The King against Almon
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1765 |
| Date | 01 January 1765 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 94
IN THE KING'S BENCH.
See Miller v. Knox, 1838, 4 Bing. N. C. 587; Ex parte Martin, 1879, 4 Q. B. D. 215. Applied, In re Johnson, 1887, 20 Q. B. D. 72. Approved, Attorney-General v. Kissane, 1893, 32 L. R. Ir. 271; see R. v. Gray [1900], 2 Q. B. 41; R. v. Davies [1906], 1 K. B. 41.
/fia.f. ò£. £243] in the king's bench. the king against almon. Hil. 5 Geo. III. 1765. [See Miller v. Knox, 1838, 4 Bing. N. C. 587 ; em parte Martin, 1879, 4 Q. B. D. 215. Applied, In re Johnson, 1887, 20 Q. B. D. 72. Approved, Attwney-Geiieral v. Kissane, 1893, 32 L. R. Ir. 271; see R. v. Gray [1900], 2 Q. B. 41 ò R. v. Dames [1906], 1 K. B. 41.] Mr. Justice Wilmot (a).-This is an application made to the Court by the Attorney General, for an attachment against Mr. Almon, for publishing a pamphlet, containing (a) This opinion was not delivered in Court, the prosecution having been dropped, in consequence, it is supposed, of the resignation of the then Attorney General, Sir Fletcher Norton; but it was thought to contain so much legal knowledge on an important subject, aa to be worthy of being preserved. The occasion of it was a motion in the Court of King's Bench, by the Attorney General, for an attachment WILM. MA. THE KING V. ALMON 95 many libellous passages upon this Court, and upon the Chief Justice for hia conduct both in Court and out of it: and it charges the Court, and particularly the Chief Justice, with having introduced a method of proceeding to deprive the subject of the benefit of the Habeas Corpus Act; and though the Chief Justice is [244] named and marked out in that passage, yet the whole Court is most manifestly, and in express words, involved in it. The passage reflecting upon the Chief Justice for amending an information out of Court, is in page 126, and is laid before the Court in this manner. Mr. Barlow, by affidavit, informs the Court, that upon the 18th of February, he received directions from Mr. Wallace, to get an information against Mr. Wilkes amended, by striking out the word " purport," and inserting the word " tenor:" that he applied to Lord Mansfield for a summons, to shew cause why it should not be amended, and sent two copies of the summons, one to Mr. Hughes, the clerk in Court for the defendant, and another to Mr. Phillips, the solicitor for the defendant, which he believes were left at their houses. That on Monday, the 2d of February, he attended Lord Mansfield, and there met Mr. Hughes and Mr. Phillips; and Lord Mansfield then asked them what objections they had to such amendment: that they said they could not consent to it; and that Lord Mansfield said, he did not ask their consent, but what their objections were 1 and asked, if it was not usual, or the common practice, to amend informations'? and read from a book several cases of amendments, and then made aa order for the amendment; and Mr. Hughes confirms the account given by Mr. Barlow, of what passed at Lord Mansfield's when this amendment was made. [2453 The passage in this pamphlet represents this amendment to have been made by Lord Mansfield, " officiously, arbitrarily, and illegally." The evidence laid before the Court, of Mr. Almon's having published this pamphlet, is an affidavit made by David Bell, in which he swears that the pamphlet was sold and delivered to him at Mr. Almon's shop, by a woman belonging to Mr. Almon, and that be paid her Is. 6d. for it. Three objections have been made to the granting this attachment. 1st. That in the mode of prosecution, the fact, sworti by Bell, doth not sufficiently evidence a publication of the pamphlet by Mr. Almon, and that his privity to the publication ought to be proved. 2dly. That to warrant this " summary " mode of proceeding, the contempt ought to be clear and certain; that the scandal ought to be self-evident and apparent, not to be made out by private anecdotes and inferences, or any nice ingenious subtle interpretation ; that it is the proper province of a jury to judge of the application and relation of a libel; and that whether these passages do or do not relate and apply to the Court, or the Chief Justice, would be much more proper for a jury to exercise their judgment apon than the Court. 3dly. But if both these points should be against them, then it is insisted upon, that under all the circumstances of this case, the Court ought not to proceed by way of attachment, but leave the offence to be prosecuted and punished by indictment or information. againit Mr. Almon, for publishing a pamphlet, intituled, " A Letter concerning Libels, Warrants, Seizure of Papers, &c. Printed for J. Almon, Piccadilly, 1765." In consequence of this motion, grounded on affidavits of the above pamphlet having been bought at the shop of Mr. Almon, in Piccadilly, a rule was made for Mr. Almon, to "shew cause" why a writ of attachment should not issue against him for his contempt. In answer to these affidavits Mr. Almon made an affidavit, in which he expressed his " concern and surprize at this charge, being no ways conscious of having in any act of his life been guilty of the least intentional disrespect towards that Court, iior does he now, nor did he ever apprehend or understand that the passage or extract of the pamphlet, intituled, "A Letter," &c. "was so meant or intended, or could be so construed." As these proceedings were afterwards dropped, they are not mentioned in the reports of this period; but it appears that this opinion was prepared after the argument on, the rule to "shew cause," as it takes notice of the arguments of counsel, and of the objection made to the granting of the attachment. But as the matter never came to a final decision, it must be considered only as the opinion of the Judge who gives it. 96 THE KING V. ALMON WttM. 246, As to the 1st objection, I cannot find out that any distinction has ever been taken between attachments and informations, aa to the [246] evidence expected by the Court for granting them. Demonstration is not required in either case, but such a degree of probability, as warrants the mind to form a conclusion of the truth of the fact proposed, and to act upon it. The fact, proposed here, is the publication of this pamphlet by Mr. Alraan. The evidence ia, that it was sold in his shop by a woman belonging to him. What ia the inference that the mind draws from such a sale ? That it was sold under his direction, for his use, and with his privity. Like all other probabilities, it may be answered and explained ; but unless it is answered and explained, it rises so near to a certainty, that it produces in the mind that kind of assent which is called assurance ; and upon that foundation Courts of Justice, as well as private men, must rest satisfied and contented as the best and only succedaneum to demonstration; and this kind of evidence has always been held sufficient to induce the Court to grant informations for libels. In The King and Roberts, Mich. 8 Geo. II. it was laid down by Lord Hardwicke and the Court, to be the constant evidence of the publication of a libel, that the person bought it in the defendant's shop: and as to the objection which was made to its being bought from one who appeared to be a servant, and not the master himself; and that there might be some combination between the buyer and seller, in order to injure the master; it was said, the proof of that lies upon the master, if he would remove the general presumption of its being sold by his privity and direction; and that this species of evidence has always been held sufficient to induce the Court to grant an information. It is also now established and settled by a [247] multitude of cases which might be adduced, and an uniform practice in pursuance of them, that this evidence is sufficient to prove a publication by the defendant, even upon a trial. If it be sufficient to convict a man of publication upon a trial, "a fortiori," it must be sufficient to found a proceeding upon, which is so far from convicting, that it only calls upon the party to answer the charge, and defers the whole trial of that charge to his own oath. And aa Mr. Almon has made an affidavit himself in this case, and does not deny his privity to the sale of this pamphlet, it fortifies the presumption which the law makes, and for these purposes very sufficiently evidences the publication of this pamphlet by him. Aft to the 2d objection, which respects the application of the passages, it is admitted, and indeed it is upon very rational grounds now most clearly settled, that it is totally immaterial in what particular form or mode of expression calumny and defamation are conveyed. The use of speaking and writing, is to excite in the mind of the hearer, or the reader, the idea entertained in the mind of the speaker or writer ; and therefore, let the speaker or writer paint that idea how he will, and in what colours he pleases, still, if it produces au idea of calumny and defamation in the minds of the persons who hear or see it, it is a picture which the law forbids to be drawn under any form or under any disguise whatsoever; and Courts of Justice have for many years said, that they would not renounce their senses upon such occasions, but would see with the same eyes that all other people do. [248] It is totally immaterial what terms are made use of, whether affirmative, negative, past, present, future, ironical, hypothetical, or interrogatory ; if they convey scandal, Judges are bound to understand it in the plain, popular, and obvious sense which the words import, and not suffer the slanderer to shelter himself by any delusive colouring whatsoever. But really there is no colouring at all in this case, except making use of the future tense instead of the preterperf ect. The passages, 122 to 126 (a), contain a direct, plain, explicit charge upon this Court, (a) " I hope we shall never see any Chief Justice, especially in that great Court of criminal process, the...
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