or known by the name of street, in the That G. D. late of &c. on &c. and on divers other days and times, between that day and the day of the taking of this inquisition, with force and arms, at &c. did keep and maintain, and yet doth keep and maintain, a certain common, ill-governed, and disorderly house, (b) and in the said house, for his own lucre and gain, is the criminal management of the house, and the law presumes that to be principally in the woman's department. 4 Bla. Com. 29; 1 Salk. 382. And even a lodger is indictable for this offence, as well as the proprietor of a house, if she convert her lodging to the same offensive purposes; 2 Ld. Raym. 1197. To prove a house being a bawdy house, requires evidence indeed more precise than will suffice for conviction of keeping a disorderly house, but it is not necessary to state particulars in the indictment; for particular instances of illicit intercourse may be given under the general charge; neither is it necessary to prove the particular persons who frequented the house (which indeed may not be possible), but it is necessary to give evidence sufficient of the facts themselves to lead to the conclusion that the purposes to which the house was applied were the offensive ones charged. 1T. R. 754. (b) By 25 Geo. 2. c. 36, "If two inhabitants paying scot and lot shall give notice to a constable of any person keeping a disorderly house, the constable shall go with them before a justice, and shall (upon such inhabitants making oath of the truth of such notice, and entering into recognizance of 201. each to give material evidence) enter into a recognizance of 30l. to prosecute with effect such persons at the next sessions. The constable shall be paid his reasonable expenses by the overseers of the poor, to be ascertained by the justice, and in case of conviction, the two inhabitants shall have 107. each paid to them by the said overseer. The justice may bind over the party accused to the sessions, and to good behaviour in the mean time; the constable neglecting his duty to be fined 201.; s. 5, 6, 7. By s. 8. of the same act, it is declared, that whoever shall act or behave as master or mistress, or as person having the care or management, or government, of such house, shall be deemed the keeper thereof. Inhabitants may be witnesses; s. 9. Proceedings not to be removed by certiorari; s. 10. certain persons as well men as women, of evil name and fame, and of dishonest conversation, to frequent and come together, then, and on the said other days and times, there unlawfully and wilfully did cause and procure, and the said men and women in the said house, at unlawful times, as well in the night as in the day, then, and on the said other days and times, there to be and remain drinking, tipling, swearing, gaming, rioting, and misbehaving themselves, unlawfully and willingly did permit, and still doth permit, to the great damage and common nuisance of all the liege subjects of our said Lord the King, and against the peace, &c. That H. O. G. late of unlawfully, deliberately, and wilfully, Indictment for did expose and exhibit himself naked, near to, and in front of, divers bathing publicly houses of the liege subjects of our said Lord the King, situate at, near public ways &c. aforesaid, and also near to a certain public and common King's and habitations. highway there, and also in the presence of divers liege subjects of our said Lord the King, both male and female, with intent to vitiate and corrupt the morals of his Majesty's liege subjects, and against the peace, &c. And the jurors, &c. that the said H. O. G. on &c. at &c. unlaw- Second count. fully, deliberately, and wilfully, did expose himself naked, to divers of his said Majesty's liege subjects, against the peace, &c. That H. O. G. late of &c. and intending as much as in him lay, Indictment for to vitiate and corrupt the morals of his Majesty's liege subjects, and indecently exto stir up and excite in their minds filthy, lewd, and unchaste posing the perdesires and inclinations, on &c. at &c. unlawfully, wickedly, de- son in indecent liberately, and wilfully did expose and exhibit his private parts, in postures. an indecent posture, situation, and practice, to divers of the liege subjects both male and female of our said Lord the King, with intent to vitiate and corrupt the morals of his Majesty's liege subjects, and to stir up and excite in their minds, filthy, lewd, and unchaste desires and inclinations, against the peace, &c. That A. B. late of &c. being a person of a wicked and depraved Indictment for mind and disposition, and unlawfully, wickedly, and impiously de- publishing and signing, contriving, and intending to vitiate and corrupt the morals selling an obof the subjects of our Sovereign Lord the King; and to debauch, scene libel. poison, and infect the minds of the youth of this kingdom, on &c. at &c. did unlawfully, wickedly, and impiously publish and sell, and cause and procure to be published and sold, a certain filthy, bawdy, and obscene libel, entitled, "The History of Fanny Hill," in which said libel are contained amongst other things, divers lewd, impure, and obscene matters, that is to say, in one part thereof, according to the tenor following, viz. (here set out one of the passages). And in another part thereof, (c) according to the tenor following, viz. (here state the other libellous part), against the peace, &c. And the jurors, &c. that the said A. B. afterwards, that is to say, Second count. (c) See Tabart v. Tipper, 1 Campb. 352. Indictment for on &c. aforesaid, at &c. aforesaid, did unlawfully, wickedly, and knowingly, publish and sell, and cause and procure to be published and sold, a certain other obscene libel, entitled, "The History of Fanny Hill," in which said last-mentioned libel are contained amongst other things divers wicked, impure, and obscene prints, against the peace, &c. That H. T. late of &c. on &c. and on divers other days and exposing to sale times between that day and the day of taking this inquisition, at &c. an obscene print. aforesaid, unlawfully, wickedly, deliberately, and advisedly did publish, expose, and show to the sight and view of many of the liege subjects of our said Lord the King, divers, to wit, six obscene, filthy, and indecent prints, representing men and women in attitudes, situations, and practices of great and scandalous obscenity, lewdness, and indecency, to the great corruption of the morals and manners of his Majesty's liege subjects, and against the peace, &c. And the jurors, &c. that the said H. T. afterwards, to wit, on &c. at &c. aforesaid, unlawfully, wickedly, deliberately, and advisedly did utter and publish divers, to wit, six other obscene, filthy, and indecent prints, representing men and women in attitudes, situations, and practices of great and scandalous obscenity, lewdness, and indecency, against the peace, &c. Second count. Consideration vate libels. § 16. LIBELS. As indictments for libels on the government and reliconfined to pri- gion have been already noticed, as for offences against public decency, our consideration in this place is restricted to libellous attacks on individuals, which have been always holden indictable in consequence of their tendency to provoke the parties libelled to commit a breach of the peace. This imputed tendency runs through the whole. system of the law of criminal libel, and may account for, if it does not justify, some of the anomalies with which it has been frequently charged. Definition of private libels. Offence.-Libels may be defined as malicious defamations, made public either by printings, writings, signs, or pictures, tending to expose some living person or body of persons to ridicule or odium, or to blacken the reputation of some person who is dead, and thereby to incite the party libelled in the first instance, and surviving relations in the last, to break the peace. To constitute a libel, then, the matter must be defamatory; the mode of publishing it by writing, printing, signs, or pictures; and the publication must be what the law has (rather perhaps to the confusion of the subject) termed malicious. What matter de- 1. The matter must be defamatory; but it need not contain a charge of an indictable offence; it is sufficient if famatory. |