usage of parliament, and that, by the law and usage of parliament, in prosecutions, by impeachment, for high crimes and misdemeanors by writing or speaking, the particular words supposed to be criminal (z), are not necessary to be expressly specified in such impeachment.

It was afterwards contended, that this rule of common law extended to indictments for treason, where the overt act was laid to consist in the publication of letters; but the objection was overruled in Francia's (a) as well as in Layer's (b) case.

Upon the latter trial, when the objection was pressed, Mr. Justice Eyre reprobated the opinion given by the judges in Sacheverell's case, and said, that it was a great surprise to Westminster Hall, and particularly to those who attended the Court of King's Bench, to hear that such an opinion had been given.

There seems, however, to be a wide distinction between indictments for high treason, where written publications are relied upon as overt acts, and indictments or informations in case of libel or perjury; for in the former case, the traitorously imagining or compassing of the king's death, constitutes the offence, and the letters or words are mere evidence of it, the sending or publishing of which certainly may amount to an overt act, though the very words cannot be precisely ascertained; as where letters are sent to a person in open hostility with this country; now, though the statute (c) directs, that the record shall

(z) Sacheverell's case. St. Tr. 9 Ann. There is no difference in this respect between a criminal and civil proceeding, where the cause of action arises en delicto, per Ld. Ellenborough. 3 M. & S. 116.

(a) St. Tr. 3 G. 1.

(b) 6 St. Tr. 330. 9 G. 1. See Ld. Preston's case, 4 St. Tr. 410. 2 W. & M.

(c) 7 W. 3. c. 3.

apprize the defendant of the overt act intended to be proved against him, it does not require a greater particularity, on the record, than is necessary in proof upon the trial, nor does it alter the nature and measure of evidence.

But in case of indictments for libel or perjury, the very words so constitute the offence, that, unless they be set forth, it cannot judicially appear that the defendant is guilty of the crime alleged against him. And Mr. J. Powys, who was one of the judges who were consulted in Sacheverell's case, and who also sate upon the trial of Layer, noticed this distinction on the latter occasion, when it was objected that the treasonable letters ought to have been copied upon the record.

It appears, indeed, that it was formerly not unfrequent in indictments for treason, perjury, and libel, to set out the words in Latin, though published in English (d).

But in the reign of Queen Anne the practice was otherwise as to libels, &c. as appears from the answer of the judges in Sacheverell's case, and their resolution seems to be law at this day.

In the case of the Queen v. Dr. Drake (e), Lord Holt, C.J. is reported to have said, "A libel may be described either by the sense or by the words; but, by the chief justice's application of this doctrine (f), it appears that he did not mean that a mere description of the words by their effect would be sufficient; for he observes, "A libel may be described either by the sense or the words of it, and therefore an information, charging that the defendant made a

(d) See Mr. J. Eyre's observations, Layer's case, 6 St. Tr. 331. Hugh Pyne's case, Cro. Car. 117. Dr. Drake's case, Holt, 35.

(e) 3 Salk. 234. Holt. R. 347. 349, 350. 425. 11 Mod. 95.

(f) Holt. R. 426.

writing containing such words, is good, and in that case a nice exactness is not required; because it is only a description of the sense and substance of the libel, and if the jury find some omissions, it will be sufficient if some words be proved (g)." The latter expression, " if some words be proved," renders it probable, that Lord Holt meant to say, not that it is unnecessary to state the words themselves, but that they may be stated two ways, either by their tenor, in which case the pleader undertakes to set out the words with the greatest precision, and the libel given in evidence must agree exactly with the one set out in the information; or by stating that the defendant made a writing, containing inter alia the words set out; in which case it would be necessary to set out those only which are material, and a variance would not be fatal, unless the sense were altered.

In the case of Newton v. Stubbs (h), the action was brought for words spoken, which were set out in the declaration ad tenorem et effectum sequentem; and after verdict for the plaintiff, judgment was arrested, because it was not expressly alleged that the defendant spoke the very words.

In the case of the King v. Bear (i), the indictment was for composing, writing, making, and collecting several libels, in uno quorum continetur inter alia juxta tenorem el ad effectum sequentem, and the words were then set out.

And it was agreed that ad effectum would of itself have been bad, since the court must judge of the words themselves, and not of the construction the prosecutor puts upon them; but that the words juxta tenorem sequentem import the very words themselves (k). And it was holden, that the words "ad effectum" were loose and useless words;

(g) Holt. R. 426. (h) 3 Mod. 71.

(i) 2 Salk. 417.
(k) Ib.

but that the words juxta tenorem being of a more certain and strict signification, the force of the latter was not hurt by the former, according to the maxim "utile per inutile non vitiatur.”

In the same case, (1) that of Ford v. Bennett was referred to; where, in a special action upon the case against Bennett and others, the plaintiff declared that the defendants, at Saltashe, procured a false and scandalous libel against the plaintiff to be written under the form of a petition, and the libel was set out after the words continetur ad tenorem et ad effectum sequentem. Two were found guilty, upon which judgment was entered for the plaintiff, and afterwards upon error brought in the Exchequer Chamber, the judgment was affirmed; the exception taken to the words ad effectum having been overruled without consideration. And Holt, C. J. said, that he then thought the judgment to be given with too great precipitatioa; but that he afterwards, upon great consideration, had esteemed it to be very good law. And the King v. Fuller (m), and the King v. Young (n), were cited as authorities in point; and the whole court were of opinion, that notwithstanding the exception, the indictment was good; but that if it had been only ad effectum sequentem, it had been ill, because it had not imported that the words were the specific words which were in the libel.

And the statement of the words written or spoken must correspond with the publication to be proved (u).

Therefore, an indictment for speaking these words of a magistrate (y), “He is a broken down justice," is not satis

(2) 1 Lord Ray. 415. (m) Mich. 4 W. & M. (n) Ib.

(2) B. N. P. 5. cites 2 Roll. Ab. 18. a. Avarillo v. Rogers,

T. T. 1773. 2 East, 434. 8 T.

R. 150. 4 T. R. 217. Cro. Eliz. 224. But see Dyer, 75.

(p) R. v. Berry, 4 T. R. 217. Blisset v. Johnson, Cro. Eliz. 503. contra.

fied by evidence of the words, " You are a broken down justice." Lord Kenyon, indeed, in this case held, at nisi prius, that it was sufficient to prove the substance of the words stated, and the defendant was found guilty; but the point was reserved, in order that a verdict of acquittal might be entered, in case the court should be of a different opinion. On motion to that effect, Buller, J. said, that there was a case in Strange in support of his lordship's opinion; but that it had since been overruled in Lord Mansfield's time, and that he himself had known a variety of nonsuits on the same objection; and judgment was given for the defendant.

In the case of Zenobio v. Axtell (q) judgment was arrested, because a libel published in French had not been set out in the original language, but had been merely described by way of translation; and Lord Kenyon, C. J. upon that occasion observed, that from the uniform current of proceedings, it appeared that the original words should be set forth, with an English translation, shewing their application to the plaintiff.

With respect to variances from omission, it seems in all cases to be sufficient to set out the words which are material, and it is not even necessary to state words which may qualify the objectionable ones; and in the case of libel, it may be averred in uno quorum continetur inter alia, &c. (r); for if something else were added, which did in fact qualify the objectionable words, it may be given in evidence on not guilty (s).

(q) 6 T. R. 162.

(r) R. v. Beare, Holt. R. 350.

(s) 2 Mod. 317. 8 Mod. 329. In Sir J. Sydenham's case, Cro. J. 407. an action was brought

K

for these words: "If Sir John Sydenham might have his will, he would kill all the true subjects of England, and the king too; and he is a maintainer of papistry and rebellious per