a code prepared by several eminent German jurists, the same effect is worked by the provision that such prosecutions shall be instituted only by the parents, children, or spouse of the deceased.1

Uncon

scious or persons are thus pro

helpless

tected.

§ 1601. Can a person who, from insanity, or infancy, or helplessness, is incapable of resenting an injury, and who, consequently cannot be supposed to be provocable to a breach of the peace, be protected by this mode of prosecution? Here, again, in default of English and American adjudications, we may look to the Roman law; and the solution is found in one of those maxims of terse beauty with which that law abounds: "Pati quis iniuriam, etiamsi non sentíat potest." In other words, the unconscious as well as the conscious sufferer the law intervenes to protect.

Corpora

tions may

for libel.

§ 1602. Whether a business corporation can be the subject of ar indictable libel has been much doubted; but it is not questioned that libels on municipal corporations are indictable as seditious, and, following a parallel line of prosecute reasoning, when public credit is imperilled, and private interests assailed, by libels on a bank or other trading corporation, then the remedy by indictment is reserved. The Roman law gives for this the additional reason, that by such attacks the honor of the individual coporators is as much imperilled as would be the case were they personally picked out for calumny; and hence, on the ground that such libels are provocative of breaches of the peace, penal redress is permitted. In our own law, as stated by Sir J. F. Stephen, a libel is indictable when defaming a "body of persons definite and small enough for individual members to be recognized as such, in or by means of anything capable of being a libel."2 Yet for libels on a person or institution to whom the law assigns no definite body or limit, a prosecution cannot be had.

stock companies, which have not availed

1 Berner, Lehrbuch, § 150. Dig. C. L., art. 267. To this he themselves of the statutes authorizing adds this note :

A religious society called the S. Nunnery, consisting of certain nuns and other persons, may be libelled, though no individual is specially referred to. R. v. Gathercole, 2 Lew. 237.

Hence the Prussian appellate court, in October, 1868, held, and with good reason, that trades unions and joint

incorporation, cannot prosecute for libellous attacks in which the names of the members of such societies are not specified. The society is, in the eye of the law, a phantom, which, as it cannot sue civilly, cannot appear as prosecutor in a criminal court. Berner, Lehrbuch, § 150.

§ 1603. No indictment will lie for words, not reduced to writing, unless (1) they are seditious, blasphemous, or indecent,1 so as to create a public scandal or likely to incite a tumult; or, (2) they are spoken contemptuously to or of a magistrate when in the discharge of his official duties; or, (3) they constitute a challenge to fight.*

Unwritten words not usually libels.

But otherwise as to pictures and signs.

§ 1604. Words are not essential to the constitution of a libel. If the author of an infamous charge could evade prosecu tion by putting it in pictures or hieroglyphic signs, then the law in this respect could be made nugatory. When we recall the pictures which still remain on the walls of Pompeii, and when we remember that before the age of printing, pictures and signs were not unfrequently used to convey vividly and concisely specific thoughts, we can understand why the Roman law coupled with verbal libels, libels which were symbolical or real. "Iniuriam fieri Labeo ait aut re aut verbis." Symbolical or "real"

R. v. Darby, 3 Mod. 139; R. v. Pocock, 2 Stra. 1157; Chapman, ex parte, 4 A. & E. 773. That such words must be spoken in the presence of the magistrate, or in such a way, during the pendency of a case before him, as to bring him in connection with such case under popular censure, see R. v. Weltje, 2 Camp. 142; Marlborough, ex parte, 5 Q. B. 955.

♦ 2 Salk. 417; R. v. Langly, 6 Mod. 125; Bailey v. Dean, 5 Barb. 297; State v. Wakefield, 8 Mo. Ap. 11; Townshend on Slander, 3d ed. 66. Infra, §§ 1607, 1615; Whart. Cr. Pl. & Pr. § 203. As to statutory indictable slander, see State v. McDaniel, 84 N. C. 803; Haley v. State, 63 Ala. 89; McMahon v. State, 13 Tex. Ap. 220.

A supposed exception is R. v. Benfield, 2 Burr. 980; Whart. Cr. Pl. & Pr. § 302, where sentence was passed

on an indictment charging two defendants with publicly singing in the street libellous and obscene songs, reflecting on the prosecutor's son and daughter, with intention to discredit him and his children, and destroy his domestic peace. The reasons pressed in arrest of judgment were, 1. That an indictment will not lie for publishing two distinct libels on two distinct persons. 2. That several distinct defendants charged with several offences, cannot be joined in the indictment. 3. That there was a general verdict on the count, whereas the latter song contained in it was not libellous-which were severally overruled by the court. No exception was taken on the ground that the songs, not having been written, could not have been libellous. But as the songs were obscene, this, by itself, would sustain the indictment. Infra, § 1606.

L. i. § 1. 47. 10. See as to nude pictures, Com, v. Dejarden, 126 Mass. 46; as to nude statues, Com. v. Hazleton, supra, § 1432.

libels have in later days taken the names of Pasquils, and comprehend, according to the curious classification of the North German Code, libellous pictures, wood-cuts, engravings, and plaster and other figures (Gusswerk). We have no such particularity in any of our statutes; but no doubt libels of this class are as indictable at common law as libels in writing.1

II. BLASPHEMOUS LIBELS.

§ 1605. Aside from the question already discussed,' whether Christianity is part of the common law, we may regard it as settled that maliciously to revile Christianity, as a Blasphemy religious faith of general acceptance, is an indictable offence at common law. A fortiori is published blas- law.

phemy, written or printed, so indictable. But the publication of controversies of learned men on controverted points cannot, if

opinions, we have added a proviso to the effect that no one shall be convicted of a blasphemous libel only for expressing in good faith and decent language any opinion whatever upon any religious subject. We are informed that the law was stated by Mr. Justice Coleridge to this effect, in the case of R. v. Pooley, tried at Bodmin, 1857. We are not aware of any later authority on the subject. This provision is taken with some alteration from the bill." Draft Commission, p. 21.

Blasphemy against God, it is ruled in New York, and contumelious reproaches, and profane ridicule of Christ and the Holy Scriptures, are offences punishable at common law, whether uttered by words or writing; and it follows, therefore, that to revile the name of the Saviour, and wantonly and maliciously to ridicule his character, are indictable. People v. Ruggles, 8 Johns. 290. To say "that the Holy Scriptures were a mere fable; that they were a contradiction, and that, although they contained a number of good things, yet they contained a great many lies," has been held indictable in Pennsylvania; Updegraff v. Com., 11 S. & R. 394; and the same position was taken in Delaware, after an able and thorough examination, by J. M. Clayton, C. J. In the latter case, the jury having found the defendant guilty on an indictment under the act against blasphemy, charging him with having proclaimed publicly and maliciously, with intent to vilify the Christian religion and to blaspheme God, that (here follow words grossly indecent and blasphemous), the court held the offence found to be blasphemy, and

refused to arrest the judgment. State v. Chandler, 2 Harring. Del. 553. The court refused to arrest the judgment, where the defendant was charged with uttering the same words, on another occasion, with intent to villify the Christian religion and to blaspheme God, and was found not guilty of the intent to blaspheme God, but guilty of the whole indictment with that exception. Ibid.

In Massachusetts, under Stat. 1782, c. 8 (Rev. Stat. c. 130, § 15), it is blasphemy to deny the existence of God, with an intent to impair and destroy the veneration due him, although no words of malediction, reproach, or contumely are used; Com. v. Kneeland, 20 Pick. 206; and the statute is in accordance with the Constitution. Ibid. It is not necessary, in the evidence, to prove every assignment of blasphemy set forth in the indictment; if one is sufficiently proved, it is enough. Ibid.; Whart. Cr. Ev. § 134.

On an indictment for blasphemy for the following publication: "The Universalists believe in a God, which I do not; but believe that their God, with all his moral attributes (aside from nature itself), is nothing else than a chimera of their imagination;" it was held that the intent to deny the existence of the Deity, in the sense of the statute, must be presumed to have been made out.

Com. v. Kneeland, 20 Pick. 206; Thach. C. C. 346.

It may be said that some of the above cases are on statutes, and cannot therefore be regarded as authorities at common law. But they are authorities to the effect that such statutes are constitutional, and do not abridge freedom of speech. See further Com. v.

1 R. v. Waddington, 1 B. & C. 26. See R. v. Gathercole, 2 Lew. 237.

couched in temperate and decent terms, be charged as blasphemy.1 And the weight of authority is that blasphemy is only indictable