(18)
His Lordship: Was that a libel in the World (a laugh),
Mr Francis: No. It was a charge of libel on the ground that he had alleged of a certain gentleman that he was a destroyer of game and a seller and dealer in the same. It was there ruled that the mere setting forth of the words without innuendo was insufficient.
The Chief Justice: ... the case; it might be a point with regard to the ground on which the whole criminal proceedings of England was based was that there should be no such embarrassment to the defendant. For that reason the rules of criminal proceedings forbade that even two different charges should be joined in one indictment under two counts, save in some particular cases provided for by statute.
Mr Francis: ... No ambiguity or duplicity was allowed in criminal proceedings, because it was against the interest of the defendant. The more ground and basis of these rules was that the cause of the defendant, in pleading and in meeting these charges, should in nowise be embarrassed.
Mr Francis submitted that in the particular class of cases to which that now before the Court belonged a special plea was given to the defendant which he was entitled to use, and he was also entitled to have the information so framed that he might use that plea to the best advantage.
The Chief Justice: Quite so. Where there is an ambiguous phrase, where what is alleged to be a libel may be read two ways, it is only fair and necessary that the meaning of which complaint is made, the libellous interpretation, should be set forth; there must be an averment that it was in the libellous sense that it was written.
Mr Francis referred his Lordship to the case of the Queen v. Yates, (Cox's Criminal Cases, Vol. 12,) wherein one James Yates was indicted.
Mr Francis: The rule extended thus far. Not only if the words were ambiguous had the information plainly to set forth which of the meanings was complained of as a libel, but if the words were charged as a libel on a man in his business it had to show how they were said of him, or how they applied to him, or what they represented of him in his business which was a libel.
The Chief Justice: Not as a "dealer in shares generally," but as a general dealer in shares, he being a person who should not engage in such dealings.
Mr Francis: My contention is that the letter may be read as containing three separate and distinct assertions.
The Chief Justice: Libellous assertions.
Mr Francis: I will not admit that.
The Chief Justice: But will other men of common sense read it as you do? Is it not capable of being read without innuendo?
Mr Francis: My position is this,—I am entitled to plead,—do not say whether the world, as Counsel for the prosecution, am going to plead or not—to each allegation justification, and that this allegation is true in substance and fact, and that it was for the public good that it should be published.
(19)
Mr Francis: The whole letter being put in and without innuendo, and not divided in any way to show the different allegations which we have to deal with and which are said to be libellous, I am unable so to plead, and we are thus embarrassed.
The Chief Justice: You can plead not guilty to the whole; you can then plead justification so far as a certain portion is concerned, and so far as another portion is concerned you can plead the same or another plea, and so on.
Mr Francis was doubtful whether this could be done. In a civil case it could.
The Chief Justice: And where is the difference?
Mr Francis referred his Lordship to the statute 6 and 7 Vic.
Mr Hayllar referred his Lordship to Starkey, sec. 7, which referred to the replication.
The Chief Justice: I must say one thing that what was written under heat is one thing, not justifiable but excusable; what is said afterwards and premeditatedly, that forms another libel in the mind and intention of the writer, and, as this Act puts it, makes it a subject matter for very serious consideration afterwards.
Mr Francis: Either in mitigation or aggravation.
The Chief Justice: Either in mitigation or aggravation. Either, then, the spirit in which the thing was done would be taken into account as a serious aggravation or...
Mr Francis: Your Lordship is threatening the defendant if he pleads justification.
The Chief Justice: I am not threatening the defendant, Mr Francis. You have no right to say any such thing.
The Chief Justice: I say that if the defendant comes forward and pleads the truth of his letter, it then becomes a cool premeditated statement by the defendant, and doing so comes to be a matter for serious consideration afterwards.
Mr Francis: And such a statement in Court could not under any circumstances be dealt with as a libel.
His Lordship said, he did not wish to deprive the defendant of any right he had or to limit his exercise of it.
Mr Hayllar did not object. He thought it was only common sense.
The Chief Justice: It will be taken as aggravation or extenuation of the offence as the facts turn out, but it is a deliberate repetition of the libel.
Mr Francis: With your Lordship's permission I will withdraw the present motion.
His Lordship: Well and good.
406