The King against E. Topham

4T. R. in. THE KINO V. TOPHA.M 931 the king against E. topham. Saturday, Jan. 29th, 1791. An indictment for publishing libellous matter, reflecting on the memory of a dead person, not alleging that it was done with a design to bring contempt on the family of the deceased, and to stir up the hatred of the King's subjects against them, and to excita his relations to a breach of the peace, cannot be supported. Proof that the defendant gave a bond to the Stamp-Office for the duties on the advertisements in a newspaper, and had occasionally applied at the Stamp-Office respecting the duties, is evidence that he is the publisher. Vide Pult. de Pace, '2. [Referred to, R. v. Labouchere, 1884, 12 Q. B. D. 322.] The defendant was indicted for a libel, reflecting on the memory of the late Earl Cowper; on the trial of which, before Mr. Justice Buller, the defendant was found guilty. The indictment charged, that " the defendant, being a person of a wicked and malicious disposition, and wickedly and maliciously contriving, and intending to injure, defame, disgrace, and vilify the memory, reputation, and character, of George Nassau Clavering, Earl Cowper, then deceased, and to cause it to be believed that the said earl, in his lifetime, was a person of a vicious and depraved mind and disposition, and destitute of filial duty and affection, and of all honourable and virtuous sentiments and inclinations; and that the said earl had led a wicked and profligate course of life, and had addicted himself to the practice and use of the most criminal and unmanly vices and debaucheries, on, &c. at, &c. with force and arms, wickedly, maliciously, and unlawfully, did print and publish, and cause to be printed and published, in a certain newspaper called the Workl, a certain false, scandalous, and malicious libel, of and concerning the said Earl Cowper," &c. The indictment then sot forth the publication with proper inuuerrdos; arid it concluded, "To the great disgrace and scandal of the memory, reputation, and character, of the said G. Earl Cowper; in contempt, &c.: to the evil example, &c.: and against the peace," &c. A rule was obtained in last Michaelmas term, to shew cause either why a new trial should not be granted, or why the judgment should not be arrested. Erskine, Ghambre, Garrow, and Martin, shewed cause against the rule; and Mingay, Graham, and Conste, supported it. These questions were argued very much at length on general prin-[127]-ciples ; and the principal case cited in support of the indictment was that in 5 Co. 125, De Libellis Fatnosis. The Court took time to consider of the questions; and now Lord Kenyon, Ch.J. delivered the opinion of the Court. This was an indictment for a libel, tried before my brother Buller, who left to the consideration of the jury the two questions which generally arise on these trials; namely, whether the defendant were or were not the publisher? and whether the innuendos were made out?-and the jury found the defendant guilty. An application was made in the last term for a new trial, or to arrest the judgment. The grounds for the former were, that another question should have been left to the jury, namely, whether this paper were published in the spirit of a biographer, or with a malicious intention to defame and vilify the character of Lord Cowper? Of the first question which the jury determined, whether the defendant were or were not the publisher1? there can be no doubt whatever; the evidence was perfectly satisfactory. It was proved that the paper was sold at the office; that the defendant, as proprietor of the paper, had given a bond to...