than two years (n). It is to be observed, however, that the first wife, in this case, shall not be admitted as a witness against her husband, because she is the true wife; though the second may, because she is indeed no wife at all (0); and so vice versa of a second husband: and it is held necessary to prove that the first marriage was duly solemnized (p); mere proof of cohabitation not being sufficient (2). Moreover, the above enactment does not extend to the following cases (r). 1. That of a second marriage contracted out of England or Ireland, by any other than a subject of her Majesty (s). 2. That of a person marrying a second time, whose husband or wife shall have been continually absent for the space of seven years immediately preceding the second marriage, and shall not have been known by such person to be living within that time (t). 3. That of a person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage. 4. That of a person whose former marriage shall have been declared void, by the sentence of any court of competent jurisdiction (). In reference, however, to the second of

(n) 24 & 25 Vict. c. 100, s. 57. (See 27 & 28 Vict. c. 47.) The offender may also, if the court see fit, be bound over with sureties to keep the peace.

(0) 1 Hale, P. C. 693; 1 East, P. C. c. 12, s. 9; Peat's case, 2 Lewin, 288.

(p) As to the evidence of such marriage, see The Queen v. Cresswell, Law Rep., 1 Q. B. D. 446.

(2) See R. v. James, R. & R. C. C. 17; R. v. Morton, ib. 19; R. v. Butler, ib. 61; R. v. Bowen, 2 C. & K. 227.

(r) 24 & 25 Vict. c. 100, s. 57. (s) As to this exception, see Topping's case, 1 Dearsley's C. C. R. 647.

(t) See The Queen v. Briggs, 26 L. J. (M. C.) 7; The Queen r. John Curgerwen, Law Rep., 1 C. C. 1. It is remarked in the Criminal Code Bill Commission Report (p. 25), that the above enactment in 24 & 25 Vict. c. 100, is so worded as to have given rise to a difference of judicial opinion as to whether it does or does not, from motives of policy, make it a crime to marry again during the life of the husband or wife, though in the bonâ fide and reasonable belief that the first husband or wife was dead, unless seven years had elapsed since he or she was last heard of.

(u) Duchess of Kingston's case, 11 St. Tr. 262; 1 Leach, 146; Hawk. P. C. b. 1, c. 42, s. 11.

these cases, it is to be observed that the second marriage is, under the circumstances referred to, a nullity, although it be attended with no penal consequences.

XV. The last offence to which we shall refer in this chapter, as it not only amounts in many instances to an incitement to break the peace, but is also an offence against personal rights-which include, it may be remembered, a man's right to the security of his reputation (x)-is the publication of a libel. Of libel, indeed, considered as a civil injury, we have already said so much in a former part of the work, as to preclude the necessity on the present occasion for any copious discussion of the offence of its publication (y). It may be right, however, to remark in this place, that, by the provisions of 6 & 7 Vict. c. 96 (≈), it is enacted, that if any person shall publish (or threaten to publish) any libel (or directly or indirectly propose to abstain from printing or publishing, or offer to prevent the printing or publishing, of any matter touching any person) with intent to extort any money, security for money, or valuable thing from such person or any other; or with intent to induce any person to confer or procure any appointment or office of profit or trust;-he shall be liable to imprisonment, with or without hard labour, for a term not exceeding three years (a). Also, that if any person shall maliciously publish any defamatory libel, knowing the same to be false, he may be imprisoned for a term not exceeding two years, and pay such fine as the court shall award (b). And that if any person (though without such knowledge) shall maliciously publish any defamatory libel, he shall be liable to fine or imprisonment, or both, as the court shall award, such imprisonment not to exceed one year (c).

(x) Vide sup. vol. 1. pp. 139, 141. (y) Vide sup. bk. v. ch. VIII. (2) This act was amended by 8 & 9 Vict. c. 75.

(a) 6 & 7 Vict. c. 96, s. 3.
(b) Sect. 4.

(c) Sect. 5.

It is also necessary to observe, that besides defamatory. libels, the term of libel legally includes such writings as are of a blasphemous, treasonable, seditious, or immoral kind; the publication of any of which is a misdemeanor, and subjects the person by whom it was composed, written, printed or published, to fine and imprisonment (d). And it was provided by 60 Geo. III. & 1 Geo. IV. c. 8, as to libels of a blasphemous or seditious kind, that in every case in which there shall be judgment against any person for composing, printing, or publishing the same,-the court may order the seizure and detaining of all copies of the libel which shall be in the possession of such person; or in the possession of any other person for his use. And upon proper evidence being given of such possession, it shall be lawful for any justice of the peace, constable, or other peace officer, acting under such order, to search for such copies, in any house, building or place belonging to the person named in such order: and to enter therein (in the day time) by force, if admission be refused or unreasonably delayed.

[Under the Roman law, libel considered as a criminal offence was treated, at certain periods, with more severity than with us. By the law of the Twelve Tables, libels which affected the reputation of another, were made a capital offence; but before the reign of Augustus, the punishment became corporal only (e). Under the Emperor Valentinian it was again made capital not only to write libels, but to publish or even to omit to destroy them (ƒ). But our law, in this and many other respects, corresponds

(d) As to blasphemous libels, see 4 Bl. Com. p. 451, note by Christian. The Report on the Criminal Code Bill states (p. 21) that the commissioners "consider that the essence of the offence (regarded as a subject for criminal punishment) lies in the outrage which it inflicts on the religious feelings of the

community, and not in the expression of erroneous opinions."

(e) "Quinetiam lex Panaque lata, malo quæ nollet carmine quenquam

Describi:-vertere modum formidine fustis."-Hor. ad Aug. 152.

(f) Cod. 9, 36.

[rather with the middle age of Roman jurisprudence, when liberty, learning and humanity were in their full vigour ; and exhibits a moderation sufficient to protect it from any imputation of infringing the liberty of the press. This liberty, when rightly understood, consists in laying no previous restraints upon publications; but not in freedom from censure for criminal matter, when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution (g), is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted

(9) The art of printing, soon after its introduction, was looked upon, as well in England as in other countries, as merely a matter of state, and subject to the coercion of the Crown. It was therefore regulated with us by royal proclamations, prohibitions, charters of privilege and of licence, and, finally, by the decrees of the Court of Star Chamber, which limited the number of printers, and of presses which each should employ, and prohibited new publications unless previously approved by proper licensers. On the demolition of this odious jurisdiction in 1641, the long parliament of Charles the first, after their rupture with that prince, assumed the same powers as the Star Chamber exercised with respect to licensing books; and in 1643, 1647, 1649 and 1652, issued their ordinances for that purpose, founded princi

pally on the Star Chamber decree of 1637. (See Scobell, i. 44, 134; ii. 88, 230.) In 1662 was passed the statute 14 Car. 2, c. 33, which, with some few alterations, was copied from the parliamentary ordinances. This Act expired in 1679, but was revived by statute 1 Jac. 2, c. 17, and continued till 1692. It was then continued for two years longer by statute 4 W. & M. c. 24; but though frequent attempts were made by government to revive it in the subsequent part of that reign (Com. Journ. 11 February, 1694, 26 November, 1695, 22 October, 1696, 9 February, 1697, 31 January, 1698), yet the parliament resisted it so strongly that it finally expired, and the press became properly free in 1694, and has ever since so continued. This subject is also alluded to sup. bk. IV. pt. III. ch. XI.

[points in learning, religion and government. But to punish, as the law does at present, any dangerous or offensive writings, which, when published, shall, on a fair and impartial trial, be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty (h).]

(h) With regard to libels in newspapers, it may be mentioned here that leave must be obtained from the Director of Public Prosecutions

before commencing a prosecution for libel. See 44 & 45 Vict. c. 60, s. 3.