So a printer is liable, though he printed a libel in the way of his trade (a).

A defendant may be guilty of publishing a libel not only by distributing copies of it with his own hand, but by employing an agent for the purpose (b).

The declaration generally avers, that the defendant published and caused to be published; but the latter words seem to be perfectly unnecessary either in a civil or criminal proceeding; in civil proceedings, the principal is to all purposes identified with the agent employed by him to do any specific act, and in treason and misdemeanors (c) all accessories are considered as principals.

A consent by the master to the act of the servant in printing a libel, is primâ facie evidence of a publication by the master (d).

evidence to charge the master with the publication, though it does not appear that he knew of any such book being there, or what the contents thereof were, and that it will not be presumed that they were brought there by a stranger; but the master, if he suggests any thing of this kind in his excuse, prove it." Bac. Ab. tit. Libel, 458.

must

(a) R. v. Dover, 16 C. II. 2 St. Tr. 547. Hargreaves's ed. (b) 7 East, 65. Bac. Ab. tit. Libel, 458.

(c) 2 Hall's P. C. 613.

(d) R. v. Harris, 2 St. Tr. 1039. See Ld. Camden's observations in Entick v. Carrington, 11 St. Tr. 322.

An allegation that the defendant published the libel is satisfied by proof that it was published by his agent (e), if an authority from the principal to the agent can be proved; and although an authority to commit an unlawful act will not in general be presumed, yet it is otherwise in the case of booksellers and others, where the book or libel is purchased from an agent in the usual course of trade (f).

(e) Hale's P. C. 613.

(f) Bac. Ab. tit. Libel, 458. The following are the principal cases which have been decided on this point. In Elizabeth Nutt's case, Fitzg. 47. 2 G. 2. the defendant was tried on an information for publishing a treasonable libel. It appeared in evidence that the defendant kept a pamphlet shop, and that this libel was sold in the shop by the defendant's servant, for the defendant's use and account, in her absence, and that she did not know the contents of it, nor of its coming in or going out; and per Raymond, L. C. J. notwithstanding the defendant is guilty of publishing this libel, the shop being kept under her authority and direction, it would be a very dangerous thing that the law was otherwise, and it has been so ruled in a great many instances. But the jury being unable to agree in a general verdict, and thinking it a hard case upon the defendant, refused to find a general verdict, and were desirous of finding the facts specially; and, ultimately, the Attorney-General agreed to withdraw a juror, which was done. According to the report of the same case in Barnardiston, 306. the Lord Chief Justice observed, that if a servant carries a libel for his master, he certainly is answerable for what he does, though he cannot so much as write or read. It is impossible not to dissent from this doctrine so expressed, without the qualification

The sale by an agent in a shop in the usual course of business is prima facie evidence of a publication with the knowledge and privity of

added that the servant had some reason to know that he was discharging an illegal mission.

In the case of the King v. Dodd, 2 Sess. 33. on an information for selling and publishing a libel against Chambers, it was insisted upon, for the defendant, that she was sick, and that the libel was taken into her house without her knowledge. But, by the court, this is no excuse, and the law presumes him to be acquainted with what his servant does. Mr. J. Fortescue said, that it had been ruled, that the finding a libel on a bookseller's shelf was a publication of it by the bookseller. And L. C. J. Raymond said, it hath been ruled that where a master being out of town, his trade is carried on by his servant, the master shall be chargeable with the servant's publishing a libel in his absence.

In the case of the King v. Almon, 5 Burr. 2689, the liability of booksellers was much discussed, and the court expressed an opinion that the sale of a libel in a bookseller's shop, was prima facie evidence of a publication, though not so conclusive but that it might be rebutted by circumstances. It does not indeed appear what would have been deemed by the court, to be sufficient to rebut such primâ facie evidence, and to excuse owner; but it seems to be clear, from the general context of the decisions on this subject, that a bookseller is considered as standing in a situation of peculiar responsibility, and that he is liable criminally as well as civilly, for libels sold in his shop in the usual course of business, though without his particular knowledge.

the

The defendant had been convicted of publishing a libel (one of Junius's letters) in one of the magazines, called the London

the owner; and although it be not conclusive evidence, yet it throws upon him the necessity of

Museum, which was bought at his shop, and purported to be printed for him.

The defendant was found guilty on proof that the libel in question had been sold in his shop. A motion was afterwards made for a new trial, on an affidavit, the principal bearing of which was, that the libel had been sent to his shop, and sold there by a boy without his knowledge, privity, or approbation. But the court were of opinion, that none of the matters on behalf of the defendant, nor all of them added together, were reasons for granting a new trial, whatever weight they might have in extenuation of his offence, and in consequence lessening his punishment; for they were extremely clear and unanimous in opinion, that this libel, being bought in the shop of a common known bookseller and publisher, importing by its title-page to be printed for him, was a sufficient prima facie evidence of its being published by him; not indeed conclusive, because he might have contradicted it, if the facts would have borne it by contrary evidence.

In the above case Lord Mansfield observed, "A libel cannot be read against a defendant before it has been proved upon him. This must, however, be understood of such primâ facie proof of publication as would be sufficient to be left to a jury; for no evidence on the part of the plaintiff or in support of a prosecution, can in strictness amount to proof, since the evidence of any witnesses, is always liable to be rebutted by opposite testimony, and must after all depend for its effect upon the credit given by the jury to the character of the witnesses, and the circumstances under which such evidence is given." Aston, J. observed, that the evidence of his publishing that which was bought in his shop, must stand till the contrary appears. There may, indeed, (he said) be circumstances

rebutting the presumption by evidence to the contrary (g), even although the at a distance from his shop (h).

principal lives But the defen

of extenuation, or even of exculpation, and if it were a surprise upon him, the court would have regard to such circumstances as far as they merited their regard, and he cited Harris's case, 5 St. Tr. 1037. Hudson's case, Hil. 3 G. 1. and R. v. Nutt, Fitzg. 47. Harris's case, it is observable, is little to the point, there was evidence that the defendant gave directions for printing the libel; that it was afterwards sold in his shop, and that he had acknowledged the publication.

In the King v. Walter, 3 Esp. C. 21. Lord Kenyon held, that the proprietor of a newspaper was answerable` criminally as well as civilly, for the acts of his servants or agents in misconducting a newspaper; he sald, that this was not his opinion only, but that of Lord Hale, Justice Powell, and Justice. Foster, all high law authorities, and to which he subscribed. This he added, was the old and received law for above a century, and was not to be broken in upon by any new doctrine upon libels. The same doctrine is said to have been held in the case of the King v. Cuthel, K. B. 1799, and by Lord Ellenborough, C. J. in R. v. White, Guildh. 1811. See Holt's Law of Libel, 287. The sale of every separate copy of a libel is a distinct offence, R. v. Carlile, 1 Chitty, 453.

(9) Ibid: and R. v. Almon, 5 Burr. 2689. 2724, 2 Esp. C. 33. Dig. L. L. 27. 2 Sess. C. 33. 12 Vin. Ab. 229. C. 186. Haw. P. C. c. 73. s. 10.

R. v.
Dodd.

And Wood's Ins. 443, Plunkett v. Cobbett, 5 Esp. Barnard, K. B. 208.

(h) R. v. Dodd, 2 Sess. C. 33. Dig. L. L. 27; supra note (ƒ) for the law presumes that the master is acquainted with what his servant does in the course of his business. And see R. v. Nutt, Barnard, K. B. 308. Fitzg. 47. Dig. L. L. 27.