The King against Sir Francis Burdett, Bart
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1820 |
| Date | 27 November 1820 |
| Court | Court of the King's Bench |
English Reports Citation: 106 E.R. 823
IN THE COURT OF KING'S BENCH.
the king against sir fkancis burdett, bart. 1820. Query, whether the mere writing of a libel, with intent to excite hatred and contempt of the King's Government, be an indictable offence. Assuming that the offence is not complete until publication, query, whether it can be tried in any county but in that where the publication took place. Defendant was indicted for publishing a libel in the county of L.; the writing was dated from that county, and the defendant was seen there both on the day of the date and the day following ; and the letter was received by A. from B. in the county of M., open, accompanied with written directions to B. to forward it to A. for publication. Query, whether this was evidence to go to the jury of an actual publication in L. [S. C. 4 B. & Aid. 95, 314. Eeferred to, B. v. Rogers, 1877, 3 Q?B. D. 33; R. v. Holmes, 1883, 12 Q. B. D. 24; B. v. Ellis, [1899] 1 Q. B. 235.] This was an information, filed by His Majesty's Attorney-General, against the defendant. The first count charged that the defendant, being an ill-disposed person, and intending to excite hatred and contempt of His Majesty's Government, and particularly among the soldiers of the King, and wishing to have it believed that certain troops of the King, on the 16th of August, 1819, wantonly and cruelly cut down certain of His Majesty's subjects ; did, on 22d August, at Loughborough, in the county of Leicester, compose, write, and publish, and cause and procure to be composed, written, and published, a certain libel, which purported to be an address to the electors of Westminster, set out in the information. Plea not guilty. At the trial, before Best J., at the last assizes for the county of Leicester, it was proved by Mr. Brooks, that he, either on the 23d or 24th of August, received, in London, a letter containing the libel, from Mr. Bickersteth, a professional gentleman. The libel was in the form of [718] an address, in the hand-writing of the defendant, and dated from his residence, Kirby Park, which was in Leicestershire. He received, at the same time, an envelope, which he had lost; this was also in the hand-writing of the defendant, and had no date either of time or place. The witness did not know whether it bore a post-mark. The envelope contained directions addressed to Mr. Bickersteth, to pass it to him, Brooks, for publication; he accordingly published it in the London newspapers. It was further proved, by a toll-gate keeper, near Kirby Park, that he had seen the defendant riding on horse-back, on the 22d and 23d of August; the gate was about 100 yards from the defendant's house. It was objected that there was no proof of any publication in Leicestershire. The learned Judge was of opinion there was evidence for the jury, and he directed the jury, that, inasmuch as Brooks had received the letter open in Middlesex, and there was no evidence that it was ever closed; it was open to them to consider whether the defendant had so delivered the letter open to Bickersteth, in the county of Leicester. If they thought he had, then 824 THE KING V. BURDETT 3 B. &ALD.719. that was a publication in the county of Leicester. The jury found the defendant guilty. Denman, in Easter term, moved for a new trial, on the ground that there was no proof of an actual publication in Leicestershire. There was prima facie evidence that the letter was written in Leicestershire, but not the slightest proof that the contents were communicated to any person in Leicestershire. The written directions to Bieker-steth, to forward it to Brooks, as well as the description of persons to whom it was addressed, viz. the electors of Westminster, shews, to demonstration, that it was the defendant's intention, that the first pub-[719]-lication should be in the county of Middlesex. There was no evidence that Mr. Bickersteth was in Leicestershire on the 22d of August. The probability, at all events is, that the letter was not delivered open to him, for, in that case, the written directions would be wholly unnecessary, and if not, it is contrary to every probability that the letter should have been delivered open to any other person in the county of Leicester. The Seven Bishops' case is.in point (a). As to the causing and procuring the publication, that must mean a causing and procuring a publication of the libel in Leicestershire. [Abbott C.J. There was evidence of the writing in Leicestershire, and Bex v. Beare (1 Ld. Eaym. 414) is an authority to shew, that the writing of a libel is a distinct offence.] That is a ease of very doubtful authority. For the essence of'the offence is the injury sustained, either by an individual or the public, by communication of the slander to the minds of others, or, in other words, by publication. Until that takes place the reputation of the individual or Government cannot be affected ; and in this case, no hatred or contempt of His Majesty's Government could be excited. The publication, in this ease, was in Middlesex. There the offence was committed, and ought to have been tried. [Abbott C.J. At present we see no reason for granting this rule. We will, however, consider the case.] The Court not having delivered any opinion on the case in Easter term, the Attorney-General, on Thursday, the 8th day of June, prayed the judgment of the Court. It was suggested by Brougham, in Denman's absence, that he had other matter to urge before the Court pronounced their opinion on the motion for a new trial. Upon which the Court fixed Saturday next to hear [720] Denman, and it being suggested, that Denman might be prevented from attending that day, the Court said, that in that case, they would hear some other counsel on the same side. And now, in Denman's absence, Phillipps made three points. First, the mere writing of a paper, not followed by publication, is not an offence by the law of England, however slanderous or seditious that writing may be. If this proposition is true, then the verdict cannot be sustained on the mere ground, that the defendant wrote in Leicestershire. Secondly, the defendant could not be legally tried in the county of Leicester, unless there was a publication in that county. Thirdly, there was not any proof of the fact of publication in Leicestershire. Upon the first point, the case of The King v. Beare (1 Ld. Eaym. 414. Garth. 407. 2'Salk. 417. Eep. temp. Holt, 422. 12 Mod. 219), is the strongest authority in support of the doctrine, that the mere writing without publication, constitutes the offence of libelling. But the reasoning of the Judges in that case, will be found very unsatisfactory; none of the authorities there cited support the doctrine, that the mere writing of a libel, without publication, constitutes an indictable offence. The first authority cited is 3 Instit. 174. In that case, John de Northampton, an attorney of the King's Bench, wrote a letter to John Ferrers, one of the King's Counsel, reflecting on the conduct of the Judges of the Court. The writing, however, of a letter to another, respecting the misconduct of a third person, is a publication : for the contents of the letter are communicated and made known. That case is, therefore, an authority to shew, [721] that the writing becomes an offence, when it is once published and communicated to a third person, but not that the mere writing is of itself an offence. The next authority cited by Lord Holt, is from the civil law. By that law, however, as understood by the best commentators, the offence of libelling is not complete without publication. The passage referred to by Lord Holt, is in these words, "Injuria autem committitur, non solum cum quis pugno pulsatus erit, &c., sed et si quis ad infamiam alicujus libellum aut carmen scripserit composuerit ediderit dolove malo fecerit quo quid eorum fieret." The words ad infamiam alicujus, (a) 12 How. State Trials, 254. 3 B. & ALD. 722. THE KING. V. BUBDETT 825 must apply to each of the words scripserit, composuerit; and the writing cannot tend ad infamiam, unless it is shewn or made known to another. It is the tendency to excite public contempt or ridicule, that makes the writing libellous. In the Pandects of Justinian, tit. 10, De Injuriis et Libellis Famosis, sect. 4, there is this passage : "De senatus consulto adversus famosos libellos. De judicio ita Ulpianus, si quis librum ad infamiam alicujus pertinentem seripserit, composuerit, dolove malo fecerit, etiamsi alterius nomine ediderit, vel sine nomine, et si condemnatus sit, qui id fecit, intestabilis ex lege esse jubetur." Then follows this passage : "EMem psena ex senatus eonsulto teuetur, etiam qui epigrammata (id est inscriptiones) aliud ve quid sine scriptura in notam aliquorum produxerit, item qui emendum vendendumve curaverit." The word produxerit is strongly expressive of publication or public exhibition. From these passages, it appears, that a publication is clearly implied and considered necessary, to complete the offence. The words are exceedingly strong, " etiamsi alterius nomine ediderit;" they assume the point, as clear, that there must be a publication, and then state, [722] not that the writer of a libel shall be punished for mere writing; but that if a person write ad infamiam alicujus, &e., although he publish in another's name, or anonymously, he shall suffer such a punishment. The very manner and terms, in which this is stated in the Roman law, respecting the punishment of libelling, shews, incontrovertibly, that the publication is essential. The law is speaking only of the case where a publication has taken place; and the passage in the Institutes has been so understood and explained by the best commentators. Heineecius, in his Elementa Juris Civilis, De Injuriis, tit. 4, commenting on this passage in the Institutes, says, " Cum ergo eontumelia base vel dictis vel factis alteri fiat sequitur ut injuria sit vel...
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