UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A TREATISE ON THE LAW OF SLANDER, LIBEL, SCANDALUM MAGNATUM, AND FALSE RUMOURS; INCLUDING THE RULES WHICH REGULATE INTELLECTUAL COMMUNICATIONS, AFFECTING THE CHARACTERS OF INDIVIDUALS AND THE INTERESTS OF THE PUBLIC. With a Description of the Practice and Pleadings in personal Actions, Informations, Indictments, Attachments for Contempts, fyc. connected with the Subject. BY THOMAS STARKIE, ESQ. op mncoln's-innj barrister at law. " Our Law in this and many other respects corresponds rather with the middle age of Roman Jurisprudence, when Liherty, Learning, and Humanity, were in their full vigour, than with the cruel Edicts that were established in the dark and tyrannical ages of the ancient Decemviri or the later Emperors." — Blackstone's Comm. vol. ivS'p. 151. " The Pleadings of the Parlies are in this Action much to be heeded, for the Plaintiff or Defendant either of them in this may, by his Omission or Commission, very quickly advantage or prejudice himself, and, therefore, they must be very careful herein." — Sheppard. Actions for Slander, p. 260. FIRST AMERICAN EDITION, WITH NOTES AND REFERENCES TO AMERICAN AND THE LATE ENGLISH CASES. BY EDWARD D. INGRAHAM, ESQ. I'l BL1SHED BY GEORGE LAMSON. .1. & J, Harper, Punters- 1826. Southern District of New~York, ss. BE IT REMEMBERED, that on the 20th day of January, in the fiftieth year o;' the Independence of the United States of America, George Lamson, of the said District, has deposited in this office, the title of a book, the right whereof he claims as proprietor, in the words following, to wit: " A Treatise on the Law of Slander, Libel, Scandalum Magnatum, and False Ru- mours ; including the Rules which regulate Intellectual Communications, affecting the Characters of Individuals, and the Interests of the Public, with a Description of the Practice and Pleadings in Personal Actions, Informations, Indictments, Attach- ments for Contempts, &c. connected with the subject. By Thomas Starkie, Esq. of Lincoln's- 1 lm, Barrister at Law. First American Edition, with notes and refer- ences to American and the late English cases. By Edward D. Ingraham, Esq." In conformity to the Act of Congress of the United States, entitled, "An Act for the encouragement of Learning, by securing the copies of Maps, Charts, and Books, to the authors and proprietors of such copies, during the time therein men- tioned." And also to an Act, entitled, "An Act, supplementary to an Act, enti- tled an Act for the encouragement of Learning, by securing the copies of Maps, Charts, and Books, to the authors and proprietors of such copies, during the times therein mentioned, and extending the benefits thereof to the aits of designing, engraving, and etching historical and other prints." JAMES DILL, Clerk of the Southern District of New-York- T StZ1$ s \ntt> TO THE RIGHT HONOURABLE EDWARD LORD ELLENBOROUGH, CHIEF JUSTICE OF ENGLAND, &c. Sic. My Lord, I have the honour to submit to your Lordship an humble attempt to illustrate an extensive and important branch of English Jurisprudence, by reducing, under a systematic arrangement, a se- lection of the principal decisions relating to it, interspersed with the dicta and opinions of many learned and experienced Judges. In the execution of this plan, your Lordship's judgment (if exercised at all on such a subject,) will, I fear, detect many faults ; my regret will be severe, should their number or their quality induce your Lordship to repent of your kind permission to inscribe this treatise to yourself. GViMra !\ DEDICATION. In hopes that your Lordship will long enjoy the high honours with which your professional career has been crowned, in the full possession of those faculties in which the nation claims so large an in- terest, I beg leave most respectfully, to subscribe myself, Your Lordship's most obedient, And very humble Servant, THOMAS STARKIE. 0, Searle- Street, Lincoln's- Inn. TABLE OF CASKS CITED BV THE AMERICAN EDITOR. A. Alderman v. French, (1 Pick. Rep. 1) - 329. 338. 408 Anderson v. Hamilton, (8 Price, 244) - - 412 Andreas v. Koppenheaffer, (3 Serg. & Rawle, 255) 19. 36. 40. 61 Andres v. Wells, (7 Johns. Rep. 260) - - - 369 Andrews v. Vanduzer, (11 Johns. Rep. 38) - 139. 179 Ashbell v. Witt, (2 Nott & M'Cord's Rep. 364) - - 47 Atkinson v. Hartley, (1 M'Cord's Rep. 203) - 21. 61. 276 B. Backus v. Richardson, (5 Johns. Rep. 475) - - 113 Barns v. Webb, (1 Tyl. Rep. 17) - - . . 329 Beers v. Strong, (Kirb. Rep. 12) - - - - 36. 75 Bell v. Bigg, (4 Munf. Rep. 260) .... 270 Binns v. M'Corkle, (2 P. A. Bro. Rep. 79) - - - 213 Bliss v. Lewis, (2 Bay's Rep. 204) - - - - 414 Bloom v. Bloom, (5 Serg. & Rawle, 391) - - 274.414 Bornman v. Boyer, (3 Binn. 515) - - - - 60. 294 Brooker v. Coffin, [5 Johns. Rep. 188) - - 19. 28. 40 Brooks v. Bemiss, (8 Johns. Rep. 356) - - - 180 Brown v. Croome, (2 Stark. Rep. 297) - - - 61.242 ~ v. Lamberton, (2 Binn. 34) . - - - - 28. 85 v. Mims, (2 Const. Ct. Rep. 235) ... 391 Bufqrd v. M'Luny, (1 Nott & M'Cord's Rep. 268) - 405. 410 Burtchu. Nickerson, (17 Johns. Rep. 217) - - « 113 Buys v. Gillespie, (2 Johns. Rep. 115) ... 28 Byron, Lord, v, Dugdale, (British Trav. Newspaper) - 143 C. Caldwell v. Abbey, (Hard. Rep. 530) - - 24. 75 Cartwrightv. Wright, (5 Barn. & Aid. 615) - - 278 .Cavev. Sheler, (2 Munf. 193) - - 284 vi NAMES OF CASES CITED. Chaddock v. Briggs, (13 Mass. Rep. 252) - 97 Chapman v. Gillett, (2 Conn. Rep. 61) 19. 78 v . Smith, (13 Johns. Rep. 80) - - - 76 Cheatwood v. Mayo, (5 Munf. 16) ... - 405 Cheetham v. Tillotson, (5 Johns. Rep. 430) - - 416 Chipmanr. Cook, (2 Tyl. Rep. 456) - 36.110.275.416,417 Churchill, Lord, v. Hunt, (2 Barn. & Aid. 685.) - - 347 Clason v. Gould, (2 Caines's Rep. 47) ... 244 Clinton v. Croswell, (2 Caines's R*p. 245) - 245 Clutterhuck v. Chatters, (1 Stark. Rep. 471) - - 352. 505 Coffin i.. Coffin, (4 Mass. Rep. 1) - - 182,183.411.414 Coleman v. Southvvick, (9 Johns. Rep. 45) - -213.263.414 Cook v. Barkley, (1 Penn. Rep. 169) .... 213 Cooke v. Maxwell, (2 Stark. Rep. 183) ... 412 Crookshank t>. Gray, (20 Johns. Rep. 345) - - - 47.76 Cummin v. Smith, (2 Serg. & Rawle, 440) - 387 D. Davis v. Davis, (lJSott & M'Cord's Rep. 290) - 115. 118. 291 Delacroix v. Thevenot, (2 Stark. Rep. 63) - - - 352 Dexter v. Taber, (12 Johns. Rep. 240) - - - 56. 80 Dickinson v. Barber, (9 Mass. Rep. 225) ... 171 DodH v. Henry, (9 Mass. Rep. 262) - - - - 35. 207 Dole v. Lyon, (10 Johns. Rep. 447) - . - - 213 Dwinnells v. Aikin, (2 Tyl. Rep. 75) - - 47. 420 E. Ebersol v. Krug, (3 Binn. 555) 260 Eden v. Legare, (1 Bay's Rep. 171) - 21 Edieu. Brooks, (Sup. Ct. Penn. MS.) - -• - -61.81 Elliott v. Ailsbury, (2 Bibb's Rep. 473) - - - 19.28 Else v. Ferris, (Anth. N. P. Rep. 23) - - - 118.329 Fairman v. Ives, (5 Barn. & Aid. 642) - - 210. 326. 330 Findley v. Bear, (8 Serg. & Rawle. 571) ... 80 Finnerty-j. Tipper, (2 Camp. Rep. 72) - - -398.410 Fishers. Rotereau, (2 M'Cord's Rep. 189) - - 74 Foot v. Tracy, (1 John9. Rep. 46) .... 410 Foote v. Bioren, (8 Johns. Rep. 50) - - - - 113 Fowle v. Robbins, (12 Mass. Rep. 496) - - 47. 77 Fowler ft war. v. Homer, (3 Camp. Rep. 294) - - 192. 232 NAxUES OF CASES CITED. Vll Frederitze v. Odenwalder, (2 Yeatcs, 243) - - - 179 Frisbie v. Fowler, (2 Conn. Rep. 707) - - 27 G. Gidney v. Blake, (11 Johns. Rep. 54) - - - 94. 288 Gilbert v. Rodde, (3 Bulstr. Rep. 304) - - 78 Godson v. Home, (3 Moo. Rep. 223) - 210 Grant v. Hover, (6 Munf. 13) 329 Gray v. Pentland, (2 Serg. & Rawle, 23) - - -186.193 Green v. Long, (2 Caines's Rep. 91) .... 74.76 Grubbs v. Keyser, (2 M'Cord's Rep. 305) - 271 II. Hall v. Smith, (1 Mau. & Selvv. 287) - 117 Hamilton v. Dent, (I Hayvv. 116) - - - - 47. 78 Hancock v. Winter, (2 Marsh. 503. 7 Taunt. 205) 271. 273 Harding v Greening, (1 Moo. Rep. 477. 8 Taunt. 42) - 371 Harris v. Lawrence. (1 Tvl. Rep. 156) ... 278 Harris, Esq. v. Huntingdon, Esq. (2 Tyl. Rep. 124) 186. 260 Harrison v. King, (7 Taunt. 431. 4 Price, 46) - - 59. 73 Hemmenway v. Woods, (1 Pick. Rep. 524) - 37 Herrick v. Lapham, (10 Johns. Rep. 281) - 321 Hersh v. Ringwal, (3 Yeates, 510) - ' - - 213. 275. 321 Higgins v. Cogswell, (4 Mau. & Selw. 369) - - - 389 Hodgson v. Scarlett. (1 Barn. & Aid. 232) - - 207. 330 Hogg v. Wilson, (1 Nott & M'Cord's Rep. 216) - - 24.416 Hollingsworth v. Duane, (Wall. Rep. 77) - 520 Holme v. Lord Bentinck, (8 Price, 226. 4 Mov. Rep. 563) 412 Holmes v. Catesby, (1 Taunt. 542) - 341 Hopkins v. Beedle, (1 Caines's Rep. 347) - 22. 47. 74. 416 Horner v. Marshall's Adm. (5 Munf. 466) - 171 Howard v. Stevenson, (2 Rep. Const. Ct. So. Carol. 408) 32. 74 Hoyle v. Young, (1 Wash. Rep. 152) - - - 118. 291 Huntr. Bell, (1 Bingh. Rep. 212.) - - 120 J. Jackson v. Stetson, (15 Mass. Rep. 49) 339. 347 Janson v. Stuart, (1 Tenn. Rep. 748 ) - - - 34 1 Jarvis v. Hathaway, (3 Johns. Rep. 179) •• - 189 Johnsons. Tait, (6 Binn. 121) - - - 32 K. Kean v. M'Laughlin, (2 Serg. & Rawle, 469; - - 398 Kennedy v. Gregory, (1 Binn, 88) - 213. 332 Till NAMES OF CASES CITED. Kennedy -j. Lowry, (1 Binn. 393) ... - 271 v. Marsden, (4 Mau. & Selw. 164) - - 297 King, The, v. Burdett, (4 Barn. & Aid. 314) - 55. 353. 57G v. Carlile, (3 Barn. & Aid. 167) - 198.446 v. Creevy, Esq. (1 Mau. & Selw. 273) 183. 193 v . W. Fleet, (1 Barn. & Aid. 379) - 199, 200 „, Harvey, (3 Dow. & Ryl. 464) - - 467 v . Williams, (5 Barn. & Aid. 594) - - 495 L. Lane v. Applegate, (1 Stark. Rep. 97) ... 326 v. Howman,(l Price, 76) 216 Larned v. Buffington, (3 Mass. Rep. 546) - - 402. 410 Lewis v. Clement, (3 Barn. & Aid. 702. 3 Brod. & Bingh. 297) 384 v. Few, (1 Anth. N. P. Rep. 75) - - 186.280 v. Hawley, (2 Day's Rep. 495) - - - 117 v. Walter, (4 Barn. & Aid. 605. 4 Dowl. & Ryl. 8 10) 213. 389 Lindsay v. Smith, (7 Johns. Rep. 360) - - 36.110.284 Logan v. Steele, (1 Bibb's Rep. 593) - - - 60 Lyle v. Clason, (1 Gaines's Rep. 581) - - 131. 352. 416 M. M'Alexander v. Harris, (6 Munf. 465) M'CIurg v. Ross, (5 Binn. 219) - M'Connell v. M'Coy, (7 Serg. & Rawle, 223) M'Corkle v. Binns, (5 Binn. 340) M'Glaughry v. Wetmore, (6 Johns. Rep. 82) M'Gregorv. Thwaites, (4 Dowl. & Ryl. 695) M'Kinley v. Rob, (20 Johns. Rep. 356) M'Millan v. Birch, (1 Binn. 178) Marshall v. Addison, (4 Har. & M'Hen. 75) Martin v. Stillwell, (13 Johns. Rep. 275) - May v. Brown, (4 Dowl. & Ryl. 670) Mayrant v. Richardson, (1 Nott & M'Cord's Rep. 347) Miles v. Oldfield, (4 Yeates, 423) Miller v. Kerr, (2 M'Cord's Rep. 285) v. Miller, (8 Johns. Rep. 74) - Mills v. Spencer, (Holt's N. P. Rep. 533) Milom v. Burnsides, (1 Nott& M'Cord's Rep. 426) Morris v. Duane, (1 Binn. 90) - N. Neal v. Lewis, (2 Bay's Rep. 204) - Xettlea v. Harrison, (2 M'Cord's Rep. 230) - 74 399 .405 - 126 295 - - 272 26. 340. 366. 376 - - 78 295 - 213. 216 - - 55 189. 324 - - 75. 113 - - 36 - - 380 .34 V 160. 569 - 74 - 213. 217. 334 - - 61. 271 - - 332 6) . 193 - 213. 332 24. 416 - ■- 36 XAAIES OF CASES CITED. IX Nivenu. Munn, (13 Johns. Rep. 48) - ... 77 .Vorton v. Barnura, (20 Johns. Rep. 337) - 244 Nye v. Otis, (8 Mass. Rep. 122) - - - - 60. 271 O. Oakley v. Farrington, (1 Johns. Ca. 129) • - 110.291 Packer v. Spangler, (2 Binn. 60) 22 Patten et al. v. Gurney et al. (17 Mass. Rep. 186) - 250 Pearsons. Pickett, (1 M'Cord's Rep. 473) - - - 244 Pelton v. Ward, (3 Caines's Rep. 73) ... 78 Pentersu. England, (1 M'Cord's Rep. 14) - 261 People, The, v. Crosswell, (3 Johns. Ca. 354) - - 493 v. Freer, (1 Caines's Rep. 484. 518) 520. 522 v. Rnggles, (8 Johns. Rep. 225) - - 437 Pitt v. Donovan, (1 Mau. & Selw. 639) ... 205 Power v. Miller, (2 M'Cord's Rep. 220) - - 47. 73 R. Republican Calef, (10 Mass. Rep. 153) ... 28 v. Clap, (4 Mass. Rep. 163) - - - 569 v. Cobbett, (3 Dall. 467, 3 Yeates, 93) - 525 v. Davis, (3 Yeates, 129) - - - 179. 369. 376 -j.Dennie, (4 Yeates, 267) - 468 v. Duane, (1 Binn. 98) 525 v. Holloway, (5 Binn. 517) - 74 v. North, (1 Binn. 97) - 525 v. Oswald, (4 Dall. 319) ..... 520 T-. Passmore, (3 Yeates, 441) ... 520 v. Powell, (1 Dall. 47) - 75 v. Sharpless, ( 2 Serg. & R. 91) - -448.450,451 Robinson v. Jermyn, (1 Price, 17) - - - 138 Ross v. Pines, (3 Call's Rep. 568) .... 205 Rowe v. Roach, (1 Mau. k Selw. 304) ... 205 Rue v. Mitchell, (2 Dall. 58) - - 47 S. Sawyer v. Eiffeit, (2 Nott & M'Cord's Rep. 511) - 61. 410 Shaeffer v. Kintzer, (1 Binn. 542) - - 19. 22. 47. 537. 416 SharflV The Commonwealth, (2 Binn. 514) - 494. 560 Sherutt v. M'Dowoll, (Const. Rep. Treadw. Edit. 35) - Shephard v. Merrill, (13 Johns. Rep. 475) - Shepherd -..Bliss, (2 Stark. Rep. 510) - * ■ - 273 Shock v. M'Chesney, (2 Yeates, 473. 2 P. A. Bro. 65) /4. 172. J K 192.398 X NAMES OF CASES CITED. Smith v. Carey, (3 Camp. Rep. 461) - 2 ^5 v. Minor, (Coxe's Rep. 16) - f' .. Wood, (3 Camp Rep 323) - - - |5l Smithies v. Harrison, (1 Lord Raym. 727) - - - •"» Solomons v. Medex, (1 Stark. Rep. 191) - *** Southey v. Sherwood, (2 Meriv. Rep. 435) - - 143 Southwick v. Stevens, (10 Johns. Rep. 443) - 278. 376. 414 Stafford r. Green, (Uohns. Rep. 505) - ?° Steele v. Southwick, (9 Johns. Rep. 315) - - 140. 492 Sterling v. Adams, (3 Day's Rep. 312) - 98 Stevenson v. Hayden, (2 Mass. Rep. 408) - - - 24. 7o Stokes v. Stackey, (1 M'Cord's Rep. 562) - 80 Stuart v. Harkins, (3 Binn. 321) ... - 421 v . Lovell, (2 Stark. Rep. 93) - - - 120.327.398 Swearingen i>. Birch, (4 Yeates, 322) - - - - 191 Sumner v. Buel, (12 Johns. Rep. 476) - 495 T. Tatev. Humphrey, (2 Camp. Rep. 73) - - 398 Taylor v. Sturgineger, (2 Const. Rep. 367) - 24. 416 Tempest v. Chambers, (1 Stark. Rep. 67) - - 80 Thomas v. Croswell, (7 Johns. Rep. 272) - 198. 295. 299. 398 v. Rumsey, (6 Johns. Rep. 27) - - 260 Thorley v. Lord Kerry, (4 Taunt. 366) - 138 Thorn v. Blanchard, (5 Johns. Rep. 509) - - - 186. 193 Tracy t>. Harkins, (1 Binn. 395, n.) - . 74.272 U. United States v. Hudson, (7 Cranch. 32) - 452 Van Ankin v. Westfall, (14 Johns. Rep. 233) Van Nessv. Hamilton, (19 Johns. Rep. 367) Van Rensellaer v. Dole, (1 Johns. Ca. 239) Van Vechtenv. Hopkins, (5 Johns. Rep. 211) Vaughan v. Havens, (8 Johns. Rep. 109) Vicku.Whitefield, (2 Hayw. 222) - W. Walcot v. Walker, (7 Ves. Jun. 1) - Walker v. Winn, ( 8 Mass. Rep. 246) - Wallis v. Mease, (3 Binn. 546) - Walsh v. The State, (2 M'Cord's Rep. 248) Walters v. Mace, (2 Barn. &. Aid. 756) Walton v. Singleton, (7 Serg. & Rawle, 451) 19.21. 329 138.178. 341 51.86. 110 55. 244. 295 . 47 - 410 143 - 35 - 398 266. 280 - 271 44. 64. 68 NAMES OF CASES CITEU. XI Ward v. Clark, (2 Johns. Rep. 10) - - - 22. 47. 78 Warn v. Chadwell, (2 Stark. Rep. 457) - - 411 Waterman v. Van Benscotten, (13 Johns. Rep. 425) - 420 Watson v. Hampton, (2 Bibb's Rep. 302) - - - 22. 4 - Wetmore v. Lyman, (2 Conn. Rep. 42) - 7b Widrig?. Oyer, (13 Johns. Rep. 124) ... 19 Williams v. Callender, (Holt's N. P. Rep. 307) - - 410 v. Faulder, (cited) 410 v. Mayer, (1 Binn. 92) - 405 Wilson v. Stephenson, (2 Price, 282) - 416 Wolcott v. Hall, (6 Mass. Rep. 514) - 408 Wolf v. Rodifer, (1 Harr. & Johns. 409) - 272 Wood v. Brown, (6 Taunt. 196, 1 Marsh. 522) - 266 v. King, (1 Nott & M 'Cord's Rep. 185) - - 21 Wrights Clements, (3 Barn. & Aid. 603) - 261 Wyatt v. Gore, (Holt's N. P. Rep. 299) - 351. 412 ERRATA Page 138, note (1,) the last sentence should be, " that no action could be maintained foi written scandal, which could not be maintained for the words if they had been spoken." Page 213, note (1,) insert the word " he" between the words " oral slander," and the word " if," which immediately follows. Page 128, line 4, dele " the prejudice from." Page 160, line 19, for "loses" read " is prevented from succeeding tc." Page 170, line 18, for " plaintiff's" read " defendant's." Page 201, line 18, for " defendant" read " plaintiff." NAMES OF CASES REFERRED TO IN THE ENGLISH EDITION 153 152 459 430 119 116 561 188 189 A. Abergavenny, Lord, v- Cart- wright - Abergavenny's, Lord, case Algernon Sidney's case - Argyle v. Hunt Arne v. Johnson - Arundell v. Short - Asaph's, Dean of St., case Ashby v. White Astley v. Young - Austin, Sir J. v. Col. Cul- pepper - - 133, 332 Avarillo v. Rogers - 271 B. Baal v. Baggerly - 48 Baker v. Pierce - - 49,79 Baldwin v. Elphinstone 353, 171, 264 Baldwin and wife v. Flower 165 Balmerino, Lord, his case 473 Banister v. Banister - 123 Barbaud v. Hookham - 175 Barham's case - 294, 296 Barnabas v. Traunter - 24 Barnes v. Bruddell - 166 Barrons v. Ball - 282 Barron v. Gibson - - 166 Barrow v. Llewellyn - 511 Beauchamp, Lord, v. Sir R. Croft - 193 Beaumond, Sir Thos. v. Sir H. Hastings 315 Beere's case 269, 278, 325,512 Bell v. Byrne Bellingham v. Mynors Bendish v. Lindsey Bill v, Neale Bishops', seven, case 589 339 ■ 35,318 104 351,555 371,541 124 Beavor v. Hides - 66,418 Bliss v. Stafford Blisset v. Johnson 271 Belton, Sir Wm. v. Dean 140 Bonham's, Dr., case - 526 Boston v. Tatham - - 19 Boulton v. Clapham - 191 Bradley v. Methwyn - 133 Bridge's case - - 46 Briggs's case - 93 Brook v. Sir Hen. Montague 206 Brookbard v. Woodley - 360 Brown v. St. John 74 Brownlovv's, Dr. - - 311 Buchanan's case - - 359 Buckingham's, Duke of, case 151, 153 Buckley v. Wood - - 192 Burges v. Boucher - 50 Burgis's case - - 277 Burnet v. Codman - . 287 v.Wells - 292,417 Bushel's case - - 417 Button v. Hey ward 16, 51, 281 Byron v. Ernes - - 163 C. Carr, Sir John, v. Hood 232, 593 Carpenter v. Tarrant - ig Carslake v. Mapledoram p« XIV NAMES OF CASES CITED. Cary v. Pitt - - - 361 Castlemaine's, Lord, case 590 Ceely v. Hoskins 47 Chapman v. Lamphire - 119 Clark v. Price - - 426 Clarke's, John, case 305, 475 Cleaver v. Sarraude - 210 Clerk v. James - - 250 Clissold v. Clissold - 582 Cobbett's case - - 472 Cockaine, Lady, her case 32, 91, 92 Collins v. Malin - - 314 Cook v. Bachelor - - 251 v. Field - 179,592 Cookson v. Castline - 256 Cooper v. Hawkswell - 67 Cooper v. Smith - - 282 Cox v. Humphreys - 37 Coxeter v. Parsons - 426 Craft v. Boite 249, 298 Crawford v. Middleton - 214 Croft, Sir Harbert, v. Brown 15, 88 Croft's, Sir Harbert, case 90, 9 1 Cromwell's, Lord, case 151,179 Croppv. Tilney - - 134 Crosby's case - 359, 590 Crownfield's case - - 520 Cuddington v. Wilkins 1 80, 349, 586 Curry v. Walter - 412 Sutler v. Dixon - J 91. D. Da Costa v. Pym - 362 Davis v.Gardiner - - 161 Davis v. Lewis - 118, 215 Davis's, Ann, case 161,164,165 Dawes v. Bolton - - 37 Deacon's case - 250 Dean's case - 527 Delamore v. Hoskins - 289 Delany v. Jones - - 62 Dibdin v. Swan and Bostock 120, 239 Dix v. Brooks 259 Dobson v. Thornistone - 120 Dodd v. Robinson - 313 Dorcbester's,Marquisof,case 151, 155,243,246 Dorrell v. Grove - 65 Drake's, Dr., case - 267 Drake v. Corderoy - 290 Du Bost v. Beresford - 153 Dunman v. Bigg - - 210 E. Earbury's, Dr., case - 546 Eaton v. Allen - 21,33,34 Edmondson v. Stephenson 223 Edwards's case - - 18 Edwards, Dr., v. Dr.Wooton 131 Elborow v. Allen - - 159 England v.Bourke - 179 Entick v. Carrington and others - 546 Evans v. Brown - 427 FalkJand, Lord, v. Phipps 150, 156 Feise v. Linder - - 586 Finnerty v. Tipper 593, 594 Fleetwood, Sir Miles, v. Curl 95, 305 Flowers's case - 116 Flower v. Pedley - - 275 Ford v. Bennet - - 269 Ford v. Brooke - - 248 Foster v. Browning - 45, 284 Franklin's, Richard, case 472 Freeman v. Norris 245, 246 Fish v. Thorowgood - 344 G. Gainford v. Tuke - - J 9 Garrels v. Alexander - 366 Gerard v. Dickenson 159, 220, 203 Gerard, Sir C, his bailiff's case 334 NAMES' OF CASES CITED. XV Girdwood's case - - 404 Gobbett's case - 427 Gordon's, Lord George, case 483 Goulston v. Wood - - 415 Greaves v. Blanchett - J 64 Greenfield's case - - 107 Gremare v. Le Clerc Bois Valere 393 Grove v. Hart - - 251 Gurnett v. Deny - - 78 Guy v. Livesey - - 252 H. Halford v. Smith - - 423 Hall v.Warner - 139,420 Hammond v. Kingsmill - 104 Harding v. Bulman - 185 Hare v. Meller - - 194 Harman v. Delany - 177 Hargrave v. Le Breton - 211 Harper, Sir J., v. Francis Beaumond - - 111 Harrison v. Thornborough 51, 63, 119,290 Hart's case - - - 280 Hartley v. Herring, 165, 325 Harvey v. Chamberlayne 288 Harvvood v. Sir J. Astley 326, 586 Hawkes v. Hawkey 291,296 Hay ward v. Naylor - 61 Helly v. Hinder - - 292 Heriot v. Stewart - 120,239 Heusey's, Dr., case - 359 Hext v. Yeoman - - 59 Hicks's, Sir Baptist, case 132, 509, 524, 588 Hilsden v. Mercer - 343 Hinds v. Thomson 430 Holland v. Stoner - - 45 Hollis, Sir John, v. Briscow 104 Holt v. bcholefield 40, 77, 295, • 297,416,418 HookdrV. Tucker - 318 Home v. Powell - - 66 Howe v. Prinn - 102, 104 Hoskins v. Ridgeway - 245 Humphreys v.Stanfield 122,125 Hunt v. Thimblethorpe - 61 I. &J. Jacob v.Mills - - 71 J' Anson v. Stuart - 96, 134, 17S Jerome, Miss, her case - 537 Johns v. Gittens - - 338 Johnson, W.,v. Bewick 430 v. Evans - - 230 Jones v. Heme - - 23 Ireland v. Blockwell - 325 K. Kerle, Sir J., v. Osgood 105 Kerry, Lord, v. Thorley 587 King v. Lake - 134, 187, 345 Kinnersleyv. Cooper - 336 Knightley, Sir John, v. Marrow - 94 Knobell v. Fuller - - 405 Lake v. Hatton 178 Lamb's case - 264, 353, 511 Lancaster v. French 114 Lawrence v. Woodward 94 Layer's case 359 Leach's case 542 Legate v. Wright - 429 Le Merchant, Attorney- General v. - 365, 383 Lewknor v.Cruchley* - 22,34 Leicester's, Earl of, case 152, ,407 Lincoln's, Earl of, case - 150 Lowry v. Aikenhead 229 M. Macclesfield's, Earl of, case 243 Macdougall v. CJaridge - 209 Maitland v. Goldney - 250 Manning v. Avery - 159 Mason v. Jennings - 134 Mason v. Thomson - 49 Matthews v. Cross - 161 Mayne v. Digle - - .38 Meade v. Daubigny 398 XVI -NAMES OF CASES CITED. Med h u rst v. Balaam - 165 Metcalfv. Markham - 246 Middleton's, Dr., case - 521 Moises, Dr., v. Dr. Thornton 384 Monke v. Butler - 394, 395 Moore, Sir George, v. Foster 35 Moore v. Meagher - 165 Mordant, Lord, v. Bridges 153 Mordington's, Lord, case 212 Morris v. Langdale 117, 342 Morrison, Dame, her case 301, 318 Mors v. Thacker - - 267 Mullet v. Hulton - 352, 404 Muney's case 89 N. Nelson v. Smith - - 291 Nelson v. Hawkins, Dean of Chichester - - 426 Neve v. Cross 93 Newman v. Smith - 258, 259 v. Bailey - 324 Newton v. Stuhbs - - 2G9 Norfolk, Duke of, v. Alder- ton - - - - 246 Northampton's. Earl of, case 61, 179, 213,215 Northampton, John de, his rase - - 513, 525 O. O'Connor's case - - 359 Ogden v. Turner - 15,39, 165 Onslow v. Home - 40, 103, 106 Paine"s, Samuel, case - 518 Peake v. Oldham 50, 60, 82, 158, 167,283,300, 321 Peachum, his case - 4a9 Peard v. Jones - - 115 Pellier, Jean, his case - 484 Pembroke, Earl of, v. Staniel J 55 Penfoldv.Westcote - 408 Phillips v. Jansen - - 112 Pickering, Lewis, his case 509 Pickford v. Gutch - 386 Pincknevv. Collins - 245 Plunketfv. Cobbett 127, 130 Portman, Sir H. v. Stowell 39 Powel v. Plunkett 180,232,591 Power v. Shaw - 430 Preston's, Lord, case - 359 Prynne,Wm., his case - 578 Purdy v. Stacey - - 36 Pyne's, Hugh, case - 266 R. Radcliffe, Lady, v. Shubly 271 Rain v. Langley - - 192 Ray's, Lord, case - - 360 Redman v. Pyne - - 134 Revett v. Braham - - 360 Rex vel Regina v. Lord Abing- don 183,197,240,209,223 v. Alderton - - 295 v. Almon - 240, 369 v. Archer - 574, 575 v. Bagg - 46 v. Bailey - - 212 v. Ball - 593 v. Bale - - 540 v. Beare, or Beere 269, 276, 325 v. Bedford - - 454 v. Beech - - 143 v. Beere. See R. v. Beare - - - 509 v. Berry - - 271 v. Bickerton 177, 536 v. Brereton - - 265 v. Carter - - 516 v. Cator - 368, 612 v. Chrichley - 491 v. Clark - 305,470,558 v. Clendon - - 438 v. Cobbett - - 472 v. Coombs - - 395 v. Crownfield - 520 v. Sir T. Culpepper 358 v. D'Eon - 482 v. Derby - - 540 v. Dodd 368 v. Dormer - - 539 v. Dr. Drake 270, 277, 280 NAMES OF CASES CITED. XVII v. Enes v. Fisher v. Franklin - v. Fuller v. Gird wood 536 199 472 270 401 v. Lord George Gordon 483 v. Griffin - 596,147 ■ v. Hall - 438, 572 • v. Higgins - - 491 v. Holland - 534 v. Holt - - 572 ■ v. Home 51,315,319,327 ■ v. Jenneauror Jenour 212, 536, 596 - v. Hon. Robt. Johnson 370, 371,372,373 v. Jolliffe v. Kendal v. Kinastou - v. Knell v. Sir Edward Lake v. Lambert and Perry 539 596 541 515 149 550, 572 v Langley - 491, 526 v. Lawrence - - 470 v. Lofield - - 198 v. Matthews - 306 v. Mayer and Dowling 521 v. Dr. Middleton - 521 v. Miles - - 540 v. Nun - - 594 v. Nutt - - 369 v. Orrae - - 595 v.Osborne - - 495 v. Owen - - 503 v. Paine - 511, 572 v. Peachum - - 459 • v. Pearce ■ v. Jean Peltier ■ v. Perry and another • v. Phillips -v. Pinkerton ■ v. Pocock - v. Rayner ■ v. Roberts - - v. Salisbury - - v. Sharpe - v. Sharpness 383 484 465 491 574 532 535 534 592 531,542 574 3 177. - v. Shipley, Dean of St. isaph - 583 - v. Smith - - 594 - v. Dr. Smollet - 532 - v. Sontherlon - 491 -v. Staples - - 531 - v. Stockdale - 480 -v.Summers - 524,548 _ v. Taylor - 637 - v. Thicknesse - 532 - v. Thomson - 555 - v. Topham - 376, 493 - v. Vint - - 483 - v. Waddington - 487 -v. Walden - - 595 -v.Walter - - 594 - v. Waring and wife 325, 407 — v. — v. — V. — V. — V. — V. — V. — V. 372 532 536 534 540 544 194,582 441,442 578,441 361 241,543,562 194 595 272 417 19,54,67, 299 Rogers v. Sir Gervase Clifton 225 Rogers v. Gravat 38 Ross v. Lawrence - 310 Russel v. Come - 256, 257 Russel, Sir Win. v. Ligon 36 Russel v. Macquister 39S, 402 S. Salter v. Brown - - 25 Sandwell v. Sandwell - 351 Savage v. Robery - 306, 314 Saville v. Jardine ♦ 114, 119 Saville v. Roberts - - 160 Scoble v. Lef • 39 v. Watson Watson and others Webster - White and Hart Willet Wilkes Williams Wilson Withers v. Woolston v. Woodfall v. Wright v. Wrightson v. Young Rich v. Holt Roberts v. Campden xviu NAMES OF CASES VLTEiJ. Seaman v. Bigg Searle v. Williams - Seizure of papers, case Shaftesbury's, Lord, case Shalmer v. Foster Foster and wife 108 253 358 246 290 298 78 359 286 15,142 124, 323 251 30 254 232 329 53, 206 Shaw v. Thompson Sidney's case Skutt v. Hawkins - Smale v. Hammon Smead v. Badley - Smith v. Croker - v. Flynt ■ ■ — v. Hixon — —- v. Hodgkins " ■ • v. Richardson v. Spooner - v.Taylor 126,392,396,397 v. Ward - - 285 v. Wisdome - 59 Snagg v. Gee - 70, 309 Snell v. Webling . - 94 Snowde, SirR. v. - - 284 Somers v. House - - 26 Speed v. Parry - - 65 Stamp v. White - 69 Stanhope v. Blith - - 14 Stanton v. Smith - - 293 Stirley v. Hill - * 62 Stone v. Smallcombe - 32 Strachey's case - - 264 Stranger v. Searle - 361 Styles v. Nokes - - 2*5 Subley v. Mott - - 262 Sutton v. Johnstone - 319 Swithin and wife v. Vincent and wife ... 262 Sydenham's, Sir John, case 57 292. 294 T, Tabart v. Tipper 120, 238, 328 Talbot's v. Case - - 71 Tassau v. Rogers - - 120 Tate v. Humphreys - 593 Terry v. Hooper - - 109 Thompson's case - 552 TibboH v. Havnes 32 Tindall v. Moore - 299 Toddv. Redford - - 258 Townsend, Lord, v. Dr. Hughes - - 7, 157, 414 Turner v. Stirling - - 124 Tutchin's case 306, 470, 557 Tuthill v. Milton - 313,314 Tutty v. Alewin - - 116 U. L V. Underwood v. Parkes 330, 332 410,412 Upsheer v. Betts - - 343 Upton v. Pinfold - - 60 Vaughan v. Ellis - - 123 v.Leigh - - 123 Vicars v. Wilcocks - 167 Villers v. Monsley - 135 Vint, John, his case - 483 W. Waddington's case - 487 Walden, Sir Lionel, v. Mitchell 38 Walmesley v. Russell - 16 Walter v. Beaver - - 81 Ward v. Reynolds - 51 Warwick, Earl of, his case 589 Waterfield v. Bishop of Chi- chester - - - 197 Weatherstone ?. Hawkins 223, 399 Webb v. Poor - - 71 Weller v. Baker - - 250 Weston v. Dobniet - 201 Wetherell v.Clerkson. - 323 Wicks'scase - - 34 Wilkes's case - - 461 Wilner v. Hold - 283, 295 Winchester's, Lord, case 152 Wiseman v. Wiseman 94, 221 Woolnoth v. Meadows 54, 61,67, 214,216,301, 337 Wyld v. Cookman - - 340 Y. Yeoman Hext v. Young v, Pridd 59 253 Z. Zenobio v. Axtell 2«7, 319, 346 INTRODUCTION Injuries which exist, independently of the viola- tion of any previous compact, are either forcible in their nature, where the means used are purely me- chanical, or intellectual, where the wrong is com- pleted by the mere communication of certain ideas. The sources of these two kinds of injury are so remote and characteristic, as to induce a mere theo- retical inquirer to conclude that, in any given sys- tem, the laws relating to them, whether remedial or prohibitory, would at the same period approach nearer to perfection in the first instance than in the second. The comparative imperfection of the laws re- lating to the latter division, is suggested principally by two considerations — the want of early expe- rience, and the intrinsic difficulty of the subject. In the progress of a nation from a state of rude- ness to civilization, it is natural to suppose, that the protection of the persons and property of indivi- duals from actual violence would be the first and most important object of legislation. Mere intellectual injury is of too abstracted a nature to invite early attention, and the necessity of prescribing restraints to any considerable extents XX INTRODUCTION. would not obtrude itself until society had begun to assume a complicated form. This necessity has its origin chiefly in the various distinctions and refine- ments which prevail in the maturer stages of so- ciety : previous to their introduction, and particu- larly whilst the art of writing was either altogether unknown, or confined to a few, the injury could sel- dom extend beyond mere personal reflections and abuse ; and instances even of this description would be the less frequent, from the probability that the offended party, in the absence of a competent tri- bunal, to which he might appeal, would redress his own wrongs, and retaliate by acts of personal vio- lence. Reputation itself, considered as the object of injury, owes its being and importance chiefly to the various artificial relations which are created as society advances. The numerous gradations of rank and authority, the honours and distinctions extended to the exer- tion of talent in the learned professions, the emolu- ments acquired by mechanical skill and ingenuity, under the numerous subdivisions of labour, the in- crease of commerce, and particularly the substitu- tion of symbols for property in commercial inter- course — all, in different degrees, connect themselves with credit and character, affixing to them a value, not merely ideal, but capable of pecuniary admea- surement, and consequently recommending them as the proper objects of legal protection. The difficulties to be encountered in framing such laws, is a further reason for their imperfection; their subject matter is more subtle and refined, and does not admit of the broad and plain limits and dis- INTRODUCTION. XX J Unctions which may be established in respect of forcible injuries ; for instance, in the case of battery of the person, the law can, without hesitation, pro- nounce, that any, the least degree of violence shall be deemed illegal, and entitle the complainant to his remedy ; but, communications concerning repu- tation cannot be so prohibited ; every day's conve- nience requires, that men, and their affairs, should be discussed, though frequently at the hazard of individual reputation ; and it conduces mainly to the ends of morality and good order, to the safety and security of society, that considerable latitude should be afforded to such communications. The dread of public censure and disgrace is not only the most effectual, and therefore the most important, but in numberless instances the only security which society possesses for the preservation of decency and the performance of the private duties of life. The law may, indeed, define particular offences, and diminish their frequency by the threat of punish- ment; but it cannot define, and therefore cannot compel, an observance of the duties, upon the dis- charge of which the happiness of the communhty most essentially depends. It is possible, in short, for a strict observer of every legal enactment to be destitute of every honourable feeling and principle, and utterly unfit for supporting any useful relation to the society in which his existence is tolerated. There are, it is true, other and strong motives for good conduct ; but, however powerful such are, or ought to be, common experience proves, that their practical operation upon the mass of mankind, is weak when compared with the love of character, XXil INTRODUCTION. and strongly suggests, even to a superficial observer, the state of things which would ensue were praise and blame to become alike indifferent. Hence it is that the very liability of reputation to public censure tends, in a very considerable degree, to the pre- servation of its purity. Again, this privilege is important, not only as it diminishes the number of delinquents, but as it abridges their power of effecting mischief, since to expose bad intentions, is the surest step towards preventing their execution. It seems, indeed, to be just as much a matter of moral obligation to ad- monish an individual against the malpractices from which he is likely to suffer, as to apprize him that he is unwarily approaching the edge of a precipice ; but it is impossible to contend, that a law, control- ling the exercise of any moral feeling, can consist with reason and good policy. In addition to this, from the very nature of the case, such a prohibition would be in a great mea- sure nugatory ; the passion for communication is too powerful to be extinguished by any penal enact- ments, though the attempt to enforce them would materially impede and embarrass the ordinary inter- course and business of society. So with regard to matters of public concern : the cause of good government, of religion, or science, may sometimes partially suffer from the propaga- tion of wilful misrepresentation and the dissemina- tion of vicious principles, yet it can scarcely be doubted that these very interests are best consulted by permitting free inquiry for the attainment of truth and dispersion of error. The professed end INTRODUCTION. XXlll and object of every political institution, is the ad- vancement of the public welfare, of every philo- sophical system, the extension of human know- ledge. Whoever, therefore, fairly points out a de- fect, or error, in the one case or the other, necessa- rily confers a benefit on society, since he suggests the means by which its condition may be improved. To interdict all discussion on such subjects, would be to embrace one of these alternatives — either indiscriminately to reject the advantages to be ex- pected from the future exertion of talent, aided by experience, or unwisely to assume the present state of things to be so perfect as to exclude any altera- tion for the better. The convenience, however, of society, undoubt- edly requires that some limit should be prescribed to communications affecting the reputation of in- dividuals, and the general interests of the com- munity. The means which have been invented for the transmitting and perpetuating ideas, otherwise fleet- ing and perishable, are convertible into the power- ful instruments of wanton mischief. The safety of the public may be undermined by the diffusion of vicious principles, artful calumnies, or obscene ribaldry ; its peace disturbed by acts of outrage, inflicted in revenge for personal reflections and affronts ; the happiness and prosperity of the indi- vidual impaired by imputations disgracing him as a man, and depriving him of the comforts of society ; or affecting his credit and abilities in any particular character, and excluding him from the enjoyments XxiV l.NTllODUCTlOK- of the honours and emoluments incidental to hi^ situation in life. Since experience proves, that such may be the fatal consequences of malice thus exerted, the means by which they are effected are properly the object of legal coercion and restraint. The difficulty, then, is obvious ; it consists in laying down plain intelligible rules, by which the privilege of communication is to be limited and de- fined, and in so adjusting the boundaries, that the common concerns and ordinary transactions of life may not be fettered by irksome and unnecessary restraints; that every member of the community may feel himself at liberty to give a fair and honest opinion upon every subject in which he possesses an interest, without the apprehension of a suit or prosecution, and yet that the impunity shall not be extended to publications maliciously contrived for the purpose of public or of private mischief. From this difficulty, as far at least as relates to political and theological topics, the awkward expe- dient of subjecting the press to the control of a licenser owes its origin — a measure scarcely plausi- ble even in its exterior, and replete with mischief and absurdity. The advantage to the community would be infinite, could any organ of communication be discovered, which would faithfully transmit to the public every sentence capable of improving and delighting, but repress every gross and pernicious sentiment. The difficulty consists in discovering such a literary alembic. In whom are united the talents requisite for the task ? Does the possessor of them superadd an integrity and impartiality liable INTRODUCTION. XXV to no influence, prejudice, or bias ? Who is compe- tent to judge of such high qualifications ? Where shall the power of appointment reside ? A writer,* no less remarkable for the acute- ness of his observation than for the energy of his language, has thus expressed himself upon the subject. " If nothing may be published but what civil authority shall have previously approved, power must always be the standard of truth : if every dreamer of innovations may propagate his projects, there can be no settlement : if every murmurer at government may diffuse discontent, there can be no peace : and if every skeptic in theology may teach his follies, there can be no religion. The remedy against these evils is to punish the authors, for it is yet allowed, that every society may punish, though not prevent, the publication of opinions which that society shall think pernicious : but this punishment, though it may crush the author, pro- motes the book; and it seems not more reasonable to leave the right of printing unrestrained, because writers maybe afterward censured, than it would be- to sleep with doors unbolted because by our laws we can hang a thief." The concluding comparison indicates the leaning of its author in favour of the previous restriction. The utility and justice of the comparison itself, however, appear questionable. No man in his senses* it is true, would invite danger by leaving his door open, since he might lose and could not gain by the * Johnson's Life of Milton, 104, 4 XXVI 1NTK0DUCTI0K. experiment; and security on the one hand is opposed to danger on the other. And so in case danger, political or religious, were to be apprehended from an open press, and no inconvenience were likely to arise from restrain- ing it, no one could doubt the propriety of such restraint ; and to leave the press unrestricted be- cause an abuse of the liberty might afterwards be punished, would be as silly as to leave the door un- barred, because the thief might be hanged. If the comparison be meant to extend no further than this, it is useless, since it merely illustrates a fictitious case which does not admit of doubt ; if it be meant to extend further, its application is unjust, since the danger to be apprehended from an open press is opposed, not to security, but to the danger to be dreaded from making power the standard of truth. The advocate for an open press assigns for his rea- son, not that an offender maybe afterward punished, but that he apprehends greater mischief from the restriction, than from the abuse of the liberty : each side of the alternative presents its inconveniences, and the only question is, which is the more tolera- ble, to see no truth but through the suspicious me- dium of power, or to risk the disorders and skepti- cism which may flow from a press unfettered by pre- vious restriction. That a free press is the surest protection against the inroads of arbitrary power, is a position which may almost be regarded as a political axiom. Under a government where communication is shut out, the individual suffers in silence ; innovations are securely practised upon what remains of his liberty ; his INTRODUCTION. XXVll knowledge is confined to his own grievances ; and to proclaim them aloud, and singly and unassisted to demand redress, is too dangerous a measure for the stoutest resolution. By means of the press every movement of power is announced to the community ; the effects of every measure scrutinized by the united talents of the whole ; every individual learns the extent of every public grievance, and is animated in his resistance to the oppression by the confidence which the sup- port of numbers never fails to inspire. The security thus afforded is valuable in propor- tion to the value placed upon liberty itself, and is an advantage singly sufficient to outweigh the oppo- site evils, were they more real than experience has proved them to be.* An important distinction relating to this topic still remains. There is a wide difference between an open press, that is, a press not subject to the previous control of a licenser and a free press ; and yet it is remarkable, that these are treatedf by a very eminent writer upon our constitution, as identical. Does the removal of previous restraint, necessarily and essentially constitute a free press ? May not the pains and penalties inflicted for that which has been published be so unwarrantably se- vere as to prevent future publications ? — To take an extreme case: — Suppose a government claiming no previous right of restraint, to punish with loss of life or limb for publications abstractedly innocent, * It is now upwards of a century since the press of this country was /inalh- rescued from the hands of a licenser. + Sir W. Blackstone's Com- vol. it. 151, XXVHL INTRODUCTION. could the press in that country be deemed free ? It not, then it is clear, that something more than the mere absence of previous restraint is essential to the liberty of the press. This further requisite consists in laying down plain intelligible rules, adapted to the exigencies and con- venience of society ; without such guides, the most perplexing uncertainty must prevail, and it may fairly be questioned, whether the alternative of a licenser, whose office, however odious, at all events secures from punishment, by preventing the publi- cation of that which he deems offensive, be not pre- ferable to the permission to publish, where the effect of publishing is hazardous and uncertain. Civil liberty has been well defined,* to consist in " The not being restrained by any law but what conduces, in a greater degree, to the public good." Were a set of laws, therefore, to be constructed upon this foundation, for regulating the extent of the privilege of communication, so as to consist with the fullest enjoyment of civil liberty, their operation would produce the greatest aggregate of good ; so that were a greater latitude allowed, the mischief would outweigh the advantage resulting from freer communication : were the privilege more contracted, the additional security would not compensate for the increase of litigation, and the partial loss of the be- nefits afforded by free discussion ; or in either case, an inconvenience would accrue from relinquishing a plain well defined rule for one uncertain and preca- rious. To determine, therefore, with precision, the limits of verbal and written communication, is a • Paley's Philosophy, vol. 2. p. 164 DIVISION OF THE SUBJECT. XXIX problem easy of enunciation, but exceedingly com- plicated in its solution : it involves the consideration of the habits, manners, and even fancies and preju- dices of the people for whose government it is in- tended, and may require alterations corresponding with the changes effected in the state of society. Before mercantile convenience, for instance, had created what is termed credit, an imputation of in- solvency could produce little prejudice, yet after the establishment of commerce, it might largely contri- bute to its own verification ; and it would not be difficult to cite terms of reproach, which in one age would exasperate and provoke to acts of violence, but in another, would meet with disregard and in- difference. To INQUIRE WHAT LIMITS HAVE BEEN PRESCRIBED BY THE LAW OF ENGLAND TO THE COMMUNICATION OF IDEAS OF ANY DESCRIPTION, WHETHER OF FACTS OR OF OPINIONS, WHICH MAY AFFECT THE CHARAC- TERS OF INDIVIDUALS, OR THE INTERESTS OF THE PUBLIC, AND THE MODE BY WHICH ITS REGULATIONS ARE TO BE ENFORCED, IS THE OBJECT OF THE PRE- SENT TREATISE. In pursuing this investigation, the following me- thod is proposed to be observed. 1st. To reduce the subject into the most simple divisions of which it is capable, with reference to general principles and distinctions recognised by the Law of England. And 2dly. To endeavour, from the particular cases which range themselves within each of such divisions, to extract such principles and positions as may serve to define and ascertain the limits and boundaries of this branch of the law. .XXX DIVISION OF THE SUBJECT. In the first place it is necessary, for the sake of clearness, to advert to the well-known distinction between private and public wrongs : in the former case, the object of the law is to compel a reparation to the injured individual, for a specific loss ; of the latter, to prevent, by dread of punishment, an at- tempt to produce disorder in society. The founda- tion, therefore, of proceeding in the two cases, is perfectly distinct ; and the means used by the law for the attainment of such different objects, are, as might be expected, dissimilar. In some respects, it is true, the corresponding incidents are nearly related ; but upon the whole, a separate consideration, even of these, appears pre- ferable, particularly since repetition may be avoided by reference, and the advantage derived from view- ing the two branches in their mutual bearings, may be attained by subsequent comparison. The subject will therefore be considered, 1st. In its relation to individuals. 2dly. In its relation to the interests of the public. In considering the subject as it relates to indi- viduals, it will be convenient to inquire, 1st. Under what circumstances an individual is entitled to recover damages for any communication concerning him. 2dly. The means appointed by law for obtaining such damages where the party is entitled ; and the means of defence where a party sues who is not so entitled. 1st. Under what circumstances is an individual entitled to recover damages for a communication concerning him ? DIVISION OF THE SUBJECT. XXXI An action to recover damages in case of slander, rests upon the grounds and principles of Common Law ; and though the legality of such a proceeding has been recognised by statutes regulating the costs and limiting the time of complaint, the right to re- dress exists independently of the written law. To this observation the proceeding by action of scanda- lum magnatum seems to form no exception, since the statutes relating to that offence, rather secure an existing right by new penalties than create a title to damages. (1 West. 3 E. 1. c. 34. 2 R. 2. c. 5. 1 2 R. 2. c. 1 1 . Lord Townsend v. Dr. Hughes,2Mod. 150.) The Law of England, in its ample and equitable provision of remedies, prescribes, generally, that " WHERE A MAN HAS A TEMPORAL LOSS OR DAMAGE BY THE WRONG OF ANOTHER, HE SHALL HAVE AN ACTION ON THE CASE TO BE REPAIRED IN DAMAGES." (1 Com. Dig. 168. Bac. Ab. tit. Actions. B.) In order, therefore, to constitute a right of action, at Common Law, two circumstances must concur ; first, a loss must have been sustained by the plaintiff; and secondly, the loss must have been occasioned by the wrongful act of the defendant. The first question, therefore, — When is an indivi- dual entitled to recover damages for any communi- cation concerning him ? resolves itself in two consi- derations: 1st. When shall a man be said to have suffered a temporal loss from a communication concerning him ? 2dly. When shall the act of com- munication be deemed a wrong ? OF THE PLAINTIFFS LOSS CHAPTER I. When shall a man be said to have suffered a temporal loss from a communication concerning him? Since the remedy sought to be recovered by a personal* action in a court of law is of a pecuniary nature, it follows, that the loss complained of, ought to admit of a pecuniary admeasurement. The term temporal, used as descriptive of the loss upon which a suit may be supported, seems particularly opposed to spiritual grievances^ which cannot be estimated in money, and for which a remedy must be found, if at all, under a jurisdiction very differently con- stituted; and so, a mere injury to the feelings with- out actual deterioration of person or property, can- not form an independent and substantive ground of proceeding, though in other cases it may materially influence a jury in their assessment of damages. In general, then, it is necessary to prove a spe- cific loss to have been sustained, by the evidence of which a jury is to be guided in assessing pecu- niary damages ; with respect to this rule, however, * i, e. In an action upon the case. f 4 Co. 16. 9. 10 the case of slander exhibits a remarkable exception many communications being deemed actionable without proof of special loss. This dispensation is grounded upon the strong presumption of loss supplied by the injurious qua- lity of the communication, and the necessity for ad- ministering a speedy remedy. The nature and force of these reasons will be best illustrated by examples. Suppose insolvency to be imputed to a merchant or banker : if he were compelled to wait until he could come prepared with proof of a specific loss sustained in conse- quence of the slander, the legal remedy would fre- quently arrive too late. The natural and probable effect of such a report, is- immediate, and increasing prejudice, the slander itself affording a violent presumption that damage either has or will accrue to the object of it; the hardship would therefore be great, were he to be excluded from the courts by the difficulty, peculiar to his case, of providing the precise measure of legal evidence, until the evil had become inveterate, and his affairs irretrievable. So in the remarkable case where an imputation is thrown upon the plaintiff likely to induce his an- cestor to disinherit him ; no loss can in such case actually arise, until by the death of the ancestor the disinherison shall have become complete ; but, were the plaintiff* compelled to wait till then, it would fre- quently be impossible to apply a remedy ; the inter- mediate death of the wrong-doer, or his inability to make compensation, might leave the injured party without legal resource. By dispensing with the usual strictness of proof, and, considering imputations 11 which afford strong presumptive evidence of damage, as sufficient grounds of action, the evils of the nature alluded to are avoided, and by an early refutation of the calumny the ultimate effects of it averted ; and though the defendant in such an action cannot be looked upon as an object of indulgence, yet the interests of all parties seem better consulted by al- lowing cognizance of the matter at an early stage, when a slight reparation may arrest the progress of the mischief, and restore the injured party to his right, than by waiting till the damage shall have be- come more serious, and the remedy more difficult and uncertain. The jurisdiction or courts of law, in actions for slander, has for its immediate object the enforcing a compensation in damages for a loss sustained ; but this necessarily includes a collateral means of relief, in many instances more efficacious than the principal remedy claimed, since an opportunity is afforded to the party of openly rebutting the calumny, by chal- lenging investigation in the face of the country, — a matter frequently of more serious importance than the recovery of damages, and an advantage which could not be so well obtained by other means ; and though, as already observed, this mode of relief be but incidental to the main end, yet its evident con- venience furnishes a strong reason for relaxing- somewhat of usual strictness for the sake of extend ing it. The consideration of the plaintiffs loss, there- fore, affords two subjects for inquiry : 1st, In what cases and upon what grounds does the law presume a loss to the plaintiff from the siander ? m 2dly, Where a specific loss must be proved, how must such specific loss be connected with the slander ? 1st, In what cases and upon what grounds does the law presume a loss to the plaintiff from the slander ? The general distinction of law as to the necessity of showing special damage in such cases is, that " where the natural consequence of the words is a damage ; as if they import a charge of having been guilty of a crime, or of having a contagious distem- per, or if they are prejudicial to a person in an office, or to a person of a profession or trade, they are in themselves actionable ; in other cases, the party who brings an action for words, must show the damage which he has received from them."* From the books, it appears, that actions have been maintained without proof of special damage in the following cases. Where a person is charged with the commission of a crime. Where an infectious disorder is imputed. Where the imputation affects him in his office, profession, or business. Where the matter charged tends to the party's disinherison, or affects his title to land. Where the slander is propagated by printing, writing, or signs. In cases of scandalum magnatum. It will be considered, under each of these divi- sions, by what rules the extent of the action in each * 6 Bac. Ab. 205. 13j case is limited, and the reasons upon which they are founded. 1st, Where a person is charged with the commis- sion of a crime. Here it may be considered, 1st, What must be the nature of the offence im- puted. 2dly, In what manner and terms it must be im- puted. 1st, What must be the nature of the offence im- imputed. The action for scandalous words, though of high antiquity, was formerly so little resorted to, that between the first and fifth years of the reign of Ed- ward the third, not more than three instances oc- curred.* From the commencement however of the reign of Elizabeth, such actions, especially for words con- taining an imputation of crime, began to multiply w r ith great rapidity, a circumstance chiefly attri- butable to the increasing encouragement which they met with in our courts. No settled rule ascertain- ing their limits, seems however to have been esta- blished at any early period, and the host of conflict- ing decisions to be met with in the books, exhibit convincing marks of the precarious and fluctuating principles on which they were grounded. A struggle between two opposite inconveniences, seems to have created this wavering in the minds of the judges. The fear of encouraging a spirit of idle and vexatiousf litigation, by affording too great a facility to this species of action, was contrasted with * According to Coke C, J. 3 Btilst. 167. t 6 Mod. 24, 14 the mischief resulting to the public peace from re- fusing legal redress to the party whose reputation had been slandered, every day's experience teach- ing, that the remedy, denied by our courts, would most surely be sought after by acts of personal violence. Accordingly it appears, that as the former or latter of these considerations preponderated, a more rigid or relaxed rule of decision was adopted by the judges.*(l) In Edward's case,f the defendant had charged the plaintiff with having attempted to burn the defendant's house ; and the court were of opinion, that the charge was actionable, assigning, generally, as the reason, that "by such speech the plaintiff's good name is impaired." In Stanhope v. Blithe the words were — "M. Stanhope hath but one manor, and that he hath gotten by swearing and forswearing ;" and Wray, C. J. said, "that though slanders and false imputa- tions are to be suppressed, because many times a verbis ad verbera perventwn est ;" yet he said, "that the judges had resolved, that actions for scan- dals should not be maintained by any strained * Out of 200 successive cases, taken at random in Coke's Reports of cases in the reign of Elizabeth, 15 consist of actions for words, — a proportion some- what greater than that of one in fourteen. If, upon the average, it be supposed that each individual case of the two classes occupied the same time, it will follow, that one day out of every fourteen, must have been devoted by the eourt to this unprofitable species of discussion. tCro. Eliz. 6. | 4 Co. 15. (1) " Generally speaking, indeed, actions of slander, founded on trifling causes, to gratify a petulant and quarrelsome disposition, will not be encouraged by the Court : but when the reputation, trade, or profession of a Citizen is really affected, for the sake of doing justice to the dearest interests of indi- viduals, as well as for the sake of preserving public order and tranquillity, every appeal to the tribunals of our Country ought to be encouraged." Per Shipper Prat, 2 Dall. Rep. 60. id construction or argument, nor any favour given to support them ; forasmuch as in these days they more abound than in times past, and the intemperance and malice of men increase, et malatiis hominum est obviandum : and in our books actiones pro scanda- lis stmt rarissimce; and such as are brought are for words of eminent slanders and of great import." In Smale v. Hammon,* the words were, "thou wert forsworn, and I can prove it." Upon motion in arrest of judgment, Williams, J. said, "this rule is to be observed as touching words, which are actionable ; that is to say, where the words spoken do tend to the infamy, discredit, or disgrace of the party, there the ivords shall be actionable" Jlnd the ride was affirmed by the court. Yet so little was this rule regarded, that in the very next case which occurred, where the words were,f " thou wert in jail for robbing such an one on the highway," the court differed in opinion ; and Fenner, J. held, that if one saith of another, "thou art as very a thief as any in Warwick jail," none being then in prison, the words would not be actionable, but otherwise had a felon been there at the time. In Sir Harbert Crofts v. Brown, \ the words were, "Sir H. C. keepeth men to rob me." And upon giving judgment for the defendant, Coke, C. J. said, "We will not give more favour unto actions on the case for words, than of necessity we ought to do, where the words are not apparently scandalous, these actions being now too frequent." In the early part of the reign of queen Anne. " f i Bulst. 40. t Bulst. -10, • 3 Bulst. 167. \ 16 Chief Justice Holt* observed, that "it waa not worth while to be learned on the subject, but when- ever any words tended to take away a man's reputa- tion, he would encourage actions for them, because so doing would much contribute to the preservation of the peace." And in another reportf of the same case, he is stated to have said, " I remember a story, told by Mr. Justice Tvvisdon, of a man that had brought an action for scandalous words spoken of him ; and upon a motion made in arrest of judgment the judgment was arrested, and the plaintiff being in the court at the time, said, that if he had thought he should not have recovered, he would have cut the defendant's throat." Yet the same learned judge, in a case:}: somewhat subsequent to the former, is reported to have said, that " to make words actionable in themselves, it is necessary to charge some scandalous crime by them." In the case of Ogden and Turner,§ the de- fendant said to the plaintiff, "thou art one of those that stole my Lord Shaftesbury's deer." The court held, u that words, to be of themselves actionable, without regard to the person or foreign help, must either endanger the party's life, or subject him to in- famous punishment, and that it is not sufficient that the party may be fined and imprisoned : for that, if any one be found guilty of any common trespass, he shall be fined and imprisoned, and yet, that no one will assert, that, to say one has committed a trespass will bear an action, or that at least the * Baker v. Pierce, Holt, k. 654. 6 Mod. 24. S. C. t Lord Ray. 959. " Walmeslcy v. Russel, 6 Mod. 200. 6 Mod. 104. 2Salk. 696. Holt. 40- ;7 thing charged upon the plaintiff must be scanda- lous" And in the same case it was held, that where the penalty for an offence by a statute was of a pecuniary nature, an imputation of such an offence would not be actionable, even though in default of payment the statute should direct the offender to be set in the pillory, since the setting in the pillory was only for want of money, and not the direct penalty given by the statute. In Button v. Heyward,* Fortescue Justice ob served, " It was the rule of Holt, C.J. to make words actionable whenever they sound to the disrepu- tation of the person of whom they were spoken ; and this was also Hale's and Twisden's rule, and I think it a very good rule." Such is the nature of the general rules upon which the older decisions were founded. The ground of an action for words in the absence' of specific damage, is, as has already been seen, the immediate tendency in the words themselves to pro- duce damage to the person of whom they are spoken, in which case, presumption supplies the place of actual proof. The immediate and obvious incon- veniences resulting from a charge of crime are, the party's degradation in society, and his exposure to criminal liability. In the former case the presump- tion is, that he has lost the benefit of intercourse witli society ; in the latter, that he is placed in jeopardy, and that the suspicion excited by the report, may produce a temporary deprivation of his liberty until his innocence can be made manifest. Further than the evil of a temporary privation, the presumption u 8 Mod. 2 ' S lb cannot in general be carried, since a mere false report cannot of itself affect the party's life ; and if the report be true, he is not, as will afterward be seen, entitled to an action. Cases may however occur, where the detriment may be much more serious than a temporary loss of liberty. It is very possible to suppose, for instance, that an unfortunate combination of circumstances may leave the question of guilt or innocence, in a capital case, so nicely poised in the mind of the jury, that a prejudice in- stilled by a previous report, may turn the scale against the accused, though really innocent; and this apprehension was still more formidable, when the law required a man's jury to be summoned from the Neighbourhood, a place likely to be the most strongly infected with the prejudice. The liberty of every individual, however, is considered by the law as so valuable, that the very probability of its suspension is held sufficient to enable him to assert his innocence in court, to avert the evil apprehend- ed, and to recover damages for the injury at the very earliest opportunity. Since then the grounds of action are to be found in one or both these consequences, namely, the de- gradation of the party in society, or his liability to criminal animadversion, it becomes material to as- certain, by reference to the decided cases, under what restrictions one or both of these can constitute the subject matter of such an action. First, it is to be observed, that though these two consequences cannot be completely separated, inasmuch as a greater or less degree of discredit must necessarily attach to every violation of the existing law, yet that the. party's jeopardy in a legal point of view is 19 considered by the law as the principal ground of ac- tional) This appears from the general scope and tendency of the body of cases, to be found in the books, relating to this copious subject, in which, though the discredit to the party is frequently a topic of discussion, yet the main question, for the most part, turns upon the penal consequences of the offence, and the certainty wherewith it is charged. There are, however, many instances to be found which prove that criminal liability is not always the peculiar and exclusive ground of action, and in which a remedy has been given on account of impu- tations, which, if believed and even proved, could not have subjected the plaintiff to any future penal- ty : — For instance, The defendant said, " Robert Carpenter* was in Winchester jail, and tried for his life, and would have been hanged had it not been for Leggat, for breaking open the granary of farmer A. and steal- ing his bacon." In Gainford v. Tukef the words were — " Thou wast in Launceston jail for coining !" The plain tiff replied, " If I was there, I answered it well." " Yea," said the defendant, "you were burnt in the hand for it !" * Carpenter v. Tarrant, Rep. Temp. Hard. 839. t Cro. Jac. 536. (1) The rule seems to be, that where the charge, if true, will subject the party charged to an indictment for a crime, involving moral turpitude, or subject him to an infamous punishment, then the words are, in themselves, actionable. Brooker v. Coffin, 5 Johns. Itep. 183. Shaeffer v. Kintzer, 1 Binn. 542. Ross v. M'Clurg, 5 Bun. 2i8. Andreas etax. v. Koppenheaffer, 3 Serg. and RawlCj 255. Chapman v. Gillel, 2 Conn. Rep. CI, per Could, J. Widrig v. Oyer, tl ux. 13 Johns. Rep. 124. Elliott v. JMsbury, 2 Bibb'3 Rep. 473. To charge a man with a crime committed in another state, will sustain an action, as the party charged might be demanded by the executive, as a fugitive from justice. Fan .Inhinv. IVrstfall, 14 Johns, Uep. 233. >1> In Boston v. Tatham.* The action was brought for saying that the plaintiff was a thief, and had stolen the defendant's gold. It was contended in arrest of judgment, that the words not being cer- tain as to time, they might be taken to refer to the time of Queen Elizabeth, since which there had been divers general pardons, in which case no loss could happen from the scandal. But the court said, that it is a great slander, to be once a thief; and that although a pardon may discharge of punishment, yet the scandal of the offence remains. In the above cases of Carpenter v. Tarrant, and Gainford v. Tuke (the former of which was cited by Lord Ellenborough C. J. in giving judgment in a late case,)f the words import, that the plaintiff had been acquitted in the one case, and punished in the other; neither imputation, therefore, though be- lieved, could have exposed either of the plaintiffs to future liability. In these and similar instances it is likewise to be observed, that though motions were made in arrest of judgment, the objection relied upon was, that, the words contained no direct charge of felony ; and it was not insisted upon as essential to the action, that the words must impute an offence which may expose the party to a future prosecution, though there was room in each of these cases for making the objection, had it been thought available. And in the case of Boston v. Tatham, the court ex- pressed an opinion, that even allowing that the words fixed the offence to a period, since which the lia- bility to punishment must have been discharged by a general pardon, yet that the words were action- * Cro. J. 622. Vid. Sty. 49. All. 35. 1 Vin. Ab. 415. pi. 8. t Roberts v." Camb4en, 9 Kast. Rep. 21 able since the scandal of the offence remained. And although in these cases the principal ground upon which words of this description are held actionable seems abandoned, yet the good sense of the deci- sions is obvious; for were it otherwise, the slan- derer might always secure impunity by cautiously asserting that the party slandered had already suf- fered the punishment appertaining to the imputed offence. Supposing it, however, to be perfectly true, that in some instances the presumption of prejudice to the plaintiff in society is aground of action, indepen- dent of any detriment in a criminal point of view, yet it appears clearly established, that " J\b marge ±~ upon the plaintiff however foul, will eniiiie km to *~ damages, unless it be of an offence punishable in a m temporal court of criminal jurisdiction ." {i) Thus, by a long series of cases it has been de- cided, that to say a man is " forsworn,"* or that he has taken a false oath, generally, and without re- ference to some judicial proceeding, is not action- able ; and the reason is that in the latter case a per- jury is charged, for which were the charge true, the party would be liable to be indicted and punished ; * Mo. 365. Cro. Eliz. 429. Popham, 210. Ow. 62. Cro. Eliz. 788. Cro. Eliz. 009. Cro. E. 720- Cro. Eliz. 135. 1 Vin. Ab. 404. 1 Itol. Ab. 40. Com . Dig. tit. Action on the case for defamation, 1>. 7. 6 Mod. 200. (1) In South Carolina, however, it has been decided, that to call a man anra- latto, is actionable ; because, if true, the party would be deprived of all civil rights, and would be liable to be tried under ihe negro act, without the privilege of a trial by jury. Eden v. Legare, 1 Bay's Rep. 171. Wood v. King, 1 Nott and M 'Cord's Rep. 185. Jllkinson v. Hartley, 1 M'Cord's Rep. 103. And in Ntw-York it has been said, an action will lie ior charging a party with a crime the prosecution of which has been barred by the statute of limitations. Van .hikin v. JVestfall, 14 John?. Rep. 233- in the other, a breach of morality is imputed, of which the law does not take cognizance. (1) So, to accuse another of having secreted* a will for the purpose of defrauding his relations, is not actionable ; though a person, who by such means possesses himself of the testator's property, would be regarded by society in no better light than the stealer of a horse, or the picker of a pocket. Again, where, in general, bad principles and vicious pro- pensities are imputed to the plaintiff, he is not en- titled to any compensation in damages without proof of a specific loss ; though a person known to pos- sess such principles and propensities is as likely to be despised and avoided in society as if he had ac- tually reduced them into practice. The defendant! said of the plaintiff, " He is a brabbler and a quarreller, for he gave his champion council to make a deed of gift of his goods to kill me, and then to fly out of the country ; but God preserved me." Sir E. Coke,t in his comment upon this case, says, " Upon great consideration and advisement, it was adjudged, that the words in the principal case were not actionable ; for (he adds) the purpose or intent of a man, without act, is not punishable by laiv." And t Ms rule seems in all times to have been adhered to with more consistency than is generally * 3 Salk. 327. t Eaton v. Allen, 4 Rep. 16. Cro. Eliz. 6S4. 1 4 Co. 16.pl. 10. (1) Ward v. Clark, 2 Johns. Rep. 10. Hopkins v. Beedle, Caine's Rep. 347. and the cases cited in the Reporter's i0 te. Shaffer v- Kinlztr, 1 Binn. 537. Parker v. Spangler et ux. 2 Binn. 60. IValsonv. Hampton, 2 Bibb's Rep. 312. 23 observable in decisions relating to this branch of the law, though many cases have been deemed to fall within the rule, where the words plainly imported an act done. Thus, in the very case of Eaton and Allen above cited, there was more than a mere intention to pro- cure the commission of a murder ; there was a soli- citation to commit one, which is of itself an indict- able offence. In Lewknor v. Ouchley.* The words were. " He and another, knowing that J. S., a goldsmith, did curry with him a great deal of plate, did lie in wait to rob him, and set upon him b; the high-way ; but he raising the country, they r'id fly away, and Lewknor lost his horse, and they both were driven to ride away upon one horse." It was contended in arrest of judgment, that by the plaintiff's own showing no felony was charged upon him, but no- thing more than a mere intent ; but the court were of opinion that the action well say, for that not only an intent, but a fact was charged, tor which fine and imprisonment were due. The cases are so uniform upon this point, that it would be superfluous to cite further instances to show that, for an imputation of evil inclinations or principles, no action lies ; unless, indeed, as will afterward be considered, it affect the plaintiff in some particular character, or produce special da- mage. And so general terms of abuse, expressive of evil inclinations and corrupt manners, as rogue,f rascal, scoundrel, and +he like, are not actionable, since ! hey do not impute any precise and definite offence • Cro. Car. 1-10. t 3 BY. C. 324. 1 Vin. Ab. '11 7, 24 punishable in the temporal courts.(l) So it has been said, that the word swindler is too general to support an action, but Mr. J. Aston formerly held other- wise.*^) In the case of Jones v. Herne,t C. J. Willes said, that if it was now res Integra, he should hold, that calling a man a rogue, or a woman a whore, in pub- lic company, was actionable. It seems also to be clearly established, that words imputing an offence, % merely spiritual, are not in themselves actionable : and the reason assigned for this is,§ that the party slandered may, for such words, institute a suit in the spiritual court ; and that if an action were to be entertained in the tempo- ral court, the party would be twice punished for the same words. Whatever merit this reason may possess, the rule itself seems fully established, that, where the defamation concerns matter merely spi- * 1 T. R. 753. t 2 Wils. 87. J 4 Co. 20. § Salk. 694. 12 Mod. 106. (1) Per Goddard, J. 2 Conn. Rep. 51; and Tilghman, C J. 5 Binn. 210, Caldwell v. Mhey, Hardin's Rep. 530. (2) Stevenson v. Hayden, 2 Mass. Rep. 406. In the case of Neil v. Lewi", 2 Bay's Rep. 204, the declaration contained several counts, one of which was for calling the plaintiff " a damned swindler," and there was a general verdict for the Plaintiff. Upon amotion in arrest of judgment, the court, consisting of four judges, held that "swindling was a crimen falsi, an offence which, if true, would render a man infamous ;" and refused to arrest the judgment. It is to be collected, however, from the opinion of the Court, that the words were spoken of the plaintiff as & merchant • and the word thief, laid in the third count, would support an action without any reference to special character. The law seems to be settled in South Carolina, that in slander a general verdict may be supported if any one of the counts in the declaration be good. Hogg v. Wilson, 1 Nott and M'Cord's Rep. 216. Taylor v„ Slurgineger, 2 Const. Rep. 367. So to charge a man with " embezzling goods," is not actionable, Caldwell v. Jihbey. But if swindler mean cheat, as has been held in England (1 Hen. Blackst. 531.) and in Massachusetts (2 Mass. Rep. 408.) it would seem actionable in Pen ">p'a to charge a man with swindling, ^5 ritual, and determinable in the ecclesiastical court, as imputing adultery, fornication, or heresy, it is no ground of action at common law. The power of the spiritual court is, however, con- fined to the infliction of penance pro salute ctfiimte, and does not extend* to the awarding damages or amends to the injured party. In the particular class of cases, where acts or ha- bits of incontinence have been imputed to females, doubt has been entertained, whether an action was maintainable : these, however, will be hereafter con- sidered under a more appropriate division of the sub- ject, since it seems both from actual decision and analogy, that such imputations cannot in general be considered actionable as charging a temporal crime.f In Barnabas v. Traunter.| The plaintiff declared, that he was a parishioner of S. and that the defen- dant, being vicar there, with the intent to scandalize the plaintiff, and to draw an ill opinion of him among his neighbours, and to exclude him from the church, and to deprive him of all the benefit of hearing di- vine service in the said church ; in the time of divine service, in the hearing of the parishioners, mali- ciously pronounced the plaintiff excommunicated, and further refused to celebrate divine service till the plaintiff departed out of the church ; upon which the plaintiff was compelled to go out of the church : whereas the plaintiff was not excommunicated ; by which means the plaintiff was scandalized and hin- dered of hearing divine service for a long time ; and for the clearing of this scandal and showing his * 4 Co.^0. t 1 Vin. Ab. 392. Cro. J. 323. 473. Poph. 36. 1 1 Vin. Ab. 39f! 20 innocency therein, was put to great trouble and ex- pense. And the action was held maintainable, though the plaintiff did not show that any man avoided his company, or forbore to trade or deal with him, or that he had any temporal or special loss ; for it was said, this is a great and malicious scandal, though to his soul and though spiritual.(l) Though scandal to the soul was the reason as- signed for allowing the plaintiff to recover in this instance, the case itself can scarcely be considered as an exception to the general rule ; since, though a charge of excommunication supposes nothing more than a spiritual offence or contempt upon which it is grounded, an imputation of which of- fence would not be actionable, and although the de- privation of the spiritual benefits complained of can- not be considered as a temporal loss ; yet, excom- munication itself is attended with many serious tem- poral inconveniences: the object of it is excluded from the society of all Christians ; is disabled to do any act that is required to be done by one that is probus et legalis homo ; he cannot serve upon juries ; cannot be a witness in any court ; and, which is still more serious, he cannot bring an action, real or personal, to recover lands or money due to him.* He is further liable to the writf de excommunicato capiendo, by which the sheriff is directed to take Ihe offender and imprison him in the county jail, ♦Litt. 201. t Fitz. K. B. 62. (1) So to print and publish of A. "that he has been deprived of the chief ordinance of the church to which he belongs, and that too by reason of his in- ns, groundless assertions," is a libel. But the court took the distinction n slander by words, and printing or writing. Jtf'CorMe v. Boms, 5 Kinn- >T till he is reconciled to the church. On the ground of these temporal deprivations under which a per- son excommunicated labours, the above case may perhaps be considered as authority, consistently with the general rule. The rule itself is liable to so little doubt that it would be losing time to cite cases in support of it, otherwise than by way of general reference,* — one instance may suffice. The defendant! said that the plaintiff " had two bastards, and should have kept them;" by reason of which, words and discord arose between the plaintiff and his wife, and they were likely to have been divorced. After verdict it was moved, in arrest of judgment, that these words were not actionable, because he doth not show any temporal loss, as loss of marriage, or the like ; but this imagination to be divorced is not to any purpose, and it is but a cause- less fear; and of that opinion was all the court. But where the words impute an offence for which, / Though of spiritual cognizance, the plaintiff is lia- / ble to punishment in a temporal court, they are ac- • tionable. So that to impute incontinency to a female in I London is actionable, because by the custom of the ' city she is liable to be carted for her offence. |(1) * 1 Vin. Ab. 392. t Cr. J. 473. t 12 Mod. 106. Holt. R. 40. 1 Vin. Ab. 395. (1) So, in Connecticut, words imputing to a woman,whether married or single, a violation of chastity, are in themselves actionable ; the breach of chastity in every form — from adultery to mere lascivious carriage — being punishable by statute. Frisbie v. Foivler, 2 Conn. Rep. 707. In Nctv-Jersey, to charge a woman with having committed fornication is actionable ; but the reason as- signed is, " that having no ecclesiastical court to punish the offence of spiritual defamation, an action will lie," Smith v. Minor, 1 Coxe's Rep. 16. Lascivious 2$ So the calling a woman, living in the borough of Southwark, " whore," is actionable,* because she is liable to public carting by prescription. So, to say that a man is the father of a bastard, is not actionable, unless it be alleged of a bastard likely to become chargeable to the parish, for other- wise he is not liable to the penalties of the statute! of Elizabeth. So to accuse another of fornication was held ac- tionable, whilst the statute making it a temporal offence was in force. t Although the action itself is limited to cases where the offence charged is defined by law, yet, as has been shown, the placing the party in jeopardy is not the exclusive ground of action. It may be asked then, since the loss in some cases consists solely in the prejudice to the plaintiff's character in society, without any regard to his being endangered in law, how happens it that the ex- tent of the action is confined by the former of these circumstances, and is not coextensive with the latter ? The answer seems to be, that though the presumption of prejudice to the plaintiff's charac- * Keb. 418. Sid. 97. 1 Vin. Ab. 395. t Salter v. Brown, 1 Vin. Ab. 397. Cro. Car. 436. J 2 Sid. 21. cohabitation is also indictable in Massachusetts, Resp. v. Calef, 10 Mass. Rep. 153. But in New-York, to say of a woman "that she is a common prostitute," is not actionable, although such persons are punishable as disorderly persons by statute. Brooker v. Coffin, 5 Johns. Rep. 188. Nor to charge a married woman with adultery. Buys v. Gillespie, 2 Johns. Rep. 115. Adultery and fornication are punishable by statute in Pennsylvania. Purdon's Digest, 238, consequently words charging a person with the commission of those crimes, would be actionable. Brown v. Lamberton, 2 Binn. 34, See also, 3 Serg. and Rawle, 261. In Kentucky it has been decided that to charge a female with want of chastity, is not actionable. Elliot v. Ailsbery, 2 Bibb's Rep. 473. So also in South Carolina, Shecutt v. M'Dowel, Const. Rep. Tread. Ed. 35. Fo- bert W. et u.v. v. E. L. 1 Nott and M'Oord's Rep. 205. 29 ter in society is frequently the most serious ground of complaint, yet that such prejudice does not in itself furnish a rule sufficiently clear to determine the extent of the action. Whence it becomes necessary to adopt some other boundary, which, though not exactly commensurate with the injury to be remedied, may, from the greater certainty and facility with which it can be applied, conduce in the main to the public good. To say that a man is a bad father, husband, or son, that he is a drunkard or liar, or to charge him with want of veracity in a single instance, must, if the imputation be believed, induce a worse opi- nion to be entertained of him ; and therefore be con- sidered as a real detriment to an innocent party. If then discredit alone were to be adopted as the criterion, the action would extend to every degree of discredit ; a rule highly inexpedient, both on ac- count of the endless litigation which it would pro- duce, and of the other incident mischiefs which have been already touched upon ; but if it be ad- mitted, upon the principle of expediency, that some limitation be necessary, perhaps none could be adopted more convenient than the one recog- nised by the law, which confines the action to im- putations of offences punishable in the temporal courts. The rule itself has the advantage of clear- ness and certainty in its operation, and is coex* tensive with our criminal code ; and it is to be remembered, that where imputations do not fall within its scope, yet any specific damage accruing to the party in consequence of them, will entitle him to a remedv. 30 The action then is confined to cases where an offence is charged punishable in the temporal courts, it is next to be considered whether the action extends to all, or to what portion of these. There may be some impropriety in supposing, that a violation of any existing law is not in some degree discreditable ; for although the long cata- logue of crimes, defined in our penal code, exhibits guilt in an almost infinite variety of shades ; yet still the most trivial offender cannot in strictness be deemed wholly exempt from blame. In many instances, however, the discredit attach- ing to the commission of the offence charged, is so minute, that it can scarcely be considered as the ground of action : The defendant said, " thou hast harboured and received thy son into thy house, knowing before, that he was a seminary priest."* It was held, that the words were scandalous and actionable, the of- fence having been made felony by statute.! Yet it- can hardly be presumed, that in this case the impu- tation could seriously injure the father's character in society, and consequently the remedy was given because the words endangered him in law. Though much has been said upon the distinction between mala prohibita and mala in se, the solidity of the distinction has been denied by great autho- rities. As far as regards moral action, there seems to be little difference between these two species of evil. To take away the life or property of another, is termed malum in se, because the allowing such things is inconsistent with the public good : it is an evil, because it produces misery, and because * Smith v. Flynt, Cro. J. 300. f '27 Eliz. c. 2. 31 this is sell-evident, it is termed malum in se. Coin- ing and larceny are both prohibited upon the same grounds, because each is inconsistent with the well- being of society : the only reason for terming the one malum prohibitum, and the other malum in se, is, that the latter is evidently detrimental and per- nicious ; the former is found to be so from expe- rience ; but the moral culpability in each case is in exact proportion to the mischief which the offence is known to occasion, and has no reference to the mode in which the extent of the mischief is ascer- tain ed It would, however, be refining too far to suppose, that men in general inquire very critically into the nature of moral guilt ; and it must be owned, that it would be impossible to persuade the mass of mankind, that a man, whose parental feelings had urged him to supply his son with a place of refuge, was no bet- ter a member of the community than a highwayman or a house-breaker. The books abound with cases which prove, that a charge of treason, or any species of felony, whether it existed at Common Law or was so con- stituted by statute, has always been considered as actionable : to these may be added that of perjury, which in its very nature tends to destroy the plain- tiffs credit in society ; the courts have, however, gone beyond this, and imputations of many other misdemeanors have given rise to a numerous class of decisions. In Stone v. Smalcombe,* the defendant having been arrested under a warrant made upon a latitat. * On. J. 648 32 said, " this is a counterfeit warrant, made by Mr. Stone" (the plaintiff;) and though it was alleged for the defendant in arrest of judgment, that forging a warrant was not a forging within the statute of Elizabeth, the court held, that the words were ac- tionable^ 1) So in many cases the charging a mere solicita- tion or attempt to commit a felony has been held actionable. In Lady Cockaine's case,* the words were — " my Lady Cockaine did offer two shillings to a woman with child to get her a drink to kill her child, because it was gotten by J. S. Sir Thomas Cockaine's butler."(2) And it was moved, that an action did not lie for the words ; but it was adjudged for the plaintiff, for by them it was said, the lady's credit is impaired ; and, if true, there was cause to bind her to her good behaviour, although it was not said, that she did give money, or that any hurt was done. So in Tibbott v. Haynes,f the defendant said, " Tibbott, and one Gough, agreed to have hired a man to kill me, and that Gough should show me to the hired man to kill me." Upon motion in ar- rest of judgment, J. Gawdy was of opinion, that the words were not actionable, because it was not alleged that any act was done by the plaintiff, nor * Cro. Eliz. 49. t Ibid. 191. (1) It has been decided in South Carolina, that to call a man " a counter- feiter," is actionable. Howard v. Stevenson, 2 Rep. Const. C So. Carol. 408. See Jarvisv. Hathaway, 3 Johns. Rep. 180. (2) So where the words were," there was collusion between William Johnston, *1aron Hackney, Levi Arnold, and Peter Rambo, to make John Bowman swear a false oath io a suit before Peter Rambo, between Bowman and Hackney and .frnold. 1 ' Johnetmi v. Tart, 6 BilM. 121. 33 any thing put in ure by him, but only a communi- cation between him and Gough ; and that it would have been otherwise had the defendant said, " he hired a man to kill me." But Wray and Fenner, justices, were of a different opinion, and judgment was given for the plaintiff. In Cardinal's* case, the words were, " if I had consented to Mr. Cardinal, J. H. had not been alive." — And the plaintiff had judgment. In the case of Eaton v. Allenf above cited, the words were, "he is a brabbler and a quarreller, for he gave his champion council to make a deed of gift of his goods to kill me, and then to fly out of the country, but God pre- served me :" and though the former cases were cited, judgment was arrested, and the reason given in the report in Croke is, " that the first words, ' he is a brabbler, &c.' are not actionable ; and that the latter words, commencing with l Jor,' did not con- tain any express affirmation." But Lord Coke observes, "that it was adjudged in this case upon great consideration and advisement, that the words were not actionable because the purpose and intent of a man without act is not punishable by law ;" this reason is, however, defective, since the solicitation is in itself an act ; and this case was overruled in the subsequent one of Lewknor v. Crutchley.i The defendant there charged the plaintiff with having " set upon a goldsmith in the highway with intent to rob him." It was contended in arrest of judgment, that no felony was charged, but a mere misdemeanor ; and the case of Eaton v. Allen was i Co. 16. 1 4 Co. 1C. Cro. Eliz. 634. \ Cr«. Car. 140. 34 cited ; but the court delivered their opinions seriatim, that the action lay, and said, "that although the de- fendant charged him with an act that is not felony, vet he chargeth him not only with the intention, but with a fact, which is as near to felony as may be, and with such an offence as is more than intent only, and more than riot, and for which fine and imprisonment are due." And Jones, J. cited Wicks's case, where the defendant said, " nine persons set upon me to have robbed me, and you (Wicks) was one of them :" and it was adjudged that the action lay. If any distinction can be made between the two last cases,* it consists in this; that in the former there was a solicitation only to commit felony ; in the latter there was an overt act exercised in pursu- ance of a felonious intention. Such a distinction is at all events now no longer available, since it is clear that a solicitation to commit felony constitutes a mis- demeanor.! So where the charge is of a misdemeanor not at all connected with felony. During an election of members; to serve in par- liament, the defendant, holding up money in his hand, said of the plaintiff, who was a candidate, " these guineas are Mr. Bendish's (the plaintiff's) money, and were given me to vote for him ; he has bought my vote, and he shall have it." It was contended, in arrest of judgment, that no words are actionable unless they subject the plaintiff to a temporal pun- ishment, and that nothing had been said that could subject the plaintiff to an indictment on the statute ; * i. c. Eaton v. Allen, and Lewknor v. Crutchley. 1 '2 East, 6. * Bendisfa v. Lindsay, 11 Mod. 194 DO but Holt, C. J. was clearly of opinion, that the ac- tion lay, and judgment was given for the plaint ill'. It is to be remarked, that bribery was an offence at Common Law,* and punishable by indictment or in- formational) Where a commission had been awarded f out of chancery, to the plaintiff and three others, with the assent of the parties to a suit, to examine witnesses, and to hear and determine, the defendant, who was one of the parties (said of the Plaintiff,) " Sir George Moor is a corrupt man, and hath taken bribes of Richard King (the other party to the suit :") And likewise further said, " Richard King hath set Sir George Moor on horseback, with his bribes, to pervert justice and equity." Upon motion in arrest of judgment, the court said, " that the plaintiff having the King's commission to execute, if he take bribes to execute it, it is a breach of the trust reposed in him, and is so great an offence, that he may be indicted and fined at the common law ;" and the plaintiff had judgment. To charge a person with having given a sum of money to the commissioners to be made purser of a man of war, was held actionable ; such an offence being a corruption of a public trust, and a crime * Burr. 1335. 1359. f Sir Geo. Moor v. Foster, Cro. J. 65. (1) In Massachusetts, where the law inflicts a penalty upon him who puts in two votes for any officer at an election, it would seem to be actionable to say to a person that he had done so ; and it would be clearly libellous and action- able, to write of him that he had put in two votes. JValkerv. Winn 8 Mass. Rep, 246. So, in the same state, as it is incident to the office of Town Clerk to receive and count the votes given in for a Moderator of a town-meeting, it is actionable to charge, while acting in his said office, with fraudulently, privately, and corruptly destroying a vote legally deposited by a voter for such moderator, Dodds v. Henry, 9 Mass. Rep. 262, m both in the commissioners and the person tempting them, and the words therefore actionable, as im- puting a criminal charge.* (1) In the case of Sir William Russel v. Ligon,f it was adjudged and agreed, that an action lies for charging the plaintiff with being the author of a libel, though the making a libel is not an offence which concerns life or member, but punishable only by line and by imprisonment in the Star Chamber, or upon an indictment at Common Law. In the principal case, it seems, however, to have been averred in the declaration, that the plaintiff was a Justice of the peace. (2) So to say, a person keeps a bawdy-house is ac- tionable, because the offence is indictable ;(3) and though it has been held, that such words are not actionable, the reason on which the judgment was given is bad, since it was assumed, i that the offence was not indictable at Common Law. So, to accuse a person of subornation of per- jury.§(l) So the charging another with receiving goods, knowing them to be stolen, was actionable, whilst the offence remained a mere misdemeanor, and * Purdy v. Stacey, Burr. 2698. t 1 Vin. Ab. 423. pi. 27. 1 Com. Dig tit. Action on the case for defamation, 8, 9. 1 Roll. Ab. 46. J Cro. Eliz. 643. sed vid. 1 Roll. 44. 1 Buls. 138. § Cro. J. 158, (1) See Lindsay v. Smith, 7 Johns. Rep. 360. Chipman v. Cook, 2 Tyl. Rep. 456. (2) Andreas v. Koppenheafer, 3 Serg. and Rawle, 255. (3) Martin v. Stilwell, 13 Johns, Rep. 275. See Nettles v. Harrison, 2- M'Cord's Rep. 230. (4) Beers v. Strong, Kirby's Rep. 12. punishable by fine and imprisonment at Common Law. For though it was held in the case of Dawes v. Bolton,* that for the words " Thou art a knave, and hast received stolen swine ; and hast received a stolen cow, and thou knowest they were stolen !" Yet the ground of decision was, that the words were to be considered in mitiori sensu ; and that it might be, that the defendant meant that the plaintiff had received them as bailiff or lord of a manor, who had liberty to have waif's and felon's goods ; ari8 it seems to have been allowed, that, had a guilty knowledge been intended, the words would have been actionable. In Cox v. Humphreys,! the de- fendant said, " Thy boy (the plaintiff's son) hath cut my purse, and thou hast received it, knowing it ; and hast the rings and money that were there in thy hand !" And it was held, that the words were not actionable, because it did not appear that a fe- lonious taking was meant. And it seems that to charge a brewer with selling unwholesome beer is actionable, since the selling such beer is an indictable offence.%{\) In Sir Lionel Walden v. Mitchell, § the defendant said, that the plaintiff went to mass, and the words were held actionable ; since by the statute 27 Eliz. c. 4. the offender was liable to forfeit 100/., and to be imprisoned for a year. So, whilst the statutes against witchcraft were in * Cro. Eliz. 88S. » t Cro. Eliz, 889. 1 Vin. Ab. 477. Free. 25. 6 Bac. Ab. 210. § 2 Vent. 265. (1) But it is not actionable to charge a person with offering unwholesome provisions for sale without also charging that he knew them to be unwholesome, unless special damage be shown, Hemmemcay v. Woods, l Pick. Rep. 524. force, it was held, that to say " thou art a witch and a sorcerer," was actionable :* And Gawdy J. said, " If he bewitches men so as they die, it is felony : if he uses witchcraft in any other way, he shall stand in the pillory ; so that it is a slander in every respect, and a good cause of action." In Mayne v. Digle,f it is laid down, that an action lies for any words which import the charge of a crime for which a person may be indicted. From these instances cited, and a number of si- milar ones to be met with in the reporters, it seems difficult to find any other limit for the extent of the action than that laid down in the last case ; and though there are dicta and decisions to the contrary, both may, perhaps, be considered as borne down by the current of the authorities cited, and others, in which words have been considered actionable, as charging an indictable offence. Thus it has been held, that no action lies for pub- lishing of the plaintiff, that he is a regrator ;+ and the reason given is, because the offence of regra- ting is not punishable by loss of life or limb ; but this decision cannot be considered as law, since it is contradictory to all the cases last cited. So it has been held, that for the words " Thou art a common barretor,§ and I will indict thee for it at the next assizes," no action lies. But for the words, " Thou maintainest such a suit," it was said by Popham C. J.,|| that an action had been held maintainable upon good deliberation, in the case of Sir H. Portman v. Stowell ; mainte- nance being unlawful and odious. * Cro. Eliz. 571. Rogers v. Gravat. t Free, 46, X Scoble v. Lee, 2 Show. 32. § Cro. Eliz, 171, Yel. 90. II 1 Vin. Ab. 424. pi. 34. Mq. 428. 39 In Ogden v. Turner,* as already observed, it was expressly held by Holt C. J. that to render words actionable it is not sufficient that the party may be fined and imprisoned for the offence. For that if any one be found guilty of a common tres- pass, he shall be fined and imprisoned ; yet that no one would assert, that to say one has committed a trespass, will bear an action. This dictum, how- ever, was materially contradicted by what fell from Ld. C. J. De Gray, in giving judgment in the case of Onslow v. Horne.f In that case he observed, " As* far as I can collect, for determinations, in ac- tions for words, there seem to be two general rules whereby courts of justice have governed them- selves, in order to determine words spoken of an- other to be actionable. The first rule is, that the words must contain an express imputation of some crime liable to punishment — some capital offence or other infamous crime or misdemeanor ; and the charge upon the person spoken of must be pre- cise. In the case of Ogden and Turner, the words are, 'Thou art one of those that stole my Lord Shaftesbury's deer !' and were not held actionable ; for though imprisonment be the punishment in those cases, yet per Holt C.J. "It is not a scandalous punishment ; a man may be fined and imprisoned in trespass ; for, says he, there must not only be imprisonment but an infamous punishment. I think Lord Holt carries it too far, as to precision ; for it is laid down in Finch's Law,* "If a man ma- liciously utters any false slander, to the endangering one in law, as to say, « He hath reported that money • -*lk. 696. Holt, 40. t 3 Wils. 177. % 1S5, 40 is fallen,' for he shall be punished for such report." Here is the case of a crime, and the punishment not infamous ; and yet Finch seems to say, that an action lies for these words."(l) In Holt v. Scholefield,* Mr. J. Lawrence ob- served, with regard to the case in Bulstrode,f " I think Mr. Justice Williams goes too far in saying, that words that tend to the infamy, discredit, or dis- grace, of the party, are actionable. The most correct rule is laid down in Onslow v. Home. The words must contain an express im- putation of some crime liable to punishment, some capital offence, or other infamous crime or misde- meanor. There is also a case in Siderfin,t which is in direct contradiction to the case in Bulstrode."(2) In many of the cases where charges of crime have been held actionable, it is observable that stress has been laid upon the terms scandalous and infamous •, used as descriptive either of the crime charged or the punishment appertaining to it. Al- though this affords some reason to infer, that the actionable quality does not extend to all charges of *6T. R. 691. t 1 Buls. 40. % 1 Sid. 48. (1) The supreme court of Pennsylvania have recognised distinctly the rule ag laid down in Brooker v. Coffin, (5 Johns. Rep. 183,) " that the charge, if true, must subject the party to an indictment for a crime involving moral y J. " There can be no question but at this day these words are actionable. In former times, words were construed in mitiori sensu, to avoid vexatious ac- tions, which were then too frequent ; but now dis- tinguenda sunt tempora : and we ought to expound words according to their general signification, to prevent scandals, which are at present too frequent. We are to understand words in the same sense as the hearers understood them ; but when words stand indifferent, and are equally liable to two distinct in- terpretations, we ought to construe them in mitiori sensu; but we will never make any exposition against the plain natural import of the words." "The word killing signifies a voluntary and unlawful killing, and is actionable. There are a great number of odd eases in the books ;" And by Eyre J. " The words are to be taken in their ivorse sense, for a malicious and felonious killing." And by Fortescue J. " The maxim for expounding words in mitiori sensu, has for a great while been exploded, near 50 or 60 years." It was observed by Lord Mansfield in the King v. Home,* " It is the duty of the jury to construe plain words and clear allusions, to matters of uni- versal notoriet) r , according to their obvious mean- ing, and as every body else who reads must under- stand them : but the defendant may give evidence to show they were used on the occasion in question in a different or qualified sense. If no such evidence is given, the natural interpretation of the words, and * 1 Cowp. 672. 53 the obvious meaning to every man's understanding must prevail. " If courts of justice were bound by law to study for any one possible or supposable case, or sense, in which the words used might be innocent, such a sin- gularity of understanding might screen an offender from punishment, but it could not recall the words, or remedy the injury. It would be strange to say, and more so to give out as the law of the land, that a man may be allowed to defame in one sense, and defend himself in another ; such a doctrine would indeed be pregnant with the nimia subtilitas which my Lord Coke so justly reprobates." In the case of Peake and Oldham,* Lord Mans- field said, " After verdict, shall the court be guess- ing and inventing a mode in which it might be bare- ly possible for these words to have been spoken by the defendant, without meaning to charge the plain- tiff with being guilty of murder ? Certainly not ! Where it is clear that words are defectively laid, a verdict will not cure them ; but where, from their general import, they appear to have been spoken with a view to defame the party, the court ought not to be industrious in putting a construction upon them different from what they bear in the common acceptation and meaning of them. I am furnished with a case, founded in strong sense and reason, in support of this opinion. The name of it is Ward v. Reynolds, Pasch. 12 Ann. B. R. and it is as fol- lows : — The defendant said to the plaintiff, ' I know you very well ! How did your husband die V The plaintiff answered, * As you may, if it please God f .' T Oowp. 277, 64 The defendant replied, < No ; he died of a wound you gave him !' On not guilty, there was a verdict for the plaintiff; and on a motion in arrest of judg- ment, the court held the words were actionable, because, from the whole frame of them, they were spoken by way of imputation ; and Lord C. J. Parker said, * It is very odd, that after a verdict, a court of justice should be trying whether there may not be a possible case in which words spoken by way of scandal might not be innocently said ; where- as, if that were in truth the case, the defendant might have demurred, or the verdict would, have been otherwise.' So here, if shown to be innocently spoken, the jury might have found a verdict for the defendant ; but they have put a contrary construc- tion upon the words as laid, and have found that the defendant meant a charge of murder." In the King v. Watson and others.* Mr. Justice Buller observed, " Upon occasions of this sort, I have never adopted any other rule than that fre- quently stated by Lord Mansfield to juries, desiring them to read the paper stated to be a libel, as men of common understanding, and say, whether, in their minds, it conveys the sense imputed." In Woolnoth v. Meadows,! it was observed by Le Blanc J. " That (after a verdict for the plaintiff) it is not sufficient to show, by argument, that the words will admit some other meaning ; but the court must understand them as all mankind would under- stand them : and we cannot understand them differ- ently in court from what they would do out of court. In Roberts v. Cambden,| which was an action for * 2 T. R. 206. 1 5 East, 463. t East 96, ■)0 a words alleged by the plaintiff to contain an iniputu tion of perjury. After a verdict for the plaintiff, on a motion in arrest of judgment, on the ground that the words did not impute the crime with sufficient certainty, Lord Ellenborough C. J. in delivering judgment, observed, " The question simply is — Whether the words amount to such a charge ? that is, whether they are calculated to convey to the mind of an ordinary hearer an imputation on the plaintiff of the crime of perjury. The rule which at one time prevailed, that the words are to be un- derstood in mitiori sensn, has been long ago super- seded ; and words are now construed by courts, as they always ought to have been, in the plain and popular sense in which the rest of the world natu- rally understand them." And in concluding, the same learned Judge observed, that, " without ad- verting to the long bead-roll of conflicting cases which have been cited on both sides in the course of this argument, it is sufficient to say, that these words, fairly and naturally construed, appear to us to have been meant, and to be calculated to convey the imputation of perjury actually committed by the person of whom they are spoken ; and that, there- fore, the rule for arresting the judgment must be discharged." From these cases, containing the opinions of some of the most enlightened Judges of their own or any times, it may be collected — 1st. That where words are capable of two con- structions, in what sense they were meant is a matter of fact to be decided by the jury. (I) (1) M'Kinley v. Rob, 20 Johns. Rep. 356. Dexter v. Tuber, 12 Johns. Rep. 240. The King v. Buiddt, 4 Bam. and AM. 314. See Van Vevhlen v. Hcrp* kins, 5 Johns. Rep. 21 1 . 5£> idly. That they are to be guided in forming their opinion by the impression which the words or signs used were calculated to make on the minds of those who heard or saw them, as collected from the whole of the circumstances. 3dly. That such words or signs will, after a ver- dict for the plaintiff, be considered by the courts as having been used in their worst sense. With respect to words, which on the face of them are harmless, and which derive their offensive mean- ing wholly from extrinsic circumstances, the preced- ing observations are applicable : the use of such words and signs as do in effect injure the reputation of an individual, are as much within the mischief as the most open charges : The grievance is, the loss of character ; and by what means the wrong is effected is perfectly immaterial, either as to the suf- fering of the party, or the policy of the law pro- viding him a remedy. The defendant wrote a pamphlet,* called "Advice to the Lord Keeper, by a Country Parson ;" wherein he would have him love the church as well as the Bishop of Salisbury — manage as well as Lord Haversham — be brave as another Lord ; and so gave every Lord a character, ironically ; and so it was set forth in the information, and the jury found him guilty. Upon motion in arrest of judgment, it was shown for cause, to arrest judgment, that there was no cause to charge the defendant, because he said no ill thing of any person ; and all he said was good of them. But to this it was answered, and re- solved by the court, that this was laid to be ironical ; find whether it ivas so or not, the jury were judges ; * Holt. R. 425. ->/ they iound it so. And that if this were not a crime, the defendant might, by contraries, libel any per- son. Having thus inquired what the general rules of construction are, as adopted by the courts, their ap- plication to the class of cases where crime is im- puted, and the degree of certainty and particularity requisite to render such charges actionable, will next be considered. The charge, to be actionable, must in general, as already stated, impute to the plaintiff an act of a criminal nature. There are, however, some exceptions to this rule ; as where treason is imputed ; one species of which offence consists in the compassing and imagin- ing the death of the king ; which words signify nothing more than the purposed design of the mind, and not the carrying such design into effect.* In the case of Sir John Sydenham v. Man,f the words were, " If Sir J. S. might have his will, he would kill the king !" and they were held action- able, although they referred to the will only ; since it is a great offence to have such a will. So where the party is charged with misprision of felony ;i as where the defendant said, " He knew of the murder of L. and did not reveal it till long- after it came to his knowledge ."|| In other cases it must appear, I. That some act was imputed by the defendant. II. That such act is of a criminal nature. III. That it was meant to be imputed to the PLAINTIFF. * 1 Haw. pi. C SG. 1 Cro. J. 407, I Vid. at. West. 1 . 3 Ed. 1 . <-. 9 : Yd. 154. 1 Vin. Ab. 446. 58 I. Thai some act was imputed by the defendant. The imputation of an act may be inferred, 1st. Although the terms of the communication be indirect. 2dly. Although the act imputed be, in legal strictness, impossible* 1st. Where the terms of the communication are indirect, it may be laid down as a general rule, that, wherever words are used, calculated to impress upon the minds of the hearers a suspicion of the plaintiff's having committed a criminal act, such an inference may and ought to be drawn, whatever form of expression may have been adopted. And although such forms of expression may be reduced under general heads, and examples cited under each to illustrate this rule, yet, contradictory and incon- sistent as many of the cases are, a reference to them cannot be considered as of essential importance ; the rule itself being so well established, that no case in contradiction to it can now be considered as a precedent. It may, however, be deemed proper to select a few instances of cases falling under each division. Where the terms of the communication are in- direct, the imputation of an act committed may be inferred. Where the defendant expresses a suspi- cion or opinio?!, or institutes a comparison, or delivers the words as matter of hearsay, or by way of interro- gation or answer, or exclamation, or uses disjimctive or adjective words, or speaks ironically ; or, in ge- neral, where the statement virtually includes or assumes the commission of the principal net. or Ntrong- suspicion of il 09 From words of suspicion or opinion. Yeoman said of Hext,* " For my ground in Allerton, Hext seeks my life ; and if I could find John Silver, I do not doubt hut within two days to arrest Hext for suspicion of felony." It was adjudged, that for the first part of the words, " for my ground in Al- lerton, Hext seeks my life," no action lay, for two reasons ; — 1st. because he may seek his life lawfully and upon just cause, and his land may be held of him. 2dly. Seeking of his life is too general ; and for seeking only no punishment is inflicted by ] aw . — But for the latter words, is was adjudged, that the action lay ; because for suspicion of felony he shall be imprisoned, and his life drawn in ques- tional) The defendant hearing that his father's barns were burnt, said,f " I cannot imagine who should do it but the Lord Sturton," and the words were held actionable. An action lies for publishing of the plaintiff, "1 think, or I dreamed, he committed a certain fe- lony f\ for although the words are not directly affirmative, the plaintiff may, by reason of them, be arrested upon suspicion of having committed that felony. The defendant said, " He is infected of the rob- bery and murder lately committed, and doth smell of the murder ;"|| and the plaintiff had judgment, after long deliberation and argument ; and this de- * 4 Co. 15. Poph. 210. Latch. 176. 3 Buls. 262. t Mo. 142. 1 Vin. Ab. 435.pl. 13. I Smith v. Wisdome, Cro. Eliz. 348. C Bac. Ab. 227. § 1 Vin. Ab. 43b tit See Harrison v. King, 7 Taunt. Rrp. 431. S. C. 4 Trine, 4C cision was cited and approved of in a number oi subsequent cases.* So for the words, "lam thoroughly convinced that you are guilty," &c. for "I am thoroughly con- vinced,"! is equal to a positive averment : a man only avers a thing because he is convinced of the truth of it.(l) So for the words, " If thou hadst thy rights, thou hadst been hanged for such a felony,"! an ac- tion lies. From words of comparison. The defendant said, " You are as great a rogue as J. S., who stole quilts H So for saying, " Thou art as arrant a thief as any in England,"§ an action lies. So for the words, " As sure as God governs the world, and King James this kingdom, J. N. hath committed treason."^ From . words of hearsay. As where the defen- dant said, " A womail told me that she heard one say, that Meggs, his wife, had poisoned Griffin, her first husband, in a mess of milk."** (2) And in case of words so spoken, it seems immaterial whether the speaker really heard the words or not ; unless, as will afterward be seen, at the time of repeating * 3 Bulst. 249. God. 90. Hutt. 58. Cart. 214. t Peake v. Oldham, Cowp.275 } Brownl. 3. || Upton v. Pinfold, Com. 267. § Cro. J. 687. IT Sid. 53. ** Golds. 139. Mo. 408. Cro. E 645. (1) So for the words, "my watch has been stolen in M.'s bar-room, and I have reason to believe T. took it," &c. Miller v. Miller, 8 Johns. 74. See also Bornman v. Boyer, 3 Binii. 515. So " I will venture any thing he has stolen my book," JVi/e v. Otis, 8 Mass. Rep. 122. " I have every reason to believe be burnt the barn," Logan v. Steele, 1 Bibb's Rep. 593. (2) Per Yeates, 3, 3 Binn. 518. <>1 them he aftbrd the plaintiff a cause of action against the original author.* From words of interrogation.]; As where the defendant said, " When wilt thou bring home the nine sheep thou stolest from J. N. ?"t(l) So an action lies for saying, " Did you hear that J. S. is guilty of treason ?"|| A. the wife of B. was asked by C. "Wherefore will your husband hang J. S.?"§ She answered, " For breaking our house in the night, and stealing our goods." The words were held actionable, since, notwithstanding they were spoken in answer to a question, they amount to a charge of stealing goods. The defendant published the following advertise- ment ; — "This is to request, that if any printer or other person can ascertain that James Delany, Es- quire (the plaintiff,) some years since residing at Cork, late Lieutenant in the North Lincoln Militia, was married previous to nine o'clock in the morn- ing of the 10th of August, 1799, they will give no- tice, &c, and receive the reward."f And it was left by Lord Ellenborough C. J. to the jury to say, whether the advertisement imputed a charge of bi- gamy to the plaintiff. (2) * Woolnoth v. Meadows, 5 East, 463. Oro. J. 162. 406. tFor words of interrogation in general, see Mo. 418. pi. 573. 2 Rol. Rep 165. Palm. 66. 12 Rep. 134. Cro. J. 422. Keb. 359. pi. 52. % Hunt v. Thimblethorpe, Mo. 41S. 1 Vin. Ab. 429. Earl of Northampton's case, 12 Rep. 134. § Hayward v. Naylor, 1 Rol. Abr. 50. IT Delany v. Jones, 4 Esp. R. 191. (1} Sawyer v. Eiffert, 2 Nott and M'Cord's Rep. 511. So where the words were, " What is the woman that makes a libel ?" &c. Andreas v. Koppenheafcr, 3 Serg. and Rawle, 255. "■ Why did you steal my meal ?" Edie v. Brooks, Sup. Ct. Penn. 1S14. MS. . . * „ (2) See Brown v. Croome, 2 Starkie's Rep. 297. Alkimon v. Hartley, 1 M'Cord's Rep. 203. 8i So where the words are spoken by way of excla- mation : as, " That perjured villain !"* From disjunctive ivords. It has been said that, where two charges are made disjunctively, one of which is actionable and the other not, no action lies ; as where the defendant said, " Thou hast stolen my mare, or didst consent to the stealing of her."f It was held, that the action was not main- tainable, on account of the latter words. And so where a charge was imputed in the alternative ; as where the defendant said, " Sparkham did steal a mare, or else Godwin is forsworn !" Although it was averred that Godwin never did swear any such matter, the charge was held too indirect to bear an action. In tTie case of Stirley v. Hill,t the words were, "Thy brother was whipped about Taunton Cross! for stealing sheep ; or burned in the hand or shoul- der." And the court, after verdict for the plaintiff, were of opinion that the words did not import any certain slander. These decisions, however, can scarcely be con- sidered as precedents at this day, since it is clear that a charge of felony may be completely convej*-. ed by such disjunctive imputations ; and were they not actionable, the legal consequences of slandering might in every case be easily avoided. The same objection once prevailed, where the person and not the act was stated in the disjunc- tive. The defendant said, " She had a child, and either she or somebody else made way with it !"|; Roll. Ali 7fi tCro.Eliz.7P0. J Cro. Car. 2S3. UCart.55, 56 iili And three justices against the opinion of Bridgmaii C. J. adjudged, that the words were not actionable. But in a subsequent case this decision was over- ruled ;* and upon the same principle, no doubt, it would now be held, that words imputing a criminal act in the disjunctive, are also actionable. From adjective words. Where the words impute inclination only, they are not actionable ; as to say " J. S. is a murderous villain !"f Bui where the par- ticle is used, it is otherwise ; as to say, " J. S is a murthering villain !"t The words in the former case importing an inclination only, in the latter an act done. So the words, " Dr. Sybthrop is robbing the church,"|| were held actionable ; and to say such a person is robbing such a man, or ravishing such a woman, is actionable. So, " Where is that long shag-haired, murthering rogue ?" was held actionable. § For the words, " Traitorous knave," an action has been held maintainable, though not for the words, " Rebellious knave ;" and perhaps this dis- tinction may now be considered as good law, al- though many of the nice subtleties which were for- merly in fashion are now disregarded ; since, though traitorous be a mere adjective, not implying any act, yet the circumstance of the offence frequently consisting in intention only, may well constitute this case an exception to the general rule. If It is laid down by Sir Edward Coke,** that some- times adjective words will maintain an action, and sometimes not. They are actionable. * Harrison v. Thornborough, 10 Mod. 196. j Ld. Ray. 236. Cro Car. 318. Kol. Ab. 70. § Cro. Car. 318. Jo. 326 " Cro. r.liz.17!. Lev. 90 ' • 1 Cfo. 19 64 1. When the adjective presumes an act com- mitted. 2. When they scandalize a person in his office, or function, or trade, by which he gets his living. As if a man says, " That one is a perjured knave !" there must be an act done, for otherwise he cannot be perjured. The words, " seditious and thievish knave,"* have been held not actionable. And the distinction has been frequently taken, that " thieving rogue," imports an act; "thievish rogue,"f an inclination only.(l) So for the words, " You are no thief !"f an action lies, if they be spoken ironically. (2) And next, the imputation of an act may be infer- red from a statement, which virtually includes or assumes the commission of the principal act, or a strong suspicion of it. The defendant said, "I could prove J. S. perjur- ed, if I would !"|| and the words were held actionable ; since, if true, J. S. must have committed an act of perjury. So where the defendant said, " Thou art a rogue, a runaway rogue, and didst run away from Oxford ; and thou art a rogue of record."§ The words were held actionable ; for if true, the plaintiff must have been convicted of record. The defendant said to the plaintiff, " In^f Black- bull Yard you could procure broad money for gold. i Rep. 19. Cro. .1. 65, 66. 2 Bulst. 133. Ld. Ray. 236. t Dorrel v. Grove, Fraem. 279. I 1 Vin. Ab. 430. pi. 8. I| 1 Vin. Ab. 406. pi. 2. § Sty. 220. 1 Vin. Ab. 415. fl Salk. 697. Speed v. Parry. (I) IVallon v. Singleton, 7 Sere;, and Rawlc, 449. ee what i.= soidbv Tilghman, C. T. 3 Binti. 5V, ti.> and clip it when you had so done." It was ob- jected that the words were not actionable, since they merely imputed a power, and not an act. But the court held, that the limitation to place implied an act ; for that, if a power alone had been meant to be imputed, the limitation to place would have been unnecessary — a power to do being the same at all places. So in Home v. Powell.* The defendant said, " You may well spend money at law, for you can coin money out of halfpence and farthings !" It was held, that the words were actionable, as implying an an act ; for by a mere power, the plaintiff could never be able to spend money at law. The defendant said of the plaintiff, " He was put in the round-house, for stealing ducks at Crow- land ;"f and judgment was given for the plaintiff. For though the court were at first of opinion, that they were bound by former authorities, and that if judgment were to be given for the plaintiff, many actions would arise at every assizes in the kingdom, where the common topic of conversation is, that such a man was sent to jail for such a crime ; yet, afterward, they changed their opinion, and held, that the jury having found the words falsely spoken, they clearly imported that the plaintiff had been guilty of a crime: that the objection was, that the words did not expressly allege that the plaintiff had stolen the ducks, but that words must be taken ac- cording to common parlance. And so in a number of other cases, the asserting the plaintiff to have been confined or punished % for a certain offence, * Balk. C07. t Bcavor v. Hides, 2 Wils. 3Q0. Cro. •'• 247 9 66 has been held actionable, since the imputation, at all events, throws strong suspicion upon him. So where the defendant said, "He is under a charge of prosecution for perjury ; G. W. had the Attorney General's instructions to prosecute."* It was held, that the words were actionable, as being calculated to convey the imputation of perjury. So where the defendant said of the plaintiff, " His character is infamous : he would be disgrace- ful to any society. Whoever proposed him must have intended it as an insult ; I will pursue him and hunt him from all society. If his name is enrolled in the royal academy, I will cause it to be erased, and will not leave a stone unturned to publish his shame and infamy. Delicacy forbids me from bring- ing a direct charge ; but it was a male child of nine years old who complained to me."f So where the defendant said, " I dealt not so unkindly with you, when you stole my stack of corn."t The defendant said to a husband in London, " You are a cuckoldy old rogue !"|| and the words were held actionable, since they imply, that the wife is a whore, for which, by the custom of the city, she is liable to temporal punishment. Words imputing intention only to commit crime, are not actionable of themselves, unless in the case where the intention is of a treasonable nature.§ As, if one say to another, "Thou wouldest have killed me," II no action lies. * Roberts v. Campdcn, East, 33. * Woolnotb. v. Meadows, 5 East, 463. J Cooper v. Hawkswell, 2 Mod. 58. || 1 Str. 47t. § Cro. J. 407. " Pr. Foe's case, cited by Coke and Ilaughton, 2 Buls. 206. 1 Vin. Ab. 44«* ■ ■■< So tor the words, " She would have cut hex husband's throat, and did attempt it,"* an action lies ; because an attempt, that is an act, is charged ; but in the same case it was held, that for the first words, " she w r ould have cut her husband's throat," no ac- tion could be maintained. 2dly. . Where the act charged is, in legal strict- ness, impossible. Where a criminal charge is conveyed by the de- fendant's expressions, the liability to make repara- tion cannot be affected by any impropriety in the terms of the communication, whether legal or gram- matical ; since the loss of character, and its proba- ble consequences, constitute the ground of actioii, without reference to the means emploj^ed. The contrary doctrine, indeed, at one time prevailed. It has been holden, that if a married woman say, " You have stolen my goods,"f the words are not actionable, the words being repugnant ; for since a married woman cannot have goods of her own, she cannot be robbed of any. But in Charnel's case,t which was earlier than the preceding, the wife said, " My turkeys are stolen, and Charnel hath stolen them ;" and the same ob- jection being made in arrest of judgment, the court said, " The wife did charge the plaintiff with steal- ing her turkeys ; and if a person who had no horse were to publish these words, ' J. S. hath stolen my horse,' the discredit would be as great to J. S. as if the publisher had had a horse ; for every person nvho heareth the words may not know whether he * Lane, 03. 1 Vin. Ab. 410. pi. P. ' 1 Roll. Ab, 74. 6 Bsc. Ab. 23S. . Cro. TA\7.. 270. had a horse or no." And in the subsequent case of Stamp v. White,* the defendant's wife said, " Thou art a thievish rogue, for thou hast stolen my fagots !" Although it was objected that the words were with- out meaning ; since a married woman could not have property of her own, yet it was held, that the words were actionable ; and it was to be understood accord- ing to common intendment, that the defendant charged the plaintiff with stealing her husband's fagots. So where the defendant said, "These guineas are Mr. Bendish's (the plaintiff's,) and were given me to vote for him."f It was urged, on motion in ar- rest of judgment, that the words are insensible ; for that when the plaintiff has given money to the de- fendant, it cannot be the plaintiff's money ; but judg- ment was given for the plaintiff. The older cases, indeed, carried the doctrine of repugnancy to a very unreasonable extent ; and the courts arrested judgments, not only on the ground that an actual inconsistency appeared on the face of the record, but even where no inconsistency appear- ed, because such might by possibility exist. The rule, however, seems to be now established, that no inconsistency, or want of grammatical pro- priety, will prevent the words from being actionable, where the intention to charge the plaintiff with the commission of a crime plainly appears.(l) IT. The criminal quality of the matter charged must appear with certainty. * Cro. Jac."600. 1 11 Mod. 174. (1) Cited, recognised, and the rule said to be well established, in Walton v. 8tn§kton. 69 This may appear, 1st. From the use of general terms of known legal import. 2dly. From circumstances explaining the mean- ing of terms otherwise doubtful, or innocent. 3dly. From the mere description of the circum- stances constituting the offence. 1st. From the use of terms of known legal im- port. It seems once to have been understood, that no charge was actionable, when conveyed in terms, which did not particularize the circumstances of the offence. So that to say a man was " a traitor,* or a thief," did not afford him a ground of action, un- less he had sustained special damage from the words. And to such an extent was the nicety car- ried, that even in cases where the words did state some of the circumstances, it was held to be incum- bent upon the plaintiff to prove that facts connected with the charge were partially true, in order to ren- der it the more probable that he migh have been placed in jeopardy by the accusation. And this af- fords reason to suppose that, originally, the only ground of allowing such an action, without proof of special damage, was, the danger to which the party was exposed of a criminal prosecution, to which he could scarcely have been subjected by a bare gene- ral charge, unsupported by any facts or circumstances which might give it colour. Thus, in the case of Jacob v. Mills. f It was held, that for the words, " He hath poisoned J. S. and it shall cost me 100/. but I will hang him," no " Rro. Action sur le cas. 27 H. 8. 11. t Cro. J. 331. 343. 1 Vent. 117. 70 action was maintainable, because the plaintiff' did not aver (and of course prove) that J. S. was dead at the time the words were spoken. The defendant said, " Sir Thomas Holt struck his cook on the head with a cleaver, an*l cleaved his head ; the one part lay on the one shoulder, and ano- ther part on the other." After verdict for the plain- tiff, judgment was arrested, upon the ground that it did not appear that the cook was killed. But in other cases, both prior and subsequent to the former, the same objection was overruled. In the case of Webb v. Poor,* the words were, " I will call him in question for poisoning my aunt, and I make no doubt to prove it." It was moved, in ar- rest of judgment, that the plaintiff had not averred that his aunt was poisoned ; but the court would not allow the objection, saying, that the plaintiff's credit was impeached, whether she was poisoned or not. And the same point was ruled in Talbot v. Case,f where it was said, that the death of the person al- leged to have been murdered would be intended, unless the contrary appeared. Still, however, it was held, that if it appeared that the person said to have been murdered was in fact living, no action could be maintained. The plaintiff; showed in his declaration, that the defendant had a wife yet living ; and that he said of the plaintiff, " Thou hast killed my wife ; thou art a traitor !" and it was held that no action lay ; and a distinction was taken between the ease where the person stated to have been murdered was still alive, and where he was dead ; that, the Cro. Eliz. 509. t Cro. Eliz, S?:?. " •«•*?. v. Gee, 4 Rep. 16. 9. Cro. Car. 489. 71 wife being alive, no action lies, although the defend- ant says that the plaintiff has murdered her ; since it appears that no murder of her can have been com- mitted, nor the plaintiff in any jeopardy : and so the words are vain, and no scandal or damage to the plaintiff. To require the plaintiff to prove, that the party, with whose murder he is charged, is actually dead, would be highly unreasonable and inexpedient ; since the slanderer might secure impunity by fixing either upon a fictitious person as the supposed vic- tim of the murder, or upon some real person whose death the plaintiff might not be able to prove. In the case of Snag v. Gee (cited by Sir E. Coke,* in his fourth report,) it appeared upon the record, that the wife, alleged to have been murdered, was still alive ; and the action was held not to be main- tainable, because the plaintiff was not put in jeo- pardy by the words. It cannot, however, fairly be inferred from this, that the plaintiff is in all cases precluded from recovering;, although the person alleged to have been mur- dered should be still alive ; since the plaintiff's life may have been placed in jeopardy in conse- quence of the injurious report, though, in fact, at the time of pleading, or upon the trial, the defend- ant may be able to prove the person alleged to have been murdered to be still living. The words, if ac- tionable without special damage, must be so imme- diately when spoken ; and their actionable quality must then depend upon the fact, whether the hear- ers were aware that the person alleged to be mur * 4 Ren. 16. 9 n dered was really alive ; if they did not know the fact, then all the consequences (the probability of which renders a charge of murder in any case ac- tionable) may follow ; since, unfortunately, several melancholy instances may be cited where an ac- cused person has suffered for the supposed murder of one who survived him. Should it, however, precisely appear, upon the plaintiff's own statement, that the person charged to have been murdered was alive when the words were spoken, perhaps it would be presumed that the hearers knew that fact. The plain tiff* declared that the defendant said of him, " He is a base gentleman, and had three or four children by A. S. his maid -servant ; and after killed them or caused them to be killed ; and then averred, that he never was guilty of any incontinen- cy with A. S. nor any other, nor of any such felony or murder. After verdict for the plaintiff, it was ob- jected, in arrest of judgment, that inasmuch as he had averred that he never was guilty of any inconti- nency with A. S. it was all one as if he had averred that he never had any child by A. S. and that if he had so averred, no action would lie ; for then it would appear to the court, that there was no such thing in rerum natura as is supposed to have been killed. But it was adjudged for the plaintiff; be- cause it was not specifically averred that he had no child by A. S. but only generally, that he was not incontinent with her. And the like degree of particularity has been required in other cases where felony has been charged. * 1 tin. Ab. 409. pi. 4. Popb.. 1S7. Jo. 141. Lat. 159. Cart. 55. Comb. 132. Thus, for the words, "Thou hast committed burglary in breaking his house, and taking his goods."* It was held, that no action was maintain- able ; it being uncertain, as no person was named, whose house and goods were meant. And, upon the same principle, a general charge of forgeryf was held not to be actionable, without reference to some particular deed, instrument, or other subject matter. (1) So it was held, that a general charge of subornation^ of perjury was not actionable, un- less it appeared that the perjury had been commit- ted. (j2) These doctrines have, however, been long ex- ploded ; and the rule seems to be perfectly esta- blished, that an action is maintainable for a general imputation conveyed in apt terms. The establisment of this rule necessarily defeated another nicety, which has been alluded to as for- merly countenanced by the courts, namely, that when the charge described any circumstances of the offence, it was incumbent upon the plaintiff to show the existence of such particulars as might serve to give colour to the defendant's imputation, since it would be absurd to allow a remedy against general charges where no colour could be shown, and to deny it where the imputation was equally prejudicial, because it contained particulars, which particulars the plaintiff might be equally unable to prove. * Brown v. St. John. 1 Rol. Ab. 71. 3 Leon. 231. I G Mod. 2Q0. (1) See Harrison v. King, 7 Taunt. 431. S. C. 4 Price, 46. But see ante, p 32, note (1). 12) Power v. Miller, 2 M'Cord's Rep. 220- 10 7^1 As for instance, it' for the words, " you commit- ted a murder," the plaintiff be entitled to recover, it would be highly unreasonable in an action for the words, " You murdered J. $." to require him to prove that such a person as J. S. had existed, but was dead at the time the words were spoken. It may next be proper to refer to a few cases where general words have been held actionable. An action has been held maintainable for the words traitor,* murderer,! thief,:}: sheepstealer||. (1) For charging another with felony, § perjury,^! subornation of perjury,** forgery, ft robbery 4+ (2) It was once held, that to call another a pick- pocket, mi did not amount to a charge of felony ; this decision has, however, been overruled. §§(3) Whilst the statutes against witchcraft remained in force, it seems that the term witch was not actionable, unless coupled with some act of witchcraft ; the cases, however, relating to this offence, are so in- consistent with each other, and with any settled * Dal. 17. Bro. Ac. sur Ie cas. pi. 2. 27 H. 8. 14. t Mo. 29. I Off. 47. 2 Buls. 134. |] 3 Buls. 303. § Jo. 32. Cro. Car. 27G. Poph. 210. Sty. 235. 1T Ow. 62. Noy, 61. 1 Vi'ii. Ab. 405. ** Cro. Eliz. 308. Cro. .!. 158. 1 Rol. Ab. 41. tt Jones v. Heme, 2 Wils. 87, ;J Cro. J. 247. || j| 3 Salk. 325. §§ 11 Mod. 255. (1) Fisher v. Rotereau tt nx. 2M'Cord's Rep. 189. Tracy v. Harkins, 1 Binn. 395, note. See M'JUexandcr v. Harris, 6 Muni. 465. (2) Hopkins v. Beedle, 1 Caines's Rep. 347. Green v. Long, 2 Caines, 91. Seers v. Strong, Kirby's Rep. 12. Howardx. Stevenson, 2 Rep. Const. Ct. South Carolina, 408. Shock v. JWChesney, 2 Yeates, 473. (3) So in Pennsylvania to call a man " a vagrant," (Miles v. Oldfield, 4 Yeates 423,) is actionable ; as any vagrant may be committed to jail for a term not exceeding one month, to be there kept at hard labour. Respubl. v. Hollowav. 5 Binn. 516 75 principle, as to appear incapable of affording any illustration of the subject of this treatise. To charge one with having cozened another, has in a great number of cases been held too indefinite to support an action. For instance, the defendant said, " Thou art a cozening knav r e, and hast co- zened me out of 500/."* and it was held that no ac- tion lay. So to accuse another of cheating is too general to support an action.f(l) So to say, he is a rogue, varlet, or the like, (2) is not actionable. % — So to say, "Thou art a common filcher, a companion of cut- throats," &c.|| So to say, " He is a bloodsucker, and not fit to live in the commonwealth ; and his child, not born, is bound to curse him."§ 2dly. The criminal quality of the act imputed may appear from circumstances explaining the meaning of words otherwise doubtful or innocent. In consideration of law, that is certain which can be rendered so : it is, therefore, of no importance whether the terms used be doubtful, or apparently innocent, provided it can be shown that they could * Hutt. 13. 1 Fin. Ab. 427. pi, 9. 3 Lev. 171. Cro. Eliz. 95. Ow. 47. Buls. 172. Show. 181. God. 284. Cro. J. 427. t 2 Salk. 694. X 4 Rep. 15. b. Ld. Ray. 1417. || Cro. Eliz. 554. § Noy, 64. (1) Stevenson v. Hayden, 2 Mass Rep. 40S. In Pennsylvania cheating is an indictable offence involving moral turpitude, and it would seem that to accuse a man of being a cheat, would support an action upon the same principle that calling him " a vagrant" has been held actionable. See 2 Smith's Laws of Pennsylvania, 591. Resp. v. Powell, 1 Dall. 47. See also Marshall v. Addison, 4 Uarr. and M'Hen. 537 ; the authority of which is very doubtful. 12) Caldveell v. ,qhhe% HardinV Rep. 530, 5 Rinn. 210. 2 Conn. Rep. 5. n and did convey the offensive meaning which foritis the ground of complaint. An imputation of being forsworn is the mos.t common instance of cases falling under this divi- sion, and has given rise to a numerous class of deci- sions^!) It has been held, that to accuse another of hav- ing forsworn himself, generally, is actionable ;* but it seems now perfectly settled, that the term is not actionable, unless it appear from the accompanying circumstnances to have been meant and understood of such a forswearing as would constitute the offence of perjury. f (2) Thus, to say,; " A. B. being forsworn, com- pounded the prosecution," is actionable, since an indictable forswearing must have been intended. So the term " forsworn" is actionable when refer- ence is made to a court in which false swearing would amount to perjury. || The defendant said, " Arthur Colome is a for- sworn man, and hath taken a false oath in his de- position at Tiverton, where he waged his law against me ; and the plaintiff had judgment, the forswearing ^appearing by the description to have amounted to perjury.§ * 2 Buls. 40. t 4 Rep. 15. 2 Buls. 150. Holt v. Scholefield, 6 T. R. G91. 1 Cro. Eliz. 609. 2 Rol. Rep. 410. ii Cro. Eliz. 720. 1 Vin. Ab. 40G. pi. b. 7. $ Cro. J. 204. (1) In an action for saying of another " He is perjured," it is enough to prove the words spoken, and that they refer to the Plaintiff. If it appear that they were spoken with reference to the plaintiff's giving testimony in an inferior court, it must be intended to be a court of competent jurisdiction. The oivis lies on the defendant to prove otherwise. Green v. Long;, 2 Caines's Rep. 91 ^ee ante, p. 47, n. •'•>■» Crookshanfc v Gray et v~r. 20 Johns. Rep. "■ 1 1 77 To say, " Thou wert forsworn at such a trial,** (with reference to a trial where the offence of per- jury might have been committed) is actionable. (1) Where reference is made to a particular court, the imputation is actionable, if perjury could have been committed there. In such case, however, it is incumbent on the plaintiff to show that the perjury could have been committed. (2) The defendant said, "Thou wert forsworn at Whitchurch court,"f and the words were held not to be actionable, because it did not appear that Whitchurch court was a court of record. So it was held, that no action lay for saying, " He has forsworn himself in Leake court,":}: with- out showing it to be a court which could compel the taking of an oath. It is not necessary that the forswearing should be shown to have been intended of a perjury within the statute of Elizabeth, since perjury is an offence punishable at Common Law.|j So, although Ecclesiastical Courts are not men- tioned in the statute of Elizabeth against perjury, yet an action lies for imputing a forswearing in an Ecclesiastical Court. — The defendant said, " Thou art a forsworn knave, and I will prove thee to be forsworn in the Spiritual Court ;"§ and it was held that the action well lay ; for the Ecclesiastical Court is a judicial court, and well known. (3) • Cro. Car. 37S. Lut. 1292. -fCro. Car. 378. X 1 Rol. Ab. 39. pi. 7. 6 Bac. Ab. 207. || 1 Rol. Ab. 49. § Shaw v. Thompson, Cro. Eliz. 609. (1) See Fowle v. Robbing, 12 Mass. Rep. 496. (2) See Chapman v. Smith, 13 Johns. Rep. 80. JVimi v. Munn, 13 Johns. Rep. 48. 3) So to charge a man with " perjuring 1 himself," and " being guilty of falsi 7S To say, " Thou wast forsworn before my Lord Chief Justice, in evidence,"* is actionable. So to say that another is forsworn before a Jus- tice of the Peace is actionable ;f or before such a person, naming him, provided it can be shown with certainty, that the person so named was a Justice of thePeace.(i) The defendant said, " Thou art a forsworn knave !"J The plaintiff asked, " Where ?" The de- fendant replied, " In Ilston court ;" and the words were held actionable, the court alluded to being a Court Leet, where the offence might have been committed. (2) " Thou art a forsworn man ; I will teach thee the price of an oath, and will set thee on the pil- lory ."|| And the words were held actionable, be- cause the defendant showed that he meant to im- pute a perjury, for which the plaintiff ought to stand in the pillory .(3) * 1 Leon. Rep. 127. t Gurneth v. Deny, 3 Lev. 1G6. 4 Co. 17. t Cro. Eliz. 720. || 1 Vin. Ab. 407. pi. 11. wearing," before a meeting of the members of a Church, acting as an ecclesi- astical tribunal for the administration of church discipline, has been held ac- tionable in Connecticut. Three of the judges, however, dissented; and, to the Editor, their reasons, particularly those of Edmund J. seem conclusive. Chap- man v. GiUet, 2 Conn. Rep. 40. (1) But see Stafford v. Green, 1 Johns. Rep. 505. Ward v. Clark, 2 John?. Rep. 10. It has been decided that to charge a man with perjury before Arbi- trators is actionable. Wetmore v. Lyman, 2 Conn. Rep. 42, note. (2) See Hamilton v. Dent, 1 Hayw. Rep. 116. (3) So where one said of another," You swore to a Iie,/or which you now stand indicted," the words were held actionable. Pe'ton v. Ward, 3 Caines's Rep. 73. See also Gilbert v. RodJe, 3 Bulstr. 304. So, to say to a witness, while he is giving his testimony in court, to a point material to the issue, " that is false," is aitionable, Tor when spoken maliciously, the words amount to a charge of perjury. M'Claury v. Wetmore, 6 Johns. Rep. 82. Kean v. M'LaugNfa 8 sr-ro-. and Rawle, 469. I 79 The injurious import of the term stealing, has undergone much discussion. In Baker v. Pierce.* The words were, " You stole my boxwood, and I will prove it." Upon motion in arrest of judgment, a long string of cases was cited for the defendant, in which the term steal- ing had not been considered as actionable ; as where the defendant said, " You are a thief, and stole my timber."t " You are a thief, and stole my corn, hops, and apples.":}: " You stole timber out of my yard."|| " You stole corn out of my yard."§ All of which were decided upon the ground, that unless the additional words show that a charge of felony was intended, they are to be taken in their mildest acceptation. For the plaintiff, it was contended, that, " You have stolen my timber" is actionable ; for it must be felled and severed from the stock, before it is timber, according to the distinction made in the old Hexameter — " Arbor dum crescit, lignum dum crescere nescit."1T Holt C.J. said, "The opinions of later times have been in many instances different from those of former days in relation to words ; for formerly there has been a difference taken between saying, " Thou art a thief, and hast stolen my wood ;" and, " Thou art a thief, for thou hast stolen my wood." And judgments have gone both ways; but later opinions make no difference if the words be spoken at the same time, and these are scrambling things thai * 6 Mod. 23. t Cro. J. 65. J 2 Brownl. 280. i| Cro. J. 673. All. 31. Hob. 331. Sty. 231. ; Hob. 406. * 1 Roll. Ab. 70. pi. 47 so have gone backward and forwards, and the idle people in the country, that privately cut and carry away coppice wood, are in common parlance called woodstealers." And he said, that, " Stealing, and feloniously stealing, are not the same ; for in com- mon parlance, stealing does not always import * felony ;' as, to cut and carry away furze is a steal- ing, but not a felonious stealing." But Powell J. said, he always took it, that steal- ing, ex vi termi?ii, did import felony. And after- ward, by the opinion of the >vhole court, the plain- tiff had judgment on the ground, as stated in the re- port, of all the later authorities.* (1) From this, and the later decisions upon this sub- ject, it seems, that the term stealing takes its com- plexion from the subject matter to which it is ap- plied, and will be considered as intended of a felo- nious stealing, if a felony could have been commit- ted of such subject matter. In modern construction and practice little doubt can arise upon these niceties, which appear in for- mer times, to have afforded abundant occupation to * C Mod. 23. (1) Stokes v. Stackey, 1 M'Cord's Rep. 562. In an action of slander the words charged were, " You arc a thief," " You are a damned thief." The words as proved were : " you are a thief, you stole hoop-poles and saw-logs from off Delancy's and. Judge Myers's Lands." The Judge (Fan Ness) before whom the cause wa3 tried left it to the Jury to decide, whether by the words proved the defendant meant to charge the plaintiff with taking timber or hoop-poles already cut down, in which case it would be a charge of felony ; or whether they were meant to charge the plaintiff with cutting down and carrying away timber to make hoop-poles ; in which case it would amount only to a trespass, and the words would not then be actionable, and the Jury having found a ver- dict for the defendant, the Court refused to set it aside, Spencer C J. dissent- ing. Dexter v. Taber, 12 Johns. Rep. 239. See also Tempest v. Chambers, 1 Starkie's Rep. 67. It is not actionable to say of a man, " that he stole a dog," n& a dog is not the subject of felony. Findley v. Bear, 8 Serg. and Rawle, 571. SI the courts. If, from the plaintiff's declarator} statement of his case, it appear, that the charge of stealing could not, from its application, have been meant to impute a felonious stealing : as if, for ex- ample, the defendant had said, " You stole an acre of my land;" the statement would be held bad up- on demurrer ; if it appeared upon the trial that the term had been applied in a sense not felonious, the plaintiff would be nonsuited ; and, finally, if after verdict for the plaintiff it appeared that the term as used was capable of a felonious sense, the verdict would besupported.(l) This doctrine is applicable to every other case where doubtful words, or even those apparently in- nocent, derive a criminal quality, either from con- text or collateral circumstances. The defendant said, " Thou art a clipper and shalt be hanged for it ;"* and the court, after a ver- dict for the plaintiff, said, that the words should not be taken to mean a clipping of clothes, but a clip- ping of money, for which the plaintiff might be hanged. So for the words, " Thou art a clipper and thy neck shall pay for it,"f an action was held maintain- able ; for by the subsequent words it could not be intended of any other clipping than of money. So when the statutes against witchcraft were in, * Walter v. Beaver, 3 Lev. 1GG. 2 Jo. 235. Cro. J. 255, 276. 1 lev. 155. t 3 Lev. 166. (1) Where words, otherwise actionable, were at the time by a reference to, a known transaction, they arc to be construed accordingly ; and heina; so ex- plained, they were held not to be actionable. Van Rensselaer v« Dole, I Johns. £a. 239. S. P. E\. JO. Mo. 243. § All. 35. IT 1 j a . c. 7. ** Hob. 126. Cro. Eliz. 250. Cart. 214. U!> of felons, were, thus explained, considered action- able.(l) So the words, " He is mainsworn,"* were held actionable, as published in a part of the kingdom where they were understood to convey a charge of perjury. So, generally, in regard to words spoken in a foreign language, the only question is, whether they were understood by the hearers in an action- able sense? — If so understood, the mischief is ef- fected, and the cause of action complete.! Where the words are spoken in the Welch lan- guage, but in an English county, it must appear that the hearers understood Welch ; for otherwise the court will not intend that any there understood the Welch tongue ; and then it was not any slander any more than if any one spoke slanderous words in French or Italian, in which case no action will lie, unless it be averred, that some one there under- stood those languages.^ And as doubtful or apparently innocent words may, by circumstances, be shown to be actionable ; so may words apparently actionable be explained, by circumstances, to have been intended and un- derstood in an innocent sense. Thus, though the defendant should say " Thou art a murtherer," the words would not be actionable, if the defendant could make it appear that he was conversing with the plaintiff concerning unlawful hunting, when the plaintiff confessed that he killed several hares * Hob. 126. t 1 Roll. Ab. 74. Cro. Eliz. 406. I Cro. Eliz. 865. (1) See Broicn v. Lamberton, 2 Binn. 34. with certain engines, upon which the defendant said, " Thou art a murtherer," meaning a murtherer of the hares so killed.*(l) Formerly a distinction was taken between say- ing, " Thou art a thief, for thou hast stolen such a thing," as a tree, the taking of which could not be felonious, and the saying, " Thou art a thief, and hast stolen such a thing ;" since in the former case the subsequent words show the reason of call- ing the plaintiff' a thief, and that no felonious impu- tation was meant ; but in the latter, the action lies for calling him a thief, and the addition, " thou hast stolen," is another distinct sentence by itself; and not the reason of the former speech, nor any diminution thereof, f Little stress, however, would probably be now laid upon this distinction, since, in common dis- course, and is frequently intended to mean for. And even in the construction of legal instruments, instances are not unfrequent, where the vulgar and obvious acceptation of the word has been preferred to its strict grammatical signification. % Brittridge brought an action for these words, " Mr. Brittridge is a perjured old knave, and that is to be proved by a stake parting the land of H. Martin and Mr. Wright." And upon motion in arrest of judgment, it was held, that although the words, " thou art a perjured knave," without any more, would have been actionable ; yet, that upon all the * 4 Co. 13. t Cro. J. 114. B.L.N. P. 5. Hob. Rep. 106. Cro. Eliz. 857. Hob. 77. Brownl. 2. God. b. 241. Hard. 7. AH. 31. Sty. CC. X 6 East. 486. Mo. 422. 1 Wils. 140. (1) Van Rensselaer v. Dole, 1 Johns. Ca. 379. 87 words taken together, no action lay, for the latter words extenuate the former, and explain his intent, that he did not mean any judicial perjury; and therefore it was adjudged that the words were not actionable. But it was said, that if the plaintiff's counsel had disclosed the truth of the case in the declaration, the words would have maintained the action ; for the truth of the case was, that in an ac- tion between Martin and Wright, the state of the controversy was, whether the stake stood upon the land of the one or the other, or indifferently as a boundary between their lands. And in that action the plaintiff was sworn as a witness ; and, by the pretence of the plaintiff, had perjured himself. But this special matter was not disclosed, and therefore it was decided for the defendant.* Sir Edward Coke in his fourth report observes, that, " In case of slander by words, the sense of the words ought to be taken, and the sense of them appears by the cause and occasion of speaking of them ; for, " Sensus verborum ex causa dicendi ac- cipiendus est" And again, " God forbid that a man's words should be, by strict and grammatical construction, taken by parcels against the manifest intent of the party, upon consideration of all the words which import the true cause and occasion, which manifest the true sense of them." This rule is so clear, and so well established, that any further illustration of it would be nugatory ; and the questions which may arise, upon which party shall the onus of proving, or dis- proving the injurious intention and meaning be im- * 4 Co. 18. Yel. 10. 34. 2 Rol. Ab. 343. Mo. 66G. tt 88 posed? and how shall th e defendant best avail him- self of explanatory circumstances in his favour? will be afterward considered under more appro- priate divisions. 3dly. From the mere description of the circum- stances constituting the offence. In the older cases, much difficulty prevailed with respect to the actionable quality of words containing a mere enumeration of circumstances : it was doubt- ed, in the first place, whether the circumstances, supposing them to be true, constituted an indictable misdemeanor ? in the second, whether the imputing such a misdemeanor was a sufficient ground of action ? The affirmative of the latter question has already been attempted to be shown. With respect to the first point, it may be proper to advance a few obser- vations. In considering the class of cases referrible to this head, where offences have been charged not amount- ing to, but connected with, felony, it will be conve- nient to distribute them into imputations charging, An attempt to commit a crime. A solicitation to commit a crime. Some preparation made in contemplation of the commission of a crime. As to words charging an attempt to commit a crime. In the case of Sir Harbert Croft v. Brown.* Coke C. J. observed, that, in ancient time, "volun- tas reputabatur pro facto ;" and that if a person lay in wait to kill another, and upon his resisting, * 3 Bute. 167. S9 wounded but did not kill him, it amounted to a felony at Common Law, and the offender was oust- ed of his clergy ; that the intention, manifested by an overt act, constituted a felony. The learned judge then proceeded to intimate, that any words charging an overt act done in pursu- ance of a felonious intention, would be actionable. But that in the principal case, the words, " He keepeth men to rob me," were not actionable, since they did not charge any waylaying or overt act done. The words, " He sought to murder me, and I can prove it,*'* were held actionable. In this case it may be observed, the words import- ed more than a mere inclination to murder ; since the term sought is shown by the latter words to re- fer to some overt act capable of proof. But for the words, " Thou wouldest have killed me,"f it was held that no action lay, since intention only was charged. In Muney's case.t Coke C. J. and Houghton J. held the words, " Thou art a knave, and hast laid in wait to kill me ; and thou hast hired one W. to kill me," not actionable, because no act was laid to be done, but an intention only ; and that a mere in- tent is not punishable. It is remarkable, that the lying in wait, and hiring an assassin to murder another, should be considered as nothing more than mere intention ; and this deci- sion seems very inconsistent with the subsequent doctrine of Lord Coke in Sir Harbert Croft's case ;|| * Cro. Eliz. 308, t Dr. Poe's case, vid, 2 Buls. 206. 1 Vin. Ab. 440. pi. 9. 2 Buls. 206. |! 3 BuK 167. 12 W) notwithstanding therefore, this and some other con tradictory authorities, it may be collected from a general view of the cases, that the charging any at- tempt to commit a felony is actionable, since such an attempt constitutes an indictable offence.* Where the words charge a solicitation to commit a crime. The defendant said, "Mrs. Margaret Passie sent a letter to my Mr. and therein willed him to poison his wife." After judgment for the plaintiff, it was assigned for error, that the words were not action- able ; because they did not charge any act done ; and that it was not like charging the plaintiff with lying in wait to commit a murder ; but all the jus- tices and barons, besides Kingsmill, held, that the action lay.f The defendant said, "Tibbot and one Gough agreed to have hired a man to kill me."j And judgment was given for the plaintiff by Wray C. J. and Fenner J. against the opinion of Gawdy. The defendant said, " You set on folks to murder J. S."H And Wylde J. conceived the words to be actionable, since tiie offence was indictable. The defendant said, " John Leversage would have robbed the house of J. S. if J. D. would have con- sented unto it. He persuaded J. D. unto it, and told him he would bring him where he should have money enough."§ And although it was objected in arrest of judgment, that the plaintiff could receive no prejudice from the words, which did not impute any act done, the plaintiff had judgment. * 2 East, 0. f Cro. Eliz. 7 17. cited by Williams J. Bui* 201 . J Cro. Eli/.. li West and Thilips, Keb. 25°-. 6 Cro. E. 8*8. 9i The defendant said, " He bade J. S. to steal what goods he could, and he would receive them."* And it was held, on motion in arrest of judgment, that the words were not actionable, since they merely charged the giving bad advice, and no act done. But in Lady Cockaine's case.f A charge of hav- ing solicited another to commit a felony, was held actionable. And in Sir Harbert Croft's caset it was held, that to say, " A. did hire a man to rob me," would be actionable. Where the words charge some preparation made in contemplation of the commission of a crime. When a man does an act in itself indifferent, but in contemplation of the commission of a crime in future (since the act is not indictable,) an imputation of it can scarcely be considered as actionable. — As if, for instance, a person were to purchase a pistol with the intent to commit murder at a future oppor- tunity, the act would not, in law, amount to an in- dictable offence, though it might be a good ground for binding the party to his good behaviour. It is to be observed, however, that in Lady Cockaine's case, || the words charging her with having solicited a pregnant woman to kill her child, were held ac- tionable ; because, if true, there was cause to bind her to her good behaviour. The words, however, in that case, were clearly actionable upon another ground, and the reason given is insufficient, since it appears, from a variety of decisions, that many im- putations for which, if true, the party might be bound to his good behaviour, are not actionable. The defendant said, " He keepeth men to rob • 2 Jo. 157. f Cro- E. tr>. I 3 Bills. t67. II Cro, E. 49, inc."* And it was held, that the words were not actionable. After some conversation about robbing a house, the defendant said, " It was T. M. (the plaintiff) and J. D. that were about to rob E. C.'s house."} After a verdict for the plaintiff, it was adjudged by Archer and Vaughan Js. for the defendant. And it was said, that the going with the Intent to lie in wait to kill a man was not indictable ; but that the lying in wait with the same intent was indictable. Upon the whole it seems, that where the words merely impute an act done in contemplation of the future commission of a crime, they are not indicta- ble ; unless it appear that the defendant intended to charge the plaintiff with having solicited, or con- spired with, others for the purpose of committing the crime. Where the description of the circumstances is precise, little doubt can arise. The defendant said, " You have caused this boy to perjure himself.''^ And the words were held actionable, since the facts charged constitute the offence of subornation of perjury. So where the defendant said, "You have bought a roan stolen horse, knowing him to be stolen."|| The defendant said, " He came to my door and set a pistol to my breast, and demanded money of me ; and I, for safeguard of my life, gave him what money he desired."§ Roll. C. J. observed, If the words sound to charge him with felony, the action *3Bu!s. 167. tFreem. 46. I Brown!. 2. || Briggs's case, God. 157. ^ Neve v. Cross, Sty. 350. m will lie ; and three of the Justices decided for the plaintiff. The defendant said of a justice of the peace and deputy lieutenant of the county of Warwick, " I have heard that a maid of J. K.'s should report, that he being sick and she looking through a hole of the door where he then lay, saw a priest (innuendo—a popish priest) give the eucharist and extreme unction to Sir J. K." It was moved in arrest of judgment, that these words did not amount to calling him a papist ; since it did not appear that the priest was a popish priest, unless by an innuendo. But it was, after two arguments, resolved, that the words taken altogether were actionable, and explained one ano- ther ; that a priest who gives the extreme unction, must be a popish priest, and he that receives it a papist ; and the judgment given for the plaintiff in the Common Pleas, was afterward affirmed in the King's Bench.* The defendant said, " Thou didst violently,! up- on the highway, take my purse from me, and four shillings and two-pence in it ; and didst threaten me to cut me off in the midst, but I was forced to run away to save my life." And the words, which in fact amount to a description of a highway rob- bery, were held actionable. III. That the criminal act was meant to be im- puted to the plaintiff. The application of the injurious charge to the plaintiff may be collected, generally, from any cir- cumstances indicating the intention of the defend- ant, so to apply his words, and inducing the hearers to suppose that the plaintiff was the person meant, * Sir John Knightly v. Marrow, 3 Lev. 68. Lawrence v. Woodward, Cro. Car. 177. 94 Thus, if the defendant should say, "I know what I am, and I know what the plaintiff is ; I never did such an act,"* (specifying some criminal act,) the words would be actionable, provided the hearers understood the offence to have been imputed to the plaintiff by such words. Where a charge has been imputed to one of several, without specifying him, it has been held in many of the older cases, that no "action was main- tainable by any of them. The defendant said to three men who had given evidence against him, " One of you is perjured."! And upon an action brought by one of them, it was adjudged, that no action lay. And so it has been held, that for the words, " One of my brothers is perjured." Although one of the brothers should bring an action, and aver that the words were spoken concerning him, yet, that on account of the apparent uncertainty, no ac* tion would be maintainable.|(l) But it has since been held, that for the words, " A. or B. murdered C."|| either A. or B. might bring an action. If from the plaintiff's statement it appear, that he could have been meant, the finding of the jury * 2 Lev. 150. Snell v. Webling, 1 Vent. 276. t Cro. Eliz. 497. J Per Tanfield J. in Wiseman v. Wiseman, Cro. J. 107. il 10 Mod. 196. Cart. 56. (1) Where the declaration stated a colloquium with G. of and concerning the rhildren of G. and of and concerning C one of the children of G. and the plaintiff in the action, in particular, and that the defendant said, " Your chil~ •hen are thieves, and I can prove it," the colloquium conclusively points the words and designates the plaintiff as one of the children intended. Gidney v. Blvkt, I -Johns. Hep. 5 4. Ho for him wiil be conclusive as to the defendant's ap- plication of the charge to him, since otherwise thev could not have given him damages. The application may be ascertained by a variety / of circumstances ; as from his having been* the ^ subject of previous! conversation, or from his being u described by name. The plaintiff w as a justice of the peace, and Re- ceiver of the Court of Wards, and by reason thereof received great sums of money for the king, and was used with much confidence by the king ; and the defendant, speaking concerning him with one Tho- mas Whorewood, spoke these words, "Mr. De- ceiver hath deceived the king."} After a verdict for the plaintiff the court, on motion in arrest of judg- ment, held, that the action well lay ; that the words " Mr. Deceiver," were an ironical allusion and nick- name to his office and place ; and that if such crafty evasions should be admitted, it would be a usual practice to slander sans punishment. If A. B. say to C. D. before whomE. F. is walk- ing, " He that goeth before thee is perjured,"|| an - action lies, if it appear that none but E. F, was walking before C. D. at the time of speaking. In the case of J. Anson v. Stuart, § the plaintiff was thus described in the libel — " This diabolical character, like Polyphemus the man-eater, has but one eye ; and is well known to all persons well ac- quainted with the name of a certain noble circum- navigator (meaning by the last-mentioned words to allude to the name of the plaintiff, J. Anson.) * 1 Rol. Ab. 85. 1 Rol. Ab. 75. t Cro. J. 557. 6 Bac. Ab. 231. t Sir Miles Fleetwood v. Curl, Cro. J. 557. !! 1 Rol. Ab. 8J, 5 1 T. R. 748. 90 From these* and a number of similar instances, it may be laid down as a general rule, that the ap- plication of the words to the plaintiff is a matter to be collected by the jury, from the particular circum- stances of each case. The difficulties which occur upon this point, are generally of a technical nature, and consist in the doubt, whether the plaintiff has so stated his case in the declaration as to show that the conclusion could properly be drawn : the consideration of these, however, belongs to a subsequent division of the subject. * Cro. Eliz. 497, Cro. J. 444. 2 Barnard. Rep. Hughes v. Winter, Keb. 525. 07 CHAPTER It Where an infectious Disorder is imputed. Another branch of cases where the law allows an action to be maintained, without the usual proof of special damage, consists of those where a person is charged with having an infectious disease, the ef- fect of which imputation, if believed, would be to exclude him from society.(l) It has been said,* that, " Since man is a being formed for society, and standing in almost constant need of the advice, comfort, and assistance of his fellow-creatures, it is highly reasonable that any words which import the charge of having a conta- gious distemper, should be in themselves actionable ; because all prudent persons will avoid the company of one having such a distemper." Since the ground of proceeding is the presump- tion that the plaintiff will be wholly or partially ex- cluded from society and its comforts, the action is consequently confined to the imputing those disor- ders which are so infectious in their nature, and pernicious in their effects, as to render the person afflicted an object likely to be shunned and avoided. Actions for words of this description seem, in the absence of special damage, to have been confined * 6 Bac. Ab. 212. (1) Per Parker, C. J. Chaddock v. Briggs, 13 Mass, Rep. 252. 13 98 io charges ot leprosy and lues venerea. For though it was held, that an action lay for saying, " He bu- ried people who died of the plague in his house,"* it appears that special damage was laid and proved. There is, however, one case in which it has been held, that to charge another with having the " fall- ing sickness,"! is actionable. So great, formerly, was the dread of leprous con- tagion, that an especial writ was provided for the removal of the infected object to some secluded place, where he might no longer be a terror to so- ciety ; happily this writ has long lost its use. It seems, however, that though the reason has in some degree ceased to operate, an action will, even at this day, be sustainable for a charge of either of the diseases^ alluded to.(l) From the case of Villars and Monsley,|| it ap- pears, that to say another has the itch, is not action- able ; though such an accusation would be actiona- ble if written. It is to be remarked, that in the above case both Wilmot C. J. and Gould J. seem to take for granted, that to impute the plague is action- able ; but no case was cited in which this point has been expressly determined. The ground of the action being the presumption of the plaintiff's exclusion from society, no action will lie for an imputation in the past tense, § since such an assertion does not represent the plaintiff, at * Kit. 173. b. 1 Com. Dig. 252. t 1 Rol. 44. 1. 7. I Carslake v. Maplcdoram, 2 T. R. 473. || 2 Wils. 403. § Carslake v. Mapledoram, 2 T. R. 473. Str. 1189. (1) The original action in Sterling v. Mams et ux. 3 Day's Rep. 312, was brought for charging the defendant with having the venereal disease, and there is no doubt suggested as to its being sustainahlr 1)9 the time of speaking, as unfit for society, and there- fore the substance of the action is wanting ; and it was observed, in the ease of Carslake v. Mapledo- ram, that this doctrine was justified by all the cases, except one, and that loosely reported. With respect to the terms in which the imputation is conveyed, as in other cases, they may either ex- pressly and by their own power impute the disease, or by the aid of collateral circumstances may render the implication unavoidable. Thus, to say a man has the leprosy,* or to call him leprous knave, is actionable : the term leper being in itself a clear and unequivocal designation of the speaker's meaning. Without citing the disgusting string of cases upon this subject, with which the older reports abound, it may be deemed sufficient to observe, that where- ver it can be collected from the circumstances, that the speaker intended the hearers to understand that the person spoken of was, at the time of speaking 5 afflicted with either of the disorders above mention- ed, an action may be maintained. And the meaning may be evidenced either by reference to the mode in which the disease was communicated, the symptomsf with which it is attended, its effects upon the person; or constitution, the means || of cure, the necessity of avoiding§ the person infected ; or, in short, by any ■ other allusion capable of conveying the offensive imputation. *2T.R. 473. Cr. J. 144. I Holt. 503, | Cro. J. 480. 144. 1 Vin. Ab. 488. Cro. El. 214, 289, 1! Cro. J. 430. Cro. Eliz. 648. Roll. Rep. 420. § Cro. J, 430. HXI CHAPTER III. Where the Imputation affects a Person in his Office, Profession, or Business. Next to imputations which tend to deprive a man of his life, or liberty, or to exclude him from the comforts of society, may be ranked those which af- fect him in his office, profession, or means of liveli- hood. To enumerate the different decisions upon this subject would be tedious, and to reconcile them impossible ; y et they seem to yield a general rule, sufficiently simple, and unembarrassed, namely, that words are actionable which directly tend to the pre- judice of any one in his office, profession,* trade, or business.(l) Observations upon this class of cases may be di- vided into those relating to the grounds of the ac- tion, — the extent of the action, — and the degree of certainly and precision requisite to render the words actionable. Words which affect a person in his office generally are actionable, whether the office be merely confi- dential and honorary, or be productive of emolu- ment. The ground of action in the two cases, seems, however, to be somewhat different. Where his office is lucrative, words which reflect upon the * 3 Wits. 186. <1) Per Yf 141 ihe only question at present under consideration is, the nature of the damage which must have been sustained to render words actionable : this damage is, however, but one of two essential requisites for the supporting an action. To render the right complete, such damage must have been occasioned, as will afterward be seen, by the malicious act of the defendant. This further requisite, of malice, precludes litigation in all cases where the party has acted in the discharge of any legal or moral duty, or in the fair and conscientious performance of his part in any transaction arising out of the ordinary busi- ness of life, without a deviation for malevolent pur- poses, and confines the action to those instances in which the mischief is attributable to mere malice of heart, or to a wanton and guilty disregard of the feelings and interests of others. It is said, by the learned author of the Commen- taries,* that, " as to signs or pictures, it seems ne- cessary always to show, by proper innuendoes and averments of the defendant's meaning, the import and application of the scandal, and that same special damage has followed ; otherwise it cannot appear that such libel by pictures was understood to be le- velled at the plaintiff, or that it was attended with any actionable consequences." It seems, however, very difficult to conceive any sound distinction between written and painted libels. A man may be as successfully exposed to ridicule by a caricature painting, as by any written misre- presentation ; and the object of the defendant as clearly manifested in the latter case, as the former. The difficulty, indeed, of proving the plaintiff to be '■ ?,Bl.Com. 126. 142 the person aimed at, may, in some instances, be greater in the latter case ; but when the doubt as to the defendant's application of the calumny has been overcome, there seems to be no room for fur- ther distinction. The pencil of the caricaturist is frequently an instrument of ridicule more powerful than the press ; and it is not easy to conceive an imputation which an ingenious artist would not be able successfully to communicate to minds of even the meanest capa- city. A picture is the image or likeness of the scene itself: words written or printed are merely symbols, which, by virtue of a previous compact and understanding on the subject, are the represen- tatives of the ideas which they communicate : but in legal consideration, the only question is, whether any and which of these modes is capable of convey- ing that meaning which is detrimental to the plain- tiff? If, in fact, they are equally capable of so doing, equally distributable, and equally durable, — in short, equally mischievous in every respect, they cannot be considered as distinguishable, for any legal purpose, upon any principle of reason and good sense : And no such distinction is to be found in the reports. It was expressly held by Holt C. J. that " In case upon libel it is sufficient if the matter be reflecting ;* as to paint a man in any disgraceful situation." The plaintifff brought an action of trespass against the defendant for destroying a picture of the plaintiffs. Upon the trial it appeared that the picture in question, entitled La Belle et La Bete, * 11 Mod. 90. Sec also 2 Hawk. pi. C c. 73. s. 2, 5 Co. 125. Skinner 123. 3Keb. 373. t Du Bost v. Bcresford, 2 Camp. Rep. 511. 143 was a caricature representation of a gentleman and his wife, who was sister to the defendant, and that it had been publicly exhibited for money till the de- fendant cut it in pieces. The plaintiff insisted that he was entitled to the full value of the picture, to- gether with a compensation for the loss of the ex- hibition. The defendant contended that it was a public nuisance, which every one had a right to abate by destroying the picture. Lord Ellenborough C. J. " The only plea upon the record being the general issue of ' not guilty,' it is unnecessary to consider whether the destruction of this picture might or might not have been justi- fied. If it was a libel upon the persons introduced into it, the law cannot consider it valuable as a pic- ture. Upon an application to the Lord Chancellor, he would have granted an injunction against its ex- hibition ; and the plaintiff was both civilly and cri- minally liable for having exhibited it."(i) There remains a class of communications differ- ing from any of those adverted to, and which, though accompanied with circumstances of cooler delibe- ration and more settled purpose than words merely spoken, are not calculated to produce such lasting and widely extended consequences as those effected by writings or pictures. The vulgar custom of riding Skimmington, and the practice of carrying or burning the effigies of (1) The hasty dlclum of Lord Elknborcugh is not the doctrine of the court of Chancery in England. The court does not interfere to prevent or restrain the publication of libels, or of works of such a nature that an action of da- mages cannot be maintained for them. Eden on Injunctions, 315. Walcot v fVtdeot, 7 Ves. Jun. 1. Southey v. Sherwood, 2 Meriv. 435. Lord Byron v. Dug- dale, British Traveller, Newspaper, Aug. S, 1823. See also the Edinburgh Re view, No, LXXVI, for May 1822, paae 2S1. 144 persons intended to be held out as public objects of disgrace and ridicule, are instances of this de- scription. The impressions made by such proceed- ings are naturally more lasting, and are likely to produce a greater degree of mischief than words merely spoken, and yet the calumny is not so du- rable as if it had been conveyed in print or in wri- ting. Since, however, these are means by which a man may be rendered, in may instances, contemp- tible and ridiculous, and in others may be exposed to the serious effects of popular indignation and resentment, — since the act of the defendant is more studied and deliberate, and the consequences more mischievous than those for mere verbal slander, it is probable that such representations would be deemed actionable, as falling within the same con* sideration with the cases which have formed the subject of the present chapter. 155 CHAPTER VI Of Sca?idalum Magnatum. Words spoken in derogation of a peer or judge, or other great officer of the realm, are usually called Scandalum Magnatum ; and though they be such as would not be actionable when spoken of a pri- vate person, yet when applied to persons of high rank and dignity, they constitute a more heinous in- jury, which is redressed by an action on the case founded on many ancient statutes, as well on behalf of the crown, to inflict the punishment of imprison- ment on the slanderer, as on the behalf of the party to recover damages for the injury sustained.* Under this division will be considered, 1. The grounds of the action. 2. The parties entitled to maintain it. 3. The nature of the words which will sup- port it. The statute 3 Ed. 1. c. 34. f after premising that " Forasmuch as there have been oftentimes found in the country devisors of tales whereby discord, or occasion of discord hath many times arisen between the king and his people, or great men of the realm," enacts, " that from henceforth none be so hardy to * 3 Blac. Comm. 123. t For the history of these statutes, see 2 Mod. 152. Barrington on the Penal Statutes. 3 Reeves. Hist, and 1 PaYl. Hist. 19 14G tell or publish any false news or tales, wherebv discord, or occasion of discord, or slander, may grow between the king and his people or the great men of the realm ; and he that doth so, shall be taken and kept in, until he hath brought him into court which was the first author of the tale. By 2 R. 2. st. 1. c. 5. " Of devisors oi false news and of horrible and false lies, of prelates, dukes, earls, barons, and other nobles and great men of the realm ; and also of the chancellor, treasurer, clerk of the privy seal, steward of the king's house, jus- tices of the one bench or of the other, and of other great officers of the realm, of things which by the said prelates, lords, nobles, and officers aforesaid, were never spoken, done, nor thought, in great slander of the said prelates, lords, nobles, and offi- cers, whereby debates and discords might arise be- twixt the said lords, or between the lords and com- mons (which God forbid,) and whereof great peril and mischief might come to all the realm, and quick subversion and destruction of the said realm, if due remedy be not provided. It is straitly defended upon grievous pain, for to eschew the said damages and perils, that from henceforth none be so hardy to devise, speak, or to tell any false news, lies, or other such false things, of prelates, lords, and of others aforesaid, whereof discord or any slander might rise within the said realm ; and he that doth the same shall incur and have the pain another time ordained thereof by the statute of Westminster the first, which will, that he be taken and imprison- ed till he have found him of whom the word was moved i v 147 Also by the 12 R. 2. c. 11. — '-Item. Whereas it is contained as well in the statute of Westmin- ster the first, as the statute made at Gloucester, the second year of the reign of our lord the king that now is, that none be so hardy to invent, to say, or to tell any false news, lies, or such other false things, of the prelates, dukes, earls, barons, and other nobles and great men of the realm, and also of the chancellor, treasurer, clerk of the privy seal, and steward of the king's house, the justices of the one bench or of the other, and other great officers of the realm ; and he that doth so shall be taken and imprisoned till he hath found him of whom the speech shall be moved. It is accorded and agreed in this parliament, that when any such is taken and imprisoned, and cannot find him by whom the speech be moved, as before is said, that he be punished by the advice of the council, notwith- standing the said statutes." It does not appear very clear, whether, before these statutes, any words would be held actionable when applied to a peer or other person of high rank and dignity which would not have been deemed so in the case of a private person.* In the case of Lord Townsend v. Dr. Hughes,! the words were, " He is an unworthy man, and acts against law and reason ;" and Scroggs and At- kins justices were of opinion, that by the Common Law no action would lie, though such words were spoken of a peer ; but North C. J. considered the words as actionable at Common Law ; and held, that no words would be actionable under the statute which were not so at Common Law. * See Buller. L. N. P. 4. and 12 Co. 133. 1 2 Mod. 15a 148 Whether such a distinction prevailed or not at Common" Law, is at present a matter of curiosity rather than of practical importance, since it has been established by a long train of decisions, that the distinction, if not created, has at all events been considered as warranted, by the operation of the statutes alluded to. Upon these it has been held, that a remedy by action has been given to the great men of the realm, entitling them to a compensation in damages for injurious reflections upon their character, though the statutes themselves do not in express terms profess to bestow such a remedy. And this doc- trine is founded upon the general rule, that when- ever* a party is prejudiced by the doing of that which is prohibited by statute, he is entitled to da- mages. It is a remarkable circumstance, that from the time of passing the st. 12 Rich. II. no civil action appears from the reports to have been founded upon it before the thirteenth year of Henry the Se- venth,! comprising an interval of more than a century. 2. Next as to the parties entitled to maintain this action. Since the statute 2 R. II. st. I.e. 5. commences with an enumeration of persons inferior in rank to the king, it has been held, that the latter is not included within the general words, j " and great men of the realm." But that he is included within the first of Westminster. |[ * Keil. 26. t Ld. Towr,?erul v. Dr. Hughes, 2 Mod. 1C2. 10 Co. 75. X Cromp. Jur. 16. 35. 6 Bac. Ab. 97. 12 Co. 133. fl 12 Rep. 133. 149 The action has been adjudged to extend to orders of nobility created since the making of these sta- tutes ; so that although the stat. 2. R II. specifically mentions Dukes. Earls, and Barons only, a Viscount has been considered as entitled to the action,* though the title is of much later creation. f It has been said,$ that a female, noble by birth, is not within the statute ; but it seems difficult to say upon what principle a peeress is excluded from the benefit of this statutable protection. Since the words derive their actionable essence from their application to the dignataries specified in the statute, it must appear that the plaintiff held his rank at the time the words were published. || By the act of union with Scotland, § is enacted, that all peers of Scotland shall also be peers of Great Britain, and enjoy all privileges as fully as peers of England, except of sitting in the house of lords and the privileges depending thereon. Under this clause it has been determined, that a peer of Scotland is one of the magnates to whom this sta- tute extends ;if and it was said, that though it had been customary in such action to aver that the plaintiff had a vote and seat in parliament, such an averment was superfluous. It seems that the action is maintainable by a Ba- ron of the Exchequer,** though the statute men- tions only Justices of the one bench or the other. 3. What words will support the action. * Cro. Car.136. Palm. 165. f John Beaumont, the first Viscount, was created such 18 H. VI. | Crom. Jur. 35. 6 Bac. Ab. 97. || Vent. CO. § 5 Ann. c. 8. Art. 23. IT Lord Falkland v. Phipps, Comyn. Rep. 439. 1 Vin. Ab. 549. pi. 22. ** Vid.Pal. 565. 12 Co. 133. 150 The grounds of the action and the effect of these statutes, underwent much learned discussion in the case of Lord Townsend v. Dr. Hughes,* which has been already referred to. The action was there brought for speaking the words, " He is an unwor- thy man, and acts against law and reason." Upon, not guilty pleaded, the cause was tried, and the jury gave 4000/. damages. Upon motion in arrest of judgment, Sergeant Maynard, for the defendant, allowed that it was too late to contend that an ac- tion to recover damages was not maintainable under the statutes of Scandalum Magnatum, upon the principle before mentioned, that where a statute prohibits a thing prejudicial to another, the person prejudiced is entitled to recover damages ; but he insisted that the words were not within the mean- ing of the acts : because, the term unworthy im- ported no particular crime, — that it was merely a term of comparison, and that instances of unwor- thiness might be alleged which would not support an action ; but that, if the plaintiff had been com- pared to any base and unworthy thing, the words would have been actionable : as in the Marquis of Dorchester's case,f of whom the defendant said, " There is no more value in him than in a dog." That to say a man acts against law and reason, is no scandal ; a man who buries one of his family in linen acts against law, but that, if the penalty be satisfied, the law is so too. That no instance was given in which the plaintiff had acted against law, and therefore that the case was unlike the Duke of Buckingham's^ who brought an action for the • 3 Mod. 150. + Crom. Jur. of Courts. I Hil. 16 C 2. Roll. 1269. 151 words, " You are used to do things against iavv , and put cattle into a castle where they cannot be re- plevied ; " for in that case, not only a usage was charged upon him, but a particular instance of op- pression. That the words in question were unci- vil, but not' actionable, — that there were many authorities which showed a peer not entitled to an action for every trivial and slight expression spoken of him. As to say of a peer, " He keeps none but rogues and rascals about him,* iike himself ;" which words, in the opinion of Yelverton and Fleming, Justices, were not actionable. That the statute was made to punish those who devised " false news, and horrible and false lies of any peer," &c. whereby discords might arise be- tween the lords and commons, and great peril and mischief to the realm, and quick subversion there- of. But that it could not be contended under the fair construction and intent of the act, that if one should say, " Such a peer is an unworthy man," the kingdom would be presently in a flame, and turned into a state of confusion and civil war ; or, that the state would be endangered by saying of a peer, " he acts against the law." That the plaintiff was placed in no hazard by the words, nor in any wise damni- fied ; he was not touched in his loyalty as a peer, nor in danger of his life as a subject ; he was not thereby subjected to any corporeal or pecuniary punishment, nor charged with any breach of oath, nor any miscarriage in office. It was answered by Pemberton, Serg. that it was the end and object of these statutes to give a re- medy against all provoking and vilifying words * Earl of Lincoln's case, Cro> J. 196. 152 which were used before to exasperate the peerj» 7 and to make them betake themselves to arms, and to carve out their own remedy by the sword. That since the design of the statute was to prevent such practices, not only those words were to be consi- dered as falling within their scope, -which imported great scandal, and for which an action lay at the common law, but even such things as savoured of any contempt of their persons, and such as brought them into disgrace with the commons, whereby they took occasion of prosecution and revenge. And he cited Lord Cromwell's case,* where the words were, " You like those who maintain sedi- tion." The Earl of Lincohi's case, " My lord is a base Earl, and a paltry Earl, and keepeth none but rogues and rascals like himself." The duke of Buckingham's case,f " He has no more conscience than a dog." The Marquis of Dorchester's case, " He is no more to be valued than the black dog that lies there." All which words had been held actionable, though not touching the persons in any thing concerning the government, nor charging them with any crime, but in point of dignity and honour. Scroggs, J. observed, that " the words here laid are not so bad as the defendant might have spoken, but they are so bad that an action will lie for them ; and though they are general, many cases mayl^e put of general words which import a crime, and which have been adjudged actionable." In the Earl of Leicester's case, " He is an op- pressor," were held actionable. * 4 Co. 13. Cro. J. 196. t HU. 16. c. 2. Roll. 1269. 153 And in Lord Winchester's case, " He kept me in prison till I gave him a release," were deemed ac- tionable, because the plain inference from them is, that he was an oppressor. And so, in Lord Abergavenny's case, " He sent for me, and put me in Little Ease." It appears by all these cases, that the Judges have always con- strued in favour of these actions ; and this has been done in all probability to prevent those dangers which otherwise might ensue if the lords should take revenge themselves." Atkyns, J. held, that under the construction of the statute, the words to be actionable must be hor- rible as well as false, and such as were punishable in the high commission court, which were enormous crimes. That the statute did not extend to words of a small and trivial nature, nor to all words which were actionable, but only to such as were of a greater magnitude, such by which discord might arise between the lords and commons, to the great peril of the realm, and such which are great slan- ders and horrible lies, which are words purposely- put into this statute for the aggravation and dis- tinction of the crime ; and, therefore, such words as were actionable at the common law, might not be so within this statute, because not horrible great scan- dals. The learned Judge also observed, that in the Duke of Buckingham's case,* (which was the se- cond which appears to have been determined in an action on the statute,) where the defendant said, " You have no more conscience than a dog ;" and in the case of Lord Abergavenny v. Cartwright, • -1 Hen. VIII. Ci-omp. Jur. 13. 20 151 - You pare not how you come by goods," the words charged the plaintiff with particular matter, and did not rest barely upon opinion. That in the case of the Bishop of Norwich,* the words, " You have writ to me that which is against the word of God, and to the maintenance of super- stition," were held actionable, because they refer to his function, and greatly defame him. That in the case of Lord Mordaunt v. Bridges,! the words " My Lord Mordaunt did know that Prude robbed Shotbolt, and bade me compound with Shotbolt for the same ; and said, he would s^e me satisfied for the same, though it cost him an hundred pounds, which I did for him, being ni}' master ; otherwise the evidence I could have given would have hanged Prude ;" were held actionable ; and that both in this, and in all the other cases which had been mentioned on the statute, and where judgment had been given for the plaintiff, the words had always charged him with some particular fact, and were positive and certain ; but that where they were doubtful and general, and signified only the opinion of the de- fendant, they were not actionable. That the words in the case at bar neither related to the plaintiff as a peer, nor as a lord lieutenant, and charged him with no particular crime ; and that if the laws were expounded to rack people for words, instead of re- medying one mischief, many would be introduced ; for in such case they would be made snares to men. He farther said, that it was fit the law should be settled by some rule, because it is a wretched con- dition for people to live under such circumstances as not to know how to demean themselves towards *Cro. Eliz. 1. t Cro. Eliz. 67. 155 a peer ; and that since no limits had before been prescribed, it was fit there should be some then, and that the court should go by the same rules in the case of a peer as in that of a common person ; that is, not to construe the words actionable, without some particular crime charged upon the plaintiff, or an allegation of special damage. North, C. J. and Wyndham, J. agreed with Scroggs, the former being of opinion that all words reflecting upon a peer, as he is the king's counsel- lor, or as he is a man of honour and dignity, are actionable at the common law. That in many cases where a man should express his particular dises- teem, an action would not lie, as if he had said, " I care not for such a lord," but that words of general opinion and disesteem were actionable, as was held in the Marquis of Dorchester's case ;* and, by the opinion of North, C. J. and Wyndham and Scroggs, Justices, judgment was given for the plaintiff. And in the case of the Earl of Pembroke v. Sta- niel,f the words were, " The Earl of Pembroke is of so little esteem in the country, that no man of reputation hath any esteem for him fhe is a pitiful fellow, and no man will take his word for two-pence, and no man of reputation values him more than I do the dirt under my feet ;" and they were held action- able under the statute, though they wojdd not have been so in the case of a private person. And in the case of Lord Falkland v. Phipps,i the terms villain, villanous rogue, scrub, and scoundrel, were held actionable. From these cases it appears, that general ex * 1 Sid. 293. ■ Freem. Rep. 49. i Mm. Abr: 5-1 Comyn's Rep. I 150 pressions of contempt and disesteem, tending to de- grade and vilify the characters of peers and great officers of the realm, are actionable, as well as those which impeach their loyalty, or impute the com- mission of any criminal and disgraceful fact. Where words are spoken of a peer, which would be action- able as spoken of a private person, the plaintiff has it at his option* to proceed either upon the statute, or in the usual form of action. The incidents peculiar to Scandalum Magnatum, as relating to the process, pleading, justification, &c. will be considered in common with the correspond- ing ones belonging to the proceeding at common law. ' Per Twisden. Freem. Rep. 49. pi 58. 157 CHAPTER VII. Of Special Damage. Whenever damage arises in consequence of a false imputation, wrongfully published, an action is maintainable on the ground of such specific damage. Under this division two questions occur : 1. What, in legal contemplation, amounts to an actionable damage ? 2. How must such damage be connected with the slander, to constitute a ground of action ? 1. What, in legal contemplation, amounts to an actionable damage. The defendants' act affects either rights already acquired, or prevents the acquisition of some further benefit or advantage. Where the plaintiff has been wrongfully charged with the commission of some crime, if the imputa- tion rest as a bare charge, not officially made in the usual course of a criminal proceeding, the party, it seems, has a right to consider the expense and la- bour to which he is put for the purpose of manifest- ing his innocence as special damage. As where the plaintiff, in consequence of an in- sinuation that he was guilty of murder, was obliged to have an inquest taken on the body of the de- ceased.* * Per Lord Mansfield. Pcake v. Oldham. Cowp. 277. 158 But if the defendant proceed according to the usual forms of criminal prosecution, though the plaintiff is entitled to recover damages for the scan- dal, vexation, and expense, brought upon him by an unfounded and malicious accusation, he must proceed either by an action of conspiracy or by a special action on the case, founded upon the crimi- nal proceeding itself, and cannot recover (as will afterward be seen) in a common action for any scandalous matter published in the course of such a prosecution.* Where a party is prevented from selling, ex- changing, or making any advantageous disposition of lands, or other property, in consequence of the impertinent interference of the defendant, he may maintain an action for the inconvenience which he has suffered ; but damage must be shown ; and the mere apprehension,! that in consequence of the slander, the plaintiff's title may be drawn in ques- tion, will not support an action. And it is not sufficient to show generally that the plaintiff intended to sell to any one that would buy, but he must prove that he was in treaty to sell them to some specific person.:}: Neither will it suffice to show, that the value of the lands was lessened in people's opinions, but proof must be given of damage actually sustained. Where the alleged loss consists in the prevention of the sale of lands, it must ap- pear that the words directly tende 1 to defeat the plaintiff's title. || * 3 Bl. Com. 126. 10 Mod. 210. 219, 220. Str. 691. t Cro. Eliz. 197. 1 Vin. Ab. 550. pi. 6. Yelv. SO. Cro. J. 642. contr ' i Manning v. Avery, 3 Kcb. 153. II Burr. 2622. 159 In Sir W. Gerrard v. Dickenson,* it was said by Wray, C. J. that in all cases where one doth entitle a stranger, it is not actionable, except it be shown that some damage comes to the proprietor by it, viz. that he cannot let it or sell it, &c. The defendant said,f " M. has mortgaged all his lands for 100/. and has no power to sell or let the same." And, because no special damage nor parti- cular colloquium was laid of a treaty to sell them to any person certain, but only in general that he in- tended to sell it to any one that would buy, which is too general, judgment was stayed. In Elborow v. Alien,! the action was brought for the words, " He is but a bastard," spoken of the plaintiff, who had lands by descent; by means of which he was put to great expense to defend his title. And two of the justices, against the opinion of Doderidge, J. decided, that the words were ac- tionable, the plaintiff having averred in his declara- tion that he was put to a great charge to defend his inheritance. But it has been held, that to institute a civil suit, though there be no good ground for it, is not ac- tionable, because it is a claim of right for which the plaintiff has found pledges, is amerciable pro falso clamore, and is liable to costs, and therefore that no action lies, unless the defendant be maliciously sued, || with intent to imprison him for want of bail. And upon the same grounds, it should seem, that the plaintiff is precluded from recovering from * Cro. Eliz. 196. t Manning v. Avery, 3 Keb. 153. 1 Vin. Ab, 553. pi. 21. Sty. 169. 176. Palm. 529. I Cro. J. 642. II See Saville v. Roberts. 1 Salk 13. 4 Co. 9 Co. 56, b. 1 Roll. Abr. 112. 160 the person who spoke the words which brought: the title into litigation, since, in contemplation of law, he has been already satisfied for the false claim. And next, where the plaintiff is prevented from acquiring some benefit or advantage. In general, where the plaintiff is hindered, by the mere wrongful act of the defendant, from suc- ceeding to any preferment, benefit, or advantage whatever, he may maintain an action for the special damage. As if a patron* intended to present a divine to a benefice, and the defendant say of him " He is an heretic, or a bastard ;" for which reason the pa- tron refuses to present him, and he loses his pre- ferment, an action is maintainable. So, if the defendant say of a candidate for an office, that he is an ignorant man and unfit for the place, by means of which he loses it, an action lies.f(l) So, where a servant or bailiff is prevented from getting a place.| Loss of marriage seems to have been always con- sidered as a temporal damage, || although the words themselves have imputed matter of mere spiritual cognizance. In Matthews v. Crass,§ which was an action for words, occasioning loss of marriage ; after verdict for the plaintiff, it was urged, on motion in arrest of * 4 Co. 16. t March. Rep. pi. 217. 1 Buls. 138. \ Shepp. Coll. 192. || Davis v. Gardiner. 4 Co. 16. Poph. 36. 1 Roll. Rep. 34, 35. 109. Mo. 409. Cro. Car. 155. Case of Sir C Gerald's bailiff. Bui. N. P. 7. § Cro. Jac. 323. (1) Mayrantv. Richardson, 1 Nott and M'Cord's Rep. 347, contra. 101 judgment, that this was the first case where loss of marriage was ever laid for words spoken of a man, and therefore was not warranted by Ann Davis's case.* But the court conceived it to be immate- rial, in case of loss of marriage, whether the plain- tiff is a man or a woman. In order to support an action grounded upon the loss of marriage, it is necessary for the plaintiff to allege and prove that a marriage with some specific personf was in contemplation, and was hindered by the speaking of the words. The necessity of proving a specific loss, falls with peculiar hardship upon unmarried females, who are thereby frequently debarred from maintaining ac- tions for imputations most unfounded and injurious. In no other case can it be more fairly presumed that the scandal, if believed, will produce detriment, than where an unmarried female is charged with in- continence ; and therefore, in no other case is the plaintiff better entitled, in reason and good sense, to the benefit of that presumption, in order to ob- tain a remedy for the scandal, and, which is of infinite- ly more importance, an opportunity of fairly meet- ing and rebutting the calumny. No species of slander can be more cruel and ma- licious in its origin, none more pernicious in its con- sequences ; 3^et, unless some specific damage can be proved, or the charge be committed to writing, the suffering party, whose peace of mind is destnry- ed, and prospects ruined, has no appeal but to courts, whose powers, limited as they are, to the infliction of penance for the spiritual benefit of the wrong doer, * i Co. 11. vide infra. ! I Roll 36, I. 15. 1 Com. Dig. trt. Dcfam. D. 30 21 162 can administer no substantial relief or protection to the party wronged. Yet it is this very jurisdiction of the ecclesiastical courts, which has frequently been assigned as a reason (though surely an inadequate one) why the temporal courts should not interfere to give a re- medy in damages. It has been said, that were the courts of law in such cases to entertain an action, it would be pro- ductive of hardship to the defendant, who would be twice punished for the same offence, by an award of damages in the temporal, and by the infliction of penance in the spiritual court. This reasoning is evidently fallacious : if a man contrive, by one and the same act, to offend against religion, and to do a serious temporal injury to his neighbour ; though the act be one and the same, it unites and comprehends offences wholly distinct, and it is absurd to say that the spiritual offence shall protect the offender from consequences merely tem- poral, and that, by rendering himself liable to a tri- fling penance, he shall rid himself of a load of tem- poral responsibility. The objection, too, falsely assumes that the pay- ment of damages is in the nature of punishment ; by the law of England, the amount of damages is in all cases to be measured by the temporal prejudice sustained by the plaintiff, and they are awarded without any regard to the penal correction of the de- fendant, or the reformation of his manners ; the rea- son, at all events is a strange one to have weighed in a court of law, whose records abound with cases, which prove, that for the same act a person may be both civilly and criminally responsible. ', 1G3 Such, however, is the law upon this point, though formerly much doubt was entertained upon it. In Ann Davis's case,* the plaintiff declared that she was a virgin of good fame, &c. and that one Anthony Elcock, citizen of London, of the substance of 3000/., desired her for his wife, and had there- on conferred with John Davis her father, and was ready to conclude it, when the defendant, knowing the premises, but intending to injure the said Ann, and to obstruct the said Anthony's proceedings, published of the said Ann these words : " I know Davis's daughter well, she dwelt in Cheapside, and there was a grocer there that did get her with child ;" by which the said Anthony refused to take her to wife. After verdict for the plaintiff, it was moved in ar- rest of judgment, that the words were not action- able, because the defamation was spiritual. But it was resolved by the whole court, that the action was maintainable : 1. Because, if the woman had a bastard, she was punishable by the statute of 18 Eliz. c. 3. 2. That if the defendant had charged her barely with incontinence, the action would have been maintainable, since the ground of the action was temporal, namely, that she was defeated of her marriage. But in subsequent cases,f the first of the reasons given in Ann Davis's case was denied to be law ; and it was said, that the sole reason on which the judgment rested was the loss of marriage. In Baldwin and his wife v. Flower, i it was held, * 4 Co. 16. 1! 1 Lev. 261. Sid. 397. Vent. 4. t 3 Mo* 120. 104 lat an action lay lor calling the wife '* whore," be- ause, by such means, she might lose the communi- ation and society of her neighbours. In Medhurst v. Balaam,* the plaintiff declared she had several suiters to macry her ; and that the defendant said of her, " She is with child, and hath taken physic for it ;" by which she became in dis- grace, and lost the society of her neighbours. And it was adjudged that the action lay, though no loss of marriage was alleged. This has, however, been overruled in a variety of cases. f In Ogden v. Turner,} Holt C. J. observed, " To say of a young woman that she had a bastard, is a very great scandal, and for which, if I could, I would encourage an action ; but it is not actionable, be- cause it is a spiritual defamation, punishable in the spiritual court." In B3T011 v. Ernes. || A young unmarried woman, had been charged with gross incontinency. After a verdict for the plaintiff, it was moved, in arrest of judgment, that the words were, not actionable, be- cause they were of spiritual cognizance, and that no temporal loss had accrued : that to say, " a woman has a bastard," was never actionable before the sta- tute for the provision of bastard children ; and that, since the statute, it had never been held actionable but where the party had been brought within the penalty of the statute, which is only where the bas- tard becomes chargeable to the parish ; that these * 1 Vin. Ab. 393. pi. 7. Sid. 397. t 1 Lev. 261. 2Keb. 451. 1 Sid. 396. Lord Ray. 1004. I Holt R. 40. I! 12 Mod. 106. 3 Will. 3. liii) words were most scandalous of a young woman ; and that, had it been tea nova, perhaps an action would have lain, but that there were many authori- ties to the contrary. That it was a crime of which the spiritual court had conusance, and could censure; and that it was not reasonable that the party should be liable to ecclesiastical censure and an action too, on which account Ann Davis's case had been often shaken, and judgment was given for the defendant. For similar words in Greaves v. Blanchet,* judg- ment, after verdict for the plaintiff, was arrested; the court observing, that they could not overthrow so many authorities, and that the reason was, that fornication was a spiritual offence, and that no ac- tion lay at Common Law for what the Common Law took no notice of. , In the above case,t the court said also, that it it were res nova, it were reasonable to make the words actionable, for no greater misfortune can befall a young; woman, whose well-doing depends upon her having a good husband, than to be reputed a whore ; but the authorities are too many and great to run counter to them, the reason of them is, that fornica- tion is a spiritual offence, not punishable at Com- mon Law, and an action shall not lie for charging one with an offence of which the law takes no no- tice, without special damages ; and if Ann Davis s case had been pursued as it had been contradicted, it would do. . . From these and many similar authorities, it ap- pears, that the judges have long ago felt themselves overpowered with the number of the decisions upon * Sa lk.695. 6 Mod. 143. t 6 Mod. 148. 166 this point, constantly regretting that they were ii£> longer at liberty to determine differently. Before this subject is dismissed, it may be proper to remark, that in the old decisions upon this point, the only question contemplated seems to have been, whether the words of incontinency* were actionable, as imputing a crime ; and it does not appear to have been much considered, whether they were not ac- tionable on the broad 'plain ground that they imme- diately tend to hinder the plaintiff's advancement in life by an advantageous marriage. It may, perhaps, be too late to contend, that the plaintiff is entitled to recover upon this general prin- ciple ; the courts, however, have manifested a desire to administer every relief in their power to plain- tiffs of this description, so that the most trifling loss sustained in consequence of such slander, as of a dinner, or other hospital but gratuitous entertain- ment,! will entitle the party to her action. And, in general, wherever a person is prevented by the slander from receiving that which would otherwise have been conferred upon him, though gratuitously, the special damage will support an action. As where, in consequence of a charge of incontinence, a dissenting preacher was prevented from preaching^ and receiving voluntary donations from his congregation. So, the loss of particular customers by a trades- man is an actionable special damage. || * See the first resolution in Ann Davis's case, 4 Coke 16. j Moore v. Meagher in Error, 1 Tau. 39. J Hartley v. Herring. 8 T. R. 130. Barron v. Gibson. Lord Rad. S31. Str. 566. Bull, N. P. 7. 1 Lev. 14X1: 167 And it is immaterial in such case, whether the words relate to his business or otherwise.* A mere apprehension of ill consequences cannot constitute a special damage ; so that it has been held insufficient for the plaintiff to allege, that in conse- quence of the words, discord happened between him and his wife,f and he was in danger of a di- vorce. Or, to allege that the plaintiffs was exposed to her parent's displeasure, and in danger of being put out of their house. Or, to say he lost the affection of his mother, |! who intended him 100/. 2. How must the special damage be connected with the slander, to constitute a ground of action? It was said by Holt, C. J. that " At Common Law, if a man do an unlawful act, he shall be an- swerable for the consequences, especially where the act is done with the intent that consequential damage shall follow." § But it is not essential that the damage should be the necessary and inevitable consequence of the slanderous words ; it is sufficient, for instance, if they impose upon the plaintiff a violent and urgent motive for incurring expense. In the case of Peake v. Oldham, ^[ Lord Mans- field expressed an opinion, that the expenses of an inquest incurred by a plaintiff, who had been wrong- fully accused of murder, might be considered as special damage. * 1 Ley, 140. t 1 Roll. 34. \ Barnes v. Brutldell, 1 Ler. 61. Car. 1. 1 Com. Dig. tit. Defam. D. SO. § Ld. Rsy. 4&P ' r'oivp. 277. 16S The rule appears to be, that the damage must be the mere, natural, and immediate consequence of the wrongfulact. The defendant asserted, that the plaintiff had cut his master's cordage;* upon which the master dis- charged him, though under an engagement to employ him for a term. It was held by the court, that the discharge was not a ground of action ; that the special damage must be the natural and legal consequence of the words spoken ; and that the defendant was no more answerable for the dis- charge, than if, in consequence of the words, other persons had assaulted and thrown the plaintiff into a horse-pond. The damage must be attributable ivholly to the words ; so that where the reason of a person's re- fusing to employ the plaintiff was founded, partly on the defendant's words, and partly on the cir- cumstance of his having been previously discharged by another master, it was held that no action was maintainable, f And it seems, that in general,]: where, in conse- quence of the words, a third person has refused to perform a contract previously made with the plain- tiff, and which he was in law bound to perform, no action is maintainable ; for the plaintiff, in such case, is entitled to a compensation for the non-perform- ance of the contract; and, were he allowed to maintain Ins action for the slander, he would re- ceive a double compensation for the same injury : first, against the author of the slander ; and se- * Vicars v.Wilcocks, 8 East, 1. 1 8 East. 1. 1 2 Bos. and Pull. 284. 8 East. T lt>9 condiy, against the person who had refused to per- form his agreement. This legal difficulty may, in some instances, be productive of hardship to the plaintiff: he may re- sort, it is true, to his legal remedy against the per- son refusing to perform his contract ; but this can scarcely be considered as a full and real compensa- tion to the party, who, by the defendant's wrongful act, has had a benefit in possession wrested from him, and converted into a bare legal right. The defendant* having libelled a performer at a place of public entertainment she refused to sing, and the proprietor brought his action on the ground of special damage, alleging that his oratorios had, in consequence of her absence, been more thinly at- tended. But it was held, by the learned judge who presided at the trial, that the injury was too re- mote ; that if the performer was really injured, an action lay at her suit ; and that it did not appear but that her refusal to perform arose from caprice or indolence. The plaintiff having once recovered damages in an action for words, cannot afterward recover an ulterior compensation for any loss subsequently re- sulting from the same words.f Where the plaintiff, :£ knowing the defendant's sentiments, procures the publication of that from which damage results, he will not afterward be at liberty to ascribe his loss to the defendant's act, but be considered as the vo- luntary author of the mischief which follows. * 1 Esp. R. 48. t Bull. N. P. V. + 3 B. and P. 502. 5 Esp. R. 15. 32 17U CHAPTER VIII. Of the Defendant's Wrong. Having thus considered the nature and quantity of the damage which the plaintiff must have sus- tained to entitle him to a legal compensation, the next question for inquiry is, When shall the act of communication be deemed a wrong ? Since, as has already been seen,* it is the connexion of the plain- tiff's loss with the defendant's wrong,! which ren- ders the title to a remedy by action complete. The wrongful act of the defendant is compounded, 1. Of the mere mechanical means by which the communication is effected. 2. Of the malicious intention with which it is made. In order to support an action, it is, of course, essential that the slanderous matter should be con- veyed to the mind of a third person, or, in technical language, should be published, for otherwise no de- triment can have accrued from the plaintiff's act ; but, with the exception of the case of libel, the means of publication are indifferent, and do not af- fect the relevancy of the action. In the case of libel, it is sufficient if the defendant be the partial instrument of communication, either by assisting in its original construction or subse- quent promulgation ; since, if one party were to * T. 8. 1 1 Cora. Dig. tit. Action on the Case. B. 1. 4 T. It. 141 171 dictate, a second to write, and a third to distribute written or printed slander, the plaintiff would be left without remedy, unless each of these parties were to be considered as responsible for the whole effect produced. The subject of publication will hereafter be dis- cussed as a matter of evidence ; assuming therefore for the present, that some publication has been made to a third person, with the defendant's know- ledge, and through his procurement,* the next point for consideration is — The malicious intention with which he published. The characteristic of wrong, in these cases, is, the wilful design and intention of the defendant to injure the object of his publication.(l) Every definition of the subject matter of an ac- tion for slander, to be found in the books of reports, or elementary writers, includes malice as an essen- tial ingredient ; whence it may be laid down as a general position, that whenever a damage of the nature described in the preceding chapters, results from a malicious intention on the part of the pub- lisher, an action is maintainable. There is, however, a distinction between malice s when used in the strict legal sense of the word, as the characteristic of the defendant's wrong, and as understood in its moral and more popular accep- tation. In the latter sense, malicious slander consists in * See Baldwin v. Elphinstone, Bl. Rep. 1037. (1) The insanity of the defendant, therefore, at the time of speaking the words, would be matter of defence, provided it was great and notorious. Dich ■inson v. Barber, 9 Mass. Rep. 225. Horner v. Marshall's Mm. 5 Munf. 466. [72 kt The relating either truth or falsehood tor the pur- pose of creating misery."* But the law, from reasons of policy, in many in- stances, presumes conclusively that the intention of the party was innocent, or at least will not suffer his motives to be questioned in an action for slander. And this happens where he is acting under the immediate sanction of the law, in the performance of some public or private duty ; in such cases, he may publish that which is detrimental to another, either from a sense of duty, or, as is very possible, may take advantage of his situation for the purpose of mischief and vexation.(l) Now, though the mo- ral offence, which depends merely upon the mali- cious intention, cannot be extenuated, but is rather aggravated by the selection of such an opportunity for effecting mischief, yet the law, on account of the inconveniences and perplexities which would arise from inquiring in such cases, into the real motives by which the party was influenced, prohibits such investigation, and will not permit the act to be at- tributed to any other origin than the proper and eonscientious one suggested by the situation of the defendant. Were every malicious and oppressive act to be considered illegal, the law would be very agreeable to the theorist, but utterly unfit for the practical purposes of society, on account of the infinite per- plexity and uncertainty which would occur in dis- tinguishing between bad and good motives, where * Paley's Philosophy, Vol. I. p. 28<$. (1) See Sehocli v. M'Chesney, 8 P. A. Browne's Rep. 65. Opinion of Brack' em:'tde;e .t. 17d the act done might arise from either source. The secret purpose of a man's heart is of too difficult ascertainment to be made the general criterion of legal right or wrong ; and hence it is that the law, which must resort to more plain and certain evi- dence, on which it may found more precise pre- scriptions, may not imfrequently become the instru- ment of oppression. For example : where a cre- ditor, from motives of malice and revenge, and not with a view to his legal remedy, deprives his debtor of liberty ; as a matter of conscience the act is cri- minal and unjustifiable ; yet it must be sanctioned and tolerated by the law, in order to avoid conse- quences most pernicious and absurd ; for were it otherwise, a man's security for his debt would de- pend on the temper and disposition of his mind, upon his motive for becoming a creditor in the first instance, and his reasons for enforcing his claim in the second ; and, however pure his intention, he might be deterred from proceeding, by the appre- hension of being involved in litigation, upon a sug- gestion of malice, by his adversary. And the same kind of reasoning is applicable to the case of slander : it would frequently lead to too nice and critical an investigation, to inquire whether a person who published words in the course of per- forming a public duty, was actuated by malice and ill-will, or by conscientious motives ; and much in- convenience would arise, were persons to be deter- red from the performance of public duties, or from a fair prosecution of their claims, by the apprehen- sion of the liabilities and danger to which they ex- posed themselves. 174 In an action for slander, the defendant's malice is immaterial, 1. Where the imputation is true ; 2. Where the publication is made in the regular course of parliamentary or judicial proceedings ; 3. Where such proceedings are faithfully re- ported. In such cases, the law, considering the benefit which society derives from the exposure of villany, or rather, perhaps, the impropriety of a person's recovering damages in a proceeding tainted with his own misconduct ; the necessity of securing those who have public duties to perform, or private claims to enforce, from the apprehension and fear of col- lateral consequences, and the advantages derived from the publicity of parliamentary or judicial pro- ceedings, will not, however malicious ami repre- hensible the defendant's intention may, in fact, have been, allow his motives to be questioned in an ac- tion for the scandal. 17 D CHAPTER IX. Where the Imputation is true. Where the defendant has asserted no more than is true, the consequent damage is immaterial, since the law will not allow the plaintiff to attribute his loss to the defendant's act, for the purpose of ob- taining a compensation by action. Sir William Blackstone,* in his Commentaries, seems to consider the defendant's exemption in this instance as extended to him in consideration of his merit in having warned the public against the evil practices of a delinquent. He says, that it is dam- num absque injuria, intimating that the act of the defendant does not constitute a wrong in its legal sense ; and then proceeds to observe, that this is agreeable to the reasoning of the civil law, " Eum qui nocentem infamat non est ceqaum et bonum ob earn rem condemnari, delict a enim nocentium cognita esse oportet et expedilP Notwithstanding this, there seems t,o be some difficulty in supporting this justification, on the ground that the defendant's act is not, in contemplation of law, a wrong, since, as will be seen, it is considered as such in the crimi- nal proceeding, and if the act be justifiable because it confers a public benefit, it must be so to all legal purposes ; for it would savour too much of paradox to say, that in respect of an individual claiming a private compensation, the act is innocent, because * 3 Bl.Com. 12* 176' it is beneficial to the public, but that, in relation to the public so benefitted, the same act is wrongful. It may, therefore, be more consistent to consider the plaintiff as having excluded himself from the protection of the courts by his own misconduct, than to attribute the exemption to any merit apper- taining to his adversary. When a plaintiff is really guilty of the offence im- puted, he does not offer himself to the court as a blameless party seeking a remedy for a malicious mischief, his original misbehaviour taints the whole transaction with which it is so closely connected, and precludes- him from recovering that compen- sation to which an innocent person would be en- titled. That the truth was a good justification, does not appear to have been doubted in the case of words spoken ; in respect of an action for libel, indeed, the contrary has been maintained ; but the authori- ties upon this point, which are very scarce, seem to preponderate much in favour of the justification. In the case of the King v. Roberts,* Lord Hard- wicke, C. J. is said to have thus expressed himself on a motion for an information against the defendant : " It is said, that if an action were brought, the fact, if true, might be justified ; but I think that is a mis- take, such a thing was never thought of in the case of Harman v. Delany.f I never heard such a jus- tification in an action for a libel even hinted at, the law is too careful in discountenancing such practices ; all the favour that 1 know truth affords in such a * Br. M. and G. 2. MSS. 3 Bac. Ab. 455. Dig. Law, Lib. 16. Sel. Ni. PrL 1st Ed. 929. • Str. 89S- 177 case is, that it may be shown in mitigation of da- mages ; and of the fine in an indictment or informa- tion." And in another case, it was said by Lee, C. J> (upon the trial of the defendant upon an informa- tion,) that it had always been holden that the truth of a libel could not be given in evidence by way of justification; because, where the person charged with any crime is guilty, he ought to be proceeded against in a legal course, and not reflected upon in such a manner. In the King v. Bickerton,f the Chief Justice t observed, (upon a motion for a cri- minal information,) that though truth be no justifica- tion for a libel, as it is for defamatory words, yet it would be sufficient cause to prevent the extraordi- nary interposition of the court. In the two last cases, the dicta of the learned Judges cannot but be understood as spoken with reference to the criminal proceeding before them, and therefore as no authorities in respect of an ac- tion. — On the other hand, Hobart, C. J. in the case of Lake v. Hatton,|| said, that a libel, though the contents be true, may be justified in an action upon the case. And Holt, C. J. laid it down expressly, that " A man§ may justify in an action for words or for a libel, otherwise in an indictment." In the case of J. Anson v. Stuart, f the truth was pleaded in bar of the action for written slander, and no objection was made, or exception taken, either by the court or the plaintiff's counsel, to the * Sel. Ni. Pri. 1st Ed. 929. t Str. 498. J Sir J. Pratt. || Hob. Rep. 25S. 6 11 Mod. 99. ^ IT. R. 748. 23 17» defendant's right to avail himself of a defence of that nature. (1) Sir William Blackstone seems to have been of opinion, that the truth was a good justification in case of an action for libel ; since, after asserting that it is a good defence in case of slander spoken,* he adds, " What was said with regard to words spoken, will also hold in every particular with regard to li- bels by printing or writing, and the civil actions consequent thereupon. f With respect to an action for Scandalum Magna- turn, it was resolved in the Earl of Northampton's case,t that " the publishing of false rumours, either concerning the king or of the high grandees of the realm, was in some cases punishable by the Com- mon Law ; but of this were divers opinions. Yet it was resolved in general, that touching the matter and quality of the words, that they ought to be false and horrible." North, C. J. II was of opinion, that under the statute, the defendant could not justify in an action for scandalum magnatum. But both Atkins and Scroggs, justices, thought differently ; and the latter held, that the words in the principal case might have been justified by showing the special matter either in pleading or evidence. And in Lord Cromwell's case,§ the defence in such an action seems to have been considered on * 3B1. Com. 125. t See also 3 Wood. 1S2. 3 151. Coin. 125. 14th ed. ; and Selwyp's Mi. Pri. 1st ed. 929. ' t 12 lien. .133. || 2 Mod. 150. § 1 Co. 13. (1) Van A'*w v ffamillott, L9 Johns. Rep. 349. the same footing with a common action tor slander. The general rule, therefore, seems to be, that in action for words, their truth is a good justification. The plaintiff' was charged as accessary to a fe- lony, the principal having been acquitted ; and it was held competent for the defendant to go into evidence to prove his guilt, because what had passed between others could not affect him. Where the words imputed a charge of murder, for which the plaintiff had been tried and acquitted, it was held that the defendant might justify special- ly, and that the truth of such plea might be tried.* And it has been said, that where the defendant jus- tifies specially, by pleading the truth of a capital of j fence imputed to the plaintiff*,! on such issue being found against the plaintiff, he may be put upon his trial for the offence without the intervention of a grand jury.(l) The justification must be pleaded, and proved with great precision. Thus, if the defendant tax the plaintiff with having feloniously stolen a sum of mone} r , it will be no justification that the plaintiff" had in fact:}: stolen some other personal chattel.(2) So, where the defendant said of a counsellor at law, || " You are a paltry lawyer, and use to play on both hands." The defendant justified as to the latter words, that the plaintiff had devised certain articles against F. R. concerning misdemeanors supposed to have been done by him, and after- * England v. Bourkc, 3 Esp. R. 80. t 3 Esp. K. 133. Cook v. Field l|Cro. J. 676. || Cro. J. 267. (1) Resp. v. Davis, 3 Yeates, 129. (2) Frederitze v. Odmwalder, 2 Yeates, 243. .Andrews v. Vanduzer. 11 Johrv Rep. 38. v ISO ward promised F. R. that he should not be molest- ed by reason of the said articles ; and yet, notwith- standing, by the procurement of others, the plaintiff endeavoured to prosecute F. R. upon the said arti- cles, before the chancellor and commissioners of the Archbishop of Canterbury ; and the plea was held bad on demurrer. No suspicion, however strong, will amount to a justification.* Neither is common fame any ground for justify- ing an extra-judicial charge.f(l) In Cuddington v. Wilkins,t winch was an action tor publishing these words of the plaintiff, " He is a thief;" the defendant pleaded, that the plaintiff had been guilty of stealing six sheep. The plaintiff replied, that after the felony, and before the publi- cation of the words, he had been pardoned by a general pardon. Upon a demurrer, this replication was holden to be good, inasmuch as the guilt, as well as the punishment, is taken away by a pardon. And it was held, that it makes no difference in such ease, whether the pardon be general or special, of which the defendant might have been ignorant, for that every person who publishes slanderous words does it at his peril. But it was said, that if he had been convicted and pardoned afterward, it would be otherwise. But a pardon after conviction of perjury will not restore the perjured person to his credit. || * Powell v. Plun&ett, Cro. Car. 52. tHutt. 13. Bridg.62. Brownlow 2. I Hob. 81. I Sid. 9!*. (1) Nor opinion. Brooks v. Brmixx, 8 John?. Rep 356. It has long been settled,* that the truth, if relied upon as a justification, or even in mitigation of dama- ges, must be pleaded. And since the degree of certainty and precision necessary to complete a jus- tification of this nature is inseparably connected with the form and rules of pleading, further remarks upon this topic will be reserved for the division in which the technical mode of framing the plea is con- sidered. •* Str. 120Q. 183 CHAPTER X. Of Publications made in the course of Parliamentary or Judicial Proceedings. It may next be considered, how far a person is protected from the effect of words published in the course of parliamentary or judicial proceedings. Here a distinction naturally suggests itself, be- tween cases where a party is by law called upon to execute a public duty, and those where his act is merely voluntary. Under the former division may be classed members of either house of parlia- ment, and judges, jurors, and witnesses, in any of our courts of justice. Under the latter, petitioners or suitors, their counsel and attorneys, who are constrained by no legal obligation to apply for the redress of grievances on the behalf of themselves or their clients, but who are nevertheless by law in- vited to prefer their complaints for the purposes of justice. In the first place,* it seems that no member of either house is in any shape responsible in a court of justice for anything said in that house, however offensive the matter may be to the feelings, or detrimental to the interest of any individual ;f(l) for • 1 F.sp. R. 22G. t By 4 Hen. VIII. c. 8. members of parliament arc protected from all (1) Even though the words be spoken maliciously. Coffin v. Coffin, 4 Mas* Rep. I. 1S:3 policy requires that those who are by the constitu- tion appointed to provide for the safety and welfare of the public, should, in the execution of their high functions, be wholly uninfluenced by private consid- erations. Accordingly, in such cases, (as has been asserted by a high authority,*) courts of law pos- sess no jurisdiction. But the privilege does not extend beyond the walls (2) of the house to which the member belongs ; and a peer, who publishes! libellous matter in the public prints, as having con- stituted part of his speech in parliament, is as open to an action or prosecution as any private indivi- dual.^) The same rule, as to impunity, suggested and go- verned by similar principles, applies to judges, ju- ries, and witnesses, in respect of any thing published by them in the course of a judicial proceeding. Certain charges having been preferred by the plaintiff against an officer of his own regiment,^ the court martial, after acquittal, subjoined the follow- ing declaration : (•barges against them for any thing said in either house. — And this is fiuthei declared in the Bill of Rights. 1 W. M. st. 2. c. 2. See 1 Bl. C. 161. (4) * Lord Kenyon,in the King v. Lord Abingdon. 1 £sp. Rep. 22G. UEsp. R. 226. I2N.IL 311. (2) It extends to protect the member when sitting on a committee in a lob- by, or in convention of the two houses out of the Representatives' chamber. Coffin v. Coffin. (3) The Kin? v. Crcsvy, Esq. 1 Man. and Sehv. 273. (4) Con. U. S. Art. 1. sect. 6. Const, of Maine, Art. 4. sect. 8. Const. A*. Hampshire, pt. 1. Art. 30. Const. Massachusetts, pt. 1. sect. 21. Const. Con- necticut, Art. 3. sect. 10. Const. Vermont, Art. 14. Const. Pennsylvania, Art. 1. sect. 17. Const. Delaware, Art. 2. sect. 11. Const. Maryland, Deel. of Rights, sect. 3. Const. Georgia, Art. 1. sect. 11. Const. Louisiana, Art. 2. sect. 20. Const. Kentucky, Art. 2. sect. 24. Const. Ohio, Art. 1. sect. 13. Const. Tennessee, Art. 1. sect. 10. Const. Indiana, Art. 3. sect. 13. Const. Minors, Art. 2. sort. 12. 184 " The court cannot pass, without observation, the malicious and groundless accusations that have been produced by Captain J. against an officer whose character has, during a long period of ser- vice, been so irreproachable as Colonel Stewart's ; and the court do unanimously declare, that the con- duct of Captain J. in endeavouring falsely to calum- niate the character of his commanding officer, is most highly injurious to the good of the service." For this the plaintiff brought his action against Sir J. Moore, the president of the court martial. Upon the trial of the cause before Sir J. Mansfield, C. J. it appeared, that the supposed libel formed part of the opinion of the court, delivered by the defendant to the Judge Advocate, for the purpose of being submitted to the king, and immediately followed the declaration of the opinion of the court martial. — " That he, the aforesaid Colonel Richard Stewart, is not guilty of either of the charges, and the court do most fully and honourably acquit him." The plaintiff was nonsuited. And afterward a new trial was refused, on the o-round that the words complained of formed part of the judgment of acquittal. So it is held, that no presentment by a grand jury can be a libel,* not only because persons who are supposed to be returned without their own seeking, and are sworn to act impartially, shall be presumed to have proper evidence for what they do ; but also, because it would be of the utmost ill consequence any way to discourage them from making their in- * Bac. Ab. tit. Libel, 455. Mq. 627. Haw. P. C. o. 73. s. 8. See also the observations of the court in Johnson v. Sutton, 1 T. R. 4D3, 510, 784, 185 quiries with that freedom and readiness which the public good requires. Several of the authorities in the books cited re- late to cases of criminal prosecution ; but the rea- sons and principles are equally forcible, when ap- plied to a civil action, since the same policy in both cases opposes itself to the calling in question the motives of the parties. Witnesses, like jurors, appear in court in obe- dience to the authority of the law,* and therefore may be considered, as well as jurors, to be acting in the discharge of a public duty ; and though con- venience requires that they should be liable to a prosecution for perjury committed in the course of their evidence, or for conspiracy in case of a com- bination of two or more to give false evidence, they are not responsible in a civil action for any reflec- tions thrown out in delivering their testimony.(l) The plaintiff brought an actionf against one L., and the defendant being produced as a witness at the trial, gave evidence that the plaintiff was a com- mon liar, and so recorded in the Star-chamber ; by reason whereof the jury gave the plaintiff small da- mages. After verdict for the plaintiff for this alleged slander, it was moved in arrest of judgment, that the action did not lie ; for if it did, every witness might be charged upon such a suggestion, and judg- ment was given for the defend ant. t * See 2 Inst. 228. 2 Rolls Rep. 193. Pal. 144. 1 Vin. A. 387. Cro. Eliz. 230. t Brownlow. 2. Harding v. Bulman. Hast. 11. J It has been doubted whether a preconcerted scheme for taking away the life of another by false evidence, fpr the sake of obtaining a statutable reward upon conviction, amounts, when carried into effect, to the crime of murder. — See Leach's C. C. L. 52. Foster 130. M) 1 Bin. 186. <24 186 With respeet to petitioners in parliament, am suitors or prosecutors in courts of law, it has been held, that no proceeding, according to the regular course of justice, will make the complaint amount to a libel, so as to render the party criminally liable, on the ground that it would be a great discourage- ment to suitors to subject them to public prosecu- tions in respect of their applications to a court of justice ; and that the chief intention of the law, in prohibiting persons to revenge themselves by libels or any other private manner, is, to restrain them from endeavouring to make themselves their own judges, and to oblige them to refer the decision of their grievances to those whom the law has ap- pointed to determine them.*(l) And the same reasons oppose themselves to al- lowing an action to be maintained, grounded upon such a proceeding. In the case of Lake v. King,f the plaintiff de- clared that he was a doctor of laws, and vicar-gene- ral to the Bishop of Lincoln ; and then set forth the libel complained of, which charged him with extor- tion, vexation, oppression, and other misdemeanors in his office. The defendant pleaded that the matter was true, * Dyer, 2S5. 2 Ins. 229. 2 Buls. 269. Gotlb. 340. Pal. 145. 188. Vent. 23. Haw, PI. C c. 73. s. 8. 3 Bac. Ab. 494. t 1 Saun. 131. (1) Harris, E3q. v. Huntington, Esq. 2 Tyl. Rep. 129. So also accusation' preferred to the Governor of a state, or to a Council of appointment, against a person in office, are in the nature of judicial proceedings, and the accuser is not held to prove the truth of them. Gray v. Pentland, 2 Serg. and Rawle, 23. Thorn v. Blanchard, 5 Johns. Rep. 509. But it is no justification of a libel, that the defendant signed the libellous paper, as chairman of a public meeting of citizens, convened for the purpose of deciding on a proper candidate for the office of governor, and that it was published by order of such meeting. Lem» v. Few, 1 Antb. N. P. Rep. 75. 5 Johns. Rep. I. ;*7 ami that tlierefbre he procured the petition (which was the libel complained of) to be engrossed, and delivered to the committee appointed by the com- mons to hear and examine grievances ; and that afterward, for the better manifestation of the griev- ances contained in the said petition, he caused the same to be printed, and delivered to the members of the committee. The plaintiff demurred. It was agreed on all hands, that the exhibiting the petition to the committee of parliament was lawful, and that no action lay for it, although the matter contained in the petition was false and scandalous, because it was in the summary course of justice, and before those who had power to examine whether it was true or false. It appears that this case was much considered,* and that the judgment was given for the defendant, after it had depended twelve terms, by Hale, C. J. and Twisden and Rainsford, Justices, on the ground that it was the order and course of proceeding in parliament to print and deliver copies of petitions, of which the court would take notice. But it was held, that to have distributed the printed copies to any but members of parliament would have been actionable. And that, in general, where the printing was not warranted by the necessity of so great a number of copies, to print them would be actionable ;f but that, in the principal case, the printing them (which is a publishing of them to the printers and compo- sitors) was not so great a publication as to have so many copies transcribed by several clerks. It appears to iiave been urged in favour of the • Lev. 241. 1-Mod. 53. Sid. 414 + SiJ. -114. 188 plaintiff that the complaint was made to a court which had not power to redress it. But in the case of Kemp v. Gee,* it was resolved by the House of Commons, that Gee was guilty of a breach of privilege in suing Kemp and others for a libel, sup- posed to be contained in a petition presented to the house for a redress of grievances, and that all peti- tions to them were lawful, or at least punishable by themselves only. So no action lies for any allegation, pleading, or other matter,f published in the usual course of a civil or criminal proceeding in courts of justice. The reason for which is, that if actions should be permitted in such cases, those who have just cause of complaint would not dare to complain, for fear of infinite vexation. :{: And, as was observed by Lord Mansfield, C. J.|| there can be no scandal if the al- legation be material ; and if it be not, the court be- fore whom the indignity is committed, by immate- rial scandal, may order satisfaction, and expunge it out of the record, if it be upon the record. So, where the plaintiff declared that the defen- dant, in a certain affidavit before the court, had sworn that the plaintiff in a former affidavit had sworn falsely ;§ the court held that this was not ac- tionable, for that in every dispute in a court of jus- tice, where one, by affidavit, charges a thing which the other denies, the charges must be contradictory, and there must be affirmation of falsehood ; and this being necessary in a legal proceeding, no action would lie for it. * 9 Feb. 8. W. 3. See C. J. Holt's argument in the rase of Ashby v„ White. Dig. L. L. IS. \ 1 Roll. 33. } 4 Coke, 14. || 2 Burr. Si 7 § Astley v Youne. 2 Burr. 917. So in trespass,* if the defendant, in his plea ot justification, falsely aver that the plaintiff was bankrupt, and that the defendant had a commis- sion upon the statute, by virtue of which those goods were delivered to him ; yet the plaintiff, for the words, cannot maintain an action. In Weston v. Dobniet,f the plaintiff declared, that there was a suit in the spiritual court between one A. and the defendant, wherein A. produced the now plaintiff as a witness ; that the defendant having a day given to except against the witnesses, put in his exceptions in writing, alleging, that the now plaintiff, was not a competent witness, and that there ought not any credit to be given unto him, because he was perjured. Whereupon the plain- tiff (pending the suit) brought the action for this scandal ; but the whole court held that the action was not maintainable, because the proceeding was in the common course of justice, and not ex mi- litia.(l) And in criminal prosecutions, it seems perfectly established, that no action will lie for any distinct matter disclosed in the course of such proceeding, but that the party must seek his remedy lor a ma- licious and groundless prosecution, either by writ of conspiracy or by a special action on the case, founded upon the whole of the circumstances. f Sir Richard Buckley; brought an action against Owen Wood, for exhibiting a bill against him in the Star Chamber, and charging him with several * Cro. J. 432. t 3 B!. Com. 12G. 10 Mod. 210. 219. 200. Str. 691. I 4 Co. 14. (1) See Jarvii v. Hatheicav, 3 Johns. Rep. 179. JWMillnn v. Birch, l Binr. 178 matters examinable in that court ; and charging him further, that he was a maintainer of pirates and murderers, and a procurer of pirates and murderers, which offences were not determinable in the Star Chamber. And it was resolved by the whole court, that for any matter that was contained in the bill that was examinable in the said court, no action lies, although the matter be merely false, because it was in the course of justice ; and that this agreed with the judgment before given in Cutler v. Dixon.* But it was also resolved, that for the words not examin- able in the Star Chamber, an action on the case lies, for that cannot be in a course of justice ; and that if such matter might be inserted in bills in so high a court to the great slander of the parties, and they cannot answer it to clear themselves, nor have their action as well to clear themselves, as to recover damages for the great injury and wrong done them, great inconvenience would ensue. That by law, no murder or piracy could be tried by bill, but by indictment only ; and therefore, that the defendant had not only mistaken the proper court, but the manner and nature of the bill had not any appearance of a suit in the ordinary course of justice. But that if a man brought an appeal of murder returnable in the common pleas, no action would Me ; for, though the writ was not returnable before competent judges, yet it is in the nature of a lawful suit, namely, by writ of appeal." The first partf of this resolution has been fre- * Dver, 285. t 2 Inst. 228. Roll. Ab. 87. pi. 4. Sir W. Jon. 431 m quently confirmed, and extends to all proceedings in the regular course of justice, and to actions for scandalum magnatum.* The defendant! brought a writ of forger of false deeds against Lord Beauchamp ; and, pending the writ, Lord B. brought an action for the scandal. The defendant justified by his having the said writ before. Upon demurrer, the justification was holden to be good, and out of the intendment of the law and statutes of slander. And if the publication be made in the course of a judicial proceeding it does not appear to be essen- tial to the justification that the defendant strictly observed the technical mode of proceeding. The plaintiff declared, that he made an affidavit to have the defendant bound over to his good beha- viour ; and that the defendant, in the hearing of the justices and officers J of the court and others present, said, "There is not a word of truth in that affidavit, and I will prove it by forty witnesses." And it was held that the words were justifiable, being in a judi- cial way.(l) And the same rule obtains where application is made in the usual course to a magistrate or other peace officer; The defendant went to a justice of the peace for a warrant against the plaintiff, || for stealing his ropes. The justice said, " Be advised, and look * 2 Buls. 269. 2 Burr. 808. 3 Bac. Ab. 492. t Lord Beauchamp v. Sir R. Croft, Dyer, 285. j Jo. 341. Mar. 20. Boulton v. Clapbam. 11 Hutt. 113. Mich and Can. Rain v. Langley. (1) See Swearingen v. Birch, 4 Yeates, 322. See also what ie said by Tilsrh- man, C. J. 2. Serg. and Rawle, 471. 192 what you do ;" and the defendant replied, " I will- charge him with flat felony, for stealing my ropes from my shop."(l) The court agreed, that these words being spoken to a justice of the peace when he came for his warrant, which was lawful, would not maintain an action ; for if they could, no other would come to a justice of the peace to inform him of a felony. By the latter resolution, in the case of Buckley v. Wood,* the court decided that scandalous mat- ter would be actionable, if exhibited by means of an improper process, and in a court which had no jurisdiction over the subject matter; but it plainly appears that the court held, that both im- propriety of process and want of jurisdiction must concur to deprive the defendant of his justification j for it was expressly said, that the bringing' a writ of appeal of murder in the common pleas would not be actionable ; since, though they wanted juris- diction in the particular instance, yet that the pro- ceeding by writ of appeal was in the nature of a lawful suit. In Lake v. King,f the court said, that notwith- standing what was reported in Buckley's case, it was held that want of jurisdiction will not make a libel, for it is only the error of counsel. * 4 Co. 14. t 1 Vin. Ab. 389. note to pi. 67. (1) Shock v. M'Chesney, 4 Yentcs, 507. It lias been held in England, that an action for defamatio . cannot be sustained against a person whose property has been stolen, and who, upon reasonable grounds of suspicion, but without any application to a magistrate, charges an innocent person with having stoler 't. FoioUr et vx. v. Homer, 3 Camp. Rep. 294. Observe the facts of the case Powel, J.* is reported to have said, *' I have heard my Lord Hale say, that for putting matters in a bill, of which the court hath no cognizance, action does not lie against the plaintiff, though in the fourth report it is laid down otherwise. Sergeant Hawkins,! in his Pleas of the Crown, observes, " It has been holden by some, that no want, of jurisdiction of the court, to which such a complaint is exhibited, will make it a libel, because the mistake of the court is not imputable to the party, but to his counsel. Yet, if it shall mani- festly appear, from the whole circumstances of the case, that a prosecution is entirely false, mali- cious, and groundless, and commenced not with a design to go through with it, but to expose the de- fendant's character under a show of legal proceed- ing, I cannot see any reascJn why such a mockery of public justice should not rather aggravate the offence than make it cease to be one, and make such scandal a good ground of indictment at the suit of the king, as it makes the malice of the pro- ceeding a good foundation of an action on the case, at the suit of the party, whether the court had juris- diction or not."(l) From these authorities it may be collected gene- rally, that no action can be maintained jor any thing said, or otherwise published, in the course of a judicial proceeding, whether criminal or civil, though for a malicious and groundless prosecution, * 2Lut. 1571. t PI. Cr. c. 73. s. 8. See also Serg. Williams's note, 1 Saund. 132. (1) See Gray v. Pentland, 2 Serg. and Rawle, 23. Thorn v. Blanchard, 5 Tohns. Rep. 509. Milom v. Burnsides et at. 1 Nott and M'Cord's Rep. 426. 25 194 an action, and perhaps an indictment, may be sup- ported, founded on the whole proceeding. It must, however, be recollected, that the jus- tification does not extend to any publishing which the usual course of judicial proceeding does not warrant. Thus, in Lake v. King, the great doubt was, not whether the exhibiting the petition to par- liament was lawful or not, but whether the defend- ant was warranted in printing and publishing it in the manner alleged in his plea.* And so, in the case of Hare v. Meller,f it was adjudged lawful to present a petition to the queen, though reflecting upon the character of the plaintiff; but deemed actionable afterward to divulge the con - tents to the disgrace of the person intended. * 1 Saund. 132. t 3 Lev. 169. See also 4 Rep. 14. I !->/) CHAPTER XI. Where Parliamentary or Judicial Proceedings aire faithfully reported. In general, impartial and correct accounts of the proceedings in parliament, or in the courts of jus- tice, do not, in legal contemplation, amount to a wrong, so as to render the party publishing them either civilly or criminally responsible. Upon an information against the defendant, for publishing* " Dangerfield's Narrative," he pleaded that he was, at the time of the publication, Speaker of the House of Commons, and as such, had aright to publish the votes and acts of the house, and that the narrative was printed and published as parcel of the proceedings ; and notwithstanding this the court gave judgment for the king.f But in the King v. Wright, % an application was made to the Court of King's Bench, to grant a cri- minal information against the defendant, for print- ing and publishing a libel on an individual. Upon the defendant's affidavit, it appeared that the charge complained of was a paragraph contained in the re- * R. v. Williams. 2 Show. R. 471. Comb. 18. See Sir R. Atkyns on the Power of Parliament. t This case was reprobated by Lord Kenyon, C J. and Grose, J. giving judgment in the Kin- v. Wright. 8 T. R. 293. 8 T. R. 293. 19t> port of the Committee of Secrecy of the House of Commons, a literal copy of which he had published. After hearing counsel on the part of the applicant, the information was refused. Lord Kenyon, C. J. observing, " As this was a true copy of the report of the House of Commons, I think there was not the least pretence for the motion ; the application supposes that the publication is a libel, but it is im- possible to admit that the proceeding of either of the houses of parliament is a libel." The case of Sir W. Williams, which was princi- pally relied on, happened in the worst of times, but that has no relation to the present case. There the publication was the paper of a private individual, and under pretence of the sanction of the House of Commons, an individual published ; but this is a proceeding by one branch of the legislature, and therefore we cannot inquire into it. Grose, J. said, " On looking into the judicial pro- ceedings of this court, I find no instance of such an information as the present ; the case of Sir W. Wil- liams is most like this, but it must be remembered, that that was declared by a great authority to be a disgrace to the country." Lawrence, J. observed, " It has been said, that the publication of the proceedings in courts of jus- tice, when reflecting on the character of an indivi- dual, is a libel ; to support which position, the case of Waterfield v. the Bishop of Chichester has been cited ;* but, on examining that case, it appears that the charge there was, that the plaintiff had not pub- lished n true account. The proceedings of courts * 2 Mod. 118. 19? of justice are daily published, some of which highly reflect on individuals, but I do not know that an in- formation was ever granted against the publisher of them. Many of these proceedings contain no point of law, and are not published under the authority or the sanction of the courts, but they are printed for the information of the public. Not many years ago, an action was brought in the Court of Common Pleas by Mr. Currie,* against Walter, the proprie- tor of the Times, for publishing a libel in the paper of " The Times ;" which supposed libel consisted in merely stating a speech made by a counsel in this court, on a motion for leave to file a criminal infor- mation against Mr. Currie. L. C. J. Eyre, who tried the cause, ruled that this was not a libel, nor the subject of an action, it being a true account of what had passed m this court ; and in this opinion the Court of Common Pleas afterward, on a motion for a new trial, all concurred, though some of the judges doubted whether or not the defendant could avail himself of that defence on the general issue : '* though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of the utmost importance to the public that the proceedings of courts of justice should be universally known. " The great advantage to the country in having these proceedings made public, more than counter- balances the inconveniences to the private persons whose conduct may be the subject of such proceed- ings. The same reasons also apply to the proceed- ings in parliament ; it is of advantage to the public, * 1 B. and P. 525. 19S and even to the legislature besides, that true ac- counts of their proceedings should be generally cir- culated, and they would be deprived of that advan- tage, if no person could publish their proceedings without being punished as a libeller. " Though, therefore, the defendant was not au- thorized by the House of Commons to publish the report in question, yet, as he only published a true copy of it, I am of opinion that the rule ought to be discharged." But in Styles v. Nokes,* it was observed by Lord Ellenborough, C. J. and Grose, J. that it must not be taken for granted that the publication of every matter which passes in a court of justice, however truly represented, is, under all circumstances, and with whatever motive published, justifiable, but that doctrine must be taken with some grains of allow- ance. " It often happens," said Lord Ellenborough, *' that circumstances, necessary for the sake of pub- lic justice to be disclosed by a witness in a judicial inquiry, are very distressing to the feelings of indi- viduals on whom they reflect.(l) The protection afforded by law to such publications does not how- ever, extend beyond a plain unvarnished statement of the proceeding, and will not warrant the least misrepresentation of facts, or even any high colour- ing of the circumstances stated." (2) Lofieldf having recovered in an action against * 7 East, 493. f Easter Term, 5. G. 2. 1732. 2 Barnard. K. B. 123. The King v. Lofield. (1) And see Rex v. Creevy, Esq. 1 Man. and Sehv. 273, and what is there said by Lord Ellenborough as to Currie v. Walter. See also Rex v. Carlile, 3 Bam. and Aid. 167. (2) Thomas v. Croswell, 7. Johns. Rep. 272. 199 Bankcroft, for maliciously charging him with felon) and for procuring him to be arrested on suspicion of the same, afterward published that Bankcroft had conspired to charge him with this felony, and that, in vindication of his character, he had brought an ac- tion against him for so doing, and had recovered 1100/. damages against him." On a motion for a criminal information, the court said, that the present advertisement had falsely represented the fact, for Lofield did not bring his action for a conspiracy, but for Bankcroft's maliciously charging him with fe- lony, and a conspiracy requires an infamous judg- ment. The rule was made absolute. It has been held, that the publication of matter contained* in depositions before a magistrate on a criminal charge, is not justifiable, the evidence being ex parte, and the disposition made by the prosecu- tor only.(l) A still stronger reason for prohibiting such pre- mature statements is, that they induce a prejudice against the defendant, and tend to deprive him of the benefit of a fair and impartial trial. The printer,! publisher, and editor of a public newspaper, were indicted for publishing a para- graph, purporting to contain the examinations before a magistrate, upon a charge brought against the pro- secutor by Mrs. Popple well ; the publication then proceeded to assume the truth of the depositions, and the guilt of the prosecutor, and to pronounce ft. and Lee, 5 Esp. 123. The King v. Fisher and others, 2 Camp. 563. (1) The King v. W. Fleet, 1 Barn, and Aid. 379. 200 that he would meet with the reward due to his villany. It was contended, on the authority of several of the cases above cited, that the publication was jus- tifiable, as being a true account of the proceedings in a court of justice. But Lord Ellenborough, C. J. said, " Trials at law fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged, the benefit the} r produce is great and permanent, and the evil that arises from them is rare and incidental ; but these preliminary examinations have no such pri- vilege, their only tendency is to prejudge those whom the law still presumes to be innocent, and to poison the sources of justice. It is of infinite im- portance to us all, that whatever has a tendency to prevent a fair trial should be guarded against. Every one of us may be questioned in a court of law, and called upon to defend his life and his cha- racter ; we should then wish to meet a jury of our countrymen with unbiassed minds ; but for this there can be no security, if such publications are permit- ted."(l) (1) See what is said by Abbott, J. and Holroyd, J. in the King v. Fleet, 201 CHAPTER XII. In the two classes of cases immediately preceding, the presumption of law is conclusive in favour of the defendant's innocence of intention. There is another, in which, though the motive of the party be not wholly exempted from examination, yet, in consideration of the character in which he has acted or assumed to act, — the law will presume in his favour in the first instance, and require the plain- tiff to rebut the presumption in some particular mode. And the benefit of this prima facie presumption enures in a greater or less degree to all defendants, who claim an interest for themselves or others ; as where a person makes an extra-judicial claim to an estate, or a counsellor speaks on behalf of his client in a court of justice. To those who act in a friendly character toward the defendant, as by communicating a slanderous report, and the author of it, to enable him to obtain a remedy. And to those, in general, who appear to act in the discharge of any duty which the convenience or exigencies of society call upon them to perform ; as, where a master gives the character of a servant, or a critic that of a book, for the information and advantage of the public. 26 202 The .nature and extent of the presumption of law in each of these cases will next be considered, and the means by which they may be rebutted. And first, ivliere a party, having probable cause, claims any title or interest. When a party lays claim to land or other pro- perty, by means of which the real owner is pre- judiced, though the words be not spoken in the ordinary course of justice, (in which case, as has already been seen, no action would be maintainable) vet, if the party had probable cause and colour for what he said, no action is maintainable, although no legal claim exist in fact. And the reason assign- ed for this by Sir E. Coke is,* that if an action should lie when the defendant himself claims an interest, how can any make claim or title to any land, or begin any suit, or seek advice and counsel, but he should be subject to an action which would be inconvenient ; and that this was agreeable to the opinion in Banister's ease,f that no action lies against one who publishes another to be his villain, without adding something by way of threat, which produces special damage. But if the defendant say, J that J. S. has a better title to the lands than the tenant in possession, and makes no pretence of title in himself, an action lies, if special damage follow from the words. It has frequently been held, that not only a gene- ral assertion of title in the defendant is justifiable, but that a specific ground of claim, as under a lease, * 4 ltcp. IS. t Filz. Action sur lc Case, 1G Bro. Ac. sur. !e Case, 90. 2 E. 4, 5. a. b. 15 Eu. 4. 32. a. b. 22 E. 3. 1, Conspiracy. 39 B. 3. 33. 43 E. 3. 20. F. N. B. 116. b. T Tenk. 247. pi. 37. is likewise justifiable, though the party knew he had no such lease. So that if B.* published that he had a lease of Blackacre for one thousand years, he would not be subject to an action for slander, though he had no such lease, since it is his own title ; but the reason and principle of these deci- sions appear very dubious, for though it may be inconvenient to render a claimant liabl to all the consequences of his claim when bona fide made, the inconvenience does not extend to the case of a defendant, who asserts a fact in support of his title which he knows to be false. And such a doc- trine seems directly contradicted by the case of Sir G. Gerard v. Dickenson.f The plaintiff there declared, that he was seized of the manor and castle of H. by purchase from Lord Audley, and that he was about to demise the castle and manor of H. to Ralph Egerton for a term of twenty-two years ; that the defendant said, "I have a lease of the castle and manor of H. for ninety years," and then and there showed and pub- lished a demise, supposed to be made by George Lord Audley, grandfather to the said Lord Aud- ley, for ninety years, to Edward Dickenson her husband, and published the said demise as a good and true lease, when, in fact, the lease was coun- terfeited by her husband, and the defendant knew it to be counterfeited ; by reason of which words, the said It. E. did not proceed to accept the plain- tiff's lease. The defendant, in her plea, denied her * Jenk. 217. Cro. E. 34. Mo- 144. Mo. 1SS. 410. Roll. Rep. 409. 4 Rep. 18. Yel. 89. Cro. Car. 140- Cro. J. 397, 393. 435. 1 Roll. Tien. 2 14 3 Buls. 75. Pal. 529. » 4 Ben. IB. Cro. Eli*. 1P7 ^04 knowledge of the forgery ; and the plaintiff demur- red. And it was resolved, 1. That if the defendant had affirmed and pub- lished that the plaintiff had no right to the castle and manor of H., but that she herself had right to them, in that case, because the defendant herself pretended right to them, although in truth she had none, no action would lie. 2. That the declaration was maintainable, because it was alleged that the lease was forged and coun- terfeited ; and yet she, against her knowledge, affirmed and published that it was a good and true lease, and that she knew of the plaintiff's communi- cation with 11. E. to let him the land. From this case it appears clear, that the extra- judicial assertion of a specific fact, against the knowledge of the party, thereby claiming title, will not avail as a justification. On the contrary, so much strictness has been required in case of such justifications, that where the defendant had said, " I know one* who hath two leases of his (the plaintiff's) land, who will not part with them at any reasonable rate." It was held, that the showing two leases to have been made to the defendant himself was not sufficient. From the first resolution in Gerard v. Dicken- son, it seems to have been held, that a general claim of title would, at all events, have been justi- fiable ; yet, when a defendant, for the mere pur- pose of vexation, and knowing that he has no ground or colour of claim, prevents, by his false assertion, the selling or letting an estate, it seems to make no * 1 Vin. A be 651. pf. 11. Cio. Eliz. 427. 205 difference in principle, whether he effects the mis- chief by a general claim, or by the alleging a spe- cific false fact. The distinction made in the two resolutions has been since materially contradicted — the more intelligible rule was laid down in the case of Goulding v. Herring,* where it was agreed, that though the defendant claims title, yet if it be found to be done maliciously, the action lies ; but if, upon evidence, any probable cause of claim appears, it ought not to be found maliciously. (1) And accord- ing to Rolle, C. J.f " If I Imve colour of title to land, and I say to another, I have better title to the land than you, yet an action will not lie against me, though my title be not so good as the title of the other is." In the case of Smith v. Spooner,* where the owner of a house had prevented the plaintiff, his lessee for years, from disposing of the remainder of his term, by falsely asserting that he had no title; the court, after a verdict for the plaintiff, refused a rule to show cause why there should not be a new trial. Lord Ellenborough,|| C. J. observing, " The circumstances of the defendant's title and interest may rebut the implication of malice, but here it was left to the jury to say whether there was malice or not."(2) But where an attorney to a creditor, § who had previously committed an act of bankruptcy, stopt * 3Keb. 141. t Sty. 414. t K. B. Mich. 1811. (3 Taunt. 246.) II Mich. Term. 1811. § Hargrave v. Le Breton, Burr. 2422. (1) J?ou>e v. Roach, same v. Hoar, 1 Man. and Selw. 304. See Ross v. Pines. 3 Call's Rep. 568. (2) See Pilt v. Donovan, 1 Man. and Selw. 639. 206 the sale of an estate previously mortgaged and assigned to the plaintiff, by declaring the credi- tor's bankruptcy, and that a docket had been made out for a commission ; it turned out that an act of bankruptcy had been committed, but that no com- mission had been sued out. On action brought, it was held, that in order to support it, there should be p oof of malice, either express or implied ; that if the defendant acted bona fide, a;id told the truth, he did no more than his duty ; and though he went beyond what was strictly true, still, if there was no material variance, and no difference made with re- spect to the plaintiff's title, the action was not main- tainable. So a person acting in the course of his profes- sional duty, is entitled to the beneficial presump- tion arising out of his situation and the interest with which he is vested, till the malicious intention be proved. The plaintiff* brought an action against the de- fendant for these words, " He was arraigned and convicted of felony." The defendant pleaded, that the plaintiff at another time brought false imprison- ing nt against J. S., one of the sergeants of London, who justified by warrant from Sir N. M ley, mayor of London, for arresting him, to find su eties for the good behaviour, and they were thereupon at issue, and found against the plaintiff, who thereupon brought an attaint. And that the defendant, being consiliarius et peritus in lege, was retained to be of counsel with the petty jury, and in evidenc at the trial in London, spike those words in the declara- * Brook v. Sir Henry Montague, Cro. J. 9f>. 207 iiou; and Yelverton, and Coke, attorney-general, being of counsel for the defendant, the court resolv- ed that the justification was good ; for a counsellor in law retained, hath a privilege to enforce any thing which is informed unto him for his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false ; but it is at the peril of him who inform* it, for a counsellor is, at his peril, to give in evidence that which his client informs him, being pertinent to the matter in question ; otherwise, action on the case lies against him by his client, as Popham said, but matter not pertinent to the issue or the matter in question he need not deliver, for he is to discern in his discretion what he is to deliver, and what not; and although it be false, he is excusable, being per- tinent to the matter. But if he give in evidence any thing not material to the issue, which is scandalous, he ought to aver it to be true, otherwise he is pun- ishable ; for it shall be intended as spoken malicious- ly, and without cause, which is a ground for an ac- tion. So, if a counsellor object matter against a witness which is slanderous, if there be cause to discredit his testimony, and it be pertinent to the matter in question, it is justifiable what he delivers by information, though it be false. So, where it is material evidence to prove him a person fit to be bound to his good behaviour, and in maintenance of the first verdict : therefore his justification is good.(l) (1) Hodgson v. Scartett, 1 Barn, and Aid. 232. where the subject is fully dis- cussed. Sec Vigours v. Palmer, 1 P. A. Brown's Rep. 40. But it is no justifi- cation of a slander published of a town officer, relative to his official conduct while in the exercise of his office, that the slanderer was a legal voter in the town, and so one of the constituents of such officer, there being no analogy between such a case and legal proceedings in a course of justice. Dodd v. Henry, 9 Mass. Rep. 262. 208 And Coke cited a case,* where a clergyman, in his sermon, recited as a story out of Fox's Mar- tyrologie, that one Greenwood, being a perjured person and a great persecutor, had great plagues in- flicted on him, and was killed by the hand of God ; whereas, in truth, he never was so plagued, and was himself present at that sermon. And he there- upon brought his action upon the case, for calling him a perjured person, and the defendant pleaded not guilty ; and this matter being disclosed upon the evidence, Wray, C. J. delivered the law to the jury : that it being delivered but as a story, and not with any malice or intention to slander any, he was not guilty of the words maliciously, and so was found not guilty. f And Popham affirmed it to be good law, when he delivers matter after his occasion as matter of story, and not with any intent to slander any. Where- fore, for these reasons, it was adjudged for the de- fendant. These two cases afford an apt illustration of this branch of the law ; and the former points out, with great precision, both the duty and liability of a pro- fessional advocate. Where the facts asserted are pertinent to the cause, and suggested by the client, the presump- tion of law will be, that what the advocate asserts is said out of regard to the interests of his client ; but when he travels out of his way, and abuses the sit- uation in which he stands by charges and invec- tives either not relating to the cause in hand, or, if pertinent to the issue, not suggested by those from * Cro. Jac. 90. T He cited 14 H. VII. 14. 20 H. VI. 3-1. 209 whom he is bound to receive information, he for- feits his privilege, and is liable to answer for the false charges he has made in his private individual capacity. In an action* for a libel on the plaintiff, in his profession as a solicitor, the libel, as set out in the declaration was contained in a letter written by the defendant to Messrs. Wright and Co. bankers at Nottingham, and charged the plaintiff with impro- per conduct in the management of his concerns. It appeared, however, upon the trial, that the letter was intended as a confidential communication to those gentlemen, and that the defendant himself was inter- ested in the affairs which he supposed to be misman- aged by the plaintiff. After the cause had been opened by the plaintiffs counsel, Lord Ellenborough, C.J. said, if the letter had been written by the defendant confidentially, and under an impression that its statements were well founded, he was clearly of opinion that no action could be maintained. It was impossible to say that the defendant had maliciously published a libel to aggrieve the plaintiff, if he was acting bona fide with a view to the interests of himself and the per- sons whom he addressed ; and if a communication of this sort, which was not meant to go beyond those immediately interested in it, were the subject of an action for damages, it would be impossible for the affairs of mankind to be conducted. His Lordship referred to the case of Cleaver v. Sarraude, * M'Dougall v. Claridge, 1 C. N. P. 267. 27 2W tried on the northern circuit while he was at the bar : where, in an action like the present, it appear- ed that the letter had been written confidentially to the Bishop of Durham, who employed the plaintiff as steward to his estates, to inform him of certain supposed malpractices on the part of the plaintiff; upon which the Judge, who presided, declared him- self oj opinion that the action was not maintainable, as the defendant had been acting bona fide, and the nonsuit, which he directed, had been acquiesced in from a conviction entertained by the plaintiff's counsel of its being founded in law.(l) The Attorney-general, for the defendant, said, that his client, at the time of writing the letter, was certainly impressed with a belief of the truth of the charges" it contained, but had since seen reason to believe they were groundless ; he therefore consent- ed to withdraw a juror. So, where the person to whom the communication is made is interested, as in the case of Cleaver v. Sarraude above quoted, no action is maintainable without proof of express malice. In the case of Dunman v. Bigg,* the plaintiff was a dealer in beer, buying it of a brewer, and selling it to publicans. Wishing to open an account with the defendant, a brewer, one Leigh, became his surety for the price of such quantities of beer as should, from time to time, be supplied to him, the * Sittings in London after T. T. 48 G. 3. 1 Camp. R. 269, cited. (1) Godson v. Home, 3 Moore's Rep. 223. See Fairmttn v. Ives, 5 Barn, and Aid. 642, S. C. 1 Dowl. and Ryl. 252. 211 defendant promising to inform Leigh oi' any delimit in his payments made by the"plaintiff. After the parties had dealt together for some time, the defendant went to Leigh, and spoke to him in very opprobrious terms of the plaintiff, saying, that he wished to cheat him, that he had ; sent'baek as unmerchantable, beer which lie himself had adulte- rated, that he was a rogue and a rascal, &c. At this period there was a sum of money due from the plaintiff to the defendant in respect of the beer, for which Leigh had given a guarantee. Lord Ellen- borough, C. J. said, " I am inclined to think^that this was a privileged communication. Had the de- fendant gone to any other man, and uttered these words of the plaintiff, they certainly would have been actionable ; but Leigh, to whom they were addressed, was guarantee for the plaintiff*, and the defendant had promised to acquaint him when any arrears were due. He therefore had a right to state to Leigh what he really thought of the plaintiff's conduct in their mutual dealings ; and even if the representations which he made were intemperate and unfounded, still, if he really believed them at the time, he cannot be said to have acted malicious- ly, and with an intent to defame the plaintiff. To be sure, he could not lawfully, under colour and pretence of a confidential communication, destroy the plaintiff's character, and injure his credit, but it must have the most dangerous effects if the commu- nications of business are to be beset with actions of slander. In this case, the defendant seems to have been betrayed by passion into some unwarrantable expressions ; I will therefore not nonsuit the plain- 212 till", and it will be for the jury to say, whether these expressions were used with a malicious intention of defaming the plaintiff, or with good faith to communicate facts to the surety which he was inter- ested to know.*(l) * The parties agreed to withdraw a juror. — For further illustrations of this division uf the subject, see R. v. Enes, \ndr. 229. Lord Mordington's case. It. v. Jenncaur, 3 Bac. Abr. 452. and R. v. Baily, Andr. 229. (1) See and consider Fowler et ux. v. Homer, 3 Camp. Rep. 294„ J1J CHAPTER XIII. Where a Person repeats the Slander invented by another. A person repeating the slander which he has heard from another, vfili, in some instances, be jus- tified, provided lie, at the time of repetition, declare the name of the person from whom he heard it.(l) This defence is, however, liable to be rebutted, by proof that the defendant knew, at the time of publication, that the slander was without founda- tion. The doctrine of justification by hearsay seems to have been first settled in the Earl of Northampton's (1) The justification depends on the intent, or quo animo, with which the words, with the name of the author, are repeated. Dole v. Lyon, 10 Johns, Rep. 447. Binns v. M'Corkle, 2 P. A. Browne's Rep. 79. Leicis v. Waller,! Barn, and Aid. 605. The Earl oj Jsrorlliampton's case has been questioned in England (4 Barn, and Aid. 614, 615,) and in New York (10 Johns. Rep 449.) See also Miller v. Kerr, 2 M'Cord's Rep. 285. So that the slander was com- municated to the defendant by a third person, not named at the time when the slander was uttered, may be given in evidence under the general issue in mitigation of damages. Kennedy v. Gregory, Morris v. Duane, 1 Bimi. 88, 90, n. These cases have been considered by Kent, C J. (9 Johns. Rep. 49.) as going beyond the English rule. See also Cook v. Barkley, 1 Penn. Rep. 169, and Coleman v. Southwick, 9 Johns. Rep. 45. The Court of King's Beneh have recently determined, that where a defendant prints and publishes thai which would not have been actionable as oral slander, ;* not protected by giving the name of the author at the time of publication. M'Gregor v. Thwaites ct al 1 Dowl. and Ryl. 695. Vide also Hersh v. Ringtoalt, 3 Yeates, 510. 214 case,* which was upon an information in the Star Chamber for scandalum magnatum ; and the resolu- tion contained in that case has a plain reference to the rule contained in the statute 1 Westminster, which enacts, that the propagator of slander, con- cerning the grandees of the realm, shall be impri- soned until he give up the author. The resolution was, that "if A. say to B. * Did you not hear that C. was guilty of treason?' " This is tantamount to a scandalous publication. " And, in a private action for slander of a common person, if J. S. publish that he hath heard J. N. say, that J. G. was a traitor or thief, in an action on the case, if the truth be so, he may justify ; but if J. S. publish that he hath heard generally, with- out a certain author, that J. G. was a traitor or thief, there an action sur le case lieth against J. S. for this, that he hath not given to the party grieved any cause of action against any, but against himself, who published the words, although that in truth he might hear them, for otherwise this might tend to the great slander of an innocent person ; for, if one who hath Icesam phantasiam, or who is a drunkard, or of no estimation, speak scandalous words, if it should be lawful for a man of credit to repeat them generally, without mentioning the author, that would give greater colour and probability that they were true, in respect of the credit of the repeater, than if the author himself should be mentioned."! • 12 Rep. 132. t The court referred to 33 & 34 Ed. 1. and 30 Ass. pi. 10. in the Exchequer. Mich. 18 Ed. 1. Not. 4. ^15 In Crawic -I'd v. Middleton,* it was held, that it was necessary for the plaintiff to negative the fact of the defendant's having heard the words, which he pretended to repeat as spoken by another. But in the case of Woolnoth v. Meadows,! where a similar objection was taken, it was said by the court, that Lord Northampton's case was a com- plete answer to it. Since the consideration of the indemnity consists in the giving the plaintiff a certain cause of action against a prior propagator of the slander, if the dis- cfosure made fall short of supplying a certain cause of action, it will not avail as a justification. The defendant* speaking to the plaintiff, who was a tailor, said, " I heard you were run away." The defendant pleaded, that before the speaking of the words, he had heard and been told by one D. Morris, that the plaintiff had run away, for which reason he spoke the words. Lord Kenyon, C. J. in giving judgment for the plaintiff on demurrer, said, "Whether this be con- sidered on the authorities, or on the reason of the case, the justification cannot be supported. The Earl of Northampton's case is precisely in point. If a person say, that such a particular man, naming him, told him a certain slander, and that man, in fact, did tell him so, it is a good defence to an action to be brought by the person of whom the slander was spoken ; but if he assert that slander generally, and without adding who told it him, it is actionable. Then it is said it is sufficient to repel such action, to disclose, by the defendant's plea, the person who * 1 Lev. 82. t 5 East, 463. 1 Davis v. Lewis, 7 T. R. 17. 216 told him that slander ; but that is clearly no justifi- cation ; after putting the plaintiff to the expense of bringing the action, he can only impute the Zander to the person who utters it, if the latter do not men- tion the person from whom he heard it The jus- tice of the case also falls in with the decisions on the subject. It is just, that when a person repeats any slander against another, he should, at the same time, declare from whom he heard it, in order that the party injured may sue the author of the slan- der.(l) So,* where the defendant said of the plaintiff, who had been proposed as a volunteer for the de- fence of the country, "His (the plaintiff's) cha- racter is infamous, he would be disgraceful to any society. Whoever proposed him must have in- tended it as an insult. I will pursue him, and hunt him from all ;nciety. II his nam.: is enrollc i in the Royal Acadenry, I will cause it to be erased, and will not leave a stone unturned to publish his shame and infamy. Delicacy forbids me from bringing a direct charge, but it was a male child of nine years old who complained to me." The defendant justified, averring that a male child of the name of A. B., of the age stated, did complain to the defendant of an unnatural crime before that time committed by the plaintiff upon such male child. Upon demurrer, it was observed by the Court, that slanderous words can in no case be 1 Woolnotb v. Meadows, 5 East, 463. (1) Lane v. Howman, 1 Price's Rep. 7G. The defendant should by his pica offer himself as a witness to prove the words against the author. M'Gregor v. Thwaites ct al. 4 Dowl. and Ryl. 695. 217 ustitied upon the report of another, unless the name of the original slanderer be given at the time ; that it is not sufficient to disclose the name for the first time in the defendant's plea ; that the object of the rule is to give the injured person a certain cause of action against some one. But that, in the prin- cipal case, no action could have been maintained on those words against the boy ; whereas, if the defendant had named the boy at the time, and re- peated truly what he had said to him, the plaintiff* would have had his action against the boy. And for the same reason, the repeater of slander must give the very words used by the author ; for the plaintiff, to maintain his action, must state the very words used by the defendant, and prove them as stated ; so that, unless the defendant faith- fully repeat the original slander, the plaintiff will not be put in possession of a certain cause of ac- tional) The defendant,* in a written affidavit, deposed to words spoken by a third person concerning the plaintiffs, who were merchants ; and, after stating the words used by the third person, added, " or words to that purport and effect." The defendants justified, stating, that they did hear the third per- son publicly declare to the effect following ; and then proceeded to state the communication deposed to, on which the action had been brought. To this justification the plaintiff demurred upon seve- ral grounds ; and the court, in giving judgment for the plaintiffs, observed, that " at all events, in order * 2 East. 425. (1)1 Binn. S6, Miller v. Kerr, 2 i\l ' Cord's Kep. 287. 28 218 to justify the parties reviving the slander by naming the original author of it, they must so disclose the matter as to give the plaintiff a certain cause of ac- tion against the party named. Now here they only state that the other uttered such words, or to that effect ; and if the defendants, when called as wit- nesses to support the action against the author, could only prove that he uttered words to the effect of those set forth, that would not be sufficient." From these cases it appears to be the general rule of law, that no action is maintainable against a person who repeats the slander of another, announ- cing at the same time the name of his author, and the identical words by which such slander was first communicated, so as to afford the plaintiff a good ground of action. The principle on which this ex- emption rests is not very apparent. One reason for not allowing the action is, that the defendant has o-iven the plaintiff a certain cause of action against a third person, from whom the whole damage sustained may be recovered. But it may frequently happen that though the plaintiff may have a certain cause of action, he may be no nearer the actual recovery of a compensation. As where the circumstances of the original author are indigent, his situation obscure, and the report derives both its publicity and nox- ious quality chiefly from its having been circulated through the medium of another ; in general, even the mere repetition of the slander without observa- tion, carries with it some additional credit from the reporter. In order to complete the ground-work of an ac- tion, there must be, as already frequently observed, a damage sustained, and a wrong so considered bv 219 the Law ; whether the justification in the present instance arises from the want of the one or other, or both of these essentials, it may not be easy satis- factorily to determine ; but since the conduct of a person who gives up the author of an injurious re- port, and enables the party calumniated to reach the author of the calumny, may be attributed to a good and friendly motive, that circumstance may operate to the defendant's advantage, though it does nol seem, in strictness, to warrant any thing more than a prima facie presumption in his favour. In Maitland and others* against Goldney and others, one ground of the plaintiff's action, as stated in the declaration, was, that the defendants had pub- lished the slander of another, well knowing that other to have retracted his opinion of the plaintiffs, and to have confessed his error. Upon demurrer, it was not argued for the defendants that an action does not lie for publishing slander originally uttered by an- other, after knowledge by the defendant that it was untrue, but an objection was taken to the mode of pleading. In giving judgment on demurrer, it was observed by Ld. Ellenborough, C. J. that " In order to mam- tain this species of action it is necessary that there should be malice in the defendant, and an injury to the plaintiff, and that the words should be untrue. By the first count, the charge in substance against the defendants is, that they revived and published an injurious report of the plaintiff which had been made by another person, who was afterward convinced that he had uttered the words hastily and rashly, * 2 East. 425. 220 4pd that the defendants did this with a full know- ledge of ail those circumstances. All the several allegations of the previous reports, the subsequent explanation of the plaintiffs conduct to Guy,* his satisfaction with it, and the defendant's knowledge of it, are so interwoven by the pleading with the publication of the libel, that they could not be severed from it ; so that the plaintiffs could not sus- tain that count by proof of the publication alone, without such explanatory circumstances. The plaintiffs could not entitle themselves to recover un- less all were proved. The count then contains a charge against the defendant, that they published the slander with a knowledge that the person who had originally uttered it was satisfied that it was un- true. The fact, therefore, of such previous utter- ing, was merely used by the defendants as a pretence for publishing the same slander, that shows malice in the defendants, and an injury to the plaintiffs.'* Judgment was, however, given for the plaintiffs, not on the ground of legal malice being attribu- table to the defendants, but because they had re- peated the effect of the slander, and not the very words. In the case of Gerrard v. Dickenson,! it was held, that slander spoken by the defendant against his own knowledge, made him liable at all events, and deprived him of the benefit of his justification. It is difficult to carry the principle of exculpation in this case further than this : that a person who, bona fide, repeats the scandal of another for the pur- pose of enabling the plaintiff to obtain redress, shall * The author ef the slander. 4 Coke. IS. b 221 aot be liable to an action ; but neither principle noi precedent warrants the repeating slander of another which the repeater knows to be without foundation, for the mere purpose of vexation to the plaintiff. On the contrary, the defendant's conduct is pregnant with malice, and therefore, when attended with de- triment to the plaintiff, furnishes the two great es- sentials necessary to support an action. And upon this ground it should seem, that if the defendant, by the use of more forcible terms, or by reducing the slander to writing or print, render its quality more injurious, he thereby forfeits his pretension to the friendly character, under the sanction of which he might otherwise have justified. It follows, by way of corollary to the general pro- position above laid down, that if the slander has been circulated by a number of tongues, the last repeat- er, to protect himself, must mention the names of all his predecessors in the scandal with which he is acquainted ; so that, if A. invent the slander, which is transmitted through B. and C. to D. the last must mention the names of C. B. and A., if communi- cated to him ; for if he were to mention the name of C. only, on an action brought against C, he might justify as having given up his author B. to D., by which means the plaintiff would be barred of his action against C, and therefore might proceed against D. Under this division also may be classed all those cases in which the defendant has acted in a friendly character to the plaintiff, in attempting to reclaim him from any real or supposed vices, as by expos- tulation in a private letter, or by writing to a father or other relation or guardian, to acquaint him with 2.22 the faults of those in whose welfare he has an inter- est, for the purpose of their reformation. Since these are acts of friendship, intended for the benefit of the party, and not with a malicious view to wound his feelings or defame him, they are not considered by the law as libellous ;* but this presumption is in all cases liable to be rebutted by evidence, showing that the character of a friend was assumed for the purpose of defamation. * 3 Brovrnl. 151, 152. 2 Burn's Eccl. Law. 779. 3 Bac. Ab. 412. 2*3 CHAPTER XIV. Where the Defendant gives the Character of a Servant, fyc. And next, the benefit of this prima facie pre- sumption extends to all who appear to act in the discharge of any duty which the convenience or exi- gencies of society call upon them to perform. Where a master gives a character of a servant, unless the contrary be expressly proved, it will be presumed that the character was given without malice.* An action was broughtf by the plaintiff for pub- lishing the following letter to one Collier, respect- ing the plaintiff's character as a servant : " Two days I gave him money to go into the city and buy books. When he came home, I desired him to reckon up his account ; he did so. But being one day more curious than I sometimes was, I looked over his account, article by article ; and in one book I well knew the price of, I found he had charged me one shilling more than it cost, and that shilling he kept in his pocket. The next day, the very same affair ; and both these days my neighbour Metcalf was in my shop, and knows it well, and said he would not keep such a man a clay, or something to *Burr. 2425. B. N. P. Edmondson v. Stephenson, 8, i Wcatherstone v. Hawkins, I T. R. 110. 224 that purpose. Two magazines he charged two shii lings for binding, the people received no more than Is. Sd. ; and this I can prove." A verdict was found for the plaintiff on one of the counts of the declara- tion, containing the above letter, subject to the opi- nion of the count on the follow ing case : The plaintiff was brother-in-law to Mr. Collier ; he was in the service of the defendant, and was by him turned away. Rogers, to whom the plaintiff was recommended to be taken as a servant, applied to the defendant for a character, which not being advantageous, but to the effect stated in the declara- tion, he (Rogers) did not take him. Collier, upon this, repeatedh called upon the defendant, upon which the letter stated in the declaration was writ- ten, with an intent to prevent an action by the plain- tiff for the words spoken by the defendant to Ro- gers. The writ was sued out on the very day the letter was written. The question for the opinion of the court is, whe- ther this action lies. Lord Mansfield, C. J. "I have held more than once, that an action will not lie by a servant against his former master, for words spoken by him in giving a character of the servant." The general rules are laid down as Mr. Wood < v the plaintiff's counsel) has stated; but to every libel there may be a necessary or implied justifica- tion from the occasion, so that what, taken abstract- edly, would be a publication, may, from the occasion, prove to be none, as if it were read in a judicial pro- ceeding. Words may also be justified on account of their subject matter, or other circumstances. In this case, instead of the plaintiff's showing it to be i&ise and malicious, it appears to be incident to tht application by Rogers to the master of the servant ; and the letter was written to the brother-in-law of the plaintiff, for the express purpose of preventing an action being brought." Buller, J. " This is an exception to the general rule, on account of the occasion of writing the let- ter. Then it is incumbent on the plaintiff to prove the falsehood of it : and in actions of this kind, un- less he can prove the words to be malicious as well as false, they are not actionable." Judgment for the defendant. In the case of Rogers v. Sir Gervas*e Clifton ; Bart.* the following facts appeared in evidence. The plaintiff having been hired as a servant by the defendant, lived about six months in his service, when the latter turned him away without giving him a month's warning; in consequence whereof, the plain- tiff, conceiving himself entitled to a month's wages, refused to quit the service without being paid that sum. On this refusal, the defendant procured an officer from the public office to put the plaintiff out of the house, and employed his attorney to settle his wages with him. Immediately after this, the de- fendant, who was going into the country, called on Mr. Holland, with whom the plaintiff had previously lived, to inform him that the plaintiff had behaved in an impertinent and scandalous manner, that he, the defendant, had discharged him from his service, when the plaintiff refused to go without a month's wages ; and he therefore desired Mr. Holland not to give him another character. While the plaintiff' was itf * 3 B. £ P. 5S/\ &0 the country, he offered himself to a Mr. Hand, sta- ting that he had lived with the defendant. Upon which, Mr. Hand wrote to the defendant for a cha- racter, and received the following answer : a Si r> — in answer t*> your's, which came to hand yesterday, I beg leave to acquaint you, that Thomas Rogers did not live with me six months, as he has told you, and I wish I had never taken him into my house, as he is a bad-tempered, lazy, impertinent fel- low, and has given me a great deal of trouble, as I was obliged to send an officer from the Marlborough- street Police Office to put him and his things out of my house, and also to employ Mr. Barnet, my attor- ney, of Soho-square, to settle his wages, as I look upon it he will take any advantage he can. "I am, Sir, your most obedient humble servant, " Gervase Clifton." Upon receipt of this letter, Mr. Hand refused to take the plaintiff into his service. It appeared that Mr. Holland never was applied to for a character of the plaintiff, after the communication made to him by the defendant ; and Mr. Holland stated, that without such communication he should have declined o-iving another character to the plaintiff. The plain- tiff also proved, by servants of the family, that while in the defendant's service he had conducted himself well, and that no complaints of the nature ascribed to him in the defendant's letter had all that time ex- isted. The jury found a verdict for the plaintiff with 20/. damages, but liberty was reserved to the defendant to have a nonsuit entered. After the case had been argued, Lord Aivanley , C. J. said, " If it were to be understood, that when- ever a master gives a bad character to a servant who has quitted his service, he may be forced by the servant, in justification of such his conduct as a mas- ter, to prove the particulars which he has stated re- specting the servant, it would be impossible for any master, (so understanding the law, at least with any regard to his own safety) to give any character but the most favourable to a servant, and consequentl}'^ impossible for a servant, not entitled to the most favourable character, to obtain any new place. In the two cases of Edmondson v. Stevenson,* and Weath- erstone r. Hawkins, f the law upon this subject ap- pears to me to be laid down as clearly as can be wished. Unquestionably the master, who has given a bad character of a servant to persons inquiring after his character, is not bound to substantiate by proof what he has said ; but it is equally clear, that the servant may, if he can, prove the character to be false, and the question between the master and servant will always, in such case, be, whether what the former had spoken concerning the latter, be ma- licious and defamatoty. In this case, we are to consider whether the evidence adduced by the plaintiff was sufficient to be left to the jury." His lordship, after stating the evidence, proceeded to observe, that the circumstance of the plaintiff's re- fusal to quit his master's house till his wages had been paid, was the only act of impertinence proved against him ; and that the defendant was not called upon by that single act to seek out Mr. Holland, and officiously to state what he did ; that if a servant *B. N. P. 8. tiT. R. 110. 2£$ were strongly suspected of having committed a iblony whilst in his master's service, it would be the master's duty to warn others from taking him into their service ; but that, in the principal case, the offence imputed to the plaintiff appeared to be of a trivial nature. His Lordship concluded by saying, that he should have grievously invaded the province of a jury, had he not left it to them to say whether, considering all the < circumstances of the case, the defendant's conduct was not malicious, and that he did not consider himself at liberty to disturb the verdict they had given. Rooke, J. was of the same opinion, and wished it to be understood as his opinion, that a master may, at any time, whether asked or not, speak of the cha- racter of his servant, provided that he speak in the honesty of his heart ; and that an action cannot be maintained against him for so doing ; at the same time, masters are not warranted in speaking ill of their servants from heat and passion. Chambre, J. referred to the case of Lowry v. Aikenhead,* before Lord Mansfield. In that case, the rule laid down by Lord Mansfield was, " That where a person, intending to hire a servant, applies to a former master for a character, the master is not bound to prove the truth of the character he gives ; for what he speaks of the servant he does not speak officiously, but only discloses that which rests in his knowledge alone ; but that where a master speaks ill of a servant, without any previous application having been made to him, there he must plead and prove the truth of the character in justification. * Mich. 8 G. 3. 229 And the rule was discharged. It appears, therefore, fully established, that a ser- vant, in an action against a former master, must prove express malice. It seems to have been laid down generally by- Lord Mansfield, in the case cited by Mr. Justice Chambre, that where a master, unasked, gives a bad character of a servant, he must justify as in other cases ; and though Mr. J. Rooke seems to have ex- pressed an opinion somewhat different, there can be no doubt that the manifestation of any forward and officious zeal on the part of a defendant, who, unin- vited, gives a character to the prejudice of his former servant, would be a material guide to a jury in ascer- taining his real motive. Where a plaintiff, knowing the character which his master will give, procures it to be given for the sake of founding an action upon it, he will not be allowed to recover.* So, in general, where the publication is made in support or furtherance of the interests of society, and not wantonly and invidiously for the gratification of private malice, the author is privileged. The defendant,! who was sergeant in a volunteer corps, of which the plaintiff also was a member, re- presented to the committee, by whom the general business of the corps was conducted, that the plaintiff was an unfit and improper person to be permitted to continue a member of the corps. The words charged in the declaration were, that the defendant had said that the plaintiff had been the executioner of the King of France, and that he * Per Lord Alvanley, 3 B. & P. 592. 1 Barbaud v. Hookham, 5 Esp. R. 109. 230 had clapped his hands, rejoicing at the event, adding, that France would then be one of the first countries in the world. It appeared in evidence, that the plaintiff was a Frenchman, and that the defendant had not made use of the words publicly, but had communicated them to the officers of the corps, who constituted the committee for its regulation. Lord Ellenborough said, that it was not to be al- lowed that such an action could be sustained. It was a communication made upon a most important matter for their consideration, whether foreigners, the natives of a country in open war with us, were to learn the use of arms in a country threatened to be invaded by that other. The action was most ill ad- vised and improper. In Johnson v. Evans,* the words were, " She is a thief, and tried to rob me of part of her wages." It appeared upon the trial, that the plaintiff had been servant to the defendant. Upon a dispute taking place, he discharged her, and some differ- ence arising respecting the payment of her wages, he charged her with having attempted to cheat him respecting her wages, and spoke the words as laid 5 but the plaintiff failed in proving them to have been spoken at that time. Having, however, sent for a constable, in order to take her into custody, he made use of the same words to the constable when he came, to whom he meant to have given her in charge, but which, in fact, he did not do. The con- stable proved the words as spoken ; but it further appeared in the course of his evidence, that the * 3 Esp. R. 38 231 words had been spoken by the defendant, addressed to him in his character of constable, and in the course of charge and complaint which the defendant made to him against the plaintiff. Lord Eldon, C. J. said, that the evidence given of the speaking of the words laid in the declaration was not such as to induce him to direct the jury to find a verdict for the plaintiff. Words used in the course of a legal or judicial proceeding, however hard they might bear upon the party of whom they were used, were not such as would support an ac- tion for slander. In this case, they were spoken by the defendant under a belief of the fact, and when he was about to proceed legally to punish it, it would be a matter of public inconvenience, and operate to deter persons from preferring their com- plaints against offenders, if words spoken in the course of their giving charge of them, or preferring their complaint, should be deemed actionable. — Plaintiff nonsuited. Still this, it seems, amounts to a prima facie de- fence only, liable to be overthrown by proof of ex- press malice on the part of the defendant, as by showing that he knew at the time that the charge was false. In Smith v. Hodgkins,* the case was this. The plaintiff assaulted and beat the defendant on the highway. The defendant meeting a con- stable, requested him to take charge of the plain- tiff; and the constable refusing to arrest the plain- tiff unless the defendant would charge him with the commission of a felony, the defendant did so, and judgment was given on demurrer for the plaintiff; * Cro. Car. 276. the court observing, that there was no ground lor the charge of felony. And where property has been actually stolen,* the defendant is not warranted in the communica- tion of a suspicion, which in fact is unfounded, ex- cept for the purpose of legal inquiry.(l) Under this class of communications may not improperly be ranked those publications whose pro- fessed object is to discuss, for the information of the public, the merits of the literary productions of the day. The authors of these, in the detection and exposure of vicious principles and bad taste, have a most difficult and important public duty to discharge, and in return are privileged in the most unlimited exercise of their reasoning powers, and of their talents for wit or satire, so long as it is con- fined to its legitimate object, the merits of the work before them. In the case of Sir John Carr v. Hood,f the plain- tiff stated, in his declaration, that he had been the author of several productive publications called, &c. but that the defendant intending to expose him to contempt and ridicule, had published a ma- licious and defamatory libel concerning the said Sir John, entitled, " My Pocket-Book, or Hints for a righte merrie and conceited Tour, to be called, The Stranger in Ireland in 1805, by a Knight Errant." The same libel containing a malicious and defamatory print of and concerning the said Sir * Powcl v. Plunket, Cro. Car. $2. t 1 Camp. N. P. 354. (1) But see Fowler el ux. v. Homer, 3 Camp. Rep. 294. »tohn and his books, called " Frontispiece," and entitled, " The Knight leaving Ireland with re- gret;" and representing, in the said print, a cer- tain false, scandalous, malicious, defamatory, and ridiculous representation of the said Sir John in the form of a man of ludicrous and ridiculous ap- pearance, holding a pocket handkerchief to his face, and appearing to be weeping ; and also a cer- tain false, malicious, and ridiculous representation of a man of ludicrous and ridiculous appearance, following the representation of Sir John, represent- ing a man loaded with and bending under the weight of three large books, one of them having the word Baltic printed on the back thereof, and a pocket handkerchief appearing to be held in one of the hands of the said representation of a man, and the corners thereof appearing to be held or tied together as if containing something therein, with the printed word Wardrobe depending there- from, for the purpose of rendering the said Sir John ridiculous, and thereby meaning that one copy of the said first-mentioned book of the said Sir John, and two copies of the book of the said Sir John secondly above mentioned, were so heavy as to cause a man to bend under the weight thereof ; and that his, the said Sir John's, wardrobe was very small, and capable of being contained in one pocket-handkerchief." The declaration concluded by laying, as special damage, that Sir John had been prevented from selling to Sir Richard Phillips, for (500/., the copyright of a book of which the said Sir John was the author, containing an account of a tour of the said Sir John through part of Scot- land. 30 234 Lord Ellenborough, as the trial was proceeding, intimated an opinion, that if the book published by the defendant only ridiculed the plaintiff as an au- thor, the action could not be maintained. Gar-row, for the plaintiff, allowed, that when his client came forward as an author, he sub- jected himself to the criticism of all who might be disposed to discuss the merits of his works, but that criticism must be fair and liberal ; its object ought to be to enlighten the public, and to guard them against the supposed bad tendency of a particular publication presented to them, not to wound the feelings and ruin the prospects of an individual ; if ridicule was emplojed, it should have some bounds. While a liberty was granted of analyzing literary productions, and pointing out their defects, still he must be considered as a ii- beller, whose only object was to hold up an au- thor to the laughter and contempt of mankind. A man with a wen upon his neck perhaps could not complain if a surgeon, in a scientific work, should minutely describe it, and consider its nature and the means of dispersing it ; but surely he might support an action for damages against any one who should publish a book to make him ridiculous on account of his infirmity, with a caricature print as a frontispiece. The object of the book pub- lished by the defendant clearly was, by means of immoderate ridicule, to prevent the sale of the plaintiffs works, and entirely to destroy him as an author. In the late case of Tabart v. Tipper,* his lordship had held, that a publication by no means - Vid. p. 237. *S5 so offensive or prejudicial to the object of it, was libellous and actionable. Lord Ellenborough. " In that case, the defend ant had falsely accused the plaintiff of publishing what he had never published ; here the supposed libel has only attacked those works of which Sir John Carr is the avowed author ; and one writer, in exposing the follies and errors of another, may make use of ridicule, however poignant. Ridicule is often the fittest weapon that can be employed for such a purpose. If the reputation or pecuniary inter- ests of the person ridiculed suffer, it is damnum abs- que injuria. Where is the liberty of the press, if an action can be maintained on such principles? Perhaps the plaintiffs Tour through Ireland is now unsaleable, but is he to be indemnified by receiving a compensation in damages for the per- son who may have opened the eyes of the public to the bad taste and inanity of his compositions ? Who would have bought the works of Sir Robert Filmer, after he had been refuted by Mr. Locke? But shall it be said, that he might have sustained an action for defamation against that great philo- sopher, who was labouring to enlighten and ame- liorate mankind ? We really must not cramp obser- vations upon authors and their works ; they should be liable to criticism, to exposure, and even to ri- dicule, if their compositions be ridiculous ; other- wise, the first who writes a book on any subject will obtain a monopoly of sentiment and opinion respecting it. This would tend to the perpetuity of error. Reflection on personal character is ano- ther thing. Show me an attack on the moral cha- racter of the plaintiff, or any attack upon his cha- 236 racter unconnected with his authorship, and I shall be as ready as any judge who ever sat here to pro- tect him; but i cannot hear of malice on account of turning his works into ridicule." The Counsel for the plaintiff still complaining of the unfairness of this publication, and particularly of the print affixed to it, the trial proceeded. The Attorney-general having addressed the jury on the behalf of the defendants, Lord EllenboroLigh said, every man who publishes a book commits himself to the judgment of the pub- lic, and any one may comment upon his performance. If the commentator does not step aside from the work, or introduce fiction for the purpose of con- demnation, he exercises a fair and legitimate right. In the present case, had the party writing the criti- cism followed the plaintiff into domestic life for the purposes of slander, that would have been libellous ; but no passage of this sort has been produced, and even the caricature does not affect the plaintiff, ex- cept as the author of the book which is ridiculed. The works of this gentleman may, for aught I know, be very valuable ; but, whatever their merits, others have a right to pass their judgment upon them, — • to censure them if they be censurable, and to turn them into ridicule if they be ridiculous. The critic does a great service to the public, who writes down any vapid or useless publication, such as ought never to have appeared. He checks the dissemination of bad taste, and prevents people wasting both their time and money upon trash. — I speak of fair and candid criticism ; and this every one has a right to publish, although the author may suffer loss from it. Such a loss the law does not consider as an injury, 237 because it is a loss which the party ought to suatain. It is, in short, the loss of fame and profits to which he was never entitled. " Nothing can be conceived more threatening to the liberty of the press than the species of action before the court. We ought to resist an attempt against free and liberal criticism at the threshold." The Chief Justice concluded by directing the jury, that if the writer of the publication complained of, had not travelled out of the work he criticised for the purpose of slander, the action would not lie; but if they could discover in it any thing personally slanderous against the plaintiff, unconnected with the works he had given to the public, in that case he had a good cause of action, and they would award him damages accordingly. — Verdict for the defend- ant. In the case of Tabart v. Tipper, alluded to in the preceding one,* the action was brought for a libel on the plaintiff, contained in a periodical work called " The Satirist, or Monthly Meteor," insinuating that the plaintiff (who was a vender of childrens' books) had published and vended books of an improper and immoral tendency. Upon the question, whether a witness ought to be cross-examined as to the defendant's having publish- ed particular books, Lord Eilenborough observed, "The main ques- tion here is, quo animo the defendant published the article complained of; whether he meant to put down a nuisance to public morals, or to prejudice the plaintiff. To ascertain this, it is material to know the general nature of the defendant's publications to * 1 Camp. R. 350. 2:38 which the libel alludes, and I therefore think that the evidence is receivable. The plaintiff is bound to show that the defendant was actuated by malice, and the defendant discharges himself by proving the con- trary. Liberty of criticism must be allowed, or we should neither have purity of taste nor of morals. Fair discussion is essentially necessary to the truth of history and the advancement of science. That publication, therefore, I shall never consider as a libel, which has for its object not to injure the repu- tation of any individual, but to correct misrepresen- tations of fact, to refute sophistical reasoning, to ex- pose a vicious taste in literature, or to censure what is hostile to morality." But in the same case it appeared that the libel falsely imputed to the plaintiff the publication of some silly verses of an improper tendency, which were specified in the libel, and set forth in the in- formation ; and it was allowed on the part of the de- fendant, that the plaintiff had not published them, but it was contended that they were a fair specimen of his publications. Lord Eilenborough, however, informed the jury, that it was certainly actionable, gravely to impute to a bookseller having published a poem of this sort, to which he was a stranger; as the evident tendency of the unfounded imputation was to hurt him in his business. In the case of Heriot v. Stuart,* it was held that no action was maintainable tor asserting in a news- paper that another public paper was the most vulgar, ignorant, and scurrilous journal ever published in Great Britain. But subsequent words, alleging that * 1 Esp. Rep. 437. 239 it was the lowest paper in circulation, were deemed actionable, since they affected the sale and the pro- fits to be made by advertising. In the case of Dibdin v. Bostock,* which was an action for publishing a paragraph in a newspaper, stating that the songs at a place of public entertain- ment were not ot the plaintiff's composition, as they professed to be. and representing e | ' nances as despicable, and as gaining no appl se except from persons hired for the purpose. Lord Kenyon observed, "The editor of a public newspaper may fairly and candidly comment on any place or species of public entertainment, but it must be done 'airly, and without malice or view to injure or prejudice the proprietor in the eyes of the public ; if so done, however ere the censure, i he justice of it screens the editor from legal animadversion ; but if it can be proved that the comment is unjust, is malevolent, or exceeding the bounds of fair opinion, it is a libel, and actionable." * 1 Esp. R. 29. 240 CHAPTER XV. Where the Defendant's Act is unexplained. Where the mere naked words, unwarranted by the situation of the publisher, or the occasion of the publication, constitute the only circumstance from which the motive of the party using them can be in- ferred,* the law necessarily collects an evil intention from the mischievous tendency of the act, and in the absence of a justifiable cause, supposes the defend- ant to have had that end in view to which the means used were adapted, namely, the injury to the plain- tiff's character or property. The presumption is, however, nothing more than a rule of evidence,! that malice shall be inferred from the unexplained act of the defendant ; an in- ference which is, nevertheless, liable to be rebut- ted by evidence showing that no malice really existed. The plaintiff brought an action against one, for saying of him that he heard he was hanged for steal- ing of a horse ; and, upon the evidence, it appeared that the words were spoken in grief and sorrow for the news. Twysden, J. cited this as a case which he heard tried before Hobart, J. who nonsuited the * Sec Lord Mansfield's opinion, in K. v. Woodfall, and K. v. Almon. 5 Hurr. The King v. Lord Abingdon, 1 Esp. Rep. 226. 241 plaintiff, because the words were not spoken mali- ciously. And all the court agreed that this was done according to law.* In the King v. Lord Abingdon, f Lord Kenyon observed, " In order to constitute a libel, the mind must be in fault, and show a malicious intention to defame ; for, if published inadvertently, it would not be a libel ; but where a libellous publication is un- explained by any evidence, the jury should judge from the overt act ; and where the publication con- tains a charge slanderous in its nature* should from thence infer that the publication was malicious. And a wanton disregard of the feelings and in- terests of others, is, in point of law as well as mo- rality, equivalent to express malice ; so that it is no defence for the publisher of a libel to say that he was but in jest ; for, as has been well observed by a learned writer, the mischief to the reputation of the party \ grieved is in no ways lessened by the merri- ment of him who makes so light of it ; and it might, with equal regard to gravity and good sense, be contended, that a man who cuts the throat of another is not guilty of murder, because he takes s saiir guinary delight in the operation ; as, that a man's intentions are not wrongful and malicious when he destroys another's reputation, because the actjj of destruction gives him pleasure. Where a libel upon the character of an individual not intended to be published, is nevertheless, through negligence or accident, made public, to the detriment * Lev. 82. Mich. 14 C. 2. B. R. 1 Vin. Abr. 540. f 1 Esp. Rep. 228. I Haw. PI. C. c. 73. II 9 Co. 59. Moor, 627. Haw. P. C c. 73. s. 14. 31 242 of the party, it seems that the act of the person who composed the libel would be in law a wrong, though the contents should ultimately become public through inadvertence, since he had no right, in the first in- stance, to trust the interests of another to chance, and render his character dependent upon accident ; and therefore, by so doing, encumbered himself with at least the civil consequences which might after- ward ensue from an involuntary publication. The legal principle upon which this responsibility is founded is clearly delivered in Mr. Buller's Law of Nisi Prius.* " Every man ought to take reason- able care that he does not injure his neighbour ; therefore, whenever a man receives any hurt through the default of another, though the same were not wilful, yet, if it be occasioned by negligence or folly, the law gives him an action to recover damages for the injury so sustained."(l) This principle comprehends not only the instance just mentioned, where a writing not intended to be published, is divulged for want of proper care, but every case in which a noxious publication proceeds from mere levity or thoughtless jocularity ; for though the actual intention to produce mischief might not at the moment actually influence the mind of the defendant, the act is attended with that criminal in- attention to consequences which constitutes malice in its legal sense, and in justice renders the party responsible for the detriment so occasioned. * p. N. P. 25. (1) Brwn v. Croome, 2 Starkie's Rep. 301: 243 CHAPTER XVI. Process. Next are to be considered the means appointed by law for obtaining such damages where the party is entitled ; and the means of defence where a party sues who is not so entitled. The division of these proceedings is naturally sug- gested by the order in which they occur in point of time, and consist of, the process, pleadings, trial, judgment, and writs of error; to which may be added, the writ of prohibition. Of the Process. — The action to recover damages for slander, whether oral or written, is a special action on the case ; in which, since the damages are uncertain, the party cannot be held to bail without a special order of the court, or of a judge, on a full affidavit of the circumstances,* and no instance ap- pears in the books in which such an order, in a com- mon case, has been granted. Even in an action of scandalum magnatum, the court has denied an appli- cation for good bail; in the Marquis of Dorchester's casef the defendant agreed to put in bail to the amount of 50/. 11 1 Tidd. P. 150, ed. 4. i 2 Mod. 215. 244 In the Earl of Macclesfield's case,* the plaintiff desired that the defendant might put in special bail ; but the court would not grant it, and said, it was a discretionary thing, and not to be demanded ofright.(l) And it seems that the court will, in no case, allow special b il, unless affidavit be made of the words spoken. f(i) * 3 Mod. 41. Ibid. (1) Clason v. Gould, 2 Caines's Rep. 47. Norton v. Barnum, 20 Johns. Rcjh 337. Van Vetchen v. Hopkins, 2 Johns. Rep. 293. (2) And the words spoken must be alleged to be false. Peareson v. Picket. 1 M'Cord's Rep. 473. 245 CHAPTER XVII, Of the Venue. It is next to be considered what there is peculiar to the pleadings in an action for slander : Observa- tions upon the declaration relate to the venue, the parties, the averments, and the joinder of different counts. First, to the Venue. — In general, the venue in an action of this nature may be changed upon the usual affidavit, where that affidavit can be made with pro- priety. But where* a libel, written or printed in one county, is circulated in others, the court will not change the venue to the first ; for, since every pub- lication is afresh offence, the defendant cannot swear that the cause of action was conrined to any one county.f(l) But where a libel is written in one place, and sent to another in the same county, the court will change the venue, t So, where the libel is written in one county and published in Germany, the defendant may change * Hoskins v. Ridgway, H. 23 G. 3. K. B. Pinkney v. Collins, 1 T. B. 571. 1 Wils. 178. 1 T. R. 647. t Clissold v. Clissold, 1 T. R. 647. 1 Wils. 178. 1 Freeman v. Norris, 3 T. R. 306. (I) Clinton v, Croswell, 2 Caines's Rep. 245. 246 the venue, upon an affidavit that the cause of action arose in that county, and not elsewhere in this king- dom.* And in the case of Freeman v. Norris, j the dis- tinction was recognised between libels dispersed throughout the kingdom and those which are pub- lished in one county only. So that, where the libel is printed in one county and published in a second, the venue, if laid in the second, cannot be changed ; for the publication in the latter county, is the act of the defendant, and he cannot make the usual affidavit. But the court will otherwise change the venue where special ground is laid. As if the defendant cannot have a fair trial in the original county.^: But in an action for scandalum niagnatum, it seems the venue cannot be changed upon the usual affidavit ; and the reason assigned is, that the scan- dal raised of a peer of the realm reflects upon him throughout the kingdom. § In the case of Lord Shaftesbury above alluded to, the venue was changed on the ground that the de- fendant could not have a fair trial in London where the venue was laid. In the Marquis of Dorchester's case,|| on amotion to change the venue, which had been laid in London, Pemberton, Serg. showed cause against the mo- tion. 1st. Because the king was a party to the suit, for it is, ; 3 T. R. 652. Metcalf v. Markham. t 3 T. R. 306. 1 Lord Shaftesbury's case, 1 Vent. 364. 5 Gil. C. P. 90. ' II 2 Mod. 216. 247 2dly. Because the plaintiff was a lord of parlia- ment, where his services would be required. North, C. J. was of opinion that the venue could not be changed, since the proceeding was in the nature of an information. But Atkins, J. inclined to think that the venue might be changed ; but the court not agreeing, the defendant consented that the cause should be tried in London, and the venue was not changed. But it seems that generally, unless special ground be laid for changing it, the plaintiff in scandalum magnatum may retain his venue.* Formerly, in actions for slander as well as in others, where a local justification was pleaded, the courts observed great nicety in requiring the venue to be awarded, not only from the county, but the very place in which the justification, as stated in the plea, arose. The reasons for this were, indeed, frequently stronger in these actions than in other instances, since where the truth of a criminal charge is pleaded in justification, the issue partakes of the nature of a criminal process ; and it is said, that upon its being found against the plaintiff, he is liable to be tried by a petty jury without further inquest. In the case of Ford v. Brooke, f which was an ac- tion for calling the plaintiff a perjured person at D. in Essex ; the defendant justified, averring that the defendant had perjured himself at Westminster in the county of Middlesex ; the plaintiff replied, de injuria, &c. and the court awarded the venire to be directed to the sheriff of Middlesex. * Duke of Norfolk v. Alderton, 2 Salk. €68. 1 Lev. 56. 307. 1 Vent. 3fit, f Cro. Eliz. 261 248 So, in an action for calling the plaintiff a thief, at Dale, in Essex, the defendant pleaded that the plaintiff had committed a robbery at Sale, in the same county ; and issue being joined upon that fact, the court awarded the venire from Sale.* And a misdirection of the venire was a good ground for arresting or setting aside the judgment, though the court would in such case, award a ne"w venire. But the law upon this point is altered by the statutes 16 & 17 C. 2. c. 8. and 4 Ann, c. 16. s. 6. ; the for- mer of which enacts, that after verdict, no judgment shall be arrested or reversed, for that there is no right venue, so as the cause of action were tried by a jury of the proper county or place where the action was laid : and the latter directs that the venire shall be awarded out of the body of the county where such issue is triable.! In Craft v. Boite,t the word swere, '* Look, there is a thievish young rogue, he hath stolen 200/. worth of plate out of Wadham College," (meaning Wadham College, in the university of Oxford.) The plaintiff brought his action in London ; the de- fendant justified the words, because he said that the plaintiff' at Oxford, in the county of Oxford, stole certain plate out of Wadham College ; the plaintiff pleaded de injuria, fyc. ; and the issue was tried in London, where the plaintiff had a verdict with 50/. damages. Saunders, for the plaintiff, moved in arrest of judg- ment, on the ground of the mistrial, but the court * Clerk v. James, Cro. Eliz. 870. See also Bowyer's case, Cro. Eliz. t See Serg. Williams's note, 2 Saund- 5. * 1 Saund. 241. 249 { against the opinion of Twisden) conceived that the fault was cured by the statute which had lately passed.* And this, which appears to be the first decision under the act, has since been acquiesced in. * 16 & 17 C. 2. m 25(i> CHAPTER XVIII. Of the Parties, Parties. — First, as to the number of plaintiffs. In this species of action, as well as in other cases of tort, two or more may join where their joint in- terest has been affected by the act of the defend- ant.* So that, where a libel reflects upon two partners in their trade, they may join in the action.f But unless a joint interest be affected, several ac- tions should be brought, though the same words be spoken or libel published concerning two.(l) As, where A. says to B. and C, " You have murdered D.," B. and C. must bring several, and not joint ac- tions.:}: So it seems, that two joint-tenants or copar- ceners may join in action of slander of their title to the estate : for, as it must be shown in the declara- tion, and proved, that the plaintiffs received some particular damage by reason of the slander, the da- mage, even as well as their interest in the estate, is joint. § So, for the words A. or B. murdered D., either * Weller v. Baker, 2 Wils. 423. 2 Williams's Saund. 116. a. n. 2. | Maitland v. Goldney, 2 East, 425. 3 Bos. and Pull. 150. Cook r. Batch elor, Shepp. Ac. 53. J Cro. Car. 512. 28 H. 8. foi. 19. Dyer, Shepp. Ac. 53. Deacon's case . § 2 Will. Saund. 117. a. (1) Se* Patten et «7. v. Gttrtiey et al. 17 Mass. I?ep. 186, 2ol A. or B. may bring a separate action,* but they cannot maintain a joint one.f Where]: joint ac- tionable words are spoken of a husband and wife, the tort is several, and the husband alone may bring the action ; but the wife may, in such case, be joined, provided the injury be laid as done to herself. The case of words spoken of the wife admits of three varieties ; 1st. When the words are not actionable, but at- tended with special damage. 2d. Actionable without special damage. 3d. Actionable with special damage. In the first case, the damage resulting to the hus- band is the sole ground of action, and the wife must not be joined. As, where the action is brought for calling the wife a bawd, per quod the husband lost liis customers. § And to join the wife in such case would be bad on demurrer, in arrest of judgment, or in error. But secondly, where the words are actionable, and no special damage laid, the wife must be joined, || and the declaration conclude ad damnum ipsorum, for there the action survives ; and she must be join- ed ^[ in an action for any slander published of her be- fore her marriage. But thirdly, where the words spoken of the wife are actionable, and special damage has accrued in consequence to the husband, great perplexity has * 10 Mod. 198. t 1 Roll. Ab. 81. | Smith v. Croker, Cro. Car. 512; § 1 Lev. 140. B. N. P. 7. || Grove v. Hart, Tr. 35 G. 2. B, N. P. 7. 1T 3 T. R. 627. 631. Com. Dig. Bar. & Fern. 1 Sid. 387. Ld. Ray. 120$. Soil, Ab. 317. 252 arisen on the question whether the wife should be joined or omitted. The difficulty in this case pro- ceeds from the circumstance of two distinct causes of action being involved in one and the same trans- action, — the actionable words spoken of the wife, and the special damage resulting to the husband. For the former, the husband is not entitled to da- mages without making his wife a part)', and the cause of action survh es to her. In the latter case, the loss is several, and peculiar to the husband, and ought not, therefore, to be stated as the loss of both. Accordingly, where the husband has brought the. action alone, it has been contended that he ought to have joined his wife in respect of the actionable words spoken of her, that at all events the action would survive to her, and therefore that the defend- ant would twice make compensation for the same injury. And in similar cases, when the wife has been joined, it has been argued that the joint action was improper, since the special damage accrued. From a review of the decisions upon this point, it appears, that the wife is not barred by the hus- band's action, though the special damage resuit from actionable words spoken of the wife, which removes the objection to a separate action, in which he alone is entitled to recover damages. In Guy v. Livesey,* the husband alone recovered in an action of tres- pass for a personal injury to himself, and also for beating his wife, by means of which he lost her so- ciety for three days. And on motion in arrest of judgment, th court held, t; 200 In the case of Newton v. Stubbs,* the action way brought for words spoken, which were set out in the declaration ad tenor cm et effectum sequentem ; and after verdict for the plaintiff, judgment was arrested, because it was not expressly alleged that the de- fendant spoke the very words. In the case of the King v. Bearf the indictment was for composing, writing, making, and collecting several libels in uno quorum conlinetur inter alia juxta tenorum et ad ejfectum sequentem, and the words were then set out. And it was agreed that ad effectum would of it- self have been bad, since the court must judge of the ivords themselves, and not of the construction the prosecutor puts upon them, but that the words juxta tenorem sequentem import the very words themselves.f And it was held, that the words " ad effectum" were loose and useless words ; but that the words juxta tenorum 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 vitialur" In the same case, J 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 forth after the words continetur ad tenorem et ad effectum sequentem. Two were found guilty, upon which judgment was entered for the plaintiff, and afterward upon error brought in the Exchequer. ' 3 Mo.l. 7i | 2Salk.417. I Lord Ray. it;* &?0 the judgment was affirmed, the exception taken to the words ad effectum having been overruled with- out consideration. And Holt, C. J. said, that he then thought the judgment to be given with too great precipitation ; but he afterward, upon great consideration, had esteemed it to be very good law. And the King v. Fuller,* and the King v. Young, f were cited as authorities in point ; and the whole court were of opinion, that notwithstanding the ex- ception, the indictment was good ; but that if it had been only ad effectum sequentem, it had been ill, be- cause it had not imported that the words were the specific ivords which were in the libel. In the above case of the Queen v. Drake, \ a dis- tinction was taken between an action for libel and one for words, and that in the latter case it would be sufficient to find the substance ; but in case of words spoken, as well as written, it has been held necessary to set out the words themselves, and that it is insufficient to aver that the defendant spoke these words vel his similia.§(l) And next, the statement of the ivords written or spoken must correspond with the publication, to be proved. (2) It has been said,|| that the strictness formerly observed as to proving the words precisely as laid, * Mich. 4 W. & M. t Ibid. X Holt, R. 34S. 350. $ Cro. J. 159. 1 Vin. Ab. 533. pi. 1. Br. Ac sur le cas. pi. 112. 4 Ed. 6. 4 T. R. 217. " II B. N. P. 5- cites 2 Roll. Ab. IS- a. Avarillo v. Rogers, T- T. 1773. (1) But a declaration in slander, laying the charge in the alternative, viz. that lie defendant spoke certain words, or words of the same imperii i* good after verdict. Bell v. Bugg, 4 Munf. Rep- 2fi0. (1) Sep. pott, not* <>1 11 1 V has been abandoned, and that it is sufficient to prove the substance of them; but, at the present day, it seems requisite to prove some of the words, though not all, precisely as they are laid, both m ^ case of oral and written slander.(l) If the slander* be contained in words of interro- gation, it must be so laid, and must not be averred to have been spoken affirmatively. In the case of the Lady Ratcliffe v. Shubly,t the words laid in the declaration were, " She is as very a thiefe as any that robbeth by the highway side " The jury found that the defendant spoke these words, " She is a worse thiefe than any that robbeth by the highway side." And Wray, O.J. was of opinion, that " as very a thief, and a worse thief," are all one ; but Gawdy and Fenner Justices, ruled that the words did not agree with the declaration. e So, an indictment for speaking these words of a magistrate,* " He is a broken down justice, is not satisfied by evidence of the words, « You are a broken down justice." Lord Kenyon, indeed, in this case, held at nisi prius, that it was suffi- cient to prove the substance of the ivords stated, and the defendant was found guilty; but the point was * 2 East, 434. 8 T. R. 150. 4 T. R. 217. t Cro. Eliz. 224. But see Dyer, 75. I R. t. Berry, 4 T. R. 217- Blissct v. Johnson, Cr^E^^contra. (i) The distinction taken in Q««»V~ Drake, is borne out by the cases de- cided in the Unfed States, and by the later English eases. Kennedy v Lwry, Binn. 393, Miller filler, 8 Johns. Rep- 58, Gn* v. Heyser 2 M'Cord - Rep 305, and Kye v. Otis, 8 Mass. Rep. 122, are direet authori.es that in a - ins for '.oris, U is sufficient to state and prove the substance of be words I- y Led to have been spoken. Hancock el ux v. Winter, 2 Marsh. 503 7 Taunt. 205. and Walters v. Mace. 2 Barn. & Aid. 756, are to the same point- h ; 272 reserved, in order that a verdict of acquittal mighi be entered, in case the court should be of a dif- ferent opinion. On motion to that effect, Bul- ler, 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. (1) So, where A.* says of B. and C. " You have committed such an offence," though B. and C. may have separate actions, each must state the words to have been spoken of both. So, where the words are spokenf ironically, they must be stated as spoken, with an averment that they were spoken ironically. Where the declaration stated these words of the plaintiff, " He stole a sheep of his," (innuendo of the defendant.) It was moved in arrest of judg- ment, that his must refer to the last antecedent, and so that .the words were repugnant, for a man cannot steal his own sheep $ but the objection was overruled. Upon the authority, however, of more recent cases, it seems the variance between the words his, * Cro. Car. 512. t 11 Mod. 86. J 8 Mod. 30. (1) The sense and manner of speaking the words must be proved, therefore words charged to be spoken in the third person, will not be supported by proof of words spoken in the. second person. 8 Johns. Hep- 59. M'Connell v. M'Coy, 7 Serg. & Rawle, 223, overruling Tracey v. Harkins, 1 Binn. 395, n. Wolf v. Jlodifer, 1 Ilarr. fit Johns. Rep. 409. So an averment, that slanderous words were spoken concerning the (three) plaintiffs in their joint trade, is not sup- ported by evidence of words, addressed by the defendant personally, to one onlv v «r the partners- Solomons et d- v.JWedcx, 1 St urine's "Rep- 191, 4 273 as used in the declaration, and mine, as proved in evidence, would be a ground of nonsuit. Where the words laid in the declaration,* w as spoken of a surveyor, were, " Harrison is a scoun- drel; if I would have found him an oven for nothing, and given him after the rate of 20/. per cent, upon the amount of the charges for work and materials, he would have- passed my account." The first witness called for the plaintiff proved these words : " Harrison is a scoundrel, and if I had allowed 20/. per cent, he would have passed my account." The second witness proved the words, " Harrison is a scoundrel, and if I had deducted 20/. per cent, he would have passed my account." Lord Ellenborough, C.J. said, that words to be actionable, should be unequivocally so, and be proved as laid; but that, as the words were proved, they did not support the declaration. The words of the declaration were, "If he would give me 20/. per cent." that might mean something to himself, by which he would be himself benefited to the prejudice of his employer, but the words proved were, " If he would allow," or " if he would deduct 20/. per cent." These words might import an allow- ance or deduction from the plaintiffs bill for the benefit of his employer, and were of a different meaning andimport."(l) Where the words are spoken, or libel published, in a foreign language, they must be set out in the * 4 Esp. R. 218. (1) See Hancock et ux v. Winter, 7 Taunt. 205. 2 Marsh- 503. Shepherd Pliss ct ux. 2 Startle's Rep. 510- 35 474 original language, otherwise the declaration will be bad in arrest of judgment.* But it seems that ah English translation of them ought likewise to be set forth, showing their application to the plain- tiff. But in an anonymous case in Hobart,| the plaintiff declared against the defendant for calling him Idoner in the Welsh tongue, and had judg- ment, though he did not aver that the word amount- ed to a charge of perjury ; and the case was cited, in which the plaintiff had judgment for the words, " Thou art a healer of felons,'' without any averment how the words were taken ; because the court were informed, and took notice that in some counties the term healer was understood to mean a smotherer or coverer of felons. But at all events, the more correct mode is to aver the meaning of the words in English, since, when the original publication is made either in a foreign language or in a dialect of this kingdom, their mean- ing ought not to rest upon mere evidence, but to appear on the record, that a correct judgment may be given upon that meaning after it has been ascer- certained by a jury. It may next be considered what variances be- tween the words stated and those proved, are fatal to the action. The variance must consist either in the addition or omission of one or more words, or in the substitu- tion of one word for another. First, in the addition. It is not necessary, in case of verbal slander, to * Zenobio v. Axtell, 6 T. R. 162- + 126. -J76 prove all the words, provided such of them be proved as are material. The plaintiff declared that the defendant said of him, " He is a maintainer of thieves, and a strong thief." The jury found the whole to have been said except the word strong, and it was adjudged for the plaintiff.*(l) And even where special damage is the gist of the action, it is sufficient to show that the loss was sustained in consequence of any of the words laid in the declaration.! But if all the words, as laid, constitute but one charge, the whole must be proved. The declaration stated that the defendant said of the plaintiff, " He is selling his coals at one shilling a bushel, to pocket the money, and become a bank- rupt to cheat his creditors." Upon trial, the words " and become a bankrupt," were not proved, and the plaintiff was nonsuited, t And the reason applies with equal force in the case of libel, where the addition of a word not proved would be fatal, if it at all affected the sense, whether the words were set out under an inter alia or ad tenor em. With respect to variances from omission, it seems in all cases 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 * Burgis's case, Dyer, 75. j Holt, R. 1 39- $ Flower v. Pedley, 2 Esp. R. 491. (1) Uersh v. Ringwall, 3 Yeates, 508. Ckipmvi v- Cook, 2 Tyl- Rep. 43G. Bloom v. Bloom, 5 Serg. &'Rawle, 391. 276 conlinetur inter alia, fyc. ;* for, if something else were added, which did in fact qualify the objec- tionable words, it may be given in evidence on not guilty.f In Sir J. Sydenham's case,t an action was brought for these words : "If Sir John Sydenham might have his will, he would kill all the true sub- jects of England, and the king too ; and he is a maintainer of papistry and rebellious persons." The defendant pleaded, that he spake other words, absque hoc, that he spake these. The jury find that he spoke these words : " I think, in my con- science, if Sir John Sydenham," &c. and found all the other words verbatim, and conclude si super totam materiam, he spake the words forma qua the plaintiff declared, they find for the plaintiff to his damage of 160 marks, if otherwise, for the defend- ant. And three of the judges, Montague, C. J. Croke, and Dodderidge, J. held, that the plaintiff was entitled to judgment, since the other words found were not words of extenuation or alteration of the sense of the former words, but rather en- forced them, and that there was no cause to stay the plaintiff's judgmental ) For though the plaintiff declared of more words than the defendant spake, yet he declaring truly that the defendant spake those words, upon the evi- dence it appears that he spake these words which are actionable, and the words added, diminish not, nor are an alteration of the sense of the words whereof he declares ; wherefore, although the issue * R. v. Bcare, 4 Rep. t 8 Mod- 329. t Cro. J. 407- •O Spp Mkmson v. Hartley, 1 M'Cord's Rep. 203- 217 be specially found, yet the plaintiff shall have judg- ment. The fourth judge (Houghton) was of opinion, that the omission of part of the words proved, though the sense was unaltered, was a fatal va- riance. A writ of error* was afterward brought upon this judgment, and one ground of error assigned was, the variance between the words declared upon and proved; and of this opinion were Hobart, C. J. of the Common Bench, Winch, and Den- ham ; but Tanfield, Chief Baron, Warburton, Brom- ley, and Hulton, were of a contrary opinion, where- upon the judgment was affirmed. And the rule is the same with respect to written slander ; for though, in the different reports of the case of the Queen v. Drake, a distinction is made between cases where the libel is set out jaxta teno- rem, or in hcec verba, and where it is set out under an inter alia, there seems to be little distinction be- tween them, since, under the latter averment, some of the words must be proved as laid, and any varia- tion from the sense would be fatal. It is to be ob- served too, that the word tenor does not necessarily imply an undertaking to set out a copy of the whole publication without addition or diminution, since, in the King v. Beare, where the point was much considered, the prefatory words were, m uno quo- rum continetur inter alia juxta tenor em, fyc. where both inter alia and juxta tenorem were used, and * Mich. 16 Jac- 278 no objection was taken on the ground of any incon- sistency in the allegation.* The reasoning of the three judges in Sir J. Sy- denham's case, applies equally to the case where the libellous part only of an offensive publication is set out ; for though, on evidence, it appear that more was published than appears on the face of the indictment or declaration, it is nevertheless true that the defendant published the part complained of as alleged, although he, at the same time, published other matter. If the additional words proved be altogether un- important, their insertion would have been nuga- tory ; if their effect be to alter the sense of the part already set out, the defendant will have the advan- tage of it by giving it in evidence under the general issue. One count of a declaration stated the words of a libel as follows : " My sarcastic friend, by leaving out the repetition or chorus of Mons. T.'s poem, greatly injures the tout ensemble, or general and combined effect." The words proved in evidence were " My sarcastic friend mopos, by leaving out," &c. And it was held by Lord Ellenborough, C. J. upon trial of the cause, that there was a material variance between the libel declared upon in that count and the libel proved, and that the plaintiff was not entitled to recover on that count. f (1) * See Haw. P. C. c. 46. s. 140. Leach's C. C L- 158. 172. ; from which it appears, that in criminal cases where the descriptive term " tenor" is used, a variance in the spelling of a word will not be fatal, unless the sense be altered. t Tabart v- Tipper, Camp. N- P. 350. (1) Cartwright v. JVrighl, 5 Barn- & Aid- 615. S- C 1 Dow- & Ryl. 230- Harris v. Lawrence et al. 1 Tyl. Rep. 156. Sauthwick v. Stevens, 10 Johns. 443. 3 Johns. 57. 27\) But though it is not necessary to state the whole of a libellous publication, yet, if the most offensive parts be selected, the passages which are not continuous in the original must be set out so in pleading, since any alteration of the sense arising from such a new arrangement would be a ground of nonsuit.* The correct mode of setting out two selected passages in the same count, is by saying, " In a certain part of which said libel there was and is con- tained, &c. and in a certain other part of which said libel there was and is contained," &c. With respect to the alteration of a single letter, the rule seems to be, that if the sense be thereby altered, the variance will be fatal, but not other- wise.! Provided the sense be not altered, the variance is not material even in an indictment for perjury. In the case of the King v. Beech,^ a variance was . relied upon in favour of the prisoner between the / indictment for perjury and the affidavit on which / the prosecution was founded. In the affidavit, the defendant swore that he understood and be- lieved, &c. The assignment of perjury in the in- dictment was, that he had falsely sworn that he undertood and believed, &c. omitting the letter si Lord Mansfield — " This is an application for a new trial in an indictment for perjury, upon the ground of a material variance betu een the affidavit and the indictment, the letter s beings left out in the word understood. We have looked into all the cases on the subject, some of which go to a * 1 Camp. N« P. C 353. t 3 Salk. 224. X Leach, C. C L. 15S / 280 great length of nicety indeed, particularly the case in Hutton, where the word indicari was written for indictari, but that case is shaken by the doctrine laid down in Hawkins.* "The true distinction seems to be taken in the Queen v. Drake,! which is this ; that where the omission or addition of a letter does not change the word so as to make it another word, the variance is not material."! (1) If the omission even of a letter render a word of a different signification from that contained in the libel, the variance, it seems, will be fatal.§(2) As, when the word not was stated instead of nor ; for it was said, if in such a case a letter could be amended, why not a word, why not a sentence, and. where would the non ultra be found : that this was I not so small a variance of a letter, as in false spell- \ ing or abbreviations, as if gaine instead of gain, * where the word and sense would be the same ; but I that, in the principal case, the words were different *and of different significations, different parts of speech, the one an adverb, the other a conjunction, the one positive, the other relative. It was observed too, that though the objection was in appearance trivial, the consequences were weighty ; and that if the variance were not considered as fatal, the judges would have too great power in cases of treason, where the decision would be quoted as a pre- cedent. * 2 Hawk. PI- C. c. 46. s. 190. t Salk. 6G0. See Hart's case, Leach, C G. L. 172. Douglas, 194- § 3 Salk. 224. (1) Lewis v. Few, 5 Johns. Hep. 1. See page 27 to 32. (2) Walsh v. The State, 2 M'Cord's Rep. 249. Next it is to be considered whether die words are, upon the face of them, illegal, or require the aid of some extrinsic circumstances to explain their quality. It may be laid down as a general rule, that where the slanderous charge or imputation can be collected from the ivords themselves, it is unneces- sary to make any averment as to circumstances, to Whose supposed existence the words refer. For the slander, which is the ground of proceeding, appear- ing on the very face of the publication, it is a matter of indifference as to the cause of action, whether the circumstances referred to really existed, or were invented by the defendant. In the latter case, in- deed, the moral guilt of the slanderer may be en- hanced in proportion to his wanton disregard of truth ; but it would be unreasonable on that account to impose upon the plaintiff in any case, the diffi- culty of proving either the truth or falsity of the facts presumed by the defendant. Thus, when a person says of another,* " That is the man who killed my husband," no averment of the husband's death is necessary, for the defendant's words have ascertained the death. The defendant said to the plaintiff, f "Thou hast given J. S. 9/. for forswearing himself in chancery, and hast hired him to forge a bond." After verdict for the plaintiff, it was moved in arrest of judgment, that the declaration contained no allegation that any suit was in chancery, or that J. S. forswore himself in his answer, or as a witness, or that the plamtifl «uborned J. S. to forswear himself, or show any par - * Button v. Hey wood and his Wife, IS Mod. 24. Vent. 117. • Cio Car. 337. se ' 2&2 ticular wherein he forswore himself. But it wa^ held that these averments were immaterial ; for if J. S. never was sworn, it was scandalous in the de- fendant to say that the plaintiff procured J. S. to forswear himself in a court of record, although it was merely false, because he never was sworn. And that as to the bond, though it was not said that J. S. had forged a bond, the charge against the plaintiff was nevertheless scandalous. In an action for these words,* " Thou hast killed thy master's cook." On motion in arrest of judg- ment, it was held unnecessary to make any aver- ment, showing who the plaintiff's master was, or that he was the master of the person slain, because the words in themselves imputed slander. In Wilner v. Hold, the words were, " Thou art a rogue and a rascal, and hast killed thy wife." On motion in arrest of judgment, among other causes, it was alleged that an action lay not for the words, because it was not shown that the wife was dead, or how she was killed ; but the objections w r ere overruled,! and the plaintiff had judgment. There are, notwithstanding, many cases in the books where averments of the kind have been deemed indispensable ; but since these are contra- dicted by the more modern decisions,}: and are rather remarkable for their subtlety than for either convenience or consistency, it would be a waste of time to take further notice of them than by citing a few specimens. After verdict for the words, " Thou art as arrant a thief as any is in England,"§ it was held, in arrest N Cooper v. Smith, Cto. J. 423. ^ee 1 Vin. Ab. 513. pi. 1, 2. I P^alfp v Oldham-, Cowp. 275. 5 'osier? Browning, Cm. .t fi3" ■&3 of judgment, that the words were not actionable, for want of an averment that there was any thief in England. After verdict for the words, " Thou art a murther- er, for thou art the fellow that did kill Mr. Sydnam's man," judgment was reversed, for want of an aver- ment that any of Mr. Sydnam's men had been slain.* And where the words of the defendant are general, no explanation is necessary to render them more par- ticular. The defendant* charged the plaintiff with having forsworn himself in his answer to a bill in chancery. After verdict for the plaintiff, it was moved in arrest of judgment, that the particulars of the perjury im- puted were not pointed out in the declaration, and that many indictments for perjury had been quashed, for not showing the perjury to have been in a mate- rial point. But the court held, that though indict- ments ought to show the cause of perjury, yet, that in an action for words which is grounded upon the speech of another, the charge cannot be enlarged farther than the other spoke. Next, with respect to the connexion of the words with the plaintiff, where they are intrinsically action- able, and with extrinsic circumstances, when such are necessary to make the actionable quality appa- rent on the face of the record. Formerly it was the practice to aver, that the de- fendant spoke the words in a certain discourse which * Barrons v. Ball, Cro. J. 331. — See a conjecture upon the original reason of this scrupulous nicety, p. 81. t Sir T*. Snowde v. , Cro. Car. 32! , mi he had with other*, or with the plaintiff himself in the presence of others, concerning the plaintiff. This was technically called laying a colloquium, and till the case of Smith v. Ward,* it seems to have been doubted whether a declaration without a collo- quium would be good. In that case, it was alleged that the defendant said of the plaintiff, " He (innu- endo the plaintiff) is a thief;" and the court, on be- ing informed that it was the common course to de- clare that he said de prcrfato querente hate verba, held it to be sufficient without a colloquium. But though the custom was to lay a colloquium, it was always held necessary to aver that the words were spoken concerning the plaintiff. Where actionable words are spoken to a plaintiff, it is sufficient to lay a colloquium with him without an express averment that the words were spoken de querente ; since it cannot but be intended that the words were spoken to him with whom the con- versation is alleged to have been had.f But where actionable words are spoken in the third person, as, "He is a thief;" though a col- loquium of the plaintiff be laid, it is necessary to aver that the words were spoken concerning the plaintiff.:}: And it is not sufficient in such case to connect the words with the plaintiff by means of an innu endo.§(l) * Cro. Jac. 674. 3 Salk. 323. Sir T. Ray, 85. | Roll. Ab.85.pl. 3. 1 Will. Saun. 242. (a) n. 3. fioll. Ab. 85. 1. 30. 1 Sid. 62. 1 Com . Dig. tit. Defam. G. 7. § Cro. J. 126. (1) Cave*. Sheleretux. 2 Munf. Rep. 193. See Vsey v. Smith, 7 Johnf. Rep. 359, ^6 liut where a colloquium is laid, and there is an in nuendo of the plaintiff, it seems the want of a direct averment must be pointed out by special demurrer, and that it will be intended after verdict, or upon general demurrer, that the words were spoken of the plaintiff", but that where no communication is laid concerning the plaintiff, the omission of such an averment* is fatal to the declaration. Where the person slandered is pointed out by the prefatory words thy son, thy brother, &c. or my son, my brother, which description may possibly ap- ply to several, from the current decisions it seems, that the plaintiff must aver that he stood in the de- scribed relation, and that he was the son or the bro- ther of the person addressed in the former case, or of the speaker in the latter, and that a general alle- gation that the words were spoken of and concern- ing the plaintiff is insufficient. f So, where the words were, " Go, tell my land- lord (innuendo the plaintiff,) he is a thief.":}: Judg- ment was given against the plaintiff, for not having averred that he was the landlord of the defendant, although he had averred that the words were spoken of himself. And it is not sufficient to bring the plaintiff within the description by means of an in- nuendo^ And even where the description could by possi- bility apply to one person only, it has been held that an averment is necessary, to show that it was applied to him. * 9 Roll. It. 244. Skutt v. Hawkins, 1 Will. Saun. 242. a. n- 3. t 1 Roll. 84. 1. 15. 30. 50. 85. 1. 45. Cro. Car. 443. Jon. 376. Cro. Elix. 416, even after verdict. J Cro. Car. 420. + Pelamore v. Heskins, Hill. 11 Car. K. B. 1 Vin. Ab. 528 288 The plaintiff declared that the defendant having a discourse concerning the plaintiff with divers other persons, said these words of the plaintiff, " Your father (meaning the plaintiff) hath struck and killed Nicholas Russell." And after verdict for the plaintiff, judgment was arrested, because it was not averred that the plaintiff was father to him to whom the words were spoken.* In Shalmer v. Foster,! the declaration stated, that "The wife of the defendant spake of the foresaid plaintiff to Ann Rochester, the plaintiffs mother, these words, " Where is that lying thief, thy sonne ? &c." And it was moved in arrest of judgment, that the words were uncertain, no precedent communi- cation being alleged to be of the plaintiff, nor that he was the only son of the said Ann Rochester, to whom the words were spoken, and that it might be that she had divers sons, and every of them might have an action as well as the plaintiff, and that there was an ambiguity who was meant by the words. And Whitelock and Croke were of that opinion ; and the latter cited the cases of Harvey and Chamberlain,^ and of Burnet and Codman,§ where for such words it was adjudged for the de- fendant. But Hyde C. J. and Jones, J. doubted thereof, because it was alleged that she spoke of the plaintiff, and was found guilty. But it was an- swered, that so were the words in every declara- tion, and that so it was in the precedents cited.)! * Hil. 1052. Rot. 1037. 1 Vin. Ab. 530. Golds. 187. Cro. Eliz. 416. 439. Cro. Car. 92. 173. Mo 305. t Cro. Car. 177. But see Cro. J. 107. V. T. 20 J. 1. § T. T. 5 .1. 1. I| The court adjourned 287 At this day, after so many of the technical met ties, with which actions of this description were formerly encumbered, have been defeated, it may well be doubted whether much attention would be paid to these cases. The real end and object of such averments is, to show with certainty that the plaintiff is the person aimed at by the defendant ; and though, upon the face of the words themselves, their application may be ambiguous, as where the defendant says, thy son, or thy brother, yet there appears no want of certainty upon the record, when it is alleged that the words were spoken of the plaintiff ; and whether they were so applied or not, is a matter of evidence, to be proved by showing that he did stand in the relation specified, and with- out due proof of which the jury could not possibh find the truth of the averment that the words were spoken concerning him. Considering, however, the great number of ex- press decisions upon this subject, it would not be prudent to omit a special averment. Where the description may apply to several per- sons, as brothers or sons, it is unnecessary for the plaintiff to aver, that he was the only brother or only son, so as to make it appear that the descrip- tion applied to himself exclusively. This objection, however, appears to have been frequently taken ; and in Wiseman v. Wiseman,* where the defendant spoke the words de prcefato querent e existente fratre suo naturali, on motion in arrest of judgment, it was held by Yelverton, J. that the words were too un- certain ; that words, to be actionable, ought to inv • Gro •'• 107 port in themselves precise slander without ambi guity, so that every one who heard them might in- tend of whom they were spoken ; for otherwise, it it could be helped by the averment of the plaintiff, every one who was his brother might make the same averment and have an action, which would not be reasonable. But it was afterward adjudged, by all the judges, for the plaintiff. (1) A distinction was taken in the last case by Tan- field, J., between words importing in themselves apparent Uncertainty, and those which might be as- certained by intendment. That, in the first case, no averment would aid the uncertainty, but that in the latter, it might be aided by an averment and verdict; and therefore, if the words had been " one of my brothers is perjured," there would be in them an apparent uncertainty ; and that, although, one of the brothers should bring the action, and aver that they were spoken of him, yet that because it ap- peared to the court that ihere were divers brethren, and that it did not appear to any of whom he spake* no action would lie, although the defendant should be found guilty by verdict. But it has since been held,* that for disjunctive words, as that A. or B. committed such a felony, both A. and B. are entitled to recover, and it would probably now be decided upon the same principle, that in the case put by the learned Judge, each brother would be allowed to maintain his action. • Harrison v. Tuornburougli, 10 Mod- K'O. (1) Set- Gidnty v. Elatfe, 11 Joli:;*. Rep- 54- 289 When the plaintiffs name is mentioned, though a further description be given,* the general aver- ment is sufficient, without a special allegation that such further description applied to the plaintiff. As, where the speaking is alleged to be of the plaintiff, and the words are stated, " T. (innuendo the plain- tiff) is thy brother, &c." it is sufficient without any other averment. In Nelson v. Smith,f the words were, " Captain Nelson is a rogue and a thief, and hath stolen away my goods ;" and it was held, that the declaration was good without any averment that he was a cap- tain, or known by that name, inasmuch as there was a communication of the plaintiff, and it was averred that the words were spoken of him. The general rule is, that where the party can show that he was intended by the defendant, he may maintain an action, whatever be the mode of description. Thus, for the words, " The parson of Dale is a thief;" it was held that he who was parson of Dale at the time the words were spoken might maintain an action 4 The defendant said,§ " That murderous knave Stroughton lay in wait to murder me ;" and the ac- tion brought by Thomas Stroughton was held main- tainable. When the actionable quality is derived from ex- planatory circumstances extrinsic of the words, the connexion ivith those circumstances must appear. * Cro. Eliz. 429: t 22 C 1. B. R. See also Osborne v. Brookes, 1 Vin. Ab. 529. 1 Roll. Ab. 85. J 3 Bols- 326* § Shepp. Ac. 59 37 290 I he technical mode of effecting this is, by first stating in the introductory part of the declaration those extrinsic facts by reference to which the words complained of become actionable ; secondly, averring that the words related to those facts by laying a colloquium, as it is usually termed ; and thirdly, connecting, by averments called innuendos, such parts of the publication as want explanation, with the introductory facts previously exhibited upon the record. By this process, the extrinsic facts incorporated, as it were, in the defendant's publication, become an integral part of the plaintiff's case, and the whole forms one entire slanderous charge upon the face of the record. The nature and certainty of these two kinds of averments are next to be considered. First, of the colloquium* or general averment, connecting the whole of the publication with the introductory facts. Where the words are actionable, as affecting the plaintiff in a special character, an averment that they were applied to him in that particular character is Hscessary,f unless that application necessarily appear from the words themselves ; in which case, the ge- neral allegation that they were spoken concerning the plaintiff*, is sufficient. The defendant said of a tradesman, + " He is a sorry pitiful fellow, and a rogue, he compounded his * To avoid circumlocution, tbe term colloquium is used, not in its strict, but in its technical sense, to signify this general averment. t Savage v. Robery, 2 Salk. 694. Savile v. Jardine, 2 H. Bl. 531. Burnet v.Wells, 12 Mod. 420- Str. 1169. 3 Salk. 32C Ld- Ray. 610- S Mod- 27 1 <>o Car. 417. * T nrd-Ravmond. 14B<> Stanton t. Smith* 291 debts at live shillings in the pound ;" and the decla- ration was held good, without an express colloquium of the trade. (1) So, where the words published of a tradesman* were, " Have a care of him, do not deal with him, he is a cheat, and will cheat you ; he has cheated all the farmers at Epping, and dares not show his face there, and now he is come to cheat at Hatfield." And the court said, the words themselves supply a colloquium, they appear to be spoken of his trade. So, where the words spoken of a justice of the peace were, "I have been often with Sir John Isham for justice, but could neyer get any thing at his hands but injustice ;" it was held that the words were actionable without colloquium, and that the court would intend that the words were spoken of him as a justice, and not as a private man.f(2) So, where the defendant said of an attorney, " He is a common barretor ;" it was held unne- cessary to aver that the words were spoken of the plaintiff in his profession, for the court would intend it, and that words were to be construed secundum conditionem personarum of whom they were spoken. So, where the words spoken to a merchant were, " He is not worth a groat, he is 100/. worse than nought.''^ So, where the defendant said to a physician, § " Thou art a drunken fool and an ass, thou wert * 2 Lev. 62. f Cro- Car. 15. 102- 459. Cro. J- 557- 1 Lev- 280- 1 Cro- Car- 265. $ Cro- Car- 270. (1) Davis v. Davis, 1 Nolt &. M'Cord's Rep. 290- See also Hoyle v. Yomg, I Wash- Rep. 150- (2) But see Oakley v- Partington, 1 Johns- Ca. 120- 392 never a scholar, and art not worthy to speak to a scholar." The words were held actionable, though no communication was laid of the plaintiff's pro- fession. In general, where facts extrinsic of the words and of the plaintiff's character are necessary to support the action, the plaintiff must aver that the publica- tion was made in reference to those facts. The declaration stated that the plaintiff,* a con- stable of D., was sworn before the justices at their quarter sessions concerning an affray made by the defendant upon one F., and that the defendant then and there, in the said court and in the presence of the justices, said, he (innuendo the plaintiff) is for- sworn, and it was held, the declaration was bad with- out a colloquium of the oath so taken, because it was necessary for the declaration to show that the words intended a false oath in a court of record. The declaration stated,! that the plaintiff had put in an answer upon oath to a certain bill filed against him in the court of exchequer by the defendant, and that the latter, in a certain discourse which he then and there had with one R. W., the plaintiff's servant, said, " I have no doubt you will forswear yourself, as well as your master (the plaintiff) has done, be- fore you," meaning and insinuating thereby that the plaintiff had perjured himself in what he had sworn in his aforesaid answer to the said bill so filed against him as aforesaid. In another count, the words spoken by the de- fendant to the said R. W., the plaintiff's servant, were * Drake v. Corderoy, in error, Cro. Car- 2S t Hawkes v. Hawkey, 8 East, 427. 293 laid thus; •• Four master (meaning the plaintiff) has both cheated people out of their wages, and forsworn himself;" thereby meaning that the said plaintiff had perjured himself in the aforesaid answer, so put in by him to the bill so filed against him as aforesaid. It was held, after verdict, that both these counts were bad, on the ground that there was no collo- quium laid of the plaintiff's answer to the bill in chancery, and that it did not appear that the words were spoken in relation to that answer, and that without such ail averment the innuendo was unwar- ranted. The colloquium ought to extend to the whole of the prefatory matter necessary to render the words actionable. The plaintiff declared,* that some evil persons unknown, had feloniously shorn the sheep of C, and that there being a communication be- tween the defendant and another, concerning the shearing of those sheep, the defendant said, " I do know who did shear the sheep ;" and being asked who it was, he replied, that it was the plaintiff', innuendo felonice, and Houghton and Doderidge, Justices, against the opinion of Croke, J. held, that the words were not actionable, since the collo- quium was of the shearing of the sheep only, and not of the felony. Secondly, with respect to the nature and office of the innuendo. An innuendof may be defined to be an averment which explains the defendant's meaning by reference to antecedent matter. The principal and important * 3 Buls. 83- Helly v. Hcnder. t 2Salk. 513. 1 Ld- Ray- 256- 12 Mod- 139. 1 Will. Saun. 213. rule of law relating to this species of averment is, that its office is merely to explain, by pointing out the defendant's allusion, and that it can in no case be allowed to introduce new matter. (1) And the rea- son for this is a most substantial one ; for were it otherwise, questions of law and fact would frequent- ly be confounded together. For instance, suppose the defendant had said, " You are forsworn," which words would not be actionable, unless spoken* with reference to a judicial oath, if the plaintiff averred by way of innuendo, and without reference to ante- cedent matter, meaning thereby "that he, the said plaintiff, was forsworn in a court of record," or mean- ing thereby "that he, the said plaintiff, was per- jured ;" the averment would involve a question of law, and the jury would have to decide upon evi- dence, whether the forswearing did in law amount to perjury, and the question would not be open to the court upon the record ; and besides this, that clearness and precision would be wanting which is essential to a legal and technical statement of the case. In the King v. Horne,t De Grey, €. J. observed, " In the case of a libel, which does not in itself con- tain the crime without some extrinsic aid, it is ne- cessary that ic should be put upon the record by way of introduction, if it is new matter, or by way of innuendo if it is only matter of explanation. For an innuendo means no more than the words " id est" " scilicet" or "meaning," or " aforesaid," as ex» * Holt v. Scbolefield, 6 T- R. 691. f 2 Cowp. 683- (1) Shaffer v. Kintzer, 1 Binn- 537- Bornman t. Boyer, 3 Binn. 516. 29o planatory of a subject matter sufficiently expressed before, as such a one, meaning the defendant, or such a subject, meaning the subject in question." An innuendo, therefore, cannot extend the sense of the words beyond their own meaning, unless something is put upon the record for it to ex- plain. (1) As, in an action upon the case against a man, for saying of another,* " He has burnt my barn ;" the plaintiff cannot there, by way of innuendo, say, meaning, " his barn full of corn," because that is not an explanation of what was said before, but an addition to it. But if, in the introduction, it had been averred that the defendant had a barn full of corn, and that in a discourse about that barn, the defendant had spoken the words charged in the declaration of the plaintiff, an innuendo of its being the barn full of corn would have been good ; for, by coupling the innuendo in the libel with the introductory averment, " his barn full of corn," it would have made the sense complete. If the innuendo materially enlarge the sense of the words, it will vitiate the declaration even after verdict. The plaintiff,! in the first count laid, these words as spoken by the defendant, " John Holt (meaning the plaintiff) has forsworn himself, (mean- Barham's case, 4 Co. t Holt v- Scholetteld, G T. R. 691- (1) WClurg v. Ross, 5 Binn. 218. Van Vechenx. Hopkins, 5 Johns. Rep 220- M'Glaughry v. Wetmore, 6 Johns. Rep- 33. Thomas v. CrosweU, 7 Johns Rejv 271. See. Smith v. Carey, 3 Camnh- Rep. 4G1 296 mg that the plaintiff had committed wilful and cor- rupt perjury.) After a general verdict for the plain- tiff with entire damages, judgment was arrested, on the ground that the words in the first count were not in themselves actionable, and that the count contained no colloquium or averment of the words having been spoken of a forswearing in a court of justice, and that the innuendo could not extend their meaning. In the case of the King v. Alderton,* the alleged libel was contained in an advertisement, reciting cer- tain orders made for collecting money, on account of the distemper among the horned cattle, advertised by the clerk of the peace for the county of Suffolk ; and it charged, that by these orders the money col- lected had been improperly applied. The informa- tion stated this to be a libel upon the Justices of Suffolk. In the body of the libel it was not said, " by the order of the justices," nor did the informa- tion in the introductory part say that it was a libel of and concerning the Justices of Suffolk. But when the information came to state any of the orders in the advertisement, it added this innuendo, " mean- ing an order of the Justices of peace for the county of Suffolk ;" but these innuendos could not supply the want of an averment in the introductory part, of its having been written " of and concerning the Justices," because they were not explanatory of, but in addition to the former matter. And the court were of opinion that the information having omitted the words " of and concerning the justices" in the * Say. R. 280- [See what is said of the Report of Rex v. Alderton by Saytr, 1 Mau- &SeIw- 169, 170-7 297 introductory part, such omission was fatal, and judg- ment was accordingly arrested. (1) In the case of Hawkes v. Hawkey,* before re- ferred to, it was decided that where the introductory matter has been properly stated, it is necessary to connect the whole publication with it, by means of a general averment that it related to such previous matter, and that it was not sufficient to do it by means of an innuendo only. Upon motion in arrest of judgment, Lord Ellen borough, C. J. was of opinion, that it might be col- lected from what Lord C. J. De Grey said in Bar- ham's case, j that he conceived an introductory aver- ment that the defendant had a barn full of corn, and also an averment that the defendant spoke the words in a discourse concerning that barn, necessary to warrant the innuendo " my barn full of corn." His Lordship added, "If a broad rule has been laid down as to the mode of declaring, in this species of action, whether properly laid down or not, in the first instance, it is better to abide by it, than to attempt making nice distinctions. The only pecu- liarity in this case which is relied upon, as distinguish- ing it from the current of authorities, is, the pre- liminary matter averred respecting the fact of the plaintiff having put in his answer to the bill filed in the exchequer; and the question is, whether the innuendo alone will refer the words spoken to such introductory matter so as to make it necessary for the plaintiff to prove any thing which he must have * 8 East, 427. t 4 Co- U) The Kins; v. Mavsdm, 4 Mau. & Seliv- 1 64 38 proved had a colloquium been laid ; the case of Savage v. Robery seems to show that it will not." And the court,* after considering the case of the King v. Home, gave judgment for the defendant. In many instances, however, an innuendo will not vitiate the proceedings, though new matter be introduced. As, where the matter is superfluous, and the cause of action complete without it. The plaintiff alleged,! that the defendant ad- dressed these words to him, " Thou art a rogue and a rascal, and hast killed thy wife ;" innuendo one Elizabeth, late wife of the plaintiff. And the plain- tiff had judgment, though the declaration contained no prefatory averment that the wife was dead. In Shalmer v. Forster and Wife, i the declaration stated that the wife of the defendant spake of the foresaid plaintiff to Ann Rochester, the plaintiff's mother, these words : "Where is that lying thief, thy son, (innuendo the plaintiff,) he hath murdered rny aunt (innuendo one Dorothy Stoke, the defend- ant's aunt,) and I will prove it." After verdict for the plaintiff, though a motion was made in arrest of judgment upon another ground, no objection was taken to the innuendo of the plaintiff's aunt. So, where the words were laid,§ " Thou hast robbed the church," (innuendo the church of St. Al- phage,) no objection was taken. In Craft v. Boite,|| the words, as laid in the decla- ration, were, " He (meaning the plaintiff) hath stolen * C'jwp- 0S0. \\ ilner v. Hold, Cro- Car- 1^:> : Cro. Car- 496. j 1 Cro- I 153- 1 Vin- At>. 512 J Will. Satin- 243. two ■hundred pounds worth of plate out of Wadham College," (meaning a college called Wad ham Col- lege, in the university of Oxford,) though the decla- ration contained no previous averment of Wadham College, in the university of Oxford. It is suggested by the learned editor of Saunder's Reports, that the innuendo is on such account improper ; the objec- tion, however, appears to be rather of form than of substance ; and probably such a declaration would be held good on general demurrer or after verdict, since the gist of the action is the charge of stealing from Wadham College, which is entirely unconnected with the situation of the college in t|ie universit} 7 of Oxford, so that the innuendo might be expunged without affecting the cause of action. In Roberts v. Cambden,* the defendant said, il He (meaning the plaintiff) is under a charge of a prosecution for perjury. G. W. had the attorne} - general's directions to prosecute ;" and an innuen- do that the attorney-general for the county pala- tine of Chester was meant, was rejected as sur- plusage^ I) An innuendo, when repugnant or insensible, may be rejected.! The record of Nisi Prius stated, that the said William spoke of the said James these scandalous words following : " He (innuendo the said William) is a thief," where the innuendo should have been of James. After a verdict for the plaintiff, it was held that he was entitled to his judgment, since the innu- endo was void, and an apparent misprision. * 9 E. 83. t Cro. Car. 512. (1) Thomas r. Cromcell, 7 .Tolins. Rep. 27L '' tea* •300 it does not, in any case, seem necessary that the innuendo should in terms state the legal inference which is to be drawn from the publication, as con- nected with the facts stated ; its office seems more properly confined to mere reference of the defend- ant's meaning to previous matter ; and, indeed, such an averment would be improper, since the action- able nature of the charge is a matter of law, which the court will collect from the facts, if they war- rant such a conclusion ; and if they do not, no in- nuendo of their legal effect will avail to render them actionable. Thus, where, from the circumstances, it appears upon the whole that the defendant intended to im- pute a charge of wilful murder, it is unnecessary for the plaintiff to assert, by way of innuendo, that the defendant meant to impute the very crime of murder. In Peake v. Oldham,* in error, the plaintiffs de- clared, that upon a colloquium concerning the death of one Daniel Dolly, the defendant said to the plain- tiff, " You are a bad man, and I am thoroughly con- vinced that you are guilty (meaning guilty of the death of the said Dolly,) and rather than that you should want a hangman, I will hang you." After a general verdict with damages, the defend- ant brought a writ of error. Judgment, however, was affirmed, though the count alluded to contained no express allegation, by way of innuendo or other- wise, that the defendant intended to charge the plaintiff, with the crime of murder. \nd though in the above case special damage was - 1 Coup. 2::.. :K)1 laid, it appears that the court held the words to be in themselves actionable ; and Lord Mansfield ob- served, " These words plainly show what species of death the defendant meant, and therefore manifestly in themselves import a charge of murder." On the contrary, if the plaintiff undertakes to explain the import of the words, by specifying the particular imputation intended by the defendant, such explana- tion will not vitiate the declaration, provided such an intention can be collected from the circum- stances. Thus, in the case last alluded to, where a colloquium was laid concerning the death of Daniel Dolly, the plaintiff, in his fifth count, laid the words, " You are guilty," (innuendo of the murder of D. D.) And the count was held good after verdict, though the colloquium was of the death only, and the innuendo of the murder.* An innuendo in one count may be supported by a colloquium in a previous one. In Tindall v. Moore,f the words laid in the first count were, "That rogue Joe Tindall (meaning the plaintiff) set the house on fire," (meaning the summer-house that was burnt in the occupation of one Mr. Cotton.) In the fifth count the words were, "Joe Tindall (meaning the plaintiff) set the house on fire," (meaning the same house.) It was moved in arrest of judgment, that the words in the last count were not actionable, for that every count in a declaration is a substantive count, and that the innuendo (mean- ing the same house) could not relate to the summer- house mentioned in the first set of words. But by * See also Woolnoth v- Meadow?, 5 East, 463, and Dame Morrison v. Cade, Cro- J- 162. + 2 Wife. 114. .502 the court, although the last set of words be not ot themselves actionable, yet theyjshall have relation to the former set. From these decisions it appears, that both the colloquium and innuendo are averments, whose of- fice it is to connect the defendant's publication with the prefatory matter. That the first is a general averment, connecting the whole of the publication with the previous state- ment ; the latter a subordinate averment connecting particular parts of the publication with what has gone before, in order to elucidate the defendant's meaning more fully. That the want of the colloquium cannot be sup- plied by an innuendo. That the office of the innuendo is confined to a simple explanation of the defendant's meaning by reference to previous matter. That when it exceeds such limits in a material point, it will vitiate the de- claration or indictment ; if in an immaterial one, the fault will be cured by verdict, and would probably be overlooked on a general demurrer. It would not be easy, or perhaps possible, to point out a more clear and convenient process for techni- cally stating a case upon the record than this, which has with great wisdom been adopted by the law from very early times ; it combines simplicity with pre- cision, separating the law from the fact, and exhibit- ing a statement of the cause of action upon the face of the record, plain and distinct in all its parts. It is true, that in some instances justice may be defeated, from a want of attention to the maxims which regulate this technical kind of statement; but it is equally true that this cannot happen without a faulty inattention to a few very plain and rational rules ; that the failure might have been prevented by the exertion of a little prudence, aided by a very small stock of legal knowledge ; and that, on the other hand, the general advantages in point of perspicuity and legal precision, which result from an adherence to these prescriptions, are too great to be placed in competition with any individual in- convenience arising from an ignorance or miscon- ception of them. .CHAPTER XX. Of Averments in General. In what cases it may be necessary to state prefa- tory circumstances, to be afterward connected with the publication by means of a colloquium and innu- endos, is of course a matter in which the pleader must exercise his discretion in the particular in- stance before him ; the only general rule that can be laid down is, that such circumstances must be in- troduced upon the record, as will enable the court to decide upon the actionable quality of the publi- cation, and the jury to find the facts which are con- nected with it. Where, from the ambiguity of the terms in which a libel is expressed, it is doubtful who was meant, it is the proper office of the innuendo to render the allusion clear ; as, where but one or two letters of the name are expressed,* or the plaintiff is libelled under a fictitious or borrowed name, or where the libel is couched under a fable or allegory, whose tendency and meaning it is necessary to explain with precision. (1) Thus, in the case of Sir Miles Fleet- * Haw. P. C c. 73- !■ 5- (1) See 3 Rinn. 517. 305 tocod v. Curl,* the plaintiff was receiver of the court of wards, and the words were laid in the de- claration, with an innuendo, as follows : " Mr. De- ceiver (meaning the plaintiff) hath deceived the king." It was assigned for error, that the innuendo could not be supported, but the court held that it was well applied. So, in an information against Clerk, f for pub- lishing a libel in " Mist's Journal," it was shown by proper averments and inauendos, that in a pre- tended piece of Persian history the king and se- veral other members of the royal family had been libelled, and that the king was represented under, the name of Merewits, the Queen under that of Sultana, and that the character of the young Sophi was intended for the Pretender. In Baxter's case,! it was shown that by the word Bishops, the Bishops of England§ were meant. In the King v. Franklin, that by " ministers," were meant the ministers of the King of England. |] In an action for charging the plaintiff with hav- ing said that he could see no probability of the war's ending with France until the little gentleman on the other side of the water (innuendo the Prince of Wales) was restored to his rights. The court held, that this was certain enough even without an innuendo. In Tucthin's case,^ the introductory part of the information stated, that the libel was written con- cerning the royal navy of this kingdom, and the government of the said navy. One part of the libel * Cro. J. 557. 2 Rolls Rep. 148- t Barnard, K. B- 304. Dig. L. L. 24- I 3 Mod. 69. s 4Bac. Ab. 454. || 11 Mod. 99. IT 5 St. T. 590. 3 Ann- 1704. 39 -300 was, " The mismanagements of the navy (innuendo the royal navy of this kingdom) have been a greater tax upon the merchants than the duties raised by parliament." And it was held, that "the navy" was well connected, by means of the innuendo, with the royal navy mentioned in the introductory part. In the King v. Mathews,* the information m the introductory part charged the libel to have been written " Of and concerning the Pretender, and! concerning his right to the crown of Great. Britain." The words of the libel were, "From the solem- nity of the Chevalier's birth, and if hereditary right be any recommendation, he has that to plead in his favour." And it was held, that the innuendos in the body of the libel, explaining the words to mean the Pretender, and his hereditary right to the crown of Great Britain, were, when connected with the previous averments, sufficient to verify the charge. In the King v. Horne,f the libel, as stated in the information, was averred to be of and concern- ing his said Majesty's government, and the em- ployment of his troops. The libel, as set forth in the information, advertised a subscription for " the relief of the widows, orphans, and aged parents of our be- loved American fellow-subjects, who, faithful to the character of Englishmen, and preferring death to slavery, were, for that reason only, inhumanly murdered by the King's (meaning his said Majes- ty's) troops at or near Lexington and Concord, Sf St. T. R. 682 t Cowp. 682- so? &,e. iii the province of Massachusets." The de- fendant having been found guilty, objected, in ar- rest of judgment, that there was no averment as to the state of the Massachusetts colony at that time, or that the King had sent any troops there, or that the employment of the troops was by the King's authority. Lord C. J. De Grey, in giving judgment, ob- served, " The words in the present case are, that the defendant, of and concerning the king's go- vernment and the employment of his troops, said., ' that innocent subjects had been inhumanly mur- dered by the king's troops, for preferring death to slavery.' Do these words import, in their natu- ral and obvious sense, that the king's troops were employed by the act of government inhumanly to murder the king's innocent subjects ? There can be no doubt but that the king's government com- prehends all the executive power both civil and military, that he employs all the national force, and that his troops are the instruments with which part of the executive government is to be carried on. The introductory part of this information charges that the subject of the writing in the present case was, 'the troops and the king's troops, and the business they had done.' M It has been truly said, that the king's troops may, like other men, act as individuals, but they can be employed as troopsby the act of government only. If the averment, therefore, amount to this, that in the discourse which was held, the words were said « of and concerning the king's govern- ment,' the natural import appears to us to be this : • I am speaking of the king's administration of his government relative to his troops, and I say that our fellow-subjects, faithful to the character of Englishmen, and preferring death to slavery, were, tor that reason only, inhumanly murdered by the kino's order, or the orders of his officers.' The motive imputed tends to aggravate the inhumanity of the act, and consequently of the imputation itself, because it arraigns the government of a breach of public trust, in employing the means of the de- fence of the subject in the destruction of the lives of those who are taithtul and innocent. " As to any other circumstances not stated in the information, if those which are stated, do of themselves constitute an offence, the rest supposed by the defendant, whether true or false, would have been only matter of aggravation, and not any ingredient essential to the constitution of the crime, and therefore not necessary to be averred on the re- cord. With respect to words published in a foreign lan- guage, and phrases or terms whose use is confined to a particular district or class of people, and not ge- nerally understood, it has, as already observed, been said, that no averment as to their meaning is neces- sary.* This doctrine seems nevertheless a little ex- traordinary, since, without such an explanation, the question of law does not appear open upon the re- cord.f Suppose, for instance, an action brought for calling the plaintiff Idoncr,\ without any aver- ment of the meaning of the term, and that the de- • See 1 Will. Saund. n. 242. [ Hob. 126. 1 Roll. Ab. 86. Zenobio v. Axtell, 6 T. R. 162. % In Welch signifying; perjured. 309 Jendant demurred ; since an acquaintance with the Welch tongue forms no part of legal education or practice, the judges might be placed in a strange situation if bound to give their judgment upon the legal meaning of the words ; but an avermenl as to the meaning, would preclude all doubt, .since by his demurrer, the defendant would allow that the mean- ing of the word was perjured or forsworn, as alleged in the declaration, and judgment would be given ac- cordingly . If the plaintiff undertake to translate, and render a foreign word of an actionable sense, by an English one whose meaning is not actionable, the declaration will be defective.* In the case of Ross v. Lawrence, the plaintiff averred that the word Idoner in Welch signified for- sworn, though in fact it meant perjured ; and after a verdict for the plaintiff, judgment was arrested. After these observations upon the general nature of these averments, it may be proper to subjoin a lew remarks upon their application to the different classes of actionable words which have been above enumerated. It has been observed, that it is in no case neces- sary to introduce upon the record any collateral cir- cumstance, connected with the imputation, which is assumed by the defendant's words. Thus, in de- claring for the words, " I will call him in question for poisoning my aunt," there needs no averment that the aunt was poisoned. f Formerly, indeed, a very considerable degree of precision was required in pleading, when the words imputing the commission of a crime related to any * Sty. 236. Ross v. Lawrence. t Cro. F.liz. 569. 823, extrinsic facts. Thus, in declaring ior the words, " Whosoever he is, that is the falsest thief and the strongest in the county of Salop, whatsoever he hath stolen, or whatsoever he hath done,* Thomas Hasel- wood is falser than he," it was held necessary to aver that there were felons in the county of Salop. But this resolution is to be attributed to the anxiety of the courts to discourage such actions ; it seems pretty clear that at the present day no such aver- ment would be deemed necessary. It would be sufficient to aver that the defendant, intending to charge the plaintiff with felony, spoke the words ; and in setting them out, to add an in- nuendo to the same effect, in which case a verdict for the plaintiff would be conclusive as to the de- fendant's meaning and intention. The introduction of useless averments is in all cases objectionable, inasmuch as it encumbers the plaintiff's case upon the trial with unnecessary proof, and in some instances the superfluity may prove fatal to the declaration. In the case of Snag v. Gee,f where it appeared upon the record that the person, with whose mur- der the plaintiff had been charged by the defendant, was still alive ; it was held that no action was main- tainable. So, in cases where a felony is charged, it is unne- cessary to make any averment introducing any cir- cumstances relating to a felony actually committed ; so, with respect to imputations of forgery or perjury, where the meaning can be collected from the de- fendant's own words, no averment ought to be made * Shepp. Ac. 269. t 4 Rep. 16. 1 Vin. Ab. 409. pi. 4. 311 as to the existence of any circumstance to whicii the defendant might by possibility allude, since it has been long settled that their existence is perfectly immaterial to the maintenance of the action.* But in case qf a charge of forswearing, unless from the accompanying words, it is clear that a judi- cial forswearing was meant, the plaintiff must show upon the record that the defendant alluded to some particular forswearing which amounted to perjury. Thus, in a declaration for saying, " A. B.f being for- sworn, compounded the prosecution." No introduc- tion of extrinsic facts is necessary, since an indicta- ble forswearing must have been meant ; but in de- claring for the words,; " He has forsworn himself in Leake Court," it is necessary to show that Leake Court was one in which the offence of perjury could liave been committed. Where, from the context, the import of the words is doubtful, it is advisable to insert those only which certainly are actionable, in order to avoid all doubt upon the record, which may be taken advan- tage of by demurrer, or by motion in arrest of judg- ment, or by writ of error. Thus, in an action brought for the words, § " Mr. Brittridge is a perjured old knave, and that is to be proved by a stake parting the land of H. Martin and Mr. Wright." After a verdict for the plaintiff, the defendant succeeded on a motion for arresting the judgment ; for though it was held by the court that the words in italics were actionable, they were of opinion that their force was explained away by * Via. supra, 85. t Cro. EHz. 609. " 1 Roll. Ab. 39. pi. 7. 6 Bac Ab. 207. * 4 Co. 18- S12 the latter, which showed that no judicial perjury was mentioned ; so that had the latter words been admitted, the plaintiff would have retained his ver- dict. In the description of the special character in which the plaintiff sues, some nicety is to be ob- served, in not averring more than is necessary ; for since the averment of character is material, the plaintiff upon the trial will be bound to prove it, with all the circumstances with which the description in the declaration is encumbered, though a much more simple one might have sufficed.(l) In an action for words, the plaintiff* declared that he was in medecinis doctor ; and it was moved in arrest of judgment, because he did not show that he was licensed by the College of Physicians, or that he was a graduate of one of the universities according to the statute. f But Bankes, C. J. and Crawley, J. were of opinion that the act was a ge- neral one, which need not be pleaded. And even had the statute been a private one, it seems that the plaintiff in such an action would not be bound to set out his title, since, in general, in an action on the case against a wrong doer for a dis- turbance, it is sufficient for the plaintiff to allege his right {habere debet) generally, without showing a titled * Dr. Brownloiv's case, Mar. 116. pi. 3. 1 Vin. Ab. 539. • t 14 H. 8. c. 5. J 2 Vent. 292. Cro. J. 43. 123. Com. Dig. Pleader, c. 39. 1) See;?o.sf, note [22.1 ;H3 And in an action brought by a physician, it is sufficient to aver* that he had used and exercised the profession of a physician ; but if he were to aver that he was a physician, and had duly taken the degree of doctor of physic, he would at all events be required to prove his degree as stated ;f and if he were unable to prove it, he would fail. But though the plaintiff need not aver how he came by his title, he must describe it in apt terms. Thus, in an action brought by a barrister, he ought to aver that he is homo conciliarius ; and it is not sufficient to say that he is eruditus in lege 4 It was formerly held, that it was necessary for a tradesman§ to aver in an action for words of his oc- cupation or trade, that he got his living by buying and selling ; but this arose from the idea, that the words, to be actionable, must import bankruptcy, and must be applied to a person who was liable to the statutes of bankruptcy, and has long been ex- ploded :|| it is sufficient to aver that the plaintiff ex- ercised the trade, and derived profit from it. Next, it should appear that the special character belonged to the plaintiff at the time of the publica- tion. So little precision has been required as to this statement, that it has been held that the averment by the plaintiff, that he is of such a trade, or has exercised it for divers years, H without saying ultimo et jam elapsos, or that he is a freeman, exercising the art or mystery ot a linen draper for the space *8T.R. 305. t 8 T. 303. 1 N. R. 196. 2 Buls. 230. f 1 Vin. Ab. 539- pi. 2. § Sid. 299. 1 Vin. Ab. 539. According to Coke, C. J. the technical de scription is homo conciliarius et injure peritus' 'I Vide supra, 134, 135. 1T Tuthill v. Milton, Yel. 159. 40 of live 3 ears past, or that he has been an attorney for divers years now elapsed, was sufficient, with- out an express averment that he was such at the time the words were spoken, since it is not to be presumed that a man alters his trade or profession. In the case of Dodd v. Robinson,! the plaintiff declared that he was inducted into a parsonage in Ireland, and executed the office of pastor for four years after. It was moved in arrest of judgment, that he did not aver that he was a parson at the time of speaking the words. But the court said, it should be intended that he continued parson, because he had a freehold in the parsonage during his life. In the case of Tuthill v. Milton, t the court said, that in an action for words which affect the plaintiff in his office which he holds during pleasure, it must be expressly averred that he was in the office at the time the words were published ; but that if the words relate to his profession or trade, it is sufficient to aver that he has for some 3 r ears past exercised the profession or trade, for that it shall not be intended that he has discontinued such profession or trade. But in the subsequent case of Collins v. Malin,§ where the plaintiff declared that he had, for a great while, used the trade of buying and selling cattle, and that the defendant said of him, " Thou art a bankrupt." After verdict for the plaintiff, judgment was arrested. * 2 Roll. It. 84. 1 Vin. Ab. 533. I All. 63, 64. 1 Vin. Ab. 538. note to pi. 3. Cro. Jac. 222. Yelverton, 150. > Cro. Car. 282. Ser also 2 Roll S-1. Dan L70 31.3 After verdict, indeed, if the continuance can be collected from any averment or circumstances, the want of a precise and technical allegation will be cured. As, where the plaintiff, after alleging that he was a justice* of the peace for the county of Lei- cester, for divers years, averred that the defendant spake these words of him, being a justice of the peace. So the continuance may be collected from the words themselves ; as if the defendant say of an attorney, that " he plays with both hands."! In the proceeding by writ of scandalum mag- natum, the plaintiff declares tarn pro domino rege quam pro seipso,i though he is entitled to the whole of the damages recovered. It has been held,§ that the statute 2 R. 2. st. 1. c. 5, is a general law, and that the plaintiff need not recite it in his declaration; but that if he under- take to recite it and vary from it in any material point, the declaration will be bad. * Sir Thomas Beaumond v. Sir Henry Hastings, Cro. J. 240. t 2 Roll. 85. X 6 Bac. Ab. 100. 1 P. Will- G!)0- * 4 Co. 12. b. Cro. Car. 136- Com. Dig". Pefam. B. 3- CHAPTER XXI. Averment of Malice. Since a malicious intention to injure the plain- tiff forms an essential ingredient in this species of action, it seems necessary to introduce into every declaration' an averment of the defendant's malice. No precise and prescribed form of words is re- quisite for this purpose, though the epithet mali- cious, as applied to the matter published, and the word maliciously, to the act of publishing, are the most usual and appropriate terms. Any form of words will suffice, from which a malicious intention can be inferred ; thus it has been held sufficient to aver, that the defendant spoke the words, or published the libel falsely or wrongfully,* or that the defendant, machinans pe- jorare dixit. j And Holt, C. J4 was of opinion, that in a de- claration it is not necessary to use either the word falsely or maliciously, though it is otherwise in case of an indictment or information. But it is suggest- ed by Mr. Sergeant Williams, in his notes on Saun- ders^ that this must be taken to mean that the omission would not be fatal after verdict. * Moor, 459. Ow. 51. Noy, 35. 1 Danv- 166. Com. Dig. tit. Defam. G. 5. Sty. 392. 5 2 Will. Sau. 212. 317 But such words, it seems, are essential in indict- ments and informations.* It has been the fashion with pleaders, both an- cient and modern, to deal so profusely in the evil motives and intentions attributable to the defend- ant, that few cases are to be met with where any objection has been taken, for want of an averment of this nature. It does not appear to be necessaryf for the plain- tiff to make any averment by way of exculpation, since it is incumbent on the defendant, in case he mean to rely on the justice of the charge in his defence, to plead the justification specially, and he cannot give it in evidence under the general issue. And perhaps the averment of innocence, on the part of the plaintiff, of the charge cast upon him, or of the falsity of the defendant's publication, would be considered as unnecessary, on account of the general presumption which the law entertains of a man's innocence till the contrary be made to appear. Formerly, however, it was held incum- bent upon the plaintiff not only to aver the fal- sity of the charge in general terms, but also to ne- gative particular facts contained in the publication complained of; for instance, where the slander was published as heard from another, X it was held ne- cessary to aver that the defendant had not heard it. In Hooker v. Tucker,§ it was held by Holt, C J. that in a declaration for these words of a trader, " He is a pitiful fellow, and not able to pay his debts." There needed no averment that he * Sty. 392. Per Roll, C J. 1 Vin. Ab. 533. pi. 3. t 2 Wils. 147. + Morrison's case, Sheppard, Ac. 267. § Holt, R. S9. 318 was no pitiful fellow, and that he was able to pay his debts. So, in Bendish v. Lindsey,* where the action was brought for charging the plaintiff with bribery at an election, the defendant, holding up some gui- neas in his hand, said of the plaintiff, who was a candidate, "These guineas are Mr. Bendish's mo- ney, and were given me to vote for him ; he has bought my vote, and he shall have it." It was ob- jected in arrest of judgment, after verdict for the plaintiff, that it was not averred throughout the whole pleading, that the plaintiff did not give the money. But Holt, C. J. said, it need not be aver- red that the plaintiff did not give the money, for it is said, hcec falsa Jicta malitiosa verba, which is well enough. The falsity of the charge may be implied from the averment that it was made ex malitza, since the term, in its legal sense, imports a publication without legal excuse.! Where a party repeats the slander of another, knowing it to be false, and that the author has re- tracted his assertion or opinion, it seems an action is maintainable against the reporter, though, at the time of publication, he announced the name of the person from whom he heard it ; but in such case, it would be necessary to aver the defendant's know- ledge, in the declaration ; for, if the fact or circum- stance were not to be averred in the declaration, and the defendant pleaded that he gave the plaintiff a cause of action by naming his author, the plaintiff might be considered as precluded from replying that the defendant maliciously published the slander * !1 Mod. 104. + Sutton v. Johnstone, 1 T. R. 40°. Cro. Car. 271. against his own knowledge and conviction ; tor it he could reply it, issue must necessarily be joined upon the fact of knowledge, which has been held not traversable. Thus, in the case of Sir G. Gerrard v. Dicken- son,* the action was brought for publishing a lease, knowing it to be counterfeit, and thereby hindering the plaintiff from letting his land ; the defendant pleaded, that she found the lease, and traversed her knowledge of the forgery ; and the plea was held in- sufficient, because the knowledge of the forgery is not traversable, any more than the sciens in an action on the case, where the defendant's dog has bitten the plaintiffs cattle, and where the plaintiff avers that the defendant knew that the dog was accus- tomed to bite sheep. The objection to traversing the scienter assigned is, that it is no direct allegation, nor ever alleged in any place, and therefore cannot be tried. f This objection on the score of locality ceased indeed, when it was no longer required that the venire should be awarded from the vicinage ; and there seems to be no very satisfactory reason why a party in pleading should not confine the evi- dence by traversing any distinct circumstance which is essential to his adversary's case, and which must be proved upon the trial. Since, however, the technical objection to traversing the scienter has not been judicially defeated, it would not be proper to omit the averment of knowledge in the declara- tion, in a case where it is material ; as, where a party- has repeated slander, knowing the author to have been convinced of his error, or sets up a lease which • A Kr r . 18. f A Rep. 18. 320 he knows to be a forgery, for the purpose of injuring the plaintiff. Where particular circumstances have been intro- duced to show the defendant's conduct to have been malicious, it will be necessary to prove them upon the defendant's pleading the general issue.* * 2 East, 437, CHAPTER XXTT. Of Damage. The defendant's wrongful act having been con- sidered, the next question is, as to the statement of the loss to the plaintiff resulting from it. Where the words are intrinsically actionable, the loss to the plaintiff is, as lias been seen, a mere in- ference and presumption of law ; and it does not seem necessary for the plaintiff to aver that the words complained of amount to the charging a precise crime ; since their actionable quality is a question of law, and not of fact, and will be col- lected by the court from the circumstances, if they warrant it.* But in such case, it may frequently be adviseable to aver special damage to have been sustained in consequence of the words ; such an averment will not prejudice, since it will not be necessary to prove it on the trial. If no such proof be then given, and the jury give a general verdict, the defendant, if it should be necessary afterward in order to enable him to move in arrest of judg- ment, may have the verdict amended by confining; itf to the actionable words according to the judge's notes. * See Peake v. Oldham, Cowp. Rep. 275. + This is done at Chambers, a? of course, without a motion in eourt 41 Formerly it was held* that, where the words were not actionable, but the special damage was the gist of the proceeding, such special damage might be given in evidence, although the particular instances of the special damage were not stated in the decla- ration ; but that, when the words themselves were actionable, particular instances of such damage could not be given in evidence, unless specified on the record. But modern practice! does not warrant this dis- tinction, and at the present day it seems that in both cases the particular damage must be speci- fied.^) The general rule of pleading, as to special da- mage, is, that it must be averred with that degree of certainty and particularity which the case admits of, in order that the defendant may be apprized what it is he comes to answer, though in some cases where particularity would be productive of inconvenience, and the circumstances are not immediately within the knowledge of the party, a more general state- ment has been deemed sufficient. Thus the averring generally, that by means of the publication, several customers (not naming them) left the plaintiffs house, is not sufficiently precise.^ And so, where the alleged damage consists in loss of marriage, § the plaintiff must point out the * 1 Str. 666. t B. N. P. 7. 1 Will. Saund. 243. n- 5- j B. N. P. 7. 1 Roll. Ab. 58. § 1 Sid. 396. 1 Vent. 4. Cro. J. 499. 12 Mod- 597. (1) Herrick v- Lapham, 10 Johns. Rep- 281. Hersh v Ringwalt, 3 Yeates, 503. .}2ii individual with whom the marriage would other- wise have been contracted. And for the same reason, where the plaintiff states a marriage with J. N to have been hindered, she cannot afterwards give in evidence loss of mar- riage with an)' other person.* But it has been said, that greater certainty is requisite where the special damage is the gist of the action, than where it is merely laid by way of aggra- vation.! Where the special damage consists in the t plain- tiff's having been prevented from disposing of, or settling his estate, it is necessary to show how he was prevented, as that he had taken some steps for the purpose of selling, and that the bid- ding was stopt by the defendant's act; but it is unnecessary to specify the names of any of the bidders. Where the plaintiff, § who had been a preacher in a chapel to a dissenting congregation, averred generally in the declaration, that by reason of the words the persons who frequented the said chapel had refused to permit him to preach there, and had discontinued giving him the gains and profits which they had usually given, and otherwise would have given ; the court || held on motion in arrest of judg- ment, that where a plaintiff brings an action for slan- der, by which he lost his customers in trade, he ought, in his declaration, to state the names of these customers, in order that the defendant may be ena- * Lord Ray. 1007. t Per Cur. in Wetherell v. Clerkson, 12 Mod. 597. 2 Lut. 1295. I Smead v. Badley, Cro. J. 397. Sir W. Jones, 196. t 6 Hartley v, Herring, S T. R. 130. || 4 Burr- 2424. 324 bled to meet the charge, if it be false ; but that in the principal case, the plaintiff could not have stated the names of all his congregation, and that it was sufficient to say that he had been removed from his office, and had lost the emoluments of it.(l) Where actionable words are spoken, within the scope of a private jurisdiction, the declaration may allege a consequential loss of customers at a place beyond the limits of such jurisdiction. For the allegation is only in respect of damages to increase them, and may be inquired of in any place whatso- ever.* Where the words are in themselves actionable , and the character of the plaintiff is stated in aggra- vation, it is not necessary to state the circumstances of that situation with so great certainty as where it is essential to the action. Thus, where the words are spoken of a candidate to serve in parliament, it is sufficient to state the fact generally, and unneces- sary to set forth the writ to the sheriff.f In general,]: the place where the words are spo- ken is immaterial : yet, if the plaintiff state the place by way of aggravation, and not merely as ve- nue, it seems he will be bound to prove the speak- ing to have been in the place named. With respect to joining different injuries in the same proceeding, words spoken at different times may be included in the' same count. * Ireland v. Blockwell in error, Cro. C- 570. t Hanvood v. Sir J. Astley, 1 N. R. 47. «J B. N. P. 5. (1) Whether being refused admission into a Presbytery be such special da- mage as the law will take notice of. Qucere. M'Millan y- Birch, 1 Binn- 178 326 In such case, however, if it should appear on the face of the count tha« the words were spoken at different times, and that some of them were not actionable, y. dgment would be arrested if entire damages were given for the whole count. And it seems a count for verbal slander* may be joined with a count for a libel in the same declara- tion. And the causing! a plaintiff to be brought before a magistrate may be joined with a complaint for a malicious accusation before the magistrate. * King v. Waring and uxor, 5 Esp. R. 13. t Cro. Car- 271, CHAPTER XXIII. Of the Defendants Plea. The principal circumstances of which the defen- dant may avail himself in resisting an action for slan- der, have already been sketched out ; the technical mode of answering the plaintiffs claim upon the re- cord is next to be considered. Under this division it may be inquired, first, what must be pleaded; secondly, what may be pleaded ; and thirdly, how it should be pleaded. 1st, What must be pleaded. Since an action upon the case is founded on the justice and equity of the plaintiffs claim, it is a general rule that whatever will, in equity and con- science, preclude the plaintiff from recovering, need not be pleaded, but may be given in evidence under the general issue. *(1) In the particular case of an action for slander, if the instances be excepted where the defendant relies on the truth of the im- putation, or the plaintiff is barred by the sta- tute of limitations, there does not appear to be any defence of which he may not avail him- self under the general issue ; since, in every other * Burr. 1353. 1 Bl. R. 388. 1 Wils. 45. (1) Lane v. tfpplegate, 1 Starkie's Rep. 97 ; and observe the reasoning of the Tudfres in Fairmm v. Ives, 5 Barn. & Aid. Rep. 642. S. C. 1 Dowl. & Ryl. 252, 327 ease where the plaintiff is not entitled to recover, he must fail from his inability to substantiate in evidence the two leading circumstances whose union is essential to the action, the wrongful act of the defendant, and the loss resulting to himself ; these, in all cases where the general issue is plead- ed, he must prove upon the trial, and in default of such proof, would be liable to a nonsuit ; and where he has established a prima facie case, it seems equally competent to the defendant to controvert and overthrow it by opposite evidence. Where the defendant insists that the plaintiff is not entitled to recover, because he is really guilty of that where- with he has been charged, the justice of the case imperatively requires that the plaintiff so taxed with an offensive or criminal imputation, which his adversary proposes to subtantiate against him in evidence, should be apprized by means of a special plea, of the nature and circumstances of the charge, that he may be fully prepared to answer it in court. The rule of law upon this head has long been settled, that the defendant, if he mean to rely upon the truth of that which he has published, either in bar of the action or in mitigation of damages, must plead it specially.(l) Formerly a distinction was made in this respect between words imputing an offence generally, and such as charged a particular and specific one. (1) And where the general issue is pleaded in an action for a libel, the plain- tiff cannot go into evidence for the purpose of showing that the allegations in the libel are false. Shwrt v. Lovell, 2 Starkie's Rep. 93- In the case of Smith v. Richardson,* the twelve Judges were unanimously of opinion, that where the words import a general felony, as " Thou art a thief," or " Thou stolest a horse," or any other thing not specifying the person from whom or when and where it was stolen, the defendant ought not, upon the general issue, to be allowed to give the fact in evidence to mitigate damages. The words in the principal case were, " John Smith is a rogue, and hath stolen my beer ; John Smith has robbed me of my beer." And eight of the Judges were of opi- nion, that in no case whatever where the words im- ported felony or treason, such evidence ought to be admitted on not guilty pleaded ; but four were of opinion that it might,, where the words imported a particular felony. But in the case of the Bishop of Salisbury v. Nash, quoted in the above case, which was an action for saying of the plaintiff, " He preacheth nothing but lies in the pulpit." The defendant pleaded not guilty, and his counsel offered to give evidence of the truth of the words in mitigation of damages ; but Lord Macclesfield refused to admit it with great indignation. Where a particular offence not capital was charged,! evidence of the truth was allowed under the general issue. But in the case of Underwood v. Parkes, the de- fendant pleaded not guilty 4 and offered to prove the words to be true in mitigation of damages, which the Chief Justice refused to permit, saying, that at a meeting of all the Judges upon a case that * Willes, 20- + B. N. P. 7- % Str. 1200, arose in the Common Pleas, a large majority of them, had determined not to allow it lor the future, but that it should be pleaded, whereby the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words. That this was now a general rule among them all, which no Judge would think himself at liberty to depart from ; and that it extended to all sorts of words, and not barely to such as imported a charge of felony. (1) Where the justification arises from the occasion on which the words were published, or from the parti- cular character of the author, it seems unnecessary to plead the defence specially, since the nature and essence of the defence is the absence of that malice which is essential to support the actiort. Thus, where the words have been spoken, or the alleged libel published, by a member of either house of parliament in the course of his public duty,* by a Judge,f acting in his judicial capacity, by a coun- sellor, in the management of the cause when the\ are pertinent to the issue, and have been suggested * 1 Esp. R. 226. 1 W. & M. st- 2. c. 2. t 2 N. R. 341. (1) JUdermanv. French, 1 Pick. Rep. 1. Van jlnkin v. JVestfall, 14 Johns, Rep. 233. Barns v. Webb, 1 Tyl. Rep. 17. Else v. Ferris, Anth. N. P. Rep. 23. Shepardv. Merrill, 13 Johns. Rep. 475. See also Andrews v. Van Duzer, 11 Johns. Rep- 38. But though in an action of slander, for charging the plain- tiff with perjury in a judicial proceeding, the defendant, on the plea of not guilty, though not permitted to prove the falsity of the words sworn by the plaintiff", and thus fix upon him indirectly the charge of perjury, may prove what those words were, in mitigation of damages. Grant v. Hover, 6 Munf. Rep. 13. Lord Holt, however, held in one case, that where the words charged a particular crime, not capital, i- e- adultery with one J. S-, the defendant under the general issue might give the truth in evidence, in mitigation of damages ; though he could nol give in evidence that the plaintiff' had committed the crime with an'y other wo man. SmUhitrv- Harrison, ! T,d. Raym &30 by a client ;*(!) by a witness, in delivering his evi- dence :f by a master, in giving the character of a servant ;| or, in short, by any person under circum- stances which rebut the allegation of malice, §(2) the general plea is sufficient. And this principle seems to comprehend the cases where parliamenta- ry or judicial proceedings have been faithfully re- ported. An action was brought against the editor of the Times newspaper, |] for having published a libel on the plaintiff; the publication complained of imported to be an account of an application to the Court of King's Bench, for an information against the plaintiff and Mr. Bingham, both justices of the peace for Hampshire, for refusing to license an inn at Gosport. The defendant pleaded the general issue ; and at the trial, after the plaintiff had proved the publication of the paper by him, a person whom he employed to collect legal intelligence for the use of his paper, was called, in order to prove that the report was a true and faithful account of what had passed in the Court of King's Bench upon the mo- tion. It was objected on the other side, that the de- fence ought to have been put upon the record, and could not be given in evidence under the genera! issue. The objection, however, was overruled by Eyre, C. J., and the jury found a verdict for the de- fendant. Afterward a motion was made in arrest of Cru. J. 00. Popb. 69. f Brownl- 2- 1 T- R. 111). 3 B- fc P. 537. Seel 1 Will. Saiind. J 31. n. 1 1 B. & P. 525. 1. 1) Hodgson t. Scarlett, 1 Barn, k Aid. 232. Holt's Rep. 631. 2} See Pmrman v. Fees, Ba S C. 1 Dow- & Rvl. 252 judgment; one ground for which was, that the mat- ter proved by the defendant at the trial had been improperly received in evidence under the general issue, and ought to have been pleaded in bar to the action. After argument, the court doubted upon this point, the case stood over, and no judgment was ever given. In Astley v. Yonge,* and Styles v. Nokes,f the latter of which was subsequent to that of Curry v. Walter, the defendants justified specially. Before the case of Underwood v. Parks, | it ap- pears to have been the practice to allow evidence of the truth of the publication in mitigation of damages, generally, and in some instances in bar of the ac- tion, which affords an inference that the present de- fence, which would be much less likely to subject the plaintiff to any inconvenience by way of surprise, was also admissible under the general plea. To the great rule of pleading an action on the case, namely, that the defendant is at liberty, under the genera) plea, to give every matter of justification or excuse in evidence, the action for slander furnishes an ex- ception in the instance where the defendant relies on the truth of his assertion ; and such a defence contains an intrinsic necessity for making it an ex* ception ; but here no such reasons oppose them- selves to the general rule ; there is no room for sur- prise, since the plaintiff is informed by the publica- tion itself that it purports to be a report of a parlia- mentary or judicial proceeding. It seems difficult to assign a distinction in principle between this case ami those where the words are spoken in the course * B-irr. 807- ' 7 I'.. 9K . Sir- 12^0. of a judicial proceeding, by a judge, counsellor, or witness, in the latter, since the law excludes the idea of malice, the situation of the party is evidence un- der the general issue ; and the reason applies with equal force to the defence in question, where the law protects the defendant on grounds of public ex- pediency in the fair publication of judicial or par- liamentary proceedings, and will not permit his con- duct to be attributed to malice. It does not appear that a defendant, who repeated the slander of another, and who has given up his author, is under the necessity of pleading the mat- ter specially.* The defence in such case does not depend upon naming the author and his scandal in the plea, but is grounded entirely on the circumstance of the defendant's having, at the time of publication, supplied the plaintiff with the means of obtaining a remedy against a former publisher.(l) The situation of a person thus lending his aid to an injured party, repels, at least, in the first instance, if it does not wholly obstruct the inference of legal malice. In an action for words,f alleging loss of marriage with J. S., the defendant, under the general issue, offered to prove that J. S. was the plaintiffs aunt ; but it was held that the evidence was inadmissible, 7 T. II. 17. 5 East, 463. j The case of Sir C Gerard's bailiff, B. N. P. 7. (1) Under the general issue the defendant cannot give in evidence, in miti- gation of damages, that the specific facts in which the slander consists, and for which the action is brought, were communicated to him by a third person, not named at the time. Milts tt ux- v. Spencer et ux. Holt's Rep. 533. Kennedy v. Gregoru. Morris r- Dunne. 1 Binn- 85, 00, contm- that the right to marry could not then be tried, and that it was sufficient if they intended to marry ; and that the woman, for that cause, refused. It seems difficult to support this decision on legal principles, since the preventing that, which could not legally have taken place, can scarcely be considered as a damage for which the plaintiff is entitled to re- cover a compensation. But, 2dly, though the defendant may, with the exceptions mentioned, reserve his defence till the trial, he frequently has it in his election to answer the plaintiff specially upon the record. And the rule, as laid down in the fourth report, is, that the de- fendant* shall never be put to the general issue ivhen he confesses the ivords and justifies them, or confesses the ivords, and by special matter shows that they are not actionable. Since the plaintiffs ground of action consists of the defendant's having maliciously published con- cerning him that which has occasioned temporal prejudice, and according to the foregoing rule, the publication of the actionable words must be con- fessed, it follows that the defendant may plead any matter in bar which either rebuts the malice or shows that no damage, either presumptive or actual, has been sustained. Where the defendant has uttered the alleged slander in a judicial proceeding,! or in correctly re- porting parliamentary or judicial proceedings, he may justify by pleading the fact, since in these cases the presumption of law is conclusive in favour of the * 4 €0.14. Pop. 6fi. fCro.Eliz.2_30 3:34 defendant ;(1.) so where the defendant, at the time of publication,* gives up his author, unless it appear that he really knew the charge to be false, the pre- sumption is equally strong in his favour, and he may plead the fact for the purpose of rebutting the aver- ment of malice. So, where a barrister,! in the course of a cause, asserts that which is relevant to the issue, and has been suggested by his client. In other cases, though the inference of malice may be rebutted on the trial, as by showing that the party had an interest, or was giving the cha- racter of a servant, yet it does not appear that the matter can be exhibited upon the record, since the character in which the defendant alleges himself to have acted is not conclusive as to his intention, and amounts at most to a simple negation of malice, which is included in the general issue. The damage sustained is either the legal damage, presumed by law in the case of words intrinsically actionable, or an actual damage to be proved in evi- dence, and in either case the defendant may show, by his plea, that none has been sustained ; and this may be done in the first instance either by the in- troduction of new matter, or by a traverse of facts already stated, showing that the terms complained of were not used in an actionable sense. *7T.R. 17. 5 East, 463- 1 Cro. Jac. 90. (1) Quezrc Whether it be lawful to publish proceedings of a Court of Law containing matter defamatory of a person neither a party to the suit, nor present at the time of inquiry. Lewis v. Clement, 3 Barn. & Aid. 702. S. C 3 Brod. & Bing. 297. It is libellous to publish a correct report of proceedings had before a magistrate relative to a matter of which ho had not cognizance- M'Grezor v. Thwmlcs, 4 Dow. & Ryl. Rep. 695. 385 Thus it has been held, that in an action tor calling the plaintiff a murderer, it may be pleaded that the word was used in the course of a conversation about unlawful hunting, and that the words merely im- ported that the plaintiff was a murderer of hares.* So, where the plaintiff declared upon an imputation of an unlawful maintenance, it was held that the de- fendant might justify, by showing that the words were used in reference to a lawful maintenance.! So, in the case of Kinnersley v. Cooper,:}: the plaintiff declared that he had taken on oath, which was recorded in the court of the Guildhall, in a judicial proceeding; and that the defendant speak- ing of that oath, had said, that he had sworn falsely. The defendant, in his plea, denied that any such oath had been taken ; and the plaintiff demurred, on the ground that the taking the oath was but conveyance to the action, and not traversable ; and secondly, that the plea was bad, since it amounted to the gene- ral issue. But the justices were of opinion that the matter was traversable, since the action was ground- ed upon it. In the case of Lord Cromwell v. Denny, § the plaintiff declared in scandalum magnatum against the defendant, for having charged him with liking those who maintained sedition. The defendant pleaded that * he was vicar of Northlinham, which was a benefice with the cure of souls ; and that the plaintiff procured J. T. and J. G. to preach severally in the church of North- linham; who, in their sermons, inveighed against * 4 tap- 14. rri Jac 90. Cro- E- 1<> S - '>• Rep- H I Rep. 1 1- &36 the book of Common Prayer, which was establish- ed by the queen and the whole parliament in the first year of her reign, and affirmed it to be super- stitious and impious ; upon which the plaintiff and defendant, speaking in the said church of these sermons, because the vicar knew that they had no license, nor were authorized to preach, when they were ready to preach, before their sermons, forbade them, but they, by the encouragement of the plaintiff, proceeded, when the plaintiff said to the defendant, " Thou art a false varlet, I like thee not." To which the vicar said, "It is no marvel that you like not of me, for you like of these (in- nuendo the said J. T. and J. G.) that maintain se- dition against the queen's proceeding." It was moved by the plaintiffs counsel that the plea was bad, since, if the matter contained in it amounted to a justification, then, upon the dialogue between the parties, the defendant was not guilty, and that he ought to have pleaded so, and given the matter in evidence. But the court held, that the defendant had done well to show the special mat- ter by which the sense of the word sedition appears upon the coherence of all the words, not to mean any violent and public sedition, as it had been de- scribed to mean, and as ex vi termini the word itself imports. In these and similar cases, the effect of the jus- tification is to show, that there was no legal da- mage, the terms not having been used in an ac- tionable sense ; and it seems that it is equally open to show by special matter that no actiutl damage iJ37 has been sustained for which an action is maintain- able. Thus, in the case where the plaintiff alleged that by reason of the words he had lost his marriage with J. S., the defendant might plead that J. S. was aunt to the plaintiff: but the plea of non damnificatus generally would be bad.* To these pleas, some of which must, and others may be pleaded, has been added the plea of mi- nority, or at least, that the defendant was within the agef of seventeen ; but this is contradicted by the observation of Mr. Justice Lawrence in Woolnoth v. Meadows ;J and Lord Kenyon expressly stated, that if an infant§ utter slander, he is responsible for it in a court of justice. When the words, as stated upon the record, appear demurrable, it may be useful to apply the rule which Sir E. Coke termed "an excellent point of learning in actions for slander," namely, " observe the occasion and cause of speaking of them, and how it may be pleaded in the defendant's excuse. When the matter in fact will clearly serve for your client, although your opinion is, that the plaintiff has no cause of action, yet take heed you do not hazard the matter upon a demurrer, in which, upon the pleading and other- wise, more perhaps will arise than you thought of, but first take advantage of matters of fact, and leave matters of law, which always arise upon the matters of fact ad ultimum, and never at first de- mur in law, when after trial of the matters in fact, the matter in law will be saved to you." * Dyer, 26. f Com. Dig. Pleader, 2. L. 2- J 5 East, 47 1 § 3 T. R. 337. See also Bac. Ab. tit. Infancy- l| 4 Rep. J 4 48 ass Where the action is brought lor claiming title to an estate, by means of which the plaintiff is pre- vented from selling or letting it, and the declara- tion alleges that the defendant asserted a false title, knowing it to be false, if the defendant has in fact any colour of claim, he should plead the general issue, by which means the plaintiff* will be obliged to prove, on the trial, that he knew it to be false, and it is said that the fact of knowledge cannot be traversed in pleading.f Thirdly, How it must be pleaded. Observations upon the manner of pleading relate to the plea of justification generally, to particular pleas, or to the joinder of different pleas. 1. To the plea of justification generally. The plea of justification in general must confess the publication as laid in the declaration, otherwise it will be bad on demurrer ;t and this is an imme- diate consequence resulting from the great rule of pleading, which requires the r arty pleading either to confess the previous matter, and avoid it, or to traverse it.(l In Johns v. Gittens,§ the wards laid in the de- claration were, " Thou hast played the thief with me, and hast stolen my cloth and half a yard of velvet." The defendant pleaded that the plaintiff was his tailor, and that upon such a day he delivered * 2 East, 437. t 4 Co. 18. Cro. J. 398. t Jon. 307. Cro. Eliz. 153. § Cro. Eliz. 239. (1) Where the defendant pleads the general issue, and also in justification, that the words spoken were true, the plaintiff need not prove the speaking of the words upon the trial of the general issue. Jackson v. Stetsnn el vr. 1 5 Mas" Rep. 49. See JHdermnn v. Frinch, t Pick. Rep. 1 to him a yard and a half of velvet, to make him a pair of hose, and he made them too straight ; by reason whereof he spoke these words, " Thou hast stolen part of the velvet which I delivered you," denying that he spoke any words aliter vel alio modo. The plaintiff demurred, and it was held that the plea was bad, for not confessing the words laid in the declaration.* If the defendant justify specially, it will not be necessary for him in his plea to deny the innuendos and epithets contained in the declaration; for if the fact be justified,! the motive intended and manner are immaterial. Unless, from the particu- lar occasion of speaking the words, the day, or the place, become material, the plea should adopt the day and the place stated in the declaration with- out a traverse ; but when they become material, and differ from those stated in the declaration, the plea should traverse the speaking of the words on the day or at the place laid in the declara- tion. Thus, if the plaintiff declare of words spoken at B., in the county of Salop, and the defendant mean to justify the publishing them in a judicial proceeding at Westminster, he should traverse; the publishing them at B., in Salop, at any time. The special plea of justification, grounded upon the truth of the publication, may be considered ; first, with reference to the matter contained in the plea ; and secondly, with regard to the charge com- plained of in the declaration. * See also Cro. Eliz. 153, Bellingham v. Mynors. t Burr. 807. X See the case of Buckley v. Wood, 4 Rep. 14. 1 fialk. 222, 1 Will. Saund. 82. n. 3- 34U The same degree of certainty and precision are required in this plea as are requisite in an indictment or information. In Wyld v. Cookman,* the words were, " Thou wast forsworn in such a leet, on such a day." The defendant pleaded that the plaintiff the same day was sworn with others before the steward, to pre- sent, &c, and that they presented such a ditch not scoured ad nocumentum, &c. which was false, and so justifies, but did not say that they knew it to be false of their own proper knowledge. It was moved on demurrer, that they might have presented it upon evidence. Gawdy and Fen- ner, Justices, held, that it was properly and com- monly to be intended that the presentment was false of their own knowledge, and so perjury ; and that if they presented it upon evidence, the plain- tiff ought to show it in his replication. But Pop- ham, J. said, that a man may not justify by intend- ment, but that it ought to have been precisely alleged. But there was another defect in the plea which was held by all the justices to be incurable, namely, the want of an allegation that the ditch was within the leet; for if not, then the presentment thereof was out of their charge, and there was no perjury. Where the original charge is in itself specific, the defendant need not further particularize it in his plea. In an action on the casef for calling the plaintiff thief, and saying that he stole two sheep of J. S. the defendant pleaded that the plaintiff stole the same sheep, by reason of which he called * Cro. Eli/. 492- f Rr. action snr oas- 27 H- 8, 22. pi. 3- 341 him thief, as well he might ; and the plea was held good. Secondly, as to the nature of plea, with refer- ence to the words laid in the declaration. Though the charge imputed to the plaintiff be general, as laid in the declaration, the defendant must, in his plea, charge him with specific* instances of offences of the same nature with the general charge. Thus a defendant is not at liberty to charge a person with swindling, without showing specific instances of it; for whenever one charges another with fraud, he must know the particular instances upon which his accusation is founded, and therefore ought to disclose them.f(i) In Morris v. Langdale,| which was an action for calling the plaintiff (who was a stock-jobber) a lame duck, the defendant justified, pleading gene- rally that the plaintiff had not fulfilled his contracts. Upon demurrer, Lord Eldon, C. J. observed, that it had been strongly argued in support of the de- murrer to the plea, that in consequence of its gene- rality the plaintiff must proceed to trial at the hazard of being able to produce evidence applicable to any contract which he ever made. But the declaration itself was defective, and the plaintiff had leave to amend. In Newman v. Bailey, § the plaintiff, a justice of the peace, brought an action against the de~ * 1 Roll. Ab.87. t Styles, 118. Strachey's case. t 2 B. & P. 284. § Hil. 16 G. 3. B. R. (1) T 'Anson v. Stuart, 1 Term Rep. 74S. Holmes v. Catcsby, 1 Taunt. 542i Van JVe.tj v. Hamilton, 19. Toons- Rep. 368- ;342 fendant, for having charged him with " pocket- ing all the fines and penalties forfeited by delin- quents whom he had convicted, without distri- buting them to the poor, or in any manner ac- counting for a sum of 50/. then in hand." The defendant pleaded that the plaintiff was a justice of the peace, and that during the time he acted as such, he convicted divers and sundry persons respectively, in divers and sundry fines and sums of money, for and on pretence of their having respectively committed divers respective offences against the form of divers statutes of this realm ; which said respective fines and sums of money, amounting in the whole to 50/., he received of the respective delinquents so by him convicted, and had not paid the same to the several persons to whom the same ought to have been paid by virtue of the respective statutes, but had kept and detained the. same, &c, To this there was a special demurrer, and the court were clearly of opinion that the plea was bad, because it did not specify any one fine or penalty which had been unjustly levied. The matter alleged in the justification to be true, must in every respect correspond with the imputa- tion complained of in the declaration. Thus, where the defendant, in the first instance, charges the plaintiff with having feloniously stolen one kind of chattel, he cannot afterwards justify by pleading that the plaintiff had really been guilty of stealing a different one.* And so with regard to every circum- stance at all material, the facts set up by way of jus- tification in the plea must be strictly conformable ; Hilsrlen v. Mercer, Cro. J. 67fi- 343 with the imputation charged in the declaration. The words for which the action was brought charged the plaintiff with having been a bankrupt on the first day of April, in the 17th year of James the First. The defendant pleaded that the plaintiff was a bankrupt on the first day of April, in the 15th year of the same reign, and that therefore he pub- lished the words; and the plea was held bad,* because it was not averred that the plaintiff conti- nued a bankrupt to the time of publishing the words, for he might afterward recover his credit in trade. In Fyshf v. Thorowgood, the plaintiff declared that a commission issued out of the Exchequer, di- rected to the plaintiff and one J. S. by force whereof they took and returned the examinations of several witnesses, and that thereupon the defendant said, that the plaintiff had returned as depositions the ex- amination of divers that were never sworn." The defendant pleaded in bar that he did return the ex- amination of one J. S. who was never sworn. Upon demurrer, it was adjudged that this was no good jus- tification in bar, because it is of one witness only, whereas the charge was in the plural number. Where the offence consists in the defendant's having published the words in the course of a ju- dicial proceeding, the defendant must show in his plea that he has been guilty of no publication which the nature of the proceedings did not call for, or at least care must be taken that no publication stated in the declaration is left unprotected by the matter of justification pleaded. The defendant^ had ex- * Upsheer v. Betta, Cro- J. 578. : Cro. F.ii*. 623- t 4 Co. 15 344 hibited his bill in the Star Chamber, alleging that the plaintiff was a procurer of murderers and pira- cies ; the declaration alleged the exhibiting the bill, and that the said defendant, at B., in the county of Salop, said, that the said bill, and the matters con- tained therein, were true. The defendant, in his plea, confessed the exhibiting of the bill in the Star Chamber, and that he, in the said court at Westmin- ster, spoke the said words absque hoc, that he spoke the words in the county of Salop before or after the day mentioned in the declaration, by which he ex- cluded the day itself, for which reason the plea was held to be insufficient. But judgment for the plain- tiff in this case was afterward reversed upon writ of error in the Exchequer Chamber, because the de- fendant had asserted in the county of Salop nothing more than that the matters contained in the bill were true without specifying the contents of the bill. Where the alleged libel was contained in a peti- tion to the members* of a committee of the House of Commons, the plaintiff, in his declaration, alleged generally.that the defendant had published the libel to " divers subjects," the defendant justified the pub- lication to divers persons being members of the com- mittee, and averred it to be the same publishing of which the plaintiff had complained, and the plea was held sufficient. But it seems, that if the plaintiff, in his declaration, allege a publication to divers people by name, if the defendant justify the publication to some of them by name, he must traverse a publica- tion to the rest. * Lake v. Kin&, 1 Saund. 120 :34;> And the reason of the distinction is, that in the former case, where a general publication to divers subjects is alleged, the plea that he published to divers subjects being members of the committee, is consistent with the declaration, and therefore, with the averment that the publication is the same. But if the plaintiff declare of a publication to A. B. C. and D., the defendant, in justifying a publica- tion to A. and B., cannot aver it to be the same publi- cation with that complained of, but should traverse the publication to C. and D.* Where part of a publication consists of a report of judicial proceedings and the rest of comment, since the separation is necessary for the purpose of defence, the defendant oughtf to take upon himself the burthen of making it, in order that the court may see what parts he means to justify. And if he does not, the court will not allow him to amend his plea. A plea of justification, however, may in such case b.e good, with a general reference to certain parts of the libel set forth in the declaration, if the court can see with certainty what parts are referred to, as if the reference be to so much of the libel as im- putes to the plaintiff such a crime as perjury, that would be sufficient without repeating all those parts again, which would lead to prolixity of pleading and ought to be avoided 4 By st. 21 J. 1. c. 16. s. 3. it is enacted, that all ac- tions upon the case (other than for slander) shall be - See 1 Will. Saund. 133. n. 4, and 22. n- 2. t 1 Fast. 49:>,- J Per T.n Blanc, J- 7 E- 507, 44 commenced and sued within six years next after the cause of such action or suits, and not after. And the said action upon the case for words within two years next after the words spoken, and not after. It has been held under this statute, that the latter limi- tation applies to words in themselves actionable, only, and not to cases where* the special damage is the ground of action, nor to written slander ; ami it has been decided that cases of scandalum magnatum are not within the latter, though within the former limitation.! It seems now fully settled, that if the defendant mean to avail himself of this statute, X he must in all cases plead it. Where the words are actionable, the time be- gins to reckon from the speaking of the words ; but where special damage is essential, the damage it- self is the cause of action, and not the speaking of the words ; in such case, therefore, it seems that it would not be sufficient for the defendant to aver in his plea that he did not speak the words within six years ; because, though that was the fact, the cause of action, namely, the special damage, might have arisen within the six years, he ought therefore to plead that the cause of action did not accrue within the limited time. Where, however, the words are in themselves actionable, though special damage be laid, since the words themselves give rise to the action, and the damage is mere matter in aggrava- tion, it would be sufficient to plead that the defend- - 6 Bar. Ali. 241. Cro. Car. 193. Salk. 20G. 1 Sid- 95- t Cro. Car. 53 >. 3ee ■' Will. Saunrl. 63 a. wrrerc this point is fully discussed 347 ant did not speak the words within the time limited by the statute. The defendant may, under the statute,* by leave of the court, join a general plea of not guilty to the whole declaration, with a plea of special justifi- cation to the whole or part ;f(l) and he may plead not guilty as to part of the words, and justify the speaking of the residue. :{: * 4 Ann. c. 16. t Cro - J - 267 - I See Ticld > G03 » 4th e<3 - ( 1 ) See Lord Churchill v. Html, 2 Barn. & Aid. 685- Jackson v. Stetson et ux- 15 Johns. Rep. 48. CHAPTER XXIV. Of the Replication. It seldom happens that any thing can be replied to the defendant's special plea, except the general replication of de injuria propria, &c. which puts the whole of the defendant's plea in issue.* In some instances, however, a special replication becomes necessary. As, where the original slan- der imputes to the plaintiff the commission of a specific crime, and the defendant pleads in justifi- cation that the plaintiff was really guilty, the plain- tiff may reply, that after his commission of the crime, and before the speaking of the words, he was pardoned. f And it has been said, that in such case it makes no difference whether the pardon be a special one, of which the defendant was ignorant, or a general one, since a man who takes upon himself to spread slan- der, does it at his peril ; but that if a man who had committed felony, secretly procure a pardon, and another, not knowing of the pardon, cause him to be apprehended for felony, he would be justified, because what he did was for the advancement of justice. * 1 Saund. 244. n- ■ " f'u.ldingfon v \Vi>kir<=. WoV - 349 .But where the pardon is general, containing clauses of exception, it seems the plaintiff should aver that his case does not fall within any of the exceptions.* And even after a pardon, if the defendant merely say that the plaintiff ivas a thief, the pardonf will not be available. Where the plaintiff has stated the publication generally to have been made to divers persons, not naming them, and the defendant justifies the pub- lication to particular persons as to the members of a committee of the House of Commons, if the plaintiff mean to insist upon a publication to any others, he should state such publication by way of new assignment.^ * Hob. 67. t Hob. 82. f S.ee 1 Saund. 133. and Chitty on Pleading, 603. CHAPTER XXV. Of the Evidence. The course and extent of the evidence to be adduced by the parties at the trial will be consi- dered in the same order with the pleadings by which the evidence is regulated. First, as to the fact of publication. — Where the action is for words spoken, evidence of the speak- ing before any third person will be sufficient, though the declaration allege them to have been spoken before A. B. and others.* And where the words are in themselves actionable, it is sufficient to prove some of them which are actionable, provided they be proved precisely as laid.f If the words be spoken, or libel published, in a foreign language, or in characters not understood by those who hear or see them, there is no publi- cation, since there is no communication prejudi- cial to the plaintiff; and if the words be spoken, or libel addressed, to the plaintiff only, without: further publication, no action is maintainable, since no temporal damage can have accrued from the de- fendant's act,t but such a publication would be suffi- * B. N. P. 5- t 2 East, 434- 8 T. K. 1?0. supra. 309. J 1 Will. Saun. 132- n- 2- 2 Esp. B. 226. 851 cient to sustain an indictment on the ground of its tendency to produce a breach of the peace. Where a witness, who heard scandalous words spoken, has committed them immediately to writing, he may afterward read the paper in evidence, if he swear that the words contained in it are the very words ;* and if the words have not been written im- mediately, the witness may refer to his minutes to refresh his memory, f In case of libel, before any evidence can be given of its contents, prima facie evidence must be given of a publication by the defendant. Evidence of a publication is either of a publication generally, or of a publication in some particular county or place, and it is either direct or indirect. The publication may be directly proved, not only by evidence that the defendant, with his own hand, | distributed the libel, or exposed its con- tents, (1 or painted an ignominious sign over the door of another, or took part in a procession carry- ing a representation of the plaintiff in effigy for the purpose of exposing him to contempt and ridicule, but also by maliciously reading or singing the con- tents of the libel in the presence of others ;§ all of * Per Holt, C. J. Sand well v. Sand well. Holt, R. 295. f Ibid. t R. v. Almon, Burr. 2689. Seven Bishops' case. St. Tr. § 5 Rep. 125- Moor, 813. (1) A person who has a copy of a libellous caricature, is not liable to an action lor maliciously publishing it, if he shows it to another who requests him so to do. Smith v. Wood, 3 Campb. 323. But the Governor of a distant province, who delivers a pamphlet to his At. General, not for any public purpose, but in order that he might peruse it, will be responsible in an action, if the pamphlet be a libel, such delivery being; a sufficient publication. Wyatt v- Gore, TI olt's N. P. Hep. 299- which tacts are direct proof of tiie averment that the defendant published the alleged libel.* But it frequently happens that no direct proof can be given of the defendant's agency in the publication of the libel, and resort must be had to indirect evi- dence, in order to connect him with the libel, and fix him with its publication. The most usual and important piece of evidence for this purpose consists in proving that the libel published is in the handwriting of the defendant ; when the plain- tiff has proved this, he has made out such a prima facie case as entitles him to have the contents read in evidence.f(l) It was observed by a great authority, £ that " When a libel is produced written in a man's own hand, he is taken in the mainer, and that throws the proof upon him ; and if he cannot produce the com- poser, the verdict will be against him." The grounds of this presumption are plain and reasonable. A man is at liberty to think or to write what suits him ; at all events, he incurs no civil responsibility unless he divulge his thoughts to the * 5 Rep. 125. Rep. 59. b- 1 Burr. 2689. I Per Holt, C. J. R. v. Becre, Ld. Ray .417. Mullett v. Hulton, 4 Esp. 248. (1) Where the defendant sent a letter containing a libel, folded up and un- sealed to the plaintiff, by the bands of a third person, who delivered it, without reading it, or allowing any other person to read it, it was held that this did not amount to such a publication as would support an action. Clutterbuck v. Chaf- fers, 1 Starkic's Rep. 471. Lyle v. Clason, 1 Gaines's Rep. 581. But where it was proved, that a Clerk of the plaintiff's was in the habit of opening, when plaintiff was absent, all letters not marked " private," and this habit was known to defendant, it was held, that such proof was evidence of the defendant's in- tention that a letter containing a libel, and sent by him to the plaintiff, should be read by a third person, which would be a publication. Drlacroiv v. Thevenot, 2 Stnvkif?! Rep. 63- ■ temporal prejudice of another ; but it seems equally clear, as a proposition either of law or expediency, that if he write what is faise, and the calumny be- come public to the detriment of its object, he is just as responsible for the effects of his negligence as if he had been the voluntary publisher of the scandal ; if a man write libels for his own perusal, he must be content to enjoy the satisfaction diminished by the risk and peril of an accidental publication and its consequences. The writing a libel* does not, however, in any case, amount to a publication, but is mere evidence from which it may be inferred ; what amounts to a publication is a question of fact, falling within the province of the jury to decide ;f and though proof that the libel is in the handwriting of the party, goes far in fixing him with the publication, he is still at liberty to rebut the strong presumption thus raised against him, by reconciling the fact with his own innocence.(l) The effect of such proof in evidence having been thus briefly considered, it may next be inquired with what degree of certainty and precision the handwriting of the party must be established before the writing can be read ; a matter of evidence most important when considered in its relation to civil suits, wherein the disposition of the fortunes of indi- * Lamb's case, 9 Rep. 59. 15 Vin. Ab. 91. Mod. 813. t Baldwin v. Elpbinstone, 2 W. Black- 1037. (1) Sec what Avas held to be a publication in Rex v. Burdelt, 3 Bam. & \ *1 ?. 4 B^rn. & Air?. 95. Bttt tha* was the case of an informaHan 45 35I victuals so frequently depends upon written testimony, but demanding still more serious attention when con- sidered as the medium of proof in cases of libel, forgery, and treason, with the decision of which of- fences the security, liberty, and life, of every sub- ject of the realm, are intimately connected. Upon the memorable trial of the Seven Bishops for an alleged libel addressed to the King,* Sir Thomas Exton stated, that he had never seen the Archbishop of Canterbury write five times in his life, but that he believed one of the signatures on the paper produced to have been written by the Archbishop. Mr. Brookes stated, that he believed another signature to have been written by the Bishop of Ely; but upon cross-examination, it turned out that his belief was founded upon the resemblance which the writing bore to that contained in a letter sent to the Bishop of Oxford, which letter the witness con- cluded to have been written by the bishop of Ely from having waited upon him with the Bishop of Ox- ford's answer, and communicated with him on the subject of the original letter. Upon this evidence, Mr. Justice Powell observed,. M That's a strange inference, Mr. Solicitor, to prove a man's hand." — Mr. Attorney General — "We have more evidence, but let this go as far as it can." Mr. Sergeant Pemberton — " Certainly, my Lord, you will never suffer such a witness as this." Lord C. J.Wright — " Brother Pemberton, I suppose they can prove it otherwise, or else this is not evidence." After some other evidence had been given, Mr St. T TK. 4 *. 2. 168S. 355 Justice Powell observed, " Mr. Solicitor, I think you have not sufficiently proved this paper to be subscribed by my Lords the Bishops." — Mr. Sol. General, "Not to read it, Sir?"— Mr. J. Powell "No, not to read it ; it is too slender a proof for such a case. I grant you, in civil actions a slender proof is sufficient to make out a man's hand, by a letter to a tradesman or a correspondent, or the like ; but in criminal cases, (such as this is,) if such a proof be allowed, where is the safety of your life, or any man's life, here ?" — Mr. Solicitor General, " We tell you a case where it was allowed, and that is Mr. Sidney's case — a case of treason, and printed by authority. We tell you nothing but what was done the other day." L. C. J. Wright—" I tell you what I say to it : I think truly there is proof enough to have it read, and I am not ashamed nor afraid to say it, for I know I speak with the law, say what you will of criminal cases and the danger of people's lives ; there were more danger to the government, if such proof were not allowed to be good." — M. J. Powell — "I think there is no danger to the government at all, in re- quiring good proof against offenders." — L. C. J.— " Here's my Lord Archbishop, and the Bishop of St. Asaph, and my Lord of Ely ; their hands are proved, it is proved to be my Lord Archbishop's writing by Mr. Brookes ; and he proves my Lord of Ely's hand by comparison, and so my Lord of Asaph's. Now, Brother Pemberton, there's an an- swer to your objection. It being proved that it is all my Lord Archbishop's handwriting ; then they fome and say, « We'll prove the hands of the others mi in comparison ;' and for that they bring you wit nesses, that say, they have received letters from, and seen their handwriting several times ; and com- paring what they have seen with this very paper, says the witness, ' I do believe it to be his hand.' Can there be a greater evidence, or a fuller." — Mr. Sergeant Pemberton — " Admit it to be full evidence against my Lord Archbishop ; what's that to the rest? There's no evidence against them." — Mr. Justice Allybone — "Brother Pemberton, as to the objection you make of comparing hands, it is an ob- jection indeed, I do agree ; but then consider the inconvenience which you and Mr. Pollexfen do so much insist upon. If a man should be accused by a comparison of hands, where is he ? he is in a most lamentable case, for his hand may be so counterfeit- ed, that he himself may not be able to distinguish it. — But then you do not consider where you are, on the other side ; that may be an objection in mat- ters of fact, that will have very little weight, if com- pared and set altogether. For, on the other side, where shall the government be, if I will make li- bels, and traduce the government with prudence and discretion, and all the secrecy imaginable 1 I'll write my libel by myself, prove it as you can. That's a fatal blot to the government, and therefore the .eases are not the same, nor is your doctrine to pass for current here, because every case depends upon its own facts. If I take upon me to swear I kuow your hand, the inducements are to myself, how I came to know it, so as to swear it. Knowledge depends upon circumstances ; I swear that I know you, but vet I maybe under a mistake, for I can :io-7 have my knowledge of you no other way but from the visibility of you. And another man may be so much like you, that there is a possibility of my be- ing mistaken ; but certainly that is evidence, good evidence. Now here are several gentlemen that swear as to my Lord Archbishop's handwriting. I do agree as to some of the others, that the evidence is not so strong for what that man said, that he did believe it was rather such a Lord's hand, than that which went before, or that which came after, it is of no weight at ail, and so some of the others, but it is positively proved against my Lord Archbishop. And one or two more, so that that's enough to induce the reading of this writing." Mr. Justice Holloway — " Good, my Lord, let me give my opinion." — L. C. J. — "With all my heart, brother."— Mr. J. Holloway—" My Lord, I think, as this case is, there ought to be a more strong proof; for certainly the proof ought to be stronger and more certain in criminal matters than in civil matters. In civil matters we do go upon slight proof, such as the comparison of hands for proving a deed, or a witness's name, and a very small proof will induce us to read it ; but in criminal matters we ought to be more strict, and require positive and substantial proof, that is fitting for us to have in such a case, and without better proof I think it ought not to be read." L. C. Justice — "You must go on to some other proof, Mr. Solicitor, for the court is divided in their opinions about this proof." The rational observation of Mr. J. Powell, that there is no danger to government in requiring good Sob proof against offenders, affords a pleasing relief to the disgraceful and pernicious doctrine expounded by the Chief Justice and his coadjutor Allybone, which in plain terms was an avowal that in a state prosecution the life and liberty of the subject are of too little importance to be entitled to considera- tion, and that defendants, therefore, in such cases, ought to be convicted upon evidence, on which, in any other case, they would be acquitted. When a similar distinction was attempted to be made in a subsequent case,* it was observed by Lord Camden, C. J. " As to the distinction which has been aimed at between state offences and others, the Common Law does not understand that kind of reasoning." The defendant! having committed a riot upon the person of Sir F. W. in his own house, an informa- tion was filed against him, and he produced a wit- ness to swear to the contents of a letter from the prosecutor, who deposed it was in the same hand with another letter which had been admitted to be read in evidence. But Holt, C. J. said, " In the case of a deed lost or burnt, we will admit a copy or counterpart, or the contents to be given in evi- dence ; but we never permit it, unless it be proved that there was such a deed executed. Now here the witness cannot prove this letter written, for he never had seen the prosecutor write," and therefore it was disallowed. In Crosby's case,t which was a trial before Holt, C. J. for high treason, several treasonable papers * Case of seizure of papers, 11 St- Tr. 317 * II. v. Sir T. Culpepper, Holt, It. 293. 12 Mod. 72. Holt, 753. Salk. 680- 6bV were produced, which the witnesses swore thev believed to be in the handwriting of the prisoner, And on this a question arose, whether, comparison of hands was evidence. And the court held, that though it was not sufficient for the original founda- tion of an attainder, it might be well used as a cir- cumstantial and confirming evidence,* if the fact be otherwise fully proved, as in Lord Preston's case, where it was proved that he attempted to go with certain papers into France, and where they were found upon his person ; but that in the principal case, since they were found elsewhere, to convict on a similitude of hands, would be to run into the error of Colonel Sidney's case. Upon this trial, the pri- soner produced a copy of the act of parliament for the reversal of Sidney's attainder, in which it is de- clared that the comparison of handsf is not legal evidence. A paper was produced, said to be the hand- writing of a deceased rector.^ In order to prove this fact, the plaintiffs counsel offered to produce many of the returns of the spiritual courts, of the births and burials made in the time of the rector, and signed with his name. Mr. J. Yates said, " I have no doubt to reject this evidence as not ad- missible ; I do not know of any case where com- parison of hands has been allowed to be evidence at all." In Revett v. Braham,§ to prove that certain * See the cases of Layer, Ld. Preston, Algernon Sidney, St. Tr. Buchanan, Dr. Hensey, 1 Burr. 642, and the trial of O'Connor and others at Maidstone. t Lord Ray, 40. i Brookbard v. Woodiey, Pcake's C N. P- 90. See also Mnenhcrson 1 Tboytts, ibid. § 4T. R. 49?. 860 written instructions to be a forgery, two clerks of the Post-Office were called, who swore, that they were accustomed to inspect franks and de- tect forgeries, and they were allowed to swear to their belief that the writing in question was written, not in a natural, but in imitation. They were then asked, if they could judge whe- ther the instructions were written by the person who wrote a memorandum, which was produced. This question was objected to, as being a compari- son of hands, but allowed by the court. And Lord Kenyon, C. J. mentioned a case where a decipher- er had given evidence of the meaning of letters, without explaining the grounds of his art, and where the prisoner was convicted and executed. And Buller, J. said, it was like the case of "Wells harbour," where persons of skill were allowed to give evidence of opinion. In Cary v. Pitt,* the plaintiff, to prove the de- fendant's acceptance of a bill of exchange, called an inspector of forgeries at the Post-Office to prove that he had frequently seen franks pass the office in the defendant's name, and that, from the cha- racter in which those franks were usually written, he believed this acceptance to be the defendant's handwriting. Lord Kenyon said, " This is not admissible evi- dence. The furthest extent to which this rule has been carried, is to admit a person who has been in the habit of holding an epistolary correspond- ence with the party, to prove the handwriting from the knowledge he acquired in the course of * 37 G. 3. Appej). to Peafce's Law of Er, 36 1 the correspondence. A case reported in Fitzgib bon was the first in which such evidence was ad- mitted. That evidence was admitted on sound principles ; for if, when letters are sent directed to a particular person on particular business, an an- swer is received in due course, it is a fair pre- sumption that the answer was written by the per- son whose handwriting it purports to be ; but the franks sent to the office may have been the defend- ant's handwriting, or they may have been forge- ries as well as the present, for no communication was had on the subject with the defendant. The witness was then asked, whether, having been used to detect forgeries, he could say, whether this was a genuine handwriting or otherwise. Lord Kenyon said, he could not receive this; and observed, that though such evidence was received in Revett v. Braham, he had in his charge to the jury laid no stress upon it. In Da Costa v. Pym,* the question was, whe- ther an account purporting to be signed by the plaintiff, was a forgery. A witness being asked the usual question as to his belief, said, that the writing produced was like the plaintffis, but that he did not think it was the plaintiff's writing, be- cause he knew him to be a man too well acquainted with the world to sign such an account. Erskiue contended that this answer was proper, and that it was like the case which arose on the handwriting of Mr. Mickle, the translator of the Lusiad. Mr. Caldecot, in that case, was permitted to say, he * \pp. to Peakc'b Law of F.v. "7 <•'. "•. 46 (bought it was not the handwriting of Mr. Mio kle, because he was a very correct man in mak- ing capital and small letters where such were re- quired, but in the writing produced the correct- ness was not observed. Lord Kenyon said, " That is a very different case from the present. Mr. Cal- decot's observations arose from the character of the handwriting itself; but this witness takes into his consideration facts entirely unconnected with and extrinsic from the handwriting. The jury may take all circumstances into their consideration, but the witness should form his opinion from the cha- racter of the handwriting only." Several notes, signed by the plaintiff, were then produced to the jury, but Lord Kenyon said, that the best rule was that laid down by Mr. J. Yates ; for if the jury were to look at the papers, their judgment would depend upon their knowledge of writing, which some mischt know better than others. It was best to rely on the evidence of those well acquainted with the plaintiffs handwriting. The jury neverthe- less were permitted to compare the different signa- tures. In Stranger v. Searle,* the question was, whether a written acceptance of a bill of exchange was in the defendant's handwriting. Erskine, for the de- fendant, offered to produce other bills of exchange accepted by the defendant, and which were proved to be his handwriting, for the purpose of comparing them with the bill in question. This was objected to by the plaintiff's counsel, as it did not appear which was the real handwriting, those bills, or the * 1 Esp. N. P. C 14. 3&6 others upon which the action was brought, both being proved by witnesses, and that it was besides judg- ing from comparison of hands. Lord Kenyon ruled, that the witness should not be allowed to decide on such comparison of hands. It was then said by the defendant's counsel, that the witness had seen him write his name several times. But being asked as to the circumstances, he said, that previous to the trial the defendant had so written his name for the purpose of showing to the witness his true manner of writing it, that the wit- ness might be able to distinguish it from the pre- tended acceptance to the bill in question. His Lord- ship told him, that he should not permit that to in- fluence his judgment, since the defendant might write differently from the common mode of writing- Ins name, through design. The witness being un- able, from mere inspection, to say whether the ac- ceptance was a forgery or not, his testimony was rejected. In the King v. Cator,* in order to prove the libel, on which the prosecution was founded, to have been written by the defendant, the inspector of franks at the Post-Office was called. He stated, that from his practice, he was enabled to distinguish between natural and feigned hands ; and that, by comparing two writings, he thought he could pronounce whe- ther they were written by the same or different per- sons. On seeing the libel, he swore to his belief that it was written in a disguised hand ; but being desired to compare the libel in question with another M'riting, and to say whether they had been written • 4 Esp. R. 117 6i)4. by the same or different persons, the question was objected to, and after it had been very fully argued. Hotham, Baron, in delivering his opinion, ob- served, " I perfectly agree with the counsel for the prosecution, that there is no difference, in point of evidence, whether the case be a criminal or civil case, the same rules must apply to both : at the same time it has been stated, that one is more dis- posed to resist, and more cautious in receiving evidence, in a case where the party has much at stake, as in favour of life. — What is the evidence here ? Two persons have been called, who, having looked at these libels, have spoken, without any doubt, of their being the handwriting of the party accused. As far as that goes there is no objec- tion to it. Then comes the inspector of franks from the Post-Office ; he has these libels put into his hands. Now, I do not know how that gentle- man could speak to the handwriting, unless he could say he had seen the party write, or unless he had been in the habit of correspondence with him, excepting that he is called to speak as a man of science to an abstract question. In that light he lias been called, and his evidence has been ad- mitted. He is shown these papers, and he is ask- ed to look at them ; and, without inquiring who wrote them, or for what purpose, he is asked, 'From your knowledge of handwriting in gene- ral, do you believe that writing to be a natural or fictitious hand?' His science, his knowledge, his habit, all entitle him to say, I am confident it is a feigned, hand. To that there is no objection, and :36a so tar as that goes, I see no reason for rejecting that evidence. " Then comes the next and important point. It is said to him, * Now look at this paper, and tell me whether the same hand wrote both?' Why, one cannot help seeing evidently, what must be the consequence ; I cannot conceive there is any thing in the idea of a comparison of hands, if this is not to be considered as comparison of hands. The witness says, ' I never saw him write in my life.' Why, then, I collect all my knowledge of his being the author of this, by comparing the same hand with that which other witnesses have proved to be a natural hand : by looking at the two he draws his conclusion. It seems to me, there- fore, directly and completely a comparison of hands. This question seems to have been solemnly de- cided ; but when I see the same noble and learned Judge repenting of what he had suffered in the former case, and expressly saying he could not re- ceive such evidence, and observing, that though such evidence was received in Revett and Braham, he had, in his summing up to the jury, laid no stress upon it. This being the case, I cannot con- sider it so adjudged, but that I may exercise my own judgment in rejecting it." From these cases it may be collected, that pre- vious to the case of the Seven Bishops, it was the common practice in civil cases to admit evidence by comparison of hands ; that is, a witness comparing the writing A. with the writing B., was allowed to swear to his belief that they were both written by the same person. That such evidence is not admissible in either a criminal or civil proceeding. (1) That there is now no difference* between civil and criminal proceedings, as to the admissibility of written evidence. That no person is competent to prove handwri- ting, who has not either seen the party write, or has been conversant with his handwriting from habits of business ; in which case, he must give his evi- dence from the general knowledge of the character which he has acquired. And that even where the person whose handwriting is to be proved, is dead, other writings ascertained to have been his are not allowed to be compared by the jury with the writing in question.! That a person who is conversant with the detec- tion of forgeries is competent to prove that any given writing is in a disguised hand, or is not the genuine handwriting of the person to whom it is attributed. Where a person has seen another write, though but once, the belief founded upon that knowledge is evidence to go to a jury.:}: A defendant may be guilty of publishing a libel not only by distributing copies of it with his * 2T.R. 201. The Attorney General v. Le Merchant, B. N. P. 236. t Where the antiquity of the writing makss it impossible for any living wit- ness to swear he ever saw the party write, evidence of similitude has been re- ceived. B. N. P. 136. J Garrels v. Alexander, 4 Esp. 37. (1) See, however, M'Corkle v. Binns, 5 Binn. 340. And see the Amtrkan 'ases collected iiv Mr. Xcrrfs in the note (p) to Pealed Evid. p, !.">7, 367 own hand, but by employing an agent for the pur- pose.* The declaration generally avers, that the defend- ant published and caused to be published ; but the latter words seem perfectly unnecessary either in a civil or criminal proceeding ; since, in civil proceed- ings, the principal is to all purposes identified with the agent emploj^ed by him to do any specific act, and in treason and misdemeanors! all accessaries are considered as principals. The most frequent case in which evidence to show a publishing by an agent, is adduced, relates to ac- tions or prosecutions against booksellers, where a libel has been sold by an apprentice or servant, who transacts his master's business. The effect of such evidence appears to have long been perfectly settled by a number of decisions, which show that a sale by an agent, in the regular course of business, amounts to prima facie proof of a sale and publica- tion by the owner ; and that though it be not con- clusive as to a guilty knowledge of the contents, yet that it imposes upon him the necessity of rebut- ting the inference by evidence to the contrary. | It has been said, " that it is not material whether the person who disperses libels is acquainted with their contents or otherwise, for that nothing would be more easy than to publish the most virulent pa- pers with the greatest security, if the concealing the purport of them from an illiterate publisher, would make him safe in dispersing them. And that, on this foundation, it has been constantly ruled of late, * 7 East, 65. Bac. Ab. tit. Libel, 458. t 1 Hal, P. G. 613. , Tlac. Ab. tit. Libel, 458. 368 that the buying of a book or paper containing libel- lous matter, at a bookseller's shop, is sufficient evi- dence 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, must prove it.* It is to be recollected, that the only question at present considered is, how the libel and its publica- tion must be connected with the defendant by evi- dence, to admit the reading its contents ; and it ap- pears perfectly established, that the sale by his ser- vant, in the ordinary course of his employment, is a sufficient preparation for such admission, though undoubtedly it is a mere presumption which the master is competent to cut down, if he can, by op- posite proof. An information! was moved for against the de- fendant for selling and publishing a libel against one Chambers, and it was insisted upon for the defend- ant, that her servant took the libel into the shop without her knowledge. But by the court, this is no excuse ; for a master shall answer for his servant, and the law presumes him to be acquainted with what his servant does. And L. C. J. Raymond said, that it had been ruled, that where a master lives out of town, and his trade is carried on by his servant, the master shall * Sec Bac. Ab. tit. Libel, 453. Wood's Inst. 445, 2 Sess. Cass. 33. 12 Yin. Ab. 229. Fitzgib. 47. Haw. V. C. c. 73. s. 10. Barnard, K. B. 308. Plankett v. Cobbett, 5 Esp. 1S6. t R. v. Dodd, 1724. 2 Sess. Cas» 33- D- T.L- 27. 869 be charged with his servant's publishing a libel in his absence. In the case of the King v. Nutt,* the defendant was indicted for being the publisher of a treasona- ble libeL It was proved that she kept a pamphlet shop, where the libel was sold ; no evidence was offered to prove her knowing of its being bought or sold out. The defendant proved that her house, where she lived, was a mile off from the shop, and that she had been bed-ridden there for a long time. The Chief Justice held, that the master of a shop is answerable for whatever books are sold there. (1 ) This liability of booksellers was fully discussed in the case of the King v. Almon.f The defendant had been convicted of publishing a libel (one of Junius's letters) in one of the magazines called the London Museum, which was bought at his shop, and professed to be printed for him. (2) The defendant was found guilty on proof that the libel in question had been sold in his shop. A mo- tion was afterward made for a new trial on an affi- davit, 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 * Barnard, K. B. 306. Fitzgib. 47. Dig. L. L. 27. t 5 Burr. 2689- (1) The receipt of payment for newspapers, (which had been distributed,) bj ihe printer's Clerk, held evidence of publication. Respub. v. Davis, 3 Yeates, 129. But where a printing press and newspaper establishment were assigned to a person merely as a security for a debt, and the press remained in the sole pos- session and management of the assignor, this was held not to be such an owner- ship in the person holding the security or lieu, as would render him liable to ai action as the proprietor, rfndres v. Wells, 7 .Tch".i R^n 2 10 ■'•'■ s^e vest, note [26,! V? 370 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 extenua- tion 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 fade evidence of its being published by him ; not indeed conclusive, be- cause 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 prima facie proof of publi- cation as would be sufficient to be left to a jury; for no evidence on the part of the plaintiff, or in sup- port 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."* If one procure another to publish a libel, tho procurer is guilt}' of the publication wherever it shall be made ; and the publisher is a competent witness to prove that he was employed to publish the libel, and did in consequence publish it.f (1) * Sec the King v. Johnson, 7 East, 65- See also the King v. Dod, 2 Ses. c. S3. Bac. Ab. tit. Libel, 497- Wood's Ins. 44 j. f Ibid. (1) But in an action for a libel contained in a letter, addressed to a third person, proof ilint it wa? writteaby the defendant's daughter, who was authorized 37 1 .Next, oi the evidence to prove n publication tna particular county or place. It seldom is material in a civil action, to prove the libel to have been published in any particular county ; though, in a criminal proceeding, which is in its nature local, the offence must be proved to have been com- mitted within the county in which the indictment has been found. But since, in a civil action, it may be- come necessa^ to prove a local publication, it will not be irrelevant to consider in this place the evi- dence by which such a publication ought to be sup- ported. In general, where a publication has once been sanctioned, the author of it is guilty of such publication in whatever county the libel shall in con- sequence be published.* A general confession that the defendant was the writer of a libel, does not amount to a confession that the libel was published at all, even though it should afterward be found to have been published in a particular county, still less does it admit the publication in such county. f In the case of the seven Bishops, after the proof which had been offered by comparison of hands had been rejected, the court being divided in opinion, it was proved that the defendants had, with much unwillingness, confessed before the king and coun- * B. N. P. 6. 7 East, R. v. Johnson, t Seven Bishops' case, St. Tr. 4 J. 2. (o make out his bills and write his general letters of business, is not sufficient evidence of a publication by defendant, unless it be shown that such libel was written with the knowledge of, or by procurement of the defendant ; nor could the daughter be called to prove by whose direction such letter was written. Harding v. Greening, 1 Moore, 477. S. C. 8 Taunt 42. &72 cil at Whitehall, that the signatures subscribed tv the petition had been written by them. It was also proved that the petition had come into the king's hands at Middlesex, but by what agency did not ap- pear. The reading of the petition upon this evi- dence was at first opposed by the defendants' coun- sel, upon the ground that no act of publication had been proved in Middlesex. It was, however, after- ward consented to, on an understanding that the point should be reserved. Had the evidence rested here, it seems the Chief Justice would, though against his inclination, have yielded to the force of this objection, even though it appeared upon the face of the petition that the intention of the petitioners was to present it to the king, and it had before been proved to have reached him. When a libel has been sent by the post, it seems that the defendant is guilty of a publication in any county into which the libel shall be carried.* But the post-mark, however, upon a letter, is not evi- dence of a publication in the county from which such letter purports, by its post-mark, to have been sent, for it may have been forged.f It seems, how- ever, that in some instances the post-mark may be evidence when corroborated by other circum- stances.; In the case of the King v. the Hon. Robert Johnson, § the defendant was indicted in the coun- ty of Middlesex for having published a libel in Cobbett's Weekly Register. Mr. Cobbett, the pub- * R. v. Watson, 1 Camp. 214. 4 St. Tr. 353. t Ibid. t R. v. Johnson. 7 East, 65. § 7 East, 65 ST6 iisher of the Register, proved that he had received an anonymous letter (the original of which he believed to be destroyed) in the same handwriting as the libels which he afterward received; in which letter (parol evidence of which was admit- ted to be given for this purpose) the writer in- quired whether it would be agreeable to Mr. Cob- bett to receive for publication in his Register, cer- tain information of public affairs in Ireland, and if it were, he was desired to say to whom such in- formation was to be directed. In consequence of the receipt of this letter, which was published in the Register, Mr. Cobbett, through the medium of the same Register, requested the promised informa- tion to be directed to Mr. Budd, No. 100, Pall Mall, whose shop was at that time used by Mr. Cobbett for the publication of his Register, where letters of communication were addressed to him, and from whence he received them, his own house being in Duke-street, Westminster. After this in- timation, Mr. Cobbett received in due time two se- veral letters, containing different parts of the libels in question, both in the same handwriting with the letter previously received. Both the letters came under cover, but the covers were believed either to be destroyed or lost, having been thrown aside as useless ; and therefore parol evidence was admitted, to prove that they had the Irish post- mark upon them, and were directed in the man- ner pointed out in the Register. The first of the letters, dated 29th October, 1803, was received, and the cover opened by Mr. Budd, who there- upon sent it, together with the cover opened, to 374 -Mr. (jobbett in Duke-street, by a person in the office whom the witness did not recollect. But in consequence of his desiring Mr. Budd not to open any other letters so directed, Mr. Cobbett re- ceived the next letter, which came to Mr. Budd, by a subsequent post, unopened. Several wit- nesses were then called, who, upon examination of the letters so received by Mr. Cobbett, swore to their belief of their being the handwriting of the defendant, who, at the period in question, was an Irish Judge. It was then proposed by the at- torney-general that the letters containing the libels should be read, which he said contained internal evidence that they were written and sent by the writer to Mr. Cobbett, for the purpose of being published in his Register. But the reading was objected to, upon the ground that there was no evidence to go to the jury, of a publication by the defendant in Middle- sex. That, admitting the libels to be in the hand- writing of the defendant, there was no evidence to show that he had sent them into Middlesex to be there published, nor any privity established between himself and Cobbett. The case of the seven Bishops was quoted as in point; and it was contended, that if any publication, proved to have taken place in Middlesex, was sufficient ground for the reading of the libel there, it ought to have been read in that case, since the petition, which had been acknowledged to have been signed by them, was found in the king's hands in Middle- sex ; and that the only link there wanting was, that it came there by the agency of the Bishops, which 875 was holden not be supplied by tlie evidence ol tiieir acknowledgment of their handwriting in that county. The trial was at bar, before Lord Ellenborough, C. J. and Grose, Lawrence, and Le Blanc, Justices. But it was answered by the court, that the case of the seven Bishops was irrelevant ; that it had been soundly ruled in their case, that the confes- sion of their signatures, extorted from them as it was, did not amount to evidence of a publication in Middlesex ; that in the present case, a publica- tion in Middlesex had been proved by Mr. Cobbett, and that the notification by letter to him, that he should receive certain papers for the purpose of publication, the public answer in the Register ap- pointing the mode of sending, and the consequent receipt of papers by Cobbett, through that chan- nel, answering the description of those proposed to be sent, and proved to have been written by the defendant, afforded evidence to go to a jury to de- cide, whether the publication in Middlesex had not been made through the defendant's procure- ment. Besides the general proofs already mentioned, some still remain relating peculiarly to the publish- ers and proprietors of newspapers. In the case of the King v. Topham,* the defendant was indicted for publishing, in a certain newspaper called the World, a libel reflecting on the memory of the late Earl Cowper. To establish the fact of pub- lication, it was proved that the paper in question was sold at the defendant's oiYico ; that the dc • i r r 121 376 iendant, as proprietor of the paper, had given a bond to the stamp-office pursuant to the 29th G. 3. c, 50. s. 10. for securing the duties on the advertisements ; and that he had from time to time applied to the Stamp-office respecting the duties. The jury, on this evidence, found the de- fendant guilty ; and upon a motion for a new trial, this was held by the court to be strong evidence of publication^ 1) By 38 G. 3. c. SS. which is entitled, " An Act for preventing the mischiefs arising from the print- ing or publishing newspapers and papers of a like nature, by persons not known, and for regulating the printing and publication of such papers in other respects," it is enacted, By Sect. 1. That no person shall print or publish any newspaper until certain affidavits or affirmations shall have been delivered to the commissioners of stamps or their officers. By Sect. 2. These must contain a true descrip- tion of the proprietors, or of two of them, and of their places of abode, of their shares in the paper, and the house wherein it is intended to be printed, and of its title. By Sect. 5. The affidavit or affirmation (in case the party be a Quaker) must be in writing, signed (1) In Respub. v. Davis, 3 Yeates, 128, the receipt of payment for a newspa- per by the Clerk of the printer was held evidence of the publication of a LibeJ. So where a witness swore that he was a printer, and had been in the office of the defendant where a paper called The. Ontario Messenger was printed, and he saw it printed there, and the paper produced was, he believed, printed with the ivpes used in the defendant's office ; this was held to be prima facie evidence of >.he publication. Sonlhivicl; :■ Ify&ens, 10 Johns, P"p. 443. See M'Gofkfe \ Bfrens, 5 Bic'i 340 \'>y the parties, and* sworn to or affirmed before the commissioners, or an officer appointed by them. By Sect. 7. A penalty of 100/. is imposed upon such as shall print, publish, vend, or deliver any newspaper, without making such affidavit or affirma- tion. By Sect. 9. It is enacted that, all* such affidavits and affirmations as aforesaid, shall be filed, and kept in such manner as the said commissioners shall di- rect, and the same, or copies thereof, certified to be true copies as hereinafter is mentioned, shall res- pectively in all proceedings, civil and criminal, touch- ing any newspaper or other such paper as aforesaid, which shall be mentioned in any such affidavits or affirmations, or touching any publication, matter, or thing contained in any such newspaper or other pa- per, be received and admitted as conclusive evidence of the truth of all such matters set forth in such affi- davits or affirmations as are hereby required to be therein set forth against every person who shall have signed, sworn, or affirmed such affidavits or anima- tions, and shall also be received and admitted in like- manner, as sufficient evidence of the truth of all such matters against all and every person who shall not have signed or sworn, or affirmed the same, but who shall be therein mentioned to be a proprietor, printer, or publisher of such newspaper or other paper, unless the contrary shall be satisfactorily proved." The section then contains an exception in favour of such as have, before the publication of the paper in question, delivered in to the commis- sioners an affidavit, stating that they have ceased to be the printers, &c. of such paper. 48 37§ By the 10th section, it is enacted, that in sonu part of every newspaper, &c. shall be printed the names, additions, and places of abode of the printers, &c. and the place where the same is printed, under a penalty of 100/. By Sect. 11. It is further enacted, that it shall not be necessary, after any such affidavit or affirmation, or a certified copy thereof, shall have been produced in evidence as aforesaid against the persons who signed and made such affidavit, or are therein named, according to this act, or any of them, and after a newspaper, or other such paper as aforesaid, shall be produced in evidence, intituled in the same man- ner as the newspaper, or other paper mentioned in such affidavit or copy is intituled, and wherein the name or names of the printer and publisher, or printers and publishers, and place of printing, shall be the same as the name or names of the printer and publisher, or printers and publishers, and the place of printing mentioned in such affidavit or affirmation, for the plaintiff, informant, or prosecutor, or person seeking to recover any of the penalties given by this act, to prove that the newspaper or papers to which such trial relates, was purchased at any house, shop, or office, belonging to or occupied by the defendant or defendants, or any of them, or by his or their ser- vants or workmen, or where he or they, by them- selves or their servants or workmen, usually carry on the business of printing or publishing such paper, or where the same is usually sold. By Sect. 13. It is enacted, that a certified copy of such affidavit or affirmation shall be delivered bv the $7±) commissioners to the person requiring it, upon pa) • ment of one shilling. By Sect. 14. In order to prevent the inconvenience which might result from requiring the personal at- tendance of the commissioners, it is enacted, that a certificated copy of any affidavit or affirmation proved to be signed by the officer who has the cus- tody of the original, shall be received in evidence as sufficient proof of such affidavit or affirmation, and that the same was duly sworn or affirmed, and of the contents thereof ; and that such copies, so pro- duced and certified, shall also be received as evidence that the affidavit or affirmation, of which they pur- port to be copies, have been sworn or affirmed ac- cording to this act ; and shall have the same effect in evidence as the originals would have had, in case they had been produced and proved to have been duly so certified, sworn and affirmed, by the person appearing by such copy to have sworn or affirmed the same as aforesaid. By the 17th section it is enacted, that every printer or publisher of every newspaper or other such paper, shall within six days deliver to the commissioners, or their officer, one of the papers so published, signed by the printer or publisher in his handwri- ting, with his name and place of abode ; and that the same shall be kept by the commissioners or their officer, under a penalty, in case of neglect by such printer or publisher, of 100/. And that upon appli- cation by any person to the commissioners or their officer, to have such paper produced in evidence in any proceeding, whether civil or criminal, such com- missioners or officer shall, at the expense of the ap- plicant, at any time within two years from the publi- cation, either cause the same to be produced in the court, and at the time when the same is required to be produced, or shall deliver the same to the appli- cant, on his giving reasonable security, at his own expense, for returning the same. And that, in case such commissioners or their officer cannot, by rea- son of a previous application, comply with the terms of a subsequent one, they shall comply with such subsequent one as soon afterward as they shall be able so to do. By the 28th section, it is enacted, that if a bill be filed in any court, for a discovery of the names of any persons concerned in the property of, or as printers, editors, or publishers of, or otherwise in any newspaper, or other such paper, or of any matters relating to the printing and publishing, in order to enable the party more effectually to bring or carry on any suit or action for damages alleged to have been sustained by reason of any slanderous or libellous matter contained in such newspaper or other paper as aforesaid respecting such party, it shall not be lawful for the defendants to plead or demur to such bill, but they shall be compellable to make the discovery thereby required ; provided that such discovery shall not be made use of as evi- dence or otherwise, in any proceeding against the defendants, save only in that proceeding in which the discovery is made. Hart and White, the printer and proprietor of a newspaper called " The Independent Whig,"* were * 10 East, 94. 381 • indicted in London for a libel published in that P a P er - , '". The prosecutor gave in evidence the affidavits sworn by the defendants, with their hands-writing thereto, and delivered to the commissioners, con- taining all the particulars required by the act, and among the rest, the description of the place where the newspaper was printed, which was in London. An officer from the Stamp-Office, (which is not in London) produced a newspaper, without stating from whence it came, containing the libel in question, which newspaper answered the whole description contained in the affidavit, and stated, at the foot of it, that it was printed at No. 33, Warwick-lane, London ; and it was also proved, that the defendant's printing-house was at the same place. The defendants were found guilty, but a new trial was afterwards moved for, on the ground that the evidence at the trial was insufficient to prove a publication in London ; that the 9th clause of the act cited made the affidavit evidence of no- thing more than the matters contained therein, which, by reference to the second clause, are the names, additions, descriptions, and places of abode of the printers, publishers, and proprietors, the description of the printing-house, and title of the paper ; that it was still necessary to prove a publi- cation in the county where the trial was had, since the paper, though printed in one place, may be published in another : that the 1 1th section is con- fined to actions or informations for penalties given by the act ; that the object of the 17th clause was Jb2 to fix the printing and publication upon the parties- described in the Stamp-Office documents, by com- paring the newspaper so delivered with any other of the same impression published in the county where me trial is had ; bu A that a publication to the commissioners under the direction of the act could not be considered as a libellous and guilty publication, without any other evidence of publi- cation in the same place ; that besides, the news- paper was only produced by an officer from the Stamp-Office, without any proof how it came there, or from whom it was received. The court were satisfied that the evidence of a publication in London was sufficient,* on the grounds that " the act requiring an affidavit to be made by the printers, proprietors, and pub- lishers, specifying their names and places of abode, &c. makes the affidavit conclusive as to the several facts contained in it, as against the persons sign- ing it, unless they ceased to be printers before the publication complained of. That had the act stopped here, the affidavits would be conclusive that one of the defendants was the printer and publish- er, and the other the proprietor of the paper so inti- tuled ; and that it was printed at the place therein described, which is within the city of London, that would have put them upon showing that the paper produced was a fabrication. But the 11th section goes further, and enacts, that proof of the af- fidavit shall render it unnecessary to prove that a newspaper corresponding in title, &c. with the one described in the affidavit, and to which the trial ' T>nivl Ellcnborough. C. J. gave no opinion. SS3 relates, was purchased at any house, &c. belonging to or occupied by the defendants, their servants, &c. or where they usually carry on the business of print- ing or publishing such paper, or where the same is usually sold. That at all events, the 11th section superseded the necessity of further proof, since the words of it, plaintiff, informer, prosecutor, &c. were general, and not confined to informants seeking to recover penalties. Where the defendant, having exhibited a libel- lous paper, retains it in his possession, if, after no- tice to produce it, he refuse, parol evidence may be given of its contents, and that even in cases of treason ;* and a printer may prove that he received a libel in manuscript from the defendant, and return- ed it to him.f To prove | the publication of a newspaper, an unstamped copy may be given in evidence, and the witness may swear, that similar papers were pub- lished. * See Le Merchant's case, 2 T. K. 201. Layer's case, 6 St. T. 229. R. v. Pearce, Peake's Cas- 75. 1 Ihkl. S8'4 CHAPTER XXVI. Of Evidence relating to Special Character. Malice, fyc. Where the plaintiff has averred that the scandal affects him in some particular character, he is in ge- neral bound to prove that such character belonged to him at the time of the publication. The character is described in the declaration, either particularly or generally. In the former case, it is incumbent on the plain- tiff to prove such description, with all its circum- stances, though a more general proof, under a more general description, might have sufficed ; since, though an averment wholly irrelevant may be re- garded as surplusage, one which is material must be proved as pleaded. The defendant* said of the plaintiff, " He is a quack, and if he shows you a diploma, it is a for- gery." The declaration averred that the plaintiff " was * Dr. Moises v. Pr. Thornton, 8 T. R. 30-". a physician, and had regularly taken his degree of Doctor of physic." In support of this averment, he produced a diplo- ma, purporting, on the face of it, to have been granted by the University of St. Andrew's, in Scot- land, and to have the university seal appendant to it. To authenticate this, a witness was offered, to prove that the rector and professors of the universi- ty of St. Andrew's had acknowledged, in his pre- sence, their signatures subscribed to the diploma. The same witness was ready to prove a certificate, by the master and professors, of the due taking of the degree, and an acknowledgment by the seal- keeper of the university, that the seal appendant to the diploma was the seal of the university. Lord Kenyon, C. J. deeming this evidence insufficient, the plaintiff was nonsuited. A motion for a new trial was afterward refused, on the ground, that the plaintiff* having averred that he had duly taken the degree of doctor of physic, he was bound to prove it ; and it was observed by Lawrence, J. " even if it be not necessary in general for the party to show- that he has taken his degree, in this case it is neces- sary on account of the plaintiff's allegation." Lord Kenyon, C. J. also observed, that the best evidence to prove the taking of a degree is by the production of the books containing the act of the corporation by which the degree is conferred. It seems perfectly settled, that the plaintiff* may describe his character generally in the declaration, as that he is a physician or attorney. What evi- dence will satisfy such a description is not so cer- tain. 49 ma In the case of Pickford v. Gutch,* the action was brought for calling the plaintiff a quack. The de- claration alleged that the plaintiff had used and exercised the profession, &c. of a physician, &c. To prove this, a person, who was a surgeon and apothecary, was called, who would have proved that the plaintiff for several years had prescribed, &c. as a physician, and that the witness had acted under him. But Buller, J. was of opinion, that the evidence was insufficient, and that it was ne- cessary to produce the plaintiff's diploma ; on which it was produced in court, and the plaintiff recovered. In the case of Berryman v. Wise,f the plaintiff averred that he was an attorney of the court of King's Bench, and having been employed in a par- ticular cause, had received a certain sum of money, which the defendant charged him with swindling, adding a threat, that he would move the court to have him "struck off the roll of attorneys." Upon the trial before Thomson, Baron, at the York as- sizes, the plaintiff proved the words, and his having been employed as an attorney in that and other suits. It was objected that the plaintiff had not proved the iirst allegation in his declaration, viz. that he was an attorney of the court of King's Bench, which could only be proved by his admission, or by a copy of the roll of attorneys. But the objection was over- ruled, the learned Judge reserving the point, with liberty to move to enter a nonsuit. Upon motion made, the court were of opinion. * Before Duller. 3. Dorchester Summer assizes. 1787. t 4 T- R. 366. * 387 that the evidence was sufficient, for the defendant's threat imported that the plaintiff was an attorney. (1) And Buller, J. said, " In the case of all peace officers, justices of the peace, constables, &c it is sufficient to prove that they acted in those charac- ters without proving their appointments, and that even in the case of murder. Excise and custom- house officers, indeed, fall under a different consi- deration ; but even in their case evidence was ad- mitted, both in criminal and civil suits, to show that the party was a reputed officer, prior to the 1 1th Geo. I. c. 10. s. 12. In case of actions brought by attorneys for their fees, the proof now insisted upon has never been required ; neither in actions for tithes is it necessary for the incumbent to prove presentation, institution, and induction ; proof that he received the tithes, and acted as incumbent, is sufficient." But in the last case upon this subject, Smith v. Taylor,* nearly the same question arose as in Pickford v. Gutch ; and the point was much dis- cussed both by the counsel and the learned Judges of the Common Pleas, who were ultimately di- vided in opinion. The declaration stated, that the plaintiff, at the time of speaking the words, was a 41 physician." Upon trial of the cause before Sir J. Mansfield, C. J. it was proved that the plaintiff had practised for some years as a physician in the MN.K. 196. (1) So in an action for saying "the Reverend Thomas Smith is a perjured man," parole evidence that the plaintiff is a minister of the Gospel is sufficient Cummin ?. Smith, 2 Serg. & Rawle, 440. 3*3 town of Yarmouth ; that Dr. Girdlestone, who was also a physician at Yarmouth, and of longer stand- ing than the plaintiff, had been attending one Richard Helsden as a patient, and that the defend- ant was employed as his apothecary. That Dr. Girdlestone being obliged to leave Yarmouth for a day, the plaintiff was sent for at the request of Helsden's wife, and prescribed for him ; the pre- scription was made up by the defendant. On Di\ Girdlestone's return, the plaintiff requested that he might be sent for ; Dr. G. refused, and the plaintiff then, with reference to the transaction, said, " I and Dr. G. both thought that Helsden was doing well, till Mrs. Helsden called in Dr. Smith, who has upset all we have done, and die he (Helsden) must." Moises v. Thornton was cited on the part of the de- fendant, to prove it necessary for the plaintiff to show that he was a regular physician. His lord- ship was of opinion, that the case was irrelevant, and the plaintiff obtained a verdict for 100/. The case was afterward argued on a rule to show cause why the verdict should not be set aside, and a new trial had ; and the learned judges not being agreed, delivered their opinions seriatim, Sir J. Mansfield, C. J. and Mr. Justice Heath, agreeing that the plaintiff was entitled to recover without further proof; and Rooke and Chambre, Justices, con- ceiving it to be requisite for the plaintiff to prove that he was lawfully authorized to practise. Since the court were equally divided, the plaintiff of course retained his verdict. (1) (1) Where the declaration alleged, that the plaintiff at the time of speaking &c was of two trades, and that the defendant intending to injure him in hi* 8S9 In hazarding a few observations on the subject of this legal difficulty, it will be convenient to consider the varieties which special characters admit of, con- sidered with reference to the means by which they are acquired. 1. The character may be acquired by mere user, without the aid of any legal form for the purpose of clothing the party with that character ; as, where he sues as a merchant or mechanic. 2dly. In other cases, where the character is not created by any legal form, the acting in it may be prohibited, unless the party qualify himself in some particular mode ; as, where a person exercises a trade mentioned in the statute 5 Eliz. c. 4. in such case he is a tradesman by mere user, but is prohi- bited under penalties from following it, unless he has qualified himself by serving as an apprentice for seven years. 3dly. Some legal form may be necessary, in or- der to confer the character in which the plaintiff" sues ; as, where words are spoken of him as a jus- tice of the peace, or as the incumbent of a particu- lar benefice, where legal forms are necessary to in- vest the party with the character in which he as- sumes to have been injured. In the first of these, no doubt can arise as to the several trades as aforesaid, and to prevent persons from employing him in the way of his said several trades, in a certain discourse which he had of and con- cerning the plaintiff in one of Ids trades, spoke, &c. Held, that though the plain- tiff failed to prove he was o(bolh trades, yet he might recover upon proof that he was of that trade, concerning which the defendant was charged to have spoken the words. Higgins v. Cogswell, 3 Mau. & Selw. 369. See May v. Brown, an i Letvis v. Walter, 4 Dow. & Kyi. 670, 810. 890 evidence ; a merchant, who complains that his re- putation as a merchant has been injured, can give no other proof of his title to the character than that he has traded as such. Iii the second class of cases, the character is ac- quired by user; but the user itself is prohibit ed, unless certain statutable requisitions have been com- plied with. It does not appear in general to have been deemed necessary lor a plaintiff, who sued in such a cha- racter, to show that he had complied with every requisite which a penal statute might have pre- scribed ; and since such a rule comprehends a great number of cases much litigated, the absence of ob- jections on the subject is a cogent argument to prove that they were never thought available. If such proof were necessary, the necessity Would ex- tend to every action in which a tradesman or me- chanic, comprehended within the 5th of Elizabeth, brought an action for words relating to his trade or business, and he would upon trial, be put to prove that he had served for seven years as an apprentice, since otherwise his exercise of it would be unlaw- ful; and on the same ground every magistrate, or officer under government, would, in a similar case, be bound to prove that he had duly taken the sacra- ment, or complied with other forms prescribed by the statutes, the neglect ot which would render the acting in such office illegal. In the case of Smith v. Taylor, where the plain- tiff averred himsell to be a physician, the point ex- pressly arose. It could not be contended in that case, that the p aintiff was not a physician, since no ^91 precise form is by law essential to the constituting a person a physician ;* and physicians existed eo nomine, and were contemplated by the law as such before the prohibiting statute was passed, which rendered their practising without certain qualifica- tions unlawful. That statute could not, therefore, be considered as creating a new order and descrip- tion in the profession. The objection then amounted to this, that the plaintiff being what he had by user proved himself to be, "a physician," was bound to proceed, and show that he had exercised his pro- fession without violating any statute.(l) Though the case of Berryman v. Wise be not an express and distinct authority to show that the legal investment with an office is in no case necessary to be proved, inasmuch as the user in that case was mingled with the admission contained in the defend- ant's threat ; yet it goes far to prove, that where no formal inception of character is required by law, it is unnecessary to prove a compliance with any sta- tutes prohibiting the acting in that character under particular restrictions. In that case it was not contended that the plain- tiff was obliged to prove that he qualified himself to act in the capacity of an attorney, as directed by the 25th Geo. 3. c. SO; and yet it appears clear, that if it had been shown that the plaintiff, at the time the words were spoken, was acting as an at- * 5 Com. Dig. tit. Physician. (1) It has been decided in Smith Carolina, that in an action by a physician for slander, as to his professional skill, proof of his having practised for several years with reputation, was sufficient evidence of his being a physician- Brown v ■Vims. 1 Cons t Ct Rep- 235. 392 torney unlawfully, and in direct violation of a sta- tute, he could not have recovered. There was the same necessity, therefore, in Berryman and Wise, of proving that a certificate had been taken out by the attorney, as existed in the case of the physi- cian, to prove his compliance with the statute of Henry the Eighth, supposed to prohibit the prac- tising as a physician without a degree or letters testimonial. Neither does the admission in Berry- man and Wise at all apply to this point, or in any way operate as supplementary evidence; since, al- lowing it the most ample effect, it can amount to no more than an acknowledgment that the plaintiffs name had been admitted on the roll of attorneys, which affords no evidence that he afterward regular- ly qualified himself by taking out the statutable cer- tificate. The plaintiff, in the case of Smith v. Taylor, having proved that he had practised as a physician, since it was not contended, on the other hand, that he would be entitled to recover if the practising was illegal, the question was, upon which party the burthen of proof should be thrown — upon the plaintiff, to show that he had acted legally, or upon the defendant, to prove that the plaintiff had vio- lated a statute. The general presumption of the law in favour of innocence speaks powerfully in favour of the plain- tiff; but to this it is objected, that the plaintiff, by proving that he has acted in a character requiring the observance of certain legal requisites, has placed himself in the same situation with a defendant against whom an action is brought to recover sta- 39& tutable penalties; in which case, it is incumbent upon him to rebut a presumed liability by proving the qualification. There seems, however, to be a material distinction as to the legal situation of the parties in the two cases : in the one, the plaintiff proceeds to enforce the existing law, by the means which the law directs, and the question of quali- fication is directly in issue between the parties. In the other, the defendant adopts a mode of pro- ceeding which the law does not warrant, and then attempts to screen himself behind a defect in the plaintiff's title, which does not come directly in issue ; he does not contend that his own conduct is pure, but relies on the culpability of his oppo- nent ; contending, that on grounds of general po- licy, the plaintiff is not entitled to damages. The rule of policy certainly prescribes that a person, in the illegal receipts of profits, shall not recover for their diminution, by whatsoever means it ma}' have been effected, but it seems equally to prohibit a wanton attack upon character at the discretion of an individual, which* may produce -consequences infinitely more serious than the pecuniary penalty prescribed by the legislature : not that the magni- tude of these consequences is material where the illegality has once been substantiated, but the possibility of their far exceeding the legislative measure of punishment, seems to operate in favour of the plaintiff, where the question is, from whom the proof of illegality or innocence shall be ex- pected. Evidence that the party has acted in a particular capacity, for which he ought to have qualified him- 50 .394 >en" in a manner prescribed, in a proceeding against him grounded on the neglect to qualify, imposes upon him no doubt the necessity of proving his qualification ; but the same necessity does not always exist when the party has brought himself by evidence within the predicament ; if it did, it would follow that a carpenter, in an action for a month's work and labour for the defendant, must go on to prove his having served an apprenticeship; and that a surgeon* in London, in an action for his service, must prove his license from the college. In such cases, though upon grounds of strict legal policy, the plaintiff may be disabled to recover where the illegality of his acting is manifest ; yet the law will not presume the defect, but require proof of it from the defendant, who obtrudes the objec- tion upon the notice of the court. The general presumption of the law in favour of a man's having performed his duty is so strong as in some instances to outweigh the rule which calls upon the party to prove, the affirmative ; and this happens where the party neglecting would have been guilty of a criminal omission. The case of Monke v. Butler, f is very strong to this effect. The plaintiff sued for tithes in the spiritual court, the defendant pleaded that the plaintiff had not read the thirty-nine articles, and the court put the defendant to prove it, though a negative. Where- upon he moved the court for a prohibition, which was denied, since the law will presume that a par- son has read the articles, for otherwise he is to lose his benefice. * Sec Gremare v. Le Clerc Bois Valer, 2 Camp. 144. I, aw v. Hodgson. 2 Camp. 147. 11 East, 180. * 1 Poll. Rep. 83. $95 And upon the same principle, upon an inform*- ion against Lord Halifax,* for refusing to deliver up the rolls of the auditor of the Court of Exche- quer, the court put the plaintiff upon proving the negative, viz. that the defendant did not deliver them, for a person shall be presumed duly to exe- cute his office till the contrary appears. In the King v. Coombs,f the defendant swore an affirmative, for which an information was exhibited against him ; and although a negative could not be proved, the court directed that the prosecutors should first give probable evidence, and that the defendant should afterward prove the affirmative if he could. These cases were cited, and their authority recog- nised by Lord Ellenborough, C. J. in delivering the opinion of the court in the case of Williams against the East India Company.}: It seems difficult to distinguish the case of Monke v. Butler from that of Smith v. Taylor, as far as re- lates to evidence of character. In each case, the plaintiff charges the defendant as a wrong doer ; in the first, by unlawfully withholding tithes ; in the se- cond, by diminishing his professional profits by an officious intermeddling ; the nature of the defence is the same, since in each the defendant insists upon, the want of a legal qualification in his adversary; and in each the defendant would be guilty of neglect in acting without the qualification ; so strong, there- fore, is the analogy, that it is not easy to conceive upon what grounds the presumption which prevails in favour of the plaintiff in the one case, should not equally operate in the other. * B. N. P. 298. Vin- Ab. tit. Evidence. "» Comb. 57. t 3 East. R. 192. 6m Thirdly, Where the character is derived irom some legal and formal investment. In the case of Berry man and Wise, the evidence that the plaintiff had acted as an attorney was mingled with the quasi admission, supplied by the defendant's words, and stress was laid upon that circumstance both by the learned judge who tried the cause and by the court above, by whom his opinion was confirmed ; the de- cision, therefore, cannot be considered as a distinct and express authority, to show that evidence of user alone is in such cases sufficient. But the dictum of Mr. Justice Buller, subjoined to the opinion of the court, clearly evinces his opi- nion, that evidence of the plaintiffs having practised as an attorney would alone have been sufficient ; since, without adverting to the circumstance of ad- mission, he places the evidence on the same footing with that allowed in the case of a constable, in which it had solemnly been decided, that his having acted in the office was sufficient proof that he was a con- stable, even in an indictment for murder. The general mode of pleading in an action againsi a wrong doer for a disturbance, supplies an argu- ment applicable to this case. In a possessory action, where the plaintiff complains that he has been hin- dered in the enjoyment of any right, it seems to be in no case necessary to allege any legal title* to that in which he is disturbed ; so that in an action against the defendant for a disturbance in his right to take toll, or to enjoy an exclusive right of ferry it is sufficient for the plaintiff to aver his possession or that " habere debet" without setting out his title * Ow. 10:>. 3WHJ. ^an. 113 a. n. '■ S\)7 the plain reason for allowing which is, that the plain- tiff is to recover damages only, ami the right or title to the land does not come in question. And so, in the action for slandering a plaintiff in his profession or office, which bears a strong analogy to an action on the case for a disturbance, it is suffi- cient to aver that the plaintiff* used and exercised the profession, or generally, that he held the office ; whence it should seem, that proof of such posses- sion, as against a disturber, without legal authority, would be sufficient evidence to satisfy the allega- tion. Next as to evidence of malice. The different presumptions of law in cases of slander, as already observed, are, first, conclusive in favour of the defendant ; secondly, in favour of the defendant, but liable to be rebutted by evidence of express malice ; or thirdly, against the defendant, but liable to be controverted by any evidence proving his intention to have been pure. In the second class, where the burthen of proving express malice is thrown upon the plaintiff, he may, in sup- port of the allegation, give in evidence any expres- sions of the defendant, whether oral or written, in- dicating spite and ill-will towards him, for the purpose of showing the temper and disposition with which he made the communication complained of. And since the object of such evidence is to enable the jury to ascertain whether the defendant acted from good or evil motives, it is not material whether the in- stances of the defendant's ill-will, are or are not im- mediately connected with the publication in question ; * « T. K. 305. Pickford v. Hutch- 39S but a judge will, in such a case, instruct the jury to confine themselves, in their assessment of damages, to the words stated in the declaration. It was once doubted whether, in admitting evidence of this nature, a distinction ought not to be made between words not actionable in themselves and those which are so. In the case of Mead v. Daubigny,* Lord Kenyon rejected evidence of words actionable in themselves, and not mentioned in the declaration ; but his Lordship afterward changed his opinion, and admitted such evidence in a subsequent case.f(l) In Russel v. Macquister,t evidence of action- able words spoken after the time of those laid in the declaration, was objected to, on the ground that if such words were taken into consideration, by the jury, the defendant might be made to pay a double com- pensation, for the same injury, since another action might be brought for the words last spoken, and the distinction was taken between that case and the case of words not actionable. But Lord Ellenborough, C. J. overruled the objection, observing, that though * Pcalce's Case, 125. t Lee v. Huson, Peakc's Cases, 166. R. v. Pearce, lb. *!5. J 1 Camp. 49. (1) Wallis v. Mease, 3 Binn. 546. Kean v. M'Laughlin, 2 Serg. & Rawle, 469. Shock v. M'Chesney, 2 Yeates, 473. It would seem to be at least very doubtful whether in an action for a libel, publications by the defendant against the plaintifif, subsequent to the libel charged in the declaration, and which arc libellous in themselves, arc admissible to show the malice of the defendant in publishing the original libel- Thomas v. Croswell, 7 Johns. Rep. 264. Sec Sluart y. Lovell, 2 Starkie's Rep. 93. Finnerty v. Tipper, 2 Canipb. Rep. 72. In Tatev. Humphrey, 2 Campb- Rep. 73, n. Baron Graham permitted the plain- tiff to give in evidence a bill of indictment which had subsequently been pre- ferred by the defendant against him, and which the Grand Jury returned ignoramus. The Court afterwards refused a new trial, upon the ground that f l>e evidence was properly received :J99 such a distinction had once prevailed, it was not founded in principle ; and that, although no evidence can be given of any special damage not laid in the declaration, yet that any words, or any act of the defendant, is admissible, to show quo cmimo he spoke the words which are the subject of the ac- tional) Upon the same principle,* where a libel was con- tained in a political paper published weekly by the defendant, after proof that the paper in question had been purchased at the defendant's office, evidence was admitted of the previous sale of other papers with the same title at the same office. And the rea- son of admitting it was, to show that the papers, which purported to be weekly publications of public transactions, were sold deliberately, and vended in the regular course of circulation ; that the paper containing the libel was not published by mistake, but vended publicly, deliberately, and in regular transmission for public perusal. (2) In case of actions brought by former servants against masters for giving false characters, it has al- ready been seen that it is incumbent on the plaintiff to adduce extrinsic proof of malice. In such instances the plaintiff, if charged with dishonesty and misconduct in the defendant's ser- vice, is at liberty to prove his good character and * Plunkett v. Cobbett, 5 Esp. 136. (1) Proof of parole declarations by the defendant, after the institution of the suit for slander, that he did not mean to charge the plaintiff with the crime al- leged by the slanderous words, or that the words were spoken in the heat of pas- sion, is not admissible in his favour- M'./Hcxahder v- Harris, 6 M»nf. 465, pi. 'i. (2) See ante. 398, note (1.) 400 conduct in forme- services, since general character is in some respects in issue ; and it seems that wher- ever the words impute crime or dishonest}-, evidence of previous good conduct is admissible.* So the plaintiff may prove by the evidence of other servants in the same family, that whilst he remained in the defendant's service, he conducted himself well, and that no complaints of the nature ascribed to him by the defendant then existed.! And the tendency and bearing of this evidence is to show, that the defend- ant knew that the character he gave was false. It has been said, that a servant, in order to recover, must prove the character to have been maliciously^ as well as falsely given. By this is to be under- stood, that in addition to that presumption of law, as to the plaintiff 's innocence of the charge, arising from the defendant's declining to justify, he must go further, and show that the character was given out of spite and ill-will ; and the plain reason for this is, that the knowledge of misconduct frequently rests with the defendant himself ; and being unable to prove it by the testimony of others, if the general presumption were to operate against him, he would be left without defence. To prevent such incon- venience, the law does not permit the presumption of falsity so to operate, but requires malice to be proved from other sources. In case, however, the plaintiff should be able expressly to prove that the defendant was aware of the falsity, no further proof of malice would be requisite ; nor, indeed, could a stronger proof of it be produced than that the de- * King v. Waring and Uxor, 5 Esp. 13. t 3 B. & P. 589. " Weatherstone v. Hawkins. 1 T. R. 110- 403 fendant had given a character of the plaintiff inju- rious to his reputation, with a full knowledge that it was untrue. The circumstances under which the master and servant parted, any expressions of ill-will uttered by the former, his officiously acquainting others with the servant's misconduct, without any previous ap- plication to him for a character,* are all facts proper to be left to a jury to give their opinion upon* the question of intention. In the third class of cases, where the presump- tion of law is against the defendant, no evidence of malice is of course expected from the plaintiff'; and any overt act of publication imposes the burthen of explanation upon the defendant, since it will be pre- sumed that the part}* knew the contents of that which he published. Thus it has been seen, that a book- seller is, in the first instance, presumed to know the contents of any book sold at his shop ; and upon proof of the sale, the contents are so far considered to have been fixed upon him, that the plaintiff is en- titled to have them read in evidence against him ; so far has this species of presumption been carried, that it has been held, that under an indictment for sending a threatening letter,! the bare delivery of it, though sealed, was of itself prima facie evidence of a guilty knowledge of the contents. So, in case a servant deliver a letter containing a libel, by his master's directions, the mere proof of delivery, though sealed, would in the first instance entitle the plaintiff in an action against the servant, * 3 B. & P. 587. ; The Kin-* v. Girdwood, Leach. Cas- C. L. ^f>9■ 51 402 to have the contents read ; and if the servant, in his defence, showed that he received the letter sealed from his master, the plaintiff might reply to such evidence, by showing that the servant was actually aware of the contents ; since, though a servant is in duty bound to execute the commands of his master which appear lawful, he is not protected in the exe- cution of those which he knows to be illegal. In general, no evidence can be given of any da- mage not stated in the declaration ;* and any damage which is stated must be proved to have resulted from the wrongful act of the plaintiff, as averred in the pleadings. It has been said, that the plaintiff, in an action for a malicious prosecution, may give in evidence the circumstances of the defendant, in order to increase the damages. The principle, however, upon which such evidence is allowable, is not very obvious, and scarcely can be warranted, unless the situation and rank of the defendant have affected the quantum of prejudice sustained by the plaintiff. (1) * See Russel ▼. Macquister, 1 Camp. 48. (1) See Lamed v. BufUngton, 3 Mass. Rep. 54(5 4Wtf CHAPTER XXVII. Evidence for the Defendant. It has already been seen of what circumstances the defendant may avail himself, to show that his conduct was not attributable to malice, under the general issue* or by pleading. Where the words are capable of being explained by reference to circumstances, such proof is incum- bent on the defendant.! In the case of Penfold v. Westcote,; it was proved that the defendant said of the plaintiff, " Why donft you come out, you blackguard, rascal, scoundrel Penfold, you are a thief." The witness, who proved the words, was not asked whether, by the word " thief," he understood that the defendant meant to charge the plaintiff with felony. Chambre, J. in his direction to the jury, said that it lay on the defendant to show that felony was not imputed by the word " thief." And after a verdict for the plaintiff, a new trial was refused. But where it plainly appears from the context, that the word was not used in a felonious sense, the * See Chap. 23. t Cro. J. 114. B. N. P. 5, ' N. R. 335 404 plaintiff will be nonsuited upon his own showing.* In general, it seems that where the publication of a libelf has been fixed upon the defendant, it rests with him to establish the innocence of his in- tention. i It may next be considered of what evidence the defendant may avail himself for the purpose of mi- tigating the damages. In Mullett v. Hulton,§ the declaration stated that the plaintiff was about to take a house, but that the defendant, in order to prevent him, ad- dressed a letter to the owner, containing the fol- lowing passage: "Mr. Hulton cannot for a mo- ment suppose that Mr. Salter is acquainted with the newspaper particulars relative to the party al- luded to (the plaintiff,) otherwise it is not probable that Mr. Salter would introduce an acknowledged felon, debauchee, and seducer, into the neighbour- hood of Angel Row." Erskine, for the defendant, contended that he was at liberty to go into evidence that the plaintiff had been, in fact, a seducer, not as an answer to the action, but in mitigation of damages. He ad- mitted, that not having pleaded the truth of the words, he could not prevent a verdict from passing against the defendant ; but that he, having referred to newspaper authority for the words used in the letter, and not having given them as his own, or from his own knowledge, that he should be at li- * 1 Camp. 4«. T K. v. Toptnun, 4 T. R, K. v. Withers, 3 T. R. 423. R. v. Woodfall, Burr. R. v. Almon, Burr. 26S6. t See GiFdweod'a casr. T each G C L. 169. S 4 F.5r-- -248. 40o berty to give the fact in evidence as coming from another source, to which he referred in his letter, and as the slander did not proceed from him, it would go in mitigation of damages. Lord Ell mborough, C. J. said, that as the plead- ings stood on the record, the evidence offered was inadmissible as an answer to the action. The libel itself was proved, and there was no justification that entitled the defendant to a verdict; but he added, that as the words referred to a newspaper, and were so written as a quotation from a newspa- per, if the newspaper could be produced, he would admit it as evidence, as having caused the defend- ant to adopt what he had written in the letter, he having so referred to it. Where the defendant has not pleaded the truth in justification, it does not appear perfectly settled how far he is at liberty to proceed in evidence tending to prove the truth of the matter publish- ed.^) An action was brought* for a libel published in the Morning Post, charging the plaintiff with hav- ing been concerned with a person of the name of Knowles in procuring money from the relatives and friends of persons convicted of capital offences, under pretence of being able to procure pardons ' Knobcll v. Fuller and another, sittings after T. T- 1797- [S. C. Peake'5 l'\id. App. xxxii. 2d Am. Edit.] (1) In Williams v. Mayer etui: 1 Binn. 92, n. and Bufordv. M'Luny, 1 Nott &. M'Cord's Uep. 268, such evidence was admitted, and the case of Knobell v. Fuller recognised ; but in Cheat-wood v. Mayo, 5 Munf. Rep. 16, and J&iilexmt- ler v. Harris, 6 Munf. Rep. 465, it was rejected- 40t> through the interference of the Duke of Portland, in whose service the plaintiff was. The defendant pleaded the general issue, and in mitigation of damages offered evidence to prove strong grounds of suspicion against the plaintiff. Eyre, C.J. at first doubted whether this evidence was admissible. Adair. Serg. for the defendant, admitted that the defendant could not give in evidence on the ge- neral issue, facts which, if pleaded, would amount to a justification ; but contended that they might prove facts which showed there was cause ot sus- picion, and therefore proved that the defendants were not induced to publish this paper by reason of malice against the plaintiff, but for the purpose of conveying information to the public, this being a concern of a public nature. A note of the case of Curry v. Walter was then read, in which his Lordship admitted the distinction, and received such evidence. Eyre, C. J. said, he believed in that case he admitted the evidence in order to show that the defendant had not in fact published a libel, he having only published the proceedings of a court of justice, which the court afterwards determined to be no libel in point of law ; but he would not deny but he might also have received it in miti- gation of damages : for though he had never known the evidence given in an action for a libel, yet he had always understood that in an action for words the defendant might, in mitigation of damages, give any evidence short of such as would be a complete I 107 defence to the action, had a ustilication been^ pleaded. \ The defendai t then called Mr. Ford, a magis- g trate, to prove, that on the examination of the J plaintiff before him, he admitted that he had re- ceived five guineas for conveying a letter to the . Duke; and the Duke himself being examined, said, that thinking the plaintiff had misconducted himself in that respect, he had discharged him from his service. An action was brought for a libel* published in the Morning Herald, imputing to the plaintiff the offence for which Lord Audley suffered in the reign of Charles I. The declaration contained the usual exculpatory averments, and stated that the plaintiff had lost the society of many worthy- subjects in consequence of the publication. The defendant pleaded not guilty. Upon the trial before Sir J. Mansfield, C. J evi- dence was offered in mitigation of damages, that at the time of the publication, the plaintiff was generally suspected to have been guilty of the charge imputed, and that in consequence of this general suspicion his acquaintance had deserted him. This evidence was objected to. It was contended that it would be in vain to bring an action if such evidence were permitted. That a plaintiff could not come prepared to defend every act of his life. That there was nothing on the record to put the character in issue; and that to admit such evidence i would only be giving the defendant an oppor- f : Karl of Leicester v. Walter, 2 C. N. P. 251. r \ \ M)8 tunity of continuing and aggravating the original libel. Sir J. Mansfield, C. J. admitted the evidence, observing, that he could never answer to his own satisfaction, the arguments used for the plaintiff. That since it had been held that any thing short of proving the evidence imputed in the libel was evidence in mitigation, he did not know how to reject the witnesses. Besides that, the declaration stated that the plaintiff had always preserved a good character in society, from which he had been driven by the insinuations in the libel. That the question for the jury was, whether the plaintiff had actually suffered this grievance or not, and therefore that evidence to show that his character was in as bad a situation before as after the libel, must be admitted. The learned Judge, in summing up, directed the jury to consider, in assessing the damages, whether the reports which had been proved were sufficient to show that the plaintiff could receive little injury ; and that, in this point of view, it did not matter whether the reports were weD or ill founded, provided they got into many men's mouths. (1) Though the admissibility of such evidence does not seem to have been yet decided upon argument, yet the opinions of the eminent persons who have deemed such to be admissible at Nisi Prius, leave no doubt upon the question, especially considering (1) v. Moor, 1 Mau. & Sehv. 285. Alderman v. French, I Pick. Rrp t. Wnlrnft v. Hull, 6 Mass. Ttep. 514, confrrt. 409 that the last learned Judge, before whom the point arose, conceived himself bound to the admission, not only by the averments upon the record, but also by the antecedent decisions on the subject. Some difficulty, however, may be found in reconciling the rule laid down in its fullest extent, namely, that any matters short of actual proof are admis- sible in mitigation, with the resolution of the Judges in Underwood v. Parks.* The evidence of- fered in the cases cited, is either general evidence of the plaintiff's suspicious character previous to the publication, or of particular facts tending to show his actual guilt. In the former case, the rea- son of admitting the evidence appears plain and obvious, and it seems to be immaterial whether the plaintiff avers his previous good character, and the desertion by ( his acquaintance or not, since the law willjpresume that he has a good one till the con- trary be proved, and will equally presume a loss after proof of actionable words ; but it is impossible to say that the defendant has not a right to give general evidence that the plaintiff did not sustain any loss of character in consequence of his publi- cation, but that, on the contrary, his character had previously been ruined, since the loss of character is the very basis of damages, and notice to this effect by a special plea would render no assistance to the plaintiffm providing counter-evidence, since all he could do would be to prove by general tes- timony that his reputation was previously good, which, as already observed, the' law presumes for * Stro. 12O0. 52 410 him, and which he would not be able to prove by any particular facts.(l) But particular facts, which might form part of a chain of circumstantial evidence against the plain- tiff, in case he were indicted for the offence imputed, seem to fall under a different consideration. (2) First, because any fact of such a nature is evidence rather to rebut malice than to affect the quantum of damages ; since, though malice be essential to the action, it is not the criterion and measure of damage ; and though circumstances inducing a belief of the plaintiff's guilt in the mind of the defendant, take away considerably from the malignity of his inten- tion ; yet, since they do not amount to a justification, there-is still a residuum of malice sufficient to sup- port the action. And secondly, if one circumstance be admitted, tending. to fix actual criminality upon the plaintiff, a second and third could not, in princi- (1) Williams v. Calhnder, 1 Holt's N. P- Rep. 307- Viek v. Whitefield, 2 Hayw. Rep. 222. Burford v. M'Luny, 1 Nott & M'Cord's Rep. 268. Sawyer r. Eifferl, 2 Nott & M'Cord's Rep. 511. In Ncio-York, the Supreme Court were divided upon a question, as to the right of the defendant to give such evi- dence in an action for a Ubel. Foot v. Tracy, 1 Johns. Rep. 46- Lord Ellen- borough received the evidence in Williams v. Cullender, which was an action for a libel. That the plaintift" is himself a common libeller was held to be an answer to an action brought by him for a libel, in the case of Williams v- FauU dcr, tried before Lord Kknton, and reported in the second volume of the Works of W. Gijjord, Esq., (X.-York, edit., 1300,) page 45. But Sir James Mans- field denied the authority of that case as to its full extent, though he was of opinion that evidence of the fact would be most essential with respect to the damages, (Finaerty v- Tipper, 2 Campb. Rep. 77,) but the Court of King's Bench, in a very recent case, decided, that other libels published by the plaintiff of the defendant, not relating: precisely to the same subject, could not be received in evidence, either in bar of the action, or in mitigation of damages. May v. Brown, 4 Dow. &. Ryl. Rep- 670. (2) Vicky. Whitefield, 2 Hayw. Rep. 222. Lamed v. Buffmglon, 3 Mass Rep. 510- Seethe opinion in /?o" v. f-iphnni, 14 Mass- Rep. 27!). ill pie, be rejected ; and it would, in many instances, be difficult for a judge to confine the evidence with- in such limits, that it should not produce on the minds of the jury a conviction of the plaintiff's guilt, or, in other words, to avoid infringing upon the ge- neral rule laid down by all the judges.* Where extrinsic assertions are given in evidence ^^l by the plaintiff, to show the defendant's malice, the ^ latter is at liberty to prove the truth of such asser- - tions under the general issue, since he had no oppor- tunity of pleading the matter specially-! (1) A member of parliament may be called upon to state \ whether another member took part in a par- ticular discussion, but cannot be examined as to what was said in the course of the debate. (2) In Curry v. Walter,§ a barrister was subpoenaed, to prove that he had made a motion in the court of King's Bench for a criminal information against the plaintiff, for publishing which the latter brought his action. Upon the trial, Eyre, C. J. was of opinion that it was improper to call a barrister as a witness to prove such a circumstance, but that the party * In Underwood v. Parkes, Str. 1200. t B. N. P. 10. t 5 Esp. R. 136. § 1 Esp. 450- (1) Wame v. Chadioell, 2 Starkie's Rep. 457. (2) In Coffin v. Coffin, 4 Mass. Rep. 1, a member of the House of Repre- sentatives of Massachusetts, was examined as to a certain conversation that took place in the House, between himself and another member, without any objection as to the nature of the testimony which he gave- •412 ought to prove it by other means ; that it was at the option of the counsel to give or withhold his testimony.(l) • (1) In an action by one military officer against another for a libel contained in a report made by the defendant as president of a Court of Inquiry, held that the report of a Court of Inquiry, or a copy of it obtained from the office of the Commander in Chief, could not be given in evidence by the plaintiff, because the interests of the State require that such documents should be kept inviolably secret, and that their disclosure, by production as evidence in Courts of Law, should not be compellable by a party, nor allowable by the judge — not on ac- count of any consideration merely affecting the rights of the parties, but because it is his duty judicially to exclude, as guardian of the public good, all such mat- ters as might tend to injure the general welfare — lest political secrets might thereby be betrayed to the injury of the state. Home v. Lord Bentinck, 8 Price Hep. 226- 4 Moore's Rep- 563. See also Anderson v. Hamilton, 8 Price, 244, n. Cooke v. Maxivell, 2 Starkie's Rep. 183, and Wyall v. Gore, Holt's N. P. Rep. 299, upon the subject of privileged communication's. U9 CHAPTER XXVIIL Proceedings after Verdict. Where the situation in which the defendant was acting at the time of speaking the words, or publish- ing the libel, was such as to rebut the implication of malice, and no express malice was proved, the court, it seems, will, after a verdict for the plaintiff, grant a new trial ; and this, even though the defend- ant knew that what he said was not strictly true, provided the variation from the truth be immaterial to the interest stated to have been affected.* But where the false assertion of the defendant is materi- al, no new trial will be granted, though the defend- ant had an interest in the subject matter affected.f Where the damages are so outrageous as to in- duce a strong presumption of partiality in the jury, a new trial will be granted in an action for slander, as well as in other cases, though in such an action the amount of the loss sustained from the injurious act depends upon circumstances of all others the - \ Burr- 2422. 1 See Smitb v. Spooner, p- 23G- 414 most appropriate for the calculation and assessment of a jury.(l) In the case of Lord Townsend v. Dr. Hughes,* which was an action for scandalum magnatum, the words were, " He is an unworthy man, and acts against law and reason." The jury found a verdict for the plaintiff with 4000/. damages. A new trial was moved for on these grounds : 1. Because the witnesses who proved the words were not persons of credit, and that, at the time when they were alleged to be spoken, many clergy- men were in company with the defendant, and heard no such words spoken. 2dly. Because one of the jury confessed that they gave such great damages to the plaintiff, not that he was damnified so much, but that he might have the greater opportunity to show himself noble in the resisting of them. Sdly. (Which was the principal reason,) because they were excessive. North, C. J. and Wyndham and Scroggs, Jus- tices, were of opinion, that no new trial ought to be granted ; that in a civil action, where the words themselves are actionable, without an averment of special damage, the jury ought to take into consi- deration the whole of the damage which the party might sustain, since he could not bring a fresh ac- tion ; that it was impossible for the court to tell what value to set upon the honour of the plaintiff; that * 2 Mod. 150. (1) Bliss v. Lewis, 2 Bay's Rep. 204. Coffin v. Coffin, 4 Mass. Rep. 1. Cole- ynan v. Southwick, 9 Johns. Rep. 45. Soulhwkky. Stevens, 10 Johns. Rep. 443. 410 the jury were, by law, judges of the damages ; and that it would be very inconvenient to examine upon what account they gave their verdict. Atkins, J. dissented from his brethren, conceiving that the court ought to compare the words with the damages, and to consider whether they bore any proportion. He also cited the case of Gouldston v. Wood, where the plaintiff, in an action on the case for calling him a bankrupt, recovered 1500/. da- mages, and the court granted a new trial, because the damages were excessive. In the same case it was said by Scroggs, J. that had the jury given but one penny damages, the plaintiff could not have obtained a new trial in hopes to increase them. When the plaintiff's title to recover does not ap- pear perfect upon the face of the record, the defend- ant may make his objection, either by moving in ar- rest of judgment within the usual time, or by bring- ing a writ of error. It has already been seen what are the rules to be observed in the construction of the defendant's ex- pressions ; that they are to be taken according to their plain and obvious meaning, and in the sense in which the hearers or readers understood them. After a verdict for the plaintiff, by which the de- fendant's act, meaning, and intention, have been as- certained to correspond with the statement upon the record, the courts will not listen to trial exceptions, but require the party objecting to point out* a sub- stantial objection upon the face of the proceedings. * See the opinions of Lord Ellenbovough, Mr. J. Le Blanc, Lord Mansfield. L. G. J. Parker, Lord Holt, C. J. Pratt, Mr. J. Buller, and C J. Pe Grey, as hereinbefore cited. 416 And, in general, where words may be taken in a double sense, the court, after a verdict, will always construe them in that sense which may support the verdict.* (1) Where there are several counts in a declaration, and entire damages are given, if one count be de- fective, judgment must be arrested for the whole, since it is impossible for the court to apportion the damages, and to say what abatement ought to be made in respect of the vicious count.f(2) And the same rule holds in case one count in the declaration contain words averred to have been spoken at different times. As, if at one time the defendant call the plaintiff " traitor," and at another time " arrant knave and cozener ;" and the plaintiff allege^ the words to have been spoken at different times, as several causes of action, if the jury assess the damages, generally, judgment will be arrested. But if actionable words are averred to have been spoken at the same time with others not actionable, the latter are considered§ as laid, merely in aggra- vation.^) In case the declaration consist of se- * 8 Mod. 240. t Holt v - Scholefield, 6 T. R. 694. J Cro. Eliz. 329. Cro. Car- 236, 237, 32S. 3 Wils. 185. § 3 Wils. 185. Lloyd v. Morris, Wiiies Rep. 443. Roll. Ab. 576. Moor r 142, 708. Cro. Eliz. 328. 789. 1 Buls. 37. (1) See Wilson v. Stephenson, 2 Price, 282. (2) 1 Binn. 397. Shaffer v. Kinlzer, 1 Binn. 537. Cheelham v. TUlolson, 5 Johns. Rep. 430- Hopkins v. Beedle, Lyle v. Clason, 1 Caines's Rep. 347, 583. Ckipmanv- Cooke, 2 Tyl. Rep. 465- The law is differently settled in South Carolina, Taylor v. Sturgingger, 2 Rep. Const. Court, 367- JIogg\- Wilson, 1 Nott & M'Cord's Rep. 216. Neal v. Leiois, 2 Bay's Rep. 204. (3) "The principle is, that if an action be brought for speaking words all at -'it- time, that is, nil in one miint. and there is a verdict for the plaintiff, though 417 vera! counts, in one of which the words are not ac- tionable, and no special damage be averred, or, sup- posing it to be averred, the finding of the jury as to the special damage be for the defendant, and as to the rest generally for the plaintiff, the judgment would be erroneous, and might be avoided b} r mo- tion, or reversed by writ of error.* Where, therefore, there is any doubt as to the validity of any one count, f it is a matter of pru- dence to have the damages assessed several!}', or to take a verdict upon the other counts only. (2) In; Rich v. Holt, the words laid down as spoken of the plaintiff at one time were, " You are a paltry lawyer, and use to play on both hands ;" at another, " He is a furtherer and maintainer of felonies." The defend- ant as to all the words, except those in italics, plead- ed not guilty, and as to those a justification. The plaintiff replied, ds injuria propria, fyc. The jury, upon the first issue, found the whole of the words, and assessed damages for the whole ; they likewise found the second issue for the plaintiff, assessing separate damages. The court, on motion in arrest of judgment, decided, that the words, " You are a paltry lawyer," were not actionable, but held that the plaintiff was entitled to judgment on the first issue. It should seem, however, that the plaintiff * See the cases, 2 Will- Saund. 171. d. Y Burnet v. Wells, 12 Mod. 420. ro. J. 267. some of the words will not maintain the action, yet if any of tbe words will, the damages may be given entirely ; for it shall be intended, that the damages were given for the words which are actionable, and that the others were inserted on'y for aggravation." Bloom et use. v. Bloom, 5 Serg. &-R&wle,393. Chipman i Cook, 2 Tyl. Rep. 45fi. (2) i Johns. Rep. 433 53 418 was not entitled to judgment under the first assess^ ment, supposing the decision to have been correct, that the words " You are a paltry lawyer" were not actionable. For the words to be considered under the first issue of not guilty were the two sets, "You are a paltry lawyer," and " He is a furtherer and main- tainor of felonies," the words in italics not coming under the consideration of the jury, since they were confessed ; the damages under the first assessment were, therefore, partly given for the words, " You are a paltry lawyer," which were held not action- able. It is said to be the practice in the Court of Com- mon Pleas, to award a venire de novo where judg- ment is arrested in such a case, upon payment of costs, in order that the plaintiff may sever his da- mages.* But in the case of Holt v. Scolefield,f in the King's Bench, a venire de novo was refused. In the case of Beevor v. Hides, % Bathurst, Justice, expressed an opinion, that where the words in one count were not actionable, yet that the postea might be amended, and a verdict as to those words en- tered for the defendant, upon the Judge's certifying that no evidence was given of them at the trial. But Lord Cambden said it would be very danger- ous, after a verdict of twelve men recorded by the Court, to refer to the Judge's notes in order to al- ter it, and he thought there was no precedent of such a case, and that the verdict could not be va- ried. * 2 Will. Saund. 171. d. Barnes, 478, 430. 6 T. R. 61. Sod vkl. Eddowes v. Hopkins. Pon^. I 2 Wils. 30& 419 The general practice however is, where general damages have been given, and it appears that the plaintiff is entitled to recover upon one count, though not upon others, either to amend the postea, which is done where it clearly appears that no evidence was given on the defective counts, or by awarding a v.f. de novo, -where such evidence has been given, in order that the plaintiff may ascertain to what da- mages he is entitledfor so much of his cause of com- plaint as will support damages. It does not distinct- ly appear, upon what principle actions for slander form an exception to the general rule. CHAPTER XXIX. Of Costs. By the 21 Jac. 1. c. 16. it is enacted, that "in all actions upon the case for slanderous words, to be sued or prosecuted in any of the courts of re- cord at Westminster, or in any court whatsoever, that hath power to hold plea of the same ; if the jury, upon the trial of the issue in such action, or the jury that shall inquire of the damages, do find or assess the damages under forty shillings, then the plaintiff or plaintiffs in such action shall have and recover only so much costs as the damages so given or assessed amount unto, without any further increase of the same; any law, statute, or usage, to the contrary notwithstanding." This statute has been held not to extend to ac- tions of scandalum, nor to those where the special damage is the gist of the action, as in case of slander of title,* nor to actions for libel.f(l) * 2 BI. 1062. 2. Ld. Raym. 1588. Prac Reg. 111. Cro. Car. 140- Jon. 196. 2 Ld. Ray. 831. 1 Salk- 206. 7 Mod. 129. Willes, 433. Barnes, 132. 2 H. B. 531. 3 Burr. 1688. Barnes, 142. t Hall v. Warner, T. 24 G. 3. Tidd, 861. (1) Act of 27th Marcb, 1713, (1 Smith's Laws of Pennsylvania,) ace. See also Stuart y. Harkins, 3 Binn. 321- Dwindells v- rfikin, 2 Tyl- Rep. 78. JV a ~ '.n-mnnv. Van Benscotten, 13 Johns, Hep. 425 421 But where the words are iu themselves actiona- ble, the case is within the statute, though special damage be averred ; for the plaintiff is at all events entitled to a verdict for the actionable words, with- out proving the special damage ; and if he were in such case entitled to costs, where the damages were under 40 shillings, the statute might in all cases be evaded by a suggestion of special damage. This construction is, however, not free from inconveni- ence, since where special damage has actually ac- crued, the circumstance of the words being in them- selves actionable, may operate to the plaintiffs dis- advantage, and he may be placed in a worse situa- tion, by that very presumption of law which was intended for his advantage. And where it clearly appears, as by a special ver- dict and separate assessment, that the special da- mage was actually considered by the jury, it seems reasonable that the plaintiff should have full costs, though the damages do not reach the statutable limit.* Where the words are actionable, and other mat- ter likewise actionable is stated as a distinct injury, and not as a mere consequence of the words, the plaintiff is entitled to full costs; as where the de- claration, after stating the words imputing felony, averred that the defendant procured the plaintiff to be imprisoned.! Where there are different counts in the same de- claration, some containing words not actionable, and others containing actionable ones, and special da- * 1 Vent. 93. 1 Mod. 31- 2 Keb. 589- J f Str. 645. Ld. Ray. 1588. Cro. Car- 163. Cro. Car. 307. 42^ mage be laid referring to all the counts, then the plaintiff will, under a general verdict, be entitled to full costs. For some part of the sum assessed must have been given in respect of the consequential da- mage,* The statute extends to damages found under a writ of inquiry. f The 22d and 23d C. 2. c. 9. is very general in its terms, which comprehend " all personal ac- tions." By this statute it is enacted, that in such actions, wherein the judge at the trial of the cause shall not find and certify under his hand, upon the back of the record, that an assault and battery was sufficiently proved by the plaintiff against the de- fendant, or that the freehold or title of the land men- tioned in the declaration was chiefly in question ; the plaintiff, in case the jury shall find the damages to be under the value of 40 shillings, shall not re- cover more costs than damages. At first it seems, that the statute was held to extend to all personal actions ;| but it appears now settled, that it is con- fined to actions of assault and battery, and for local trespasses, wherein it may be possible for the Judge to certify, that the freehold or title to the land was chiefly in question. § This statute, therefore, does not affect the present class of actions, unless indeed some cases may be imagined, where the title to land may by possibility come in question ; as if the plaintiff should declare * 2H. B. 531. t 2Str. 934. 2Keb. 849. 3 Keb. 121.247- § See Tidd's Prac. (4 Edn.) 861. where the authorities on the subject are Collected. 423 against the defendant for having slandered his title, and the defendant plead a special justification, aver- ring himself to be entitled to the freehold. And since the case of slander is not considered within the latter statute, a justification does not en- title the plaintiff to full costs, where the damages are below 40 shillings.* * Halford v. Smith, 4 East, 567. Barnes, 128. 2 Wils. 158; 424 CHAPTER XXX. Of the Writ of Prohibition. A prohibition to the Ecclesiastical Court is grounded either upon a defect in their jurisdiction, or upon some irregularity in the course of their pro- ceedings. The power of these courts, in cases of defamation, was expressly recognised by 13 E. 1. st. 4. "In cause of defamation, it hath been granted already, that it shall be tried in a Spiritual Court, when money is not demanded, but a thing done for punish- ment of sin ; in which case the spiritual Judge shall have power to take knowledge, notwithstanding the king's prohibition." Whence it appears that these courts, before the passing of the statute, had the same jurisdiction ; and also that the extent of the jurisdiction was to deal out punishments pro salute animce^ and not to award any temporal compensation in the way of da- mages for loss of character.! And the latter posi- tion appears still more clearly from the st. of Arti- culi Cleri ;t which enacts that, " In defamations, * 2 Inst. 492. t lb- X 9 Edw- 2. c. 4- 425 prelates shall correct^ the king's prohibition notwith- standing ; first enjoining a penance corporal, which, if the offender will redeem, the prelate may freely receive the money, though the king's prohibition be showed." Under these statutes it has been held, that no suit is maintainable in the Ecclesiastical Courts for any slander* not of spiritual cognizance. So that an imputation of perjury is not a ground for proceeding in the Spiritual Court. In the instance cited, the party has his remedy- by action at Common Law ; but provided the slan- der do not impute any offence cognizable by the Spiritual Court, no punishment can be inflicted for it by such court, though the slander should not be a ground of action at Common Law.f Thus a suit was instituted in the Spiritual Court for calling the plaintiff a false knave, and a prohibition was grant- ed. And it was said,t that though these words do not imply any offence, of which the temporal law takes cognizance, yet being also not of spiritual cognizance, the Temporal Courts will grant a pro- hibition that the Ecclesiastical Courts§ may not ex- ceed their jurisdiction. And the same rule holds though the words be spoken of an ecclesiastical person. The words spoken of a parson were, " IIe|j has no sense ; he is a dunce or blockhead, and deserves to have his gown stripped over his ears." It was held that the * 2 Bum. Ecc. L. 120. LJ. Ray. 212- 397. God. 517. 2 Salk. C92- )! Mod- 112- t 2 Ins- 493- I Ibid. § 2 IffS- 69*. || Oxter v. Parsons, So!k. C94- ->4 120 defendant was not punishable in the Spiritual Court ; for a parson is not punishable in that court for being a knave or a blockhead more than any other man ; and it was said, that if the parson should be deprived for want of learning, he must bring his action at Common Law. So it has been held, that to call a dean " a knave," was not suable in the Spiritual Court.* But where wordsf spoken of a parson impute that which, if true, would subject him to censure in the Ecclesiastical Court, he is entitled to sue there. Where words of spiritual cognizance are coupled with terms of abuse, which are not in themselves actionable in the temporal courts, no prohibition will be granted \\ so that no prohibition lies in a suit for the words, " He is a cuckoldy knave ;"§ and the rule is the same though it should be suggested that the words were spoken through heat and passion. || Where the words themselves are of mere spiritual cognizance, but special damage ensues, for which an action is brought in a temporal court, it seems no prohibition is grantable. In the case of Evans v. Brown, % where the words were of mere spiritual cognizance, a prohibition was moved for upon a suggestion that the plaintiff be- low had brought an action at law for the words, grounded upon special damage sustained by reason * Holt- R. 593. Nelson v. Hawkins, dean of Chichester. t Clark v. Price, 11 Mod. 208. I 2 Salk. 692- ,§ Gobbett's case, Cro- Car. 339. they cannot be criminal, however erroneous '* m tratiou of the existing constitution, and may affect them in their public character, or as individuals ; these will be considered, first as they relate per- sonally to the king and his title. Words* spoken, have frequently been deemed overt acts of treason for which the speakers have suffered. Two persons were executed for ungu tried expressions in the reign of Edward IV. the one a citizen, who said he would make his son heir to the Crown (alluding to the sign of the house in which he lived) — the other, a gentleman, whose favourite buck the king killed in hunting, where- upon the owner wished it horns and all in the belly of him who had counselled the king to kill it, and the king being his own counsellor on the occasion, the words were construed into a treasonable expression against the king himself. But in less arbitrary times, the legality of such proceedings has been much questioned ; and if the position that words may constitute an overt act of treason may not be considered as totally exploded, the rigour of the doctrine has at all events been greatly mitigated. It has been most humanely ob- served,! that vords ?nay be spoken in heat, with- out any intention ; or be mistaken, perverted, or misremembered by the hearer; their meaning de- pends always on their connexion with other words and things ; they may signify differently even ac- cording to the tone of voice with which they are delivered ; and sometimes silence is more expres- * Hale's PI. Cro. C. 115. Sec also Hugh Pine's case, Cro. Car. 117. wire re other capital convictions for speaking words in that reign are cited. * 4 Black. Comm. 79. 58 iSB sive than any discourse. Since, therefore, there can he nothing more equivocal and ambiguous than words, it would indeed be unreasonable to make them amount to high treason. Of this opinion were Stamford, Ld. Coke, Ld. Hale,* Sir Michael Foster,! and Sir William Blackstone,t whose opi- nion has just been cited ; and in the reign of Charles the First, some very atrocious words hav- ing been spoken concerning the king by one Pine, all the Judges certified, that " Though the words§ were as wicked as they might be, yet that they were no treason ; for unless it be by some particular statute, no words will be treason." It seems clear|| however, that words joined to an act may explain it, and that words of persua- sion to kill the king, or manifesting an agreement, or consultation, or direction, to that purpose, are sufficient overt acts of compassing his death. It has frequently been held, that words committed to print or writing, and published, amount to an overt act of treason, to prove the compassing the king's^ death ; but even in such case it seems that a publica- tion is necessary, though in arbitrary times, the con- trary has been adjudged, particularly in the instances of Peachum,** a clergyman, and of Algernon Syd- ney ;ft the former of whom was convicted for trea- sonable passages in a sermon never preached, and * 1 Hale, 11). 323. | Post. Cr. L. 200. { 4 BL Com. 80. § Cro. Car. 125. See Haw. PI. Cr- c. 17. s. 32, 33, 34, 35, &c. Fost. Cr. L. 200. 1 Hale, 111. 323. || Haw. PI. Cr. c 17. s. 37. Fost. 202. IT 2 Hoi. 89, 90. Fos. 346. 1 1 Modern, 3§8. 1 St. Tr. 977. 3 St. Tr- 228- 5Bac- Abr- 117- ** Cro- Car. 125. tt Foster, 19* 459 the latter for some speculative opinions contained in papers discovered in his private closet ; but so unsatisfactory did the grounds of these convictions appear, that Peachum was not executed, and the attainder of 8) dney was reversed. A contempt of the king's person may be by im- puting to him the want of capacity or integrity,* by charging him with a breach of his coronation oath,| cursing him, wishing him ill, spreading false rumours concerning his intentions,! — or, in short, b} r mail eiously asserting any thing concerning him, winch tends to lessen him in the esteem of his subjects, weaken his government, or raise jealousies between him and his people. These are considered as high contempts and misprisions, and are punishable as misdemeanors at Common Law. So to deny the King's title to the crown, or to raise doubts concerning it, in unadvised discourse, would amount to a contempt at Common Law ; and to do it deliberately and advisedly, if it did not con- stitute treason, would at least subject the offender§ to the penalties of a praemunire. In the reign of Elizabeth, || all the Justices and Barons o( the Coif assembled at Sergeant's-Inn, concerning a book, devised by one Brown, contain- ing the following passage, " Every preacher run- neth to the Queen now, as though he were to be directed by her to tarry for refon nations to be had for matters of the church. Tf the Magistrates will agree, all is well ; — if they will not, they are not of ■ Haw. Fl. Cr. e. 23. 4 Bl. Comm. 123. j Noy, 105. Haw. PI. Cr. c 23. s- 5. \ Sec 3 E. 1. c. 34. * B!«ck. Comm. 123 Haw. PI? Cr. c. 17. a. 35. '! Dip;- T.. 1 • 460 the church, and it is a shame to tarry tor them, or for a parliament, or proclamation " And it was held by all, that this was a moving of insurrection and sedition.* In the Digestf of the Law of Libel it is said, that at the same meeting, Sir Edmund Anderson, Ch. J. of the Common Pleas, propounded the following case to his brethren : — A person had caused the arms of the queen to be painted upon a post in a church in Suffolk, with this inscription painted near them, " I know thy works, that thou art neither hot nor cold ; I would thou wert either hot or cold ; therefore, because thou art lukewarm, it will come to pass that I will spew thee out of my mouth." But the Justices came to no resolution. John Wilkes:}: was convicted upon an information filed by the Attorney-General, § for printing and publishing a malicious libel, entitled The North Briton, No. 45, tending to vilify and traduce the King and his government — to impeach and disparage his veracity and honour — and to represent and make it believed that his Majesty's most gracious speech, delivered from his throne to the parliament, on Tues- day the 19th day of April, 1763, contained many falsities and gross impositions upon the public ; and that his Majesty had suffered the honour and dignity of his crown to be sunk and prostituted, and the in- * The question proposed was, whether the publication was an offence within the 23d Eliz. c. 2. which was a temporary stat. ; but under the construction which the Judges put upon this book, it was a libel at Common Law t D. L. L. 66- Sav. 49. X Dig. L. L. 69. Informations were also filed aeainst Kearsley and Wil- liams, for printing and publishing the same. § Charles Yorke, Esq 4bl terests of his subjects and allies to be treacherously betrayed ; and also to render the king and his go- vernment contemptible and odious, and to excite tu- mults, commotions, and insurrections, &c. &c. An information* was filed by the Attorney-Gene- ral against the printer and proprietor of the Morn- ing Chronicle newspaper, for publishing the follow- ing paragraph, with a malicious intent to alienate from the King the affections of his subjects :— " What a crowd of blessings rush upon one's mind, that might be bestowed upon the country, in the event of a total change of system. Of all monarchs, indeed, since the revolution, the successor of George the Third will have the finest opportunity of be- coming nobly popular." Lord Ellenborough, C. J. in summing up to the jury, observed, " The first sentence admits of an in- nocent interpretation—' What a crowd of blessings rush upon one's mind, that might be bestowed upon the country, in the event of a total change of system.' The fair meaning of the expression, ' change of oyo . tern,' I think, is a change of political system, not a change in the frame of the established government, but in the measures of policy which have been for some time pursued. By total change ot system, is certainly not meant subversion or demolition ; tor the descent of the crown to the successor ot his Majesty is mentioned immediately alter. The writer goes on to speak of the blessings that may be enjoyed upon the accession of the Prince of Wales; and thereiore cannot be understood to * 1 Camp. Rep. 4b2 allude to a change inconsistent with the full vigour of the monarchical part of the constitution. Now I do not know that merely saying, there would be blessings from a change of system, without reference to the period at which they niay be expected, is ex- pressing a wish or a sentiment that may not be in- nocently expressed in reviewing the political con- dition of the country. The information treats this as a libel on the person of his Majesty, and his personal administration of the government of the country. But there may be error in the present system, without any vicious motives, and with the greatest virtues, on the part of the reigning sove- reign. He may be misled by the ministers he em- ploys, and a change of system may be desirable from their faults. He may himself, notwithstanding the utmost solicitude for the happiness of his people, take an erroneous view of some great question of policy, either foreign or domestic. I know of but one Being to whom error may not be imputed. If a person who admits the wisdom and virtues of his Majesty, laments that in the exercise of these, he has taken an unfortunate and erroneous view of the interests of his dominions, I am nqt prepared to say that this tends to degrade his Majesty, or to alienate the affection of his subjects. 1 am not prepared to say that this is libellous : but it must be with perfect decency and respect, and without any imputation of bad motives. (Jo one step further, and say or insinuate, that his Majesty acts from any partial or corrupt view, or with an intention to favour or op- press any individual or class of men, and it would become most libellous. However, merely to rep- resent that an erroneous system of government ob- tains under his Majesty's reign, I am not prepared to say, exceeds the freedom of discussion on poli- tical subjects which the law permits Then comes the next sentence : ' Of all the Monarchs, indeed, since the revolution, the successor of George the Third will have the finest opportunity of becoming nobly popular.' This is more equivocal, and it will be for you, Gentlemen of the Jury, to determine what is the fair import of the words employed. Formerly it was the practice to say, that words were to be taken in the more lenient sense ; but that doctrine is now exploded ; they are not to be taken in the more lenient or more severe sense, but in the sense which fairly belongs to them, and which they were intended to convey. Now, do these words mean, that his Majesty is actuated by im- proper motives ? or that his successor may render himself nobly popular by taking a more lively in- terest in the welfare of his subjects? Such senti- ments, as it would be most mischievous, so it would be most criminal to propagate. But if the passage only meant that his Majesty, during his reign, or any length of time, may have taken an imperfect view of the interests of the country, either respecting our foreign relations, or the system of our internal po- licy ; if it imputes nothing but honest error, without moral blame, I am not prepared to say that it is a libel. The extract read at the request of the de- fendants, does seem to me too remote, in point of situation, in the newspaper, to have any material bearing on the paragraph in question. If it had formed a part of the same discussion, it must car- iU4 tainly have tended strongly to show the innocence of the whole. It speaks of that which every body in his Majesty's dominions knows — his Majesty's solicitude for the happiness of his people ; and it expresses a respectful regard for his paternal vir- tues. What connexion it has with the passage set out in the information, it is for you to determine. Taking that passage substantively, and by itself, it is a matter, I think, somewhat doubtful, whether the writer meant to calumniate the person and character of our august Sovereign. If you are satisfied that this was his intention, by the application of your understandings honestly and fairly to the words complained of, and you think they cannot properly be interpreted by the extract which has been read from the same paper, you will find the defendants guilty. But if, looking at the obnoxious paragraph by itself, you are persuaded that it betrays no such intention ; or if, feeling yourselves warranted to im- port into your consideration of it a passage con- nected with the subject, though considerably distant in place, and disjoined by other matter, you infer from that connexion that this was written without any purpose to calumniate the personal government of his Majesty, and render it odious to his people, you will find the defendants not guilty. The ques- tion of intention is for your c onsideration. You will not distort the words, but give them their applica- tion and meaning, as they impress your minds. What appears to me most material is the substantive paragraph itself; and if you consider it as meant to represent that the reign of his Majesty is the only thing interposed between the subjects of this countn 46i> and the possession of great blessings, which are likely to be enjoyed in the reign of his successor, and thus to render his Majesty's administration of his government odious, it is a calumnious paragraph, and to be dealt with as a libel. If, on the contrary, you do not see that it means, distinctly, according to your reasoning, to impute any purposed mal-ad- ministration to his majesty or those acting under him, but may be fairly construed an expression of regret that an erroneous view has been taken of public affairs, I am not prepared to say that it is a libel. There have been errors in the administration of the most enlightened men. 1 will take the in- stance of a man, who for a time administered the concerns of this country with great ability, although he gained his elevation with great crime, I mean Oliver Cromwell. We are at this moment suffering from a most erroneous principle of his government, in turning the balance of power against the Spanish monarchy, in favour of the house of Bourbon. He thereby laid the foundation of that ascendency, which, unfortunately for all mankind, France has since obtained in # the affairs of Europe. The great- est monarchs who have ever reigned — monarchs who have felt the most anxious solicitude for the welfare of the country, and who have in some respects been the authors of the highest blessings to their sub- jects, have erred ; but could a simple expression of regret for any error they had committed, or an ear- nest wish to see that error corrected, be considered as disparaging them, or tending to endanger their government? Gentlemen, with these directions, the whole subject is for your consideration. Apply 59 466 your minds candidly and uprightly to the meaning of the passage in question : distort no part of it for one purpose or another, and let your verdict be the result of your fair and deliberate judgment." (1) The King's character and title are further guarded by several legislative provisions. The 13th of Ed. 1. c. 34. enacts, that none be so hardy to tell or pub- lish any false news or tales, whereby discord, or oc- casion of discord, may grow between the King and his people, or the great men of the realm.* By 6 Ann. c. 7. s. 7. it is made high treason to affirm, by writing or printing, that the King is not the lawful and rightful King of the realm, or that any other person has title to the same, otherwise than according to the Bill of Rights,! the Act of Settlement,! and the Act of Union, or that Parlia- ment has not authority to limit the descent of the crown. To assert that the Common Laws of the realm, not altered by Parliament, ought not to direct the right to the crown of England, is a misdemeanor, and punishable with forfeiture o£ goods and chat- tels^ • In the reign of Ed, 6. it was, by an act which ex- pired with that Kmg, made high treason to assert in print or writing, that he was not the supreme head of the church.!! * Sec Cro. J. 3S. and the case of A. Scott, for publishing false news. O. B. June Sess. 1788. Haw. P. C. c. 23. s. 4. f 1 W. & M. st. 2. c. 2. s. 9. J 12 & 13 W. 3. c. 2. § 13 Eliz. c- 1. jf Sec also St. 23 Eliz. c. 2. which expired with that sovereign. (1) See and consider the Kins v. Harvey et aU 3 Dowl. & Kyi. 464- 4t>7 By the d6th Geo. 3. c. 7. it is enacted, that if any person shall imagine or intend death, destruction, or any bodily harm to the person of the King, or to depose him, or to levy war, in order by force to compel him to change his measures or counsels, &c. and shall express and declare such intentions bj- printing, ivritinv, or any overt act, he shall suffer death as a traitor. And if any one by writing, printing, preaching, or other speaking, shall use any words or sentences to incite the people to hatred and contempt of the King, or of the government and constitution of this realm, he shall receive the punishment of a high mis- demeanor ; that is, fine, imprisonment, and pillory, and for a second offence, he is subject to a similar punishment, or transportation for seven years, at the discretion of the Court. The time of prosecu- tion under the act is limited to six months, and the statute does not affect any prosecution at Common Law, unless a prosecution be previously commenced under the statute. With regard to contempts committed against the person. or title of the King, more perhaps has been said than was called for by any thing requiring ex- planation. Where the subject is convinced, that a particular measure has been adopted by any branch of government calculated to produce mischief, it is a duty which he owes his country to point it out ; but where the supposed error is connected with the personal character of the sovereign, he is bound by the plainest rules of common decency, to make his representation in language the n^st moderate and respectful. Any personal reaction is sufficient to 4(58 render the actor criminal ; for it would be strange indeed, if that might be said or written of the mo- narch with impunity, which it would be criminal to pronounce of one of his nobles, or to write concern- ing the meanest of his subjects. Since, in contemplation of law, the affairs of the state are administered by the King, reflections upon the administration of government, or upon the ca- pacities of those to whom it is immediately intrust- ed, are, by virtue of a similar construction, a con- tempt of the King himself. It has been said by a high authority,* that " every freeman has an undoubted right to lay what he pleases before the public — to forbid this is to de- stroy the freedom of the press ; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity ."(I) This privilege necessarily includes candid com- ments upon public affairs, and the mode in which they are conducted ; since such cannot be consider- ed in the abstract as falling within the meaning of the terms, improper, mischievous, and illegal. On the trial of James Perry and another,-! on an information for a libel, the Attorney-general, in his opening to the Jury, observed, " From the Bench you will hear laid down, from the most respectable authority, the law which you are to apply to those facts. The right of every man to represent what * 4B1- Comm. 151. t Before Ld. Kenyon, 1793. See Itidgway's Collection, &c. 2 vol. 37 1. (I) Retpublica v. Dennie, 4 Yeat.es, 2G7. See post, note, [1.] 409 lie may conceive to be an abuse or grievance in the government of the country, if his intention in so doing be honest, and the statement made upon fair and open grounds, can never for a moment be ques- tioned. I shall never think it my duty to prosecute any person for writing, printing, and publishing, fair and candid opinions on the system of the govern- ment and constitution of this country, nor for point- ing out what he may honestly conceive to be griev- ances, nor for proposing legal means of redress." When measures are fairly canvassed, and their de- fects, real or imaginary, pointed out with coolness and temper, it does not seem to have been contend- ed, in modern times, that the line of duty has been transgressed, though the discussion may tend to prove the authors of those measures to be ill quali- fied for their situations. Party heat and zeal will overleap those bounds, or any, indeed, which decen- cy mighl prescribe ; and the thirst after honours and wealth, and, frequently, motives still more repre- hensible, produce personal attacks upon character, — misrepresentation or exaggerated statements of matters of fact, — or downright lies fabricated to an- swer particular ends, and illustrated with inflamma- tory comments. To prevent all excesses of this nature, without destroying at the same time the liberty of the press, would be as impracticable as to root out from human nature the passions which gave them birth ; but though it may not be politic to interfere in every in- stance where the bounds of rational discussion may have been overstepped, it seems clear that any such excess is illegal. 470 The test of intrinsic illegality must, in this as in other cases, be decided by the answer to the ques- tion, " Has the communication a plain tendency to produce public mischief, by perverting the mind of the subject, and creating a general dissatisfaction toward government'?" This tendency must be as- certained by a number of circumstances capable of infinite variety ; it is evidenced by the wilful misre- presentation or exaggerated account of facts which do exist, or the assertion of those which do not, mingled with inflammatory comments, addressed to the passions of men and not to their reason, tend- ing to seduce the minds of the multitude, to irritate and inflame them. It may be said, where is the line to be drawn? Discontent may be produced by a fair statement of facts, inasmuch as it is very possible for an imbecile or corrupt man to be employed in the administra- tion of public affairs. To this it may be replied, that to render the author criminal, his publication must have proceeded from a malicious mind, bent not upon making a fair communication for the pur- pose of exposing bad measures, but for the sake of exciting tumult and disaffection. The Judge, who presides at the trial, is bound by the law of the land, to deliver his opinion to the Jury upon the quality and tendency of the publication ; and the defendant cannot be convicted, unless that Jury be convinced of the unfairness, that is, of the malice of the representation. It would exceed the proposed limits of this trea- tise, to cite cases in detail under this division; every case, indeed, falling within it, is too inti- 471 mately involved in its particular circumstances to admit of any abstract less general thanthe elements which have been laid down as essential to the libel- lous quality, the plain intrinsic tendency* of the communication to produce public disorder, and the malicious intention of its author. A person delivered! a ticket up to the minister after a sermon, wherein he desired him to take no- tice, that offences passed now without control from the civil magistrate, and to quicken the civil ma- gistrate to do his duty, &c. This was held to be a libel, though no magistrates in particular were mentioned, and though it was not averred that the magistrates suffered these vices knowingly. And the ground of the conviction has been stated to be, thai general misrepresentations of the government or state of the nation, or mutinous hints, tend to excite discontent and sedition in the people, and that the generality of the reflection made it the more dangerous, since it had a bad effect on the whole frame of government 4 Lawrence was convicted§ upon an information charging him with having sent a letter to Sir John Pio-ot, desiring him to moderate his zeal, for that the King (meaning King James II.) would soon be restored ; and that for further satisfaction herein, he would soon hear that many lords would repair * See R. v. Beare, 12 Mod. 221. Ld. Ray. 418. Dig. L. L. 19- 121. R. v Bedford, 2 Str. 789. Rex. v. Owen, K- B. MSS. Dig. L. L. 67. R. v. Lawrence, 12 Mod. 311. R- v. Bl.ss, clerk, K. B. MSS. 5 G. 1- Dig. L, L. 122. t Sid. 219- Keb. 773. Bac Ab. tit. Libel, 4S0. 16 Car. 2. Bi 9 L L. 5. § 12 Mod- 311. Dis- L. L. 121 472 to him to France, what to do he might guess. The defendant was fined forty marks. John Tutchin was convicted* upon an information for publishing the several libels containing the fol- lowing paragraphs : " If we may judge by our national miscariages, perhaps no nation in Europe has felt the influence of French gold more than England ; and worthy it is our greatest lamentation, that our dear country should be thus weakened by men of mercenary principles, when countries, inferior to us in strength and riches, are secured from attempts of this na- ture only by the fidelity of their people. What is the reason that French gold has not affected Hol- land as well as England, but that their ministry is such as is entirely in the interest of their country, and altogether incorruptible. They prefer men that are knowing in their posts, and are active in business, when in England we find out offices for men, and not men for offices. By this, and by pre- ferring men by interest and favour, have the excise, the customs, and other branches of the revenue, intolerably sunk, and by this means has the navy of England, our chief support, been hitherto perfectly bewitched. And can Lewis spend his money bet- ter, than in getting men into office in England, who are either false or ignorant in the business, or who are his friends ?" Ld. Holt C. J. in summing up to the Jury, ob- served, " To say that corrupt officers are appointed to administer affairs is certainly a reflection on the * 5St.fr. 532. 3 Ann. 1704. 1-7.5 i-o\ enmient. If persons should "not be called to account for possessing the people with an ill opi- nion of the government, no government can subsist; nothing can be worse to any government, than to endeavour to procure animosities as to the manage- ment of it; this has always been looked upon as a crime, and no government can be safe unless it be punished. Now you are to consider, whether these words I have read to you, do not tend to beget an ill opinion of the administration of the govern- ment." John Clarke* was found guilty upon an' informa- tion, charging him with having printed and pub- lished a malicious libel, intituled " Mist's Weekly Journal," containing false, malicious, and seditious reflections on his late and present majesty, by draw- ing odious parallels, and thereby maliciously and falsely insinuating our government to be tyrannical, and the ministry corrupt and abominable. Richard Franklinf was found guilty upon an in- formation, charging him with having printed and published a malicious libel, intituled "No. 235. The Country Journal, or the Craftsman," contain- ing an extract from a private letter from the Hague, with intent {inter alia) to scandalize and vilify the administration of his Majesty's government of this kingdom, and his principal officers and ministers of state, and to represent his said officers and minis- ters of state as persons of no integrity and ability, and as enemies to the public good of this kingdom. William Cobbett^ was tried upon an informa- • 9 St.Tr. 273. Feb. 25, 1729- t 9 St. Tr. 255. ? F». T. 18Q*. m 474 tion for publishing a libel in the Weekly Register, entitled "Juverna." Ld. Ellenborough, C.J. in summing up to the jmy, observed, "It is no new doctrine, that if a publication be calculated to alien- ate the affections of the people by bringing the government into disesteem, whether the expedient be by ridicule or obloquy, the person, so conduct- ing himself, is exposed to the inflictions of the law. It is a crime ; it has ever been considered as a crime, whether wrapt in one- form or another. The case of the King v. Tutchin has removed all ambiguity from the question ; and although at the period when that case was decided great political conten- tions existed, the matter was not again brought be- fore the Judges of the Court upon any application for a new trial." In a subsequent part of the same charge, his Lordship added, " It has been observed, that it is the right of the British subject to exhibit the folly or imbecility of the members of the government. But, gentlemen, we must confine ourselves within limits. If in so doing individual feelings are vio- lated, there the line of interdiction begins, and the offence becomes the subject of penal visita- tion."* In all these cases it may be laid down as a ge- neral rule, that though the discussion of politi- * Note. For other illustrations of this subject, see the cases of Ld. Balme- rino, 10 Car. St. Tr. Seven Bishops, 4 Jac. 2 St. Tr. Brewster,. 15 Car. 9, St. Tr. Brookes, 15 Car. 2. St. Tr. Henry Carr, 31 Car. 2. St. Tr. Fitz- gerald, 1 Ann. Salk. 401. Johnson, 2 Ja. 2. Show. Rep. 4S8. Leighton, 6 Car. 1. St. Tr. Owen, 25 Geo- 2- Dig. L. L. 68. Pain, Salk. 281. 5 Mod. 163. Prynne, Sid. 219. Keb. 773. 16 Car. 2. St. Tr. Sacheverell, Dr. St. Tr. and the more modern cases of Finnerty, Lovel, Drakard, Cobbett, and Gale Jones. 475 cal measures is innocent in the abstract, their dis- cussion must not be made a cloak for an attack upon private character, which is of itself a substan- tive injuiy, independent of its political connexion. It maybe asked, how can members of the govern- ment be blamed without an injury to their feelings, bad measures can be derived but from one or both of two sources, knavery and folly. The plain and obvious answer seems to be, that as far as the pre- judice to private character or feelings results simply from the exposure of an absurd and inefficient mea- sure, the author must be content to bear with it ; he has made himself in some sort publici juris , by un- dertaking to act in a public capacity ; and, there- fore, has no right to complain on account of any personal inconvenience, which may accrue from a fair comment upon his execution of that duty. He seems to stand in a situation similar to that of the author of a book, who, as far as he identifies him- self with his work, is the fair object of criticism, however disagreeable it may prove to his private feelings. The line of distinction seems plain between a fair discussion of the merits of any measure adopted by government, and an attack upon the private characters of those who proposed it ; if the measure be bad, policy requires that the error should be made public, but the same policy can never justify either general or particular imputations on the in- tegrity of individuals ; if there be ground for such a charge the guilty party is amenable to the laws, and it is the duty of the accuser to apply to the proper tribunal, and not to allow the crimination to rest on 476 his own bare assertion : if the fact be doubtful, the necessity for judicial examination, in opposition to bare assertion, is still stronger: if the charge be a mere fiction, the calumniator attempts to impose upon and injure his country, by destroying the characters of those who are watching over its inter- ests, — an act of guilt, the malignity of which can scarcely be exceeded. Next, as to publications affecting the adminis- tration of justice. Contempts against the King's Judges, and scan- dalous reflections on their proceedings, fall within the same consideration with the former class of of- fences, since nothing tends more to disturb public order than to infuse suspicions concerning the ad- ministration of justice. Offences of this nature may consist either in the more gross violation of decency, by making use of contumelious and insolent language in the face of the court, or in the publishing of reflections on the purity of its proceedings, tending to obstruct the course of justice. Generally, any contemptuous or contumelious words, when spoken to the Judges of any courts, in the execution of their office, are indictable.* As if one give the lief to a Judge of a Court Leet, in the face of the court ; or, being admonished by him to pull off his hat, say,t " I do not value what you can do;" or tell him, in the face of the court, that * 1 Sid- 144. Str. 420. 2 Rol. Ab. 73. t Ow. 113. Mo. 470. Cro. Eliz. 581. - I Ray. 78- 1 Keb. 451. 465, 477 he is forsworn,* or call him a fool,f or say, " If I cannot have justice here, I will have it elsewhere."? When reflecting words are spoken of the Judges of the superior Courts, at Westminster, the speaker is indictable both at Common Law and under the statutes of Scandalum Magnatum, whether the words relate to their office or not. But it seems that no indictment lies for con- temptuous words spoken either of or to inferior Magistrates, unless they be in the actual execution of their duty, or at least unless the words affect them directly in their office, though it may be good cause for binding the offender to his good beha- viour^ Next, where the publication reflects upon the ad- ministration of justice. Hurry y had summoned Watson, who was a mem- ber of a corporate body, into a Court of Requests, to recover the sum of 11*. Hurry was afterward indicted by Watson for perjury, alleged to have been committed in the Court of Requests, and *'"f ^quit- ted on the merits. Hurry then brought an action against Watson, for a malicious prosecution, in which he recovered 3000/. damages, and the court re- fused to set aside the verdict. A majority of the corporation afterward entered a resolution in their books, asserting, " that Mr. Watson had been ac- tuated by motives of public justice" and voted him the sum of 2300/. An information was applied for, one ground for * 2 Rol. Ab. 78- t Cro. Eliz. 78. \ 1 Sid. 144. Keb. 508.. § 6 Mod. 125. Haw. PI. C. c. 21. s. 13. [post, note 33-1 The King v. Watson and others, 2 T. R. 193 ! 47S which was, that the terms of the order constituted a high contempt of the administration of justice. On granting the information, Ashhurst, J. observed, " The assertion that he was actuated by motives of public justice, carries with it an imputation on the public justice of the country ; for if these were his only motives, then the verdict must be wrong." And Builer, Justice, " Nothing can be of greater importance to the welfare of the public than to put a stop to the animadversions and censures which are so frequently made upon courts of justice in this country ; they can be of no service, and may be of the most mischievous consequences. Cases may happen in which the Judge and Jury may be mistaken : when they are, the law has afforded a remedy, and the party injured is entitled to pursue every method which the law allows to correct the mistake ; but when a person has recourse to a wri- ting like the present, by publications in print, or by any other means, to calumniate the proceedings of a efccourtjf justice, the obvious tendency of it is to weaken fhe" administration of justice, and in conse- quence to sap the very foundation of the constitution itself." An information had been hied* by the Attorney- general against White and others, for an abusive comment on the conduct of a Judge and Jury, by whom a person had lately been tried for murder, and acquitted. Upon the trial of the defendants for the libel, Mr. Justice Grose informed the jury, that in case they were of opinion that the publication * Sittings after Easter Term, 43 Geo. 3d. 479 had been made, not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into hatred and contempt the adminis- tration of justice in the country, they ought to find the defendants* guilty. The same policy which prohibits seditious com- ments on the King's conduct and government, ex- tends, on the same grounds, to similar reflections on the proceedings of the two Houses of Parliament. These bodies, so essential a part of the constitu- tion, are at all events entitled to reverence and re- spect on account of the great and important public services which they are bound to discharge. They have exercised, from very early times, those means of repressing immediate insults and contempts of their authority, which are essential at least to their dig- nity, if not to their very existence ; nevertheless, they have been sparing in the exercise of their extensive and apparently undefined powers, and have, in many instances, waived their privileges, and delivered over offenders to be dealt with by the Common Law. It seems to have been the policy of the courts to encourage such a proceed- ing ; and it is no less the duty of juries to pay a ready attention when proof of such insults is sub- mitted to them. It will be sufficient to glance slightly upon the consequence likely to arise from a contrary conduct; the compelling those important assemblies to redress their own affronts— a measure necessarily irksome to them, since they are obliged to unite characters * The Jury found them guilty, and they were sentenced to three years im- prisonmenb 481) which the general policy of the law has, except in these and other cases of necessity, kept asunder, and which, if very frequently resorted to, might eventually introduce disagreeable discussions as to the extent of those most important and essential privileges. In the case* of the King v. Rayner, the defend- ant having been convicted of printing a scandalous libel upon the Houses of Lords and Commons, called " Robin's Reign, or Seven's the Main," the court set a fine of 50/. upon him — committed him for two years, and until he should pay the fine — and likewise till he should find security for his good be- haviour for seven years. William Owenf was tried upon an information exhibited against him for publishing a malicious libel, entitled " The Case of the Honourable Alexander Murray, Esq. in an Appeal to the People of Great Britain," &c. tending to scandalize and vilify the whole body of the Commons in Parliament assem- bled ; to represent the proceedings in Parliament as cruel, arbitrary, and oppressive ; to make it be- lieved that the Commons in Parliament assembled had acted, in their legislative capacity, in open vio- lation of the Constitution ; and also to represent the said House of Commons as a Court of Inquisi- tion, &c. &c. &c. Upon the publication of this alleged libel by the defendant,, the Commons addressed the king, de- * 2 Barnard. K. B. 293. Dig. L. L. 125- t Michs. 25 G. 2. K. B. MSS. Dig. L. L. 67- 451 'siring his majesty to give orders to pros-ecute the publisher, which was done.* After the impeachment of Mr. Hastings, a re- view of the articles of impeachment waspublished, by John Stockdale. Upon the suggestion of Mr. Fox, one of the managers of the impeachment, the House unanimously voted an address to the King, praying his majesty to direct his Attorney-gene- ralf to file an information against Mr. Stockdale, as the publisher of a libel upon the Commons. The Attorney-general, on opening the case to the Jury, after stating the address of the Commons, proceeded to observe, " I state it as a measure which they have taken, thinking it, in their wisdom, as every one must think it, to be the fittest to bring hefore a jury of their country an offender against them- selves, avoiding thereby, what sometimes indeed is unavoidable, but which they wish to avoid when- ever it can be done with propriety, the acting both as judges and accusers, which they must necessa- rily have done, had they resorted to their own pow- ers, which are great and extensive, for the purpose of vindicating themselves against insult and con- tempt, but which, in the present instance, they have wisely forborne to exercise, thinking* it better to leave the offender to be dealt with by a fair and im- partial Jury." * He was tried before Lord C J. Lee, and acquitted. T Sir Archibald Macdonald, now Lord Chief Baron of the Court of Exchequer. % Ridgway's Speeches of the Hon- T. Erskine- .Vote.— Scandalous reflections upon the grandee* of the realm fall within the division of the subject which has been considered in the last chapter ; but since the proceeding by writ of Scandalum Magnatum is of a civil as well as of a criminal nature, the extent of the injury has been treated of in a previous chap* fpr, (V|.) to which the reader i« referred- (51 CHAPTER XXXiY. Publications against Convenience. Next, every publication is intrinsically illegal, which tends to produce any public inconvenience or calamity. Under this division, those rank the first in respect of the magnitude of their results, which tend to interrupt the good understanding which prevails between this country and others, by malicious reflections upon those who are possessed of high rank and influence in foreign states. Since the natural tendency of these is to involve the go- vernment in a foreign war, their authors have, in several instances, been punished as offenders at Common Law. — Thus, in the case* of the King v. D'Eon, an information was filed against the defen- dant by the Attorney-general,! for publishing a libel upon the Count De Guerchy, who was at that time residing in this kingdom, in the capacity of Ambassador from the court of France. The infor- mation charged the defendant with an intention to defame the character and abilities of the Count De * Easter T. 4 G. 3. 1764. K. B. MSS. Dig- L. L. 88. t Sir Ftetchcr Norton. 4Stf Guerchy — to render him ridiculous and contempt- ible — to arraign his conduct and behaviour, in his character of Ambassador— : and to cause it to be believed that he had, after his arrival in this king- dom, been guilty of unjust, unwarrantable, and oppressive proceedings towards the defendant and his/riends ; and to insinuate, that he was not fit or qualified to execute the office and functions of Ambassador. The defendant was convicted. — Lord George Gordon* was found guilty upon an in- formation, for having published some severe reflec- tions upon the Queen of France, in which she was represented as the leader of a faction ; and Mr. Jus- tice Ashhurst, in passing sentence, observed, that unless the authors of such publications were pu- nished, their libels would be supposed to have been made with the connivance of the state. — The de- fendant, John Vint,f was found guilty upon an in- formation, charging him with having published the following libel, " The Emperor of Russia is ren- dering himself obnoxious to his subjects, by various acts of tyranny ; and ridiculous in the eyes of Eu- rope, by his inconsistency ; he has lately passed an edict, to prohibit the exportation of deals and other naval stores. In consequence of this ill-judged law, a hundred sail of vessels are likely to return to this country, without their freight," with intent to traduce the emperor of Russia, and to interrupt and disturb the friendship subsisting between that country and Great Britain. * Hil. 28 G. 3. The defendant was sentenced to nay a fine of 5001., to be imprisoned in Newgate for the space of two years, and afterwards to give secu- rity for his good behaviour for the space of fourteen years. t 40 G. & 481 Jean Peltier was found guilty upon an informa- tion charging him with having published a mali- cious libel, with intent to vilify Napoleon Bona- parte, the Chief Consul of the French Republic, and to excite and provoke the citizens of the said republic to deprive the said Napoleon Bonaparte of his consular dignity, and to kill and destroy him, and to interrupt the friendship and peace subsisting between our Lord the King and his subjects and the said Napolean Bonaparte and the French re- public. The most obnoxious passages of the libel were these: " O ! eternal disgrace of France ; — Ccesar, on the banks of the Rubicon, has against him in his quarrel, the Senate, Pompey, and Cato ; and in the plains of Pharsalia, if fortune is unequal, if you must yield to the destinies, Rome in this sad reverse at least remains to avenge you a poignard among the last Romans." " As for me, far from envying his (Bonaparte's) lot, let him name (Icon- sent to it) his worthy successor; carried on his shield, let him be elected Emperor." "Finally, (and Romulus recalls the thing to mind,) I wish that on the morrow he may have his apotheosis. Amen !" — Upon the trial, Lord Ellenborough, C. J. referred to the cases of Lord George Gordon and Vint, and said, " I lay it down as law, that any publication which tends to disgrace, revile, and defame persons of considerable situations of-power and dignity in foreign countries, may be taken to be, and treated as a libel ; and particularly where it has a tendency to interrupt the amity and peacfc between the- two countries." 4S5 By the statute So H. 8. c. 14* it is inade felony to declare any false prophecy upon occasion of arms, fields, or letters. By st. 5Eliz. c. 15. "If any person advisedly and discreetly advance, publish, or set forth by writing, printing, saying, or any other open speech or deed, to any person or persons, any fond, fantastical, or false prophecy, upon or by the occasion of any arms, fields, beast, badges, or such other like things accustomed in arms, cognizances, or signets, or upon or by reason of any time, year, or day, name, bloodshed, or war, to the intent thereby to make any rebellion, insurrection, dissension, loss of life, or other disturbance, within the realm, &c, upon the first conviction, he shall suffer one year impri- sonment, and pay a fine of 10/., and for a second offence, shall suffer imprisonment during life, and forfeit all goods and chattels, real and personal. But it is provided, that no one shall be imprisoned for any offence against the act, unless within six months after the offence committed."! It has been from early times considered as an offence at Common Law, to attempt by means of false rumours to raise the price of provisions, or other necessaries of life. In 43 Ass4 it was presented that a Lombard did procure to promote and enhance the price of merchandise, and the Lombard demanded judg- ment of the presentment for two causes — 1. That it * See also 3 and 4 Ed. 6. and 7 Ed. 6. t By 23 Eliz. c. 2. it was made felony to cast the nativity of the Queen, or to seek to know and set forth bow long the Queen shall live, or who shall reigu after her decease, or to utter any false prophecies to any such intent, or to wish nr desire the death or deprivation of the Queen. ! P- 38. 486 did not sound in forestalling ;— 2. That of his en- deavour, or attempt by words, no evil was put in lire, that is, no price was enhanced ; but both ob- jections were overruled. " Whereby," says Sir E. Coke,* " it appears that to attempt by words to enhance the price of merchandise, was punishable by law, and did sound in forestalment." And from the same reportf it appears, that to attempt by such rumours to diminish the price of any staple commodity, to the prejudice of the deal- ers in general, is likewise an offence at Common Law; for it is there said " Knivet reported that certain people came to Coteswold, in Hereford- shire, and said, in deceit of the people, that there were such wars beyond seas, as no wool could pass or be carried beyond seas, whereby the price of wool was abated, and upon presentment thereof made, they appeared, and upon their confession, they were put to fine and ransom." Andint Mich. Term, 39 and 40 Eliz. it was, after conference and mature deliberation, resolved by all the Justices, that every practice or device, by act, conspiracy, words, or news, to enhance the price of provisions, or other merchandise, was punishable by law. An information§ was filed, charging the defen- dant, that he, intending to enhance the price of hops, did, at Worcester, in the hearing of divers hop dealers and planters, declare, that the then present stock of hops was nearly exhausted, and would be exhausted before the crop of hops then growing * 3 Ins. 896. f 43 Ass. p. 33. I 3 Ins. 196- Bro- lud. pf- 40- £ R. v. Waadington, 1 E- 143. 487 could be brought into the market, and that there would soon be a scarcity of hops, with intent and design, by such rumours and reports, to induce dealers in hops not to carry any to market for sale. When the defendant* was brought up to receive judgment, his counsel objected that the counts charging him with having spread rumours to en- hance the price of hops, did not averf that the ru- mours were false, and that it should at least have been stated, that the price of the commodity had, in fact, been raised by the rumours. But there were other counts in the information, charging the defendant with having engrossed large quantities of hops, with intent to prevent the same from being brought to market, and to resell the same at an exorbitant profit, and thereby greatly to enhance the price of hops ; and the defendant was adjudged to pay a fine of 500/., and to be imprisoned for one month. The court does not, in the above case, appear to have given an express opinion upon the indictable quality of the offence described in the two first counts, which consisted in the spreading rumours generally, with intent to enhance the price ; nor was this necessary, since the information contained inde- pendent charges which were deemed sufficient, and * He was convicted before Mr- J. Le Blanc, at Worcester, and when brought up to receive sentence, the court, out of mere indulgence, allowed his counsel to go fully into the case, saying, that if it appeared that judgment ought to be arrested, or a new trial granted, the defendant should not be precluded from the advantage- t See Haw. P. C. c.80. s- 1- 48fe upon which the judgment appears principally to have been founded. It was contended by the counsel for the prosecution, that " the spreading rumours, whe- ther true or false, if done with a mischievous intent, to produce a public detriment, is indictable upon general principles of law, in the same manner as publishing a libel, however true the facts stated may be ; and that in JollinVs case,* the endeavouring to procure certain persons to be appointed overseers, was held criminal, though the criminality consisted in the intent only, which was to derive a private ad- vantage." It seems, however, to be clear, that no malice will render an act indictable, which is in itself innocent ; the question therefore is, whether the publication of real facts (the knowledge of which may affect the price of provisions or of merchan- dise) can be considered as detrimental to the com- munity ; if it can, then a mischievous intention (that is, malice) in the absence of rebutting evidence, is to be presumed ; if it cannot, no malice can render it criminal. In many cases, the publication of such facts would rather affect the interests of individuals, than those of the community. If, for instance, a person were truly to publish, that the foreign mar- kets were so glutted with a particular commodity, that British wares, of the same description, could not be sold there, the report might operate to the immediate prejudice of the holders of that article ; but the prejudice to the public, namely, their exclu- sion from the foreign market, would be attributable 1 1T. R.2S6 489 purely to the superfluity which prevailed there, and not to the communication made by the defendant. It is said to have been resolved by all the Jialges, that all writers of false news* are iu< lictabl a : . • ,un- ishabie; and, probably, at thi da} iiic fabrication of news likely to produce any public detriment would be considered as criminal. * 4 Read. St. L. Dig. L. L. 23. m CHAPTER XXXV. Publications exciting to an illegal Act. Lastly, the mischievous quality of the commu- nication may consist in its tendency to excite an in- dividual to the commission of some illegal act. This offence may consist either in direct solicita- tion, or in the holding out some indirect but forcible motive to the commission of such an act. In the cases of high treason, petit larceny,* and misdemeanors, all advisers are considered as princi- pals, and are identified with them as to all penal consequences. In petit treason,! and felonies above the degree of petit larceny, a procurer by solicita- tion or advice is punishable as an accessory before the fact; and by many statutes creating new offences, counsellors, aiders, and abettors, are subjected to specific punishments. And where the solicitation is not followed by the actual commission of the offence contemplated, it is perfectly clear that the adviser is liable to bei punished for his wilful attempt to violate the law, through the agency of another. * Hal. P. C. 613. 4 BI. Comm. 36- t 1 Hal. F- C 615. t R. v. Phillip?, 6 E. 464. R. v. Sonthcrton, 6 E. 126. R. v. Higgins, 2 E. 5. 491 And secondly, the holding out any indirect but forcible motive, to induce the commission of an ille- gal act, is in itself indictable. — Thus, it is not only illegal to send a challenge to fight, but even an at- tempt to provoke* another to send such a chal- lenge, is a misdemeanor, since the endeavour is an act done towards the accomplishment of such crime, f With respect to communications tending to acts of personal violence, there is an important distinc- tion between words spoken, and written, or printed publications ; the former are not indictable, though scurrilous, and reflecting upon the character of an individual, and even addressed personally to him, unless they | amount to a direct solicitation to a breach of the peace, as by a challenge to fight. (1) The defend ant§ said to the mayor of Salisbury, " You, Mr. Mayor, are a rogue and a rascal ;" and it was held, after great deliberation, that the words were not indictable, since they were not spoken to him in the execution of his office ; that if they had been put into writing, they would have constituted a libel, which would have supported either an indictment or an action ; but that they were but loose and un- mannerly words, like those spoken of an Alderman. * By 22 G. 2- c- 23- " If any person, on board the fleet, shall use reproach- ful or provoking speeches or gestures, tending to make any quarrel or disturb- ance, he shall, upon being convicted thereof, suffer 3uch punishment as a Com' Martial shall impose. t 6 E. 464. X 6 Mod. 125. Ld. Ray. 1030. § The Queen v. Langley, G Mod- 125. (I) See post, note r3fi.l 492 of Hull — " When he puts on his gown, Satan enters into it," which were adjudged not indictable ; and Holt, C. J. said, that words directly tending to a breach of the peace, may be indictable ; but other- wise, to encourage indictments for words, would make them as uncertain as actions for words are. But it seems perfectly settled, that any malicious defamation of any person, expressed in print or in Writing, or by. means of pictures or signs, and tend- ing to provoke him to anger and acts of violence, or to expose him to public hatred, contempt, and ridicule,* amounts to a libel in the indictable sense of the word.(l) And since the reason is, that such publications create ill blood, and manifestly tend to a disturbance of the public peace, the degree of discredit is immaterial to the essence of the libel, since the law cannot determine the degree of for- bearance which a party reflected upon will exert before he is excited and provoked to acts of outrage, anti therefore prohibits equally all imputations con- veyed by such means, and possessing such a ten- dency. The grounds of the distinction between oral and written provocation, are to be sought after in practi- cal wisdom and experience, rather than in principle, * 3 Black. Com. 150. Haw. PI. Cr. c 73. s. 1. 5 Co. 125- 5 Mod. 165. Salk. 418. Str. 422, 791. 12 Mod. 221. Ld. Ray. 416. 1 Sid. 270. (1) 4 Mass- Rep. 168. " A Libel is a censorious or ridiculing writing, pic- ture, or sign, made with a mischievous and malicious intent towards govern- ment, magistrates, or individuals." Per Hamilton, arguendo, in The People v. Croswell, 3 Johns. Ca. 354. Sanctioned and adopted by the Court in the case of Steele v. Sovthwkk, 9 Johns- Rep. 214- 493 inasmuch as the tendency to produce illegal violence is oftentimes stronger in the former case thaw in the latter : for instance, contumelious and insulting lan- guage is more likely to inflame the party to whom it is applied, to acts of outrage, when uttered pub- licly in his hearing, than if even the same expres- sions were to be conveyed to him by a private letter, when the insult would be divested of its main ag- gravation, — its publicity, — and the distance of the offended party from the aggressor would allow the irritation which did ensue an opportunity to subside, without venting itself in an act of violence. Since the indictable and actionable qualities of a libel, upon a living individual, seem to have been considered as co-extensive,* what has been said in regard to the extent of the remedy by action, may be applied as the measure of criminal liability. Au indictmentf also lies for a libel reflecting upon the memory of a person who is dead, it it be pub- lished with a malevolent purpose to injure his family and posterity, and to expose them to contempt and disgrace ; for the chief J cause of punishing offences of this nature, is their tendency to a breach of the peace ; and although the party be dead at the time of publishing the libel, yet (according to Lord Coke) it stirs up others of the same fa- * Skinn. 123. 2 Wils. 204. Com- Dig. tit. Libel, c. 3. Bac- Ab. tit. Slan- der, 202. 3 Bl. Com. 125. 2 Camp. R. 511. t 5 Co. 125. Haw PI. Cr. c 73. s. 1- The King v. Topham, 4 T, R. 126. t Haw. PL Cr- c 73. s. 3. 5 Co. 125. 494 mily, blood, or society, to revenge, and to break the peace.(l) In the case of the King v. Chrichley,* an informa- tion was granted against the defendant, for pub- lishing the following libel, reflecting upon Sir C. <*aunter Nicoll, Lady Dartmouth's father, and on the government : "On Saturday evening died of the small pox, Sir C. (*< Nicoll, Knight of the most ho- nourable order of the bath, and representative in Parliament of the borough of Peterborough. He could not be called a friend to his country, for he changed his principles for a red ribband, and voted for that pernicious project, the excise." But, as was observed by Lord Kenyon, C. J. in the case of the King v. Topham,f " To say that the conduct of a dead person can at no time be canvassed ; to hold that, even after ages are past, the conduct of bad men cannot be contrasted with that of the good, would be to exclude the most useful part of history." The malicious intention of the defendant, therefore, to injure the family and posterity of the deceased, must be expressly averred and clearly proved. And it is not necessary that the libel should reflect upon the character of any particular individual,; provided it immediately tend to produce tumult and disorder. An information§ was prayed against the defend- * 4 T. R. 129. in the notes. t 4 T. R. 129. J 3 Bac. Abr. 494. 2 Barnard, K. B. 13S- 166. § The King v. Osborne, D. L. L. 79. [S. C 2 Swanst. Rep. 503.] (1) 5 Binn. 281. Skarff v. The Commonwealth, 2 Binn- 514.. 495 ant for publishing a paper, containing an account ot a murder committed upon a Jewish woman and her child, by certain Jews lately arrived from Portugal, and living near Broad-street, because the child was begotten by a Christian ; and the affidavit set forth, that several persons mentioned therein, who were recently arrived from Portugal, and lived in Broad- street, had been attacked by multitudes, in various parts of the city, barbarously treated, and threatened with death, in case they were found abroad anymore ; and it was objected, that no information could be granted, because it did not appear, in particular, who the persons reflected upon were. But by the court, " Admitting that an information for a libel may be improper, yet the publication of this paper is de- servedly punishable in an information for a misde- meanor, and that of the highest kind ; such sort of advertisements necessarily -tending to raise tumults and disorder among the people, and inflame them with an universal spirit of barbarity, against a whole body of men, as if -uilty of rimes scarcely practicable, and wholly incredible."(l) It may be objected, that when a party is pro- (1) Rex v. Williams, 5 Barn. & Aid. 595. 1 Dow. & Ryl. 197- Sumner r, Buel 12 Johns Rep. 475, was an action brought by Sumner, an ensign, com- manding a company in Col. LoofcwiHWFs Regiment, against Buel, a printer, for a publication reflecting on tue officers of the regiment generally. The Court (two judges of the five composing the Court dissenting,) held, that the plaintiff was not entitled to recover, there being no particular, personal, application, and no special damage alleged. Thompson C J. delivering the opinion of the Court, said " It is a general rule, that no writing whatever is to be deemed a libel un- less 'it reflects on some particular person. {Hawk. P. C b. 1. ch. 73. s 9.) A writing which inveighs against mankind in general, or against a particular order of men, is no libel, nor is it even indictable. It must descend to particulars and individuals to make it a libel-" (2 Salk. 224. lLd.Raym.43G.) 496 yoked by a libel to acts of violence, the breach of the peace is to be attributed to the hasty temper of the person provoked, and that the violation of good order ought to be visited upon him, and not upon the writer, whose language supplies no justi- fication of the violence committed. The answer seems to be, that though the party violating the peace derives no justification from the provocation offered, this circumstance does not exculpate the original aggressor, since he did that which occa- sioned the illegal act, and which, calculating upon the infirmities of human temper, was likely to occa- sion it ; the offence was the natural, though the ille- gal consequence of the publication; the defendant caused it to be committed ; and with respect to the public, it is immaterial whether he directly solicited another to break the law, or effected the same end by means indirect, but equally certain. The principle upon which a party is made re- sponsible for an offence committed at his instiga- tion, but by the agency of another, pervades the whole system of our criminal code, and applies strongly to the case of libel ; since no reasonable distinction can be made between actual solicitation and any other means of procuration known to be equally powerful. An actual breach of the peace, is therefore a con- sequence which, upon legal principles, is to be at- tributed, in some degree, to the author of the libel which excited it, and his attempt to produce dis- order is punishable on grounds of the plainest po- licy, inasmuch as it is wiser to prevent the evil ap- prehended, by a timely vigour, than to wait for its maturitv. CHAPTER XXXVI, Of the Defendants Malice. To constitute a crime against human laws, a vi- cious will must concur with an unlawful act;* and as the union of the defendant's wrongful intention with the plaintiffs loss, creates the title of the lat- ter to damages, so, to render a party criminally re- sponsible, the act obnoxious to the public must result from a malicious inind.f As far, therefore, as respects the intention of the party, the offence against the public is identified with the injury to the individual : and the cases differ only in the nature of the mischief, which, in the former, results to the plaintiff, in the latter, to the community; — the observations, therefore, which have been already made upon the nature of malice in its legal sense, the presumptions for and against it, and the evidence relating to it, apply equally to the present branch of the subject. With respect* then, to the question of malice, the * % El. Comm. 21. -t Haw. c. 73- s. 1. 5 Co- 125- 5 Mod. 165. SaJk. 413. 4 Bl„ Comip. 125, Str- 422- 791. 12 .Mod. 221. R. v. Ld. Abingdon, 1 Esj> K. 228. 63 498 cases falling within the criminal as well as within the civU division, may be resolved into the three classes already specified. 1. Where the actual intention of the party is immaterial, and the presumption of law is conclu- sive in favour of the defendant ; as where the pub- lication is made in the regular course of parliamen- tary or judicial proceedings.* 2. Where the presumption is prima facie in fa- vour of the defendant, but liable to be rebutted by proof of express malice. 3. Where the presumption is against the defen- dant, and the law, in the absence of any justifying excuse shown by the defendant, collects an evil in- tention from the evil tendency of his act. It has already been seen to which of these divi- sions the defendant's case, under its particular cir- cumstances most properly belongs ; and the obser- vations already made are equally applicable to the criminal proceeding, with the following exceptions, l.The truth of a publication supplies no de- fence to an information or indictment. The reason- why a plaintiff in such case is debarred from reco- vering a compensation in damages, has already been considered. He is excluded from the courts by his own demerits; but to the criminal proceeding, the person libelled is not a party ; no defect, there- fore, in his claim, can avert from the offender that punishment which the security of society de^ mands.f * Vid. supra, c. 10, 11. } 4 Bl. Com. 151- 5 Rep. 125. 11 Mod. 99- Bac. Ab. tit. Lib. 455. HoK ■T53. 3 SaHc. 22fi. Holt. 11. 422. Haw. P. C. c. 73. s, 6. 499 Though it has long been settled, that the truth of a libel is no defence under an indictment, it may not be improper to offer a few remarks upon a doc- trine against which objections have been frequently urged. The two essentials to constitute an indictable misdemeanor, are, the mischief resulting, or likely to result, to society, from a particular act ; and the malicious intention of the actor, to effect such mis- chief ; and hence it is, that every wilful attempt or instigation, director indirect, to violate the law is considered as criminal. The policy of the rule seems indisputable. No society can tolerate a wilful attempt to break its laws ; and the question is, whether a person who publishes concerning another that which is true, but which is likely to provoke him to commit an illegal act, may not fall within the rule. In the first place, tiie illegal act resulting from such a pub- lication, that is, the breach of the peace, must be considered in relation to society, as the conse- quence of the publisher's act; for though the de- famation will by no means justify the person de- famed in the committing any act of violence, par- ticularly where he has been guilty of that which is imputed, yet the blame is at least partially attri- butable to him who wantonly and maliciously did that which was likely to occasion the illegal conse- quence. The right of every person to publish truth in the abstract is clear : but this natural^privilege, like all others, is liable to be abridged, when the exercise of it becomes pernicious. The law affords many )U0 instances, in which acts in themselves innocent, are, from some collateral evil accruing to the pub- lic, considered as criminal. Thus, the carrying on a particular trade may be, in itself, not only inno- cent, but necessary ; yet it becomes illegal when attended with circumstances affecting the health and comforts of those who reside in the neighbour- hood. So in the case of libel, the right to publish the truth in general is plainly distinguishable from the right to publish when the publication is liliely to be attended with mischief : in such case the publisher cannot but be considered as the author of those consequences which, knowing the infirmities of human nature, he caused to exist. Supposing, then, that mischief may result from publishing the truth, can such publication be attri- buted to a malicious disposition to effect such mis- chief? An illegal act is, in contemplation of law, malicious, when it is effected with a knowledge of the consequences which are likely to ensue ; since every person must be presumed to have had that end in view to which the means he used were adapted. Though the immediate object, therefore, of the defendant, maybe to wound the feelings of an individual, yet, if the obvious tendency of his publication be to exasperate the party reflected on to acts of outrage, he must, in the absence of all means of justification, be presumed to have contem- templated a violation of the public tranquillity. Upon these principles, as far as regards intention, it is immaterial whether the charge imputed be true or false ; the mischief is as great in the latter case &$ in the former, since guilt is at least as prone to revenge as innocence ; and it is clear, that truth as well as falsehood may be converted into the- instru- ment of malice.* These observations apply to cases where the act can be attributed to no motive, but a design to produce misery to the individual, at- tended with that criminal inattention to the interests of society which constitutes malice in its legal sense. Where the defendant can show that he had in view either the interests of society in general, or the be- nefit of the individual, however mistaken his zeal maybe, that vicious intention is wanting, the addition of which would constitute him a criminal. As far as the convenience and exigencies of society require, every person is justified in publishing the truth ; the prohibition does not extend beyond communica- tions, originating in malice and terminating in mis- chief. In theory, perhaps, there may be some room for a distinction between cases where the offence im- puted by the libel is of an indictable nature, and those where a mere immoral act is charged ; in the former, if the fact be within the knowledge of the party, he is bound to declare it to the proper tribu- nal, for the purposes of justice, and would, in many instances, be liable to an indictment for the conceal- ment ; but where the act is of a mere immoral na- ture, as of ingratitude or hypocrisy, no avenue for the disclosure is appointed by the law ; in such case, therefore, it seems more reasonable, that the actual misconduct should be made known at the discretion of the individual acquainted with it. As far as oral * £ee Paley's Moral Philosophy, oh. 5 514 write a libel, although a man be not the composer or contriver thereof." The learned Judge ob- served, that it is the putting of the words into wri- ting, which is the essence of the offence ; for the party is not guilty, unless he put the words into wri- ting ; and that in all cases where a man does an act, which act causes the thing to be what it is, such an one is to be considered the doer of it ; that in all lower offences procurers are principals, so that if A. hold B. whilst C. beats him, A. is guilty of the battery ; that Lamb's case was to be expounded by the same case in Moor,* in which it was reported to have been resolved, that the writer of a libel is, in law, the contriver ; but that in Lamb's case the question was not concerning the writing or making, but about the publication thereof, and it was held, that the writing of a copy of a libel, as indeed the writing of the original libel itself, is no publication thereof, but only an evidence of publication; that the question was not how far the writing of a libel was criminal, but whether the writing of a copy be a publication, which indeed it is not ; that the case of John De Northampton is apposite, who was charged with writing only, without any mention made of publication, and who confessed the writing only. The learned Judge also expressed his opinion, that the copying of a libel was a libel, because it com- prehends all that is necessary to make it a libel, the same scandalous matter, and the same mischievous consequences ; since it is by this means perpetu- ated, and may come to the hands of other men, and 913 515 be published after the death of the copier ; and that if men might take copies of them with impunity, then the printing of them would be no offence, and then farewell to Government. Turton and Rokeby, Justices, were of the same opinion, and referred to several cases,* to prove that writing a libel without publishing it, was punishable in the Star-chamber. . The parallel drawn by Lord Holt, in the above case, seems objectionable, since it assumes the of- fence to have been completed. It A. hold B. whilst C. beats him, A. is guilty of the beating, but the of- fence, that is, the battery, here is completed ; to sup- pose then, that the case in question analogous to it is to assume that the offence of libelling is complete without a publication ; the question was not whe- ther an aider or abettor to an offence actually com- mitted was punishable as a principal, but whether any offence had in fact been consummated, or the whole rested in mere intent and preparation, as if A. had supplied C. with a stick for the purpose of beating B., but no battery had actually taken place. Neither do the cases relied upon appear applica- ble : in that of John de Northampton! it is stated, that the letter ivas written to John Ferrers, one of the King's counsel ; and the confession runs thus : " Et quia pr&dictus Johannes cognoscit dictam lite- ram per se scriptam Roberto de Ferrers, fyc. ;" now if " written to" merely imported the address of the letter, which never passed from the defendant, there was no occasion to confess the writing of it to Ro- * Hob. 62. 815. 12 Co. 35. t 31ns. 174. bert de Ferrers, and the very same terms " written to" are used by Sir E. Coke, in his 12th Report, to imply a sending as well as writing. The cases cited by Turton and Rokeby,* Jus- tices, are inapplicable ; since in those instances there was a publication of the libel to the party defamed. Knellf was tried upon an information charging him with having printed and published a libel, enti- . tied "Mist's Weekly Journal." It was proved that the defendant was a printer's servant, and his busi- ness was to prepare the type for printing off, which business was called composing for the press ; that the defendant and another composed together the libel in question, taking the alternate columns. For the defendant it was objected, 1. that since the de- fendant took a distinct part, that which he composed could not bear the construction put upon the whole ; and c 2dly, that since he composed only, he could not be found guilty of the printing wherewith he was charged. It was answered, that in misdemeanors, an accessory in part is a principal in the whole, and, therefore, as the defendant assisted in the com- posing, a circumstance essential to the printing, he, by that act, made himself concerned in the whole ; that composing was taking a copy in types, which would make the defendant a publisher, since it had often been determined that the taking of a copy of a libel was an act of publication. But the Chief Justice directed the Jury to acquit the defendant of * Hob 62. 215. 12 Co. 35. + Hil. 3 Q-. 9. Barnard. K. B. 305. D. L. L- 25. 51? the publication, and if they believed the evidence, to find him guilty of the printing, which they did accordingly.* Upon the whole, whatever doubt may exist as to the criminal nature of the act where it is confined to the mere writing, printing, or preserving of a libel, it seems perfect!) clear that every person who mali- ciously lends his aid to the construction of a libel, subsequently published, or who contributes to the publication of one already made, with a knowledge of its contents, is indictable as a principal for the whole mischief produced. And according to the doctrine laid down in Lamb's case,f where a libel has been published, proof that the defendant committed it to writing, or, by parity of reasoning, did any other act contri- buting to its existence, is great evidence that he published it, unless he can satisfactorily explain the motive of his act. * The defendant was afterwards sentenced to stand upon the pillory twice, and to be kept to hard labour in Bridewell lor lue spacy of six months. D. L„ L. 124. T- Carter was convicted and punished for a similar offence. 9 St. Tr. t9Co- CHAPTER XXXVIII. Proceedings against Offenders. The proceedings against offenders are either sum- mary, as by their immediate apprehension and im- prisonment ; by attachment, by binding over to the good behaviour ; or, in the more usual mode, by in- formation or indictment. The summary process is in general founded upon contemptuous language and reflections applied to those who preside in courts of justice and their proceedings ; and such contempts are either direct, where a judge or magistrate is openly insulted in the execution of his office, or consequential, where the offender, by speaking or writing contemptuously of the court, or its judges in their judi ial capacity, reflects upon the autho- rity by which they were appointed, and creates a prejudice against the administration of justice. And first, where the insult is offered in the face of the court by the use of contumelious language, demon- strating the want of that respect and regard which is essential to the preservation of its authority, the offender, it is said, may be instantly apprehended. 519 lined, or imprisoned, at the discretion of the judge, without further examinational) This doctrine appears to extend to all cases where contemptuous words are spoken in the presence of a magistrate in the actual discharge of his duty. As if a man should say to a justice of the peace in the execution of his office, " You are a roguef and a liar," or tell the judge of a Court Leet that he is a fool4 oris forsworn,§ or say — " If I cannot have justice here, I will have|| it elsewhere." And though the judge may elect to proceed in this summary mode, yet, if he does not, the offen ser is liable to an indictment, since, wherever a justice may com- mit for a contempt, the party may be indicted for the misdemeanor.^! Where the contempt is not offered immediately in the face of the court, but consists in insolent comments upon the court or its proceedings, or in the indecent publication of matters still pending, the effect of which may be to create prejudice and par- tiality, and thereby to hinder the fair administration of justice, the proceeding is by attachment, w hich is a process from a Court of Record, awarded by the * Cro. Eliz. 78. 2 Roll. Ab. 78. 4 Bl. Coram. 286. Staun. P. 0. 73. b. t Str.420. Ow. 113. Mo. 470. Cro. El. 581. J Cro. Eliz. 78. g 2 Roll. Ab. 78. II 1 Sid. 144. 1 Keb. 508. IT Str. 420- (1) The King v. Davidson, 4 Barn. & Aid. 340, opinion of Best, J. Upon ihe trial the defendant was fined three times by the judge, (Best) once 20*. and uto fines of 40Z. each. 5^0 justices at their discretion, upon a suggestion, or upon their own knowledge.*(l) It may be considered here, from what courts, for what words, and upon what suggestions, an attach- ment issues. It appears, generally, that an attachment may be granted by any of the superior courts oi Westminster Hall against any persons guilty of contempts ag inst them. When a party, not present in court, pub- lishes any contemptuous expressions against the court or its proceedings, the court, will, upon an * 2 Haw. 213. vid. Wils. 300. (1) Hollingsworlh v. Duane, Wall. Itep. 77. Respub. v. Passmure, 3 Yeates, 441. Respub. \. Oswald, 1 Dall. 319. The People v. Freer, 1 Caines's Rep. 484, 518. In Pennsylvania it provided, by the Act of 3d April, 1809, (5 Sm. Laws, 55,) "That the power of the Judges of the several Courts of this Com- monwealth, to issue attachments and inflict summary punishments for contempts of Court, shall be restricted to the following cases, that is to say — To the official misconduct oi the officers of such Courts respectively, to the negligence or dis- obedience of officers, parties, jurors, or witnesses against the lawful process of the Court, to the misbehaviour of any person in the presence of the Court, ob- structing the adminisi ration ol justice. All publications out of Court respecting the conduct of the judges, officers of the Court, jurors, witnesses, parties, or any of them, of, in, and concerning any cause pending before any Court of this Com- monwealth, shall not be construed into a contempt of the said Court, so as to render the author, printer, publisher, or either of them, liable to attachment and summary punishment for the same ; but i! such publication shall improperly tend to bias the minds of the public, the Court, the officers, jurors, witnesses, or any of them, on a question pending before the Court, any person feeling him- self aggrieved by such publication, shall be at lioerty either to proceed by indict- ment, or to bring an action at Law, against the author, printer, publisher, or either of them, and recover such damages as a jury may think fit to award. The punishment of imprisonment in the first instance, .hall extend only to such con- tempts as are committed in open Court, and all other contempts shall be pun- ished by fine only : Provided, that the Sheriff, or other proper officer, may take into custody, confine or commit to jail any person fined for a contempt, until such fine is discharged or paid ; but if he shall be unable to pay such fine, such person may be committed to prison by the Court for any time not exceeding href months" 521 affidavit of the tact make a rule upon him to show cause why an attachment should not be granted against him ; and in some cases, where the offence is of a very flagrant nature, will grant an attachment in the first instance. Upon a rule granted* against the defendant Wiatt, to show cause why an attachment should not issue as: ainst him tor publishing a libel on the Court of King's Bench, the defendant showed by affidavit that his fault was not wilful, but merely through ignorance, that he had the libel from one Crownfield, a printer in Cambridge ; that it was in Latin, a language which the defend mt did not un- derstand, and that he did not know who was the author, otherwise than by a letter which he re- ceived from the printer, and which was affixed to the affidavit, by which letter it appeared that Dr. Middleton was the author. On this it was moved, that the rule should be discharged ; but the rule was continued on the defendant until he made out his allegation against the printer, who was therefore joined in the rule, that both of them might be before the court. In the next term, Dr. Middletonf appeared, and confessed that he was the author of the book ; the rule was then dis- charged against the publisher and printer, and the doctor was committed until further considera- tion. After a few days confinement he was brought into court, fined 50/., and bound to his good beha viour for a year. • s Mod. 123. t Fort. R- 301 m 5£^ A fule* was granted to show cause why an attachment should not issue against Elizabeth Mayer and Dowling, for publishing a libel on the pro- ceedings of the court in the trial of Lady Lawley. Elizabeth Mayer produced an affidavit, stating, that her husband kept a pamphlet shop, that in his absence Vaughan came to the shop and asked for Lady Lawley's trial, that she did not know that it was in the shop, but searching, found it, and refused to sell it to Vaughan, but permitted him to read it. The court said it was beyond all question that attachments had been granted in such cases, and particularly alluded to Dr. Middleton's case. The court in general agreed to discharge the rule as to her,(l) and said they could not make the rule abso- lute as to Dowling, because there was no affidavit of service. A rule having beenf obtained to show cause why an information should not be granted, the defendant on being served with the rule showed his disregard of it in very contemptuous language. Upon a mo- tion for an attachment, grounded upon this con- tempt, Northy, Attorney-general, insisted that he ought to be first heard to show cause against it ; but the court said, " He shall answer it in custody, for it is to no purpose to serve him with a second rule who has slighted and despised the first ; it would be to expose the court to further contempt." * Mich. 8 G. 2. 1732. 2 Barnard. 43. K. B. t 1 Salk. 84. (1) The intent of a publication will not justify it, if it be, in the opinion of the Court, a contempt. The People v- Freer, 1 Caines's Kep. 518. ■)23 And where the court apprehend that the attach- ment will be forcibly resisted, they will order the Sheriff' of the county* to take with him a force suf- ficient for its due execution. But it seems that the court will not grant an attachment inf the first in- stance, unless the words be sworn to by two wit- nesses, since otherwise it would be in the power of one hardy man to hinder another of an opportu- nity of defending himself before he was deprived oi his liberty ; and when contemptuous words are spoken of the court, the rule for attachment is granted in the first instance ; but where they are spoken of its process, a rule to show cause! only ; and the court will punish for contemptuous words spoken on the delivery of a declaration§ in eject- ment. When the party has been brought into court, he is either committed, in order to answer interrogato- ries, or is permitted to enter into a recognizance with two sureties, in such sum as the court shall direct, to appear and make answer upon oath to such inter- rogatories|| as shall be exhibited against him. And it is said,^[ that the party cannot confess the contempt and throw himself upon the mercy of the court, except in cases of rescue and of contempts committed in the face of the court. If the party be discharged upon his recognizance** to answer in- terrogatories, and none be exhibited within four days after entering into such recognizance, the court * 1 Sir. 185. f 1 Sir. 185. 3 At. 219. Say. Rep. 114. I Tidd. 428. vid. Sir. 185. 1068. $ Sfr. 567. II Haw. P. C. c. 22. «. 1. Barnard. K. B. 58. f 1 HI. 649. 6. vide 4 Bl. Coram. 284. • 4 Haw. P. C r.22- <=. 1. 5 T. B. 36? •324 will discharge it upon motion ; but if no such mo tion be made, the court will compel him to answer interrogatories exhibited after the four days. Upon these interrogatories examinations are taken, and it is referred to the Master of the Crown Office to make his report ; the party* is then either acquitted or adjudged to be in contempt. If the party, in his answer, purge himself from the charge upon oath, though he is liable to a pro- secution for the perjury,! if he has sworn falsely, he must nevertheless be acquitted of the contempt, and his answer cannot^ be disproved by adverse and contradictory affidavits. Next, by requiring sureties of the peace, or for the good behaviour of the party. — It seems agreed, that the publication of a libel, does not amount to a breach of the peace, but rests in tendency only. In Dalton's Justice, § a libel is defined as a thing tending to the breach of the peace ; in Sir Baptist Hicks's|| case, it is called a provocation to a breach of the peace ; and in th^ King^f v. Summers, it was held to be cognizable before Justices, because it tended to a breach of the peace ; and in Hawkins's Pleas of the Crown,** and Sir William Blackstone's Commentaries,!! a libel in the criminal sense is also defined by its tendency. In the case of the King v. Wilkes, the court of Common Pleasi| gave a decided opinion to the same effect. And L. C.J. Pratt ob- served, "I cannot find that a libeller is bound to find surety of the peace in any book whatever, nor * B. R. H. 23. t 6 Mod. 73. | 4 Bl. Comm. 288. $ 289- i| Hob 224. If Lev. 1 3f»- ** r. 73. s. S- tt 4 Bl. C 150. It 2Wils- 15*, o2b ever was in any ease but one, viz. — the case of the seven Bishops, where three Judges said, that surety of the peace was required in the case of libel : Judge Powell, the only honest man of the four Judges, dissented ; and I am bold to be of his opinion, and to say, that the case is not law. Upon the whole, it is absurd to require surety of the peace in the case of a libeller." And it was held in the above case, that though surety of the peace might be re- quired in the case of libel, it could not exclude the privilege of a member of either House of Parliament, who is entitled to privilege from arrest, in all cases except treason, felony, and actual breach of the peace ; and the decision of the court in the pro- ceeding against the seven Bishops, who were com- mitted to the Tower for not entering into recog- nizances after having published an alleged libel, in their petition to the King, was strongly repro- bated^ 1) But it has been the practice, from very early times, to require security for the good be- haviour from persons publishing contumelious and disrespectful words concerning ministers and offi- cers of justice, and their proceeds gs. It appears from the 3d Institute,* that in the reign 174. : (1) Surety for good behaviour was taken by Shippen C J. and M'Kean, J. from W. Cobbett, before conviction, he being charged with the publication of numerous libels, and upon the recognizance, suits were instituted and judgments obtained against Cobbett and his sureties- (Respub. V. Cobbett, 3 Dall. 467, Comm. v. Dames. Cornm. v- North, 1 Binn. 97 ) Chief Justice Tilghman, however, refused to require such surety in the case of The Comm. v. Duane, (1 Binn. 99,) before conviction, though be thought there might be occasions on tvhich it might be proper and necessary to insist upon it S$6 of Edward the 3d, John de Northampton, an Attor- ney of the King's Bench, was committed to the custody of the Marshal, for having written a letter reflecting on the conduct of the Justices ; and that he afterwards found six mainpernors for his good behaviour And it s ems that sureties for the good behaviour may be required from any person* who applies con- temptuous or disrespectful language to ai y Judge, Justice of the Peace, Mayor, or other civil Magis- trate, though he be not in the actual execution of his duty,* and though the words have no relation to his office. And that the rule extends to general words of disparagem nt spoken of such Magistrates in their absence ;f but Lord Holt, C. J. intimated, that this ouyht not to be done by the offended Justice, but by one of his brethren. t And the same learned Judge, in the Queen v. Langley,§ after observing that binding to the good behaviour was sufficient to secure the authority of Mayors, added, that it must be done instantly, according to Dr. Bonham's|| case. It seems, however, from the general current of decisions upon this point, which are very perplexed and contradictory, that the words must eithei have been spoken in the piesence of the Magistrate; or if in his absence, have in some way affected him in his office. In other cases it might not be prudent * Cro. El. 78. Salk. 697. Haw. P. C. c. 61. s. 2. 6 Mod. 124. Holt. 654. Str. 420. t Cro. El. 78. 1 Lev. 52. s. 2. s. 3. 11 Mod. 117. Cro- Eliz. 689. contra, t 12 Mod- 514- $ 6 Mod. 124. H Stiles. 251. in a Magistrate to commit for want of sureties, since he does it at his peril, the case of commitment must be expressed with certainty upon the face of the warrant ;* and in case it should prove insufficient, he would be liable to a" action for false imprisonment. But it seems perfecly clear, that for ui mannerlyf expressions, used in the face of a Court of Justice, though not applied to the Court or its proceedings, or for words spoken for the purpose of deterring an inferior officer, as a Constable, from the execution^ of his office, or abusing him while discharging his duty, the offender may be bound to his good be- haviour. With regard to mere rash, quarrelsome, uncivil words, in general, it seems that sureties cannot be demanded from the speaker, unless they either amount to a direct solicitation to break the peace or scandalize the government, by abusing those who are intrusted b^ it with the administration of justice ; or be uttered with intent to deter an officer from the execution of his duty.§ It has been already seen, that for a libel in general, sureties for the peace are not demandable ; but where a letter contains a direct challenge, the same security for the good be- haviour may be required as it the words had been spoken. * Per Walmesly, J., Dean's case, Cro. EI. 689. t 1 Lev. 107. 1 Keb. 558. t Haw. P. C. c. 61. s. 2. 3. § Haw. P. C c. 61. s. 3- Cro. Car. 498, 499. Cro. El. 286- Pal. 120 m& it is said, a recognizance to keep the peace may be forfeited by mere words, but they must directly tend to a breach of the peace, as by a challenge to fight in the party's presence.* (1) * 4 Burn's Jus. 353. (1) A recognizance for the good behaviour of the party accused of publishing libels, is forfeited by the publication of a libel- Respub. v. Cobbett. 3 Yeates, 93, CHAPTER XXXIX Proceeding by Information. With the exception of those cases where a de- fendant has been guilty of a contempt, no punish- ment can be inflicted upon him for any malicious publication, unless he shall have been previously convicted of the fact upon the oath of twelve Jurors. There are two modes, by either of which the matter may be subjected to their verdict : — by an informa- tion, exhibited in the name of the King, or by the finding of a bill by a Grand Jury.(l) Note. As to the great antiquity and acknowledged legality of the proceeding by information see the argument of Sir Bartholomew Shower, 1 Show. Rep. 106, 4 Bl- Comm. 305- Whence it appears to have been as ancient as the law itself. To introduce any discussion upon the subject of informations would be incon- sistent with the object of this treatise ; since, in the first place, informations are, in point of law, no more connected with the subject of libel than they are with any other misdemeanor ; and in the second, no doubt can possibly rest upon the legality of a practice which has prevailed for centuries, and been sanc- tioned by at least two acts of the legislature. 4 and 5 W. and M. c. 18. 43 G. 3. c. 58. (1) The Constitutions of Pennsylvania, Kentuckij, Mississippi, and Illinois, provide that no persons shall for any indictable offence, be proceeded against criminally by information, unless by leave of the Court, for oppression and mis '-meaner in office- The Constitution of Delaware, contains a general prohi* «7 530 Informations are of two descriptions', they are either filed by the Attorney-general as the immedi- ate officer of the crown, or by the Master of the Crown Office upon the complaint of a private indi- vidual. The objects of those informations which are filed by the Attorney-general, are those offences which manifestly tend to excite and produce some great public mischief ; but in what cases it may be necessary to call in aid this process is a matter rest- ing in the discretion of that officer, whose duty it is, as the immediate agent of the crown, to bring under the cognizance of the Court all offences and abuses which are of so dangerous a nature as to render im- mediate attention necessary. In case of libels this power has been exercised where they tend to subvert religion or morality ; to excite discontent against the Constitution, the King, or his Government ; to involve the country in foreign wars, or to excite particular classes of people to acts of tumult and outrage ; but it has not been usual for the Attorney-general to interfere where the libel has affected a private individual only. With respect to the other species of information, which are sometimes granted by the Court of King's Bench at the instance of a private person : uition against the proceeding by information, and does authorize the Court to permit it in the case of oppression and misdemeanor in office. Cases arising in the land or naval forces, and in the militia when in actual service, in time of war or actual danger, are expressly excepted. In JCetC'York, the proceeding by information has been abolished by statute. See also the 5th Art. of the amenr- ir^nts to the Const, of the t t . States. 531 "These were formerly filed at the suggestion of the applicant by the Master of the Crown Office, and at the discretion of that officer, without any direct application to the Court ; but the practice was put an end to by st. 4 & 5 W. & M. c. 18. which enacts that the Clerk of the Crown shall not file any in- formation without an express direction from the Court of King's Bench. It may be proper to ad- duce a few instances, to show, the general principles by which the Judges of the Court of King's Bench have been guided in the exercise of this branch of their jurisdiction, and to refer to the regulations which they have thought fit to prescribe to relators requesting their interposition. In the case* of the King v. Staples, an information was granted against the defendant for having pub- lished in a newspaper, called the York Journal, that " Richard Thompson, an Alderman of York, and a Justice of the Peace, was scandalously guilty of tell- ing a lie in divers companies, viz. that the said Sta- ples had asked Mr. Thompson pardon for publishing in the same newspaper that he Mr. Thompson was married to one Mrs. W." and upon granting the in- formation, Page J. observed that the applying of such words to a Magistrate was an aggravation. The defendant Sharpej published in a newspaper an affidavit of bastardy, which lie stated to have been sworn before Sir William Billers, a Magistrate, by a woman, without its having been read by her ; and the Court on granting the information were of opinion, that the publication of the affidavits was * And. 229. Dig. J... L. 80. t Antfr. 384. the Ktng v. Sharpe. punishable, though no scandalous reflections were made upon the case, especially as they tended high- ly to defame a Magistrate. The defendant,* in a conversation about a warrant which had been granted by Mr. Kent, a Justice of the Peace, asked if Mr. Kent was a sworn Justice, and being answered that he was, replied, " If he is a sworn Justice, he is a rogue and a forsworn rogue ;" but the Court refused an information, saying, it is not the same insult and contempt as if spoken to him in the execution of his office, which would make it a matter indictable. So where the defend- ant! said of a Justice of the Peace, " He is an old rogue for sending his warrant to me," the Court re- fused an information leaving it to the party to proceed by indictment. Where the libel imputed to a navalt commander the want of courage, knowledge, resolution, and ve- racity ; to a peer,§ that he acted improperly as Pre- sident of a Court Martial, and that he had been guilty of perjury, the Court granted informations. The defendant j| published in a newspaper, entitled " The Gazetteer," the following libel on the Earl of Clanricarde, whose Countess, to whom he had been some time married, was then living, "Last night the Right Honourable the Earl of Clanricarde was married, at St. Mary's church, to Madame Caro- lina, a celebrated dancer belonging to the theatre at Smock-alley, and last Saturday they appeared in * The King r. Pocock. Sir. 1157. t R. v. Lee, 12. Mod. 514. I Trin. 32. G- 2. the King v. Dr. Smollett. § The King v. Philip Thicknesse, Esq. Hil. 3. G. 3. D L, L. 86. II Tr. T. 1 Geo. 3. Dig. I- L. 85- a83 the boxes at Crow-street Theatre : she had jewels on computed at upwards of 3000/." An informa- tion was granted. So where the libel* imputed treasonable designs to a nobleman, an information was granted. And the Court will grant informations without regard to the rankf or dignity of the parties traduced, whenever their immediate interference appears necessary for the purposes of justice. The libel complained of charged several Jews, lately ar- rived from:}: Portugal, with the murder of a Jewish woman and her child, because the father of it was a Christian, and thereby exposed them to the fury of the populace : an information was granted. An information was exhibited against the defend- ant Brown for printing and publishing in a newspa- per, called " The Royal Chronicle," a libel§ enti- tled, " An authentic narrative of several particulars relating to the death of Miss Frances Lynes, whose ghost is supposed to have haunted a house in Cock- lane, West Smithfield, for many nights past," tend- ing to traduce and vilify the reputation of one Wil- liam Kent, and to represent and cause it to be be- lieved, that the said William Kent had, by artful means and circumstances, obtained and procured the last will and testament of the said Frances Lynes, spinster, since deceased, to be made, and unjustly to cause the validity of the said will to be called in question, and also to raise groundless sus- picions concerning the death of the said Frances Lynes ; and also to cause a false and scandalous * Doug. 337. t Doug. 387. K- v. Bate. ♦ Bac Ab. tit Lib. 494. § E. T. 2 Geo. 3. D. L. L. S4. 534 report raised and propagated by means of public newspapers, that the spirit or ghost of the said Frances Lynes haunted the house of one Parsons in Cock-lane, to be believed and credited in order to injure and oppress the said William Kent. Mr. Willy Sutton was tried for the murder of Miss Bell, at the Old Bailey, on which occasion his inno- cence appeared so clear, that the Jury interfered before the learned Judge, who presided, had begun to sum up the evidence. An information was after- wards granted* against Thomas Holland for writing a libel on Sutton, in a pamphlet entitled "A most circumstantial account of that unfortunate young lady, Miss Bell, otherwise Sharpe." When a motionf was made for an information against the defendant for publishing reflections upon the African Company in one of the newspapers, b} r charging them with having supported their trade by treachery and fraud, the Court refused to interfere, considering the matter nothing more than a dispute upon a matter of trade ; but the Court granted a rule to show cause why an information should not be granted for a libel against the New-York Buildings' Company, charging them with raising the value of their stock by getting 100,000/. under]: the credit of their seal. But it seems, that in general, the imputation must be of a personal and criminal nature to induce the * Dig. L. L. 82. East. 7. 1 G. 3. R. v. Holland- 1 The King v. Roberts. Dig. L. L. 89. 2 G. 2. 1 720 I 2 Barnard, E, D. 114, R. v. Nutt- P. I-. I,. 78. 0$i) Court to interfere, and that it is not sufficient that it tends to lessen a man* in his trade. In the case of the King v. Roberts, an information was refused against the defendant! for having pub- lished in a newspaper, that Ward's pills and drops had done great mischief in twelve different cases, and that they were a compound of poison and an- timony. And in general where there is reason to suppose from the circumstances under which the party pub- lished, that the act did not proceed from a mere malicious intention, the Court will not interfere by granting an information. The defendant:*: advertised, that one Maddox, an apothecary, had personated Dr. Crow, a physician, and taken his fees, and an information was refused, the apothecary not pretending to deny the charge. When a man advertised in a public newspaper, that his wife had eloped from him, and cautioned all persons against trusting her, an information for a libel being moved for, it was denied, because it was the only way§ the husband could take to secure himself. It was advertised in one of the newspapers, || that Lady Mordington kept an assembly in Moorfields, upon which Lord Mordington advertised, that the person calling herself Lady Mordington was an im- postrix, and that there was no such person, except * Andr. 229. 2 Barnard, K. B. 1S3. Dig. L. L. 90. c. 3. Bac. Ab. 492- 1 Dig. L. L. 90. Bac. Ab. tit. Lib. 492. I R. v. Bickertou, Str. 498. R. v. Webster, 3. T. K. 338. Dougl- 270- 37( , «, R. v. Enes. Andr. 229. D. L. L. 89- I R. v. Jenneaur, Easter, Q G. 2, Bac. \b- tit Lib. '" ! his wife, who always lived with him. Upon motion for an information it was refused by the Court, since the term impostrix was properly applied to one as- suming the title without any right. So where the imputation is continued in a petition drawn up for the purpose of obtaining redress for an injury, and not with an intention to asperse the prosecutor, the Court will not grant an informationj though the publication impute fraud to the prose- cutor, since it is no more than is alleged in every bill in Chancery. The defendant* complained in a writing, directed to General Wills and the four principal officers of the Guards, in order to be presented to the King, that Captain Carr, after inducing him to part with a warrant for some money due to him from Govern- ment, under the pretence of procuring payment for liim, received the money, and refused to pay it to the defendant. Upon motion for an information, the Court held that the petition was no libel. Miss Mary Jerome,! a Quaker, residing at Not- tingham, having acted in disobedience to the rules prescribed by the sect of which she was a member, by frequenting places of public diversion, going into mourning for the death of a relation, and by other transgressions of a similar nature, the society, after many fruitless remonstrances and other useless at- tempts to reclaim her, proceeded at last in the cus- tomary way to pronounce the sentence of expulsion, which, having been approved of at a monthly * Andr. 229. 3 Bac. Ab. lit. Lib. 492. \ 2 Burn's Ecclesiastical Law. 779. Dig. L. L. 39. :rdl meeting, was afterwards read by the defendant, Francis Hart, as clerk of their meeting. The sen- tence, after charging Miss Jerome with having im- bibed erroneous notions contrary to Scripture doc- trine, and having acted in various parts of her conduct very inconsistently with a life of self-denial, and of having neglected to attend the meetings for divine worship, and reciting tue fruitless attempts of the society to reclaim her from error, and to bring her to the acknowledgment of truth, both in judgment and practice, proceeded to declare her no longer in unity with the society. Miss Jerome, being ac- quainted with this proceeding, sent her maid-servant to the defendant for a copy of the sentence, which he transcribed and enclosed to her under cover ; but upon application to the Court for an information against the defendant, they refused even a rule to show cause. Next, as the rules prescribed to those who apply to the Court for leave to file criminal informations. In general the applicant must waive his right of action ;*and this is an advantage which the defen- dant derives from this mode of proceeding ; for, if convicted under an indictment, the prosecutor would still be at liberty to bring his action to re- cover damages. Where, however, the Court, on hearing the whole matter, are of opinion that it is a proper sunjectforan action, they will give the party leave to bring it.f The Court! will not grant an information, unless • 2 T. R. 198. t Ibid. t Bac. Ah. tit. libel, 492 68 63b the application be made recently after the cause of complaint shall have arisen. The application must be accompanied with affi- davits, stating the circumstances of the case : these ought not to be entitled, and if they are, cannot be read : those produced, on showing cause, may* or may not be entitled; but all affidavits, after the rule is made absolute, must be entitled. f On a motion for an information against A. an affidavit, in a motion against B., cannot be read, since the person who made it would not be liable to an indictment for perjury, though it should be false.! But in the case of the King v. Joliffe,§ a criminal information having been granted against the defendant, he, before the trial at Nisi Prius, dis- tributed hand bills in the assize town, vindicating his own conduct, and reflecting upon the prosecu- tor's. This matter being disclosed to the Judge at Nisi Prius, was held a sufficient ground to put off the trial ; and that affidavit having been returned to the court of King's Bench, another information was granted on it against the defendant ; the affida- vit taken at Nisi Prius being considered as taken under the authority of the Court above. The affi- davit should set forth the libel, its application, and the fact of publication by the person against whom the information is prayed. And where the application of the libellous matter is indifferent, the Court has refused to grant the in- formation, saying, that they required a seeming and * 1 StP. 704. Andr. 313- t 6 T. R. 60. t 11 Mod- 141. § 4 T. R. 285. 539 apparent application to be made.* A. stated in his affidavit, that B. had brought him a challenge from C, and that B. had refused to make affidavit that C. had sent it ; but the Court held this evi- dence insufficient to grant a rule nisi for a criminal information again stf C It has frequently £ been decided, that it is neces- sary for the party praying an information to pro- duce an exculpatory affidavit, denying the truth of the charge, siuce though the truth be no ground of justification on indictment for a libel, yet it is a sufficient reason why the Court should not inter- fere in an extraordinary way. But though the Court, in general, require that the affidavit shall directly§ and pointedly aver the prosecutor's inno- cence of the charge, the rule admits of some ex- ceptions : as where the party charged is abroad, and then the person making the application in his be- half is expected to go as far in his affidavit as the nature of the case admits of, by swearing to letters or other intelligence within his reach. || So, where the charge is general, f no exculpa- tory affidavit is required, since it would be absurd to require a man to swear that he was not a traitor or a thief : neither is it necessary where the party is accused of having used criminal language in parliament, since by the express provision of the * Fitzgibb. 57. pi. 7- D. L. L. 97. Bac. Ab. tit. Lib. 493. t R. v. Willet, 6 T. R. 294. % Str. 498. Andr. 229. 3 Bac- Ab. tit. Lib- 492. Barnard K. B. 13; Doug) 284. § R. v. Miles, Doug. 283. II R v. Bate. Doug. 387, If Ibid 540 Bill of Rights, what passes there cannot be queb tioned elsewhere.* Where a libel stated that the Duke of Athol was held in such general abhorrence in the Isle of Man, that if he should obtain an act, then depending in Parliament, it would occasionf a revolt, the Court held, that no affidavit from the Duke was neces- sary. After the rule" to show cause has been granted upon the prosecutor's affidavits, it seems that affi- davits in confirmation may be produced ; but that a supplementary affidavit, if introductory of new matter, is not admissible: but if the new affidavit be partly confirmatory and partly consist of new matter, the Court will not wholly reject it, but dis- tinguish between^ what is new and what is confirm- atory. Though the affidavits of the relator should be contradicted by those of the defendant, in some circumstances, the Court will nevertheless grant the information, if strong probable ground be laid.§ The defendant|! showed for cause against a rule for an information, that the charge of perjury on which the motion was founded was true ; but Sir J. Pratt, C. J. said, "In all cases, informations for libels go, unless you can show the court some pro- bable cause for them to believe you did not publish it. Now, if you had denied it, it would have signi- fied nothing ; for then, affidavit stands against affi- davit ; therefore, the information shall go, that the fact may be tried." And Fortescue, J. said, " It * 1 W. and M- sess. 2- 6. 2. art. 9. t Doug. 387- in the note. I The King v. Kinaston, 2 Kel. 173. Dig. L. L. 55. § Doug. 387 !! The King v. Dormer. Barnard, K- B- 13 Dig. L. h- 77. 541 would be a strange thing, if a man should be allow- ed to justify when an information is prayed against him, and should not be allowed to justify in the in- formation itself when it is gone." The prosecutor* founded his application upon an affidavit stating, that the defendant confessed to him the publication of the libel ; on the other hand it was shown, that the defendant never made any such con- fession, yet, since the fact of publication was not denied, the information was granted. By a rule E. T. 5 G. 2 — Where a person has ob- tained a rule nisi for a criminal information, and upon showing cause, the rule is discharged, the party whof made the motion shall pay the costs. When an inlormation is filed by leave of the Court, it is provided by St. 4 & 5 W. c. 18. that where the defendant is acquitted, the Court is au- thorized to award costs to the defendant, unless the Judge shall, at the trial, certify that there was reason- able cause. But it has been held compulsory on the Court to grant costs to the defendant in case of his acquittal, and no certificate's having been granted. The certificate must be granted at the trial, and it is afterward too late to inquire whether there was pro- bable cause for the prosecution 4 The process which has been issued in case of libel has been either against the person oi the offender or his papers. 1. Against the person. * R. v. Sharpe, Andr. 384. But this has been held discretionary. 2 Rol. 61. pi- 8. Dig- L. L. 07 + R. v. Woodfall, 2 Str- 1131. Dig. L. L- 98- 54g The defendant,* Derby, having been committed upon the warrant of a Secretary of State, for pub- lishing a seditious libel called the Observator, No. 74, was brought before Chief Justice Parker, by habeas corpus, and by him discharged upon entering into a recognizance to appear on the first day of term. Upon that day the defendant took several exceptions to the commitment, and moved to be discharged, in- sisting, principally, that the commitment previous to indictment, presentment, and conviction for the of- fence imputed to him, was illegal and contrary to St. 25. E. 3. c. 4 ; but the Court held that he was not entitled to his discharge. John Wilkesf was committed upon a Secretary of State's warrant for writing a seditious libel, enti- tled " The North Briton," No. 45. He was after- ward brought up by habeas corpus into the Court of Common Pleas, and beingj privileged as a mem- ber of the House of Commons, was discharged without bail. In the above case§ the Court considered the war- rant of a Secretary of State to be of the same force with that of a Justice of the Peace, and that neither a Secretary nor Justice ought to issue a warrant upon his own private knowledge ; but that it was unnecessary to state upon the face of the warrant * R- v- Derby Fortescue, 140. Dig- L. L. 31. f 2 Wilson, 159; J But, by the resolutions of both Houses of Parliament it has been decided, that privilege does not lie in the case of a seditious libel. See Dig. L. L. 54. And the House of Commons has committed one of its members for publishing reflections upon that assembly. Since the privilege of members of Parliament from ar»est is not materially connected with the law of libel, the reader is re- ferred, on that subject, to the arguments used by the counsel for the sever Bishops, St. Tr. 4 J. 2. and the case of the Kins v. Wilkes, D. L. L. 43 • Spp. Dig. L. I 51. d4S the evidence upon which it was granted, or even to state in the warrant that it was granted upon any charge made. And in the same case it was held, that the words contained in the warrant for being the author and publisher of a "most infamous and seditious libel, entitled " The North Briton," was a sufficient description of the offence, since it was known specifically by that name. In Leach's case* the warrant from the Secretary of State was couched in the following terms : " These are, in his Majesty's name, to authorize and require you (the messengers) taking a constable to your assistance, to make a strict and diligent search for the authors, printers, and publishers of a seditious and treasonable paper, entitled The North Britain, No. 45, and them, or any of them, having found, to apprehend and seize, together with their papers, and bring in safe custody before me, to be examined concerning the premises, and further dealt with according to law." The messengers, under this warrant, seized Mr. Leach and imprison- ed him for some time ; but on its being found that he was neither author, printer, nor publisher, he was discharged by the Earl of Egremont's order, without even having appeared before him. After a verdict for the plaintiff the defendants carried the matter, by a bill of exceptions, to the court of King's Bench, when the single point decided was, that the defend- ants could not justify, inasmuch as they had not acted in obedience to the warrant.f * 1 1 St- Tr. 307. t By a resolution o( the House of Commons it was declared , that general -warrants in the case of libel are illegal. .Tourn. Comm. 22 Ap. 176fi. And snch 544 It is enacted by 43 G. 3. c. 58. s. 1.-—" That when- ever any person is charged with any offence for which he may be prosecuted by indictment or in- formation in the King's Bench (not being treason or felony,) and the same shall be made to appear to any Judge of the same by affidavit or by certificate of the indictment, or information being filed against such person in the said court for such offence, such Judge may issue his warrant under his hand and seal, and thereby cause such person to be appre- hended and brought before him or some other Judge of the same court, or before some one Justice of the Peace, in order to his being bound, with two sure- ties, as the said warrant shall express, with condi- tion to appear in the said court at the time mention- ed in the said warrant, and to answer all and singular indictments or informations for any such offence ; and if he shall neglect or refuse to become so bound, such Judge or Justice may respectively commit him to the common jail of the county, city, or place, where the offence shall have been committed, or where he shall have been apprehended, there to re- main until he shall become bound as afosesaid, or be discharged by order of the said court, in term time, or by one of the Judges of the said court, in vacation ; and the recognizance to be thereupon taken shall be returned and filed in the said court, and shall continue in force until such person shall have been acquitted of such offence, or in case of conviction, shall have received judgment for the were, by a subsequent resolution, declared to be illegal in all cases. lb. 5}5 '•n. 1766, 545 same, unless sooner declared by the said court to be discharged." And the same act further pro- vides, " That in case any defendant be committed, either by virtue of such warrant, or by virtue of any writ of capias ad respondendum, for want of bail, a copy of the indictment or information shall be de- livered to him or to his jailer, with notice that un- less he shall within eight days enter an appearance, plea, or demurrer, to such indictment or informa- tion, an appearance and the plea of not guilty will be entered in his name ; and that if such defendant shall neglect for eight days to enter an appearance, and to plead or demur, the prosecutor may, on affi- davit of the service of the copy and notice, enter an appearance and the plea of not guilty, and proceed in the usual course : and that, upon acquittal, the Judge before whom the trial is had (though not a Judge of the King's Bench) may order such de- fendant to be discharged out of custody as to his aforesaid commitment." With respect to the seizure of papers, it is said to have been resolved by all the Judges, that where persons write, print, or sell any pamphlet, scanda- lizing the public or private persons, such books may be seized, and the person punished by law.* The practice of issuing a general warrant to seize the papers of a suspected person, appears to have been frequently resorted to, in former times, with great abuse, of which the case of Lord Cokehimself furnishes an instance ; whose papers were seized and carried to the Secretary's office, * 4 Read. St. Law. 15# 69 546 with some valuable securities, which were never returned to him.* Insignificant however is a loss of such a nature when compared with the more serious evils incident to such a procedure, the grievous in- vasion of domestic peace and security, and the faculty with which a person might be made responsible for the contents of writings never in his possession, or deprived of those necessary for the purpose of his defence. A warrantf was issued in the name of the Duke of Newcastle, one of the Secretaries of State, di- rected to two of the King's messengers, requiring them, taking a constable, to make a diligent search in the house of Dr. Earbury, the author of a trea- sonable paper, entitled " The Royal Oak Journal," for all papers of whatsoever kind in his custody, and to bring the said papers before him; the messengers, without taking a constable to their assistance, en- tered the defendant's house, seized his papers and brought them before Mr. De La Faye, who was the Duke's Secretary and a Justice of the Peace. The defendant afterwards applied to the Court of King's Bench to have his papers restored to him, insisting that a Secretary of State could not legally grant a warrant to seize a person's papers. Lord C. J. Hardwicke said, that as to seizing the defendant's papers, he would not give any opinion whether it was legal or not, that the Court of King's Bench could not grant a rule upon the messenger who did seize them to restore them, and therefore that the question was not properly before the Court for their determination. * Dig. L. I.. 33. t 2 Barnard. K. B. 346. Dig. L. L. 33. D47 But in the great case* of the seizure ot papers, it was decided, that a Secretary's warrant to search for papers was illegal : and Ld. Camden, C. J. ob- served, "If this point should be determined in favour of the jurisdiction, the secret cabinets and bureaus of every subject in the kingdom will be thrown open to the search and inspection of a mes- senger, whenever the Secretary of State shall think fit to charge, or even suspect a person to be the au- thor, printer, or publisher of a seditious libel. This power so assumed by a Secretary of State, is an ex- ecution upon all the parties' papers in the first in- stance ; his house is rifled — his most valuable secrets wrested out of his possession, before the paper, for which he is charged, be found criminal by any com- petent jurisdiction, and before he is convicted either of writing, publishing, or being concerned in the paper. This power of the Secretary is not sup- ported by one single citation from any law book extant — it is claimed by no Magistrate in the king- dom but himself. Papers are the owner's goods and chattels, — they are his dearest property, and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot, by the law of England, be guilty of a tres- pass, yet where private papers are removed and carried away, the secret nature of the goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any Magistrate such a power? I can safely say, there is none ; and there- * Entickv. Carrington and others, 11 St. Tr. 317. 548 fore it is too much for us, without such authority, to pronounce a practice legal, which would.be sub- versive of all the comforts of society." " There is no authority to show that libels might be seized, except the opinion of the twelve Judges, at the close of the reign of C. II., who gave it as their opinion, that no one could legally expose to the public any thing that concerned the affairs of the public, without license from the King. This was quoted by C. J. Scroggs on the trial of Harris for a libel, who extended the doctrine to the sei- zure of all books, pamphlets, and writings, on mat- ters of public concern." And again, "It is urged as an argument of uti- lity, that such a search is a means of detecting of- fenders by discovering evidence. I wish some case had been shown where the law forceth evidence out of the owner's custody by process." "In the criminal law such a proceeding was never heard of; and yet there are some crimes, such, for instance, as murder, rape, robbery, and housebreak- ing, to say nothing of forgery and perjury, that are more atrocious than libelling ; but our law has provided no paper search upon those occasions to help forward the conviction. Whether this pro- ceeded from the gentleness of the law, or from the consideration that such a power would be more per- nicious to the innocent than useful to the public, I will not say." " Observe the wisdom as well as the mercy of the law. The strongest evidence before trial, being only ex parte, is but suspicion, — it is not proof: weaker evidence is a ground of suspicion, though in a 549 lower degree; and if suspicion at large should be a ground of search, especially in case of libels, whose house would be safe ? Upon the whole, we are of opinion, that the warrant to seize and carry away the parties' papers in case of a seditious libel, is illegal and void." And the House of Commons* afterwards came to a resolution, declaring the seizure of papers, in the case of libel, to be illegal. Since a criminal proceeding is in its nature local, the offence must be laid and proved to have been committed in the county within which the billf is preferred. And the indictment may be tried at the quarter sessions, before the Justices of the Peace, as well as before the Justices of Oyer and Terminer.^ With respect to the technical mode of framing an information or indictment, little remains to be added to the observations already made on the sub- ject of the§ declaration. It has been decided, that it is unnecessary to aver the offence to have been committed with " force and arms," since || the pub- lishing of a libel is not a breach of the peace, but only tends to the breaking of it. Neither is it necessary to allege that the matter published is false, since the averment need^I not be proved ; but the word malitiose,** or at least some equivalent epithet, has been held essential. An indictmentf t stating that the defendant "scripsit * Jour. Comm. 25th April, 1766. t 4 Read. St. Law. 155. 8 Mod. 328. Dig. L. L. 97. I 2 Haw. c. 8. s. 88. R. v. Summers. 1 Lev. 139. § Vide supra, ch. 19, 20. [See post, note 45.] II 7 T. R. 4. f lb. ** Sty. 392. per Roll. C. J. 1 Vin. Ab- 533. pi. 3. tt 8 Mod. 328. 550 fecit, et publicavit, seu scribi fecit, et publicari causavit," has been held too uncertain. The most usual plea in an indictment or informa- tion, is the general issue of not guilty, by which the defendant puts himself generally upon the country for his deliverance, and is entitled to take advantage of every defect in the evidence for the prosecution ; or to rebut that evidence by counter proof, tending to convince the jury, either that the act imputed was not committed ; or allowing the publication, to show from the context,* or other circumstances, either that the matter published was not criminal in its na- ture ; or if criminal, that it was published inadver- tently,! and without any guilty knowledge.! * R. v. Lambert and Perry, 2 Camp. N. P. 398- t R. v. Lord Abingdon, 1 Esp. 226. X In the case of the King v. Holt, 5 T. R. 444. Lord Kenyon, C. J. ob- served, if the defendant could have shown that he had published the paper in question without knowing its contents, as that he could not read, and was not informed of its tendency till afterwards, that argument might have been pressed upon the Jury. 5*1 CHAPTER XL. Of the Trial and its Incidents. The offence of the defendant, as stated upon the record, is compounded of four ingredients, 1. The naked overt act, by which he was instru- mental to the existence or publication of the libel. 2. The sense in which he published the libel, as pointed out by the proper averments. 3. The tendency of the matter published, when thus understood, to create public mischief. 4 The criminal intention with which he acted, including a guilty knowledge of the contents of the alleged libel. The two iirst of these are mere matters ot tact, which have ever been considered as appertaining to the decision of a jury, conformably with the maxim, " Ad queestionem facti respondent juratores, ad qusestionem juris respondent judices." But with respect to the tendency of the publica- tion and the intention of the publisher, a remarkable doubt has prevailed, whether their consideration ought not to be abstracted from a jury and reserved 552 exclusively for the attention and decision of the Court. Before the history of the question is briefly sketch- ed, it may be proper to suggest by what peculiarity in the subject matter it was raised. The essence of a libel consists in its tendency to produce mischief, without regard to any mischief actually produced : when, therefore, the act of pub- lication, and sense and meaning of a libel have been once established, its illegality, that is, its tendency, appears on the record, and requires no further aid from evidence. But the intrinsic illegality is not a mere question of law, since it consists in tendency, which cannot depend wholly upon authority and precedent, but partly, at least, upon extrinsic cir- cumstances, the temper of the public mind, and the passing events of the day. Nor is the intrinsic ille- gality a mere question of fact ; if, indeed, the cri- minality were required to be ascertained by some visible effect, as the production of a riot, no doubt could exist, and a jury must determine the question of libel or no libel, by inquiring into the existence of the visible test ; but resting in mere tendency, it cannot be decided by the mere aid of that kind of evidence upon their credence to which a jury in ge- neral pronounce their verdict. The question, there- fore, nakedly considered, and without reference to authorities, is ambiguous in its nature, depending for its solution upon a sound judgment and discretion applied to the alleged libel and the temper anil cir- cumstances of society, rather than upon a profound knowledge of law on the one hand, or the assistance of evidence on the other. 553 After the abolition of the Star-chamber, which in case of libel exercised an unbounded control over both law and fact, the cognizance of such offences reverted to the court of King's Bench, to be ex- ercised in the constitutional mode by the interven- tion of a jury ; and till some time after this period, no doubt seems to have been entertained of the right of a jury to give a general verdict in the case of Jibel, as well as in any other criminal proceeding. In the year 1670,* two Quakers, Penn and Mead, indicted for seditiously preaching to a multitude tumultuously assembled in Gracechurch-street, were tried before the Recorder of London, who told the Jury, that they had nothing to do but to find whether the defendants had preached or not ; for that, whether the matter or the intention of their preaching was seditious, wgre questions of law but not of fact, which they were to keep to at their peril. The Jury first found Penn guilty of speak- ing to the people in Gracechurch-street. This ver- dict having been refused by the Recorder, the Jury again retired, and afterward brought in a general verdict of acquittal ; this the Court, considered as a contempt, and set a fine of forty marks on each of them, and directed them to be confined till the fine should be paid. Edward Bushel, one of the ju- rors, refused to pay the fine, and being imprisoned in consequence of his refusal, sued out his writ of habeas corpus, which was returned, together with the cause of his commitment, " his acquital of Penn and Mead against the law of England, against the * Bushel's case, Vaughau. Rep. 135 70 554 evidence, and against the direction of the Court on matter of law." Lord Chief Justice Vaughan, on the latter part of the return, observed, " The words, that the Jury did acquit, against the direction of the Court in matter of law, literally taken and de plcmo, are in- significant and unintelligible ; for no issue can be joined of matter in law, no Jury can be charged with matter in law barely, no evidence ever was or can be given to a jury of what is law or not, nor no such oath can be given to or taken by a Jury to try matter in law, nor no attaint can lie for such a false oath. " Therefore we must take off this veil and colour of words, which make a show of being something, and in truth are nothing. "If the meaning of these words, finding against the direction of the Court in matter of law, be, that the Judge having heard the evidence given in Court, for he knows no other, shall tell the Jury upon this evidence, the law is for the plaintiff or for the de- fendant, and you are under the pain of fine and im- prisonment to find the contrary, then the Jury ought of duty so to do, every man sees that the Jury is but a troublesome delay, great charge, and of no use in determining right and wrong ; and, therefore, the trials by them may better be abo- lished than continued, which were a strange new found conclusion, after a trial so celebrated for many hundreds of years. " For if the Judge, from the evidence, shall by his 555 own judgment first resolve upon any trial what the fact is, so knowing the fact shall then resolve what the law is, and order* the Jury severally to find ac- cordingly, what either necessary or convenient use can be fancied of Juries, or to continue trials by them at all." Upon the trial of Nathaniel Thomsonf and others for composing and publishing libellous re- marks upon the administration of Justice, the Chief Justice]: concluded his observations to the Jury, by saying — " Gentlemen, I do leave it to you, whe- ther upon this evidence you do not believe them all to be guilty of this design of traducing the justice of the nation." In the case of the Seven§ Bishops, who were in- dicted for having offered a petition to the King, which was alleged to be a libel, the Judges who seemed no ways inclined to favour the defendants, would not accede to the doctrine of the Counsel for the Crown, who contended that the malice and sedition, wherewith the prelates were charged, arose by construction of law out of the fact, and that the Jury had nothing to concern themselves with but the fact of the publication in Middlesex. The defendants had given in evidence several parliamentary documents, to prove that the dispens- ing power claimed by the King, and against the ex- ercise of which the petition of the Bishops was di- rected, was illegal. The then Attorney-general, * Bushell's case, Vaughan. Rep. 135. t 3 St. Tr. 37. The object of the publication waa to prove that Green, Berry, and Hill, had been improperly convicted of the murder of Sir F.dmond- bury Godfrey. • Sir Francis Pemberton- § St. Tr. 4 J. 2. 556 alter some slight remarks upon this evidence, was about to conclude with a somewhat flippant expres- sion of regret, that the defendants' counsel had spent their time to so little purpose, when the Chief Justice observed, "Yes, Mr. Attorney, I'll tell you what they offer, which it will lie on you to give an answer to," — they would have you show how this has disturbed the Government or dimin- ished the King's authority." The Attorney-ge- neral then contended, that malice or sedition arise by construction of law out of the fact ; and that if the thing be illegal, the law says it is seditious, and a man shall not come and say he meant no harm by it. And afterwards whilst the Solicitor-general was speaking, the Chief Justice interrupted him by re- questing him to come to the business before them, and to show that the alleged libel was in diminution of the King's prerogative, or that he ever had such a prerogative. Upon summing up to the Jury, the Chief Jus- tice, after addressing the Jury upon the point of publication, proceeded, " If you believe this was the petition they presented to the king, then we must inquire whether this be a libel." The Chief Jus- tice then proceeded to intimate his opinion, that the publication in question was a libel, but as it was a point of law, invited his brethren to give their opinions. This the other Judges proceeded to do. Justice Hollo way concluded by saying, " I can- not think it is a libel ; it is left to you, Gentlemen, but that is my opinion." DO/ Powell J. also delivered his opinion to the same effect, leaving the issue to the conscience of the Jury. And afterward when the Jury retired to deter- mine upon their verdict, they were permitted to take with them the alleged libel. Upon the trial of John Tutchin,* upon an infor- mation for publishing a libel entitled the Observator, Lord Holt C. J., after reading the printed papers alleged to be libels, told the Jury, "Now you are to consider, whether these words I have read to you do not tend to beget an ill opinion of the admin- istration of the Government." The learned Judge, it is true, concluded his address, as was afterward observed by Lord Mansfield C. J., by saying, " If you are satisfied that he is guilty of composing and publishing these papers in London, you are to find him guilty." But these words have immediate re- ference to the ground of defence upon which Mr. Tutchin's counsel meant to rely ; namely, that the offence had not been proved to have been commit- ted in London, and cannot be considered as used for the purpose of withdrawing the attention of the Jury from the quality of the publication, upon which they had just before received instructions ; and in- deed to suppose it had so meant would prove too much, since if so, the Jury were directed not to find the truth of the innuendos. The first instance which appears where the Court directed the Jury to find the defendant guilty, if they were satisfied with the evidence of publication, ap- pears to be that of the King v. Clerkf for publishing * 4 St. Tr. 659- 1 2 G. 2. 1729- Barnard. K- B. 304. 55S Mist's Weekly Journal. It appeared upon evidence, that the defendant acted merely as servant to a printer, that his business was to clap down the press, and there was little or no proof of a guilty knowledge of the contents of the paper, or of his being con- cerned in a criminal act. It was objected by Ser- geant Hawkins, that the charge of a malicious and traitorous design was not supported by the evidence, from which it appeared that the defei dant acted ig- norantly and in obedience to his master's directions. But it was answered, that since the defendant was merely charged with the publishing a seditious libel, the malice was immaterial; and Lord Raymond, Chief J. informed the Jury, that the«fact of printing and publishing only was in issue. And the same learned Judge, upon the trial of an information,* directed the Jury, " that there were three points for consideration : the fact of pub- lication, the meaning, (these two for the Jury) the question of law or criminality for the Court upon the record." Lord Chief Justice Lee gave the same direction in the King v. Owen,f and Lord Chief Justice Ryder followed his example in the case of the King v. Nutt4 Lord Mansfield, soon after his appointment to the high office of Chief Justice, laid down§ the same doctrine in the case of the King v. Shebbeare ; and though the same learned Judge repeated the same directions in a number of similar cases, all * 9 St. Tr. 255. t 10 St. Tr. App. 196. 2, 5 G. 2. K. B. MSS. Dig. LL. 67. Per Lord Mansfield, 3 T. R. 430 in the notes. 5 Ik •559 disquisition upon the province of the Jury on these points seems to have slept, Ml the verdict given in the case of the King v. Woodfall.* That was the case of an information filed by the Attorney-general for publishing a seditious libel signed Junius ; the Jury found him guilty of the printing and publishing ONLY. Upon motion to arrest the judgment, it was in- sisted upon for the defendant, that a criminal inten- tion is the essence of the offence ; and that since they had not found malice, it must be taken not to have existed, since a verdict could not be supplied by inference ; but that at all events the verdict was imperfect, and that there should be a new trial. For the Crown it was argued, that the law would collect the intention from the libel itself, thni the printing and publishing were all the Jury had to in- quire about, and that the intention might be collect- ed from the libel itself. Lord Mansfield, C. J. in delivering the judgment of the Court, observed, " there may be cases where the fact proved as a publication may be justified, or excused as lawful or innocent ; for no fact which is not criminal, in case the paper be a libe!, can amount to a publication, of which the defendant ought to be found guilty. But no question of that kind arose in this case, therefore I directed the Jury to consi- der whether all the innueiidos, and all the applica- tions to matters and persons, made by the informa- tion, were in their judgments the true meaning of the paper ; if they thought otherwise, they should * 5 Burr. 2661- 560 acquit the defendant, but if they agreed with the in- formation, and believed the evidence as to the pub- lication, they should find him guilty." The learned Judge then proceeded to observe, that " if proof of the express intent of the defendant were requisite, the direction was wrong ; but that, whether the pa- per was in law a libel, was a question of law upon the face of the record ; and that the epithets in the information were formal inferences of law from the printing and publishing. That the verdict finds only what the law infers from the fact ; that where an act, in itself indifferent, if done with a particular in- tent, becomes criminal, there the intent must be proved and found ; but where the act is in itself un- lawful, the proof of justification lies upon the de- fendant, and in failure thereof the law implies a criminal intent." Having thus declared his opinion upon the subject of libel, in the propriety of which his brethren agreed with him, Lord Mansfield then proceeded to deliver the sense of the Court upon the verdict before them; the substance of which was, that as a doubt had arisen from the introduction of the ambiguous and unusual word only into the verdict, there should be a venire de novo.* (I) * Woodfall's case. 5 Burr. 2661. (1) Upon an indictment for writing and publishing a libel on the characters of ■ I. and B. and also upon the memory of C. deceased, the jury found the de- fendant "guilty of writing and publishing a bill of scandal against A- and B., but not guilty as to any C. deceased." Judgment reversed, because the de- fendant was not found guilty of the offence charged in the indictment. Sliarff v. The Commonwealth, 2 Binn- 514- 6'J1 The legality of the doctrines laid down by Lord Vlansfield in Woodfall's case, appears to have been expressly decided upon by the Court of King's Bench, for the first time, in the case of the King against* Wm. Davies Shipley, Dean of St. Asaph. The defendant was tried before Mr. J. Buller, atf Shrewsbury, upon an indictment, charging him with having published a malicious, seditious, and scan- dalous libel, entitled, " The Principles of Govern- ment, in a Dialogue between a Gentleman and a Farmer.;" with intent to incite the King's subjects to attempt, by force and violence, to make alterations in the government, state, and constitution of the king- dom. The fact of publication was clearly proved ; and of the truth of the innuendos, there was no doubt, since they merely averred, that by the letter G., was meant gentleman ; by F., farmer ; 'by the King, the Kins of Great Britain. One witness for the de- fendant stated, that upon his informing him, that some gentlemen were of opinion the publication might do harm, the defendant answered, he should be sorry to publish any thing that tended to sedition ; that some time after, he said, upon reading it at a public meeting, " I am now called upon to show that it is not seditious, but I read it with a rope about my neck ;" and that upon another occasion:, when he had read it, he gave his opinion that it ivas not quite so bad. The learned Judge, on summing up the Jury, * 3T.R- 428. in the notes, see also Ridgway's speeches of the Hon. Thoi Erskine, vol. I. t Aug. 6th, 1784. % Ttidgwav's speeches of the Hon. Thomas Erskine,. 71 5t>2 declared thai it was not for him to say whether the pamphlet was or was not a libel ; and concluded his address to them in these words : "If you are satis- fied that the defendant did publish this pamphlet, and are satisfied as to the truth of the innuendos, in point of law, you ought to find him guilty ; if you think they are not true, you will acquit him." The Jury brought in their verdict " guilty of pub- lishing only." The learned Judge then informed them, that by such a verdict they would negative the meaning of the innuendos, but that if they left out the word only, the question of law would be open upon the record, and that the defendant might move in arrest of judgment. Upon this di- rection, Mr. Erskine (the defendant's counsel) said r " I beg to ask your Lordship this question, whe- ther, if the Jury find him guilty of publishing, leav- ing out the word only, and if the judgment be not arrested by the court of King's Bench, the sedition will not stand recorded?" Mr. J. Buller. "No, it will not; unless the pamphlet be a libel in point of law." The Jury then returned their verdict, " Guilty of publishing, but whether a libel or not we do not find." Upon a motion for a new trial, on the ground of a misdirection by Mr. Justice Buller, the Counsel for the defendant urged five distinct points — I. That in every criminal case, upon a plea of not guilty, the Jury are charged generally with the defendant's deliverance from that crime, and not specially from any single fact. Upon this topic it was urged, that the rules of pleading in civil cases were framed for the purpose of preserving: the ju- mdictioii ot the Court and Jury distinct, by li sepa ration of the law from the fact ; but that in criminal cases, no such boundary was ever attempted ; — that on the contrary, it had been the custom, from the time of the Norman conquest, for the defendant to throw himself upon his country for deliverance, upon the general issue of not guilty, and to receive from the verdict of the Jury a complete, general, and conclusive deliverance. In support of this doctrine, the opinions of Sir Wm. Blackstone, Sir M. Hale, Sir Mich. Foster,* and Lord Raymond, weref referred to, and thence assuming that the jury had a right to give a general verdict, it was contended, that to enable them to do so, it was the duty of the Judge to direct them upon the law; and that having omitted so to direct them, and having informed the Jury, that neither the ille- gality of the paper, nor the intention of the defend- ant, were within their jurisdiction, the defendant had, in fact, been found guilty without any investi- gation of his guilt, and without any power left to the Jury to take cognizance of his innocence. That 2dly. No act is in itself a crime, as abstracted from the malicious intention of the actor, the estab- lishment of the fact being nothing more than evi- dence of the crime, and not the crime itself, unless the Jury render it so by referring it voluntarily to the Court by special verdict. That in every case, a general verdict, which is as comprehensive as the issue, unavoidably involves a question of law as well as fact, and therefore that a judge who means * Foster, 256-. t 2 Lord Bay. H94- O.04 to direct a Jury to iitid generally against a defendant, must leave to their consideration every thing which goes to the constitution of that general verdict, and to direct them how to form that general conclusion of guilty, which is compounded of both law and fact. That the verdict must be taken to be either ge- neral or special ; if general, it had been found with- out a co-extensive examination — if special, the term guilty could have no place in it : that the term guilty was either operative and essential, or a mere epithet of form ; if essential, then a conclusion of criminal intention had been obtained from the Jury without permitting them to exercise their judgment on the defendant's evidence — if formal, no judgment could be founded on it. 3dly. That the circumstance of the libel's appear- ing upon the record did not distinguish it from other criminal cases. For first, the whole charge does not always appear upon the record ; since a part of a publication may be indicted, and may, when sepa- rated from the context, bear a criminal construction ; and since the Court is circumscribed by what ap- pears upon the record, the defendant could neither demur to the indictment nor arrest the judgment after a verdict of guilty. That the defendant is equally shut out (by the doctrine insisted on) from deriving any aid from context, in his defence before a Jury, for though he should read the explanatory context in evidence, he can derive no advantage from reading it, if the Jury are bound to find him guilty of publishing the matter contained in the in- dictment, however its innocence mav be established • ><).» by a view of the whole work ; that the only opera- tion of the context, is to show the matter upon re- cord not to be libellous, from the consideration of which, as being matter of law for the consideration of the court, they are excluded : that to allow the Jury to go into the context in order to form a cor- rect judgment of the part indicted, is a palpable admission of their right to judge of the merits of the paper and the intention of its author ; and that it would be preposterous to say that the Jury have a right to decide a paper criminal as far as appears upon the record, to be legal, when explained by the whole work, of which it is a part ; but that they have no right to say, that the whole work, if it happen to be set out on the record, is innocent and legal. That it is equally absurd to contend that the in- tention of the publisher may be shown as a fact by the evidence of any extrinsic circumstances — such as the context ; and in the same breath to say that it is an inference of law from the act of publication which the Jury cannot exclude. That the conse- quences of such a doctrine would be most danger- ous, since, if a seditious intention could be inferred from publishing any paper, charged to be a libel, a treasonable intention might with equal reason be in- ferred from publishing a paper charged to be an overt act of treason. 4thly. That a seditious libel contains no matter of law ; for the Court, in considering the question of a libel, as it appears upon the record, are circum- scribed in forming their judgment, and can derive no assistance from extrinsic circumstances ; since. $66 if they were to break through their legal letter*, their judgment would be founded in facts, not in evidence : but that such objections would vanish if the seditious tendency be considered as a question of fact, since the Jury can examine, by evidence, all those circumstances, which establish the sedi- tious tendency of the paper, from which the Court are shut out. 5thly. That in all cases when the mischievous in- tention, which is the essence of the crime, cannot be collected by simple inference from the fact charged, because the defendant goes into evidence to rebut such inference, the intention becomes a pure unmixed question of fact for the consideration of the Jury. That " the publication* of that which is unlawful is but evidence of a criminal intent ;" but that in the principal case evidence had been offered in favour of the defendant, though by the learned Judge's directions to the Jury, the whole of it had been removed from their consideration. That in Lamb'sf case it was laid down, that every one who should be convicted of a libel must be the writer, contriver, or malicious publisher, knowing it to be a libel ; that the knowledge there meant was not a mere knowledge of the contents, for that would make criminality depend upon the conscious- ness of an act, and not on the knowledge of its quality, which would involve lunatics and children in all the penalties of criminal law. Lord Mansfield, C. J. in delivering the judgment * Lord Mansfield's doctrine in the cases of Woodfall and Almon. 5 Burr 9661. 2686. . + 9 Co. 59. ft of the Court, observed, " Four objections have bee& made ; the first is peculiar to this case, namely, that evidence of a lawful excuse or justification was not left to the jury as a ground of acquittal. Upon every such defence there arise two questions — the one of law, the other of fact. Whether the fact al- leged (supposing it true) be a lawful excuse, is a question of law : whether the allegation be true, is a question of fact ; and according to this distinction, the Judge ought to direct, and the Jury ought to fol- low his direction ; though by means of a general verdict they are intrusted with the power of con- founding the law and fact, and of following the pre- judices of their affections and passions." The learned Judge then proceeded to comment upon the evidence offered by the defendant, which the Court considered as rather aggravating his con- duct than supplying a ground of defence to be left to the Jury. His Lordship then observed, " The second objection is, that the Judge did not give his own opinion whether the writing was a libel, or se- ditious, or criminal. The third, that the Judge told the Jury that they ought to leave the question upon the record to the Court, if they had no doubt of the meaning and publication." That the answer to these objections is, that, by the constitution, the Jury ought not to decide the question of law, whe- ther such a writing of such a meaning, published without a lawful excuse, be criminal, and that thev cannot decide it against the defendant ; because, after a verdict, it remains open upon the record. That this is peculiar to the form of a prosecution for libel, that the question of law remains open for th< j6b Court on the record, and that the Jury cannot de- cide it against the defendant ; so that a general ver- dict that the defendant is guilty is equivalent to a special verdict in other cases. That no case had been cited of a special verdict in a prosecution for libel, leaving the question of law upon the record to the Court. That a criminal in- tent, from doing a thing in itself criminal without a lawful excuse, is an inference of law. That the practice objected to had continued ever since the revolution without opposition. That the funda- mental definition of trials by Jury, depends upon an universal maxim without an exception, Ad quaes- tionem facti respondent juratores, ad qiecestionem peris respondent judices ; that where the questions can by the form of pleading be separated, the dis- tinction is preserved upon the face of the record ; but that when by the form of pleading the two ques- tions are blended together, and cannot be separated upon the face of the record, the distinction is pre- served by the honesty of the Jury. His Lordship concluded by giving the judgment of the Court, that the rule for a new trial should be discharged.* Lord Kenyon, C. J. adopted Lord Mansfield's doctrine in summing up to the Jury in the case of the King v. Withers. f As a matter of speculative curiosity, it is most singular, that the determination of the four points of which the guilt of a libeller is compounded should have afforded room for so com- plicated an argument in so advanced a period of * Mr. Erslvinc afterwards moved in arrest of judgment, and judgment was arrested, the Court considering the indictment to be defective, t 3 T . R bingiish jurisprudence ; the case comprehends no more difficult elements than matters of construction and of intention, questions by no means peculiar to the case of libel, but forming ingredients in other criminal charges, though under different modifi- cations.^) The circumstance of this discussion is the more curious from the consideration that the contending (1) The first article of the Amendments to the Constitution of the United States, provides, that Congress shall make no law abridging the freedom of speech or of the press ; and the Constitutions of most of the States contain similar pro- visions. The Constitutions of Pennsylvania, Delaware, Kentucky, Ohio, Ten- nessee, Indiana, and Illinois, provide that in prosecutions for the publicotion of papers investigating the official conduct of officers, or men in public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. The Constitution of Maine, provides for the right to give the truth in evidence in the above-mentioned cases, and extends ii to pro- secutions for any publication respecting the qualifications of those who are can- didates for the suffrages of the people. It is also provided by the Constitutions of the above-mentioned States, that the jury under the direction of the Court shall have a right to determine the law and the facts. The 3d Sect, of the Act of Congress of 1 ith July, 17D9, (Pamph. Laws, Vol. 5, 202,) provided, that any person prosecuted under that act, for writing or publishing any libel, might, upon, the trial of the cause, give in evidence in his defence, the truth of the matter contained in the publication charged as a libel, and that the jury should have a right to determine the law and the fact, under the direction of the Court, as itv other cases. — The Constitutions of Connecticut and Mississippi, provide that in all prosecutions or indictments tor UIjcIs, the truth may be ^iven in evidence, and the jury shall have the right to determine the law and the facts, tinder, the direction of the Court. In X.w Jersey, (Act of 1:1th June, 179'J, Perm- Rev, Laws, 475,) and Jftw-York, (Act of 6th April, 1805, Van Mess & Wood. Rev. Laws, Vol. 2, 553,) the truth maj used as a defence in all prosecutions for. libel. But in the latter State it must appear satisfactorily upon the trial, that the matter charged as libellous was published with good motives, and for jus- tifiable ends, or the truth will not be a justification. In South Carolina, the in- tention with which a publication is made, as well as the fact of publication, and the truth of the innuendos, are involved in the general issue, and the whole case, law, as well as fact, is resolved by a general verdict. State v. Allen, 1 M'Cord's Rep. 525. See, as to publications in relation to candidates for public office, Comm. v. Clap, 4 Mass. Rep. 163, and Mayrant v. Richardson, I Nott &. M'Cord's Rep. 347- 57U parties agreed upon all the points which may be considered as essential to the theoretical and ab- stract justice of the case, and differed only as to the means and process by which the ends of justice might be best accomplished, it being on all parts admitted that a mischievous tendency in the thing published, and a criminal intent in the publisher, were necessary to the existence of the crime. After this brief review of the principal decisions upon this interesting topic, little remains, but to quote the terms used by the legislature, when Par- liament deemed it proper to interfere and remove all doubt from this important subject. In the Statute 32 George III. c. 60. it is recited, that doubts had arisen, whether, on the trial of an indictment or information for the making or pub- lishing any libel, when an issue or issues are joined between the King and the defendant or defendants, on the plea of not guilty pleaded, it be competent to the Jury impannelled to try the same to give their verdict upon the whole matter in issue ; and it is then declared and enacted that on every such trial the Jury sworn to try the issue may give a general ver- dict of guilty or not guilty upon the whole matter put to issue upon such indictment or information, and shall not be required or directed by the Court before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such de- fendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information. By the second section it is provided, " that on every such trial the Court or Judge, before whom such indictment or information shall be tried, shall, according to their or his dis- cretion, give their or his opinion and direction to the Jury on the matter in issue between the King and the defendant or defendants, in like manner as in other criminal cases." By the third section it is also provided, " that nothing herein contained shall extend, or be construed to extend, to prevent the Jury from finding a special verdict, in their dis- cretion, as in other criminal cases." And by the fourth section "in case the Jury shall find the de- fendant or defendants guilty, it shall and may be law- ful for the said defendant or defendants to move in arrest of judgment, on such ground and in such man- ner as by law he or they might have done before the passing of this act any thing herein contained to the. contrary notwithstanding." Depositions taken before* a magistrate are not evidence upon a trial for libel, since the statutes,! by which such are made evidence, extend to the case of felony only. Where a paper is given in evidence as having been written by the defendant, he is entitled to have the whole of its contents read. $ And when the alleged libel was contained in a newspaper, the defendant was allowed to have an extract from a distinct part of the same paper, but relating to the subject, read§ in evidence. The defendant acknowledged himself to have been the author of a libel produced in evidence, errors of the press and some small variations ex- * R. v. Paine- 5 Mod. 163- 1 1 and 2P. and M. c. 13. 2 and 3 P. and M. c. 10. 5 Mod 163 § R. y. Ijambert. 2 Camp. 399. -yi> cepted, the defendant's Counsel objected that tiit confession was not absolute, and, therefore, that the libel could not be read ; but Pratt, C. J. allowed it to be read, saying he would put it upon the defend- ant to show material variances.* A Gazette is evidence, to provef an averment in the information, that certain addresses have been presented to the King.(l) * It. v. Hall. Str. 416. | R. v. Holt- 5 T. R. 53S. (1) So also the King'? Proclamation- The King \- Sutlnn t \ Man- k Sclir 532. 573 CHAPTER XLI. Of the Proceedings after the Trial. The Court will not, after the defendant's con- viction, make an order on the prosecutor to deposit the original libel with the officer of the Court.* After the defendant has been found guilty on a criminal information, it is a matter of course that he should stand committed, pending the considera- tion of the judgment, unless the prosecutor express- ly consent to his standing out upon bail.f The defendant cannot:}: move for a new trial after the first four days of the next term after conviction ; but if it appear to the Court that injustice has been done by the verdict, they will ex mcro motu inter- fere after that period and grant a new trial. The vice of one or more counts is no ground for arresting the judgment^ provided there be one valid count in the information or indictment, though, as already seen, it is otherwise in a civil action, where general damages are given, since in the latter case * 2 E. It. 3G1. R. v. Cator. R, v. WacWington. 1 E. 143 J 5 T. R. -13G- l F- B i , Benfield and Samlen : £74 the Court cannot apportion the damages, and say how much was intended to be given in respect of the defective counts. When the defendant is brought up for judgment, affidavits are produced either by the prosecutor or the defendant ; and observations concerning them relate either to their contents or to the order in which they are read. Where a defendant has been convicted, the pro- secutor may read affidavits in aggravation, though made by witnesses who were examined at the trial ; in which case the defendant will* be at liberty to answer them. And, where a defendant hadf suffered judgment by default, the prosecutor was allowed to read affi- davits in aggravation, containing expressions made use of by the defendant, confirming and aggravating his guilt, which had been uttered by him in the hear- ing of two persons, and by them afterward related to the persons making the affidavits, the prosecutor having first made affidavit that an application had been made to both those persons to come forward with their testimony, which they had refused, and it appearing to the Court that they were under con- trol. But the Court allowed the defendant and those persons time to come forward and answer the facts. And such evidence would be inadmissible, unless it appeared that the person refusing to give evidence wast under the control of the defendant, To show the malice of the defendant, it is usual * R. v. Sharpness, 1 T. R. 228. ? R. v. Archer, 2 T. R 204 I R. v. Pinherton, 2 E. R. 357. tor the prosecutor to state upon his affidavit similar libels published since the conviction.* After judgment by default in a criminal prosecu- tion, when the defendant is brought up for the judg- ment, each party should come prepared with affida- vits stating his case ; and if, in the course of the inquiry, the Court wish to have any point further explained, they will give the defendant an oppor- tunity of answering it on a future day.f The defendant is, in general, at liberty to in- troduce any affidavit tending to show that his act did not result from pure malice, but proceeded from some motive less reprehensible : how far he shall proceed in his statement is, of course, a mat- ter ofprudence and discretion to be exercised upon the particular circumstances of the case. Any reflections upon the prosecutor beyond those conveyed by a bare statement of facts, and any attempt to impugn the credit of the witnesses, or the justice of the conviction, are inconsistent with the situation of the defendant, who stands before the Court as a supplicant for its indulgence, and not in the character of an accuser. Where the libel has alleged specific charges, it has been heldi that the defendant is at liberty to prove the truth of such charges by affidavit, in mitigation of pu- * See R. v. Withers. 3 T. R. 432. Where Ld. Kenyon, Chief Justice, said, " It is well settled that the conduct of the defendant, subsequent to his con- viction, may be taken into consideration either by way of aggravating or miti- gating the punishment ; but the Court will take care not to inflict a greater punishment than the principal offence will warrant." The same was ruled in the case of R. v. Walter- t R. v. Wilson, 4 T. R. 487. X Dig. L. L. 16. Bac. Ab. tit. lib- 456- Per Ld. Mansfield, C. J. R. v. Roberta- B- R. M- 8 G. 2. MSS- o7t> uishment ; but this must be done upon a plain statement of circumstances, strictly relevant to the matter charged in the libel, though the defendant might not be considered as confined to rules so strict as those which are observed in civil cases in plead- ing a justification. (1) The defendant must, nevertheless, confine him- self to facts immediately and strictly connected with the libellous assertion : for, otherwise, he would be able, by a general charge, to put the prosecu- tor's whole life and conduct in issue, and the pro- ceedings of the Court might be perverted into the means of publishing the most atrocious calumnies with impunity. The precise purpose of such a statement is to diminish the criminalty of the defendant's mo- tive and intention in the eyes of the Court, and to show that his act did not result from pure malice ; this end should be cautiously regarded by the defendant in framing his affidavits, since it is easy to conceive that in some instances an actual statement of facts may serve the more strongly to illustrate his malice, the truth of a publication being by no means conclusive as to the malice of the publisher. Should the affidavit betray an} r other object beyond the partial exculpation of the defendant, it would, if not rejected by the Court, (1) Where a defendant was convicted of a libel which, on tbe face of it, pur- ported to have been written in consequence of his having read a statement of facts in different newspapers, an affidavit, that he did read such statements in such newspapers, may be received in mitigation of punishment ; but an affidavit that the facts contained in those statements were true, is not admissible- The King v. Burdelt, 4 Barn. & Aid- 314. 57' (which in all such cases listens to affidavits, in order to inform its conscience, and not as a matter of obligation,) at all events operate to his prejudice. General evidence, of good character, is always a proper topic to be introduced into affidavits in miti- gation. It is not usual to give the defendant an opportu- nity of answering at a future day the affidavits pro- duced by the prosecutor, where they do not extend beyond the allegations contained in the indictment, though judgment should have been suffered by de- fault.* But where affidavits are produced to show a continuation of the defendant's malice, the Court has thought it reasonable to allow the defendant an opportunity of answering them, since it cannot be supposed that he comes prepared to answerf that which is not contained in the indictment. With respect to the order observed in reading- affidavits : When a defendant is brought up to receive judg- ment after conviction for a libel, his affidavits! are first read, and then the prosecutor's ; after which, the defendant's counsel are first heard, and then the prosecutor's. When the defendant is brought up on judgment by default, the prosecutor's affidavits are first read, and then the defendant's ; after which the counsel for the prosecution are heard, and then the counsel for§ the defendant. Where there are no affidavits, the defendant's * R. v. Wilson, 4 T. R. 487- t lb- and R. v. Archer, 2 T. R. 203 t R- Mich. 29 G. 3. Tidd. Pr. 454. 4th Ed. • j F.Mich. 29 G. 3- Tidd. P. 454. 2 T. R. 683- 73 o7b counsel always begin ; where judgment is by de- fault, and there are affidavits for the defendant, but none for the prosecution, the defendant's counsel begin.* . Of the punishment. No offence seems to have been visited with pun- ishments so varied in species and degree, as that which is the subject of the foregoing treatise ; a striking proof how difficult it is to estimate its evil consequences, and of the different conceptions which in different communities, have been entertained of their magnitude. The history of foreign countries exhibits the pen- alties for this crime in every gradation, from the in- fliction! of death to the bleeding of the offending^ organ ; even in this it has been punished with very different degrees of severit}', and the history of the Star Chamber records sentences upon libellers whose rigour can scarcely be exceeded : thus Wren- num, for traducing and scandalizing the Lord Chan- cellor Bacon, in a book delivered to the king, was sentenced by that Court to be perpetually imprison- ed, to pay a fine of 1,000/., to be twice pilloried, and to lose both his ears. Leighton, for his publication, intituled " An Appeal to Parliament, or Sion's Plea against Prelacy," was sentenced to pay a fine of 10,000/., to be whipt at the pillory twice, to lose both his ears, to have his nose slit and face branded, - R. v. Fintierty, Hil. T. 1311. f By the law of the Twelve Tables, "Si quis accentasset malum carmen, she condidisset quod infamiam faxit flagitiumque alteri capital esto-" Wood's Cir. L. | According to Sir £. Coke, the Lydians bled the slanderer in the tongue, and the listener in the car, 12 R. 35. By the laws of Alfred, the "Publicum meudacium" was to be punished by the cutting out of the tongue, subject tft re- kmption, JMta capitis a>stim'ationcm- Wilk. Leo;. An. Sax. 41. 679 and to be imprisoned in the Fleet during life.* it would be impertinent in this place to refer to other instances ; the cases of Prynne, Burton, Bastwick, and other sufferers are too well known in history to bear recital, and their sentences remain lasting and disgraceful memorials of the severity of the tribunal by which they were inflicted. One of the earliest instances in which a libeller was sentenced to the pillory at common law, ap- pears to have been that of Hugh Baker, who, in the fourth year of Elizabeth was, for publishing a libel upon some of the inhabitants of Chertsey, sen- tenced to imprisonment, pillory, and to find security for his goodf behaviour. Since that period, this mode of punishment at Common Law has not been unusual, but has seldom been inflicted in modem times, except in cases marked by some peculiar atrocity, and has generally been reserved for the more signal disgrace of those who have been con- victed of disseminating profane and obscene libels. As a misdemeanor, at Common Law, the offence is of course punishable by fine and imprisonment, at the discretion of the Court, after a full consideration of all the circumstances, tending either to extenuate or aggravate the guilt of the offender. In addition to this, it is frequently deemed proper to impose upon the offender the condition of finding security for his good behaviour for a limited term, by which expedient the Court are enabled to extend anhumane indulgence to the criminal, in respect of the duration of his imprisonment, without compromising their first and great duty to the public, the providing for its future security. 6C- 1. 1631. I 3 Ins. 220. o80 CONCLUSION". Having thus pursued this branch of jurispru- dence through its various divisions, it may be per- mitted, before the subject is dismissed, briefly to consider how far the wisdom of our law has over- come those difficulties which were slightly suggest- ed in the introduction to this treatise. In the first place it is worthy of remark, that no branch of our municipal law, equally difficult and extensive, contains so little intermixture of positive and legislative enactment as that which regulates in- tellectual intercourse: this portion may be con- sidered as an almost pure derivative from the source of common law, and however complicated it may be in its adaptation to the equally complicated con- cerns and transactions of society, its elements are few and simple. Wherever the exigencies of society render it necessary for the legislature to interfere, its pro- hibitions and prescriptions must necessarily be abrupt and peremptory, and modified very differ- ently from those rules, which, suggested by prac- tical convenience, and sanctioned by experience, are gently and gradually moulded into law, at the discretion of those who preside in our Courts. The predominant feature which characterizes 5$1 this branch of law, is the establishment of malice, as the great essential to both civil and criminal liability. This is the important distinction, which reconciles with the security of the state and the welfare of the individual, that free communication of ideas, for the enjoyment of which man is, by his powers intellectual and physical, admirably quali- fied: it is this which serves to define the limits of communication in a legal as well as moral sense, and upon this basis of mere abstract immorality, the legal remedies are with wonderful simplicity erect- ed ; their mutual connexion and relations may be comprised in three sentences Any communication made with a malicious intent is immoral. When such a malicious act produces mischief to the individual it becomes actionable. When it produces mischief to the public, it be- comes indictable. If the system be viewed still nearer, its minuter provisions have a claim to admiration. To found an action at common law, a wrongful act must, in general, be combined with an actual damage; but to facilitate the remedy against slander, the law, applying itself to the urgency of the case, lays aside its usual strictness ; and where the requir- ing proof of an actual loss would produce evil con- sequences to the plaintiff, where the presumption of damage is violent, but the difficulty of proving it considerable, the law supplies the defect, and by converting presumption into proof rescues the cha- racter of the sufferer from the misery of delay, and enables him at once to face the calumny in open court. 582 But inasmuch as this is an indulgence purchased at the price of a departure from a general rule, it is wisely restricted to cases where delay would be pregnant* with danger, and where the calumny is likely to affect the complainant in his liberty, office, or means of livelihood ; nor will the law in any case extend redress to a party who has not suffered from slander, false as well as malicious, and in a spirit of genuine purity carefully excludes from its courts every one whose conduct is infected with the guilt of that charge upon which his complaint is founded. The elements which constitute the criminal of- fence, namely, a malicious publication tending to the detriment of the community, simple as they are, conduce mainly to individual security and public tranquillity. As the natural right of society to prohibit, under penalties, any wilful and overt attempt to produce disorder and confusion is indis- putable, so likewise is the policy which crushes the very seeds of discord and immorality, rather than suffer them to expand and ripen into mischief. Still this preventive vigour is strictly consistent with the most ample degree of liberty in the subject. Every individual in the realm is entitled to publish what he thinks fit independent of previous control, and cannot be deemed acriminal for having published, until a judge shall have declared his opinion that the publication is illegal, and a Jury of his country shall' have decided upon oath, after a consideration of the * To this general rule there is, as has been already observed, a painful ex- ception ; it cannot but be considered as a disgrace to this branch of the law, that the reputation of females of every rank should be leit exposed to imputa- tions most odious, offensive, and mischievous, though the skill and integrity of the lowest mechanic cannot be reflected upon with impunity. &S8 alleged libel, its tendency, and all the accompany ing circumstances, that his intention was malicious, and therefore criminal ; and after all he is not de- barred from appealing to another tribunal, for the purpose of ascertaining whether that, which after conviction must be taken to have been published with a malicious mind, contains that intrinsic ten- dency to produce mischief, which constitutes it a libel in the criminal sense. In these two circumstances, the necessity of a malicious intent, and the mode in which that intent is to be ascertained, is founded the liberty of com- munication in the most valuable sense of the word ; the first forms the plain boundary between right and wrong, which no man, whose intentions are pure, needs fear to transgress ; the other assures to him an impartial inquiry into those motives, should they be called in question. What other means could be devised for securing the liberty and restraining the licentiousness of the press at once so simple and effectual ? No declaimer was ever silly enough to contend that all publications, however malicious, or however mischievous, ought to pass unrestrained; but al- lowing restraint to be necessary where the intention is malicious and tendency mischievous, how can the existence of these be best ascertained ? It is plain that mere tendency is too subtle in its nature to be defined by human laws ; it depends upon circum- stances infinitely combined and perpetually fluctua- ting, admitting no other means of ascertainment, than the application of a strong judgment to the subject matter, its context, and those extrinsic cir- 584 eumstanees which are capable of illustrating its meaning : the intention too must be collected from the publication itself, and the accompanying facts ; to refer, therefore, the alleged libel and its circum- stances to the joint consideration of the Court and a Jury, by which means the latter are put in pos- session of the legal opinion and experience of the former, and are thereby assisted in forming a cor- rect judgment upon the defendant's intention, appears to be the happiest expedient which in- genuity could suggest for at once arriving at the truth and securing the rights and liberties of the subject. 585 NOTES [ i J P. 2. — " The injury could seldom extend beyond," &c. The rude member of a warlike tribe would quickly resent any reflection upon his courage, strength, or prowess: to restrain such would therefore be one of the earliest efforts exerted by a people beginning to substitute general laws, as the security for good manners, in the place of individual violence. By the an- cient law of the Burgundians, Si quis alterum concagatum clamaverit 120 denariis mulctctur. Si quis vul- peculam alterum clamaverit vel leporem eodem modo mulctctur. " These," as observed by a learned writer, " appear plainly to be the laws of a warlike nation, in which the calling another by a name, which implied cunning or flight, rather than courage and resistance, was thought a heinous infamy." Barrington on the penal statutes. What a different state of society is suggested by the fol- lowing canon: "Si quis dixerit episcopum podagra laborarc anathema sit." Menagian, T. 1. 16. It seems clear, that good breeding and polite manners cannot become the subject matter of legislation ; mere injuries to the feelings are too unsubstantial and evanescent in their nature to bear definition ; the very tone of voice and expression of countenance in such cases not unfrequently con- stitute the insult; nay, in some instances, even silence may wound more se- verely than the most abusive language. Against such affronts no legislative enactment can defend, and it is not difficult to conceive that a high sense of honour is a better security against -ross manners than any penal laws, which must necessarily define the particular insults intended to be restrained, and of course leave a far greater number to be practised with impunity. [2 ] p. 13.—" Without proof of special damage," &c. According to Vaughan, C J. 2 Vent. 28, at one time no action lay without proof of special damage, unless the slander concerned the plaintiff's life ; and it was not actionable to call another a villain, unless it were added he was lain in wait to be seized. The C. J. added, " The growth of these actions will spoil all communications ; a man shall not say such an inn or such wine is not good." 74 §86 L 3 J 1>. !S.— " Criminal liability is not always the exclusive ground," &c. To the confirming instances cited may be added, the class of cases in which it has been held, that a pardon granted after the commission of the offence, but before the speaking of the words, will enable the plaintiff to maintain his action See Cuddington v. Wiikins, Hob. 81. [4] P. 32. — " The purpose or intent of a man without action," &c. Sec also Lord Ellenborough's dictum, 4 Esp. 219. [ 5 ] p > 25. — " To impute incontinency to a female in London," &c. Such an action is not removeable from London by habeas corpus. Cro. Car. 486. [ 6 ] P. 106. — " Of a member of parliament." But words otherwise actionable are not the less so because applied to a can- didate to serve in parliament. Harwooct v. Sir J. Astley in error, 1 N. R. 47. E*3 P. 113. — " Words imputing dishonesty to a tradesman," &c. in Fcise v. Linder, 3 B. and P. 372. The plaintiff stated, that he was a mer- chant, and had received a bill of lading relating to certain goods consigned to him, which bill of lading he produced to the defendant, and required the de- livery of the goods, when the defendant maliciously published concerning the plaintiff in his business and the premises these words, " He has brought a false bill of lading for half the cargo already." After a verdict for the plaintiff judgment was arrested on the ground, that the words without special damage were not actionable ; but from the report of this case the attention of the Court seems to have been chiefly directed to the ques- tion, whether the words were actionable as imputing a crime ? and it does not seem to have been much considered, whether they were not actionable as having been spoken falsely and maliciously concerning a merchant in his business, and tending to injure him in his means of livelihood. [ s ] P. 126. Chap. 5.—" Written slander." Since this chapter was printed, the distinction between oral and written slan- der has been recognised in the Exchequer Chamber- Lord Kerry founded his action upon a libel charging him with being a hypo- crite and using the cloak of religion for unworthy purposes- He had a verdict with 20/. damages at the Kingston Spring assizes, 1SP9. and had judgment in £87 ihe Court of King's Bench without argument, whereupon a writ of error was brought in the Exchequer Chamber. Sir James ManBfield, C. J. on giving judg- ment for the defendant in error (East. T. 1S12) observed, that this was cer- tainly a libel for which the writer might have been indicted, but he had enter- tained considerable doubts, whether it could be the ground of a civil action ? As to a civil action there seemed to be no well founded distinction between written and unwritten slander. The reasons given in the books for the distinction arc very insufficient. One reason is, that by writing the scandal becomes more dif- fused ; but this is casual, for words may be spoken under circumstances which shall give them much more publicity and rendei them much more injurious than if they were committed to paper and shown to a third person ; another reason is, that the writing of the scandal shows more malice in the defendant ; but the true foundation of a civil action is some damage sustained by the plaintiff, and not the malice which actuates the defendant. It was with great difficulty his Lordship had brought his mind to yield to the authority of the cases upon the subject. There were cases, however, establishing this distinction above a cen- tury ago, and dicta to the same effect by Lord Hale, Lord Hardwicke, and other very learned and eminent judges, and the Court could not now venture to over- turn a rule sanctioned by the practice of a century, and the authority of so many great names. Judgment affirmed, 3 Camp. 214. To the cases cited in proof of the distinction may be added, Sir Baptist Hicks's case, Hob. 215. King of Gray's Inn v. Sir E. Lake, 2 Vent. 28. Harman v. Delany, Str. SSS. D. L. L. 13. In the latter case the Court ob- served, that if bare words, affecting a man in his trade, were actionable, i( would be much stronger in the case of a libel in a public newspaper, which is more diffusive. [9] P. 138. — "The general rule appears once to have bcen,"&c. See 1 Buls. 40. and supra p. 22. In 2 Vent. 28, Vaughan, C. J. observed, "in ancient hooks we do not read of an action for words unless the slander concerned life." [ io ] P. 154.— "Riding Skimmington," &c. It has been held that this practice is not actionable, Lord Raymond. 201 ; but in 2 Show. 314. it was said, that the carrying a fellow with horns bowing at the plaintiff's door is actionable; and the ease of Sir W. Bolton v. Dean was referred to. [ ii 3 P. 161.—" Loss of marriage," &c. Upon the same grounds it is actionable, falsely and maliciously, to say that a person in treaty to marry is under a precontract, the marriage having by such words been defeated, 11 Mod. 99 ; for the loss of marriage is a temporal da- mage, and proceeds from (he wrong of the defendant, viz, his false and malicious assertion, 58!? [ 12 ] P. 173. — " The defendant's malice is immaterial," &c. So where the plaintiff procures the publication of that on which the complaint is founded. See 3 B. and P. 594. 5 Esp. R. 15. 1 T. R. 110. [ 13 ] P. 178. — " A man may justify in an action for a libel." A similar opinion was also expressed by Lord Ellenborough, C. J. in the case of Plunkett v. Cobbett, May 1804. [5 Esp. Rep. 136.] [ 14 ] P. 179. — " The justification must be pleaded and proceed with great precision," &c. See Bell v. Byrne, 13 East. 554. It was there held that an allegation in the plea, that " the plaintiff had been confined in England on a charge of high trea- son," was not supported by proof that the plaintiff had been apprehended on a warrant from the Duke of Portland, one of the Secretaries of State, on suspicion of high treason. See also R. v. Lofeild, D. L. L. 78. supra p. 228. [ 15 ] P. 180. — " If he had been convicted and pardoned afterwards," &c. In Searle v. Williams, Hob. 288, Lord Hobart held, that " for an accusation reflecting upon any man for an offence for which he has been indicted, con- victed, and had his clergy allowed, an action lies as if he had been acquitted from it." And the same learned Judge also held, that though the statute 18 Eliz. c. 7. required a burning in the hand previous to the prisoner's discharge ; yet, that if he had his clergy he would be entitled to all the benefit of the statute, though he should not be burnt in the hand. But it was laid down by Ld. C. J. Treby and his brethren, on the trial of the Earl of Warwick for the murder of Mr. Coote (St. Tr. 11 W. 3.) that when the prisoner is liable to burning in the hand, the mere allowance of his clergy, without burning in the hand, will not restore the party to his credit. See also Lord Castlemaine's case, 3 St. Tr. 47. But it has been said, that it is sufficient to produce the record whereby clergy was granted, without proving an actual burning. Com. Dig. tit. Testmoigne A. 4. A general pardon after outlawry for felony will not restore credit to the offender, 3 St. Tr. 47. And it has been said, that a pardon after a conviction for perjury will in no case restore the offender to credit, 1 Vent. 349. 1 Sid. 52. But by 5 Eliz. c. 9. the disability to give evidence is part of the judgment, and on that account, according to Holt, C. J. (R. v. Crosby, Salk. 689.) cannot be lvemoved by a subsequent pardon. See Co. Ent. 368. Rast. S6. [ 16 ] P. 182.—" No member of either house," &c. The St. 4 H. 8. c. 8. protecting certain persons from all suits, &c. ; for any 589 bill, speaking', or reasoning concerning parliament was Ueld by ail the judges to be a particular law. 5 Car. Rush. 662. but the contrary was declared in par- liament. Cro. Car. 604. By a resolution of the Commons, 19 J. 1. no member shallbe molested for any thing said or done in parliament, except by the house. See also Cro. Car. 604. Rush. G62, 663. St. 17 C. 2. 1. By St. 1 VV. and M. 2. s. 2. it is de- clared, that freedom of speech and debate, or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament. [ I? ] P. 183.—" The same rule applies to judges," &c. " With regard to judges and jurors the law gives credit to what they do, and therefore there must always, in what they do, be cause for it ; the presumption of law is, that judges and jurors do nothing maliciously," per Eyre Baron. 1 T. R. 503. [ 18 ] P. 194. — " Which the usual course of judicial proceeding does not warrant," &c. In the case R. v. Salisbury, 1 Ld. Ray. 341. it was held by Holt, C. J. that if a man prefer a scandalous petition to the House of Lords, or make an affidavit containing scandal against J. S. in B. R. he cannot justify the publication of this, but it will be an offence indictable, because it tends to a breach of the peace. [ 19 ] P. 231.—" They were spoken by the defendant under a belief of the fact," &c, But the opinion of the defendant that the plaintiff was guilty, will not justify an extra-judicial charge. Plunkett v. Powell, Cro. Car. 52. [ 20 ] P. 264.— "Publication," &c. If the plaintiff aver that the hearers understood the words in a particular sense, he will be bound to prove it at the trial. 5 East, 470. [ 21 ] P. 271.—" The statement of the words must correspond with the publication to be proved," &c. Bell averred that Byrne printed and published, in the Morning Post, the fol- lowing libel concerning the plaintiff, as purporting to be a letter written from A. to R O'Connor : " I have sold all my property to B., yet it may still go on in my name, and the rents are to be transmitted to H. Bell, Esq. Charter-house- square. Mr. Bell (meaning the plaintiff) has been for some time past confined in England on a charge of high-treason." Upon the trial it appeared that the paragraph in question had been published by the defendant in his newspaper of the 15th of May, 1810, and that it purported to be a statement of a speech de- livered by the Attorney-general for Ireland in the Irish House of Commons on 590 the 19th of Feb. 1799, in the course of which several letters were read by him. The defendant objected that the words, " Mr. Bell has been for some time past confined in England on a charge of high treason," did not constitute part of the letter alleged to have been read by the Attorney-general, but were published as mere comment by him after reading the letter, and were therefore improperly described in the declaration, as purporting to be part of the letter. And the Court of King's Bench, upon a motion to set aside the verdict for the plaintiff, and enter a nonsuit, were of opinion, that the misdescription was fatal, and that the defendant should have been described as professing to publish a speech of the Attorney-general for Ireland, in which was contained, &c. [ 22 ] P. 313. — "Description of special character," kc. The plaintiff declared as proprietor, editor, and publisher of a certain news- paper, he proved, that be was the proprietor and publisher, but not the editor, and the variance was considered as fatal. Heriot v. Stuart. 1 Esp. 437. It is unnecessary to aver, that the plaintiff qualified himself to act in the cha- racter in which be sues, in compliance with any particular statute. See Hart- ley t. Herring, 8 T, R. 131. [23 ] P. 326. — " Declaration, damage," &c. If the plaintiff once recover he cannot afterwards maintain an action for any special damage subsequently resulting from the same words. B. N. P. 7. Ta- men qu. 2 Mod. 151. contra. Where the words are actionable, special damage, though averred, need not be proved. Cook v. Field. 3 Esp. R. 133. [24 ] P. 327.—" Defendant's plea," &c A plea of justification will sometimes cure a defective declaration. The words were, " He is forsworn," and there was no colloquium to connect them with a judicial oath, but the plea averred them to have been spoken in reference to a judicial oatb, and thereby cured the delect. Cro. Car 238. [25 ] P. 341. — " The defendant must in his plea charge him with specific instances," &c. A defendant is not at liberty to charge the plaintiff with swindling, unless he can prove specific instances, 1 T. R. 748. So in Holmes v. Catesby, 1 Taunt. R. 543, where the libel charged the plaintiff, an attorney, with general misconduct, such as negligence, falsehood, prevarication, &.c. a plea repeating the same ge- neral charges, without specifying any particular instances of misconduct, was upon demurrer held to be insufficient. 591 [ 26 ] I*. bS9.— " Liability of booksellers," Sic. In the case of R. v. Walter, 3 Esp. 21, the libel was contained in a newspaper of wbich the defendant was the proprietor. He proved that he resided in the country, and took no share in the management of the paper ; but Ld. Kenyon, C. J. held, that the proprietor of a newspaper is answerable criminally as well as civilly for the misconduct of his servants in managing the paper, and observed that this was the opinion of Lord Hale, Justice Powell, and Mr. Justice Foster. Upon the trial of an information for publishing a BfiAitious lihol, evidence was admitted, that the servant, in the defendant's shop, wore a cap with the words " liberty and equality" upon it. R. v. Holt, 5 T. R. 436. [ 27 ] P. 393. — " Evidence of malice," &c. So in Tate v. Humphreys, 2 Camp. 73. in an. action for words of perjury, the plaintiff was permitted to give in evidence a bill of indictment which had been subsequently preferred against him by the defendant. See also Carr v. Hood, 1 Camp. 354. and supra, p. 639. R. v. Ball, 1 Camp. 324. But in the case of Finnerty v. Tipper, 2 Camp. 72. Sir J. Mansfield, C. J. held, that libels pub- lished since that on which the action is founded are not admissible in evidence unless they refer to the same subject matter. [ 28 ] P. 402.— See B. N. P. 14. [ 29 ] P/405. — " Having referred to," &c- The defendant's counsel is entitled to read to the Jury speculative opinion* which have been published, and which relate to the matter in question, but they cannot be read to prove any fact, unless afterwards offered in evidence. 5 Esp. 133. The defendant, under an indictment, is not at liberty to prove that other per- sons before that time had published similar libels without being prosecuted, least a person should be deemed guilty of having published a libel without having had an opportunity of defending himself. 5 T. R. 436. [30 ] P. 412. — " Evidence for the defendant," &.c. The defendant may prove in mitigation of damages, though not in bar of the action, that the plaintiff has published libels against him, Finnerty v. Tipper, 2 Camp. 77. [ 31 ] P. 444. — St. 1 E. 6. c. 1. By this statute the justices at Sessions are au thorized to issue a writ to the Bishop of the diocess to attend the sessions, either 592 in person or by his deputy, " sufficienter eruditus," to inquire into the offence committed against the sacrament. And, by the same statute, the defendant is allowed to purge or try his innocency, by witnesses equal in number and ho- nesty to those who depose against him. [ 32 ] P. 447. — " Publications subversive of morality," &c. Within this division fall the offences of profane cursing and swearing, but since the legal prohibitions relating to these are well known, they have been omitted, and the reader is referred to Bum's Justice, tit. Swearing. [ 33 ] P. 476.—" No indictment lies for words spoken either of or to inferior magis- trates, unless," &c. See R. v. Wrightson, Salk. 697. Ld. Ray. 153. 1030. Holt. It. 354. 364. 5 Mod. 203. The Queen v. Nun. 10 Mod. 186. 11 Mod. 166. 12 Mod. 98. 514. R. v. Walden. 414. Lord Holt, G. J. held, that though an insolent witness might be committed by the Court for a contempt, he could not be indicted. 7 Mod. 28. But see Str, 420. [ 34 ] P. 477.— See also the case of R. v. Smith, who instructed Stephen Colledge to say, on his trial at Oxford, that " Government might as well have hanged him at Tyburn, as he came by, as brought him thither to murder him with a little more formality." Skinn- 124. [35 ] P. 486.—" By St. 23 Eliz. c. 2. it was made felony to cast the nativity of the Queen. The taking a portrait of her was also forbidden by proclamation." [ 36 ] P. 491. — " Unless they amount to a direct breach of the peace, as by a challenge to fight," &c. The terms liar and rogue are not indictable when spoken, because (as is said) they do not immediately tend to a breach of the peace, 4. Ins. 181. Notwithstanding this authority, it would noi be easy to select two other words in the language which do so efficaciously tend to a breach of the peace, or which have, in fact, been so frequently the forerunners of blows, as the two alluded to. The reason for tolerating such oral but tempting incitements to violence, seems to be the well-grounded apprehension, (hat, to subject the speakers of abusive words to punishment, would be to cherish a spirit of petty litigation, the incon- venience of which would outweigh the mischief intended to be remedied. The experiment was made with respect to actions (vid. p. 22,) but the Judges were quickly induced to abandon the rule they had laid down, which does not seem ever to have been extended in the same latitude to the criminal offence ; and Lord Hoit observed, that to encourage indictments for words would render tin m as uncertain as actions for words are. See p. 548. By St. 9 Ann. c. 14. 1. 8. in case any person shall challenge another, or pro- voke him to fight, on account of money won at play, he shall, upon conviction, forfeit all his goods and chattels and personal estate, whatsoever, and shall suffer imprisonment for two years. See Haw- P. C. b. 1. c. 72. s. 40. [ 37 ] P. 494.— " On the memory of one dead,'' free See also R. v. Walter, 3 Esp. 21. [38 ] P. 495 — " Upon the character of any particular individual." An indictment for a libel on several persons, to the jurors unknown, is bad. R. v. Orme (or Almc) and Nut- Ld. Ray. 436. 3. Salk. 224. But where a libel reflects upon one of a specific body, without naming him, the publisher may be indicted for a libel upon the whole. R- v. Jenour, 7 Mod. 400. And an information has been granted for charging one of several Trustees With a breach of private trust. R. v. Griffin and others. Rep. Temp. Haw- 30. [ 39] P. 506 — "The keeping of such libels in possession," &c. Where a libel is found in a man's own custody, but exposed, as on a shelf in a bookseller's shop, the owner is guilty cf a publication. 12 Vin. Ab- 229- 1 Read- St. L. 155. [ ™ 1 P. 538. — " Application for an information, "' &c. When the same libel reflects on several, it is not necessary that all should join in the application, or that the names of all should be specitied, since the con- viction upon one information would be a bar to any other, it being one single offence, though every person injured would severally be entitled to maintain an action. R. v. Griffin, Rep. Temp. Hardwickc, 39. [ 41 ] P. 538. — " The applicant must waive his right of action," &c. The party may be put to his election before the information is granted ; nftei the granting of an information, it is of course to stay the proceedings in ai tion for the same cause. 2 T. R. 198. [ 42 ] P. 540. — " Upon a warrant from a Secretary of Stale," &c- In the case of the King v. Kendal and Roe, Salk. 317. the Court held, that Secretaries of State might commit as conservators of toe peace ai Common I ■<<• 75 594 and that the commitment to a messenger was good, and a lawful custody ; for they would intend it only to carry him to jail. But the party, in that case, was committed on a charge of treason. [ 43 ] P. 541. — "But by the resolutions of both Houses of Parliament," &c. Journal of the Lords, Die Martis, 29 Novembris, 1763. The 3d resolution of the House of Commons was read ; Resolved by the Commons in Parliament assembled, tl^at privilege of parliament does not extend to the case of writing and publishing seditious libels, nor ought to be allowed to obstruct the ordinary course of the laws in the speedy and effectual prosecution of so heinous and dan- gerous an offence ; and it being moved to agree with the Commons in the said resolution, it was, after a long debate, resolved in the affirmative. [44 ] P. 542. — "The single point decided was," &c. But Lord Mansfield, C. J. expressed himself in strong terms against the le- gality of general warrants, and cited the opinions of Wilmot, Yates, and Aston, Justices, in support of his own. 11 St. Tr. 312. [ 45 ] P. 549. — " Form of information or indictment." Where two persons concur in the same illegal act, they may be included in the same indictment. In the case of R. v. Benfield and Sanders, 2 Burr. 980. it was held, that an information lay against two for singing a libellous song on A. and B., which first abused A. and then B. And it was said, that had the defendants sung separate stanzas, the one reflecting on A. and the other on B., the offence would still have been entire. A libel upon one of a body of persons without naming him, is a libel upon the whole, and may be so described. The defendant published the following adver- tisement in a newspaper: "Whereas an East India Director has raised the price of green tea to an extravagant rate, the same gentleman being also con- cerned with the Swedish East India Company ; the English proprietors hope he will find some measure to raise bohea tea in Sweden, that the Company may have an opportunity to ship off some of rffeir b3d bohea tea, instead of having it burnt as usual." Upon motion for an information, Lee, C. J. observed. "Where a paper is published, equally reflecting upon a number of people, it re- flects upon all, and readers, according to their different opinions, may apply if so." R. v. Jenour, 7 Mod. 400. VIM- INDEX A. ABILITY : charging the want of, p. 116. ABUSE : mere words of not actionable, p. 31, SO". nor indictable, p. 491. ACTION : for slander, grounds of, p. 13, 24, 569. ADJECTIVE : words, p. 63, 64, 68. AFFIDAVITS : in aggravation, p. 574. in mitigation, p. 575. order of reading, p. 577. see attachment, information, ^e. AGGRAVATION : evidence in, p. 402. affidavits in, p. 574. AMBIGUITY : different kinds of, p. 44. explained by circumstances, p. G9, APPLICATION : of the words to the plaintiff, how collected, p. 9 •!. Sec. verdict, how far conclusive, p. 95. Where a nickname is used, p. 95. ARREST : of judgment. See judgment. ATTACHMENT : what, p. 519, 520. whence it issues, p. 520. for what offences, p. 519, 520. on what evidence granted, p. 522. when granted in the first instance, p. 520, 522, 523. proceedings upon, p. 524. in default of rocognizance the party is committed, p. 523. interrogatories, p. 523. time allowed for exhibiting, p. 523. party may purge himself upon oath, p. 524. in what cases allowed to confess the conlempt in the first in- stance, p. 523. ATTEMPT : to commit an illegal act, charge of, when actionable, p. 30, 36,37,38, 88, &c. when an indictable offence, p. 491. See Solicitation. 59$ INDEX. ATTORNEY : words of, p. 112, 115, 116. proof of plaintiff's being, p. 386. AVERMENT : of extrinsic circumstances, when necessary, p. 292, 309. introduction of useless ones prejudicial, p. 309. and sometimes fatal, p. 310. Sec colloquium, declaration, innuendo, &c. B. BAIL : not requix-able in common actions for slander, p. 243. has been denied in scan. mag. p. 243. affidavit necessary, p. 244. BANKRUPTCY: words imputing, p. 117, 341. BARRETRY : charge of, p. 38. BARRISTER: words of, p. 112. how described, p. 3t3. when he may refuse to give evidence, p. 412. see Counsellor. BASTARDY : words of, p. 1 22. BAWDY-HOUSE: imputation of keeping, p. 36. BISHOP : words of, p. 111. writ to by justices at sessions, p. COO. BLASPHEMY : See Religion. BOOK OF COMMON PRAYER : words in derogation of, p. 420. BOOKSELLERS : liability of, p. 370, 591. BRANDED : charge of having been, p. 84, BRIBERY: charge of, p. 35. an offence at common law, p. 35. CARICATURE: p. 142. injunction to restrain exhibition of, p. 143. liability of the publisher of, ib. CARPENTER: words concerning, p. 1 18. IM)£X. 593 CERTAINTY : degree of, formerly required, p. 69, 70. where the words impute crime, p. 42. CHARACTER : caution to be observed in the description of, p. 312, 590. title to, need not be pleaded, p. 313. .. averment of, p. 313, 399. when laid in aggravation, p. 326 CHATTEL: slander of, p. 119. CHEATING : words charging, p. 75. CHURCHWARDEN : words of, p. 119. CLAIM OF TITLE : how used in defence, p. 338. CLERGYMEN : words concerning, p. 93. delivered by in preaching, p. 205. CLIPPING MONEY : charge of, p. 81. COINING : charge of, p. 19. COLLECTING : of libels, p. 513. See Possession. COLLOQUIUM : ancient practice as to, p. 300. nature and use of the averment, p. 290,301. the want of not supplied by an innuendo, p. 302. must extend to the whole prefatory matter, p. 293. averment that the words were spoken de querente. when necessary, p. 290. words spoken to the plaintiff, p. 284. where the person is pointed out by the words, p. 285. where they can apply to one only, p. 285. when they may be applied to several, p. 287. where the plaintiff's name is mentioned, p. 289. where the words are actionable from extrinsic circumstances, p. 290. in what cases de querente sufficient without a colloquium. p. 291. COMMITMENT : summary, when inflicted, p. 519. COMMUNICATION': law of in this country contains little of legislative enactment, p. 580. COMPARISON : words of, p. 58. 60. CONFESSION : effect of, p. 572. 598 INDEX. CONFIDENTIAL : communication privileged, p. 21u CONSTABLE : proof of party being, p. 387. CONSTITUTION : libels relating to, p. 452, 453, 454. descent of the crown, p. 452. settlement of the crown, p. 455. revolution, p. 455. king's title, p. 452. nature and extent of the offence, p. 456. CONSTRUCTION : rules of, p. 44, 47. words to be understood in their common acceptation, p. 49. maybe explained by circumstances, p. 87. by context, p. 86, 87. by the cause or occasion of speaking them, p. 87. by jurors, p. 52. bvthe court after verdict, p. 50, &c. 416. CONTEXT : may explain actionable words, p. 86. CONTINUANCE IN OFFICE, &c. when intended, p. 314. CONVICTION : words charging, p. 83. CORRUPTION : charge of, p. 34, 35. in former situation, p. 105. in public trust, p. 35. in office, p. 102. COSTS: St. 21 J. 1. c. 16. p. 420. does not extend to scan. mag. p. 420. nor to actions founded on special damage, p. 420. nor to cases of libel, p. 420. but applies where actionable words produce special damage, p. 421. inconvenience of this rule, p. 421. actionable words joined in declaration with a distinct injury, p. 421. special damage laid referring to all the counts, p. 422. damages found under a writ of inquiry, p. 422. certificate of judge under 22 and 23 C. 2. c.9. p. 422. justification does not entitle to full costs, p. 423. COUNSELLOR : words spoken by, when actionable, p. 207, 209. COURT : Earl Marshals, before whom held, p. 443. of honour, attempt by to hold plea of words, p. 432, INDEX. 599 inferior encroachments by, how restrained, p. 433. contempts of. See Attachment, Justice, Judges, &c COZENING : charge of, p. 75. CREDIT: words affecting, p. 1 10 — 117. CRIME : action for imputing the commission of, p. 12. words imputing, why actionable without special damage, p. 69. place the party in jeopardy, p. 17. disgrace him in society, p. 17, 18. ancient rule, p. 586. words imputing, actionable, though not endangering the party in law, p. 18, 19,586. after pardon for the offence, p. 19. where actionable, must impute a temporal offence, p. 30, 33. punishable in the temporal courts, p. 30, 41, 42. penalty merely pecuniary, p. 42. general rule, p. 41, 42. certainty requisite, p. 43, 44. 1. must impute an act, p. 57, 58, 58G. by what words an act may be imputed, p. 58, &c. 2. of a criminal nature, p. 58. criminal quality how collected, p. 68. 3. to the plaintiff, p. 58. application of the charge how collected, p. 93. propriety of limiting such actions, p. 42. CRITICISM : how far privileged, p. 232. liberty of does not extend to personal reflections, p. 23a, 2ot>. nor to misrepresentations of facts, p. 235. CRITIQUE : upon a newspaper, p. 258. cursing and swearing, p. 592. D. DAMAGE : nature of in case of slander, p. 12. when presumed, p. 17. advantages of this presumption, p. 15, 581. special, what amounts to, p. 157. prevention of sale, p. 323. expenses of civil suit, p. 159, 160. vhe bringing the plaintiff's title into litigation, p. 1 I hindrance from preferment, p. 160. loss of hospitable entertainment, p. 169, loss of marriage, p. 161, 162, 587. loss of voluntary donation-, p. IC incc of customers, p. I UOO INDEX. expense of justification from extra-judicial charge, p. 157, 158. mere apprehensions of loss insufficient, p. 167. female charged with incontinence required to prove special damage, p. 164. insufficiency of the reasons for this rule, p. 165. special damage, how connected with the words, p. 167. must be the natural and immediate consequence, p. 168. non-performance of contract not a special damage, p. 169. special damage subsequently resulting from the same words, p. 170, 592. where the words are actionable need not be proved. p. 311,592. statement of when it is a mere presumption of law, p. 321 . special damage must be stated, p. 322, 402. how pleaded, p. 322. when generally, p. 324. actionable words are spoken within a private jurisdiction, p. 324. the want of special damage may be pleaded, p. 337. damages not in the nature of punishment, p. 162. nor awarded with a view to reformation, p. 163. DEAD : person, libel on the memory of, p. 493, 593. DECLARATION : in case of slander or libel, p. 263. in what it consists, p. 263. of the venue, p. 245. parties, p. 250. inducement of good' character, p. 265. not traversable, p. 264. sometimes improper, p. 264. averments, p. 263. of publication, p. 263. statement of the words, p. 267. See Statement, \ ariance, &c; colloquium, p. 284. See Colloquium, innuendo, p. 295. See Innuendo, averments of extrinsic facts, p. 304. when necessary, p. 304. advantages of a technical statement, p. 302. DEPOSITIONS : before magistrates, when evidence, pr 572. DEFENDANTS : . joinder of in. a declaration, p. 261 . in an indictment, p. 592. E. EFFIGY : burning in.. EMPLOYMENT : words concerning plaintiff's, p. Ill, 1 12* nature of, p. 114. degree of prejudice, p. 114. EVIDENCE: how far it must correspond with the declaration, p. -W.k of publication necessary before the libel is read, p.35l. &ee Handwriting, Publication, Character, &C.&C EXCLAMATION : words of, p. 58, Gl. EXCOMMUNICATION ; imputation of, p. 25. disabilities resulting from, p. 27. EXCULPATORY : averment, p. 317. formerly required, p. 317,318. affidavits. See Information. EXTORTION : charge of, p. 106. F. FALSE : claim, when actionable, p. 20o, 200. rumours, p. 485. See Forestalment. witness, liability of, p. 186. FELONY : formed^ 'consisted in intent, coupled with an overt act. p. 86,87. FINDER OF LIBEL i doctrine cf civil law as to, p. 507, 508. whether criminal for mere keeping in possession, p. 506. FOREIGN : language, libel written in, p. 85, 308. averments necessary, p. 86, 308. state, libel against, p. 482. FORESTALMENT: raising price of provisions by false rumours, p. 4b/, U • FORGERY- charge of, p. 32,48,74. FORNICATION : charge of, p. '25. FORSWEARING : words imputing, p. 21, 47, 77, 78, averments necessary, p. 340, 389 FRAUD: charge of secreting a will p. 21. ] REE DlSdXJSSIOI 00^ INDEX. a restraint upon the vicious, p. 2, abuse of, p. 4. press, advantages of, p. 5, 6. distinguished from an open press, p. 6. FRIENDLY COMMUNICATIONS : privileged, p. 221. G. GAZETTE : admissible in evidence, p. 572. GENERAL : issue, evidence under. in civil action, p. 332. in case of indictment, p. 549. warrants, illegality of, p. 544, 591. GOVERNMENT: publications against, p. 469. considered as contempts against the king, p. 469. privilege of freemen to represent abuses and grievances, p. 470. libel on government, in what the offence consists, p. 471. malice essential to it, p. 471. instances, p. 472, &c. the discussing public measures will not justify an attack on private character, p. 475. GUILTY : force of the word, p. 83. H. HANDWRITING : effect of, proof of, p. 352. prima facie proof of publication, p. 353. proof of, by comparison, not allowed, p. o5ii, k.c. opinions of Lord Holt, Mr. Justice Yates, Lord Kenyon, Mr. J. Buller, Baron Hotham. whether comparison is admissible as confirming evidence, p. 359. persons of skill may prove a particular writing to be in a feigned hand, p. 365. witness competent who has seen another write, though but once, p. 368. who competent to prove, p. 367. HEARSAY: when a justification, p. 213, 214. in scan. mag. p. 213. reporter must give a cause of action, p. 214, 215. must state the very words, p. 217. and not merely Iheir effect, p. 217. INDEX. INDEX. publication made in the course of performing a public or a private duty, p. 223. plea of, must confess the words, p. 339. need not traverse the epithets or innuendos, p. 340. when the place of speaking is traversable, p. 340. K. KING : publication against him, p. 457. under st. 36 G. 3. p. 469. included in st. 3 Ed. I.e. 34, but not within 2 R. 2 st. 1. c. 5. contempt against, p. 459, &c. KILLING : another charge of, p. 51, KNOWLEDGE : words reflecting on, p. 110. of party spreading a false report, how taken advantage of, p. 319. the fact of not traversable, p. 320. reason of this, p. 320. LEPROSY : imputation of, p. 98. LIBEL : different kinds of, p. 1 10. in writing, p. 140. without writing — by pictures, p. 140, 14-. signs, p. 140. processions, p. 144. grounds of the action for, p. 126, 140. distinction between oral and written slander, p. 126. reasons for unsatisfactory, p. 127, 587. special damage need not be proved, in case of caricature, p. 141. author of criminally as well as civilly responsible, where the libel contains personal reflections, p. 131, 144. an indictment lies where an action is maintainable, p. 131, on an individual, why a public offence, p. 491, 493. the degree of personal discredit immaterial, p. 492. indictment lies for libel on the memory of one deceased, p. 494. for a libel not reflecting on any particular individual, p. 492. for a libel on a body of persons ; p. 492, 595, 596. see Information, &c. does not amount to a breach of the peace, p. 524. but rests in tendency, p. 524. INDEX. <)07 tendency whether a question of law or fact, p. 552. essence of a libel, in what it consists, p. 552. charge of having written one actionable, p. 36. when parol evidence may be given of its contents, p. 383. contained in unstamped newspaper may be given in evidence, p. 383. LIBELLER : not civilly responsible without a publication, p. 264. and (semble) not criminally responsible without a publication, p. 506. LIBERTY : of the press, in what it consists, p. 3. how secured by the laws of England, p. 583. excellence of the mode in which the guilt of a libeller is as- certained, p. 583. LIMITATION : of actions for words, p. 347. mode of computing in different actions, p. 347. plea of the statute, p. 347. of suits in the spiritual court, p. 431. LIVELIHOOD : words affecting the means of, p. 106. LOSS: nature of to ground an action upon, p. 9 M. MAGISTRATES. contempts against. See Justices MAINSWORN :• charge of being, p. 85. MAINTENANCE : words charging, p. 38. MALA: prohibita : p. 31. MALICE : ex malitia, legal import of the words, p. 3 19. distinction between the legal and the moral meaning of the term, p. 172. is essential to civil responsibility, p. 208, 237, 240. is either express or implied, p. 206. presumption of is 1. conclusive in favour of the defendant. p. 173. 2. prima facie in favour of the defendant, p. 201. 3. prima facie against the defendant, p. 241. is immaterial where the imputation is true, p. 173 608 INDEX. MALICE : where the publication is made in the course of parliamentary or judicial proceeding, p. 173. where such proceedings are faithfully reported, p. 173. where the publication is procured by artifice, p. 169, 588. the presumption is in favour of the defendant where he claims an interest, p. 201. gives the plaintiff a ground of action against another, p. 213. or acts in the discharge of any public or private duty, p. 223. the presumption is against the defendant where his publication is detrimental and motive unexplained, p. 240. may consist in a wanton disregard of the interests of others, ?P^|f&ru essential to criminal liability, p. 491, 495,581. against society may consist in a wanton inattention to its in- terests, p. 499. but the presumption may be rebutted by showing that the de- fendant had a legitimate object, p. 499. averment of in a declaration, p. 316. in an indictment, p. 317* evidence of, different presumptions of law as to, p. 397 proof of express malice, p. 397, 398. what is evidence to prove malice, p. 393, 592. other actionable words, p. 398. deliberate sale of similar papers, p. 399. by servant in action for false character, p. 399, 400. circumstances stated in declaration to show malice must be proved, p. 320. MARRIAGE : loss of, a temporal damage, p. 164, 165, 589. how slated, p. 323. MARSHAL: Earl Court of, p. 432. MASS: charge of goina; to, p. 38. MEMBER OF PARLIAMENT : words of, p. 106, 586. privilege of, p. 525, 591. as to what he may be examined, p. 1 1 2 MERCHANT : words of, p. 117. MIDWIFE: words of, p. 107,116. MIRACLES OF JESUS CHRIST : libels against, p. 438. MISPRISION OF FELONY charge of, p. 57. MISDEMEANOR: je of, p. 3( INDE2 609 MITIGATION: of damages, evidence in, p. 403, uDJ, source whence the calumny was derived, p. 40 • cause of suspicion, p. 405,406. badness of plaintiff's former character, p. 407. whether particular facts tending to show the plaintiffs guilt are admissible, p. 409. MITIOR SENSUS: exploded doctrine of, p. 45, 46, 47, 51,55. reason why the doctrine prevailed, p. 52. MONEY : won at play, challenge, on account of, p. MORALITY : publications against, p. 447. are punishable in the temporal courts, p. 447. extent of the offence, p. 450. MURDER : charge of, p. 72. where the person alleged to have been murdered still h p. 72, 73. oblique charge of, p. MURDERER: p. 75. \ NEGATIVE : in what cases a party may be put to prove ( » 394 NEGLIGENCE: defendant's liability for damage resulting from, p. 24 i libel exposed from, p. 241. NEW ASSIGNMENT : when necessary, p. 350. NEWSPAPER : slander concerning, p. 120. NEW TRIAL: when granted, p. 413. time of moving for, p. 573. O. OFFICE : words relating to extent of the action, p. 107. charge of inability in, p. 102, 104. of corruption in, p. 103, 1 12. confidential distinction between reflections on integrity and ability, p. 102. grounds of the action, p. 101 . OPINION : words of, p. 58. P. PARDON : when it excludes a plea of justification, p. 180, 589. 11 610 ]J\D£\ alter a conviction for perjury will not restore credit, p. 181, 590. PARLIAMENT : libel on the houses of, p. 478. privileges of, p. 182, 183, 478. words of member, p. 106. petitioners to, privileged, p. 186. . PARSON : words concerning, p. 313. PARTIES: plaintiffs, when two or more may join, p. 250. when separate actions must be brought, p. 251. words spoken of husband and wife, p. 251. actionable words of the wife with, with special damages to the husband, p. 251, 252. husband should sue alone for special damage, p. 260. the right to sue for the actionable words would survive to the wife, p. 260. defendants, joinder of, p. 261. words by husband and wife, p. 261, 262. joinder of parties in the same indictment, p. 592. PAWNBROKER : words concerning, p. 119. PEACE OFFICER : proof of person's being one, p. 387. PEACE, PUBLIC : in what it consists, p. 634, 635. what constitutes an offence against it, p. 634. PEERS : words concerning, p. 157, 160. See Scan. Mag. PENTATEUCH : libel on, p. 440. PERJURY : charge of, p. 32, 54, 75. PHYSICIAN : p. 106, 115. description of, in declaration, p. 312. proof of plaintiff's being, p. 386, 388. PICKING A POCKET : charge of, p. 50, 75. PLACE : of speaking words, when material, p. 326. PLAGUE : words imputing infection with, p. 98. PLEA: what may be pleaded, p. 334. may explain the meaning of the words, p. 337. show no damage sustained, p. 337. non damnificatus bad, p. 339. of minority, p. 339. what must be pleaded. INDEX. (lit truth of the words, p. 181. of justification ground on the truth, p. 341 , 592. must correspond with the charge contained in the declaration, p. 341. must he pleaded and proved with great precision, p. 179, 689. of justification in general, must confess the words, p. 328. must answer the whole publication complained of. p. "44, 345. of statute of limitations, p. 347. joinder of different pleas, p. 348. POLICY : publications contrary to, p. 48- . POSSESSION OF LIBEL : whether an indictable offence, p. 509,592. POWER : words imputing, p. 65. PRESUMPTION OF LAW: when conclusive for the defendant, p. 172. prima facie in favour of the defendant, p. 20! prima facie against the defendant, p. 401. PRIVILEGE : of parliament, p. 183, 541, 592. PROCESS : summary, on what founded, p. 518. seizure of papers, p. 544. declared illegal, p. 548. against the person, p. 540. commitment by secretary of state, p. 540. general warrants, p. 542. declared illegal, p. 542. Lord Mansfield's opinion, p. 593. against a defendant on an indictment or information under 43 Geo. 3. c. 58. s.l.p. 542. PROCURER : of publication, p. 370. evidence of procurement, p. 371. PROFESSION : words relating to, p. 100. PROFESSIONAL DUTY : when it will justify a publication, p. 200. PROHIBITION : writ of, on what grounded, p. 424. to spiritual court, when granted, p. 424. where offence imputed is not of spiritual cognizance, p. 425. though imputed to an ecclesiastic, p. 429. where the same words are of both spiritual and temporal cognizance, p. 429. where they are of temporal cognizance from a particular cus- tom, p. 429. does not lie, where words of spiritual cognizance are coupled with mere terms of abuse, p. 426. t> 12 INDEX. though followed by special damage p. 427. time of moving in, p. 433. PROPHECIES : false, p. 485. PROSECUTOR : not compellable to restore the libel, p. 573. PROVOCATION : to break the peace, p. 491. where oral not indictable, unless it amount to a challenge, p. 491. reason for this distinction, p. 595. PUBLIC : amusement, slander of, p. 120. PUBLICATION : fact of, p. 350. evidence of, p. 351. postmark on a letter, p. 372. direct or indirect, p. 351. by proof of handwriting, p. 352. what necessary to support an action, p. 171. by agent, how proved, p. 366, 373. by a bookseller, p. 367, 368, 369, 370. by newspaper, p. 376. writer, 38 Geo. 3. c. 77. evidence under the statute, p. 381, 382, 383. averment of publication, p. 264. where words have been published in a foreign language, p. 267. when inadvertent not criminal, p. 241. PUBLIC LICENSER : objections against, p. 5, 6. Dr. Johnson's opinion, p. 5. PUNISHMENT: p, 577. R. RECEIVING : stolen goods, charge of p. 37, 93. REGRATING : charge of, p. 29. RELIGION : libel on, p. 435. extent of the offence, p. 440. why the temporal courts interfere, p. 436. a malicious intention essential to the offence against, p. 440. REPLICATION : usual one, p. 349. a pardon, p. 349. containing exceptions, how pleaded, p. 350. in what cases will not entitle the party to sue. p. 350. INDEX. 613 REPUTATION : pecuniary value of, p. 1. REVIEWERS: how far privileged, p. 232. ROBBERY : charge of, p. 75, 93. ROGUE : charge of heing, p. 21. S. SCANDALUM MAGNATUM : offence of, p. 155. ground of the proceeding, p. 155. parties entitled to, p. 155, 159,160. by what words supported, p. 155. construction of the statutes, p. 160, 161, 162. extent of the remedy under the statute, p. 158. baron of the exchequer within the statute, p. 159. whether peeress entitled to sue, p. 159. peer of Scotland entitled, p. 159. form of declaring, p. 315. whether the defendant may justify, p. 178, 503. SCHOOLMASTER : words concerning, p. 107. SECRETARY OF STATE : commitment of, p. 593. SCIENTER : cannot be traversed in pleading, p. 338, SERVANT : action by, p. 108, 115, 223. must prove express malice, p. 224, 225,229. reason of this, p. 229. See Malice. SKILL : words reflecting on, p. 110, 116. SKIMMINGTON : riding, p. 153,588. SLANDER: increase of actions for, p. 13. uncertainty of former rules relating to, p. 13, &c. SOLICITATION : to commit an illegal act, charge of, p. 22, 32, 88, 89, 91. such solicitation an indictable offence, p. 490. procurers by solicitation, when principals, p. 490. when accessories, p. 490. challenge on account of money won at play. p. 593. SPECIAL CHARACTER: how acquired, p. 339. 014 INDEX. how described, p. 384. * how proved, p. 384. SPIRITUAL OFFENCE: charge of, p. 23, 24, 26. courts, jurisdiction of, p. 424. no suit in special court can be maintained on an indictment, p. 431. STARCHAMBER : doctrine of in case of libel, p. 507, 508. required proof of publication, p. 511. STATE OFFENCES : to be proved by the usual rules of evidence, p. 358. STATEMENT : of the words in a declaration or indictment. the identical words must be set out, p. 260. though formerly set out in Latin, p. 267. must now be stated in the original language, p. 267, 274. insufficient to describe their effect, p. 268. distinction as to statement under an ad tenorem, and under an inter alia, p. 268. the setting them out, with the addition of vel hiis similia in- sufficient, p. 270. must correspond with the publication proved, p. 271. whether an English translation of foreign words necessary,, p. 274. See Variance. SURETIES : whether libellers in general can be required to find surety of the peace, p. 524. for the good behaviour when requirable, p. 524, 526. words of absent magistrate, p. 527. party should be bound without delay, p. 527. extent of the doctrine, p. 528. form of the commitment for want of sureties, p. 528. for mere words of abuse sureties not demandable,p. 528. when demandable where no person in office is reflected on. p. 528. STEALING : charge of, p. 49, 79, 80. STOCKBROKER : words of, p. 177. SUBORDINATION . * "*" of perjury, charge of, p. 75, 93. SURPLUSAGE : when an averment considered as, p. 384. SUSPICION : words of, p. 58, 60. however strong, will not amount -to a justification, p. 180. nor will common fame, p, 180. SWINDLER : p. 23. INDEX. (315 T. THIEF : charge of being a, p. 49, 50, 75, 79 TRADER: words of, p. 113, 117. imputing dishonesty, p. 113. words affecting credit, formerly not actionable, unless ihev imported bankruptcy, p. 324. TREASON : words imputing, actionable, p. 32. though no act be charged, p. 57. overt act of, words spoken formerly, held to amount to, p. 457. the doctrine questioned, p. 458. words joined to an overt act may explain it,jp. 459- written or printed publications, p. 459. by writing against the king's title, p. 468. described by 36 G. 3. c. 7. p. 468. TRESPASS : charge of, p. 16, 17,39. TRIAL : for the criminal offence, p. 551. offence as stated on the record of what compounded, p. 551 . TRINITY: offences against the, p. 438. profanation of, in stage play or interlude, p. 445. denial of, p. 445. TRUTH : of the matter published. why a bar to damages, p. 175. Sir W. Blackstone's doctrine considered, p. 175. whether a bar to an action for scan. mag. p. 179. not admissible in evidence unless pleaded, p. 328. formerly admitted where the charge was precise, p. 329. general rule, p. 330. allowed where assertions of the defendant's are proved te show malice, p. 412. justification allowed in action by person charged as accessory after the acquittal of the principal, p. 179. allowed against plaintiff after his acquittal, p. 179. plaintiff may be put upon his trial on such an issue found against him without the finding of a grand jury, p. 179. plea of. See Plea. Justification. no bar to an indictment, p. 496. ground of rejecting such a justification, p. 197. indictable misdemeanor, what essential to, p. 497. the publication of what is true may produce mischief, p. 499. the truth of a publication not the test of malice agaiust so- ciety, p. 499. 616 INDEX. reasons for admitting in evidence stronger where the alleged libel charges a more immoral act, p. 500. in case of immoral publications the objections against admit- ting more forcible, p. 501, 502. V. VARIANCES : .'*+ different kinds of, p. 274. *-^ words set out "juxta tenorem," in hsec verba, or under an "inter alia," &c. p. 276. where " tenor" is used a literal variance not fatal, p. 277. mode of setting out passages not continuous, p. 278. alteration of a single letter when fatal, p. 279. Lord Mansfield's dictum as to varianc\, p. 279. VENIRE : whence awarded formerly in case of a local justification, p. 247. reason for this peculiar to the case of libei, p. 247. law altered by statutes 16 and'17 C. 2. and 4 Anne, p. 248. construction of these, p. 249. VENUE : in civil action, p. 245. when changeable, p. 245, 246. in scan. mag. p. 246. W WARRANT : See Process. WATCHMAKER : words of, p. 110. WHORE : when the term is actionable, p. 23, 25, 68. WITCH: when actionable, p. 82. WITCHCRAFT : p. 38. WITNESS : privilege of, in giving evidence, p. 185. when he may read the words from a paper, p. 351 . or refresh his memory from minutes, p. 351. WORDS : spoken, when indictable, p. 494, 593. mere words of nbuse not indictable, p. 491, 593. WRITING : libel, whether the bare act is criminal, p. 511. WRONG : defendant's, of what compounded, p. 170, 171. mere overt act, p. 170. See Publication. malicious intention, p. 170. See Malice. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. MAY 2 7 1379 SEP 01 1982 \u< Form L9-Series4939 UnWersityofCaUfornja SCHOOL OF LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 821 104 7