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60 G. 3. c. 9. Double costs.

Not to alter the

law of Scotland in respect to punishment for

libels.

No person to

print or publish

newspapers,

&c. or pamphlets, without entering into recognizance,

or giving bond for securing

fines upon conviction for

libels.

1 W. 4. c. 73.

Punishment

of banishment repealed.

Amount of bonds to be

given by per

newspapers,

have double costs, which he or they shall and may receive in such and the same manner as any defender can by law recover costs or expences in other cases.

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§ 10. provides, "That nothing in this act contained shall be held or considered as in any respect altering the law or practice of Scotland regarding the punishment of persons convicted of composing, printing, publishing, or circulating any blasphemous or seditious libel."

By 60 G. 3. c. 9. § 8.," No person shall print or publish for sale any newspaper, or any pamphlet or other paper containing any public news, intelligence, or occurrences, or any remarks or observations thereon, or upon any matter in church or state, which shall not exceed two sheets, or which shall be published for sale at a less price than 6d., until he or she shall have entered into a recognizance before a baron of the Exchequer in England, Scotland, or Ireland respectively, as the case may be, if such newspaper or pamphlet, or other paper aforesaid, shall be printed in London or Westminster, or in Edinburgh or Dublin, or shall have executed in the presence of, and delivered to, some justice of the peace for the county, city, or place where such newspaper, pamphlet, or other paper shall be printed, if printed elsewhere, a bond to his majesty, his heirs and successors, together with two or three suf. ficient sureties, to the satisfaction of the baron of the Exchequer taking such recognizance, or of the justice of the peace taking such bond, every person printing or publishing any such newspaper, or pamphlet, or paper aforesaid, in the sum of 300l., if such newspaper, pamphlet, or paper shall be printed in London, or within twenty miles thereof, and in the sum of 2001., if such newspaper, pamphlet, or paper shall be printed elsewhere in the united kingdom, and his or her sureties in a like sum in the whole, conditioned that such printer or publisher shall pay to his majesty, his heirs and successors, every such fine or penalty as may at any time be imposed upon or adjudged against him or her, by reason of any conviction for printing or publishing any blasphemous or seditious libel, at any time after the entering into such recognizance, or executing such bond; and that every person who shall print or first publish any such newspaper, pamphlet, or other paper, without having entered into such recognizance, or executed and delivered such bond with such sureties as aforesaid, shall, for every such offence, forfeit the sum of 20%.”

By 1 W. 4. c. 73. § 1., reciting certain enactments of 60 G. 3. c. 8., whereby persons convicted a second time of having published, &c. any blasphemous or seditious libel are rendered liable to the sentence of banishment, it is enacted, "That so much and such parts of the said act as relate to the sentence of banishment for the second offence be and the same are hereby wholly repealed."

By §2., reciting certain provisions made by 60 G. 3. c.9. "for preventing any person from publishing any newspaper or pamphlet, or other paper of the description therein mentioned, without first entersons publishing ing into a recognizance or giving a bond, with sureties, in manner and to the amount therein specified," it is enacted, "that the amount of such recognizances and bonds, in all cases whenever it shall be hereafter necessary, according to the provisions of the said act, to enter into any new recognizance or bond, shall be extended to the

&c. under

60 G. 3. c. 9. increased.

sum of 4001. for the principal, and the like sum for the sureties, 1 W. 4. c. 73. in any such new recognizances, and to the sum of 300l. for the principal, and the like sum for the sureties, in any such new bond; and that the conditions of such new recognizances and bonds respectively shall extend to secure the payment of damages and costs to be recovered in actions for libels published in such newspapers, pamphlets, or other papers, as well as to secure the payment of fines to his majesty upon such convictions as aforesaid; and that all the clauses and provisions in the said last-mentioned act contained, relating to the recognizances and bonds therein mentioned, shall be applicable and extend to such new recognizances and bonds as are herein directed to be taken and made." § 3. "And be it further enacted, that if any plaintiff, in any action for libel against any editor, conductor, or proprietor of such newspaper, pamphlet, or other paper as aforesaid, shall make it appear by affidavit to his majesty's court of Exchequer that he is entitled to have execution against the defendant upon any judgment in such action, but that he has not been able to procure satisfaction by writ of execution against the goods and chattels of such defendant, it shall be lawful for the said court, for the benefit of such plaintiff, to order and direct such proceedings to be had and taken upon such recognizances or bonds respectively as would be taken to obtain any fines or penalties due to his majesty secured by such recognizance and bond: Provided always, that the expence of such proceedings shall be exclusively borne by such plaintiff as aforesaid."

IV. Power of Justices of the Peace.

On a case officially referred to the attorney and solicitor general, by the secretary of state for the home department, in the year 1817, the following opinion was promulgated by authority:"We are of opinion that a warrant may be issued to apprehend a party charged on oath for publishing a libel, either by the secretary of state, a judge, or a justice of the peace.

"With respect to the secretary of state in the case of Entick v. Carrington, as reported by Mr. Hargrave, though the court were of opinion the warrants which were then the subject of discussion were illegal, yet Ld. Camden declared, and in which he stated the other judges agreed with him, that they were bound to adhere to the determination of The Queen v. Derby, and The King v. Earbury, in both of which cases it had been holden, that it was competent to the secretary of state to issue a warrant for the apprehension of a person charged with a scandalous and seditious libel, and that they, the judges, had no right to overturn those decisions.

Damages due to any plaintiff in any action for libel may

be recovered upon such

bond.

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ant may be held to bail for

libel.

"With respect to the power of a judge to issue such warrant, it That defendappears to us that, at all events, under the statute of 48 G. 3. c. 38., a judge has such power, upon an affidavit being made in pursuance of that act. A judge would probably expect that it should appear to be the intention of the attorney-general to file an information against the person charged.

"With respect to a justice of the peace, the decision of the 19 Howell's court of Common Pleas, in the case of Mr. Wilkes's libels, only St. Tri. 1075. amounts to this, that libel is not such an actual breach of the

In dom. Proc.
Opinions.

Arrest for libel held legal.

Acc.

peace, as to deprive a member of parliament of his privilege of parliament, or to warrant the demanding sureties of the peace from the defendant; but there is no decision or opinion that a justice of the peace might not apprehend any person not so privileged, and demand bail to be given to answer the charge. It has certainly been the opinion of one of our most learned predecessors, that such warrants may be issued and acted upon by justices of the peace, as appears by the cases of Thomas Spence and Alexander Hogg, in the year 1801. We agree in that opinion, and therefore think that a justice of the peace may issue a warrant to apprehend a person charged by information on oath with the publication of a scandalous and seditious libel, and to compel him to give bail to answer such charge.

"Lincoln's Inn,
"Feb. 24th, 1817.

"W. GARROW.
"S. SHEPHERD."

This opinion was fully discussed in the House of Lords on the 12th May, 1817, when the Lord Chancellor (Eldon) and Lord Ellenborough, C. J. of the K. B., delivered their opinions that justices of the peace had power to hold to bail in cases of libel; and in Butt v. Conant (a) 1 Brod. & Bing. 548., it was expressly decided, after much consideration, and a view of all the adjudged cases and authorities, that a justice of the peace has authority to issue his warrant for the arrest of a party charged with having published a libel; and upon the neglect of the party so arrested to find sureties, may commit him to prison, there to remain till he be delivered by due course of law. See also 4 Blac. Com. 150.

The publishers and distributors of impious and seditious libels may be instantly taken up and held to bail. It is not necessary to stand by and see the mischief spreading, without attempting to interrupt its progress: it would be a reproach to the laws of the country if it were so, and if the magistrates might not arrest the torch in the incendiary's hand, before it has actually set fire to the building. Per Leycester J. in his charge to the grand jury at Carnarvon Sum. Ass. 1819.

Indictment for a Seditious Libel.

THE jurors for our lord the king upon their oath present, That
A. Ö. late of
in the county of
gentleman,
not having God before his eyes, but moved by the instigation of the
devil, and falsely and maliciously contriving and intending to bring
our said lord the king into hatred and infamy amongst his subjects,
and to move sedition amongst the subjects of our said lord the king,
did on the

day of

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in the

year of the

(a) The warrant, in this case, dated 6th March 1817, at the public office Bowstreet, was directed, "To all constables and others H. M.'s officers of the peace, whom it may concern," commanding them to take and bring before the defendant or some other of H. M.'s justices of the peace the body of the plaintiff, "to answer all such matters or things as, on H. M.'s behalf, shall on oath be objected against him, for that he on the 5th March instant did publish and cause to be pub. lished a certain wicked, scandalous, and malicious libel, imputing the crime of robbery to Edward Lord Ellenborough Lord C. J. of H. M.'s court of K. B. and another wicked, scandalous, and malicious libel, imputing to Robert Henry Lord Castlereagh, that he had stated a gross falsehood to the House of Commons, to answer his own purposes; and to the said Edward Lord Ellenborough that he had unjustly convicted the plaintiff, to make money of him, against the peace," &c.

with force and arms, at

aforesaid in

reign of-
the county aforesaid, falsely, seditiously, and maliciously write and
publish, and cause to be written and published, a certain false, sedi-
tious, and scandalous libel, intitled
In which said libel
are contained, among other things, divers false, seditious, scandalous,
and malicious matters, according to the tenor following, to wit,
And in another part of the same libel are contained
divers other false, seditious, scandalous, and malicious matters, ac-
cording to the tenor following - to the evil example of all
others in the like case offending, and against the peace of our said
lord the king, his crown and dignity.

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Lunatics.

[39 & 40 G. 3. c. 94.9 G. 4. c. 40.]

THE general law respecting lunatics will be found in another part of this work; the subject will no further be treated of here than as it is connected with crime.

Non compos mentis is of four kinds: — First, Idiots; who are of non sane memory from their nativity, by a perpetual infirmity. 1 Inst. 247.

Secondly, Those that lose their memory and understanding by the visitation of God, as by sickness or other accident.

Thirdly, Lunatics; who have sometimes their understanding, and sometimes not.

Fourthly, Drunkards; who by their own vicious act for a time deprive themselves of their memory and understanding.

He who incites a madman to do a murder, or other crime, is a principal offender, and as much punishable as if he had done it himself. 1 Haw. c. 1. § 7.

But idiots and lunatics, who are under a natural disability of distinguishing between good and evil, are not punishable by any criminal prosecution. 1 Haw. c. 1. § 1.

It is not every frantic and idle humour of a man that will exempt him from justice and the punishment of the law. When a man is guilty of a great offence, it must be very plain and clear before a man is allowed such an exemption; therefore it is not every kind of frantic humour, or something unaccountable in a man's actions, that points him out to be such a madman as is to be exempted from punishment. It must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast; such a one is never the object of punishment. Per Tracy J. R. v. Arnold, 16 Howell's St. Tri. 764.

If there be a total permanent want of reason, it will acquit the prisoner. If there be a total temporary want of it, when the offence was committed, it will acquit the prisoner. But if there be only a partial degree of insanity, mixed with a partial degree of reason; not a full and complete use of reason, but (as Lord Hale carefully and emphatically expresses himself) a competent use of it, sufficient to have restrained those passions, which produced the crime; if there be thought and design; a faculty to distinguish the nature of actions, to discern the difference be

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Drunkards.

Frenzy caused

by medicine or diet.

Permanent frenzy.

Punishable for civil offences.

Becoming non compos before trial.

How tried

whether he is non compos.

39 & 40 G. 3. c. 94.

Persons acquitted as insane on trial for murder,

treason, or felony.

So, if insane,

tween moral good and evil; then, upon the fact of the offence proved, the judgment of the law must take place. Per Yorke, Solicitor General in Ld. Ferrers's case, 19 Howell's St. Tri. 947, 948. et per Lawrence J. R. v. Allen, tried at Stafford Lent Ass. 1807, for murdering three of his children. MS.

Drunkards shall have no privilege by their want of sound mind; but shall have the same judgment as if they were in their right senses. 1 Inst. 247. 1 Haw. c. 1. § 6. 1 Hale, 32.

If a person by the unskilfulness of his physician, or the contrivance of his enemies, eats or drinks such a thing as causes frenzy, this puts him in the same condition with any other frenzy, and equally excuses him: also, if by such practices an habitual frenzy is caused, though this madness was contracted by the vice and will of the party, yet the habitual and fixed frenzy puts the man in the same condition as if it were contracted at first involuntarily. 1 Hale, 32. 1 Russ. 8.

But if a person, who wants discretion, commit a trespass against the person or possession of another, he shall be compelled in a civil action to give satisfaction for the damage. 1 Haw. c. 1. § 5.

If one who hath committed a capital offence become non compos before conviction, he shall not be arraigned; and if after conviction, he shall not be executed. Hale's Sum. 10. 1 Haw. c. 1. § 3.

By the common law, if it be doubtful whether a criminal, who at his trial in appearance is a lunatic, be such in truth or not, it shall be tried by an inquest of office, to be returned by the sheriff; and if it be found by them that the party only feigns himself mad, and he still refuse to answer, he shall be dealt with as if he had confessed the indictment. 1 Haw. c. 1. § 4.

By stat. 39 & 40 G. 3. c. 94. § 1., in all cases, where it shall be given in evidence upon the trial of any person for treason, murder, or felony, that such person was insane at the time of the commission of such offence, and such person shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of committing such offence, and to declare whether they acquitted him on account of such insanity; and if they do so find, the court shall order such person to be kept in strict custody in such place and in such manner as to them shall seem fit, until H. M.'s pleasure shall be known; whereupon H. M. may give such order for the safe custody of such person during his pleasure in such place and manner as to H. M. shall seem fit..

§ 2. When any person who shall be indicted for any offence, when indicted, shall be insane, and upon arraignment shall be found by a jury for any offence. impanelled for that purpose to be insane, so that he cannot be tried, or when upon the trial he shall be found to be insane, the court may record such finding, and order the party to be kept in strict custody until H. M.'s pleasure shall be known; and if any person, charged with any offence, shall be brought before any court to be discharged for want of prosecution, and such person shall appear to be insane, the court may order a jury to be impanelled to try the sanity of such person; and if the jury find him to be insane, the court may order such person to be kept in strict custody, &c.; and in all cases of insanity his majesty may give such order, &c. (as in the former section).

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